author: E. H. English, Esq.

text:
    Busby vs. Treadwell.
    Where a purchaser has been let into possession, and continues without interruption, under paramount title, he is not, in the absence of fraud, entitled to equitable relief from payment of the purchase money upon the ground of defect of title. Hoppes vs. Cheek, 21 Ark., 588; Worthington vs. Curd, 22 ib., 284; Bolton vs. Branch, ib., 435.
    A knowledge of incumbrances or defects of title, is no objection to reeorery upon the covenants of the deed in a court of law; but it is a ground for equity to refuse relief out of the unpaid consideration; because it supposes that, with such knowledge, the vendee chose to rely upon the covenants; and to their legal effect he will be remitted. Worthington vs. Curd, ubi sup.

    A vendee having given his note for certain lands, to be paid on a day certain, provided that if the lands were involved in suit concerning the title to the same> payment was not to be made until the suit should be decided; there being no suit pending, at the time of the coming to maturity of the note, involving the title to the lands so sold, the vendor’s right of action was complete.

      Appeal from Jefferson Circuit Court m Ghance'ry.

    Hon. JohN C. Murray, Circuit Judge.
    Bell, for appellant.
    HutchiNsoN, for appellee.
   Opinion prepared by

E. H. English, Esq.

— Seenote, page vm.

Treadwell sold and conveyed to Busby, by deed with general covenants of warranty, a tract of land, and took the note copied below for the purchase money: and Busby went into possession of the land. After the maturity of the note, Treadwell brought suit upon it, in the law side of the Jefferson circuit court, obtained ■judgment without defence, and Busby filed a bill for injunction, etc. Upon the hearing, the bill was dismissed for want of equity, and he appealed.

It appears from the allegation of the bill, and admissions of the answer, that William Waters claiming the land devised it as part of his real estate to his sons Robert and William T., and his daughter Delia, in common: that Robert Waters afterwards sold and conveyed the whole tract to Albright, who conveyed it to Treadwell, from whom Busby purchased.

It is shown by the answer that after the bill was filed, Tread-well purchased and obtained a conveyance of the interest of Delia Waters from her and her husband, leaving outstanding the title of William T. Waters.

There was an attempt to show that Wm. Waters, deceased, had no title to the land, and that the title was in the heirs of Wm. D. Taylor, but there was no competent proof of this.

In this aspect of the case, Busby stands in the attitude of a vendee in possession, under a deed with general covenants of warranty, attempting to enjoin the collection of the purchase money on account of a defect in the vendor’s title.

The rule upon this subject was declared in Hoppes vs. Cheek et al., 21 Ark., 588, to bé as follows:

“ Where a purchaser has been let into possession and continues without interruption, under a paramount title, he is not, in the absence of fraud,'entitled to equitable relief from payment of the purchase money, upon the ground of defect of title. In such a case, he must seek his remedy at law, on the covenants of his deed, etc. There are cases, however, in which it seems to have been held that the assertion and prosecution of an adverse title, coupled with the insolvency or non-residence of the party bound by the covenants, are sufficient to bring the case within the qwia timet jurisdiction, which in extraordinary cases courts of equity have exercised.”

The rule so declared was affirmed, and followed in Worthington vs. Curd & Co., 22 Ark., 284, and in Bolton vs. Branch, ib., 435.

In the case now before us, there is no showing that the vendor was insolvent or a non-resident, or that any adverse title was being asserted or prosecuted.

It was also held in Worthington vs. Curd & Co., “ that a knowledge of incumbrances, or defects of title, is no objection to recovery upon the covenants of the deed in a court of law; but it is a ground for equity to refuse relief out of the unpaid consideration, because it appears, that, with such knowledge the vendee chooses to rely upon the covenants, and to their legal effect he wiil be remitted.”

Here, it was proven upon the hearing, that Busby was advised, of the defects in Treadwell’s title at the time the note for the purchase money was executed.

But Busby also attempted to protect himself by conditions expressed in the note, which remain to be considered.

The instrument is as follows:

“$680. Pine Bluff, Ark., Feb., 1st. 1858.

On or before the first day of January, A. D. 1859, 1 promise to pay to John B. Treadwell or order the sum of six hundred and eighty dollars, for value received, with ten per cent, interest per annum thereon from the first day of January, A. D. 1858, until paid: provided, that if the south-west quarter oí the south-west quarter of section thirty-two, (32) in township six south, of range eight west, forty acres of land sold by the said Treadwell to me, and for which the above note is given, is involved in suit concerning the title to the same, this note is not to be paid until the said suit is decided, and if it is decided that the title to the said land is not good, the above note is to be null and void.

(Signed) J. J. BUSBY.”

The legal effect of this instrument is that the money was to be paid on the first of January following tbe date of its execution, with a proviso that it the land should at that time be involved in suit, the money was not to be paid until the suit was decided, and if decided adversely to the title, the note was to be void.

If it was not the intention of the parties that the contingency of apprehended litigation about the title to the land, was to be considéred at the maturity of the note, then no time was fixed at all, and the maker of the instrument might claim an indefinite delay of payment. Such a construction of the instrument would be unreasonable. If the maker desired longer time than the maturity of the note to test the contingency of litigation, he should have insisted on an expression of it in the instrument.

There is no allegation in the bill that the title to the land was involved in suit at the maturity of the note, or at any time thereafter.

The decree of the court below must be affirmed.


source: Caselaw Access Project

author: A. Piee Esq.

license: Public Domain

text:
    Twombly vs. Kimbrough.
    A sheriff having sold certain lands for taxes, and having afterwards taken an assignment of one half of the lands so sold from the purchaser to himself, the • sheriff was properly made a party to a bill filed by the original owner of the land to set aside the tax sale.
    The answer of the purchaser at the tax sale having set up that the transfer from himself to the sheriff was rescinded soon after it was made; this was matter in avoidance which the defendant must prove.
    But it could not be proved by the sheriff, he being a necessary and proper party, and interested.
    The bill having charged that the sheriff and the purchaser were parties in the purchase, and jointly interested therein, and the answer stating that there was no partnership at the time of the sale, but that the assignment to the sheriff, was made afterwards, and not in pursuance of any previous understanding the answer herein was directly responsive to the bill, and being uncontradicted by testimony, stands as if proved.

      A tax deed is by law evidence of the truth of its own recitals.
    General averments of fraud amount to nothing unless the facts constituting the charge are distinctly and specifically averred; and unless also those facts do in law and fact constitute fraud.
    Though any sheriff who is concerned in the purchase of any lands at a tax sale, is liable to a penalty of five thousand dollars, to be recovered by indictment, yet when the bill merely charges that the sheriff was interested in the purchase of certain lands, without any allegation that by the combination between the sheriff and thepurchaser, it was intended to prevent competition in' bidding, or that such was the effect, or that any other person did bid, or desire to bid for themselves, this does not amount to a charge of fraud.
    The collector for a particular year is the only officer authorized to collect the taxes for that year; and although his term of office expires before the day fixed for the sale of lands for such taxes, he alone can make such sales. He may do this himself or by his deputy,
    It is only when the collector has died or been removed from office, or is otherwise disqualified to act, that the actual collector can sell in such case.
    Any judicial sale made by any person or officer other than the one authorized by law to make it, is void.
    Lands having been assessed for taxes for 1856, and the tax book for that year given to one collector; and the lands sold by another collector in 185V, the former collector being alive and not disqualified from selling at the time of such sale, the sale was void.
    In this ease the collector who made the sale had been the deputy of the former collector to whom the tax book had been delivered, but as the sale was not made by him as such deputy, but as collector of 185V, the sale was void.
    Plaintiff filing a bill to set aside a tax sale, offered therein to pay whatever amount of taxes the defendants might have paid on the lands, with proper interest and other dues; the court below, in granting the relief sought by the billa should have ordered that these sums and the value of any improvements made on the lands by the defendants should be brought into court by the plaintiff.

      Appeal from ArTta/nsas Ci/rouii Court in Chcmeery.

    Hon. JohN C. Muekay, Circuit Judge.
    GaRlahd & EáNdolph, and Hutchinson, for appellant.
   Opinion prepared by

A. Piee Esq.

— Seenote, page m

This cause comes to us by appeal from the circuit court of Arkansas county in chancery.

In 1856, William A. and Buckley Kimbrough were joint and equal owners of fractional sec. Y, in township Y south, of range 5 west, and the fractional north-east quarter of section 12, in township Y south, of range 6 west; the two tracts containing together, 691.25 acres. Buckley Kimbrough had for several years lived on and cultivated the land. William A., his co-tenant and partner, was a non-resident of the county.

The individual interest of William A. was assessed for taxation in 1^56, for the taxes of that year, as the property of a non-resident. The taxes being unpaid, this interest, with other lands of non-residents was advertised to be sold at the regular time in March, 185Y, for the taxes, penalty and costs : but the advertisement not being published in time, the county court, on the 19th of January, 185Y, on motion of George W. S. Gross, sheriff pf the county, made an order' that “ the sheriff of the county” should be and thereby was empowered and authorized to advertize, in some newspaper printed in the state, “ the non-resident lands in the county,” to be sold on the fourth Monday of April, 185Y; and gave “said sheriff” time until the first Monday of May to file his delinquent list.

The lands were advertised áccordingiy, in a newspaper published at Helena. William A. Kimbrough’s interest in the lands mentioned was returned as sold to Benjamin Twombly; and G. W, S. Gross, sheriff of the county, gave him a certificate, dated 2Yth of April, 185Y, certifying that at such sale, that day made, Twombly purchased the undivided half of each tract, (345.50 acres in all,) assessed and taxe'd in the name of W. A. Kimbrough, a non-resident of the county,-for the sum of $41.54, aggregate amount of taxes, penalty and costs. On the' 20th of October, 1858, the successor of Gross executed and acknowledged a deed to Twombly for the same' premises, under that tax sale.

William A. and Buckley Kimbrough* in April, 1859, exhibited their bill in the Arkansas circuit court, praying that the purchase of Twombly might be set aside and the certificate and deed canceled. In October, 1859, Twombly and Gross, who were made defendants, answered tbe bill. It is unnecessary to state in detail the allegations by which the bill impeaches the sale. It alleges that the lands “ were never listed, assessed and advertised in the way and manner prescribed by law for tax sales in the state of Arkansas.” It makes several averments, which are denied by the answer and not sustained by proof, and it relies on two special grounds of objection, which may be better stated as they appear on the whole record.

The first is that George W. S. Gross had no power or authority to make the sale. He was elected sheriff on the first Monday of August, 1856, to succeed Ins brother, P. P. Cross, whose deputy he had been by regular appointment, duly approved and recorded, from the 7th of April, 1851. P. P. Cross was collector of the revenue of 1856, having made the necessary affidavit and given the necessary bond ; and G. ~W. S. Cross was collector for 1857, having made the affidavit and given bond. He sold as sheriff the lands in question, for the taxes of 1856. The former sheriff was still living; and the question is, whether the power to sell was vested in him, or in the former sheriff.

The second ground of objection is that the sale was fraudulent. On the certificate of purchase by Twombly is this indorsement, dated the 2d day of May, 1857, five days after the purchase: “ For and in consideration of the sum of twenty dollars and seventy-seven cents, to me in hand paid, I hereby transfer unto G. W. S. Cross, one half or an equal interest in and to the'.within described lands, in the event the same is not redeemed, and in the event the same be redeemed, the one half of the proceeds arising therefrom to be paid to the said Cross.” This bears Twombly’s signature, and the bill alleges that Twombly was not present at the sale and did not bid for the land; that Cross had them struck off as sold, and so marked in the minutes of the sale, the words “to Benjamin Twombly,” being afterwards added: that Cross and Twombly were partners in the purchase, and the latter never paid more than one half of the sum said to have been bid; and that therefore the sale was fraudulent and void.

The answer denies that Cross was interested with Twombly at the time of the sale, and alleges that Twombly himself bid for the lands ; that the subsequent transfer was not made to carry out a previous understanding; and that soon afterwards the purchase "by Cross of one half of Twombly’s interest was rescinded by the parties and the sum paid by Cross to Twombly repaid.

Cross was properly made a party defendant since this transfer showed a joint interest in him, which would enable him to compel, in equity, a conveyance to him by Twombly of one half the interest purchased and held by him under the sheriff’s deed. The averment in the answer, as to the rescission of this purchase and transfer, was strictly matter in avoidance, put in issue by replication, and amounting to nothing unless proven by the defendants. It was attempted to prove it by the testimony of Cross himself. But he being a party, and a necessary and proper one, and interested, was incompetent to testify; and his deposition was both taken and read with full reservation of all objections on the score of competency. As it is impossible to doubt that he was properly made a party, and equally impossible to doubt that, as a party in interest he was incompetent to testify, we cannot understand why his deposition was not disregarded, nor with what propriety it was permitted to be read at all, that it might uselessly encumber the record and occupy time and space in the discussion here.

Upon the proof in the cause, which consists of the testimony of the clerk of the court, who attended the sale and kept the minutes of it, and of the crier who sold the lands, as auctioneer, the facts are: that' Twombly was present at the sale, but did not himself bid. The lands in question and many others were struck off and noted as sold; Cross, when they were cried, saying “ sold,” or that there was a bid, the clerk noted them as sold, and Cross himself afterwards added the words “to Benjamin Twombly.” Five days afterwards, Twombly assigned to Cross, by transfer endorsed on the certificates, one half of the lands or of the interest in them purchased by him, precisely for one half of the sum bid and paid for them; but the deeds were made by Cross’ successor to Twombly alone. There is no proof of any recision of the sales made by Twombly to Cross. The averments in the answer, that there was no -partnership at the time of the sale; that the purchase of Cross was made subsequently, and not in pursuance of any previous understanding, being directly responsive to the bill and uncontradicted by testimony, stand as if proven.

The bill alleges, generally, that on account of this joint interest the sale was fraudulent and void; but it is not shown, by the averment of any other irregularity or informality, how this connection between the sheriff and the purchaser, if it existed, made the sale fraudulent. It is not alleged that by means of it, Kim-brough was in any way injured, or what fraud the purchasers perpetrated. True, it is alleged that the land was not legally listed, assessed and advertised. But this the answer traverses, and the deed of the sheriff is by law evidence of the truth of its own recitals, (if the sale was made ly the proper officer,) and recites the listing, assessment and advertisement of sale of the land, in accordance with law. The advertisement, though not proven by copy, is proven orally by the witnesses; and no attempt was made by the complainant to rebut the proof made by the deed itself. It is not alleged that by the combination between the sheriff and purchaser, it was intended to prevent competition or bidding, or that such was the effect, or that any other person did bid or desired to bid for the land; and therefore if all the averments of fact in the bill had been proven they would have failed in establishing the fraud alleged; though, under section 128, chap. 148, of the Revised Statutes, the sheriff would have been liable to a penalty of five hundred dollars, to be recovered by indictment. General averments of fraud or fraudulent intent, in the use of which bills are sometimes so liberal, amount to nothing, unles^ the facts constituting the charge are distinctly and specifically averred; and unless, also, those facts do in law and fact constitute fraud. It is admitted that the taxes had not been paid on the interest of William A. Kimbrough in the lands. They had been regularly listed, assessed and placed on the tax-book. The proper amounts of tax, penalty and costs were charged, and the owner was a non-resident of the county. Necessarily the land had to be sold, and it was sold at the proper time and place, and after due advertisement. That A bought instead of B, if the land was in any event to be sold to some one or struck off to the state, was not a fraud on the owner, though against public policy, and punishable as a misdemeanor. Still less is the allegation of fraud sustained, when it is not proven that the sheriff was “ directly or indirectly concerned in the purchase.”

If there had been any other irregularity, with which the sheriff is interest in the purchase could be connected, the interest of the sheriff, if proven, would become of the utmost importance, because it would supply evidence of a sufficient and powerful motive on his part to deprive the owner illegally of his lands; and it would, in any case, lead a court of equity to scrutenize the sale more closely, and to regard any irregularity as more significant and important. The testimony in the case goes a good way to show that there was only the form of a fair sale at auction, and that not only was there in reality no competition in bidding, but it was so managed as to prevent competition, Cross saying, when the lands in question and others were put up, that there was a bid for them, or they were sold, and they being at once so noted, and this, although some fifty or sixty persons were present; but notwithstanding that the testimony produces this impression, it is not sufficient to establish actual fraud in the sale. We do not decide whether the fact, if it was fully proven, that the officer was directly interested in the purchases, would or would not invalidate the sale, because that fact is hot proven, though the circumstances, notwithstanding the broad denials of the answer, which are always to be looked for in such cases, are exceedingly suspicious.

The court below decreed the relief prayed by the bill. Whether that decree was proper must depend on the question first stated: whether the sale was made by the proper officer, by law authorized to sell; that is, whether the old or new sheriff was the proper officer to make tho sale.

By the law in force at the time, each sheriff was ex-officio collector of taxes within his county, for two years, commencing on the first day of January next after his election: and was required to give bond each year, by the 10th day of January, conditioned according to law. P. P. Cross filed such bond in 1866, and performed the duties of assessor. His assessment list was required to be filed by the 15th of April, and to be adjusted by the county court in April; thirty days after which the tax-book was required to be delivered to the collector. It is not disputed that the tax-book was so delivered to P. P. Cross.

Upon it was necessarily endorsed a warrant, commanding him to collect the taxes on all the property assessed in it, in the manner and by the proceedings prescribed by law, and to pay over the same in the manner and within the time prescribed by law.

The collector’s delinquent list was to be acted upon by the county court on the 3d Monday of March, in each year, it being made out by the same collector who had been unable to collect portions of the taxes; and collectors were to settle their accounts with the auditor by the first day of May.

Sales of lands for taxes were required to be made on the second Monday of March in each year. On or before the first Monday of December in each year ‘the collector of revenue’ in each county was required to make out and file in the clerk’s office a list of lands belonging to non-residents of the county; and at least four weeks before the second Monday of March to publish this list in some newspaper with a notice of sale: he was to have this list recorded; and by himself or deputy attend and make the sale, and make out and deliver certificates to the purchasers. If from any cause he failed to make such sale at the proper time, the county court could order him to sell them on another day, after twenty days’ notice by publication in some newspaper in • the state.

In Gossett vs. Kent, 19 Ark,., 602, this court decided that the assessment list, when adjusted by the county court, is in the nature of a judgment; and the warrant attached to the tax-book in the nature of an execution. By the statute, sec. 106, chap. 148, all taxes on lands, with penalties and interest, are levied on the lands charged, until payment or forfeiture. This levy dates at least from the date of the warrant.

The collector, therefore, holding the tax-book and warrant, commanded to collect the taxes on all the property assessed, and bound by his bond to do so and to pay over the same, stands in the same attitude as if he held an execution against an individual, and had levied it upon lands. By the general law as to executions, sec. 7, chap. 68, where an officer had levied on land by virtue of any execution, and his term of service- expired, and was determined before sale, he was empowered to make the sale, in all respects as if his term of service had not expired. In the absence of other and overruling provisions to the contrary, this must be held to govern in regard to the sales of lands for taxes. This, reason, analogy and consistency all require, more especially as the provision is but in affirmance of the common law in regard to the powers of sheriffs.

There are no provisions to the contrary; but all that hear upon the question favor this construction.

If the new sheriff must sell, because the term of the former collector expired on the 1st day of January, then it results that each sheriff, serving one full term and no more, must sell the lands charged with the unpaid taxes of the year of his election, though his predecessor assessed them that year, gave bond for their collection, and' holds the tax-book; and he cannot sell those charged with the unpaid taxes of the second year of his term, though he assessed the lands, gave bond to collect the taxes and holds the tax-book. He holds the execution, nevertheless, and no law authorizes him to deliver it to his successor; and if he pays into the state and county treasuries the full amount, of state and county tax with which he may stand charged, on or before the time prescribed by law, he can proceed to collect the taxes so paid by him, for three years after such payment, in the same manner as other taxes are collectable ; that is, by sale or otherwise, though his term of office may have expired. And, by law, he is not required to pay over the county revenue until the 25th of May, nor the state revenue until after the auditor has settled his account, which he is required to file by the first day- of May.

Again, by the chapter on executions, the ex-sheriff could not only sell lands levied on by him while he was in office, but he could also execute deeds for the same. Sec. 132, of chap. 148, changes this, as to the execution of the deed for lands sold for taxes, by authorizing the collector actually in office to make the deed, where the collector who sold has ceased to be collector'by expiration of his term of service after sale of the lands ; but no change is made as to the power of the collector holding the tax-book to make the sales. As to that, then, the general law must be held to govern.

And in the several provisions directing the different steps to be taken, from first to last, beginning with the assessment and ending with the sale, the language construed according to its natural and obvious meaning, indicates that the “ collector,” who is to do the several acts, is one and the same person. He is not to file his list of non-resident lands until the fourth Monday of December, though his term of office expires on the first Monday in January, thereafter. He is to set up a copy of the list at the court house door, and publish it in a newspaper". The sale is to be made on the second Monday of March by him or his deputy; and to give him time to do this, and because the collector for 1856, for example, could not complete his collection of the taxes until that sale, he was not required to pay over either the state or county revenue until the latter part of May.

We are clear, therefore, that the collector for a particular year is the only officer authorized and empowered to collect the taxes for that year; and that although his term of office expires before the day fixed for the sale of lands for those taxes, he alone can make such sales. He may do this himself, or by deputy.

In Hogins vs. Bradshears, 13 Ark., 242, it was held that a sale for taxes “ made by an ex-collector, after the expiration of his term of office,” was invalid; for that, and also because it was made on a day other than that, and after that, fixed by law, without any order of the county court directing it to be made on such other day. In that case the taxes due were for the year 1842. Abraham Sinclair, the assessor and collector for that year, assessed the lands and received the tax-book, and died in July, 1842. On the first day of August, 1842, William Adams was commissioned sheriff and received the tax-list. His term of office expired, and after that he made out and filed the list of nonresident lands in May, 1843, and sold them On the 1st of July, 1843.

By the general statute, see. 12, chap. 68, when an officer dies, after taking land in execution, and before sale, the sheriff in office is to proceed with the execution and make the sale. Sinclair having died, Adams could sell, while he remained in office; but as he had not taken the land in execution, or done any act whatever, until he ceased to be sheriff, his successor alone, the actual sheriff, could by law make the sale. The decision in that case was, therefore, correct, and so was the general expression used in the opinion, when confined to the given case. But that case was entirely different from the present, and the decision does not in the least conflict with the conclusion to which we have arrived. P. P. Cross had not died, when this sale was made, and the provisions of the statute are different in the different cases. It is only when the sheriff making the levy has died,.or been removed from office, or is otherwise disqualified that the actual sheriff can complete the execution of the process.

Any judicial sale, made by any person or officer other than the one authorized and empowered .by law to make it, is void. It is not, in such case, the act of the law, from which alone it can derive validity. In this case the sale was not made by P. P. Cross, who was collector in 1856, but by G. W. S. Cross, sheriff elected in August, 1856, and who became collector for 1857^ on tbe first day of January in that year. It was therefore null and void.

But it is urged that GJ-. W. S. Cross was the deputy of P. P. Cross; that the objection that he acted in his own name and right as sheriff, and not as deputy, is a technical one, hardly tenable any where, and certainly not in a court of equity; that the only question should be, whether Gr. W. S. Cross was authorized to sell, at the time and in the manner in which he did, and not whether he was authorized to sell in the particular capacity he assumed, or by which he described himself; that if he was in fact authorized to sell, it worked no injustice that he sold as sheriff; and that if he was in fact authorized to sell, it does not matter, substantially, whether he sold as deputy or principal. For, it is said, the bidders at the sale had nothing to do with his official description of himself, and are not to be held responsible for it.

The argument is ingenious and plausible, but unsound. Undoubtedly the courts ought' not to exercise their ingenuity to invent obstacles to defeat sales for non-payment of taxes, or to regard these sales as iniquitous, and support them only when it is impossible to do otherwise. For though it is true, as has been judicially said, that purchasers at tax sales obtain acres for cents, yet that ought never to have made the courts acute to seek out and anxious to sustain objections to such titles. There can be no free government without revenue; the imposition and collection of taxes is the exercise of the highest powers of sovereignty; and one of the first duties of the citizen is to bear cheerfully the light burthens and pay promptly the equitable and equal taxes imposed on his property by the government of his choice ; and if the taxes are small, and the lands on which they are charged valuable, so much the more reason .why he should pay them promptly, and so much the less cause he has for complaint, if, in consequence of failure to pay, he loses his lands.

But, nevertheless, in this as in all other proceedings that alone valid which is done legally, and .especially that which is done by tbe proper officer by law empowered to do it. It is true that if G. W. S. Cross was empowered to sell, bis mistake in describing tbe capacity in wbicli be sold might not be material. But he was not authorized to sell. Tbe sheriff of the former year' was tbe only officer authorized; and tbe whole case affirmatively shows that he did not sell, but that the sheriff actually in office did. That the latter was also deputy of the former, and made the' sale does not prove that the former did it. If the certificate purported to be given by P. P. Cross, by his deputy, it would be presumed, in this collateral proceeding, that the latter was authorized by his general powers as deputy, or by special deputation, to make the sale, and the court would look no further. It is not alleged in the answer, or proven by the testimony, that he sold as deputy, or, more accurately, that P. P. Cross made the sale, by him as deputy. A certificate of sale given by him as deputy, in his own name, like a return on a writ so made, would be worthless. Made by him as sheriff, it is at least equally so; for it even excludes the conclusion that he did the act as deputy. No attempt is made to reform the certificate; and it is clear from the pleadings and proof that G-. ~W. S. Cross, in his own right as sheriff, advertised the lands and made the sale.

A deed made by an attorney in fact in his own name is worthless. It must be made in the name of the principal. It is worth-, less though made by the attorney in fact for the owner of the land on its face. And even if it could be enforced against the principal, in equity, as virtually his agreement, certainly that could not be 'done, if the attorney in fact conveyed in his own name, as owner of the land, under a title conflicting with that of the principal, however plausibly it might be urged that he really was attorney in fact of the principal, and could have sold and conveyed for him. The deed could not be, at one and the same time, Ms deed and his principal’s. The argument here is not that G. "W. S. Cross did make the sale as deputy of P. P. Cross, but that he could have done so, if he pleased. Now even that does not appear. If he could have done so, the legal presumption is that he would have done it; and if P. P. Cross supposed that the legal power to make the sale was not in himself, of course he did not authorize Gr. W. S. Cross, though previously his deputy, to do it for him. Nor did the latter, supposing as he did that he had himself power to sell, as sheriff, act as deputy of his brother, or deem that his deputization extended to this sale.

The question is not what person, but what officer, made the sale. If A, authorized to make a sale as sheriff', and being sheriff, had made it in some other official capacity, there would be reason to urge that the court should regard the description as a mistake, and that he should be presumed to “have made it in the only legal capacity in which he could do so. But this is not that case. He had no authority to make it at all; and having made it as sheriff, his general deputization does not prove that he could have made it, or had the right to make it, as deputy for P. P. Cross. If he had done it as deputy, his general depu-tization would be presumed to have continued. As he did not, it must be presumed to have expired when he and P. P. Cross supposed the powers of the latter as collector to have terminated. When he declared that he was acting, not as deputy, but in his own right as sheriff, we should be going a great way in order to support this title, to hold that, without other evidence, we must infer that he acted as deputy for another.

It is the official character of the sheriff, and not of his deputy, the oath of office of the sheriff, that gave his acts validity, conclusiveness and sanctity. It is his return that cannot be impeached. It is because the sheriff’s certificate of purchase, the certificate of purchase given by the officer who made the assessment and advertisement, is deemed by law conclusive, like a return, as to the facts that constitute the regularity of the proceedings prior to the sale, and at the sale, that his deed is made evidence, and that even the deed of a subsequent collector, who knows the facts from the certificate alone, is evidence of the truth of all its recitals. The law attributes no such dignity or. sanctity to the certificate or deed of a deputy. The sale in this case bad not for its regularity the guarantee of the proper collector’s oath of office. It was not the act of the law by her sworn minister, authorized to make it. It was not ah official act at all; but that of an unauthorized individual, not commissioned quoad hoc by the state. It is not as where one does an act which he may legally do in one capacity and cannot do in another; in which case the law and courts presume, in the absence of proof to the contrary, that he did it as he legally could, and not as in law he could’ not. For here that presumption is excluded by the broad fact that Cross did not pretend to act as deputy, but in his own character as sheriff, the former sheriff being in no wise bound by or responsible for his acts, nor accountable for the moneys received by him, nor entitled to the commissions, nor lending his official sanction to the sale, nor vouching, under the obligations of his oath of office, for its regularity.

The deed of the subsequent sheriff' states that George W. S. Cross advertised the lands; that he sold them; that Twombly paid him the money bid, and that he gave Twombly the certificate. To infer, in the face of this deed, that George W. S. Cross, sheriff of Arkansas county, did not make the sale, but that Pleasant P. Cross, ex-sheriff, by G. ~W. S. Cross his deputy did, would be to falsify and destroy the deed. The certificate, changed and amended by parol testimony, would not support the deed.

And it may be added, that as the deed shows that the advertisement and sale were made by an officer not authorized to sell, it is not evidence of the truth of the recitals, or of the regularity of the different steps taken. It recites an illegal sale, and cannot be aided by parol evidence which contradicts it. JBy the deed and certificate as they are, the purchaser must stand or fall.

The order of the county court could not confer the power to sell on an officer not authorized by law to sell. If it meant to confer it on G. W. S. Cross, it was so far null; and, in ordering the sheriff to sell, it must be presumed to have intended merely to direct that the sale should be made by the officer ■ authorized by law to make it. It was not a judgment, not to be collaterally drawn in question. If it bad undertaken to decide that an officer not authorized by law should sell, it would have acted without jurisdiction, and its order have been so far cor am non judioe.

We need not undertake to decide whether a sale of lands for taxes, made by a collector de facto, would be valid, like other acts done by judicial and other officers de facto. This court, in Scott vs. Watkins, 22 Ark., 556, indicated its disinclination to agree to the doctrine of the supreme court of the United States, in Parker vs. Overman, 18 Howard, 137; that the acts of an assessor, who had not made the required affidavit, were void. The increase in the number of the judges of that court beyond reasonable limits, and the continual recurrence of dissenting opinions had, many years since, greatly lessened its authority; and we should not bow with unhesitating submission to its decision on a question arising under our own statutes. We see no reason why the general principle as to the acts of officers de facto should not apply to those of assessors and collectors. But G. W. S. Gross was not, quoad hoc, the collector de facto. An officer de facto is one who comes into the particular office by color of title. And the acts of such an officer are valid, as it concerns the public, or third persons who have an interest in his acts. The People vs. Collins, 7 Johns., 549; The People vs. White, 24 Wend., 525; The People vs. Stevens, 5 Hill, 616. You cannot assail his title to the office collaterally. The official acts of an officer regularly appointed, though not regularly qualified, are valid in respect to third persons. Bucknam vs. Ruggles, 15 Mass., 180; Mason vs. Dillingham, id., 170; and while a person holds an office, that of sheriff, for instance, his doings are deemed valid. Fowler vs. Beebe, 9 Mass., 231; Commonwealth vs. Fowler, 10 Mass., 290; Doty vs. Gorham, 5 Pick., 487.

But G. W. S. Gross was sheriff and collector de ¡jure, as to the taxes of 1857. As to those of 1856, the office of collector was still filled by P. P. Cross, and G. W. S. Gross did not hold it by color of title; nor claim to be sheriff under any election, appoint-ment or commission prior to August, 1856. He could not be collector quoad hoc, when that office was held by another, whose title he could not dispute, and whose deputy he had been. He simply undertook in another capacity, an act which another person, still for that purpose holding the office, could alone perform. If the argument were valid, it would not only warrant a new collector in selling lands, in every case, for taxes of the year for which he was not collector ; but a new sheriff in selling lands levied on by his predecessor, who was still living and alone invested by law with the power to sell. The principle relied on is based on considerations of public policy; and only protects rights gained under the action of persons in possession of offices, and apparently in legal possession. The public peace, and justice to individuals alike require the maintainance of the principle. But Gr. W. S. Gross only assumed to act in a character of which he was legally in possession, and under a commission and authority which did not give him the power to do the act. He never assumed to be what he was not. If he had assumed to be sheriff and acted as sheriff, not being legally so, and being liable to be ousted on quo warranto, and if, being what he assumed to be, he could, as such, legally have made the sale, then he would have been, as to that, collector do facto, and the sale would have been valid. But he did not assume to possess any appointment or commission under which he could legally do the act.

We cannot hold that the original owner of land cannot impeach a tax sale until he has paid the taxes. To whom and how could he pay them, after the sale ? He could but tender them to the purchaser: for the state and county already have them in their treasuries. He must tender them before filing his bill, and again by his bill. The affidavit required by section 7, chcvp. 106 of the Revised Statutes, was made and filed before the 29th of April, 1859 ; and .no motion to dismiss the suit for want of it was made.

The relief prayed by the bill was properly grantaJd^B^ the,. court below.0 But the bill offered to pay whatever;' affiottnt di taxes Cross and Twombly might have paid on thd'lands, with the proper interest and other legal dues; and even if the owner seeks to redeem lands sold for taxes within the year allowed by law, he must pay or tender twice the sum bid and paid by the purchaser, for taxes, penalty and costs, and the true value of any improvement made on the lands by the purchaser; and of course, the relief sought could only be had when what the complainant had tendered, or should have tendered, should have been paid into court, with interest, and with any other taxes paid by the purchaser or defendants on the same premises, after the purchase, and interest on such sums, and the,value of any improvements made.

The decree must therefore be reversed and the case remanded, with directions to the court below to enter a decree interlocutory, for the taking an account before the master, wherein shall be stated: first, the sum of eighty-three dollars and eight cents, with interest at six per cent, per annum from the 27th day of April, 1858; second, all such taxes as the defendant Two'mbly may have paid on the lands, since the purchase, with like interest from the time of payment of each; and third, the value of any improvement on the land made by the defendants or either of them; and upon the payment into court by the complainants, of the sum so found to be due, upon confirmation oí the master’s report, the court below is further directed to render a decree declaring the sale of said lands by the said sheriff null and void, and canceling and annulling the certificate of purchase, and the sheriff’s deed obtained thereunder, and quieting the title of the complainants. The costs in this court to be paid by the appellees, and those in the court below by the appellant.


text:
    Gaines vs. Craig.
    Under sec. 1, ch. 183, Qould’s Digest, "which provides that suits at law may be commenced by filing in the clerk’s office “a note, or writing obligatory, or due bill, or other evidence of debt,” on which a summons or capias may issue, a plaintiff cannot commence an action by filing an open account.
    Nor could the plaintiff commence an action by filing a sealed agreement which on its face shows no cause of action, and upon which a right of action could only be shown by auxiliary evidence.
    Nor was it the intention of the statute that actions of debt or assumpsit should be joined with covenant in one suit.

      Error to Chicot Circuit Oourt.

    Hon. John C. Mukbat Circuit Judge.
    Garland & Eandolph, Stillwell & Woodruff, for plaintiff.
   Opinion prepared by

E. H. English, Esq.

— Seenote, page vm.

On tbe 16tb of April, 1861, Abner Gaines filed in the office of the clerk of the circuit court of Chicot county a promissory note, executed to him by Louis E. Craig for $1,000.00, bearing ten per cent, interest, etc. Also an open account in which he charged Craig with the amount of the note and interest due upon it, and an additional item of $1500.00 for contingent fee claimed by Gaines for attending to' the interest of Craig, as an attorney, in a contest about the validity of the will of Junius W. Craig. Gaines also filed a sealed instrument signed by him and Craig, which was referred to in the account filed, by which it was agreed between the' parties, in substance, that in consideration that Gaines had agreed to prosecute and defend the interest of Craig in and under the will of Junius W. Craig, Craig agreed to give him his note, with security, for $1,000.00, payable 1st of July, 1861, bearing ten per cent, interest from maturity; and ^further agreed to enter into an obligation, with security, to Gaines, conditioned that on the termination of the suit then pending in the Chicot circuit court in relation to the will of Junius W. Craig, if 1 any will should be substantiated, Craig was to pay to Gaines the sum of $1500.00.

Upon the filing of the above papers, affidavit, bond, etc., a writ of attachment was issued against Craig, and Joshua M. Craig was summoned as a garnishee.

At the return term, Lewis E. Craig appeared and moved to strike out the papers filed as the foundation of the suit, because the plaintiff had filed no declaration or statement setting out bis cause of action, etc. The court overruled the motion as to the promissory note, but struck out the account and the agreement filed, and the plaintiff excepted.

No further defence being made, ajudgmentwas rendered against Lewis E. Craig, for the amount of the note and interest, and also against Joshua M. Craig, upon his answer. as garnishee, and Gaines brought error.

The plaintiff doubtless attempted to bring an informal suit under section 1, ch. 133, Gould’s Dig.,p. 844, which provides that: “Suits at law may be commenced in any of the circuit courts, etc., by filing in the office of the clerk, etc., a note, or writing obligatory, or due bill, or other evidence of debt, which note, writing obligatory, or due bill, or other evidence of debt, shall be a sufficient declaration on which a writ of summons, or capias ad responden-dum against the person, or of attachment against the property of the defendant, shall be issued.”

The promissory note was the only “ evidence of debt” filed. The open account was no evidence of debt within the meaning of the statute; nor was the sealed agreement. It showed upon its face no cause of action, ■ and a right of action upon it could only be shown by such auxiliary averments as must be made by a declaration. The liability of Craig upon the instrument depended upon a contingency — the rendering of service by the plaintiff as an attorney: the termination of the suit in relation to the will of Junius "W. Craig; the establishment of a will, and the failure .of the defendant Graig to execute the obligation, with security, stipulated for in the written agreement.

The court below properly struck out the sealed agreement for another reason: Covenant would be the proper form of action upon it, while debt or assumpsit only could be brought upon the note, and it would be such a disregard of the rules of pleading as the statute hardly contemplated to permit them to be joined in one suit. See Gatton vs. Walker, 4 Eng., 199.

The judgment must be affirmed, and if this were a case where damages could be imposed for the prosecution of a writ of error without plausible grounds, we should be much inclined to impose them.


author: TVTr. Chief Justice Walker

text:
    Osborn, ex parte.
    Tbe judgments of a circuit court held, at a time other than that prescribed by law, are void, as held in Brumley vs. The State, (20 Ark., ¶¶.)

    The ordinance of the convention of 1864, which ordained that all laws in force in this state on the 4th of March, 1861, are still in force, etc., necessarily repealed, by implication, the act approved November 18th, 1861, which provides for holding the terms of the circuit court of Pulaski county; and revived the act of 21st January, 1861.
    The rule of repeal of statutes by implication is received with disfavor; but where a statute is revived, which is totally inconsistent with and repugnant to a later statute upon the same subject, as where effect cannot be given to both, the rule must apply. ■

      Motion for perpetual Svpersedeas of Judgment.

    Gallagher & Newton, for the motion.
    Boss, contra.
   TVTr. Chief Justice Walker

delivered the opinion of the court.

This case comes before us upon a motion for an absolute super-sedeas and perpetual stay of the execution of the judgment oí the Pulaski circuit court, rendered at its adjourned term, holden on the fourth Monday after the fourth Monday of August, 1865, at which term Osborn was convicted of murder in the second degree, and sentenced to the penitentiary for the term of five years: from which judgment an appeal was taken, and is now pending in this court.

The ground upon which the motion is predicated, is, that the trial, judgment and sentence of the defendant were had at a time, not provided by law for holding the circuit court in the county of Pulaski, and that, therefore, the judgment and sentence of the court are void, and should be perpetually superseded and stayed.

In order to determine this question it becomes necessary to ascertain whether the circuit court of Pulaski county was, or was not held at a time provided for by law; because, if it was not, it is very evident that the proceedings had in the case are coram non judice, and should be perpetually superseded and stayed. That such should be the case is fully settled by this court in the case of Brumley vs. The State, 20th Ark. Rep., 77.

By reference to the statute fixing the times of holding the circuit court in Pulaski county, we find that; approved November 18th, 1861, which provides for holding the court in said county on the fourth Mondays after the fourth Mondays in March and and September, the latest. This act was passed after the ordinance of secession. That at the time this act passed, there was a state government in existence, under which its several departments might lawfully act, was definitely settled at the present term of the court in the case of Hawkins vs. Filkins. The act fixing the time for holding the court, was neither in violation of the constitution of the United States, nor of the state of Arkansas, was a proper subject of legislation, and the court holden thereafter in said county whilst that act remained in force, to be a.legal court must (as held in Brumley vs. The State,) have been holden at tbe times prescribed by law.

It is contended by counsel that this act was repealed by an ordinance of the convention beld in January, 1864, which is in the following words: “ And it is further hereby declared that all the laws in force in this state on the 4th of March, 1861, are still in force, not inconsistent with the provisions of this constitution, and which have not expired by limitation therein contained.” By this ordinance, the code of statute laws in force on the 4th of March, 1861, was declared to be in force, or more properly, adopted as a code of laws for the administration of the state government under the new constitution. There is no clause expressly repealing the laws passed by the legislature of Arkansas after the 4th of March, 1861; but it is contended that they were by necessary implication repealed by force of the maxim expressio uniiis est exclusio alt&rius. In other words* that inasmuch as the convention, by ordinance, declared the laws of the 4th of March in force, it must be understood as having intended that no other laws than those should be in force. This rule of repeal by implication has been received with disfavor, and is quite limited in its application. 2 Dwarris on Sfat., 638, 673.

It is worthy of remark that this is not an ordinary case in which a single statute ■ was passed, to stand in connection with other existing acts; but it was declaring in existence a code of laws for the government of the state under a new constitution, just such as is found in many of the scedules or ordinances which accompany every change of state government, after framing a new constitution: and it is not probable that it could have been the intention of the convention that any other code of laws, or any laws whatever should remain in force. Should we, however, assume that it was the intention of the convention to declare the act of 21st January 1861, in force, and to leave the act of the 18th November, 1861, unrepealed and in force also, the result would be, that there would be two acts in force fixing different times for holding the circuit court in Pulaski county. And when such is the case, the rule is that the latter act repeals the former. Sedg-wick on Stat. 125.

In this case, therefore, it'necessarily follows that the declaring of the act of 21st of January, 1861, in force, was by necessary implication a repeal of the act of 18th November, 1861.

In support of this conclusion we have a decision of the supreme court of the state of Maine, where the same question arose under circumstances not unlike those in the case under consideration. In that case, it was argued by counsel that the statute was not repealed, because a subsequent statute did not expressly repeal it — because the second statute contained nothing repugnant to it — because the act which separated Maine from. Massachusetts did not repeal it, and was not inconsistent with the situation of the new state. Miller, C. J., when considering this question, said: It is necessary to consider the reasons which occasioned the introduction of the before mentioned provisions into the act of separation.11 It was evidently designed to prevent the confusion consequent upon the suspension of law, and the injury which would thereby result to the community and individuals. It was for the purpose of giving time to the legislature of this state, to re-enact, modify or repeal those laws as, on consideration, they should determine most for the interest, and best adapted to the interest of the state,” and held, that where the legislature had revised the subject matter of any of the statutes of Massachusetts, and enacted such provisions as they deemed suitable to the wants of the people of the state, the former statutes are to be considered as no longer in force, though not expressly repealed. Towle vs. Manett, 3 Greenleaf Rep., 22.

So, too, where some parts of a revised statute are omitted in the revising act, the parts omitted are not to be deemed as revived by construction, but are to be considered as annulled. Smith's Qom. on Stat. and Oo?is. Law, 903. A subsequent statute revising the whole subject matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on principles of law, as well a3 on reason and common sense, operate to repeal the former.' Id-, 904, Goodnow vs. Buttrech, 7 Mass., 142; Bartlett vs. King, 12 Mass., 545.

After a careful consideration of this ordinance, taken in connection with the other acts of the convention, we thing it falls within the spirit of the rule laid down in the cases above referred to, and that it was evidently the intention of the convention to declare the laws of the state which were in force on the 4th of March, 1861, a code of laws to be in force in the state to the exclusion of all other laws, which laws so in force on the 4th of March, 1861, were to take effect and be in force from and after 'the adoption of the constitution of January, 1864, which was adopted by the people of the state to whom it was submitted for ratification and approval on the 16th dáy of March, 1864; from which time all''Jother laws were, by necessary implication, repealed.

The acts of the legislature of Arkansas passed after the 4th of March, 1861, not in conflict with the constitution of the United States, nor of the state of Arkansas, were valid; and acts done under them whilst in force and rights acquired, remained valid and effectual, as if no such repeal had been made. Smith says that, the rule that vested civil rights, acquired under law, are not affected by a repeal, is founded in good sense and reason, and is consistent with the fundamental principles of natural justice.” Com. on Stat., 881; North Canal Street Road, 10 Waits, 351; Illinois & Michigan Carnal vs. City of Chicago, 14 Ill. Rep. 337.

There is nothing in the case of Hawkins vs. Filkvns, which in any manner conflicts with the conclusions at which we have arrived. The question considered in that case was whether there existed a state government after the ordinance of secession, under which the several departments of the state government remained, competent to make and execute the laws within the state, and it was held that such government did exist, and that the administration of the state government under it was valid except when in conflict with the constitution and laws of the United States: that the convention that framed the constitution of 1864, had not the power to declare void ah initio, the acts of the convention of 1861, and the entire action of the state government under it; and that upon a fair construction of the ordinance, the convention had not intended to do more than to declare the action of the convention of 1861, and of the state government under it, void so far only as such action was in conflict with the constitution and laws of the United States. The question as to whether the convention of 1864, had power to repeal the acts of the legislature, whether before or after the passage of the ordinance of secession was not before the court in Hawkins vs. Filkins. In that case, the j udg-menf, the validity of which was under consideration, was renderd in September, 1861, and before the act of November, 1861, which changed the times of holding the circuit court of Pulaski county, had passed, and consequently no question as to the effect of that law could have been considered.

Looking into the record in the case before us, we find that the court that tried the case of The State vs. Osborn, was held at the regular term of the court, appointed for the holding of said court under the act of the 21st of January, 1861, which act was, by the ordinance of the convention of 1864, declared to be in force; and consequently, that the judgments and decisions of said court within its proper jurisdiction were valid.

The motion for perpetual supersedeas is denied.


author: Mr. Chief Justice Waleer

text:
    Matthews vs. The State.
    Whore an offence and on exception to it are contained in the same clause of the statute, an indictment must charge that the defendant is not'within the exception; otherwise, where the exception is in a subsequent clause or statute. (5 Eng. 301.) J

      Appeal from Columbia Cwouit Court.

    Hon. John T. Bearden, Circuit Judge.
    Garland, for appellant.
    Jordan, Attorney General, contra.
   Mr. Chief Justice Waleer

delivered the opinion of the court.

The defendant was indicted in the Columbia circuit court, tried and convicted of larceny. A motion was made in arrest of judgment which was overruled, and the defendant appealed to this court.

The indictment charges the defendant with having stolen a hog, and the objection to its sufficiency is, that it does aver that the hog was either under twelve months old, or was marked.

It is true that hogs and cattle over one year old, running in the woods unmarked or branded, if taken by one not the owner, such taking is not larceny, but this is a separate and distinct act from that which declares the offence of larceny, and fixes its punishment; and when such is the case-, it is not necessary when charging the offence, to notice this exception or qualification. It is only when the exception is found in the enacting clause, that it becomes necessary to show by averment that the offence does not fall within the exception. Such was held to be the law in the case of Brittin vs. The State, 5 Eng., 301, and upon the authority of that case, we will hold the indictment in this case good.

Let the judgment of the Columbia circuit court be affirmed.


author: Mr. Justice ComptoN

text:
    Belding vs. Godwin, ad.
    The only point insisted on in this case was decided in Hawkins vs. Filkins, ante.

      Appeal from Chicot Circuit Court;

    Hon. ¥m. M. IíÁRRisoN, Circuit Judge. •
    Gaki.aND, White & Nash, for appellant.
   Mr. Justice ComptoN

delivered the opinion of the court.

At the January term, 1866, of the probate court of Chicot county, Albert Belding, a creditor of the estate of W. T. Ferguson, deceased, moved the court to declare void letters of administration which had been theretofore granted to Allen Godwin, on said estate, and to order citation to such persons as had the prior right to administer, to appear and apply for letters, and in the event they should not, that letters be granted to him as creditor as aforesaid.

The grounds of the motion are, first: that the letters to Godwin were granted by the court after the passage of the ordinance of secession, and before the state government establised in 1864, went into operation; and second: that no administration bond, etc., appeared oí record.

The probate court overruled the motion, and it appearing that there was reason to believe that an administration bond had been filed and mislaid, the court ordered Godwin to enter into bond nunc pro tunc, and proceed with the administration. From this decision Belding appealed to the circuit court, where, on due consideration of the points excepted to, the judgment of the probate court was affirmed. The case now comes before this court and the only point insisted on in the argument here is the same as that determined in Hawkins vs. Filkins, at the present term. The principle decided in that case is the law of this. Let the judgment be in all things affirmed.


text:
    Bennett, ad. vs. Worthington.
    The correct rule of construction of statutes is, that where the will of the legislature is clearly expressed, the courts should adhere to the literal expression of the enactment, without regard to consequences; and eyery construction derived from a consideration of its reason and spirit should be discarded.
    Where no exception is made in a statute of limitations, the courts can make none, whatever may be the hardship in individual cases; and so, the closing of the courts in time of civil war, not being a ease excepted from the operation of the act of limitations, that fact is no answer to the plea.
    By virtue of an act of the legislature, approved December 1st, 1862, suspending all acts of limitation and non-claim from the date of its approval, the statute of limitation was suspended until the 16th of March, 1864, when that act was repealed by the adoption of the present constitution — so, the intervening time is not to be computed in determining the period of limitation, when properly pleaded.

      Appeal from Ohieot Circuit Court.

    Hon. W. M. HaRRIsoN, Circuit Judge.
    (xARLAND & Nash, for appellant.
    We submit the following propositions:
    Statutes of limitations admit of an equitable as well as legal construction. Smith’s Com., 710, 814 et seg.] 18 Wend., 131.
    They are regarded as statutes of repose and presuppose a state of peace and access to'legally constituted tribunals. Angelí on Lim. 9 et seg.\ 5 Peters, 470; 1 Peters, 360.
    In times of war and civil tumult when the. courts are closed, our civil rights are merely held in abeyance without injury till the return of law and good government: et silei leges inter arma. 2 Co. Inst, {first Amer. Pd.) Plowden’s Hep. 9, 6; Angelí on Lim., sec. 488; 1 John. Cas., 76; Mcloer vs. Pagan, 2 Wheat.

    There were no legally constituted courts held in the state of Arkansas from the time of secession till the reorganization of the state under the federal government.
    The thirty-second section of our limitation act is broader and more comprehensive than the provision “ beyond seas,” in ¿21 James 1st., and the case at bar comes within its letter, spirit and reason.
    If there is any doubt about the construction of a statute, such a construction should be placed upon it as will result in the least injury to persons affected by it.
    SuttoN, for the appellee.
   Mr. Justice ComptoN

delivered the opinion of the court.

This was an action of assumpsit brought, in the circuit court of Chicot county, by Caleb P. Bennett as administrator of the estate of John H. Steed, deceased, against Elisha Worthington, on two promissory notes, due and payable, the one, on the 22d day of March, 1860, and the other on the 21st day of January, 1861. The defendant pleaded the statute of limitations, and the plaintiff replied' that, after the accrual of the cause of action, to-wit: from October, 1861, to October, 1865, the said circuit court of Chicot county was closed, in consequence of the existence of the late civil war, so that legal process could not be issued, and that he brought his said action within five years next after said court was opened. To this replication a demurrer was sustained in the court below, and the plaintiff saying nothing, further, final judgment was rendered, from which he has prosecuted an appeal to this court.

It is provided by section 16 of the statute of limitations pleaded in this case, that if any person entitled to bring an action, in this or any other act of limitations now in force, specified, shall at the time of the accrual of the cause of action, be under twenty-one years of age, or insane, or a married woman, or imprisoned beyond the limits of the state, such person shall be at liberty to bring such action within the time now specified by law for bringing the same after such disability shall have been removed. And it is insisted that, although the plaintiff does not come within the letter of any of the before-mentioned exceptions, yet, inasmuch as there was no court in which he could assent his right, for the space of time mentioned in the replication, it ought to be held, upon principles of equitable construction, that the act of limitations did not run during that period. No case has ever come before the American courts, upon a state of facts like that here presented; because, at no time, from the formation of the government until the recent unhappy political differences, was our country afflicted with the calamities of civil strife. But when we turn to the mother country, from whence the • common law is derived, and whose people have been often involved in domestic war, precedents in point are not wanting.

The earliest English case is that of Prideaux vs. Webber, 1 Lev., 31, decided in the court of King’s Bench, 13 Gar., 2, in which it was held that, though the government was usurped, and the courts closed, the running of the statute of limitations was not affected; and the reason assigned was, that the statute contained no such exception, and that infants would have been bound thereby had they not been excepted from the operation of the act. So in Lee vs. Rogers, 1 Lev., 111, it is said that in a suit by Brenion vs. Evelyn, in the common pleas, it was adjudged that the closing of the courts in consequence of civil war, could not defeat the statute of limitations, it not being a case excepted from its operation. The next case is Hall vs. Wyburn, 2 Salk, 420, in which it is laid down that, in Bynton's case, it was held by BbidgmAN, C. J., that though the courts were shut so that no suit could be brought, yet the statute would bar the action; because as is there said, the' statute is general and must affect all cases, which are not specially exempted. And this decision, it was said in the subsequent case of Aubry vs. Fortescue, 10 Mod., 206; was often approved by Lord Chief Justice Holt. In Beckford et al. vs. Wade, 17 Ves., 87, The Master of the Rolls (Sir William GeANT,) in discussing the exceptions in the statute of limitations, or possessory law of Jamaica, refers to and recognizes these earlier English decisions; and adverting to tbe case of defendants absent, or out of the realm before the statute of Queen Anne, he said: “ It was in vain to attempt upon general reasoning in many cases to introduce an exception in favor of a plaintiff in a case, where the defendant was out of the realm: a most reasonable exception undoubtedly to be made, but which the statute had not made. A plaintiff out of the realm, may prosecute a suit by attorney; but when defendant is out of the realm, it is very hard to call upon the plaintiff to institute a suit, which in most cases must be wholly without fruit; yet, until the statute of Queen Anne was made, that case formed no exception, and the statute of limitations barred the action.” And he laid down the rule in such cases to be that general words in a statute must receive a general construction, unless there is in the statute itself some ground for restraining their meaning, and that to arbitrarily add to or take from that which is expressed in the statute, under the doctrine of inherent equity, is not allowable.

In Rhodes vs. Smethurst, 6 Mees. & Welb., 351, decided in the Exchequer Chamber, in 1840, the action was upon a promissory note, and the defendant pleaded the statute of limitation. Six years was the statutory bar, and the plaintiff replied that the cause of action accrued within six years before the death of the maker of the note, and that in consequence of litigation in the ecclesiastical courts, no administration was granted until the 18th June, 1885; that he commenced his action on the 12th of September following; and that the periods which elapsed between the accrual of the cause of action, and the death of the maker of the note, and between the grant-of administration to the defendant and the commencement of the suit, did not together amount to six years. There being no exception in the statute applicable to such case, the court held that the statute having begun to run continued to do so, notwithstanding that from the death of the maker of the note until administration granted, there was no one whom the plaintiff could sue. It was argued in that case, as it has been in this, that as no laches could be imputed to the plaintiff, tbe period of time during which there was no person to sue, ought to be excluded from the calculation, by an equitable extension of the act. “This argument,” said Lord Chief Justice DenMAN, who delivered the opinion of the court, “might be entitled to soráe weight, if the cause in question had for its object the remedying of some inconvenience under which plaintiffs suffered, in which case it might be extended by construction to reach a case not within the words, but within the mischief intended to be remedied. But the object of the statute is quite different; it was passed for the benefit of defendants, to exempt them from being called to account in respect of transactions long gone by, which it might not be easy to explain at a distance of time.” And in further response to the argument, he said: “The case of Pridemm vs. Webber, 1 Lev., 31, in which the statute was held to run, though the courts of law were shut in consequence of the rebellion, shows that this clause of the act is to be construed strictly against plaintiffs,” and that the act of 1 Will. & M., c. 4, by which it was enacted that the space of time from the abdication of James II, to the accession of William and Ma/ry, “ should not be accounted any part of the time within which any person, by virtue of the statute of limitations, must bring his action, is in accordance with this view of the law.”

These authorities and others that might be cited abundantly show how the law has been settled iu England touching acts of limitation, essentially the same as our own in regard to the particular provision under consideration; and it will be found, on examination, that the principles on which the English decisions rest, have been fully recognized and adopted in the American courts. Thus, in Sacia vs. DeGraff, 1 Cow., 356; which was on a promissory note, the plaintiff, to take the claim out of the statute of limitation, relied on a discharge of the defendant, under an act passed by the legislature of New York for the benefit of insolvent debtors. The discharge was obtained before the note fell due, and consequently before the statute began to run. Afterward, and before suit brought, the insolvent debtor’s law was declared unconstitutional by the supreme court of the United States; and it was contended in argument that the case was. clearly within the equity of that provision of the statute which prevents its running where there is an incapacity to sue; because, until the insolvent law was declared a nullity, the courts were practically closed against the plaintiff, and his power to sue suspended. But Savage, C. J., in delivering the opinion of the court, said: By the 2d proviso to the 5 th section of the act of limitations, excuses for disability in the plaintiff, are confined to infancy, coveture, insanity and imprisonment. The only excuse allowed by the statute, arising from the act of the defendant, is his being out of the state when the cause of action accrued. Though the defendant’s virtual protection from prosecution by his discharge, produces the same result as his absence from the state, yet we are not warranted by any rule of construction, in deciding, that every cause which produces the same effect as the one mentioned in the act, comes within it. It is true, that the reason why the absence of the defendant from the state excuses the plaintiff from prosecuting, is, that the defendant is beyond the reach of the process of the court: and the defendant’s discharge placed him equally out of the reach of any recovery against him, until the decision by the supreme court of the United States, in Sturgis vs. Crowingshield. But it is not for the court to extend the law to all cases, coming within the reason of it, so long as they are not within the letter. Several cases of equal difficulty may be supposed, and have doubtless often occurred, which have never been holden within the exceptions of the statutes.” In Hudson vs. Carey, 11 Serg. & R., 10, the same question came before the supreme court of Pennsylvania, upon an insolvent law of that state, which had been declared unconstitutional by the supreme court of the United States, and a like conclusion was reached. — Ttlghman, C.' «T., remarking that to stop the running of the statute, under such circumstances, would be an assumption of legislative power. And Chancellor Kent, in Demorest vs. Wynkoop, 3 John. Ch. Rep., 146, said that it would be not only impolitic, but contrary to established rule, both in law and equity, to "depart from the plain meaning and literal expression of the statute.

The same principle was discussed and applied in McIver vs. Ragan, 2 Wheat., 24. There, the plaintiff claimed under a grant from the state of North Carolina 40,000 acres of land, including the land in the possession of the defendant, and for which the ejectment was brought. The defendant had been in possession more than seven years — the term of limitation prescribed by the law of Tennessee — and the plaintiff in order to avoid the statutory bar showed that a large portion of the 40,000 acre tract lay within the Indian boundary, though that which was held by the defendant did not; that no corner or course of the tract was marked, except the place of beginning, and therefore, without a survey, it was impossible to prove that it included the land in dispute. But no survey could be made, because the laws of the United States prohibited the surveying or marking any lands within the Indian country reserved for the Indians, by treaty. Upon this state of facts, the supreme court of the United States held that the plain, tiffs were barred. In answer to the argument, that the plaintiffs, though not within the letter, were within the equity of the exceptions mentioned in the act of limitations, the court said that the claim of the plaintiffs to be excepted from the operation of the act was founded on the impediments to the assertion of their own title, and that whenever the situation of a- party was such as, in the opinion of the legislature, to furnish a motive for excepting him from the operation of the law, the legislature has made the exception: and that it would be going far for the court to add to those exceptions. “ It has never been determined,” said Mae-shatjL, C. J., who delivered the opinion of the court, “ that the impossibility of bringing a case to a successful issue, from causes of uncertain duration, though created by the legislature, shall take such case out of the operation of the act of limitations unless the legislature shall so declare its will.” In the State Bank vs. Morris et al. 13 Ark., 291, this court said: 4 The statute which creates the limitation, must also create the exception: we know of no law or decision to the contrary.” And in Pryor et al. vs. Ryburn, 16 Ark., 671, this principle was applied to the limitation act concerning slaves, in which there was no saving in favor of any class of persons, and the court held that where the legislature makes no exception in favor of infants, married women, etc., the courts can make none.

The correct rule, as we apprehend, to be extracted from the authorities, is, that where the will of the legislature is clearly expressed, the courts should adhere to the literal expression of the enactment, without regard to consequences, and that every construction derived from a consideration of its reason and spirit should be discarded. This rule is well established by the American as well as by the English decisions. In England it has been uniformly applied to cases growing out of the domestic wars of that country; and no good reason is perceived why it should not be applied here in like cases. To deny its application would be not only a violation of the rule, but would be, as we think, an assumption of legislative power; because it would be but supplying, by forced construction, a distinct exception which the legislature had omitted to make. The enactment was designed to be, and is, a statute of repose; and the courts, by adhering strictly to its plain letter, will best avoid those embarrassments, consequent itpon an unfortunate equitable construction, which, at one time, attended the interpretation of the statute, in the English courts, on the subject of new promises and acknowledgments, and rendered it practically useless in one of its leading provisions.

The conclusion is: that the closing of the courts in time of civil war, not being a case excepted from the operation of the act of limitations, the plaintiff’s replication was no answer to the defendant’s plea. The replication was also defective upon another ground: the supposed disability is alleged to have accrued after the accrual of the cause of action; and it is well settled, that when the statute has once begun to run, no subsequent disability will stop it. (Rhodes vs. Smethurst, supra; Angell on Lim. (2 Ed.) 206, and authorities there cited;) besides, in this state, it is expressly so enacted by section 31 oi the statute.

We are aware that cases of individual hardship may arise— indeed the same may be said of any system of jurisprudence that can be devised — but this furnishes no reason why a fixed rule of law should be disregarded. Hardships will be the less likely to occur, however, from the fact, that the legislature, at the session of 1862, passed an act suspending the collection of debts; and afterwards, at the same session, passed another act suspending the statute of limitations as to all debts, “ the collection of which is now suspended by law.” We have examined these acts, and the court is of opinion that, although the former act was declared unconstitutional by this court in Burt vs. Williams, the latter act operated, nevertheless as a suspension of the statute of limitations until repealed — or; in other words, that by force of the language employed, the.operation of the latter does not depend upon the validity of the former act. The legislature believed the collection of debts had been suspended, and acting on that belief, not only intended to, but did suspend the statute of limitations. That they were mistaken in their views of the law as to the validity of the former act is not material. By reference to the two enactments, in connection with the decision of this court, in Burt vs. Williams, it will be found that the latter act suspends all acts of limitations and non-claim from the date of its approval; the 1st December, 1862 — until it was repealed by the adoption of the present constitution — on the 16th day of March, 1864, as held in Osborn, ex parte, at the present term. So that the space of time from the 1st of December, 1862, to the 16th of March, 1864, is not to be' taken as any part of the time within which any person under the statute of limitations is required to bring his action.

Upon the pleadings in the case befpre the court, however, the act of December 1st, 1862, can avail the plaintiff nothing. It never having been published, he probably was not aware of its existence.

Let the judgment be affirmed.


author: Mr. Justice CleNDBNIN,

text:
    Blanks vs. Rector et al.
    An execution issued against an administrator on a judgment against Hie intestate, is irregular an.d void, whether the judgment bo against the intestate alone, or jointly with other defendants.
    Executions may be amended, in matters of form; and for clerical errors or omissions before sale; but not in matters of substance.

      Appeal from Pulaski Circuit Courrt.

    lion. Libeety Baetlett, Circuit Judge.
    Kioe, for the appellant.
    When there are more defendants than-one in a judgment, and one dies, that severs the judgment and no revivor is necessary against the survivors, Firm as ad. vs. Crabt/ree as admJr., 12 Ark., 597; and the judgment being severed, execution may be issued against the survivors. When one dies the judgment against the others is as distinct and several as if rendered against them alone originally. 2 Tidd’s Pr., 1009; 19 Wend., 644; 12 Ark., 394.
    The execution -in' this case is really only against the survivors. The name of Trigg’s ad., is but surplusage, but may be taken, as suggestion of his death: or the amendment ought to have been allowed. Thompson .vs. Brwniage, 14 Ark., 59.
    WateiNS & Bose, for the appellees.
    The execution was properly quashed since it could not run against a deceased person’s administrator. Bentley vs. Cummins, 4 Eng., 48; 18 Ark., 414; id., 421; 22 Ark., 573.
    After the death of one defendant there should have been a scire facias to revive. EJrwm vs. Dundas, 4 How., V. S., 73.

   Mr. Justice CleNDBNIN,

delivered the opinion of the court.

We learn from the record in this case, that on the 8th of November, 1860, the appellant recovered, in the circuit court, a judgment against John T. Trigg and Henry M. Hector: that execution was issued on said judgment and levied on personal property; and that Trigg and Hector, on the 12th of April, 1861, executed and delivered to the sheriff a delivery bond for the delivery of the property on the 6th of May, 1861, with the appellees, Peay and Erown, as their securities; that the property was not delivered, the execution was returned unsatisfied and the delivery bond forfeited. That on the 24th of August, 1866, an execution was issued on the forfeited delivery bond, against Edmund Burgevin; administrator of Trigg, (the execution having recited the death of Trigg-and the appointment of Burgevin as administrator) Hector, Peay and Brown, which was levied on the property of appellees, Peay and Brown. At the return day of the execution, the defendants in the execution and appellees in this court presentéd their petition in the circuit court, setting out in full the foregoing statement, and also filed their motion to quash the said execution for the following reasons :

1st. That said execution is improperly issued against said . Burgevin as administrator of said Trigg.

2d. That the said execution was issued before there was any revivor of the said judgment.”

After the filing of the petition and motion, the appellant filed his motion to amend the execution, “ by striking out the name of Edmund Burgevin administrator, and by suggesting on the face of said writ the death of Trigg, said Trigg having died since said judgment was rendered.” Both motions, to quash and to amend, were heard at the same time. The court overruled the motion to amend, and sustained the motion to quash the execution; and the appellant excepted and appealed to this court. At the hearing of-these motions, it was admitted that Trigg had died after judgment, and before the execution was issued.

The first question in the consideration of this case, is as to the validity of the execution.

This execution was issued after the death of Trigg, against Burgevin as administrator of Trigg, Rector, Brown and Peay. The execution was clearly irregular. The law, we think, is well settled, that an execution issued and bearing teste after the death of the testator is irregular and void. 5 Eng., 541; 18 Ark., 414, 421; 22 Ark., 573; 1 Cowen, 740; 4 Howard, U. S. R., 76; and we think the law is equally applicable, where there is more than one defendant in the judgment.

In the case of Woodcock vs. Bennett, 1 Cowen., 740, in which a question similar to the one now before us, was argued, the court say: It is no answer to say that one of the defendants was living, who might avoid the execution, and has in fact, procured it to be set aside. The objection is, that the law forbade the issuing it, so as to affect the representatives of the deceased defendant.”

It is a settled rule that the execution as issued must be warranted by the judgment. 2 Tidd, 1029.

If the death of Trigg had been suggested of record, we think the execution could properly have issued against the surviving defendants in the judgment. 4 Howard, U. S. R., 76.

Another of the grounds assigned for error is that the court below overruled the appellant’s motion to amend the execution.

It has been decided by this court in the case of Thompson vs. Bremage, 14 Ark., 59, that executions may be amended in matters of form, and we have no doubt the same rule should apply as to clerical errors or omissions, before sale under the execution; but we can find no authority that sustains the position, that an execution can be amended in matters of substance. To have allowed the amendment asked for, the court 'would necessarily have had to enquire of facts outside of its own record; for it is not contended that the records of the circuit court showed that Burgevin as administrator of Trigg, was a party to the judgment, or that the death of Trigg had been suggested of record; consequently theré was no record of the circuit court to amend by; and therefore, the execution being illegally and improperly issued, the circuit court did not err it its judgment in quashing it.

The judgment of the circuit court is affirmed.