Pittsburgh, Cincinnati and St. Louis Railway Company v. Laufman. of the same act mentioned in the ordinance in question, and section 1640 abrogates the ordinance. The demurrer to the complaint should have been sustained. The judgment below is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion. No. 8371. PITTSBURGH, CINCINNATI AND ST. LOUIS RAILWAY COM- RAILROADS.-Duty to Fence, in Towns and Cities.-Railroad companies are SAME.-Exceptions to Rule.-It is not for the courts to create exceptions to the statutory rule on the subject. From the Grant Circuit Court. N. O. Ross, for appellant. R. W. Bailey and A. Diltz, for appellee. WOODS, J.-The appellee obtained a judgment against the appellant for the value of a horse, killed upon the track of the appellant's road at a point where the same was not fenced; and the question presented for decision is, whether the road ought to have been fenced at the locus in quo. Counsel says: "The precise question that the appellant desires to have settled is this: 'Is a railroad company bound to fence its road where it runs through a populous portion of a town or city, where the ground is laid off into ordinary sized building lots with streets and alleys between, in order to avoid liability for stock killed, on the ground that the road was not fenced.'" The evidence in the case consists of an agreed statement of 78 319 124 213 Pittsburgh, Cincinnati and St. Louis Railway Company v. Laufman. facts, to the effect that the animal was killed by a locomotive or car, upon the line of the appellant's road and right of way, in the town of Marion, at a point between two parallel streets, and not upon the crossing of a street, or alley, nor in a public place. The distance from one street to the other, along the line of the railroad, which is not at right angles with the streets, is about twenty-five rods. The lots next to the right of way, which, at the place in question, is only fourteen feet wide, were enclosed by fences which extended across the alleys laid out between said streets, making a continuous line of fence on either side of the railway track from one street to the other; so that there was no access to this part of the appellant's track and right of way, except from the streets, and at these there were no cattle-guards or other means to prevent the incursion of animals upon that part of the track. The principal reason suggested by counsel, why such portions of a railroad should not be deemed to come within the general rule of liability imposed by the law, is, that the numerous cattle-guards which would be necessary would weaken the road-bed, and thereby cause danger instead of averting it. It is a sufficient answer, that there is no evidence in the case that such would be the necessary or probable consequence of putting in the requisite guards, and it can not be judicially known that such would be the result. The statutory rule is, that railroad companies shall be liable for injuries done by their locomotives or cars to animals at places where their roads might be but are not fenced; and it is not the province of the courts to create exceptions to the rule, or to interfere with the legislative policy, upon the ground suggested, or for any like reason. See The Indianapolis, etc., R. R. Co. v. Parker, 29 Ind. 471; The Toledo, etc., R. W. Co. v. Howell, 38 Ind. 447; The Indianapolis, etc., R. R. Co. v. Christy, 43 Ind. 143; The Indianapolis, etc., R. R. Co. v. Lindley, 75 Ind. 426. Judgment affirmed, with costs. Dill et al. v. Vincent. No. 8418. DILL ET AL. v. VINCENT. JUDGMENT. Decree of Foreclosure.-Collateral Attack.-Action to Recover Real Estate.-Sheriff's Sale.-Presumption.-A decree of foreclosure against a woman and her husband can not be successfully attacked by her as a defendant in a collateral proceeding by the holder of the sheriff's deed to recover possession of the real estate sold and conveyed to him by virtue of the decree. The correctness of the decree, and of the sheriff's sale under it, must be presumed against her. SAME. Wife's One-Third of Proceeds.-In such case, if the wife be entitled to one-third of the proceeds arising from the sale of the mortgaged premises, she must enforce her right by separate action. It would not defeat the purchaser's right to possession. From the Dearborn Circuit Court. W. S. Holman, J. Schwartz and O. M. Wilson, for appellants. O. B. Liddell, for appellee. ELLIOTT, J.-This was an action instituted by the appellee against the appellants, to recover the possession of real estate. The only questions presented by this appeal are those arising upon the refusal of the trial court to award a new trial, which was claimed by the appellants. The appellee founded his claim of title upon a sheriff's deed executed to him by the sheriff of Dearborn county. In support of his claim he introduced a judgment and decree, sheriff's return to the certified copy of the decree, and the deed thereon executed by the sheriff. The principal contention of counsel for appellants is, that the appellant Barbara Dill is entitled to one-third of the property sold by the sheriff and claimed by the appellee. The decree was based upon several mortgages which had been executed by the appellant Barbara Dill and her husband, Liborious Dill. There were also embraced in the decree several judgments against the husband. alone, the holders of which had been made parties as junior incumbrancers to the foreclosure proceedings. The decree conVOL. 78.-21 Dill et al. v. Vincent. tained a proviso barring the equity of redemption of both husband and wife, and directing a sale of the mortgaged premises; and it also provided for the disposition of the surplus remaining after satisfaction of the judgment. The appellee bid in the property for $1,500, which was the amount due upon the mortgages and judgments described in the decree. The purchase by Vincent under the decree gave him a title to the land purchased, freed from the claims of Mrs. Dill. If the decree was erroneous in directing a sale of the land, and in divesting her of her rights therein, it can not be successfully attacked in this collateral manner. If counsel are right in their position, that the decree divesting Mrs. Dill of her rights is wrong, their remedy is by a direct attack upon the judgment and decree. The appellee's answer to the argument of appellants is, that the case is strictly analogous to cases where there are some claims waiving relief from valuation laws, and others containing no such waiver, and that, as it is proper in such cases to render judgment directing one sale, and that without relief, it was proper to render one decree in this case directing a sale of the entire tract, making proper provision for distribution of proceeds of surplus remaining after satisfaction of the decree on the mortgage. This question is not in this case. The question would be properly presented in a direct attack upon the judgment; it is not involved in this collateral proceeding. It is argued that Mrs. Dill is entitled to one-third of the proceeds arising from the sale of the mortgaged premises. If this were granted, it would avail nothing here, for it would not defeat appellee's right to possession. If the appellant Barbara Dill has any such right, it must be enforced in the proper action against the proper parties. The decree contained a provision for the disposition of the surplus remaining after satisfaction of the judgment. If this provision was the correct one, Mrs. Dill must proceed against the persons charged with the due execution of the decree; if not correct, then her Lary v. The Cleveland, Columbus, Cincinnati and Indianapolis R. R. Co. remedy, if any she has, would be to compel a proper correction of the erroneous decree. It is contended that the premises were not sold in parcels. The decree of foreclosure settled this question, and appellants' argument upon this point is foundationless. If this were not the presumption is, that the sheriff did his duty in making the sale, and there is nothing tending to show the contrary. Judgment affirmed. So, Opinion filed at May term, 1881. Petition for a rehearing overruled at November term, 1881. No. 8212. LARY V. THE CLEVELAND, COLUMBUS, CINCINNATI AND INDIANAPOLIS RAILROAD COMPANY. NEGLIGENCE.-Railroad Company.-Damages.—The plaintiff, without invi- From the Madison Circuit Court. W. A. Kittinger, A. F. Harrison and W. R. Pierse, for appellant. A. C. Harris, H. H. Poppleton, J. A. Harrison and R. Lake, for appellee. MORRIS, C.-The appellant sued the appellee for damages alleged to have been sustained by him through the negligent failure of the appellee to repair a building standing on its |