author: English, 0. J.

text:
    Thompson et al. vs. Robinson, Sheriff, et al.
    1. Suetcty: When discharged by creditor's forbearance. Not, by failing to issue execution.

    An agreement upon a valid consideration by a creditor, without consent of the surety, not to sue the principal debtor for a stated time, discha-ges the surety. But the payment of part of a debt by the principal, at or after the time it becomes due, is not a sufficient consideration to support an agreement for forbearance; and such an agreement founded upon such a consideration, though carried out by the creditor, will not discharge the surety. Nor will mere delay of the creditor to issue execution on a judgment against the principal, discharge the surety.
    2. Same : Not discharged unless time of forbearance is fixed.

    An agreement for forbearance with the principal will not discharge the surety, unless the time of forbearance is fixed.
    3. Same : Notice to creditor to sue, how given; when he should attach.

    If, after the debt becomes due, the surety, either verbally or in writing, requests tho creditor to sue the principal who is then solvent, and the creditor fail to do so, and the principal afterward become insolvent, the surety is thereby discharged.
    But before a surety can claim a discharge for the omission or failure of the creditor to attach the property of the principal, he must show in his bill for discharge that there were legal grounds for attaching.
    4. Attachment of Boats: Affidavit for.

    Ror the attachment of boats in the state courts, the same affidavit is required as in attachment of other property.
    APPEAL from Phillips Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Tkweat and Trieber, for appellants.
   English, 0. J.

The bill in this case was filed twelfth February, 1877, in the circuit court of Phillips county, by Andrew J. Thompson and Thomas H. Quarles, against H. B. Robinson, sheriff' of said county.

The bill alleged, in substance, that on the - day of --, 1874, complainants, at the request of William H. Ross, became his sureties in a note to Jacks & Co., of Helena, for $-, payable-day of--, 187 — .

That after the maturity of the note, Jacks & Co. brought suit upon it against complainants and Ross to the fall term 1875 of the Phillips circuit court. That process was duly served on complainants, and soon thereafter complainant Thompson, went to Thomas M. Jacks, of the firm of Jacks & Co., and. informed him that Ross, the principal in the note, was then somewhere on St. Erancis river with his steamboat Rhoda, and would soon be down; and that complainants wished him, immediately on the arrival of Ross with his boat, to attach it, and by that means secure his debt and save the sureties harmless. That after this, Ross came to Helena -with his boat, when complainant Thompson again went to Jacks, and informed him of the arrival of Ross with his steamboat, and repeated the request that he take immediate steps to secure his debt out of the property of Ross, stating at the same time that he, being a steamboat man, was liable at any time to remove his property beyond reach of process of the courts of this state, or that his property, being a steamboat, was liable to the losses incident to water crafts of like character; and that he and his co-security wished to be released from liability on account of said note, and that if he (Jacks) failed to secure himself out of'the property of Ross while it was within reach. of the law, complainants would not be further responsible on account of said note. That Jacks & Co. at once’’'applied to Ross for the payment of said note, and threatened him with attachment in case of further delay, when Ross agreed to pay Jacks & Co. $150 on account of said note, if they would extend the time of payment on the balance. That said payment and extension were agreed to by Jacks & Co. upon condition that Ross, who had not been served with process in the suit instituted by them against him and complainants above mentioned, should enter his appearance to said suit, and consent that judgment should go in their favor against him and complainants. That in accordance with said agreement, and in consummation thereof, Ross paid Jacks & Co. said $150 on the nineteenth of November, 1875, and directed his attorneys to enter bis appearance to said suit, then pending against him in said circuit court, and allow judgment to go against him for the balance due on said note; all of which was done and judgment entered in conformity with said agreement, on the twentieth of November, 1875.

That complainants had no knowledge or information whatever of said agreement so made between Jacks & Co. and Eoss, and the extension of time for the payment of said note, and gave no consent whatever that further time be given thereon.

That after the request and notification to Jacks, who was a member of the firm of Jacks & Co., complainants relied upon them to make their money out of the property of Eoss, and relieve complainants as sureties on said note, and did not even know of the judgment against them until long subsequently; and did not know until within the last few days that Eoss had appeared, by counsel or otherwise, and consented to waive service and enter his appearance, and suffer judgment to go against him or them.

That complainant Thompson met Eoss shortly after his arrival at Helena, with his steamboat, as aforesaid, and mentioned the fact to him that complainants were sued on account oi his note to Jacks & Co., and requested, him to arrange the payment of the note with Jacks & Co., and save them from loss, which he agreed to do ; and shortly afterward told complainant Thompson, that he had adjusted the matter so that they would not be troubled further about it. That, relying upon the statement of Eoss, they gave no further thought about the matter, supposing that Jacks & Co. had, according to their request, secured themselves out of the property of Ross, or received payment of the amount due.

That on the-day of--, 1877, Jacks & Co. caused execution to be issued upon said judgment against complainants and Ross, and placed in the hands of defendant Robinson, as sheriff, etc., who had levied on the property of complainants, and would sell the same on the -day of February, 1877, to satisfy the judgment, unless restrained.

That from the time the judgment was rendered, twentieth November, 1875, to about the first of February, 1876, Ross continued to run his steamboat in the St. Francis river, and to the city of Helena, where Jacks & Co. resided and did business, and which was the home port of said steamboat, and while the boat, which was still held and owned by Ross, was lying at Plelena, a violent storm arose, and broke the boat loose from her moorings, and drove her across the river to the Mississippi shore, where she sank and became a total loss to Ross, her owner; and yet, during all the time, from the date of said judgment until the destruction of said boat, Jacks & Co. made no effort to satisfy the judgment, by subjecting said boat to sale on execution, or otherwise, although liable under the laws of the state.

That, by the loss and destruction of said boat, Ross became utterly insolvent, and, shortly after, became a nonresident of the state, leaving no property out of which said judgment could be satisfied; and, if complainants were compelled to pay the judgment, it would be a total loss to them, and contrary to equity, etc.

Prayer, that Robinson be temporarily enjoined from selling the goods of complainants, etc, and that, upon final hearing, the execution of the judgment he perpetually enjoined as to them.

On the filing of the hill,, an interlocutory injunction was granted.

Although complainants sought to enjoin a judgment in favor of Jacks & Co. they were not made defendants, nor was it alleged who composed the firm, other than Jacks.

By leave of the court, however, Jacks was made a defendant, and answered the bill.

He states that on the third of July, 1874, Ross and complainants executed to Jacks & Co., their joint note for $342, payable at four months, with interest after due at 3^ per cent, per month, for money advanced to Ross, and, though complainants were sureties for Ross, all- of the makers of the notes were principals as between Jacks & Co. and them.

Admits that Jacks & Co. brought, suit on the note to the fall term, 1875, of the circuit coui-t of Phillips county, against Ross and complainants, and process was served on the latter. That, after the institution of the suit, complainant, Thompson, informed him that Ross had his boat in the St. Erancis river, and desired him to attach said boat, upon her arrival at Helena, which he declined to do, because he was unwilling to make the affidavit, and give the bond, and incur the liability for costs of taking care of a steamboat under an attachment.

Admits that, after the institution of said suit, Ross came to Plelena with his boat, and Thompson may have again spoken to him, but states that, in all their conversations, Thompson desired him to sue Ross, and not complainants, and he repeatedly told him that, if he desired the collection of the debt pressed, he would so instruct his attorneys. That Thompson did not wish a judgment against himself, and never notified respondent or any member of .the firm of Jacks & Co., in writing or otherwise, to.institute suit on said notes, or press the collection of the judgment, which was recovered thereon. Denies that Jacks & Co. applied to Ross for payment of said debt, as alleged. Admits that Ross did pay to Jacks & Co. $150, and did enter his appearance in said cause; but denies that said sum of money was paid, or said appearance entered, upon any agreement to extend time of payment on any part of the balance of said debt. Avers that he always supposed said payment was made, and said appearance entered, at the instance of complainants, or one of them. Did not know what directions Ross gave to his attorneys. Respondent repeatedly told Thompson that when he desired said note to be pressed to a collection, he would do so. But Thompson would not say that he wished it to be done, because respondent told him he would release no one, and Thompson did not wfish suit pressed for fear he would have to pay the debt, and would not say to press it. Admits the destruction of the boat of Ross, but did not remember at what time. Denies that complainants ever notified him to make his money out of Ross, or ever made any request of him -to that effect, except that Thompson wanted the steamboat attached, as before stated. Avers that he always informed Thompson that he was ready to proceed by suit when he said só, and would do it; and all the indulgence was given on account of Thompson. Denies that he ever agreed with Ross for any consideration, or without consideration, to extend time of payment.

Admits the issuance of the execution, as alleged ; that Ross was a non-resident, but did not know whether he was solvent or insolvent, though he knew of no property in the state belonging to him subject to execution.

The answer also contained, a general demurrer to the bill.

It appears that the suit at law upon the note was brought in the name of Thomas M. Jacks and L. A. Fitzpatrick, partners, under the firm name of Jacks & Co., and that judgment was rendered against Ross and complainants, twentieth November, 1875, for $285.35, to bear interest at 6 per cent.

The cause was heard upon the pleadings and depositions, and the temporary injunction was dissolved, and the complaint dismissed for want of equity, and complainants appealed to this court.

We gather from the allegations of the bill that appellants relied upon these grounds for equitable relief:

1. The extension of time of payment by Jacks & Co., the creditors, to Ross, the principal debtor.

2. The refusal of Jacks & Co. to attach the steamboat of Ross.

3. The neglect of Jacks & Co. to take out execution upon the judgment, and cause the boat to be levied upon and sold before it was destroyed.

Material facts proven by the depositions may be stated in considering the several grounds of relief relied on:

I. The bill alleges, in substance, that after the note was due, and suit brought upon it, Jacks & Co., the creditors, agreed with Ross, the principal debtor, to extend time of payment, upon the payment of $150 on the debt. No definite period of forbearance is alleged as having be e agreed on.

Appellants failed to prove this agreement as alleged, and the depositions read on the hearing by appellees, conduce to prove that, at the time Ross paid Jacks the $150 on the note, the latter refused to extend the time of payment without the consent of the sureties.

But if the agreement, as alleged, had been proven, it would not have discharged appellants.

An agreement upon a valid consideration by a creditor without the consent of the surety, not to sue the principal debtor for a stated time, discharges the surety. Such an agreement ties up the hands of the creditor, because, if he breaks it, he may be sued for damages.

Caldwell, ex’r, v. McVicar, 9 Ark., 418; Arrington v. Washington, 14 Ark., 218.

But the payment of part of a debt by the principal, at the time or after it becomes due, is not a sufficient consideration to support an agreement for forbearance;..and an agreement for forbearance founded upon such consideration, even though can’ied out by the creditor, will not discharge the surety. In such cases, no benefit is received by the creditor but what he was entitled to under the original contract, and the debtor has parted with nothing but what he Was already bound to pay.

Brant 011 Suretyship, etc., sec. 306; King & Houston v. State Bank, 9 Ark., 185; Stone & McDonald v. State Bank, 8 ib., I45; Wright vs. Yell et al, 13 ib., 506.

In order that an agreement between the creditor and principal debtor, extending the time of payment, shall have the effect of discharging the surety, the extension must be for a definite period. • It makes no difference for how short a period the time is extended, but that period must be fixed, otherwise the hands of the creditor are not tied, and he may proceed at any time. Brant on Suretyship, etc., sec. 298.

II. Jacks admits, in his answer, that after he had brought au ordinary suit at law upon the note, and after-appellants had been served with process, but Ross, the principal debtor, had not, appellant Thompson requested him to attach the steamboat of Ross, which he declined to do, because he was unwilling to make affidavit, give bond, and incur liability for costs of taking care of the boat under attachment. He also admits that the boat was after-wards destroyed, and that Ross became a non-resident, and. perhaps insolvent.

This was not a notice in writing to sue, under the statute. Gantt’s Dig., secs. 5696-8.

If, after the debt was due, the surety, verbally, or in writing, request the creditor to sue the principal, who is then solvent, and the creditor fail to do so, and the principal afterwards becomes insolvent, the surety is theieby discharged. Hempstead et al. v. Watkins, ad’r., 6 Ark., 352.

In Hancock v. Bryant and Hunt, 2 Yerger, 476, where tbe surety gave notice to the creditor to sue the principal, it ■was held to be no excuse for not suing, that the principal lived in an adjoining state, w’hen he had property in Tennessee, where the notice to sue wras given, which might have been subjected to the payment of the debt.

But if the creditor may be required to resort to the extraordinary remedy of attaching the property of the principal, the surety ought certainly to be required, in a bill for discharge to show that there were legal grounds for suing out the attachment.

The note was for money loaned by Jacks & Co. to.Ross, and was an ordinary personal debt.

It is not shown that Jacks & Co. had any lien upon tbe boat for the debt, or that it was a maritime contract, that might have been enforced in the federal court by admiralty proceedings. The Belfast, 7 Wallace, 637.

In order to attach the boat as the property of Ross, in the state court, under the attachment statute (The Hine v. Trevor, 4 Wallace, 571), it would have been necessary for Jacks & Co., or one of them, or some person for them, to make and file an affidavit that Ross was a non-resident of the state, or had been absent therefrom four months, or had departed from the state with intent to defraud his creditors, or had left the county of his residence to avoid service of a summons, or so concealed himself that a summons could not be served upon him, or had removed, or was about to remove, or dispose of his property to defraud his creditors, etc. Gantt’s Big., sec. 388.

The bill fails to allege that any ground of attachment existed, or that Jacks & Co. might legally have attached the boat, at the time they were requested to do so.

III. The judgment was rendered against appellants and Ross, on the law side of the court, twentieth November, 1875, and the boat was not destroyed until first of February, 1876, during which time the bill alleges that Jacks & Co. neglected to sue out execution upon the judgment, and cause the boat to be levied on. No notice to do so is alleged or proved.

Mere delay to take out execution, like neglect to sue, without notice to do so, will not discharge the surety, Brant, sec. 387, etc.

It was not the fault of Jacks ¡fe Co. that appellants did not know that judgment bad been rendered against them and Ross. They were served with process in the suit, and it was their duty to see whether judgment was rendered against them or not. Nor was it the fault of Jacks & Co. that Ross put appellants oft their guard by assuring them that he bad adjust* d the matter with Jacks & Co., so that they would not be troubled further about it. Appellants did not allege, or prove, that Jacks & Co. gave them, or either of them, any such assurance.

Decree affirmed.


source: Caselaw Access Project

author: English, O. J.

license: Public Domain

text:
    Worsham and wife vs. Freeman.
    1. Homestead : When assarted to avoid a mortgage, must be proved.

    The allegations in the answer in a suit to foreclose a mortgage, of facts showing that the mortgaged premises were the homestead of the mortgagor at the lime the mortgage was executed, are affirmative, and the onus probandi is upon the mortgagor.
    2. Decree: Mortgagee not bound by, if not party to.

    A divorce decree in a suit between the mortgagor and his wife, subsequent to the execution of the mortgage, assigning the mortgaged premises to the wife as alimony, does not affect the rights, or remove the lien, of the mortgagee, who was not a party to the suit.
    3. Mortgage : Execution of by wife must be acknowledged, etc.

    If the wife of the mortgagor has such interest in the premises as makes it necessary for her to join him in the execution of the mortgage, her execution must be acknowledged by her, and the acknowledgment authenticated, as prescribed by the statute.
    4. Acknowledgment : Who may not take in another state.

    A justice of the peace, or chairman of a county court of another state, can' not take acknowledgments of mortgages of lands in Arkansas.
    5. Same : How authenticated.

    Such acknowledgments before a county court of another state, must be authenticated by the seal of the court.
    •6. Practice : Selling land for cash, error. Plaintiff must not sell.

      . It is error in foreclosure suits, to direct land to he sold for cash; and bad practice to appoint the plaintiff commissioner to sell.
    APPEAL from Lee Circuit Court in Chancery.
    Hon. J. N. Cypbrt, Circuit Judge.

      Thweatt and Hanly, for appellants.
   English, O. J.

This was a bill to foreclose a mortgage, filed in the circuit court of Lee county, on the fifteenth of August, 1874.

It is probable that the suit was brought in the name of 0. H. Banks, the mortgagee, for the use of W. D. Freeman, to whom the mortgage had been assigned as a collateral, but in the record entry of the final decree, Freeman seems to have been treated as the real plaintiff.

Wm. D. Worsham and wife, M. C. Worsham (appellants), were made defendants.

The bill alleges, in substance, that on the twenty-first of June, 1871, Worsham and wife executed to Banks a mortgage, by which they conveyed to him one house with one acre of land (house occupied at that time by J. E. Leary), with two store-houses, all in the southeast quarter of section fourteen, township two north, range three east, to secure the sum of $600, for cash and supplies advanced during the year 1871; and which mortgage is exhibited, and made part of the bill. That the amount of indebtedness which the mortgage was given to secure, after all just credits, was $545.65, as would appear by exhibit “B,” made part of the complaint, and which had not been paid and was still due.

That on the fifteenth of May, 1874, Banks assigned the mortgage to Freeman, and he still held said claim and mortgage as such assignee, and the same remained due and unpaid.

Prayer for decree to sell the mortgaged property to pay the debt.

By the mortgage, Worsham and wife conveyed to Banks, with covenants of warranty, “the following described real estate: two store-houses and one residence, in the town of Mariana, in the county of Phillips and state of Arkansas; the residence now occupied by Esquire Leary, including one acre of land upon which said houses and residence are situated, in the southeast quarter of section fourteen, in township two north, range three east.’’

After the conveyance of the property follows: “But this conveyance is made for the following uses and purposes, and none other, that is to say — the said W. B. Worsham is indebted to said C. H. Banks in the sum of $600, evidenced as follows, to-wit: Cash on account payable the first day of November, 1871, and being desirous to secure the same, this conveyance is made for that purpose; and if said W. B. Worsham shall, well and truly, pay off and discharge said indebtedness as the same may become due, then this conveyance shall be null and void, otherwise it shall remain in full force and effect.”

The mortgage bears date the twenty-first of June, 1871. Its execution was acknowledged by W. B. Worsham on the next day, at Memphis, Tennessee, be.ore a commissioner of deeds for Arkansas.

Attached to it is also the following certificate of acknowledgment :

“ State of Tennessee, \

Wilson county. J

“M. C. Worsham, wife of W. B. Worsham, having personally appeared before me, and having been examined privily and apart from her said husband, and she having acknowledged the due execution of the within mortgage by her, freely, voluntarily and understandingly, without compulsion or constraint by her said husband, and for the purposes therein expressed, the same is therefore certified. Witness my hand and seal, this seventh day of July, 1871. . E. F. Ross,

“ J. P. and Chairman W. C. Court.”

The acknowledgment of the wife is not otherwise authenticated.

Upon the mortgage is the following indorsement:

“I assign the within to W. I). Freeman as collateral, this May the fifteenth, 1874. C. II. Banks.”

Exhibit “B,” filed with and made part of the bill,follows:

Mr. W. B. Worsham in account with C. H. Banks.

January 1, 1871. To balance due.......................$376 81

January 1, 1871. To interest on above to date..... 79 13

June 27, 1871. To draft on Estes, Frizer & Pin-son..................................... 200 00

June 27, 1871. To advance commissions and interest on same..................... 40 00

April 29, 1871. To cash per wife, $10.00 ; 30th,

tobacco, 40 cents.................. 10 40

Novem. 9, 1871. To shoestrings, 5" cents; 2 yds.

calico, 30 cents; pipes, 10 cts.. 45 January 1, 1872. To 4 shirts — 2, $3.25 ; 2, $1.25... 9 00

January 4, 1872. To 1 plug tobacco................... 40

April 15, 1872. To 2 bottles ink...................... 20

To interest to date on $20.45..... 1 80

$718 22

Credits by rents . 173 57

Balance due...............................................$544 65

Defendant, W. B. Worsham,'answered the bill, in substance, as follows:

Admits the execution of the mortgage filed with complaint, but denies that the consideration is correctly set out in the complaint or exhibit “B.” Charges that upon a just settlement of accounts between plaintiff and him, he would not owe more than the sum of-dollars.

Knew nothing of the assignment of the mortgage except from the indorsement thereon, and allegations of the bill.

Avers that at the time he executed the mortgage, said premises were and constituted his homestead and that of Ms family, and had been set apart to him as such by his assignee in bankruptcy, as would appear by a transcript of the exemptions allowed him by said assignee, on the-day of-,186— (the original being lost), therewith filed, marked exhibit “ H.” [There is no such exhibit in the transcript.]

That said homestead did not exceed 160 acres ; was not any lot in any city, town or village, with the dwelling and appurtenance thereon exceeding the value of $5,000.” That he was a resident of this state, and owned and occupied said homestead; that said obligation was not contracted for the purchase money of said premises, for the erection of. improvements thereon, or labor performed for the owner thereof.

That said homestead has been set apart to his co-defendant, his former wife, as alimony, by the circuit court of Phillips county, and he now has no right, title nor interest in and to the same.

Demurs to the complaint, because it was not brought in the name of the real party in interest.

Mrs. Worsham also answered the bill in substance, as follows:

Denies that she executed the mortgage at the time alleged in the bill. Avers that she signed her name to it without a full understanding of her rights in the premises.

Did not know for what amount of indebtedness the mortgage was given, nor had she sufficient information upon which to form an opinion or belief, nor whether the same had ever been paid or was still due, and what amount, if any, was due,

Knew nothing of the assignment of the mortgage, except from the allegations of the bill, etc.

Denies that the mortgage was, or could have been, legally executed by her co-defendant and herself, jointly or severally, or that the same was a lien or incumbrance upon the premises, because she avers that at the time of the adoption of the constitution of 1868, and long previous thereto, up to and until the twenty-first day of June, 1871 (the date of the mortgage), defendant, with their minor child, continued to live upon, occupy and enjoy the dwelling house upon said tract of land as a homestead, and never abandoned the same as a homestead, and only left the same temporarily on a visit or business ; that they had and claimed no other homestead; that the sum demanded in plaintiffs complaint was not for purchase money of said premises, etc., negativing the constitutional exceptions. That she and her minor child continued to reside upon and occupy the premises as a homestead from the tweDty-first of June, 1871, to the time of the filing of the bill, etc.

That the circuit court of Phillips county, at the — term, 187 — , in which county the premises were then situated, decreed the same to her as alimony and a home for her and her child, in a cause therein pending, in. which she was plaintiff and said W. B. 'Worsham was defendant. A certified copy of the decree is made an exhibit.

Demurs to the bill because the mortgage, which is made part of it, was not properly acknowledged by her, and said pretended acknowledgment was not properly authenticated, and was therefore void, etc.

The decree made an exhibit to Mrs. Worsham’s answer, shows that she was divorced from her husband, and the premises covered by the mortgage decreed to her as alimony for life, remainder to her infant child, the decree describing the property as the homestead of the parties to tbat suit. The date of the decree is not shown.

The parties to this cause submitted it for hearing, the record states, on the bill, answers and exhibits. The decree recites that the bill was to foreclose a mortgage upon certain property, describing it, said mortgage being to secure the payment of $544.65, and then the entry proceeds thus: “It is therefore ordered, adjudged and decreed that, unless said sum of money be paid on or before the first day of July, 1875, the property mentioned in said mortgage shall be, by the said W. I). Freeman, sold to the highest and best bidder, for cash, after giving thirty days’ notice of time and place of sale, and apply the proceeds to the satisfaction of the said sum of $544.65, and all the costs incurred herein.”

The defendants obtained the allowance of an appeal by the clerk of this court.

I. The mortgage, upon its face, was prima fade evidence that "W. D. Worsham was indebted to Banks, at the time it was executed, in the sum of $600, for cash, on account, payable on the first of November following, as' recited in the mortgage. All of the items in exhibit “B,” except the first, and the interest on it, bear date after the execution of the mortgage, some of which are for money and others for merchandise. If, in fact, the $600 was intended to cover existing indebtedness, the bill should have so alleged, and the items of the account should have been proven, if directly denied by the answer of Worsham.

II. The allegations in the answers that the premises covered by the mortgage were the homestead of W. D. Worsham, at the time the mortgage was executed, were affirmative, and the onus probandi was on appellant. They introduced no evidence at the hearing to prove the alleged facts constituting the homestead right; hence, this defense failed.

III. If "W. D. Worsham was the owner of the premises at the time the mortgage was executed, as alleged in his answer, and the homestead character was not in fact impressed upon it, and existing at that time, the mortgage was valid as to him, its execution by him being regular, and the subsequent divorce decree, assigning the property to his wife as alimony, did not affect the right, or remove the lien, of the mortgagee, who was not a party to the divorce suit.

IV. If Mrs. Worsham was owner, or part owner, of the land, or had such interest in it as made it necessary to join her husband in the execution of the mortgage, to secure her husband’s debt, its execution should have been acknowledged by her, and the acknowledgment authenticated, in the mode prescribed by the statute. Little, trustee, vs. Dodge, guardian, etc., 32 Ark., 453, and cases cited.

The acknowledgment of Mrs. Worsham purports to have been by E. E. Ross, a justice of the peace, and chairman of the county court of Wilson county, Tennessee, and is not otherwise authenticated than by his signature.

When a conveyance is acknowledged out of this state, and within the United States, or their territories, it may be done before any court in the United States, or of any state or territory having a seal, or the clerk of any such court, or before the mayor of any city or town, or the chief officer of any city or town having a seal of office, or before any commissioner appointed by the governor of this state (Gantt’s Dig., sec. 841), or before a notary public. Acts of 1874, p. 58.

Ross had no power, as a justice of the peace, or as chairman of a county court of Tennessee, under the above statute, to take tbe acknowledgment. If done before the county court, it should have been authenticated by the seal of the court. Little, trustee, v. Dodge, guardian, 38 Ark.,p 461; Blagg v. Hunter, 15 Ark., 246.

V. The court erred in directing the land to be sold for cash. Welch v. Hicks, 27 Ark., 292; Gantt’s Dig., secs. 1705-8.

VI. It was bad practice to appoint the plaintiff in the suit a commissioner to make the sale. A competent disinterested person should have been appointed. The master is usually appointed. Gantt’s Dig., secs. 998-9.

The decree must be reversed, and the cause remanded for further proceedings.


author: Harríson, J.

text:
    Mock et al. vs. Pleasants.
    1. Practice in Supreme Court : When no appeal against a party. Where no appeal is taken from a decree in favor of one of several parties the case made against him is not before the court.
    2. Administration oe Estates : Jurisdiction of courts in.

    The probate court has exclusive original jurisdiction in matters of estates of deceased persons, and chancery can not take cognizance of such, except upon some one or more of the ordinary grounds of equity jurisdiction.
    3. Same : Settlements in probate courts are judgments. How avoided.

    A settlemont of an administrator in the probate court has the force and effect of a judgment, and can be set aside only by a court of chancery for fraud.
    4. Fraud : What it is, and how alleged.

    Fraud is a term the law applies to certain facts as a conclusion from them, and is not itself a fact, and can not be charged in general terms. The facts and circumstances constituting it must be stated.

      5. "Widow-administratrix: Takes rents as widow until dower assigned.

    A widow-administratrix is under no obligation to account for rents and profits of her intestate’s plantation, until the assignment of her dower. They belong to her as widow, and not as administratrix. If creditors want them they should have her dower assigned to 'her.
    6. AdministratIon : Illegal allowances not fraudulently obtained, not impeachable in equity.

    Mere illegal allowances to an administrator, not obtained by misrepresentation or deception upon the court, are no grounds for impeaching or setting aside a settlement, in- equity. The proper remedy is by appeal to the circuit court.
    7. Administrator: Purchase by, a fraud.

    It is a fraud for an administtator to be interested in a purchase at his own sale, and equity will set aside the sale.
    APPEAL from Arkansas Circuit Court in Chancery.
    Hon. J. A. Williams, Judge.

      Gibson and Pinnell, for appellants.

      Johnson, Garitón and Basham, for appellees.
   Harríson, J.

The complaint in this case was filed by Moses Mock and other creditors of the estate of Joseph C. Pleasants, deceased, against Minerva A. Pleasants, administratrix of said decedent, Helen M. McDaniel, Annie W. Stewart, and George W. Stewart, her husband, Kate J. Pleasants, Andrew J. Miears and Green W. Boatright, and in substance alleged:

That said Joseph C. Pleasants died intestate, on or about the eighteenth day of December, 1862, seized of the following lands in the county of Arkansas: The southwest

fractional quarter of section thirty, 145.45 acres; the northeast quarter of the northeast quarter of same section, 40 acres, in township six south, of range five west; the north half of section twenty-five, 320 acres, and the southeast fractional quarter of said section twenty-five, 74.59 acres, in township six south, of range six west, in all 580.40 acres, constituting and being the plantation known .as the Pleasants Place, and on which he resided at the time of his death, and also possessed of considerable personal property, leaving a widow, the said Minerva A., and the said Helen M., Annie W. and Hate J., his children and heirs at law.

That letters of administration upon his estate were granted by the probate court of said county to the said Minerva A., on the fifteenth day of June, 1866, before which time there had been no administration; and at the July term, 1869, of said court, she filed her first account current, in which she charged herself with the amount of the sales bill of the personal property, $704.50, as the whole amount of the estate, and credited herself with divers sums, to the amount of $145.37, as expended by her in the course of administration, which account was, at the January term, 1869, approved and confirmed; and that the court allowed her $70.45, ten per cent, on the amount of the sale’s bill for her risk and trouble.

That, at the April term, 1869, the court, upon the application of said administratrix, and a showing by her that the personal property was not sufficient to pay the debts of the estate, made an order for the sale of the lands, directing the same to be sold on the third Saturday in May thereafter, and for one-third of the purchase money cash, and the remainder on a credit of twelve months, the purchaser to give his note for the deferred payment, and a lien therefor on the lands. But that, in her petition, the said north half, and said southeast fractional quarter,- of section twenty-five, were said to be in range five, instead of range six; and in the appraisement afterwards made, in view of the sale, the southeast fractional quarter of section twenty-five was omitted.

That the other lands were appraised at ten dollars an acre, and, in pursuance of the order, those appraised were offered for sale on the day appointed, but that, not bringing two-thirds of the appraised value, were not sold, and the fact was reported to the court at the next, or July term, 1869; that no order, however, was made by the court that they should be again offered for sale at the end of twelve mouths thereafter, and to the highest bidder, and nothing further was done upon the application, or in respect to the sale, until, at the April term, 1872, when the administratrix presented a petition reciting the former order and proceedings under it, and praying an order to sell them, subject to her dower, to the highest bidder, or for what they might bring; which order the court made, directing that they be offered on the eighth day of July thereafter, for one-half cash and the remainder on a credit ©f twelve months, the purchaser, as required in the former order, giving a note and a lien on the lands for the deferred payment; but that the north half and the southeast fractional quarter of said section twenty-five were described in the last mentioned order as the north half of the southeast fractional quarter thereof.

That the administratrix accordingly, on the eighth day of July, 1872, again offered the lands, except the southeast fractional quarter of section twenty-five, at public auction, and they were bid off and purchased by the said Helen M. McDaniel, Ann ~W. Stewart and Kate J. Pleasants, at the grossly inadequate and nominal price of twenty-five cents an acre, and, on the same day, she executed a deed of conveyance of them to the purchasers; and that at the July term, 1872, she made a report of the sale to the court, and the same was approved and confirmed.

That the sale was a mere sham, and a fraud upon the creditors of the estate, the result of a combination and collusion between the administratrix and the purchasers — that the lands might, as was the case, be bought in by the latter, who were her daughters, at such inadequate and nominal price — they were for her and their common use and benefit; that no part of the purchase money was paid or intended to be, and no note or lien was given, and that for that reason the administratrix did not file with her report of the sale an affidavit, that she was not the purchaser, and that they were not purchased for her use, and she was not in any manner interested in the purchase, as the statute requires.

That at the June term, 1873, of the circuit court of said county, then having jurisdiction in matters of administration, she filed a second account, in which she charged herself with the sum of $488.68 — the balance in her hands according to the previous settlement, and claimed credit for divers sums as expended in the settlement of the estate— amounting to $548.10 — the expenditures exceeding the assets $59.42; and this second account was, at the January term, 1875, of the probate court, approved and confirmed.

That said Anna W. Stewart, and her husband, George ~W. Stewart, on the eighteenth day of April, 1873, sold and conveyed her undivided interest in all the lands, or the whole of the plantation, to the defendants, Andrew J. Miears and Green W. Boatright; that afterwards a partition was made between the said Miears and Boatright and the said Helen M. McDaniel and Kate J. Pleasants, and the following parcels were allotted and set apart to Miears and Boatright, viz.: One hundred and ten acres of said section twenty-five, bounded as follows: Beginning at the southwest corner of the northwest quarter of the section, and running east one hundred and five and two-thirds rods; thence north to the section line; thence west with the section line one hundred and five and two-thirds rods ; thence south to the place of beginning; the southwest fractional quarter of section thirty; and thirteen and one-third acres of the northeast quarter of the northeast quarter of section thirty, hounded as follows: Beginning at the northeast corner of the section, and running west twenty-six and two-thirds rods; thence south eighty rods; thence east twenty-six and two-thirds rods; and thence north eighty rods to the place of beginning; that Miears, on the eighteenth da}' of September, 1873, sold and conveyed his interest to Boatright, and that Boatright was in possession of said parcels.

That the plaintiffs were severally creditors of the estate, and whose claims had been duly exhibited against it, and allowed by the administratrix, the aggregate of which was, exclusive of interest, $9,116.18, no part of which had been paid, and that they were the only creditors of the estate.

That the property of the estate was sufficient, if it had been honestly and faithfully administered, to have paid al! the debts, the rents and profits of the plantation having, since the commencement of the administration up to the time of the partition, clear of all expenses on account of necessary and proper repairs, amounted to at least $3,500, and since then had been $1,200 per annum; that the administratrix had resided with her family on the plantation from the death of her husband until within a few months of the commencement of this suit, and had, except of the parcels sold to Miears and Boatright, since their purchase, appropriated the whole of the rents and profits to her own use.

That she had fraudulently omitted to charge herself, in her first account, with property of the estate which had come to her hands, nor had she charged herself with the same in her second, but of what it consisted was not stated, and had fraudulently claimed and received credit for the following sums, to which she was not entitled: Twenty-five dollars paid R. A. Whitmore, esq , “ attorney’s fees,” no authority having been given her bjr the court to employ an attorney; $16fees in replevin case, and $12 clerk’s fees, no receipt or voucher having been filed for either of the last two items; and illegally and fraudulently claimed $70.45 as commissions, which sum was allowed by the court, when she had, as shown by the account, only paid out for the estate, or administered the sum of $145.87.

That in her second account she fraudulently omitted to charge herself with the price for which the lands sold, and fraudulently claimed and received the following credits, to which she was not entitled : One hundred and seventy-five dollars paid W. P. McDaniel, the late husband of the said Helen M. McDaniel, and a member of her family, for services rendered and money advanced, for the estate; $250 paid him for work on gin-stand, and gin-house, and other repairs on the place; $25 paid him expenses in going to Pine Bluff on business of the estate; $65 paid said George W. Stewart for work on cotton press; and $10 her own expenses, attending court in replevin case, which last item she had before received credit for in her previous settlement; and that in neither of the accounts did she charge herself with any part of the rents or profits of the plantation.

That the sureties in her bond were R. M. Anderson and W. D. Dunn ; that Anderson was dead and his estate was insolvent, and that Dunn had been adjudged a bankrupt, and discharged from his debts; that she was herself insolvent, and that the court had, at the April term, 1871, required her to file a new bond, which had not been done.

That Miears and Boatright, when they purchased, resided in the county and near the residence of the administratrix, and were familiar with the matters of, and her management of, the estate, and had actual knowledge of the fraud in the sale of the lands.

The prayer of the complaint was, that the settlement off the administratrix, and also the sale of the lands, be set aside; that she be removed; that a commissioner be appointed by the court to take charge, and administer the estate under its direction: that she be required to account to him for the rents and profits of the plantation received by her, and for the other property she had not accounted for; that Miears and Boatright account for the rents and profits received by them, and that if the assets should not be sufficient to pay all the debts, that the same be paid pro rata, irrespective of the classification of the claims.

Boatright, at the September term, 1876, filed an answer, and also a demurrer to the complaint. The demurrer, being presented for consideration, was sustained, and the complaint, as to him, dismissed.

The other defendants, except Miears, also filed a demurrer to the complaint, upon the grounds that the court had no jurisdiction of the subject of the action, and the complaint did not state facts sufficient to constitute a cause of action ; and the cause was, as to them, continued. Miears made no defense, but no decree was taken against him. At the next term, the demurrer of the other defendants was heard, and it was sustained by the court, and a decree thereupon rendered in their favor, dismissing the complaint.

Prom this last decree the plaintiff's appealed.

No appeal having been taken from the decree in favor of Boatright, the allegations as to him, or his claim to part of the lands, are not before us for consideration.

The probate court has exclusive original jurisdiction in matters relative to the estates of deceased persons, and chancery can not take cognizance of such, except upon some one or more of the ordinary grounds of equity jurisdiction. Const., Art. VII, see. 84. West and wife et al. v. Waddill et al. MS. Opinion. A settlement made by an administratrix has the force and effect of a judgment, and can be set aside only by a court of chancery on the ground of fraud. Gantt’s Dig., sec. 128.

The allegation that the administratrix fraudulently omitted to charge herself, in her first account, with all the property of the estate, without stating what particular property was omitted, was not a sufficient averment of fraud. Eraud can not be charged in general terms, and without stating the facts an.d circumstances constituting it. Fraud is a term the law applies to certain facts, as a conclusion from them, and it is not in itself a fact. Sto. Eq. Plead., 251; Bliss on Plead., 211; Conway v. Ellison, 14 Ark., 360; Ringgold v. Stone et al., 20 Ark., 526.

A widow has the right to remain in and “ possess the mansion or chief dwelling house of her late husband, together with the farm thereto attached, free of all rent, until her dower shall be laid off' and assigned to her.” Gantt’s Digest, sec. 2227.

It does not appear that the dower of Mrs. Pleasants was ever assigned to her; it seems indeed that it had not been. She was under no obligations, therefore, to account for the rents or profits of the plantation. They belonged to her as widow, and not as administratrix. If the plaintiffs desired to have any part of them applied toward the payment of the debts, they should have adopted the proper means to have had her dower assigned to her.

The complaint contains no averment that the allowances made to the administratrix upon her settlement were obtained by any misrepresentation or deception practiced upon the court. The facts, so far as anything to the contrary appears, were all before the court, and understood by it, and its decisions fairly made.

Mere illegal allowances to an administrator are no grounds for impeaching or setting aside a settlement. The proper remedy for such is by an appeal to the circuit court. Nor can it be said that the omission to charge herself in the second account with the sum the lands sold for was-fraudulent-. The court judicially knew that the lands had been sold, and the price they brought, and there is no room to presume a fraudulent purpose in omitting to charge herself with the price. As there was at the last settlement a balance shown in her hands larger than the cash payment, we may reasonably suppose it was her intention to charge it in her next account, and after the remainder of the money should be collected.

The charge of fraud in the sale of the lands was specifically made. The administratrix and her daughter, it was-alleged, conspired together to have the lands sold and bought in by the latter at a nominal price, for her and their common benefit, and that the sale was the result of their conspiracy. Against such a fraud equity will always relieve. The fact that the administratrix was interested in the purchase was of itself alone such a fraud, as for which the sale should be set aside. Wright Ex. v. Walker et al., 30 Ark., 44; West and wife et al. v. Waddill et al.,. MS. Opinion.

The demurrer of the appellees should have been overruled, and they should have been required to answer the complaint.

The decree is reversed, and the cause remanded for further proceedings.


author: Eakin, J.

text:
    Chrisman vs. Jones et al.
    1. Sureties: Exoneration and contribution between parties.

    Rogers sued Glasscock before a justice of the peace, and attached his property. Chrisman and "others became sureties for Glasscock on a bond to release the property. Rogers recovered judgment in the suit, and Glasscock appealed to the circuit court, giving an appeal bond with the appellees as his sureties. Judgment was finally rendered against him in the circuit court, and his sureties in the appeal bond, for the debt, damages and cost. Without issuing execution on the judgment, Rogers then sued Chrisman on the release bond, and recovered judgment against him in the circuit court. He appealed to the supreme court, and the judgment was affirmed, with damages and cost. He paid this judgment, and then filed his bill against the appellees for contribution, not alleging insolvency of the principal, Glasscock. Held: 1, That Rogers had the right to sue the sureties on the release bond without issuing executi n on the judgment against Glasscock and his sureties on the appeal bond.
    2. The attachment release bond was for the benefit o the sureties (if any) on the original debt as well as for the creditor, and if such sureties had been compelled to pay the debt, the sureties on the release bond would be compelled in equity to exonerate them; and likewise the sureties in the appeal bond, as between them and appellant, were primarily liable; and he was entitled to complete exoneration from them, and to contribution from his co-sureties in the release bond, to the extent of the judgment rendered in the circuit court, in the suit originally begun by attachment.
    Where successive securities for a debt have been given injudicial proceedings, at the request of the debtor alone, to enable him to prolong the litigation, whilst all will be liable to the creditor, they will, as between themselves, be liable to exoneration in the inverse order of their undertakings. Those who contract last become sureties not only for the benefit of the creditor, but in exoneration of those who precede, and all will be liable to exonerate the original sureties for the debt, if there be any.
    3. It was not necessary, as against the sureties in the appeal bond, to make Glasscock a party or to allege his insolvency. But as against the co-securities in the release bond he was a necessary party.
    2. Parties, want op : Demurrer.

    A general demurrer does not reach the defect of want of proper parties.
    APPEAL from White Circuit Court.
    Hon. J. N. Oypert, Judge.

      Goody for appellant.

      Turner, contra.

   Eakin, J.

This case grew out of the matters involved in the case of Rogers, ad., v. Glasscock, 25 Ark., 24, and Chrisman et al., v. Rogers, adm’r, 30 Ark., 351.

The bill is by Francis M. Ohrisman against Lucius M. Jones, Cader Sowell and Robert L. Glasscock, stating: That one Thomas J. Rogers, adm’r, etc., in 1865, had sued one Thomas J. Glasscock, by attachment, before a justice of the peace, for $118.48, with interest at 10 per cent, from the ninth of November, 1861. Complainant, with William Hicks and Robert L. Glasscock, became sureties on the bond of the defendant, in that suit, to release the property attached, and dissolve the attachment.

That judgment was rendered against said defendant, November 20, 1865, for said debt, $47.27, damages and costs. On the twenty-fourth, said defendant appealed to the circuit court, and the defendants in this case, Cader Sowell and L. M. Jones, became his sureties in the appeal bond. After litigation, during which there had been an appeal to this court, and a remand of the cause for error, judgment was rendered by the circuit court, on the third of May, 1870, against said defendant and his said sureties on the appeal bond, Sowell and Jones, for said debt, and $99.25 damages, and costs.

That Rogers, the plaintiff in said suit, issued, no execution or process upon said judgment, against said Sowell and Jones; but, on the sixteenth of June, 1870, sued complainant before a justice of the peace,- upon the old bond given to discharge the attachment. The justice sustained a demurrer to the suit, upon which said Rogers appealed to the circuit court, where he recovered judgment against this complainant, in February, 1878, lor $330 and costs. This was affirmed on appeal to this court. Whereupon, complainant was compelled to, and did, pay to said Rogers the whole amount recovered, and all costs, amounting in all to the sum of $451.25.

The bill prays contribution from said Sowell and Jones, the sureties on the appeal bond, as well as from Robert L. Glasscock, the co-surety of complainant on the bond dissolving the attachment, with a prayer for general relief.

The court sustained a general demurrer to the bill, which was thereupon dismissed, complainant declining to amend. An appeal was taken.

It is the law of this case (see Chrisman et al. v. Rogers, supra) that the complainant was not discharged from his liability on the attachment release bond, by the execution of the appeal bond. The creditor had the option to pursue his rights upon either security. This bill raises the question as to the status of the different sets of sureties amongst themselves. Whether they stand in equal plight, or are, any of them, upon being made to sustain the burden, entitled, as against the others, to exoneration or contribution.

The bond to release the attachment was executed in 1865, by which the complainant and his co-securities became bound for the defendant, in that suit, that he would “answer plaintiffs demand, and pay and satisfy such judgment” as might be rendered against him in that suit.

The sureties became bound in the expectation that, upon the rendition of the judgment, execution might issue, at once, against their principal; or, if that were not done, the sureties would have the right to pay the judgment, be subrogated, and proceed at once to enforce it for their indemnification. They may be considered, of course, to have contemplated that the defendant might appeal, but such an appeal would not have interfered with their right to have the execution enforced for their protection, unless Un appeal bond should be executed.

Such an appeal bond opei’ates, in derogation of this right of a surety, to a speedy settlement of the matter. They are held, helpless, to await the result of proceedings over which they have no control, and. which, as in this ease, may be prolonged for years. Meanwhile, the defendant may become insolvent, and, if the original sureties should then be held primarily liable, and be themselves solvent, it would result that the second set of sureties would have been thus enabled to trifle with their rights in a wanton manner, without any danger to themselves. Besides, the costs of the suit would be materially increased, and interest accumulated against the original sureties, by proceedings which they could by no interference have controlled, and which could not have been taken, to their detriment, without the aid and intervention of the sureties on the appeal bond. As these proceedings are equally in invitum as to the plaintiff, it is not just that he should be deprived of any of his securities, and, in this matter, it has been held already that he may elect to sue the first set. But it is not equitable, as between the first and second set of sureties, that the former should be held primarily liable: Whilst the creditor is left free, equity will adjust the rights, declare the liabilities and appoi’tion the burdens of the sureties amongst themselves.

The sureties on the dissolving bond, by their obligation, placed themselves in the position of original sureties for the debt, to be ascertained by the judgment to be rendered in that suit. -Their position was analogous to that of special bail put in by a defendant at common law. If there had been any original sureties on the face of the paper, the bond would have been for the benefit of the original sureties, as well as that of the creditor, and in the equitable adjustment, those sureties on the bond would have been liable to exonerate the original sureties, if the latter had been forced to pay the debt; and as to subsequent sureties given to prolong the legal proceedings, it is but fair, and an extension of the same equity, that the sureties in attachment w’ould have the same rights, as the original sureties would have had against them.

The principle in equity seems to be well established, that when successive securities for debt have been given in judicial proceedings upon the request of the debtor alone, to enable him to prolong the litigation, whilst all will be liable directly to the creditor, they will be, as amongst themselves, liable to exoneration in the inverse order of their undertakings. That is to say, those who contract last become sureties, not only for the benefit of the creditor, but in exoneration of those who precede, and all will be liable to exonerate the original sureties for the debt, if any there be. See the cases collected in the American Notes to Dering v. Earl of Winchelsea, 1 Leading Cases in Equity. And in the case of Brandinburg v. Flynn, 12 B. Mon. (Ky.), 397, the court said, ‘'they knew of no principle on which a subsequent surety, who came to .the aid ©f a debtor solely at his instance, and without the request or concurrence of the other sureties, could make them liable for immunity;” and that the cases had, on the contrary, established “ that the prior sureties were under these circumstances entitled to be substituted to the remedies of the creditor against the subsequent surety.” The cases upon this point are numerous, and may be found collected and arranged in Mr. Brand's work on Suretyship and Guaranty, p. 320, vol. 1, sec. 227; also ib., sec. 394.

The result is that the facts of the bill show a right on the part of the complainant to complete exoneration against- the sureties on the appeal bond, and to contribution against his co-surety on tbe dissolving bond, to the extent of the judgment for the debt and costs, rendered in the circuit court, in the suit originally begun by attachment-.

The bill does not allege the insolvency of the principal, Thomas J. Glasscock, nor make him a party. As against the sureties in the appeal bond, that was not necessary. They were not co-sureties with complainant. As to him, being previously liable, they stood in the attitude of principals, and their liability to him in equity became direct. The complainant, on payment of the judgment, -had the right to be subrogated to it against the defendant and his sureties on the appeal bond, notwithstanding the right of the creditor to proceed against either. The complainant seeks contribution only, but the greater equity includes the lesser.

As to Robert Glasscock, the co-surety of complainant in the dissolving bond, no proper proceedings could be had against him in equity without making the principal a party or showing cause why such a thing would be fruitless. In the leading case on contribution (Dering v. Earl of Winchelsea, 1 Cox, 318), which was that of a bill by surety against his co-sureties, the objection was made that the principal had not been made a party. Lord Eyre, C. B., said, “ as a question of form it ought to have been brought on by demurrer ; but in substance, the insolvency of Mr. Bering may be collected from-the whole proceedings, which strongly imply it.” I think no reasonable man could take this bill as true, and explain the conduct of the parties as the natural result of any other state of facts than the inability of the principal to pay; otherwise there would be no trouble. Nevertheless the court does not mean to encourage the practice of suing co-sureties for contribution without the principal or without explanation. They are necessary parties, without whom the rights oí the co-sureties amongst themselves can not be fully adjusted. It is a rule of practice in chancery, founded on justice and convenience, to avoid multiplicity of suits. The co-securities contribute to each other, and the principal is liable to all. If he is in the same suit, the rights can be all adjusted. But the equity of contribution is not contingent upou the insolvency of the principal. It rises upon payment, and the principal is only a necessary party to its enforcement (unless he be insolvent), because he should be present to answer primarily, and take the ultimate burden without the necessity of other suits.

There are cases in Kentucky, and a few in other states, which seem to favor the idea that the liability to contribution is contingent on failure to collect of the principal, or upon his insolvency. We have examined the grounds upon which these decisions are based, as cited by counsel, and can not yield assent to the broad conclusions drawn. Those in Kentucky, which positively assert this contingent liability, seem to rest upon statutes, and to be peculiar to that state. The cases from other states are meager aud incoo elusive.

The demurrer should have been for want of parties. A general demurrer does not reach this defect (Gantt’s Dig., see. 4565). The bill does -show equities against defendant before the court, and want of proper parties. Even if the sureties on the appeal bond were the only defendants, the principal would still be a proper party, if solvent, although perhaps not strictly necessary. The chancellor should have overruled the demurrer, and taken notice of the want of parties. He might have ordered the complainant to make the principal a party, or show by amendment to his bill that it would he useless.

Eor error in sustaining the demurrer of defendants, let the decree be reversed, and the cause remanded for further proceedings consistent with this opinion.


text:
    Hubbard, as Adm’r, etc., vs. Pace et al.
    1. Surety: Discharged by creditor’s willful loss of collaterals.

    Lavender, as administrator, let to Pace a farm for 1870, and took his note for the rent, with Taylor as surety, stipulating in the note that he would “retain a lien upon the crop for the payment of the rent.” He and Pace were then, and many years afterward, partners in a mercant le firm, and they received of the crop more than sufficient to pay the note, and sold it on the firm account. At the date of the note, Taylor was indebted to Pace in a large amount, which, several years afterward, he paid, without notice that the rent note was unpaid. In August, 1875, Lavender sued Taylor on the note. Taylor pleaded the foregoing facts as an equitable discharge, and the cause was transferred to the equity-docket : Held:

    1. That the retention of the lien in the note was not additional to the statutory landlord’s lien, but a mere assurance to Taylor that the legal lien should he enforced for his protection, or at least was not waived, nor would he abandoned.
    2. The mere passive conduct of Lavender, in allowing the cotton to be shipped, when by ordinary diligence he could have prevented it, was, in the face of the written obligation, rlto retain a lien on the crop for the rent,” a fraud upon the surety.
    Ordinarily, a creditor’s mere neglect or forbearance to sue, or his failure to enforce collaterals, will not discharge the surety; but he must not release them, or do any act by which the surety’s right of subrogation, upon payment of the debt, may be fruitless to him.
    3. The shipment and sale of the cotton by the firm was Lavender’s act and more than passive acquiescence or neglect.
    4. That Lavender’s acting as administrator did not affect the equities of his surety. .
    APPEAL from Lincoln Circuit Court in Chancery.
    Hon. J. A. 'Williams, Judge.

      Carroll ¿> Jones, and J. M. Moore, for appellants.

      Carlton McCain, contra.

   Eakin, J.

Lavender, as administrator, let to defendant, Pace, a plantation for the year 1870. Taylor became surety for the rent, and this instrument was executed:

“ $3,500 — On the first day of January next,we, or either of us, promise to pay W. 13. Lavender, administrator of the estate of Alfred B. C. DuBose, three thousand five hundred dollars, for rent of fifteenth section of said estate. We agree to put a lawful fence around the place. W. D. L., administrator, agrees to repair gin-house and put the mill in running order, and retain a lien on the crop, to secure the payment of the above sum.

“Jambs S. Pace.

“ C. M. Taylor.

“W. D. Lavender,

“Administrator Estate.

“ South Bend, January 4, 1870.”

Upon this contract, Lavender brought this action at law in August, 1875. Taylor set up his suretyship as an equitable defense, together with charges of such conduct on the part of Lavender as should release the surety. The cause was transferred to the equity docket, and, upon hearing, the chancellor decreed that Taylor was released, and should have costs. From this decree, Lavender, as administrator, appealed.

It appears from the pleadings and proof, that Lavender was a partner with Pace, the tenant, in a mercantile house upon or near the place, principally for the purpose of furnishing supplies to the plantation and the hands engaged upon it. 'Whether he was a partner with Pace in the planting operations, or not, is a question upon which the evidence is conflicting ; but it appears, to this court, to preponderate in favor of such a supposition. It is shown, however, beyond question, that all, or the greater part of the crop made upon the place in 1870, much more than was necessary to satisfy the rent contract, went into the hands of said mercantile firm, and was by it shipped and sold in its name. At the time Taylor signed the contract, he was indebted to Pace in a large amount, and remained so for several years, when he paid. If, during the time of his said indebtedness, he had been called upon to pay the rent note, he might have indemnified himself out of his debt to Pace. Lavender continued to rent the iflace to Pace for several consecutive years afterwards, and. Taylor had no notice that the rent contract of 1870, upon which he was surety, remained unpaid, until shortly before suit. The chancellor found, as a fact, that Lavender and Pace were not partners in the planting operations of 1870, but based his decree upon other equitable considerations.

Under the ruling of this court, in Roberts v. Jacks, 31 Ark., 597, appellant contends that the written instrument gave Lavender no specific lien upon the crops to be raised. This may be conceded, as it does not appear from the instrument itself that the parties intended to create any new lien upon the crop, different fi’om that given the landlord by law, or more specific. The clause concerning the lien could have been inserted for no other rational purpose than to give Taylor, who was merely a surety, an assurance that the legal lien would be made effective for his protection, or, at least, that it was not then waived, nor would it be abandoned. This Taylor contracted for, and had the right to rely upon, independent of the general principles regulating the conduct of creditors towards sureties. The merely passive conduct of Lavender, in allowing the crops to be shipped, when he might have prevented it by reasonable care and diligence, to say nothing of his direct assent, would, in the face of his written obligation “to retain a lien on the crop to secure the payment of the above sum,” be a fraud upon the surety.

Ordinarily, mere neglect or forbearance to sue on the part of the creditor, or failure to resort to collateral securities, will not discharge the surety. The creditor has his option. But he must not trifle with the collaterals, or release them, or do any act by which the surety’s right of subrogation may be fruitless to him, when he is compelled, or voluntarily pays the debt. Collaterals are held not for the protection of the creditor alone. The instinct of property, and a sense of justice, should prevent him from destroying them, if he does not choose, or does not find it necessary, to use them. Others have rights, which the creditor will not be allowed to make the subject of his generosity, or wanton misconduct to their injury.

The cotton and other crops came within the power of Lavender. They were put in the bands of the mercantile firm of which he was a partner. The partners were all agents of each other. It was his duty to require the partnership to satisfy the rent note with the proceeds, or to take it up .before shipping, and if his co-partuers had objected, he had power to prevent the removal. The shipment and sale was his act, and more than passive acquiescence or neglect.

None of the questions made are affected by the consideration that Lavender was administrator. If he failed in his duties, or transcended his powers, or violated his trust as such, it is a matter for the heirs, distributees or creditors of the estate of DuBose. In his dealings with third parties, and as between him aud them, in cases where those interested in the estate are not parties, he must 'be bound by the same rules of equity, which would apply to him as an individual; and can not make the distinction between his acts as administrator, and those done in his own right, the means of perpetrating an injustice against his surety.

Indeed, the distinction between the mere negligence, and positive acts of the creditor, whereby collateral securities are lost, has, by the modern decisions, been almost, if not wholly, obliterated. It differs from mere failure to sue the principal. In the case of collaterals, there are distinct things to be preserved, having a property value, which are in the hands of the creditor in trust, as well for himself as for the sureties, and it is fair that he should be held to take reasonable care of them. See the subject discussed, and the cases collected in Brandt on Suretyship and Guaranty, secs- 385, et seq.

In every view of the case, the decree of the chancellor, below, seems just, and based on sound principle.

Let it be affirmed.


author: English, C. J.

text:
    Williams et al. vs. McIlroy.
    1. Deed: Mistake in, how corrected. Intervening purchaser.

    A mistake in a deed in the description of land may be corrected and the title perfected by a subsequent deed; and a purchaser of the land at a sale made after the last deed, under an execution against the grantor levied on it between the deeds, gets no title if he have notice at the time, of the mistake and correction.
    2. iEsrocEHT Purchaser : One under his own execution is not.

    A purchaser under his own execution is not an innocent purchaser for value, without notice.
    APPEAL from Washington Circuit Court.
    Hon. J. M. Pittman, Judge.

      J. _D. Walker, for appellant.
   English, C. J.

William Mcllroy brought ejectment, in the circuit court of Washington county, against John S. Williams, David Williams and James Williams, for possession of the following lands:

The southwest quarter of the southeast quarter of section twenty-eight; the south half of the southwest quarter of section twenty-seven; part of the southeast quarter of the southwest quarter of section twenty-eight, described by metes and bounds; and—

Part of the northeast quarter of the northeast quarter of section thirty-three, described by metes and bounds; all in township sixteen north, range twenty-nine west.

The plaintiff alleged, in his complaint, that he was the owner of the lands, and entitled to possession of them, and that defendant held possession thereof without right. As evidence of title, he alleged that, on the twenty-third of November, 1870, Balis Shumate and America J. Burris, being the owners in fee of said lands, by deed, duly acknowledged and recorded, conveyed them to Robert R. Williams, exhibiting a certified copy of the deed.

He then sets out, and exhibits, a sheriff’s deed to himself, by which it appears that on the nineteenth of September, 1872, he recovered a judgment in the circuit court of Washington county against Robert R. Williams and wife, Rachael, for $1,370.37, etc.; that, on the eighth of May, 1873, he sued out an execution upon the judgment, which, on the same day, was levied by the sheriff on the lands described in the complaint, and other lands, and returned, without sale, unsatisfied, on the nineteenth of June, 1873; that, on the same day, he sued out a vend, ex., by virtue of which the lands were sold ou the twelfth of July, 1873, and purchased by the plaintiff in the judgment, who is plaintiff in this suit, for $200, and, after the expiration of the time for redemption, the sheriff executed to him a deed for the lands.

The defendants answered, in substance, as follows:

1. They deny that plaintiff is the owner, and entitled to possession of the lands described in the complaint.

2. Deny that they hold possession of the lands without right.

8. Aver that defendants John S. Williams and James Williams are the owners of the lands, and entitled to possession thereof, by virtue of two deeds of conveyance executed to them by Robert R. Williams, on the second of May, 1871, and the twenty-first of May, 1873, recorder’s copies of which, with the certificates of acknowledgment and registration, are made exhibits.

4. That defendants, John S. Williams and James Williams, before and at the time of the commencement of the suit, and at the time of the alleged purchase by plaintiff, at the sheriff's sale, were in the peaceable possession of the lands, and entitled to the possession thereof, possession having been delivered to them before then by their father, Robert R. Williams, who, before he executed to them the conveyance of second of May, 1871, was the owner of said lands in fee simple.

That said Robert R. Williams, for a good and valuable -consideration, executed and delivered to them said deed of second of May, 1871, by which he gave, granted and conveyed to them said lands, which, on the day of its execution, was duly acknowledged by him, and afterwards, on the ninth of September, 1872, filed in the office of the recorder of Washington county, for registration, and duly recorded.

That, in said deed, said Robert R. Williams, in describing said south half of the southwest quarter of section twehtyseven,' in township sixteen north, of range twenty-nine toest, unintentionally omitted the word south before the word west, whereby in said deed the said tract was described as il the south half of the west quarter of section twenty-seven, etc.-” said parties to the deed intending to insert the words, south half of the southioest quarter, etc.

That, on the twenty-first day of May, 1873, said parties to said deed having discovered the omission aforesaid, said Robert R. Williams, for the consideration alone upon which said deed of second of May, 1871, was executed, made and delivered to defendants, John S. and James Williams, a quit-claim deed to said south half of the southwest quarter, etc., reciting the omission aforesaid, by which he remised, released and forever quit-claimed to them said tract of land, which deed was duly acknowledged by him on the day it was executed, and on the same day filed in the recorder’s office, etc., and recorded, etc.; of all which facts-plaintiff had notice before and at the time of his alleged purchase of the lands, at the sheriff’s sale, on the twelfth of July, 1873. »

The plaintiff demurred to the answer, and the court sustained the demurrer to so much of the answer as set up title in defendants (John S. and James Williams) to the south half of the southwest quarter of section twenty-seven, township sixteen north, range twenty-nine west, and overruled the demurrer as to the remainder of the answer.

The cause was submitted to the court, sitting as a jury, and the court found in favor of plaintiff for said south half of the southwest quarter, etc., and also that the permanent improvements made thereon by defendants, after plaintiff purchased the land, were worth more than the rents and profits thereof; and the court further found that the residue of the lands described in the complaint belonged to the defendants, and that they were entitled to possession thereof.

Defendants moved for a new trial, which the court refused and they took a bill of exceptions.

Judgment was rendered in accordance with the finding-of the court, and defendants appealed to this court.

It appears from the bill of except^ms that, on the trial, plaintiff’ read, in evidence, the judgment recovered by him against Robert R. Williams and wife, Rachael, in the circuit court of Washington county, on the nineteenth of September, 1872, and the sheriff’s deed for the lands made an exhibit to the complaint, and it was shown that defendants were m possession of the premises at and before the commencement of the suit.

Defendants read, in evidence, the deed executed by Robert R. Williams to John S. and James Williams, on the second of May, 1871, and also the deed executed by him to them on the twenty-first of May, 1878, which were set out in the answer and made exhibits.

They also proved, by C. W. Walker, Esq., that, as their agent, he attended the sheriff’s sale at which plaintiff bid off the land in controversy, and gave public notice that they were the property of defendants, and not of Robert R. Williams, and, as their agent, forbade the sale.

They also proved that, at the time of the commencement of the suit, they were in possession of the lands, by virtue of the deed executed to them by their father, Robert R. Williams, second of May, 1871, having received and held full possession under that deed.

Thereupon, they introduced Robert R. Williams as a witness, and offered to prove by him, first, that he, for a good and valuable consideration, executed the deed of second May, 1871, and that the south half of the southwest quarter of section twenty-seven, etc., was intended to be inserted in and conveyed, by said deed, by him to defendants, John S. and James Williams. Second, That, in attempting to describe in said deed said tract, it was, by mistake, described as the south half of the west quarter of said section, instead of the south half of the southwest quarter, etc. That ^ge word south was intended by him to have been inserted beiore the word toest, etc. Third, That he, at and before the time of executing said deed, owned and claimed no land whatever in said section twenty-seven, etc., other than the south half of the southwest quarter of said section.

All of which evidence the court excluded, on the ground that parol evidence was not competent or admissible to explain the ambiguity in the deed, if one existed, and that it could not be shown by such evidence that the word south was intended by the grantor to be inserted in the deed.

The deed of second of May, 1871, was executed by Robert R. Williams to appellants, John S. and James Williams, and recorded, before appellee obtained his judgment against the grantor, and there was no attempt to show that the conveyance was made to hinder, delay or defraud creditors of the grantor. Indeed the court below held it valid as to all of the lands embraced in it, except the tract in controversy in this appeal, which was misdescribed, it seems, by a mere clerical omission of the word south before the word west, in drafting the deed.

No one could read the deed without noticing the mistake, there being no such subdivision of a section of land as “ the south half of the west quarter.”

The grantees in the deed went into possession of the land under the defective conveyance, and were in possession of it at the time appellee purchased it at the sheriff’s sale, and he was notified that the land belonged to them, and not to the defendant in the execution.

Had the deed of the twenty-first of May, 1873, correcting the mistake, not been made, appellants might have had the mistake corrected in a court of equity, after or before appellee purchased the land, and obtained the sheriff’s deed, as was decided by this court in Allen v. McGaughey et al., 31 Ark., 253, which case was similar, in some of its leading features, to this.

The deed of the twenty-first of May, 1873, correcting the mistake in the previous deed, was executed and recorded after the lands'were levied on under the original execution, but before they were sold under the venditioni exponas, and purchased by appellee.

This deed is, in substance, as follows :

“ This indenture, made the twenty-first day of May, 1873, by and between Robert R. "Williams, of the county of Washington, etc., of the first part, and John S. Williams and J ames Williams, of the same county, etc., of the second part, witnesseth, that, whereas, the party of the first part, by his deed, bearing date the second day of May, 1871, conveyed certain real estate to the parties of the second part, and intended to convey, and to fully describe in said deed, the south half of the southwest quarter of section twenty-seven, in township sixteen north, range twenty-nine west, in the county of Washington, etc.; and, whereas, in describing said tract, the word south before the word west, although intended to be inserted, was, by mistake, unintentionally omitted, now for the purpose of correcting such mistake, and for the consideration in said deed mentioned, and for the further consideration of $1, the receipt of which is hereby acknowledged, the said party of the first part hath remised, released, granted, conveyed and quit claimed, and doth, by these presents, grant, remise, release and forever quit claim unto the said parties of the second part, their heirs and assigns, the said south half of the southwest quarter of section twenty-seven, in township sixteen north, range twenty-nine west, etc., etc., to have and to hold the same, to the said parties of the second part, their heirs and assigns, forever; and the party of the first part covenants with the parties of the second part, that he will warrant and defend the title to said land hereby conveyed to them, against the claims of all persons claiming by, through and under him, but against none other. Witness the hand and seal of the party of the first part, May 21, 1873.” Signed by the grantor.

By .this deed Robert R. Williams did just what a court of equity, upon the facts disclosed in the transcript before us, would have compelled him to do. The mistake in the original deed was thereby corrected, and the legal title to the land perfected in the grantees.

The grantees in the first and second deeds were not only in possession of the land, when appellee purchased at the sheriff's sale, but both deeds were upon the public records, whereby appellee had notice, when he purchased the land, of the mistake in the first deed, and its correction by the second. Byers et al. v. Engles, 16 Ark., 543. Appellee purchased under his own execution, parted with nothing on his bid, and was not an innocent purchaser for value without notice, etc. Allen v. McGaughey et al., sup.

It follows that the court below erred in sustaining the demurrer to so much of appellant’s answer as set up and exhibited title to the tract of land m controversy on this appeal. Their title having been thus ruled invalid, the testimony offered by them on the trial, in support of it, and excluded by the court, would have been unavailing if admitted.

The judgment must be reversed, and the cause remanded with instruction to the court below to overrule the demurrer to so much of appellant’s answer as set np title to the tract of land in controversy on this appeal, and to grant them a new trial.