apply to the payment of his lien, and which exceeds the amount of his claim. As the complaint in this case shows that the senior lien-heldor had money in his hands which it was his duty to apply to the payment of his lien, the case falls, not within the general rule,-for that fails,-but falls within the exception. We must therefore hold that as the allegations of the complaint are confessed by the demurrer, the failure to make an equitable tender is excused by the facts pleaded. In asserting this conclusion we do not inquire whether Horn was chargeable with the rents received by him, for, leaving the amount of the rent out of consideration, it still appears that he had twelve thousand dollars in his hands; hence we need not, and we do not, examine the question of the relevancy of the doctrine declared in the cases of Gavin v. Graydon, 41 Ind. 559; Elwood v. Beymer, 100 Ind. 504.

We do not at this point decide whether the appellee has any right to redeem, but pass that question, for the reason that it is fully presented in the special finding.

We are unable to discover any theory upon which it can be held that a cause of action is stated against Hawkins. He was, it is true, the sheriff who made the sale; but as the complaint seeks to redeem, it affirms the sale, and as it does this, there can be no cause of action against the officer who made the sale, even if it be conceded that he did not make a true return. It has been again and again decided that a complaint must proceed on a definite theory, and be good on that theory: Mescall v. Tully, 91 Ind. 96; First Nat. Bank v. Root, 107 Ind. 224; Louisville etc. R'y Co. v. Thompson, 107 Ind. 442; 57 Am. Rep. 120; Rahm v. Deig, 121 Ind. 283. The only theory upon which this complaint can be good, if, indeed, it can possibly be good on any, is, that it shows a right to redeem from a sale made by a sheriff, and upon that theory it is legally impossible that it can be good against the officer by whom the sale was made. The demurrer filed by Hawkins must be sustained.

The second paragraph of the answer of the appellant Horn is a partial one, and is addressed to so much of the complaint as charges him with the rent of the property of which he was in possession prior to the sheriff's sale. This answer alleges that the appellant made permanent improvements of the value of fifteen hundred dollars, for which he asks credit.

Upon the assumption which we provisionally make, that the complaint was good, the answer was clearly bad. A mort

gagee in possession cannot embarrass the right to redeem by making improvements. He may make repairs, but he cannot make improvements, at the expense of redemptioners: Miller v. Curry, 124 Ind. 48.

The special finding states the facts substantially as follows: On the 7th of May, 1886, Eber Teter and George Teter were the owners, as partners, of four acres of land. Situated on this land, and attached to it, were a heading factory and appurtenances. On the day named, a suit was pending in the Hamilton circuit court, wherein James R. Carson and Benjamin F. Horn were plaintiffs, and the Teters, the appellee, and others were defendants, and in that suit a decree of foreclosure was rendered, in which judgments were embodied. Carson recovered $2,935.80, Horn $10.889.20, and the appel lee $5,088.63. In June, 1883, and prior to that time, the Teters were partners, doing business under the name of Teter and Brother; their business was that of manufacturing barrel headings, and they were the owners of a factory properly equipped for that business. The land on which the factory was situated was purchased by the firm of Teter and Brother, but the title was taken in the name of George Teter, trustee. On the twenty-ninth day of June, 1883, Teter and Brother executed a chattel mortgage to James R. Carson on the partnership property, in which the property was designated "as the following personal property: One slack-barrel heading factory, consisting of boiler, engine, two planers, two jointers, two heading-turners, four saw rigs, two thousand feet of inch. gas-pipes and connections, and all other property or incidents connected therewith, including pulleys, belts, tanks, etc., now located on part of lot numbered 2 of Coles and Jones's addition to the town of Cicero, Hamilton County, Indiana." This chattel mortgage was executed to secure and indemnify the mortgagee against loss as surety upon a promissory note executed by Teter and Brother for five thousand dollars, and it was provided in the mortgage that the mortgagors might remove the heading factory to the four acres of ground situated in the town of Sheridan. This mortgage was duly recorded. During the latter part of the summer of 1883, the factory and appurtenances were removed to Sheridan and attached to the four-acre tract of land. Before the removal of the factory to Sheridan, Teter and Brother became indebted to Horn in the sum of five thousand dollars, and to secure this indebtedness, and also to secure advances that might sub

sequently be made by Horn, the firm of Teter and Brother, and the trustee, George Teter, executed to him, on the twentyfourth day of October, 1883, a mortgage on the property in Sheridan. This mortgage, after describing the land, recited that, "And this sale includes all machinery, pipes, and appurtenances connected therewith on said real estate." It was also declared in the mortgage that it was subject to the mortgage of James R. Carson. The mortgage to Horn was recorded on the twenty-fifth day of October, 1883.

On the twentieth day of November, 1883, Teter and Brother and their trustee executed a conveyance to Carson, in terms, granting all the property to him, but which, by agreement, was in fact a mortgage to secure his claim. On the seventeenth day of August, 1884, Teter and Brother were indebted to Horn in the sum of $9,720.58, to Carson in the sum of $2,500, and to Smith and Rodeman in the sum of $1,200. On that day these parties agreed that Horn should have a first lien for his claim on the land, that the lien of Carson and Horn should be of the same rank upon the factory and appurtenances, and that Horn and Smith and Rodeman should take possession and operate the factory, that they should pay the expense of the business, and out of the net earnings pay one half to Horn, one fourth to Carson, and the remaining one fourth to Smith and Rodeman. This agreement was recorded on the eighteenth day of August, 1884. On the twenty-eighth day of November, 1884, Teter and Brother executed to the appellee a mortgage on the property in Sheridan to secure an indebtedness of four thousand nine hundred dollars, and this mortgage was seasonably recorded. On that day the appellee entered into an agreement with the other interested parties similar to that entered into between the mortgagors and their creditors on the 17th of August, in so far as concerned the operation of the factory and the division of profits, but stipulating that Smith and Rodeman should operate the mill and conduct the business. The factory was operated by Smith and Rodeman until October, 1885, but no profits were realized. In that month Horn, with the consent of the interested parties other than the appellee, took possession of the property. The use of the property during the time Horn held possession was of the value of one thousand dollars. In May, 1886, a decree was rendered upon the several mortgages and agreements in a suit wherein the mortgagors and all of the mortgagees were parties. The mortgages and agreements

"were," as the special finding expresses it, "adjusted and merged in said judgment and decree, save and except the question of the use and possession, and the question of repairs made by Horn after October 20th, 1885," which matters were left by the court for future consideration. The decree states the amount which each of the lien-holders was entitled to recover, and adjudges a recovery. It also fixes the order of priority, directs a sale, and provides the method of distribut ing the avails of the sale. The clerk issued a certified copy of the decree to the sheriff; he advertised the property for sale, describing in the notice the land by metes and bounds, and adding to such description the following: "Including the heading factory and all appurtenances connected therewith; also the buildings thereon situate, together with all machinery, located at Sheridan, Indiana, formerly known as the Teters's Heading Factory." The appellee gave notice to Horn and to the sheriff that the property should not be sold separately, and directed that it should all be sold as real estate. On the third day of July, 1886, the sale was made. In making the Bale the sheriff sold the land separately to Horn, who bid for it two thousand dollars, and the heading factory and equipments he also sold to Horn for the sum of four thousand dol lars, that being the amount bid by him. Horn has removed part of the machinery from the state, and the part so removed is of the value of nine thousand dollars. The Teters are insolvent, and unless the appellee can make its claim out of the property it will be lost. The court stated as conclusions of law,-"1. That the law is with the plaintiff; 2. That the plaintiff ought to have judgment against Benjamin F. Horn and Elihu Hawkins for one half of the value of the property." It cannot be successfuly denied that the factory and its equipments were treated by all the interested parties as personal property long prior to the time the appellee's mortgage was executed. It was so characterized in the chattel mortgage to Carson, in which the right to remove it from the town of Cicero to Sheridan was provided for, and so it was treated in the agreements made between the parties prior in equity and in time to the appellee. The agreement between the appellee and the senior lien-holders recognizes the validity of the former agreements and mortgages, so that the parties by their own acts had impressed upon the factory and its equipments the character of personal property: Ford v. Cobb, 20 N. Y. 344. It was entirely competent for them to do this,

for a factory and its equipments, or a mill and its machinery, may be personal property although it is affixed to the soil: Malott v. Price, 109 Ind. 22; Rogers v. Cox, 96 Ind. 157; 49 Am. Rep. 152; and cases cited. Whether property is real or personal is, as the modern decisions unite in declaring, in a great measure a question of intention: Hubbell v. East Cam bridge etc. Savings Bank Co., 132 Mass. 447; 42 Am. Rep. 446, and the authorities in the note to page 447. In this instance the intention to fix upon the heading factory and its equip ments the character of personalty had been fully and unequivocally manifested, and notice lawfully given before the appellee acquired any rights in the property. We are not therefore dealing with a case where a purchase is made, or a mortgage accepted, where there is no notice of the character of the property, and appearances indicate that it is part of the realty. We make no inquiry as to what rights a mortgagee acquires where his lien is taken upon the faith that the property is land, and there is neither actual nor constructive notice that the parties have by their conduct impressed upon the property a different character.

As the factory and its equipments were originally personal property, that character they retained, unless it be true that the decree in the foreclosure suit transformed it into property of another kind. The case is, so far as concerns this point, controlled by the decree. If the decree does, as appellee's counsel contend, adjudge that the property is real and not personal, the appellants are estopped to treat it as personalty. There is no direct adjudication upon this question, for there is no express decretal order that the mill and its equipments are either real or personal property, nor does it appear that the pleadings directly presented that question for decision, So far as we can judge from the special findings, the parties simply sued to foreclose their respective liens, and the only questions which necessarily arise on pleadings demanding a foreclosure are as to the right to a foreclosure, the priority of equities, and the distribution of the proceeds. It would no doubt have been within the power of the court to adjudicate upon the question of the character of the property as an incident of the suit, had that question been directly made; but the question was not directly made, and there is no express adjudication. We must therefore ascertain whether there is such an inferential or indirect decision of the question of the character of the property as concludes the parties. The ap