text:
    Kee vs. The State.
    Criminal Law : When wound the mediate came of death.

    Where A., with felonious intent inflicted a wound upon B., and within a year and a day death resulted, not from the wound immediately, but mediately, as from inflammation caused by the wound and occasioned by improper treatment on the part of the attendants: Held, That this may be murder in the first or second degree, or manslaughter, as the case may be.
    Evidence : As to character, limitation of.

    The defendant, on trial for a crime, is entitled to offer in defense, evidence as to his good character, and the only limitation by which the rule should be circumscribed is, that in each case the character sought to be proved should not be general, but such as would make it unlikely that the defendant would be guilty of the particular crime with which he is charged.
    New Trial : What not sufficient ground for.

    The fact that the jury, during a trial, in company with the sheriff, visited a saloon and took a glass of liquor each, though highly reprehensible, will not, of itself, be sufficient ground for granting a new trial, unless it appears that the defendant was prejudiced thereby.
    Same: What separation of jury not sufficient.

    Where the jury, while at dinner, were separated, part being in one room and part in another, but all remained under the immediate charge of an officer, this was not such separation as would authorize a new trial.
    APPEAL from Woodruff Circuit Court.
    Hon. W. C. Hazeldine, Circuit Judge.

      Clark & Williams, for appellant.
   Searle, J.

The appellant was tried upon an indictment for the murder of one Langley, in the Woodruff circuit court, at the September term thereof, 1872. The jury found him guilty of murder in the second degree, and he was sentenced to eleven years of hard labor in the state penitentiary.

In the progress of the trial divers exceptions were taken to the rulings of the court, upon evidence offered and upon instructions given to the jury as to the law of the case, all of which, after the verdict, were brought forward in a motion for a new trial. The motion for a new trial was overruled, to which appellant excepted, and filed his bill of exceptions, setting out all the evidence, the instructions given and refused by the court, and various other matters assigned as errors, and appealed to this court. The errors assigned as the foundation for a motion for a new trial are substantially as follows:

1. That the verdict of the jury was contrary to the law and the evidence.

2. That the court erroneously gave the instructions asked • to be given by the state, and refused to give those asked by the appellant.

3. That the court neglected legal and material testimony offered by the appellant.

4. That the jury were permitted to go to a drinking saloon, and drank spirituous liquors during their deliberations.

5. That the jury were permitted to separate during the trial.

The correctness of the verdict of the jury, and also of the instructions of the court, by which the jury were directed to the verdict in the trial of the cause below, rests in a great measure, if not entirely, upon the testimony which was before the jury. It is necessary, therefore, to look first to the testimony.

The wound which was received by the deceased was inflicted by the appellant on the 27th day of July, 1872, and death ensued on the 2d day of September, 1872.

Miller, witness for the prosecution, testified as follows: He was acquainted with the deceased and the prisoner; was in Augusta on the 27th of July, 1872, and saw both Kee and Langley, the evening of that day. He, with Langley and others, was in Gordon’s store, when Kee, with one White, came in. Kee asked Langley to walk into the back room with him, whereupon deceased, Kee and White went into the back room. After some little time, he, witness, heard quarreling between the prisoner and deceased in the back room ; heard the d — d lie given; did not know who gave it. He then went into the back room and saw the prisoner draw from his pocket an open pocket knife, with which he struck deceased. Deceased returning the blow, the prisoner struck him again. Before the prisoner struck the deceased, the latter stepped back two paces. After the prisoner struck deceased the second time, T. B. Gordon and John Hodges came in and separated the parties. The wound, which the prisoner inflicted upon the deceased, was upon his left side. Deceased told the prisoner that he was unwilling to fight, as he had been chilling for twelve months. Gordon and Hodges testified, substantially, the same as Miller. White testified as follows ; He saw prisoner and deceased on the 27th of July, 1872, first in Price’s drinking saloon; some words passed between them there; deceased was rough, and used insulting language toward the prisoner. He (witness) left the saloon with the prisoner. Some time after, with the prisoner, he went to Gordon’s store. While there, the deceased came up and remarked to the prisoner, “I want to see you.” Prisoner replied, “I don’t want any fuss with you, and if I have insulted you, I am willing to make apologies.” Prisoner, deceased and witness then went into the back room of Gordon’s store. • Prisoner said to deceased, “We are both drunk; let us go home, get sober and then meet on half-way ground and settle it.” Deceased replied, “No, here is as good place as any to settle it.” After some more quarreling, deceased called the prisoner ad — d liar, and struck him. Prisoner then struck deceased. He (witness) saw no knife in prisoner’s hand, but saw deceased pass his hand to his side and there saw blood.

Dr. Echols testified as follows: He was a practicing physician in the town of Augusta. On the 27th of July, 1872, deceased was brought to his office for treatment. On examination, he fouud that the deceased was wounded on the left side, across the seventh and eighth ribs. The wound was about six inches long and half an inch deep, and.perforated the intercostal muscle in two places. He did not consider the wound mortal. He, with the assistance of Dr. Brunson, dressed the wound. The patient remained in town two days, and then, contrary to his advice, was removed to Maj. Dent’s plantation, about seven miles from Augusta, in a common road wagon. The deceased remained under his professional charge from the time of the reception of the wound until his death. The wound commenced healing on first intention and symptoms were favorable for the first fourteen days. He ordered the wound to be kept covered with a cloth saturated with a carbolic acid wash. In his (witness’) opinion, his instructions were not properly observed, as on or about the 14th of August, on examination of the wound, he discovered maggots in it; and, in his opinion, if his instructions had been observed, it would have been impossible for maggots to have got into the wound. The presence of the maggots caused inflammation of the bowels, from or on account of which inflammation the patient died. Dr. Brunson, who assisted in dressing the wound, stated, that in his opinion the wound was not necessarily fatal.

Maj. Dent, to whose house deceased was removed, testified that the deceased was as well cared for as possible under the circumstances, it being August, and the weather being very hot. Pope, an attendant upon the deceased, testified that he followed the directions of the physician, Dr. Echols, to the best of his ability.

Upon this evidence, the appellant’s counsel asked the following instructions:

“ If the jury find that the wound inflicted by the defendant, on the deceased, was not of itself mortal, but through negligence or the want of proper treatment became so and terminated fatally, and that neglect or want of proper treatment was the immediate cause of the death of the deceased, and not the wound itself, they must acquit the defendant,” which was refused and in lieu thereof the following instructions, asked by the state’s counsel, were given:
“ If the jury believe from the evidence that Langley within the space of a year and a day, from the infliction of the wound, died from some disease or disorder produced by said wound, inflicted by the voluntary act of the defendant, when not in danger of life or limb from Langley, then they will find the defendant guilty as charged.
“ If the jury believe from the evidence that the defendant willfully and unlawfully inflicted upon Langley, a mortal or dangerous wound, and from that wound and other aggravating causes, operating upon or caused by said wound, Langley died, they should find the defendant guilty ; and the defendant cannot, under the law, shelter himself by a plea of erroneous treatment of said Langley, either from his physcians or his nursesand to the refusal to give the first and to the giving of the last two instructions, the appellant excepted.

It is contetided by the appellant’s counsel, that the deceased came to his death by inflammation of the bowels; that the death had no relation to the wound, except that of sequence” (as to time, we presume they mean), and that the inflammation which caused the death was not the effect of the wound either, but of the maggots, and that the maggots were not the effect of the wound, but of the negligence on the part of the nurses, in not obeying the instructions of the physicians. They insist, therefore, that the death had no connection with the wound as the effect thereof, mediately or immediately. They, consequently, argue that the verdict of the jury was without evidence to support it, as to the fact that the wound was the mediate or immediate cause of the death, which fact the jury must have found as the foundation of their verdict; and that the instructions of the court, upon the state of facts presented by the testimony, were erroneous and tended to misdirect the jury to their erroneous finding and verdict.

The following are, we think, the correct rules or doctrines in relation'to-the questions presented by the exceptions which we are considering. The evidence must connect the death with the blow charged. Wharton’s American Criminal Law, 1064. “ The general rule (to use the language of Mr. Bishop in his Treatise on Criminal Law), both of law and reason, is, that whenever a man contributes to a particular result, brought about, either by sole volition of another, or by such volition added to-his own, he is to be held responsible for the result, the same as if his own unaided hand had produced it. The contribution, however, must be of such magnitude and so near the result that sustaining to it the relation of cause and effect, the law takes it within its cognizance. Now, these propositions conduct us to the doctrine, that whenever a blow is inflicted under circumstances to render the party inflicting it criminally responsible, if death follows, he will be holden for murder or manslaughter, though the person beaten would have died from other causes, or would not have died from this one, had not others operated with it; provided, that the blow really contributed mediately or immediately to the death as it actually took place in a degree sufficient for the law’s notice.” Bishop on Criminal Law, sec. 653. See, also, 2 "Whart. Am. Grim. Law, sec. 911. This, we think, is the correct doctrine expressed in very general terms, as gathered from numerous cases cited by Mr. Bishop and Mr. Wharton.

It is said in Rex v. Rew, J. Kel., 26, “ That Edward Eew was indicted for killing Nathaniel Eew, his brother, and upon the evidence, it was resolved, that if one gives wounds to another who neglects to cure them, or is disorderly, and doth not keep that rule which a person wounded should do, yet, if he die, it is murder or manslaughter according as the case is, * * because, if the wound had not been, the man had not died; and, therefore, neglect or disorder in the person who receives the wounds shall not excuse the person who gave them.” And Lord Hale says : “If a man receives a wound which is not in itself mortal, but either for want of helpful appliances ■ or neglect thereof, it turns to a gangrene or fever, and the gangrene or fever be the immediate cause of his death, yet this is murder or manslaughter in him that gave the stroke or wound; for the wound, though it were not the immediate cause of his death, yet it were the mediate cause thereof, and the fever or gangrene were the immediate cause of his death, yet the wound was the cause of the gangrene or fever, and so, consequently, is causa causati 1 Hale’s Pl. C., 428. See, also, Cam v. Hackett, 2 Allen (Mass.), 136; The State v. Scott, 12 La. (An.), 274; and McAllister v. The State, 17 Ala., 439. In the latter case, Dargan, C. J., speaking for the court, said: “ If the death be owing truly to the wound, it signifies not that the deceased would have recovered under more favorable circumstances or with moré prudent care; the death being the result of the wound, the party inflicting it must be held responsible for it.” But on the other hand it has been said, “ If the wound or hurt be not mortal, but with ill appliances of the party or those about him, of unwholesome salve or medicines, the party dies, if it clearly appear that this medicine, and not the wound, was the cause of his death, it seems it is not homicide (murder or manslaughter); but then that must appear clearly and certainly not to be so.” 1 Hale’s Plk. C., 428. Likewise, by more recent authorities, that when the wound was not of itself mortal, the party died solely" of the improper treatment and not at all of the wound, the result is otherwise,” that is, murder or manslaughter has not been committed. 3 Grreenl. Ev., sec. 139; Rey v. Connor, 2 Cor. & K., 518; Parsons v. The State, 21 Ala., 300.

But Mr. Bishop says that this doctrine “ is practically dangerous ; because, in law, if the person dies by the action of the wound, and by the medical or surgical action jointly, the wound must clearly be regarded sufficiently a cause of the death. And the wound need not even be a concurrent cause, much less need it be the next proximate one; for if it is the cause of the cause, no moréis required.” 2 Bish. Crim. Law, sec. 654; see also Com. v. McPike, 3 Cush. 181; Rex v. Minnock, 1 Crawf. and Dix C. C., 45. The doctrine as enunciated and illustrated by the authorities above quoted and cited, has its foundation in a wise and sound policy, and to uphold the reverse of it, or any other, would be to establish a most dangerous precedent, and one which would work the acquittal of the offender in every case where the wound superinduced other disease of which the victim died. In the case under consideration, so far as the wounding of the deceased, his treatment by removal from Augusta to/Dent’s plantation, and the nature of the wound are concerned, the evidence is not conflicting. As to the treatment of the wound, the evidence' is conflicting; the physician testifying that his directions were not followed by the nurses, and the nurses testifying to the contrary. But we apprehend that this has but little to do with the law of the case ; it was a matter which was exclusively within the province of the jury to consider and determine. By a process of very refined reasoning, tbe appellant’s counsel endeavored to show that there was no such relation between the death of the deceased and the wound by which it could be predicated that the former was in any sense the effect of the latter, or in other words, that the wound was the cause of the death, either immediately or mediately. We are free to confess, that we cannot see the force of this reasoning. Grant that the wound “ was not necessarily fatal,” as testified to by Dr. Brunson; grant also that the nurses were negligent in their care of the deceased, and that the maggots would not have appeared, had the physician’s instructions been observed, still it cannot be doubted that the wound was the efficient cause of the maggots, and the negligence of the nurses was merely the occasion of their appearance. Nor can it be doubted that the wound itself, and the maggots thus caused and occasioned were conjointly the efficient causes of the inflammation which resulted in death. This then clearly comes within the doctrine laid down by Mr. Bishop and supported by Lord Hale, and nearly all the authorities, that the wound need not even be a concurrent cause, much less need it be the next proximate one ; for if it be causa causad, no more is required to constitute the offense.

The fact then that the deceased was removed in a rough manner, and that the nurses failed or neglected to carry out the instructions of the physician (if this were true), and which may have aggravated the wound, ought not to mitigate the crime of the appellant, whose malice in the infliction of the wound caused the death. To do that, it must plainly appear that the death was caused neither immediately nor mediately by the wound, but only and entirely by the improper treatment from persons other than the appellant.

The position assumed by the counsel, namely, that the State adduced no testimony to show that in point of fact the deceased died from the effect of the wound immediately or mediately, is untenable. The State proved that the appellant, cut deceased, that inflammation resulted from the wound inflicted (occasioned by improper treatment, it may be, but this is unnatural), and from which deceased died. By the light of the above authorities and in view of the facts of the case, we are of opinion that the court did not err in relation to the above instructions. The jury were the .sole judges of the facts, and their verdict is in accordance with the weight of the evidence. The jury found that the deceased came to his death at the hands of the appellant, and that the killing was felonious. The verdict, therefore, was not inconsistent with the law and evidence, and so far as these exceptions are concerned, the court did not err in refusing to grant a new trial.

The third assignment of error in the motion for a new trial, will next be considered. The appellant, after the State had closed her evidence, offered testimony to prove that he had the reputation among his neighbors of a quiet and peaceable citizen. This testimony was refused and the appellant excepted.

That a person, upon trial for a crime charged against him, has a right to offer, in his defense, testimony of his good character, we can have no doubt. This is and ought to be the general rule; with one limitation, however, as laid down by the authorities, namely, that “in such case the character sought to be proved must not be general, but such as would make it unlikely that the defendant would be guilty of the particular crime with which he is charged.” Whart. Am. Crim. Law, sec. 636; 1 Bish. Crim. Pra., sec. 489; 1 Greenl., sec. 55.

^VYith this limitation, such testimony should be allowed to go to the jury in every case, whether it be regarded by the court as a plain or a doubtful one, and be considered by them in connection with all the other facts and circumstances; and if the case happen to be á plain one, and from the facts of the crime charged they believe the accused to be guilty, they must so find, notwithstanding his good character. 1 Greenl. Ev., sec. 55; 3 id., sec. 25; 1 Bish. Crim. Pr., sec. 489; 1 Whart. Am. Crim. Law, 636; State v. Henry, 5 Jones, 67; Carroll v. State, 3 Humph., 315.

It is urged by the counsel for the state, that, notwithstanding the general rule, this exclusion of evidence was not error in this case, because the proof of the cutting was conclusive, and proof of appellant’s good character ought not to be let in to coniroyert such proof. It is true, that if this testimony had been let in, it could have had no weight in controverting the fact of the cutting, even had it been favorable to the appellant; and were this the object of this testimony, we might well conclude that the exclusion of it resulted in no prejudice to the appellant. But this was not the object of it. It was evidently intended, by this testimony, to rebut the presumption of malice on the part of the appellant. It was certainly admissible for this purpose. The prisoner and the deceased had been quarreling about half an hour before the wound was given; they had been quarreling near and at the time the wound was given, and the wound was inflicted with a poclcet knife. Such testimony was, therefore, very properly admissible to show a want of malice, at least to show a want of malice sufficient for murder. It should have been admitted, but-with such instructions on the part of the court as to the character of such evidence as would guard the jury from being misled by it or giving it too much weight.

The exclusion of this testimony was, therefore, a gross error.

The fourth reason for the motion for a new trial is, that the jury were permitted to go into a drinking saloon and drink spirituous liquors during their deliberations. This is supported by affidavits, from which it appears that the jury visited a drinking saloon during their deliberations in the case, where they, or most of them, took a drink of spirituous liquor, the sheriff being with them and paying for the drinks. It does not appear that in consequence of this, the prisoner did not receive a “fair and impartial trial,” and therefore it furnishes no valid reason for a new trial. This conduct, nevertheless, was very reprehensible on the part of the jurymen guilty of it, and especially on the part of the sheriff; and they should have bxii severely punished by the court.

The fifth reason for a motion for a new trial is, that the jury were permitted to Separate during the trial. This, also, is supported by affidavits, from which it appears that on several occasions when the jury were taking refreshments at the hotel, two of them, being colored men, were accommodated apart and in a different room from the others; but they were all under the charge of an office!’. This was in no respect such a separation as provided against by the law, and no prejudice could be presumed to have resulted to the appellant thereby.

For the single error we have pointed out, which relates to the exclusion of evidence of good character, we must reverse the judgment of the court below, and the cause must be remanded for another trial.


source: Caselaw Access Project

author: Gregg, J.

license: Public Domain

text:
    De Yampert et al. vs. Brown & Johnson.
    Mortgages : What not extinguishment of, etc.

    Where a mortgage is given to secure the payment of the purchase money, and subsequently a draft is given for the amount and dishonored, this is not an extinguishment of the mortgage, but only a mode of payment, and if the holder uses due diligence and cannot collect, he may resort to his mortgage.

      Vendor's Lien : When, not enforcible without actual notice.

    Where the husband executed a mortgage of lands, where in reality the title to the same was in the wife: Held, that the record of such mortgage was only notice that the husband had so executed it, and a purchaser from the wife would not, by this record, be affected with notice that the lands were not paid for, and if an absolute deed was made, a vendor’s lien could not be enforced against those holding under her without actual notice.
    APPEAL from Ashley Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      Norman and Murphy, for appellants.

      Johnston & Hawhins, for appellees.
   Gregg, J.

On the 5th of May, 1868, the appellees com-

menced their suit in equity against the appellants, and the widow and heir of Platery T. Harris, to foreclose a mortgage executed by said Harris to them, upon certain lands in Ashley -county.

They alleged that on the 16th of April, 1856, they sold the lands to P. T. Harris for $1,600, to be paid in installments, with interest, to-wit: $800 the 15th of January, 1859, and a like sum one year thereafter, to secure which said Harris executed to them his deed of mortgage on the same lands, which, •deed was duly recorded on the 3d of May, 1856. That in March, 1861, $1,272.09 'remained due, and that said Harris made and delivered to them a draft in the name of Mary Harris on Bender & Hubbard for that sum, payable eleven months after date. That the draft was duly presented and protested, and said Harrises notified, etc., and that sum and interest and cost of protest are still due and unpaid.

That after the execution and recording of said mortgage, P. T. Harris and Mary, his wife, conveyed the lands to John L. Q. C. De Yampert, the father of the appellants, who is now dead, and P. T. Harris died, leaving Mary, his widow, and the •other defendants, his heirs, surviving.

They exhibited the deed of mortgage, draft and protest, and prayed for a judgment and that the lands be sold, etc.

The complaint was taken as confessed against all the defendants but Wm. B. and John L. De Yampert. They answered and denied that appellees sold the lands to P. T. Harris, and averred he was insolvent, and that the lands were sold to his wife, Mary, who had a large separate estate. They admit T. Harris executed the mortgage, but aver that the appellees must have known that P. T. Harris had no title to the lands, and that the mortgage was valueless. They admit the giving the draft. They deny that P. T. Harris and wife conveyed the lands to their father, and aver that said Mary alone sold and conveyed to him, and that he, in 1864, sold and conveyed the same to appellant, William B. They admit the death of P. T. Harris, that his legal representatives are properly before the court, etc., and they insist, as a defense, on over ten years peaceable, adverse, and quiet possession, and pray to-be dismissed, etc.

The appellant, John L., disclaimed any title or interest in the matters in controversy, and prayed to be discharged.

Upon the hearing, the bill, exhibits, and answers were readr and defendents then proved by Norman that in 1860, P. T. Harris was insolvent; that his wife owned property. Files-testified that he had known P. T. Harris since 1858; that he owned no property; that he acted as his wife’s agent. Moore testified that Harris, with his wife’s consent, had executed notes as her agent, and that he had owned no property since 1860.

This was all the proof offered.

P. T. Harris’ solvency was not put in issue, and the testimony, of these witnesses certainly could not have established any material fact in issue.

The finding and decree, therefore, must rest upon the bill,, exhibits and answers.

The case shows a want of labor and attention not to be expected of attorneys in a matter of its importance. The bill alleges ownership in the appellees and a conveyance by them to P. T. Harris, but makes no exhibit of title in either, and when the ownership of Harris is denied, they offer no proof whatever of his title which was the basis of his right to mortgage to them.

The De Yamperts deny P. T. Harris’ title, and aver title in their father, by conveyance from appellees to Mary Harris, and from her to him.

Neither party exhibits title. They produce no deed or transcript of the‘record of such, nor do they render any excuse for not doing so, and neither make or attempt to make proof of title which might have made the case clear, and it seems could hardly have been difficult to either party, if such parties’ allegations and averments were true.

The mortgage, being recorded, was sufficient notice to all that P. T. Harris had so executed it. But if Mary Harris held the title, a purchaser from her would not, by this record, be affected with notice that the lands were not paid for, and if an absolute deed was made, a vendor’s lien could not be enforced against those holding under her without actual notice, which does not appear in this case.

The appellants asked the court to declare two propositions of law; if not abstract, the one was correct, the other not.

The acceptance of a draft, which was afterwards dishonored, upon which to collect the amount due, was not an extinguishment of the mortgage. This was a mode of payment, and if the holders used due diligence and could not collect, they might resort to their mortgage.

The length of time William B. De Yampert and his assign- or had been in possession did not determine the period of limitation. The statute could only run against the appellees from the maturity oE their cause of action, and not from the time appellants took possession of the lands.

The decree is not made up with skill or accuracy. It gives the appellees j udgment, but does not declare of whom they shall recover, nor is there any specific decree for costs.

The decree is for the sale of the land absolutely, whereas the owners of the fee in possession should be allowed day in which to pay off the incumbrance, in default of which the lien should be enforced by sale.

John L. De Yampert disclaimed all interest in the matters in controversy, and without any decree being rendered against him, he excepts to the rulings of the court, and joins in an appeal to this court.

Upon the submission of this case the court below would have acted judiciously, to have ordered it reopened for further allegations and proofs, but if required to rule upon the records as they are, we incline to the opinion that the finding and decree should have been, dismissing John L. De Yam-pert and in favor of William B. De Yampert, etc.

The appellees allege title in P. T. Harris, without which title their mortgage was not valid. The appellants, in their answer, denied that title, and averred title in another, which they did not attempt to maintain by proof ; nevertheless they were entitled to the benefit of their denial, and that threw the burden of proof upon the complainants, and as they offered none, they could not recover.

The decree is reversed — the cause remanded with directions to allow the parties to amend their pleading and take further proofs, if they desire so to do, and to proceed according to law to a final hearing and decree.

It is ordered that one-half of. the costs of this appeal be paid by the appellees and the other by John L. De Yampert, who improperly appealed to this court.


author: English, Sp. J.

text:
    Holland and wife vs. Burris.
    Parties : Who necessm'y, etc.

    All persons interested in the subject matter of a suit should be made parties plaintiff or defendant, and where a party so interested is brought upon the record, and a decree rendered against him without service of process, snob decree, though not void, is voidable and VCVGisible on appeal.
    APPEAL from Jefferson Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      Palmer & Sanders, for appellants.

      A. H. Garland, for appellees.
   English, Sp. J.

The original bill in this case was filed by Thomas J. Dooling, against Dennis H. Crofton and Walter Burris. The allegations of the bill material to be stated, on this appeal, are, that in October, 1860, Dooling sold to Crofton the north half, and the southeast quarter of sec. 33, T. 1, S., E. 2, E., in Phillips county, and took Crofton’s two notes for $3,000 each, for the purchase money, payable the 1st January, 1861, and 1st January, 1862, bearing six per cent, interest. The contract of sale was verbal, but Dooling agreed to make Crofton a deed on the payment of the notes; about the 1st of .January, 1861, Crofton paid $2,500 on the note then due, and went into the possession of the lands, and held them until sometime during the late civil war, when they were abandoned ; and near the close of the war, Dooling took possession of the lands. After the war in 1866, Crofton brought two suits against him, one for the possession of the lands, and the other for rents; one object of the original bill was to enjoin these suits.

In the meantime, in January, 1862, Dooling being indebted to his daughter Susannah J., purchased of Walter Burris, for $3,322, the N. W. qr. sec. 6, T. 2, S., B. 3, E., Phillips county, and indorsed to him the notes of Crofton in payment, Burris made a deed to Susannah, J, reciting the notes of Crofton indorsed to him by Pooling, and retaining in the face of the deed, a lien on the land for the ultimate payment of the price agreed on.

The bill prayed that the contract of sale by Pooling to Crofton be rescinded or that the lands be subjected to the payment of the amount due on Crofton’s notes held by Burris, in order that Pooling might be released from liability on his indorsements, etc.

Crofton answered the original bill, and made his answer a cross-bill, in which he offered to pay such sum as might be found justly due on his notes, claiming deductions for rents, damages, etc., and prayed that Pooling be compelled to perform his contract of sale with him, etc. Burris also answered the original bill, and filed a cross-bill against Booling, Crofton and Susannah J, in which he stated, substantially, as was alleged in the original bill, the sale made by him of the tract of land above described to Pooling, the taking of Crofton’» notes in payment, the execution of the deed to Susannah J., retaining a lien, etc. ; and that after the notes were indorsed to him, Crofton had agreed in writing to increase the rate of interest upon them from six to ten per cent., and admitted the payment of $100, etc.

He claimed a lien upon the tract of land conveyed by him to Susannah J., for the purchase money, and also a lien on the lands sold by Pooling to Crofton for the payment of the notes indorsed to him, etc. Prayed a decree against Crofton for the amount due him, and that the tract of land conveyed by him to Susannah J. be first sold, and then the lands sold by Pooling to Crofton, or such portion of them as might be sufficient to pay the remainder of his debt, etc. It was stated in the cross-bill that Susannah J. was an infant. Crofton answered the cross-bill.

At a term of court held below, in February, 1869, the bankruptcy of Dooling was suggested, and his assignee, John S. Harner, made a party, who entered his appearance.

The intermarriage of Susannah J. Dooling, with David Holland, was suggested, and the appearance of the husband was entered. Crofton then moved for a continuance of the cause, which was refused, and the court proceeded to hear the cause, on the pleadings, etc., and render a final decree.

No process appears to have been sued out against Susannah J., no guardian ad litem appointed for her, and no answer or other pleading filed for her, nor was her appearance entered. The court rendered a decree against Crofton in favor of Burrispor $5,575.08, and in .favor of Harner,, assignee of Dooling, for $888.61, and foreclosing the equity of redemption of Susannah J. and her husband, in the tract of land conveyed to her jby Burris, directed a commission to sell it first, and then the lands sold by Dooling to Crofton, to satisfy the decree. The lands were, afterward, accordingly all sold by the commissioner and purchased by Burris at $700, he bidding $500 for Susannah J.’s tract, and $200 for the other lands.

After the report and confirmation of the sale, Holland and wife appealed to this court.

It is insisted for the appellants that the decree should be reversed, because Mrs. Holland was not made a party; that a decree was rendered against her without process, etc.

She certainly held the legal title to the tract of land conveyed to her by Burris, subject to his lien, reserved in the deed, to secure the payment of Crofton’s notes, either by him or by Dooling who indorsed them. The cross-bill by Burris sought to enforce his lien by a sale of this land, and she was properly and necessarily made a defendant to this cross-bill, in order that her title might pass to the purchaser under the decree for the sale of the land. Yet a decree was taken against her and her land sold, without service of process, and without an opportunity of making defense. Notwithstanding-the sale under the decree, and purchase by Burris, the legal title to the land is still in her. Had she been served with process, she might have had something to say about the sale of her land first, when Crofton was the primary debtor, and there was a lien on other lands to secure the payment of his-notes indorsed to Burris by Dooling, in payment of the land conveyed to her by Burris.

Her husband was properly made a party, having acquired some interest in the land by his marriage with her, but the legal title was still in her, and process should have been served upon her. Her rights were not represented by any party to the suit. Moreover, immediately after her husband was made a party, the cause was set down for hearing and heard, when he had not answered, and was not legally in default.

The general rule in equity as at law is, that all persons directly interested in the subject matter of the suit, as was Mrs. Holland in the case, should be made parties. The’exceptions to the rule are familiar to the profession and need not be stated. It is insisted by the counsel for the appellees, that Mrs. Holland, not being a party to the suit, had no right to prosecute this appeal. It is true, if she had not been brought upon the record, and a decree rendered against her, she would have had no right to appeal.

But she was made a defendant to the cross-bill of Burris, and a decree rendered against her without service of process or appearance. This decree is not void, according to the rule-in Borden v. The State, but voidable and reversible on appeal. If Burris were to bring an action against her for the land, and rely on the decree and the commissioner’s deed, she could not defeat the suit by setting up the absence of a showing of personal service on the face of the record, but would have to resort to a direct proceeding to avoid the decree. Such is the rule established in this state in relation to domestic judgments and decrees of courts of general jurisdiction.

The decree of the court below against the appellants must be reversed, and the cause remanded, with instructions to the court to set aside the sale, and to treat Mrs. Holland as a party, as if served with process, by reason of the prosecution of this appeal, and that she and her husband be allowed a reasonable time to plead, answer or demur to the cross-bill of Burris and to proceed with the cause in accordance with law, and not inconsistent with this opinion.

Bennet, J., being disqualified, did not sit in this case.


text:
    Anderson, Adm’r, et al. vs. Mills, Ex’x.
    Vendor and Vendee: Tender of deed before suit brought, etc.

    Before the vendor can bring an action at law for the payment of the purchase money for lands, he must tender a deed in accordance with the covenants of his title bond and demand payment, but, in equity, the rule should not be applied with the same strictness as at law, and where it appears that the vendor, pending the suit, made tender of the deed in court, and the objection for the first time is made in this court that no deed was tendered before suit brought such objection will not be cause for reversal of the decree or an order of dismissal.
    Contracts : Purchase of slaves, when considered executed.

    Where slaves were sold, possession and bill of sale given, and the vendor took a mortgage back to secure the payment of the purchase money, and before payment, they were emancipated by the civil war: Held, that the contract was executed; that the mortgage was but a security for the debt, and the security being destroyed did not extinguish the debt.

      APPEAL from. Phillips Circuit Court.

      Adams & Dixon, for appellants.

      Tappan & Hamer and A. H. Garland, for appellee.
   English, Sp. J.

This was a bill to enforce a vendor’s lien upon lands for the payment of the purchase money, etc.

The original bill was filed in the Phillips circuit court, in April, 1866, by John E. Mills, the vendor, who died before the final decree, and Caledonia B. Mills, the appellee, his executrix and sole legatee, was substituted as plaintiff. Patrick H. Anderson and Jesse H. Anderson were the vendees; the former, the administrator, and the heirs at law of the latter, and Paul E. Anderson, Bees Davis, and Samuel K. Davis, "occupants of the lands, were made defendants to the original bill; and B. J. Turner, an incumbrancer, was brought in by an amendment to the bill. At the time the bill was filed and when the decree was rendered and an appeal taken by the defendants, Bufus K. Anderson was the administrator of Jesse H. Anderson, one of the vendees, but after the appeal was ■ taken, he was succeeded in the administration by Paulding E. Anderson, who was substituted as an appellant in this court.

Erom the original bill and amendment, a cross-bill filed by the administrator and heirs of Jesse H. Anderson, the answers, exhibits, etc., on which the cause was heard below, the following material facts appear :

On the 4th of February, 1859, John E. Mills sold to Patrick H. and Jesse H. Anderson, a plantation in Phillips county, containing 1,306 acres; sixty-five slaves, and the horses, mules, hogs, sheep, cattle, grain, etc., household and kitchen furniture, etc., then on the place, for $105,000. The lands were valued at $40,000, the slaves at $54,000, and the other personal property at $11,000. The Andersons paid Mills at the time of the sale, $10,000 in cash on the lands, and $20,000 in two drafts on the slaves and other personal property, leaving on the former a balance of $30,000, and on the latter $45,000, making $75,000 to be paid in the future. For this sum they executed to Mills six notes for $12,500 each, payable annually and bearing eight per cent, interest. In each note was included one-sixth of the balance due on the lands, being :$5,000, and one-sixth of the balance due on the slaves and other personal property, being $7,500, making $12,500.

Mills executed to the Andersons, on the day of sale, a bond for title to the lands in the penal sum of $80,000. In the ■condition of the bond was recited the sale of'the lands at $40,000, the payment of $10,000 in cash, the execution of the six notes for the remainder, which are described, and stating that in the notes were included the deferred payments on the slaves and other personal property; the bond to be void, if upon payment of each and all of said notes, when the same should become due and payable according to their tenor and effect, Mills should make to the Andersons a good and sufficient deed for said lands with covenants of warranty, etc.

Mills also executed to the Andersons, on the day of sale, a bill of sale for the slaves and other personal property, in which he covenanted that the negroes were slaves for life, and that he had a good right to sell and convey the same.

On the same day the Andersons executed to Mills a mortgage upon the slaves, reciting the purchase of the lands, slaves, ■etc., the execution of two drafts and six notes for the purchase money, conditioned to be void if they should pay the drafts and notes at maturity, etc.

The Andersons took and retained possession of the lands, slaves and other property sold them by Mills. The drafts were paid. The note payable 4th of February, 1860, and the note payable 4th of February, 1861, were also paid. There was a payment made on the note which fell due on the 4th of February, 1862, and for the balance, $3,000, Jesse H. Anderson substituted a new note, due at twelve months, bearing the same interest as the original note. This note and the three remaining notes, payable the 4th of February, 1863, 4th of February, 1864, and 4th of February, 1865, were wholly unpaid when the original bill was filed.

On the 11th of February, 1860, Patrick H. Anderson sold ■and conveyed his interest in the lands to Jesse H. Anderson. Part of the consideration of this sale was, that Jesse H. Anderson was to pay the notes given to him and Patrick H. Anderson for the purchase money of the lands, slaves, etc., tO' Mills.

On the 7th of August, 1865, Jesse H. Anderson conveyed all his interest in the lands purchased of Mills with other property, to B. J. Turner, in trust, for the benefit of his creditors. He afterwards died.

The slaves were emancipated, and the bill prayed a foreclosure of the lien of Mills on the lands for the payment of the notes remaining unpaid.

The final decree was rendered at the November term, 1871. The court found that there was due on the unpaid notes, $81,550, of which sum, $31,069.70, was a mortgage and lien on the lands, and rendered a decree against Eufus D. Anderson, as administrator of Jesse H. Anderson, deceased, for the entire sum found due, and directed a sale of the lands by a commissioner, for the satisfaction of $31,069.70, declared to be a lien upon them, if not paid by a day named, and the balance of proceeds, if any, be paid over to Turner, as trustee, etc.

1. It is insisted for appellants that the decree should be reversed and the bill dismissed, because Mills did not tender to the vendors, as their legal representatives, a deed for the lands before he filed the bill.

. The hill does not aver that any tender of a deed was made. In the cross-bill of appellants, they alleged that Mills had never exhibited to them any title in himself to the lands, nor tendered them any deed, though, as they insisted, the whole of the purchase money for the land had been paid; and they submitted that he be required to produce his title papers, and show his ability to make title; and they prayed a specific performance of the contract of sale, if he had title, and if not, a rescission, etc.

In the answer to the cross-bill, Mills admits that he had made no formal tender of a deed, but avers that the vendees and their representatives very well understood that he was able and willing to make them a title to the lands, on payment of the notes, which they had neglected and-refused to pay ; and he offered to bring into court a deed for the lands in accordance with his bond for title, and afterward, during the progress of the cause on the motion of the appellants that he be required to do so, he exhibited his title papers and tendered in court a deed for the lands, executed by himself and wife.

The failure to tender the deed before suit was not, in any form, made matter of defense in the court below ; but the objection is made for the first time in this court — at least the record fails to show that the objection was made below as matter of defense. But after the adoption of the present constitution, and before the final decree, the appellants moved the court below to dismiss the bill, because of the clause of the constitution prohibiting the courts from taking jurisdiction of slave contracts, and the learned counsel for the appellants gravely insists, that though this motion to dismiss was based solely upon the ground stated, yet the court should have dismissed the bill, for the reason that Mills had admitted, in his answer to the cross-bill, that he had not tendered the deed before suit, which might have been orally assigned as an additional ground for the dismissal of the bill.

It is very well settled in this state, that where the vendor, in his bond for title, covenants to make the vendee a deed on payment of the purchase money, he must tender the deed and demand the payment of the purchase money, before he can bring an action at law for it. In other words, that he must put the vendee in default before he subjects him to the costs of litigation. And this is a good rule of practice in the courts of law where the costs of a suit follow the judgment.

In Wakefield v. Johnson, Adm’r, 26 Ark., 606, and in Welch v. Hicks, 27 id., 294, this rule was held to apply to suits in equity, where the vendor files a bill to enforce his lien upon land for the payment of the purchase money. But in McGehee v. Blackwell et al., ante, 27, Mr. Justice Searle, in a well considered opinion, reviewed this question, and very properly held that, in equity, where the costs are under the control of the court, and may be awarded at its discretion, the rule should not be applied with the same strictness as in the courts of law.

Here, if, upon the filing of the bill,' the appellants had brought the balance of purchase money justly due the plaintiff below into court, the court could have required him to make the deed and take the money, and taxed him with the costs of suit or dismissed the bill at his costs, upon his failure or inability to make the title. But though the suit was pending in the court below for over five years, and appellants sought rescission of the contract of sale or specific performance upon cross-bill, they did not interpose, as a matter of defense, in any form, the failure of the plaintiff to tender them a deed before suit, but have raised the objection for the first time in this court. We shall therefore decline to reverse the decree and order a dismissal of the bill for this cause.

2. Conceding it to be law, that where the vendor, who has executed to the vendee a bond for title, covenanting to make him a good and sufficient deed, on the payment of the purchase money, a court of equity will not compel a vendee to part with his money, where it is made to appear that the vendor cannot make title (Lewis v. Davis et al., 21 Ark., 255; McDermott v. Cabel et al., 23 id., 200). Yet the appellants failed in this case, in their answer or cross-bill, to allege any particular or specific defect in the title of Mills to the lands in question. Indeed they do not aver, even in general terms,, that he had not or could not make a good title to the lands.

In the cross-bill they say that he had never exhibited to-them any title in himself to any of the lands specified in his-bond for title. And they ask that he be required to exhibit, in court, his title to the lands, and to show whether the same had been properly recorded; and that if he had not a full and unincumbered title, he be required to procure the same and produce it in court. That if he had title and it had not been recorded, he state and show why it had not been recorded. They admit that the vendees and persons holding under them had been in undisturbed possession of the lands from the date of the contract of sale, etc. They insist that the title to part of the slaves was in the wife of Mills, and that the others were his property when emancipated, and that the loss fell upon him; and applying the payments made upon the slaves to the lands, they were overpaid for. And they pray that if his title to the lands turn out to be good, he be required to make title, and if not, that the contract of sale be rescinded, and the purchase money paid be decreed to them, etc.

In his answer to the cross-bill, Mills states that he purchased al.l of the lands except one tract, which was patented to him by the United States, of Pillow and wife, which they conveyed to him, and the deed was duly recorded, etc., and he produced the deed and patent in court. That his title to the whole of the lands was good, and had never been questioned. That he and his vendees, the Andersons, and persons holding under them, had been in uninterrupted possession of the lands for at least twenty years, etc.

In the absence of allegations on the part of the appellants, pointing out specific defects in his title, this showing was sufficient. Walker et al. v. Town's Ex'r, 23 Ark., 147; Bolton v. Branch, 22 id., 435.

3. It is insisted for the appellants that the contract of sale of the slaves was executory; that the execution of the bill of sale by Mills to the Andersons, and the taking of the mortgage back to secure the payment of the purchase money, were but parts of one entire contract; that Mills, in effect, was to remain the owner of the slaves until they were paid for; -and the payment not being completed when they were emancipated, the loss fell on Mills.

An executory contract is one that is to be executed or carried into effect in the future.

Mills sold the slaves to the Andersons, made them a bill of sale absolute and unconditional on its face, and delivered the slaves to them, and they continued in their possession. There remained nothing more for him to do; the contract on his part was completed. There was no provision in the contract that the property was to be delivered at some future time, or that the title was to vest in the Andersons on the payment of the purchase money, or the happening of any future event. The contract on the part of Mills, so far as the slaves were concerned, was executed at the time it was made. As to the lands, he was to do something in the future — he was to execute the deed on the payment of the purchase money. As to the slaves, he was to do nothing in the future. The Andersons gave tbeir notes to Mills for part of the purchase money of the slaves. By these notes they contracted to do something in the future — to pay Mills the installments of purchase money, at the times stipulated. They also gave a mortgage on the slaves, to secure the payment of the notes. In the mortgage they conveyed the notes back to Mills, but the conveyance was to be void on the doing of something by them in the future — and that was the payment of the notes. Whatever was to be done in the future was to be done by the Andersons, and, as above observed, there remained nothing to be done by Mills to complete the contract.

The. mortgage was but a security for the debt, and part of it remained unpaid when the slaves were emancipated. The security was thereby swept away, but the debt was not extinguished.

The appellants admitted in their pleadings that the Andersons were in possession of the slaves from the time of the purchase until the close of the war, in the early part of 1865, except such of them as had in the meantime died, run off to the federáis, or been impressed into the military service.

There was a civil war from which resulted political measures emancipating the slaves. Had they all been swept away by an epidemic, the effect upon the contract of the Andersons to pay for them would have been the same. Though mortgaged for the debt, they had the right of redemption, and, in equity, are to be regarded as the owners of the slaves, and the loss by emancipation fell upon them — just as it would have done had they died. Haskill, Adm’r, v. Sevier, Adm’r, et al., 25 Ark., 156; Taconay v. Denton, 25 id., 626; Sevier, Adm'r, et al. v. Haskill, Adm'r, 26 id., 133; Pillow v. Brown et al., id., 240; Kaufman & Co. v. Barr, id., 25; White v. Hart, 13 Wall., U. S., 646; Osborn v. Nicholson et al., id., 654.

But the counsel for appellants put this point in another form. They say that the mortgage was a chattel mortgage; that some of the notes for the purchase money had matured before, and were unpaid when the slaves were emancipated, and that on the default of the Andersons, the mortgagors, the title of the slaves vested absolutely in Mills, the mortgagee, and the loss by the subsequent emancipation fell on him.

No doubt upon the failure of the mortgagor to pay a debt at maturity, secured by 'a chattel mortgage, the mortgagee has the right to take possession of the property, or to bring an action at law for its possession. But the default of the mortgagor does not extinguish his right to redeem, nor can he by his own default, throw the risk of the loss of the property on the mortgagee. True, if, after default, as well as before, the property is destroyed, the security is gone, but the debt is not thereby extinguished. Price v. State Bank, 14 Ark., 50; Blackmore v. Byrnside, 2 English, 505.

4. In their cross-bill, the appellants allege that Mills was-not the owner of thirty-eight of the slaves at the time he sold them to the Andersons. That they were the separate property of Mrs. Mills, his wife, and so continued to the time of their emancipation; and they claim that the value of these slaves should be deducted from the price agreed to be paid for all of the slaves.

In the support of the allegation that the thirty-eight slaves were the separate property of Mrs. Mills, they aver that her husband, John E. Mills, in October, 1860, procured her to execute a bond to the Andersons, in the penal sum of $80,000, reciting the purchase of the lands and slaves by them of her husband, the execution of the notes for the purchase money, and obligating herself to relinquish dower in the lands; and also to relinquish all right, claim or demand she might have in said property, sold by her husband, etc.

In his answer to the cross-bill, Mills positively denies that. his wife ever had or held, or claimed to have or hold, any title to any of the slaves sold by him to the Andersons; and avers that at the time of the sale they were all his property that he had a perfect title to them, and the right to sell and convey them. That the allegation in the cross-bill that thirty-eight of them were the separate property of his wife, at the time of the sale, was utterly untrue, and without foundation. That one of the negroes named Dick was given to him by Thomas Brandon, the father of his wife, in the year 1830; that the gift was to him and not to his wife; and the gift was made before there was any law in the state of Alabama, where they then resided, securing to the wife separate property in slaves, etc. That he held and claimed Dick as his own property for twenty-nine years before the sale to the Andersons? and Dick was the only one of the negroes that was a gift from his wife’s father. He admits that Mrs. Mills executed the bond to the Andersons, made an exhibit to the cross-bill, but. states that the bond was executed solely to gratify Jesse H. Anderson, and to quiet his apprehension as to the possibility of Mrs. Mills becoming entitled to dower in the lands in the event of her surviving him, and not because she asserted any claim to any of the negroes, and that the clause as to the negroes was added in the bond to gratify Anderson, and out of abundant caution; and that Mrs. Mills informed him a the time that she claimed no title to any of the negroes.

There was no evidence produced upon the hearing to disprove the denials of Mills, or to show that his wife really ever had or claimed separate title to any of the slaves.

The deed of trust executed by Mills to John M. Binford Aug. 10, 1866, does not purport on its face to have any relation to the slaves in controversy, and there was no evidence introduced to show that it did.

If any of the slaves were in fact given to Mrs. Mills by her father, or distributed to her from his estate, or acquired by her from any other source, and secured to her as her separate property, so as to exclude the marital rights of her husband, there must have been some evidence of the fact more satisfactory than that produced by appellants. And Mills having executed to the Andersons a bill of sale for the slaves, warranting the title to be good, and they having received them into their possession, and remaining in possession of them until they were emancipted or died, it was incumbent on the appel■ants, as their representatives, not only to aver, but to prove a want of title in Mills against his denial, in order to avoid the payment of the purchase money. An affirmative allegation of the cross-bill, denied by the sworn answer of Mills, should have been proven by evidence equivalent to the oaths of two witnesses, or one with corroborating circumstances.

5. It is insisted for the appellants, that the court below erred in rendering a decree against the administrator of Jesse H. Anderson for the whole amount found to be due upon the unpaid notes. That the decree should have been rendered only for the $31,069.70 balance found due upon the lands, and that the appellee should have been remitted to the probate court, or the law side of the circuit court, to obtain an allowance or a judgment 'against the administator for so much of the amount due upon the notes as was for the purchase money of the slaves. In other words, that Mills, in the beginning, should have split up his demands, though embraced in the same notes, and filed his bill to enforce his lien upon the lands for the amount due upon them, and brought a suit in a court of law for the balance of the purchase money claimed to be due for the slaves. That the court of equity had no jurisdiction of the latter claim, though it had of the former.

It must be borne in mind, that in the bond executed by Mills to the Andersons, to make them a deed for the lands, the notes given for both the lands and the slaves were recited, and he covenanted to make title to the lands upon the full payment of each and all of the notes. Under this ■covenant, it might have been insisted with some force, that he was not bound to make a deed for the lands until the whole amount due upon the notes was paid. And in his original bill he prayed a decree for the whole sum, and a sale of the lands to satisfy the decree if not paid. The court,below put a different construction upon the contract, and gave his executrix a decree charging the lands and ordering a sale of them for so much as was found to be due on them only. Erom this decree the executrix did not appeal, and we are not called upon to decide whether, in this respect, it was right or wrong. But the court of chancery, having rightfully obtained jurisdiction of the subject matter of the suit, had the power to dispose of the whole case and terminate litigation between the parties, as it did, so far as it could do.

It is doubtless a misfortune for persons who bought slaves upon credit, and lost them by emancipation, to have to pay for them. But it is now very well settled that the loss falls upon the purchaser and owner and not upon the seller. The covenant in a bill of sale, warranting the title good, and negroes to be slaves for life, was not broken by emancipation, brought about by a civil war, and a resulting change in the constitution. The warrantor is no more bound for the loss of the slaves by such emancipation than if they had been destroyed by a flood or an earthquake. See cases before cited.

The decree of the court below must be affirmed, and the time fixed for the sale of the lands having passed, a mandate must be sent to the court, directing it to renew the order of .sale, that the decree may be executed.

McClure, C. J., and Bennett, J., dissenting.

Stephenson, J., being disqualified, did not sit in this case.


text:
    Johnson vs. Barbour.
    Practice : Where damages excessive.

    Where the damages are excessive, the defendant should move the court to set aside such excess in order that the plaintiff may have an opportunity to remit before being taxed -with the costs of an appeal.
    Same : Where form of verdict or judgment objectionable.

    Where the form of the verdict is objectionable, or the proper judgment-is not rendered upon the verdict, such objection should be pointed, out to the lower court, before appeal granted.
    APPEAL from Phillips Circuit Court.
    Hon. M. L. Stephenson, Circuit Judge.

      Palmer & Sanders, for appellant.

      A. H. Garland, for appellee.
   Gregg, J.

The appellee brought his action at law upon a bill of exchange drawn by appellant, March 1,1867, on Givan Watts & Co., of New Orleans, La., and protested for nonacceptance.

The appellant attempted to set up as a defense his discharge in bankruptcy, etc.

Upon the appellee’s recovering judgment, the appellant moved for a new trial upon the grounds only that the verdict was not sustained by the evidence, and that it was contrary to law and evidence.

The verdict was: “ We, the jury, find for the plaintiff, and assess his damages at the sum of two thousand three hundred and fifteen and -¿fa dollars.” And the court rendered judgment for the amount so assessed, and that it drew interest at six per cent, per annum.

It is here insisted that, under our statute, this bill, upon protest, bore ten per cent, interest and four per cent, damages, and that the verdict should have found the damages separate from the debt and interest, and that the judgment should have preserved that distinction; that no interest should run. on the damages; that the amount assessed under the proof should have been $2,236.64 debt and interest, and $59.16 damages.

If the damages assessed by the jury were for the aggregate amount, the appellee had a right to recover, the appellant was not greatly damaged by their failure to find each item of damage separately.

If the damages were excessive, or the judgment for a greater sum than was assessed, the correction should have been made by the court below; this error should have been pointed out to that court before an appeal was asked. Sec. 886, Code of Civil Practice, p. 254.

"Where excessive damages are assessed, the court below should be asked to set aside for such excess; the successful party should have an opportunity of remitting the excess before being taxed with the costs of an appeal.

If the form of the verdict or judgment is objectionable, or if the proper judgment is not rendered upon the verdict, such objection, also, should be pointed out to the lower court so the errors might be there corrected. Steck v. Mahar, 26 Ark., 536, and other cases.

The judgment is affirmed.

Stephenson, J., being disqualified, did not sit in this case.

Hon. E. W. Compton, Special Judge.


author: Searle, J.

text:
    Nordman vs. Wilkins & Files.
    Chattel Mortgagb; : When demand before suit not necessary.

    The continued use and possession of a chattel mortgage, after breach, of condition or nonpayment, is such adverse possession as will entitle the mortgagee to bring suit without first making demand.
    APPEAL from Jefferson Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      A. H. Garland, for appellees.
   Searle, J.

This cause was first tried before a justice of the peace, from which it was appealed to the Jefferson circuit court. There it was tried anew, and judgment being rendered against him, the defendant appealed to this court. The record discloses the following facts, namely: That the appellant, being indebted to the appellees, executed, etc., to them a mortgage upon a buggy, conditioned that if the note was not paid by a certain date, tbe appellees were authorized to take immediate possession of the property, and after giving five days’ notice, etc., to sell the same at public auction, etc. When the note became due, the appellant failed to pay it, and the appellees brought their action for the possession of the property, without first having demanded the same. Two exceptions were saved to the rulings of the court below.

The first exception was to the overruling of a motion to dismiss the action because of the insufficiency of the affidavit showing the appellee’s right to the property in controversy.

The affidavit isas follows: “Plaintiff, Jacob Piles, states that the personal property claimed by him in this action is one leather top buggy; that it is worth two hundred dollars, and that for the detention thereof, he believes he ought to recover twenty dollars in damages; that he is the owner of said property and is entitled to the immediate possession of the same; that it is wrongfully detained by the defendant, and was not taken for taxes or fine against the plaintiff, or any order or judgment of a court against him, or seized under an execution or attachment against his property, and that this cause of action accrued within one year past. Jacob Piles.

“ Sworn to before me this the fifth day of June, A. D. 1872.

“D. Aschaefenburg, J. P.”

This affidavit is in substantial compliance with amended section 203 of the code, and is sufficient, and the circuit court, therefore, very correctly overruled the motion. The second exception was takeD to the ruling of the circuit court, in refusing to give to the jury the instructions as to the law of the case asked by the appellant. The instructions asked and refused were as follows: “If the jury believe from the evidence that the buggy in controversy was lawfully in the possession of the defendant with the knowledge and consent of the plaintiffs, and that plaintiffs have failed to prove demand therefor before bringing this suit, they will find for the defendant, unless they find that the defendant had, after the note had become due, converted the property to his own use or exercised acts of ownership over it adversely to the plaintiff’s rights.”

No demand was proven upon the trial. Nor do we think it was necessary. "When the note became due, the appellant should have sought the appellees and paid it. Not having done so, the appellees had an absolute right to the immediate possession of the property for the purpose of sale, etc. The appellant having failed to pay the note at maturity, his continued possession and use of the property thereafter was such an adverse possession as entitled the appellees to their suit against him without first making demand. The court, therefore, upon this state of evidence, did not err in refusing to give the above instructions.

Finding no error, let the judgment be affirmed.


text:
    Cockrill et al. vs. Johnson, Adm’r, et al.
    Contracts : Novation or substitution of.

    Where parties intend the substitution of a new debt or obligation for an old one, their intention to that effect should be positively declared, or in whatever manner expressd, be made so evident as not to admit of a doubt.
    Foreclosure : Where mortgagor a bankrupt.

    On objection to a decree of foreclosure, that the mortgagor was a bankrupt, and the decree did not discharge him from all personal liability : Helct, that as the decree was against the property only, and did not fix any liability upon the defendant, it was sufficient.
    APPEAL from Jefferson Circuit Court.

      Hon. Henry B. Morse, Circuit Judge.

      A. H. Garland, for appellants.

      D. W. Carroll, for appellees.
   Searle, J.

From the record before us, in this case, the following facts appear: Cockrill, who appears as one of the appellants in this case, purchased certain real property in Jefferson county in 1856, from one Robert Ryan, taking therefor a deed with warranty, and-gave in payment thereof his four promissory notes of one thousand eight hundred and seventy-five dollars each; also a mortgage upon the property to secure the payment of the notes. Three of the notes, first due, were paid. The last one, due on the first day of April, 1860, remained wholly unpaid until the twenty-ninth day of December, 1860, when Cockrill paid two hundred dollars upon it to Mrs. Ryan as executrix of the will of Robert Ryan deceased (he having departed this life shortly after the sale of the property), and at the same time agreed to pay her ten per cent, interest upon the balance due, instead of eight per cent., which was the interest stipulated in the note, and this agreement was reduced to writing on the part of Cockrill. In 1866, Mrs. Ryan, as executrix, etc., instituted suit upon the note by attachment against Cockrill, in the state of Tennessee, and obtained judgment against him, in pursuance of which his property was sold and the note paid, with the exception of sixteen hundred and ninety-three dollars.

The appellee, as administator de bonis non seeks, by this suit, to foreclose the mortgage and subject the property to the complete satisfaction of the notes. Before this suit was instituted, Cockrill went into bankruptcy, and this debt was included in his schedule of liabilities. Also, before Cockerill became a bankrupt, he transferred the property, in question, to Mrs. McGrehee, who, with her husband, are the other appellantsyn this cause.

First. It is contended by appellants’ counsel, that Cock-rill’s contract with Mrs. Ryan, as executrix, etc., on the twenty-ninth day of December, 1860, was a “ merger and a novation of the old obligation,” as evidenced by the note; and, therefore, that the property was relieved from the incumbrance of the mortgage. This agreement, as reduced to writing on the part of Cockrill, is in words and figures as follows:

“ I owe the estate of Robert Rjmn, deceased, a note for eighteen hundred and seventy-five dollars, due first of April last, with eight per cent, interest from the first of January. I have given a draft for two hundred dollars on Bradley, Wilson & Co., for the interest, and to be credited on the note as a payment of interest and part of the principal. I promise to pay ten per cent, interest on the balance, or amount due on the first of January, 1861, until paid. December, 29,1860.
“S. R. Cockrill.”

This agreement is averred in the complaint and not denied in the answer. The only evidence in relation to this matter, outside the pleadings, is by Cockrill, who testified as follows: “ Mrs. Ryan came to me in December, 1860, and said that she was the executrix of the will of Robert Ryan, deceased, and that she was directed by the will to loan the money of the estate at ten per cent, interest, and that she had selected me to loan it to, because I was solvent; but she wanted two hundred dollars for her expenses, which I paid her. I considered this an agreement to borrow the money, and the original transaction closed so far as the lien on the land was concerned.”

In the substitution of a new debt or obligation for an old one, which is denominated in the civil law a novation, the intention of the parties to that effect should be positively declared ; or at least in whatever manner expressed, it should be so evident as not to admit of a doubt: in other words, a nova-, tion is not to be presumed unless the intention to that effect evidently appears. Story on Bills, sec 441; Burge on Suretyship, 166; Chandler v. Herrick, 19 Johns., 132.

From the testimony of Cockrill upon the question under consideration, it appears that he considered this an agreement to borrow the money and the original transaction closed so far as the lien upon the land was concerned.” It does not appear from the evidence of this witness or any other in the case that such was the understanding of Mrs. Ryan. But however this may be, the testimony of Cockrill on this point is clearly contradicted by the exhibits to the complaint, namely : the note for $1,875, and the written statement of Cockrill, wherein he says that “ he owes the estate of Robert Ryan, deceased, a note for eighteen hundred and seventy-five dollars, due first of April last, with eight per cent, interest from the first of January,” etc. This statement is conclusive against the defense that the note was paid and that the money was borrowed by Cockrill. The property, consequently, was not relieved from the incumbrance of the mortgage.

Second. Cockrill alleges, in his answer, that the amount of land actually sold was less, by twenty-five or thirty acres, than •that described and warranted in the deed of conveyance, and the prays for an abatement of the amount due thereupon to the •extent of the deficiency of the land at the time he purchased. In support of this allegation, Cockrill testified as follows: “ At the time he purchased the land there was a written statement and agreement between him and Ryan to the effect that Ryan did not know what the true quantity of the land was ; that it was then estimated at three hundred acres, but the true quantity was to be ascertained by a survey before the notes were paid. This written statement and agreement was lost during the war; there was never a survey of the land, and its true quantity was never ascertained by measurement. He was satisfied tbe estimated quantity of land was not there. His opinion was that it had caved in by the washing of the river (it lay immediately upon the Arkansas river) to the extent of twenty-five or thirty acres. ”

Derrewsseaux testified as follows: “He knew the tract of land in suit since 1825. It was a caving bank before Ryan got it. Did not know how many acres were in it in 1856 when Cockrill bought it.”

Cantrell testified : “ He knew the place from 1854 to 1856, and during that time it was a caving bank. Cockrill, in his opinion, did not get over two hundred and forty acres in his purchase.”

As to the right of Cockrill, had he not been a bankrupt, to an abatement in the purchase money to the extent of its deficiency at the time of the purchase, we can have no doubt; but in such cases, to warrant an abatement, the evidence should be positive and explicit as to the deficit. In this case the evidence was not positive and explicit as to the extent of the deficit, or even as to whether or not there was any deficit. The amount of land had not been ascertained by measurement according to the agreement. The witnesses were “of opinion,” etc., and their opinions were based upon casual observations. This certainly was too indefinite, uncertain and unsatisfactory as the basis of a recoupment in favor of Cockrill, were he even not a bankrupt.

McCehees, the other appellants in this case, in their separate answer, adopted the answer of Cockrill, and in so doing make the above allegation and prayer their own. But if the abatement could not be made in favor of Cockrill, it is very clear that appellants, McGrehees, would not be entitled to it. The circuit court, therefore, did not err in refusing to make the abatement prayed for.

Third. One other error, it is claimed by appellants’ counsel, was committed by the court below.

When this suit was brought, Oockrill had been adjudged a bankrupt. The appellee, consequently, did not ask for a decree against him personally, but against the mortgaged property only. It is contended that the decree is erroneous because it does not discharge Oockrill from all personal liability in the premises. We have carefully examined the de-, cree, and find that it does not expressly discharge Oockrill from liability personally; it merely forecloses the equity of redemption, etc. This, we think, was sufficient, as there is nothing in the decree making him liable in any manner

Finding no errors, the decree must be affirmed.


text:
    White vs. Berry, Auditor.
    Prosecuting Attorneys : When appointed pro tern., how paid.

    The salaries of prosecuting attorneys are entirely under the control of the legislature, and under the act of March 27, 1871, the auditor is authorized, in settlement of the same, to deduct any amount that may have been paid a prosecuting attorney pro tem. for the same district.
    PETITION for Mandarme.

      U. M. Bose, for petitioner.
   Searle, J.

This is a petition for a writ of mandamus, and alleges tbe following facts: That the petitioner was prosecuting attorney for the tenth judicial, circuit, during the years 1871 and 1872, and up to the filing of this petition; that before tbe filing of this petition he presented bis account to James B. Berry, as auditor of tbe state of Arkansas, for his salary for the quarter ending tbe 30tbof September,'1871, due him by law, and that said auditor refused, on such demand, to issue his warrants for said quarter for more than the sum of two hundred dollars, thus leaving due the petitioner the sum of one hundred dollars; and the petitioner closes with a prayer that this court will issue its writ of mandamus to the said auditor, commanding him to issue his warrant on the treasurer of the state of Arkansas for the said sum of money so claimed to be due the petitioner.

The auditor responded, admitting the facts as alleged in the-petition, and alleging, by way of avoidance, the following facts: That on the 8th of September, 1871, W. S. McCain presented to him as auditor, etc., the official certificate of Hon. H. B. Morse, the judge of the circuit courts of said judicial circuit, setting forth that the said McCain had performed the duties of prosecuting attorney, by special appointment, for one term of one of the circuit courts of said circuit, during said quarter ending September 30, 1871; that said certificate was in due form of law, and showed that the said McCain presenting the same was entitled to the sum of one hundred dollars for his services as prosecuting attorney pro tern., and that thereupon respondent, as auditor, etc., issued to the said McCain his warrant on the treasury of the state for the sum of one hundred dollars, etc.; that afterwards, on settlement with said petitioner as prosecuting attorney of said circuit, respondent deducted from the salary of the petitioner for the said quarter ending the 30th of September, 1871, the sum of one hundred dollars, for which a warrant had been drawn in favor of McCain, and issued to the petitioner his warrant only for the balance of the salary due him, to wit, two hundred dollars, etc.

Erom the petition and response it appears that two other deductions were made in a similar manner by the auditor, in his settlements with the petitioner.

To this response petitioner interposed a general demurrer. The demurrer, being a concession of the facts as pleaded in the response, merely questions their legal sufficiency as a defense to the action. As to the legal sufficiency of these facts to constitute a defense, there can bé no two opinions. The matter of salary of prosecuting attorneys is entirely under the control of the legislature, and may be diminished at the pleasure thereof. The conduct of the, auditor in deducting the amount paid the special prosecuting attorneys from the salary due the prosecuting attorney, in his settlement with the latter, was in strict obedience to section one of the appropriation act of the general assembly, approved March 27, 1871. See p. 89, Acts of 1871.

The demurrer, therefore, is not well taken, and must be overruled. The petitioner failing to plead further, the writ must be denied.


author: Bennett, J.

text:
    McNair vs. Williams.
    Statutes Construed : Act of April 25,1873.
    Under the act of April 25, 1873, appointing commissioners to locate the county seat of Pope county, Russellville became the temporary county seat, and judgments rendered by courts held at that place were valid.
    APPEAL from Pope Circuit Court.
    Hon. W. N. Mat, Circuit Judge.

      J. E. Cravens, for appellants.

      Clark & Williams, for appellee.
   Bennett, J.

This case is a simple action on a promissory note. The answer sets up no defense except that the court or judge had no jurisdiction or power to hear or determine the cause or render a judgment on the note against the defendant, because by the act of the legislature, approved April 25,1873, entitled “an act to move the county seat of Pope county,’ the county seat had been removed from Dover to Russellville and was then at Russellville and not at Dover where the court was sitting. Upon this answer the parties went to trial. The court, after hearing the evidence, found for the plaintiffs and gave judgment for the amount of the note and interest. The defendant filed a motion for a new trial, and set out for causes:

1. That the finding and judgment of the court was contrary to law and the evidence.

2. That the court had no authority, jurisdiction or power to render judgment at the town of Dover in said county, the county seat being at Russellville, a distance of ten miles from Dover.

The motion was overruled by the court. The defendant excepted, setting out the evidence, and appealed.

The validity and correctness of the finding and judgment depend solely upon the question whether the county seat, at the time of the rendition of it, was at Dover where the court was sitting. As no other part of the action of the court is-called into review, we will pass to it without further comment.

The act approved April 25, 1873, is as follows:

“ An act entitled ‘ an act to move the county seat of Pope county.’
Be it enacted by the general assembly of the state of Arkansas: That J. M. White, John Torrence and D. Perryman are hereby appointed commissioners ; who, upon receiving a good and sufficient bond from the incorporation of Russellville, or the Little Rock and Port Smith railroad, conditioned that either incorporation shall, by the first of January, 1874, donate to the county of Pope a court house and grounds, or money and material sufficient to erect as good a court house as the one now had at Dover, in said county, the choice being left to the commissioners, and furnish temporary county buildings until January 1, 1874, shall order the county officers to transfer their offices to said buildings, together with their records and office fixtures. Thenceforth Dover shall cease to be the county seat of Pope county, and the place designated by said commissioners shall be the county seat of said county: provided, that until said county seat is located, Russellville shall be the temporary county seat.
“ Sec. 2. Said commissioners shall have authority to receive donations of land upon which to erect the county buildings and take deeds therefor to the county. They shall locate the permanent county seat within three months from the passage of this act, and report their proceedings to the county board of supervisors at their first meeting thereafter. For their services they shall each receive three dollars per day for time actually employed.
“Sec. 8. All acts'and parts of acts in conflict herewith are hereby repealed, and this act shall be in force and take effect from and after its passage.”

Upon the trial of this cause the plaintiffs proved that Russelville was about ten miles from Dover where the court was sitting; and that there was and is no such person as D. Perryman named in the act as one of the commissioners to locate the county seat of Pope county; and that none of said commissioners ever qualified or acted as such; that they never removed the county seat from Dover, nor located the same at Russellville or any other place; and that neither the incorporation of Russellville nor the Little Rock and Fort Smith Railroad ever executed any such bond to said commissioners ; nor did they ever donate a court house or grounds for a court house in Russellville, nor money to purchase or erect such buildings; nor were temporary buildings furnished to hold the court; nor did the commissioners or other competent-authority order the county officers to transfer their offices nor the records of the county to any such buildings; nor, in fact, did the commissioners act in any way as required by the law.

Such being the facts governing the case, we are left to the sole proposition as to whether the act above quoted, of itself, without the action of the commissioners, removed the county seat of Pope county from Dover and made Russellville the temporary county seat.

In the outset it may be of profit to refer to well known rules and maxims for the construction of ambiguous statutes.

Broome, in his Legal Maxims, has collected from the authorities the following fundamental rules: “That one part of a statute must be so construed by another that the whole may, if possible, stand, and that if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant. And it is a sound general principle in the exposition of statutes that less regard is to be paid to the words used than the policy which dictated the act. * *

“ It is then an established rule of construction that an act of parliament shall be read acccording to the ordinary and grammatical sense of the words, unless being so read it would be absurd and inconsistent with the declared intention of the legislature to be collected from the rest of the act.” Broome’s Legal Maxims, 247 and 248.

Whenever the intention of the maker can be discovered, it ought to be followed with reason and discretion, although such construction seems contrary to the letter. Bac. Abr., Title, Statute I; 5 Johnson, 380.

Statutes should be expounded according, not to the letter, but to the meaning. The meaning of the words is to be best ascertained from the subject of the act. 3 Bingham, 193.

The reason and object of the act are a clew to the true meaning. Dwarris Stat., 692.

The intention of the lawgiver is to be deduced from a view of the whole, and every part of a statute to be taken and compared together. The real intention, when actually ascertained, will always prevail-over the literal. 1 Kent Com., 162; People v. Draper, 15 N. Y., 532.

The above are the general rules for the government of the construction of ambiguous statutes.

The awkward manner the legislature has taken to express its intention, and the manner in which that intention shall be carried out in the law, now under consideration, is all that creates any difficulty in construing it.

From the above cited rules we learn that the intention of the lawmaker, when ascertained, must be followed. Now what was the intention of the legislature in this enactment ? No one can say otherwise than that it was to remove the county seat of Pope county from Dover to some other place in the county. If such was the evident intention, the statute must be construed if possible so as to carry out that intention. If it were not for the proviso to the first section, which says, that until said county seat is located, Russellville shall be the temporary county seat,” it might be well urged that this law only provides a way in which the county seat could be moved. But with this proviso in it, it is very evident that the legislature intended at once and by reason of this enactment to take the county seat from Dover. This intention is made manifest by a simple transposition of the expressions used in the law. Suppose, for instance, the proviso had been the first section of the act, and had read as follows: “Section 1. That, until said county seat is located as required by the act, Russellville shall be the temporary county seat,” and then had proceeded to provide for the location of the buildings upon certain lots, blocks or sections of land within the incorporation of the village of Russellville, there could have been no ambiguity about the statute. From a careful examination of the body of this enactment, that this was the intention of the legislature there can be no doubt. By this construction we are able to make the whole stand together. From the whole tenor of it we safely infer that there were two places or locations outside of Dover which were contending for the county seat and buildings incident to it, viz., the incorporation of Russellville, and the incorporation of the Little Rock and Fort Smith Railroad Company, the intention of the legislature to remove being clearly expressed in the proviso. Then taking into consideration this additional fact that there were two localities or corporations desiring that the location of the county seat should be within their control, it is evident that the appointment of the commissioners,and the defining of their duties related merely to the determination as to which of these locations should be the permanent county seat. Pending this determination, which should not exceed three months of time, Russellville should be the temporary county seat of Pope county. The only question for these commissioners to determine was, as between the location desired by the Little Rock and Fort Smith Railroad and the location as desired by the village of Russellville, which one with all its incidents, such as free donation of lots, buildings, offices, money and materials as offered by those incorporations, would be to the best interest of the county of Pope to place the permanent buildings upon and make a permanent county seat of.

It is not an uncommon thing for a statute 'declaring in a general way that certain public buildings or a county seat shall be located in certain towns or cities, and the immediate site within those towns or cities to be left in- the hands of the commissioners. This is always well, because it not infrequently happens that the owners of property or others may, for private reasons, desire that these buildings should be erected on some particular lot, block or section of land within such towns or cities, and in order to secure such location may offer special inducements to the public to secure it. Such would seem to have been the case here. From the title and general scope of the law, aided by the direct expression of the proviso to the first section of it, we learn that the legislature intended to absolutely move the county seat from Dover. The railroad company and the village of Russellville, being competitors for its immediate location, the legislature provided this- board of commissioners to receive from each proposals to furnish for the county a court house, grounds, money and materials, and then to decide as between them where the permanent county seat should be situated. Pending this decision it declared that Russellville should be the temporary county seat. It required no action of these commissioners to place the county seat at Russellville. The legislature had done so temporarily, and with that matter they had no concern.

With the construction we have placed upon the statute, the whole may stand. No clause, sentence or word becomes void, superfluous or insignificant, and the intention of the legislature's fully carried out. Any other one would have violated this plain rule, as the proviso would have been entirely expunged from it without rule or reason.

Dwarris, in his work on Statutory Law, pages 562, 614, 667, says: “ In the case of a statute which is a part of the legal arrangement for carrying on the government and providing for the administration of justice among the citizens of the state and remedial in its character, the rule is that if the words are not explicit, the sense is to be gathered from the occasion and necessity of the law and the designed remedy. It is to be so construed as most effectually to meet the beneficial end in view. It is to be construed liberally in contradistinction from a mere verbal construction — largely and beneficially— so as to suppress the mischief and advance the remedy.”

From this construction we are led to declare that Eussellville is the county seat of Pope county, and any judgment rendered by the circuit court at any other place in the county would be coram nonjudice, and its proceedings a nullity.

This case is dismissed.