Loesnitz v. Seelinger, Treasurer, et al. from the sale of the bonds, and the assessments are collected to pay the purchasers of the bonds. Certainly it will not be contended that the purchasers of the bonds issued by the board are to be held responsible for the proper application of funds to the purpose for which they are raised. Such a construction of the statute would wholly defeat the object of the law, for if the purchaser of such bonds was compelled to take the hazard of losing his money in the event the funds were wasted or misapplied, he would not purchase. For these reasons, among many others that could be given, we think that mere error in the board in the matter of letting the contract, in the matter of making the estimates, or even in recklessness, or wanton or inexcusable negligence in the use of the funds, when raised by the sale of the bonds, can not affect the validity of the assess ments. Nor do we think it is shown that there has been a judgment of the Ripley Circuit Court which relieves appellant from the assessment set up in his complaint. The assessments for the purpose of building free gravel roads are several and not joint. Fleener v. Claman, supra. The fact that some of the parties whose lands have been assessed for this improvement have procured a decree declaring such assessments, as to them, void, does not help those who have procured no such decree. We do not think the circuit court erred in sustaining the demurrer to the complaint before us. Judgment affirmed. BERKSHIRE, J., took no part in the decision of this cause. Filed Dec. 11, 1890. ON PETITION FOR A REHEARING. A petition for a rehearing, supported by an earnest argument, has been filed in this case, in which it is insisted that this court erred in the opinion heretofore rendered, in this: In holding that an action will not lie to enjoin the First. Loesnitz v. Seelinger, Treasurer, et al. collection of an illegal assessment to aid in the construction of a free gravel road until the legal assessments have been paid, where the legal and illegal tax has been so commingled as that they can not be separated. Second. In failing to decide that an appeal will not lie from a proceeding to establish and construct a free gravel road. The contention of the appellant is that the viewers appointed by the board of commissioners to view the road in controversy, and estimate the expense of performing the work petitioned for, in estimating such expense took into consideration the construction of certain bridges which could not be constructed under the law providing for free turnpike roads, and that the viewers appointed to apportion the estimated costs of such improvement included in the amount apportioned against the appellant's land the cost of constructing such bridges, and that the cost of constructing the bridges is so blended and commingled with the legitimate expenses that it can not be ascertained and separated. It is contended that by reason of the facts above stated the whole assessment is void. When the opinion was prepared in this case we did not think, nor do we think now, that the rules applicable to an ordinary tax had any application to cases of the class to which this belongs. Under the provisions of section 5092, R. S. 1881, the board of commissioners are required to appoint three disinterested freeholders of the county, whose duty it is to make a report to said board at its next regular session, containing, among other things, an estimate of the costs of the improvement sought to be made. By the provisions of section 5096, the board are further required to appoint three other disinterested freeholders of the county, whose duty it is, upon actual view, to apportion the estimated expenses of the improvement upon the real property embraced in the order for the improvement, according to the benefits derived therefrom, and to make re Loesnitz v. Seelinger, Treasurer, et al. port thereof to the county auditor. After the filing of such report the auditor is required to notify those interested. It is made the duty of the board of commissioners, after such notice has been given, to hear any objections that may be made thereto, and if no sufficient reason is shown why it should not do so, they are required to approve and confirm the report, and order the amount due from each tract of land to be assessed against the same. The order of the board of commissioners approving and confirming the report has the force and effect of a judgment against the owner of the land thus notified, in so far as it affects the land. This judgment is as binding upon the parties as the judgment of any other court of competent jurisdiction upon the finding of the court or the verdict of a jury. If any owner of land assessed has any valid objection to the assessment it is his duty to avail himself of such objection, when brought into court for that purpose, and if he fails to do so the judgment estops him from making such objection in any collateral proceeding like the one before us. Million v. Board, etc., 89 Ind. 5; Osborn v. Sutton, 108 Ind. 443; White v. Fleming, 114 Ind. 560. It will thus be seen that the authorities applicable to an ordinary tax, levied without notice to the parties to be affected thereby, have no application to this case. As no effort was made to appeal the proceedings, resulting in the assessment which the appellant seeks to enjoin, we do not think the question as to whether an appeal does or does not lie from such a proceeding is involved in this case. Nor are we able to perceive how that question can affect the controversy here waged. Assuming that no appeal lies from such proceeding, as contended by the appellant, it follows that the Legislature has made the findings and judgments of the board of commissioners, in matters of this kind, conclusive. The rule which renders the judgments of a court of competent jurisdiction impervious to collateral VOL. 127.-28 127 434 151 510 Pouder v. Catterson, Receiver. attacks, applies as well where there is no appeal as to cases where appeals are allowable. This being so, the question as to whether an appeal lies from a proceeding to establish a free gravel road is wholly immaterial where judgments of the board of commissioners are attacked collaterally. We do not think we erred in the matter of which complaint is made. Petition overruled. Filed March 13, 1891. No. 14,545. POUDER v. CATTERSON, RECEiver. RECEIVER.-Action by Against Tenant Wrongfully Holding Over.-Leave of Court.-Pleading.-Complaint.-Where one holding under a receiver as lessee or tenant refuses to surrender, the receiver is entitled to maintain an action to recover possession in his own name without an order of court, and the complaint need not allege that the receiver has been authorized by the court to bring the action. SAME.-Title.-Estoppel.-One who has taken a lease from and become the tenant of a receiver, is estopped to deny the title of his lessor while he remains in possession under the lease. From the Marion Superior Court. W. D. Bynum and A. T. Beck, for appellant. F. Knefler, J. S. Berryhill and J. B. Elam, for appellee. PER CURIAM.-This opinion, in which we all concur, was prepared for the court by the late Judge Mitchell, and expresses the views and judgment of the court. It appears that Robert Catterson was duly appointed receiver of the rents and profits of certain real estate in a suit by Warren Tate against Milton Pouder and others to foreclose a mortgage. The receiver took possession of the land mortgaged and Pouder v. Catterson, Receiver. leased it to the appellant, who took possession and paid rent. Subsequently the receiver brought this action against the appellant to recover possession, alleging that by the terms of the lease the tenancy had expired, and that the defendant unlawfully held over and refused to surrender possession, to the damage, etc. It is contended that the complaint is fatally defective in that it contains no averment that the receiver has been authorized by the court, under whose appointment he is acting, to institute the action. It is undoubtedly a correct special proposition that, in the absence of authority derived from the statute or from the court ordering his appointment, a receiver has no power to sue in his own name, and that when his authority is derived from the order of the court, that fact must appear by suitable averments in the complaint. Garver v. Kent, 70 Ind. 428. The reason is that the legal title to choses in action, or other property which he is authorized to reduce to possession, is ordinarily not transferred to the receiver, but remains in the owner, in whose name suit must be brought unless the statute or the order of the court authorizes the re ceiver to proceed in his own name. Neither the reason nor the rule controls in case a receiver brings suit upon a contract made with him, or upon an obligation due to him as such. Singerly v. Fox, 75 Pa. St. 112. A receiver, being nothing more than the instrument used by the court in accomplishing its purpose or carrying into effect its decree, must be presumed to have the power to take all such steps as are essential to enforce the performance of contracts or agreements made with him in the course of his receivership. It can not be that one who is appointed a receiver to collect rents has no implied authority to compel payment from one to whom he has leased the premises under the order of the court, or to recover possession of the leasehold in case his tenant holding under a lease made with him. refuses to surrender. |