author: Harrison, J.:.

text:
    White vs. Reagan.
    1. PíjB-Adinw: Recoupment, counter claim, etc.

    Only such matters as are connected with or grow out of the plaintiffs cause of action, can be pleaded by way of recoupment, or as a counter claim.
    X--: Counter claim mid cross complaint.

    The only distinction between a counter claim and cross complaint is, that the former is a cause of action in favor of the defendant against the plaintiff, and the latter against a co-defendant.
    ", Rimitatioií: Statute of, as between attorney and client.

    If an attorney is guilty of negligence or want of skill in the performance of his professional duties, a cause of action immediately arises in favor of the client and the statute of limitation commences to run.

      APPEAL from Washington Circuit Court.
    Hon. J. M. Pittman, Circuit Judge..

      William Walker,for appellant.

      J. D. Walker, contra.

   Harrison, J.:.

This was an action of assumpsit, commenced on the 2d day of January, 1867, by William D. Reagan against George E. White and Whitson B. Taylor, on a promissory note for $1100, dated 26th, and delivered on the 27th February, 1860, payable one'day after date, and bearing 10 per cent, interest from maturity.

The case has before been in-this court; see White v. Reagan, 25 Ark., 622. After it was remanded to the Circuit Court the plaintiff filed replications to the defendant, White’s, plea of the statute of limitations, and a demurrer to the plea of recoupment. The demurrer to the plea of recoupment was sustained; and White then filed a cross complaint against the plaintiff and his co-defendant Taylor, to which he also made other persons hereafter named, defendants; and thereupon moved that the action be transferred from the law to the equity side of the court. The court refused to transfer the action to the equity docket; and the plaintiff filed an answer to the cross complaint, which,, however, does not appear in the transcript, and the issues were submitted to a jury, which found a verdict for the plaintiff for the sum of $2784. Taylor made no defense, and the other persons named as defendants in the cross complaint do not appear to have been served with process. White, without moving for a new trial, appealed.

The plea of recoupment was in substance: that the plaintiff, on the 27th day of February, 1859, loaned to James C. Hodges $1000, for which Hodges and the defendants, as his securities, executed to him a writing obligatory of that date, payable one day after date and bearing 10 per cent, interest from date until paid ; that. Hodges agreed with the defendants before he got the money, that if they would become his securities in the writing obligatory, to-give them a mortgage, with a relinquishment of his wife’s dower-on Lot No. 3, in Block No. 26 andBlockNo. 20, in Fayetteville,, as an indemnity against their liability; that the plaintiff and James R. Pettigrew, who were partners in the practice of law, undertook and promised the defendants, in consideration of their becoming such securities, to draw the mortgage, and that they accordingly drew a mortgage, which was executed by Hodges and also his wife ; but the same was so negligently and unskillfully drawn, that it contained no relinquishment of dower; that Hodges died‘on the 1st day of October, 1859, leaving him surviving his said wife, who upon his death became seized of a. dower estate in the said property; and that he left no other-property ; that the said property was, when the mortgage was given, and then was, if not subject to the dower estate of Hodges’' widow, ample indemnity to the defendants; but subject to that estate, its value did not exceed $500, and was’not a sufficient indemnity ; that the defendants after Hodges’ death gave the note sued on in discharge and satisfaction of the writing obligatory^ but when the same was given, he said White was not aware of the fact that the dower had not been relinquished in the mortgage deed, and was of the belief that he and Taylor were fully indemnified; and that by reason of the said negligence and unskillfulness of the plaintiff and Pettigrew, he had lost all benefit of the mortgage.

The plea assumes that the note and writing obligatory were; for the same consideration. But this assumption is unfounded; the note was given in satisfaction of the writing obligatory, and was intended to operate as an extinguishment and not as a continuation of it. The undertaking' of Reagan and Pettigrew to write the mortgage, was no part of the consideration of the note, and the note and obligation also varied as to the amount, time of payment, and parties. “If a settlement be made of the old contract by a new arrangement, varying it in form, and agreed to be substituted therefor, upon a sufficient consideration, the plea of this accord would be a sufficient answer to an action on the original contract.” Sto. on Con., sec. 982, a. Recoupment is the right of the defendant to claim a reduction of the plaintiffs’ demand on account of some breach of stipulation by the plaintiff in the contract sued on, and is allowed to avoid circuity of action ; and the right only exists where a cross action can be maintained. Pom. Rem., secs 731, 732; Ledger on Damages, 541; Wheat v. Dotson, 12 Ark., 699; Rotan v. Nichols, 22 Ark., 244. And the damages recouped must arise in the particular contract on which the action is founded. Deming v. Kemp, 4 Sandf., 147; Leayback v. Jones, 9 Mo., 470.

It is thus seen that the court very properly sustained the demurrer to the plea.

The allegations of the cross complaint, so far as it is necessary to state them, were: that James C. Hodges, on the 27th day of February, 1859, applied to the plaintiff for a loan of $1000, and it was agreed between the plaintiff, said Hodges and the defendants, that he should lend Hodges the money, and Hodges and the defendants as bis securities, should execute to him a writing obligatory for the sum, payable twelve months after date, and bearing 10 per cent, interest from date until paid, and that Hodges should indemnify the defendants by a mortgage with a relinquishment of his wife’s dower, on Lot No. 3, in Block No. 26 and Block No. 20, in Fayetteville, which mortgage should be written and prepared by the plaintiff, who was a practicing lawyer; that the plaintiff loaned Hodges the money, and Hodges and the defendants executed the writing obligatory; that the plaintiff did draw a mortgage on the property, but only to and in favor of the defendant Taylor, which on the first day of March, 1859, was executed by Hodges and Alley, his wife, and on the same day acknowledged and recorded; but that through the negligence of the plaintiff, the name of the wife was not inserted in the mortgage, and it contained no relinquishment of her doAver. That Hodges died intestate in the latter part of the year 1858, leaving him surviving the said Alley, his widow, and Robert Hodges, his only child- and heir at laAV ; and letters of administration upon his estate Avere, in December of that year, granted to Martin G. Bonham.

That the defendants, on the 26th day of February, 1860, gaAre the note sued on in satisfaction and discharge of the Avriting obligatory; but, he, the defendant, George E. White, had not then seen the mortgage, and Avas under the impression and belief that it Avas to Taylor and himself jointly, and that the dower had been relinquished. That since the pendency of the suit, and at the March Term, 1869, of the court, one of his attorneys in the case, John T. Humphrey, Avithout his knoAvledge or consent, or any authority from him, entered into some kind of a compromise with the plaintiff, and in compliance thereAvith paid him $500, AAhich money Humphreys borro Aved from James E. Tott, a merchant in Fayetteville, on his White’s account, and though he had, notAvithstanding the said Humphrys had no authority to borroAAmoney for any purpose on his account, paid Trott, Avho had acted in good faith, he had refused to ratify the compromise and had even rejected and repudiated the same.

That on the 6th day of June, 1867, Taylor filed a bill in equity against the Avidow, heir at kw and admistrator of Hodges, for the foreclosure of the mortgage, alleging therein that he had satisfied and paid the writing obligatory, Avhich suit Avas still pending.

That Hodges left at his death money sufficient, after deducting the widow’s portion thereof, to pay the writing obligatory, which passed to the possession of his widow, and was converted by her to her own use, and that no property whatever came to the hands ■of his administrator, and that his estate was insolvent.

That Hodges, when the mortgage was given, had no title or right to Lot No. 3, in Block No. 26; that Block No. 20, if unincumbered by the doAver estate, is of sufficient value to satisfy the debt and indemnify the securities, but Avould not, subject to that, sell for more than $300.

That Tayler was insolvent. That Robert Hodges had died intestate, leaving him surviving Sarah Hodges, his Avidow, and Magnolia, wife of James Poor, James C., Jr., Robert K. and William T. Hodges, his children and heirs at law, all of whom are infants, and that be left no estate and there was no administration.

That the dower of Alley Hodges had never been assigned her, and a sale of the property, Avhich Avas then in the occupancy of the widow and children of Robert Hodges, subject to her dower ■estate, would result in sacrificing it. And that the suit by Taylor to foreclose the mortgage, though brought in his name, Avas for the benefit of Reagan, ayIio had given him an acquittance and release of the debt.

Alley Hodges, Martin G. Bonham, Sarah Hodges, James Poor, Magnolia Poor, James C. Hodges, Jr., Robert H. Hodges and William Hodges, were made with the plaintiff, and Taylor defendants.

The prayer A\ras: that Alley Hodges be required to account for the moneys of her husband’s estate, which she had converted to her own use; and that the value of her dower should be ascertained ; that the mortgaged premises be sold, and if the moneys m converted, after deducting one-third, which she might rightfully retain, was found to be equal to such value, that the same be sold discharged of the dower, and that the plaintiff be paid the amount due him after deducting the $500 received from Humphreys, and after'the plaintiff was paid, that he White be paid the $500 paid through Humphreys.

There is no reason why the appellant might not have pleaded the payment of $500 and the release of Taylor; and the claim for damages by the mistake in drawing the mortgage could have been set up, if at all, as well by counter claim as by cross complaint. But we think it could not be set up in the action in either' mode. The counter claim must be a cause of action arising out of the contract or transactions set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action. Sec. 4570, Gantt's Digest.

It will not bo contended that the damages arose out of the contract, the note sued on, or any transaction set forth in the complaint; nor can it be insisted that they are in any way connected with the subject of the action. Mr. Pomeroy in his recent work on Remedies, sec. 742, says: “ If a contract is set forth in the complaint or petition as the foundation of the plaintiff’s demand, the counter claim must arise out of that same contract; and this plainly embraces the ancient recoupment of damages, although far broader in its operation than that species of defense. If a ‘ transaction ' is set forth as the foundation of the plaintiff's demands, the counter claim must arise.out of that ‘ transaction,’and so far as ‘transaction’ is something different from or additional to ‘ contract,' this is a provision not identical in its effects with either ‘ set-off' or ‘ recoupment;’ it clearly embraces many instances of equitable cross-demand and relief in favor of the defendant; and the only real doubt is, whether it extends also to legal causes of action.

Whatever be the nature of the claim asserted by the plaintiff; for the Codes contain no restriction in respect of this matter, any counter claim may be pleaded “which is connected with the subject of the action,” and in regard to the subject of the action he says: “It would, as it seems to me, be correct to say in all cases, legal or equitable, that the ‘subject of the action’ is the plaintiff’s main primary right which has been broken, and by means of whose breach a remedial right arises. Thus the right of property and possession in ejectment and replevin, the right of possession in trover or trespass, the right to the money in all cases of debt, and the like, would be ‘the subject’ of the respective actions. Although in a certain sense, and in some classes of suits, the things themselves, the lands or chattels, may be regarded as ‘the subject,’ and are sometimes spoken of as such, yet this cannot be true in all cases; for, in many actions, there is no such specific thing in controversy over which a right of property exists. The primary right, however, always exists, and is always the very central element of the controversy around which all the other elements arc grouped, and to which they arc subordinate.” Ib., sec. 775.

In Tinsley v. Tinsley, 15 B. Mon., 454, the plaintiffs had commenced proceedings to obtain possession of a farm in possession of the defendant. T.he defendant had thereupon brought an equitable suit to restrain the proceedings, had given bond and obtained a preliminary injunction. The suit being dismissed, the plaintiff brought his action on the land to recover damages for being kept out of the possession of the farm by means of the injunction during the continuance of the suit. The defendant pleaded a counter claim, alleging that notwithstanding the injunction, the plaintiff wrongfully took possession of the land, and took and converted the crops thereon to his own use, and demanding judgment for the damages thus caused. The court of appeals of Kentucky say: “It is not required that the counter-claim itself shall be founded in contract or arise out of the contract set forth in the petition; but it is sufficient that it arise out of the transaction set forth in the petition, or be connected with the subject of the action. As the petition states the occupation of the land by Mrs. Tinsley during the pendency of the injunction, and claims damages therefor, any interferance by the plaintiff which rendered such occupation less profitable or less valuable to the occupant constituted a cause of action arising out of the transaction set forth in the petition, and is connected with the plaintiffs action.” “'A counter-claim,” say the Supreme Court of Indiana, “is that which might have arisen out of, or could have had some connection, with the original transaction in the view of the parties and which at the time the contract was made, they could have intended, might, in some event, give pne party a claim against the other for compliance or non-compliance with its provisions.” Conner v. Winter, 7 Ind., 523.

The breach of contract complained of by the appellant took place, and his alleged cause of action arose a year before the note sued on was made; the mortgage formed no part of the consideration of the note, and the giving of the note was entirely independent of the execution of the mortgage.

A cross-complaint is allowed “when a defendant has a cause of action against a co-defendant, or a person not a party to the action, and affecting the subject matter of the action.” Sec. 4559, Gantt’s Digest; Trapnall, ex’r., v. Hill et al., 31 Ark., 346.

We have just seen that the appellant had no cause of action against the plaintiff arising either out of the contract, or connected with the subject of the action, and it is impossible to conceive what cause of action he had against Taylor or any other of the defendants to his cross complaint, that in any manner affected the plaintiff’s right to recover, or the subject matter of his action.

“The only real difference between a complaint and a cross-complaint,” says the author we have quoted, “is that the first is filed by the plaintiff and the second by the defendant. Both contain a statement of the facts, and each demands affirmative relief upon the facts stated.” Ib. sec. 808. And we may add, the difference between a counter-claim and a cross-complaint is this: in the former the defendant’s cause of action is against the plaintiff, and in the latter against a co-defendant, or one not a party to the action.

The cross-complaint alleged or showed no reason why the plaintiff should be restrained in his action until the matters set up in the cross-complaint between White and Taylor and the new parties could be determined. It contained no averment of the plaintiff’s insolvency, or any matter showing irreparable injury to him, if judgment .were recovered against him; yet the transfer of the actiou to the equity side of the coprt, would have been a virtual inhibition of proceedings in the plaintiff’s action, without bond or security as required in injunction suits, until the cross-complaint was heard.

More than eight years elapsed after the alleged breach of the plaintiff’s contract before he commenced his action, and the cross-complaint shows no cause why suit was not brought within three years, or the time of limitation, or that might displace the bar of the statute. White’s right of action arose when the plaintiff violated his contract. Sedg. Damages, 117; Wilcox v. Executors of Plummer, 4 Pet., 172; Howell v. Young, 5 Barn. & Cress., 259.

In the case of Wilcox v. The Executors of Plummer, the plaintiff placed in the hands of Plummer, an attorney, a note for collection; upon which he, on the 7th of May, 1820, instituted suit against the maker, but'neglected to sue the indorser. The malced proved insolvent, and, on the 8th of February, 1821, he instituted suit against the indorser, but committed a fatal mistake by a misnomer of the plaintiffs; after various delays the case was brought to trial in April, 1824, and the plaintiffs were non-suited. On the 9th of November, 1822, the action against the indorser became barred by the statute of limitations. The plaintiffs, on the 27th of January, 1825, brought suit against Plummer for negligence in not suing the indorser before the 9th of November, 1822, and for negligence and unskillfulness in the conduct of the suit. The defendant pleaded the statute of limitations of three years.- The court say: “When the attorney was chargeable with negligence or unskillfulness his contract was violated, and the action might have been instituted immediately. Perhaps in that event no more than nominal damages may be proved, atid no more recovered; but on the other hand, it is perfectly clear that the pi'oof of actual damages may extend to facts that occur and grow out of the injury, even up to the day of the verdict. If so, it is clear the damage is not the cause of the action.” And in the case Howell v. Young, the plaintiff in 1844 contracted with J. Olive and R. Olive to lend them £3000 at interest,-the repayment to be secured by a warrant of attorney to confess judgment, and certain mortgages of free hold and leasehold premises; and the defendant, an attorney, was retained by the plaintiff to ascertain whether the warrant of attorney and mortgages were a sufficient security, and he represented to the plaintiff that they were so. In 1820, the interest to that time having been regularly paid, it was discovered th^t the warrant of attorney and mortgages were not a sufficient security. It was held, “that the misconduct or negligence of the attorney constituted the cause of action, and that the statute of limitations began to run from the time, when the defendant had been guilty of such misconduct, and not from the time when it was discovered that the securities were insufficient.”

But the cross-coinplaint was before the court and an answer Was filed to It, and the applicant had upon the trial all the benefit from it, he possibly could have had, if the action had 'been transferred to the equity side.

The judgment is affirmed.


source: Caselaw Access Project

author: English, Ch. J.:

license: Public Domain

text:
    Hughes vs. Wheat.
    1. Appeal from Justice of the Peace.

    The failure of the appellant, on appeal from a justice of the peace to the Circuit Court, to file a supersedeas bond, or of the clerk of the Circuit Court to mark the transcript sent up by the justice filed, is no ground for the dismissal of the appeal.
    2. --: Failure to file transcript in time.

    When the justice fails to file the transcript and papers in the clerk’s office on or before the first day ©f the term, and no showing is made why they were not filed in time, it is in the discretion of the Circuit Court to dismiss the appeal.
    APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Wise, for appellant.
   English, Ch. J.:

A. J. Wheat sued W. P. Hughes before a justice of the peace of Jefferson County on an open account for $40.

The cause was tried (on change of venue) before Justice Benjamin F. Fall on the 20th December, 1875; a set off for $10 was ■ allowed defendant, and judgment rendered in favor of plaintiff 'for $30.

On the 24th of December, 1875, the defendant prayed an appeal to the Circuit Court, and, upon filing an affidavit, and executing a stay bond, the appeal was granted.

The stay bond appears to have been approved by the justice on the day of the granting of the appeal, but was not marked filed by him.

The term of the Circuit Court next after the appeal commenced, it appears, on the 8th of May, 1876.

At what time the justice filed his transcript, and the original papers of the case, in the clerk’s office, does not appear, as the clerk seems not to have marked them filed.

It appears, however, that the cause was placed on the docket as early as the 25th of May, 1876, seventeen days after the commencement of the term, for, on that day, the court made an order continuing it.

On the next day, on the motion of the plaintiff, the order of continuance was set aside; and, on the 31st of May, 1876, he filed a motion to dismiss the appeal on the following grounds:

“First — The papers in this case were not filed on or before the first day of this term of this court as required by law.

“Second — There have been no papers filed in this case in this court.

“Third — There has been no perfect bond filed, or attempted to be filed, in this case, in the court below or in this court.”

On the 9th of June, same term, a rule was made upon Justice Fall, commanding him to transmit, at once, a complete transcript of all docket entries shown on his docket in the case, if he had not already done so, and to report the facts in regard to the case.

On the same day the justice made the following response to the rule:

“To his honor, etc. Your orator says that having carefully examined the transcript of proceedings herein, he cannot find any change or amendment necessary to be made in order to conform to the truth as to the proceedings had, except the transcript fails to show that the appeal bond was approved and filed as required bylaw. ' Your orator asks that the appeal bond be admitted to the files approved nunc pro tunc.”

On the next day the motion to dismiss was heard, and the court sustained the motion, and dismissed the appeal.

Defendant filed a motion to set aside the order of dismissal on the grounds:

“First — That he filed an affidavit and appeal bond before, the justice, etc.

“Second — He had a good defense to the action.

“Third — It was not his fault that the papers were not filed in ' the office of the clerk on or before the first day of the term.”

The court overruled the motion, and defendant appealed to-this court. No bill of exceptions.

We cannot suppose that the court below dismissed the appeal because of the failure of the justice to mark the stay bond filed.. A docket entry made by the justice, and copied in his transcript, shows that the bond was entered into by appellant and his sureties before the appeal was granted, and the justice wrote upon the bond: “Approved,'December 24, ’75” (the date of the appeal), and signed it officially. Had the bond been essential to the appeal, the court coidd, and no doubt would, if deemed necessary, have ordered the justice to amend by marking the bond filed as of the day on which it was approved by the justice, which was suggested by him in his response to the rule. But the appellant had the right to appeal from the judgment of the justice without giving any bond, the object of the bond being merely to stay execution of the judgment pending the appeal, • and this no doubt the court below knew, being plainly so provided by the statute. Gantt’s Digest, sec. 3822.

Nor can we suppose that the court below dismissed the appeal because of the failure of the clerk to mark filed the transcript, and papers in the case returned to his office by the justice. No doubt if appellant had so moved, the court would have directed the clerk to cure such omission, by endorsing the transcript and papers filed as of the day on which they w'ere in fact lodged in his office by the justice. But no such motion appears to have been made by appellant.

The court doubtless dismissed the appeal becauso*’the transcript and papers were not filed in the' office of the clerk on or before the first day of the next term of the court after the appeal was taken, as required by the statute (Gantt’s Dig., 3825), and no showing vras made by appellant why that was not done.

True, the statute makes it the duty of the justice to file the transcript, etc., in the clerk’s office within the time prescribed, but it is incumbent on the appellant to see that this is done — he must prosecute his appeal. Smith et al. v. Allen, 31 Ark., 268.; MeGehee v Carroll & Jones, Ib., 550.

The justice failing to file the transcript and papers on or before the first day of the term, appellant had the right, after the expiration of the first day, to compel him to make his return by rule and attachment. But no application appears to have been made to the court, by appellant, for such rule, etc., see Gantt’s Dig., sec. 3829.

There is no showing in the record before us that the transcript of the justice and papers were filed in the clerk’s office earlier than the 25th of May, which was the 17th day of the term, and the day on which the first order was made in the cause above stated.

• It affirmatively' appears from the record before us that the transcript of the justice could not have been filed in the clerk’s office earlier than the 15th of May, because his certificate of authentication attached to the transcript bears that date.

The justice was before the court upon a rule relating to the filing of the appeal bond, and appellant had an opportunity of causing him to make a showing why he had not made his return within the time prescribed by the statute; but he seems to have required him to make no excuse for his delinquency, and to have made none himself.

In his motion to set aside the order of dismissal (not sworn to) he states that he had a good defense to the action, but does not state .what the defense was. He also states that it was not his fault that the papers were not filed in the office of the clerk on or before the first day of the term, but does not state w'hose fault it was..

When the motion to dismiss was made, and before it was heard, the appellant should have made some showing why the transcript and papers were not filed in the clerk’s office within the time prescribed by the statute, and brought such showing on to the record, by bill of exceptions, if held by the court insufficient, and the appeal dismissed, and then this court could pass upon the sufficiency of the showing.

But in the absence of any showing whatever, we cannot say that the court below abused its discretion in dismissing the appeal because the transcript, etc., was not filed within the time prescribed by the statute. To do so would be to disregard the statute.

If a transcript is filed here out of time, and without a showing, we dismiss the appeal.

Such statutes may be directory, but they are not to be disregarded.

Affirmed.


text:
    Simms et al. vs. Richardson & May.
    1., Claims aoaksst Estates : When not necessary to authenticate.

    It is not necessary for a mortgage creditor to authenticate his claim against the estate of the deceased debtor, before filing a bill to foreclose the mortgage. ,
    2.--: Probate of, no bar to foreclosure.

    The fact that the creditor has probated his claim against the estate and obtained an order for its payment, constitutes no bar to a proceeding to foreclose the mortgage.
    :>. Parties : Heirs necessary to bill to foreclose mortgage.

    The heirs at law of a deceased mortgagor are necessary parties to a hill to foreclose the mortgage.
    4. —---: JDefect of, in ecpiity.

    The non-joinder of parties in equity may be taken advantage of by demurrer or answer, or the objection may b8 raised at the hearing; and if the objection is not made, the court may refuse the relief sought; if the defect appear on the face of the proceedings the decree may be reversed in the Supreme Court therefor. The provision of the Code, that the failure to object by demurrer or answer to a defect of parties, shall be deemed a waiver of the same, does not apply to equitable proceedings.
    APPEAL from Ghicot Circuit Court in Chancery.-
    Hon. Theodoric E. Sorrells, Circuit Judge.

      Reynolds, for appellant.

      Garland, contra.

   English, Ch. J.:

Richardson & May filed a bill on the Chancery side of the Circuit Court of Chicot County, against John G. B. Simms, Charles E. Sessions and Alexander Be Valcourt, administrator of the estate of Walter Sessions, deceased, to foreclose a mortgage.

The hill alleges, in substance, that on the 12th of January, 1872, Walter Sessions, then living, executed to plaintiffs, Richardson & May, his note for $2532.79, due at twelve months, and bearing 8 per cent, interest from date; and to secure 'the payment of the note, conveyed to them, by mortgage of that date, certain lands situated in Chicot County, which are described, and the-note and mortgage are made exhibits.

That part- of said indebtedness has been paid, and a large balance has long been due, and there is now due and owing to plaintiffs the sum of $2348.10.

That long after the execution of said mortgage, one Richard R. Sessions and defendant Simms purchased said lands, and said Simms is now in possession of part of them. That said Richard R. Sessions afterwards conveyed part of the said lands to defendant Charles E. Sessions, and he and defendant Simms are now in possession of all of said lands.

That defendant Alexander De "Valcourt is the administrator of the estate of Walter Sessions, deceased.

Prayer for decree for the debt, that the mortgage be foreclosed, and the lands sold for ¿he satisfaction of the debt, etc.

At the return term (12th July, 1876), defendants filed a motion to dismiss the suit on the grounds that it did not appear that the mortgage debt was verified by affidavit, as a claim against the estate of Walter Sessions, deceased, before the institution of the suit; and the court overruled the motion, on the 19th of July.

On the 20th July, defendants Simms and Sessions moved to dismiss the suit by reason of matter that is set up as an estoppel and stated in the motion, in substance as follows:

“That plaintiffs probated their claim against the estate of said Walter Sessions, deceased, and had same classed against said estate as a claim, in the Probate Court of Chicot County; and afterwards applied to said court for an order of payment; and upon the grounds that plaintiffs had á/ lien on the property of said estate, and that the property was worth more than the amount 'of the claim, the court ordered said claim or demand to be paid, after payment of a claim against said estate in favor of Ohas. G. Scott, as administrator of the estate of John Drennen, deceased, which amounted to about $1000. That from the account current of the administrator of said estate of Walter Sessions, deceased, there is a large balance in the hands of said administrator amounting to the sum of $3640.32, and more than enough to pay the debt of said Scott and the debt of plaintiffs and that said estate has reserved a lien upon the lands in this suit to secure still other large sums due said estate; and defendants insist that by reason of obtaining said order of payment plaintiff’s are estopped from seeking to enforce their lien against the said property if any such they have.”

This motion to dismiss the suit was heard and overruled on the day it was filed.

On the same day defendants Simms and Sessions filed a motion asking the court to require plaintiffs to make the heirs at law of Walter Sessions, deceased, parties defendant.

This motion was heard and overruled by the court on the day it was filed.

On the next day (July 21st), the record states that the cause-came on to be heard, and it appearing to’ the court that defendants had been duly served with process, and had wholly failed to answer or demur to the complaint, the court proceeded, upon bill and exhibits, to render a decree in favor of plaintiffs for the amount due upon the mortgage debt, declaring it to be a lien upon the lands, foreclosing the mortgage, barring the equity of redemption of the defendants, and directing a sale of the lands, by a commission, for the satisfaction of the decree.

On the 25th of July, defendants filed a motion to set aside the decree, on the grounds that it had been entered without their knowledge, and while the court had under advisement the question of their right to interpose other or further defenses, with leave-to defendants to submit an argument in favor o'f such rights, etc.

On the same clay defendants filed a demurrer to the bill.

The court overruled the motion to set aside the decree, and struck the demurrer from the files. One of the causes assigned for demurrer was that the heirs of Walter Sessions were not made defendants.

Defendants appealed to this court.

I. It was not necessary for appellees to make an affidavit authenticating their debt before filing their bill to foreclose the mortgage. They did not seek, by this suit, to satisfy their debt out of the general assets of the estate of Walter Sessions, deceased, in the hands’of his administrator, but to enforce their lien upon lands mortgaged to them by Sessions, in his life time, to secure the payment of the debt. The court below did not err, therefore, in overruling the motion of appellant to dismiss the suit for want of such an affidavit, as repeatedly held by this court. Pope’s Heirs et al. v. Boyd’s Adm’x, 22 Ark., 535 ; Allen et al., adm’r v. Smith, ex’r, 29 Ark., 74; Haskell et al. v. Sevier et al., 25 Ark. 152, Nicholls & Barrett v. Gee, adm’r, et al., 30 Ark., 135; Hall v. Denckla, 28 Ark., 506.

II. The matter set up as an estoppel in the second motion of appellants to dismiss the suit, was not good cause for dismissal, nor would it have been a valid defense to the suit if properly pleaded.

On default of payment of the mortgage debt at maturity, appellees had the right to sud at law upon the debt, bring ejectment for the possession of the lands, and to file a bill to foreclose the mortgage. Fitzgerald v. Beebe, 7 Ark., 319. And they had the right to pursue all these remedies at once, though entitled to but one satisfaction. Very v. Watkins et al., 18 Ark., 553; Sullivan v. Hadley, 16 Ark., 144.

The substance of the matter set up in the motion to dismiss is, that appellees had probated their debt against the estate of the mortgagor, and obtained an order of the Probate Court for its payment, and there were sufficient assets in the hands of the administrator to pay the debt. But there is no averment in the motion that 'the debt had been paid, or that appellees had obtained satisfaction of their demand by this remedy. The allowance of their claim in the Probate Court was no bar to their remedy by bill in equity to foreclose the mortgage. Turner, use, etc. v. Horner, adm’r, 29 Ark., 441.

III. The equity of redemption of the mortgagor, is considered to be the real and beneficial estate, tantamount to the fee at law, and is accordingly held to be descendible by inheritance, devisable by will, and alienable by deed, precisely as if it wére an estate of inheritance at law. State, use, etc. v. Lawson, 6 Ark. (1 Eng.), 269.

On the death of Walter Sessions, the mortgagor, his estate in the lands in controversy, descended to his heirs at law, and they had the right to redeem the lands, unless before his death he conveyed his estate in the lands to others, or it was sold under execution and purchased by other person^.

As to parties defendant to the bill to foreclose a mortgage, the rule is that the heirs or devisees of the mortgagor, who dies the owner of the fee, are indispensible parties. If, however, the estate has been conveyed by him, or assigned by operation of. law, then only the assignee need be made a party, etc. Erwin, adm’r, et al. v. Ferguson et al., 5 Ala., 164; Allen & Hill, adm’r v. Smith, adm’r, 25 Ala., 495; Kiernan v. Blackwell, adm’r, et al., 27 Ark., 235 ; Allen et al., adm’r v. Smith, ex’r, 29 Ark., 74.

In a bill to foreclose, the heirs at law of the deceased rnort- ■ gagor should be made defendant, or some excuse for not making them, defendants should be shown upon the face of the bill; as that the mortgagor conveyed his estate in the mortgaged lands before his death, or that it was sold under execution, or that after his death his interest in the lands was sold under an order of the Probate Court, etc.

The allegations’ of the bill in this case are very loose. The death of Walter Sessions is not directly averred. It is alleged that he executed the note and mortgage while living, and after-wards it is averred that defendant De Valcourt is the administrator of his estate. There is no allegation that he had conveyed his estate in the lands before his death, or that he had no estate in the lands at the time of his death.

There is a loose averment, that long after the execution of the mortgage, one Richard R. Sessions and defendant Simms, pur■chesed said lands, etc., but of whom, or how they purchased, is not alleged.

Admitting all of the allegations of the bill to be true, as if upon demurrer, yet for anything that appears to the contrary, • Sessions may have died seized of the equity of redemption in the lands, and this estate may have descended to his heirs at law.

If the proper parties are not made, the defendant may demur to the bill, if the defect appear on its face, or take the objection by plea or answer, or, at the hearing, object that the proper parties are wanting; or the court itself may state the objection, and refuse to make the decree, or if a decree be made, and the defect appear on the face of the bill, the decree may be reversed for such defect on appeal. Story Eq. Plead., sec. 75. Porter et al. v. Clements, 3 Ark., 364; Kiernan v. Blackwell, adm’r, et al., 27 Ark., 235.

The Civil Code has undertaken the difficult task of making rules of pleading and practice applicable in common to suits at law and in equity.

Sec. 4564 (Gantt’s Dig.), enumerates the grounds for which the defendant may demur to the complaint, and among them :

“Fourth — That there is a defect of parties, plaintiff or defendant.”

Sec. 4567, lb., provides that: “When any of-the matter enumerated in sec. 4564 do not appear upon the face of the complaint the objection may be taken by answer. If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court over the subject of the action, and the objection that the complaint does not state facts sufficient to constitute a cause of action.”

Let it be assumed to be a universal and absolute rule that a -defect for want of proper or necessary parties dan only be taken advantage of by answer or demurrer, and that unless so taken advantage of it is waived, and that the court must render a decree notwithstanding such defect may be apparent on the face of the bill, and that the decree cannot be reversed on appeal because of such defect, and see what mischief may result from the rigid enforcement of the rule according to the letter of the statute.

As an example, suppose Walter Sessions, the mortgagor, had ■ been living when the bill in this case to foreclose the mortgage was filed, and he had not been made a defendant, but mere occupants of the lands had been made defendants, and they had failed to set up the objection that he was not made a party by answer or demurrer, should the court have rendered a decree foreclosing the mortgage, and ordering the lands sold to pay the debt? We think not. Such a decree would not. bar the equity of redemption of the mortgagor, nor would a purchaser under the decree get a good title to the lands.

Sessions being dead, it was just as necessary to make his heirs at law defendants, or to show on the face of-the bill that they had no title to the lands, as it would have been to make him a defendant had he been living when the bill was filed.

We think the sections of the statute above copied, must be construed in connection with sec. 4470 of the Digest, which provides for the making of necessary parties, and sec. 4616, which provides for amendments.

On the motion of appellants to require appellees to make the heirs of Walter Sessions defendants, the court should have required them to make them defendants, or to so amend the bill as to show that they had no estate in the lands, and hence were not necessary parties. 15 B. Monroe, 589; 2 Duer., 663; 29 Barbour, 25.

For the error of the court in refusing to do so, the decree must be reversed, and the cause remanded for further proceedings.


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    Simms et al. vs. Richardson & May.
    1. Parties: To ejectment by mortgagee.

    In an action of ejectment by the mort gagee to obtain possession of the mortgaged premises, and take the rents and profits in satisfaction of the debt, he is not obliged to make-the legal representatives of the deceased mortgagor defendants. A judgment of recovery in such action does not bar their right of redemption.
    2. --: Defendants in ejectment cannot, on motion, require the plaintiff to make other parties, not alleged to have been in possession of the land at the commencement of the suit, defendants.
    3. Practice: Time of pleading.

    Where the defendants tail to plead at (he day the cause is set for trial, an offer by them to plead after (liat day,is addressed to the discretion of the court, which will not be controlled unless palpable error is shown.
    APPEAL from Qhicot Circuit Court.
    Hon. Theodoric F. Sorrells, Circuit Judge.

      Reynolds, for appellants.

      Garland, contra.

   English, Ch. J.:

This was an action of ejectment for possession of lands, brought by Richardson & May against John G. B. Simms and Charles E. Sessions in the Circuit Court of Chicot County.

The plaintiffs set out an exhibit with the complaint, as evidence of their right to recover possession of the lands, a mortgage executed to them upon the lands, by Walter Sessions, 12th January, 1872, to secure the payment of a note therein described, and allege the condition of the mortgage broken, etc., and defendants in possession of the lands, etc.

The defendants were duly served with process, and on the 12th of July, 1876, being the third day of the return term, defendant Sessions filed a motion in substance-as follows:

“Defendant Charles E. Sessions states that said Walter Sessions, under whom plaintiffs claim title, departed this life in 1872, and that one Alexander DeValcourt shortly afterwards t-ook out letters of administration on the estate of said intestate, and is still acting as such administrator; and that this defendant is in possession of a part of said lands under authority derived through said administrator, and is advised that said DeValcourt, as such administrator, is a proper party to this suit as defendant. Whereupon this defendant moves the court that said DeValcourt, as such administrator, be made a party defendant in this suit, and that he be notified of the pendency thereof, that he may take the necessary and proper steps to defend the same.”

This motion appears to have been overruled on the 17th of July.

On the 20th of July, Sessions seems to have renewed the motion, stating that on the argument of the former motion it was brought to the notice of the court that DeValcourt, as such administratorj had sold said lands for part cash, and part on time, and that the deferred payments, amounting to about $10,000; were secured by liens on said lands, and if plaintiffs succeeded in recovering the lands of defendants, and DeValcourt, as such administrator, was not made a party, and permitted to defend for the interest of the said estate, the heirs and creditors of said estate might lose said purchase money remaining unpaid, or be put to expense and delay in securing their rights; and defendants put to expense in protecting their rights under the sale made by De-Valcourt as such administrator.

The court again overruled the motion on the day of the filing of this paper.

On the 21st of July, the defendants filed the following motion:

“Come defendants, Sessions and Simms, and move the court to make Nelson W. Bunker a party defendant herein; and state to the court that said Bunker has purchased a portion of said lands and is in possession of the same, and that these defendants are not in such possession as alleged in said complaint; and they are advised that said Bunker is a necessary party to this suit as defendant. Whereupon they move the court that said Bunker be made co-defendant with them, and that he be notified of the same, that he may protect his interest, and that of these defendants.”

This motion was heard and overruled by the court on the day it was filed.

There is some confusion in the record as to the day on which the final judgment was rendered. It seems, however, from the judgment entry, that on the twefth day of the term, the motion to make Bunker a party having been overruled, defendants asked leave to file other defenses, and tendered a demurrer, but the court held that they were too late in offering to -file other defenses, the cause having been set for trial on the tenth day of the term, and they having failed to answer or demur within the time prescribed by law, and plaintiffs waiving damages, judgment was rendered in their favor for possession of the lands, etc.

Defendants moved to set aside the judgment, on the ground that it was entered without their knowledge, and while the court had under advisement the question of their right to file other defenses, with leave to submit an argument in favor of such right, etc.

The court overruled the motion, and without taking any bill ■of exceptions bringing upon the record the other defenses and demurrer which they offered to file, or showing any facts other than such as appears of record, they appealed to this court.

I. In a bill to foreclose a mortgage, the mortgager is a necessary party, and if he be dead, and died owning the equity of redemption, his heirs or devisees, are necessary parties, because his estate in the land descends or is devised to them, and the object of the bill is to bar the right of redemption, and sell the land to pay the debt secured by the mortgage. Simms et al. v. Richardson & May, ante. And our practice is to make the administrator or executor of the deceased mortgagor a party, because lands are assets in his hands for the payment of debts.

But in an action of ejectment by the mortgagee to obtain possession of mortgaged premises, and take the rents and profits in satisfaction of the debt, he is not obliged to make the legal representatives of the deceased mortgagor (or the mortgagor himself if living) defendants, because a judgment of recovery in such action action does not bar, and in no manner affects the right of redemption.

Appellees had the right to bring this suit against persons in possession of the lands at the time the suit was commenced, and' they were not obliged to make the administrator of Walter Sessions, a defendant, though they might have done so. Gantt’s Dig., sec. 2258.

The statute provides that the action may be brought against the person in possession of premises claimed, or his lessor, or both lb., sec. 2251.

Sec. 2252 provides that: “The person from or through whom the defendant claims title to the premises may, on his motion, be made a co-defendant.”

It was under this section, no doubt, that appellants moved the court below to make DeYalcourt, the administrator of Walter Sessions, a defendant.

If appellants held the lands as tenants of DeYalcourt, it was their duty, on being sued for possession, to give him notice of the suit (Gantt’s Digest, sec. 4016), and he might have been made defendant on his own motion. Jackson et al. v. Allen, 30 Ark., 110.

If they purchased the lands of DeYalcourt, as administrator, as indicated in the second motion, they must have purchased under an order of sale made by the Probate Court, and without warranty,-and they had no right to burthen him or the estate which he represented with the expenses of the suit.

The court did not err in overruling the motion to make De-Yalcourt a defendant.

II. Nor did the court err in overruling the motion of appel- • lants to make Bunker a defendant.

The motion does not state that he was in possession of any part of the lands at the time the suit was commenced.

The complaint alleged that the appellants were in possession of the lands. Had they put this allegation in issue by answer, either as to the whole, or part of the lands, appellees could have recovered of them such of the lands only as they proved them to have been in possession of at the time of commencement of the suit. Gantt’s Dig., sec. 2255.

Appellants had no right to compel appellees to make Bunker a defendant on the showing made by them.

III. The appellants having failed to answer or demur on the day of the term on which the case was set for trial (Gantt’s Dig., sec. 4584), as it appears from the judgment entry they did, their offer to plead after that day was addressed to the sound legal discretion of the court (Digest, sec. 4617), and the judgment of the court pronounced in the exercise of such discretion, is not to be overruled by this court unless it appears to be palpably erroneous and unjust. , Carroll v. Harris, 19 Ark., 239, and other cases cited.

What other defenses the appellants offered to file, or on what grounds they proposed to demur to the complaint, we do not know. They should have taken a bill of exceptions, and brought on the record the pleadings which they offered to file, so that we might see whether there was merit in them.

In their motion to set aside the judgment they do not state that they had any meritorious defense to the action.

They ■ state that the' judgment was rendered without their knowledge, and while tire court had under advisement the question of their right to file other defenses, with leave to submit an argument in favor of such right. If such were the facts they should have made them appear by bill of exceptions. Mere statements in a motion, overruled by the court below, and in no mode authenticated, cannot be assumed to be true against the judgment of the court overruling the motion. Hurley v. State, 29 Ark., 23.

Affirmed.


author: Harrison, J.:

text:
    Johnson vs. The State of Arkansas.

      Oriminal Procedure: Suspension of trial, etc.

    During the trial of a felony the court, against the defendant’s objection, suspended the trial and allowed the jury to separate for three days that the State might procure the attendance of a witness. Held, that it was not an abuse of the discretion of the court; under the provisions of the Criminal Code the court is authorized to permit the jury to separate either before or after the cause is submitted to them.

      APPEAL from Arkansas Circuit Court.
    Hon. J.-A. Williams, Circuit Judge.

      E. L. Johnson, for appellant.

      Attorney General, contra.

   Harrison, J.:

The appellant, Henry Johnson, was convicted in the Arkansas. Circuit Court, of the crime of bigamy, and sentenced to imprisonment in the penitentiary for three years.

After the State had examined several witnesses, the court,, against the objection of the defendant, suspended the trial, and allowed the jury to separate, from Tuesday until Friday, that the-State might procure the attendance of a witness.

The suspension of the proceedings in a trial, is within the-sound discretion of the court, and we are not prepared to say, there was any abuse of its discretion in this case.

And though the rule formerly was different, the jury may now, by a provision in the Code of Criminal Procedure, be permitted by the court to separate, either before or after the case is submitted to them. Code of Crim. Proced., secs. 243, 246;: Gantt’s Digest secs. 1938, 1941.

As it is possible for great prejudice to result from such separations, the discretion of the court, in allowing .it, should be, especially in trials for felony, exercised with the utmost caution r and for any apparent abuse of it, this court would not hesitate reverse the judgment.

The judgment is affirmed.


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    Brockaway vs. Thomas.
    Amendment: Effect of amendment to complaint.

    To the original complaint in an action of unlawful detainer, a demurrer was sustained, and an amendment was filed pursuant to leave. The court, without requiring the defendant to plead to the amended complaint, entered an order for the restitution of the property to the defendant, and awarded a writ of enquiry to assess his damages; held, that the amendment related back to the time the complaint was filed and became a part of it, to the same extent as if it had been originally inserted therein; that the court should have required the defendant to plead to the complaint as 'amended, and erred in disposing of the cause favorable tor defendant, whileit remained unanswered.
    APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Carroll <fe Jones, and J. M. Moore, for appellant.

      Grace and Knight, for appellee.
   English, Ch. J.:

Charles G. Brockaway, on the 2d of November, 1875, commenced an action of unlawful detainer in the Circuit Court of Jefferson County, against John H. Thomas, for possession of a lot in Pine Bluff.

The original complaint is, in substance as follows:

. “The plaintiff, Charles G. Brockaway, states that he is entitled to the possession of the following real estate situate in Pine Bluff, etc. (here the lot is described byjnetes and bounds), being the property now occupied by the defendant John H. Thomas, as a saloon; and that said defendant John H. Thomas unlawfully detained the same on the first day of November, 1875, after lawful demand made therefor.”

On the day the complaint was filed, a writ was issued, the plaintiff executed a bond, and the .sheriff put him in possession of the premises sued for.

At the return term (11th May, 1876), tho defendant filed a demurrer to the complaint. On the next day the demurrer was sustained, and plaintiff asked leave to amend.

On the 15th of May, the plaintiff filed an amendment to tho complaint.

The complaint as amended (inserting the amendment in it's proper place as indicated by it, and embracing it with brackets), is as follows:

The plaintiff, etc., states that he is entitled to the possession bf the following real estate situate in Pine Bluff, etc. (here tho lot is described), being the property now occupied by the defendant, etc., as a saloon ; [and that the defendant, John H. Thomas, was tenant from month to month on the premises above described of Amelia P. Holland, the vendor of John M. Clayton and Margaret Rice of the premises above described, and that said John M. Clayton and Margaret Rice are the vendors of tho plaintiff, of said premises. That said defendant obtained possession of the premises without any authority from said Amelia' P. Holland, but being in possession was suffered to retail! the same as a tenant aforesaid; and that on the 1st day of November, 1875, the time for which the premises were held by him as aforesaid had determined, and the plaintiff was then entitled to the possession thereof,] and that said defendant John H. Thomas unlawfully detained the same on the first day of November, 1875, after lawful demand made therefor.”

On the 16th of May the defendant moved to strike the amendment to the complaint from the files, on the ground that it changed the nature of the action, which motion the court, on the 18th, overruled.

On the 7th'of June the court made the following order: •

On this day, the court having sustained the demurrer herein, and the said writ of possession being thereby quashed and held for naught, it is ordered that restitution of the property mentioned in said complaint and writ be and the same is hereby restored to the defendant.” To which the plaintiff excepted.

On-the 9th of June, the court, on motion of the defendant, ordered a writ of inquiry to assess his damages, the plaintiff protesting, and demanding a trial on his amended complaint. A jury was empaneled, and defendant’s damages assessed at $2500, for which sum judgment was rendered in his favor against the plaintiff, and for costs of the suit.

Plaintiff moved for a new trial, which' was refused, and he took a bill of exceptions, and appealed.

' The court below sustained the demurrer to the original complaint on the ground, perhaps, that it did not show that the relation of landlord and tenant existed between the appellant and appellee. By the amendment, the appellant attempted to cure that defect in the original complaint. Whether the complaint as amended was in good form, we are not called upon to decide on this appeal, as it was not met by demurrer, or motion to make its allegations more specific.

As to what allegations are material in a declaration or complaint in an action of unlawful detainer, see Bradley v. Hume, 18 Ark., 284; Frank et al. v. Hendrick, Ib., 304; Keller v. Henry, 24 Ark., 576; Dortch et al. v. Robinson, 31 Ark., 296.

The court properly permitted appellant to amend his complaint on sustaining a demurrer thereto. Brinkley v. Mooney, 9 Ark., 445, and the amendment related back to the time the complaint was filed, and became a part thereof, just as if it had been-inserted therein when the complaint was filed,

The court having refused, and properly wo think, to strike the amendment from the files, should have required the appellee to plead to the complaint as amended.

But the court without making any disposition of the complaint as amended, ordered the property restored to the possession of the appellee, for the reason, it seems from the entry, that a demurrer had been sustained to the original complaint, and caused a jury to be empaneled to assess the damages of appellee, and rendered a final judgment in his favor for the amount of the damages assessed, and for the costs of the, suit, thereby terminating the action, while the amended complaint stood unanswered, and in no manner disposed of.

It was useless to allow the appellant to amend his complaint on the sustaining of the demurrer thereto, and to refuse to strike out the amendment, and then to treat him as having failed in his action, and order a writ of inquiry to ascertain appellee’s damages.

The statute provides that: “ In all cases of forcible entry and detainer, and forcible and unlawful detainers, when the defendant disputes the plaintiff’s right of possession, it shall be lawful for such defendant to introduce before the jury trying the main issue in such action, evidence showing the damages he may have sustained in being dispossessed of the lands and premises mentioned in the writ and declaration in the cause, and the jury, if they find the issue for the defendant, shall at the same time find what damages the defendant has sustained by being dispossessed under the provisions of this act, and the court shall render judgment restoring the property to the defendant as now prescribed by law, and shall also render judgment against the plaintiff and his security in the bond for the damages as found by the jury, as well as the costs of suit.” Acts of March 2d, 1875, sec. 17; Acts of 1874-5, p. 199.

Here the appellee put in no answer to the amended complaint disputing appellant’s right of possession, no main issue was made up, and none was tried.

If appellant had rested on the sustaining of the demurrer to' the original complaint, and declined to amend, the court should have rendered judgment for appellee, ordered a writ of restitution, and perhaps a writ of inquiry, (Dortch et al. v. Robinson et al., 31 Ark., 295); but appellant did not rest; he asked and obtained leave to amend the complaint, filed an amendment, which the court refused to strike out, and when the complaint stood amended, ordered the property restored to appellee, and caused a writ of inquiry to be executed.

It is not necessary to review the questions of law reserved upon the inquest trial, the whole trial being irregular.

The judgment must be reversed and the cause remanded, with instructions to the court below to permit appellee to plead to the amended complaint.


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    McIlroy vs. Adams.
    1. Pleading: Uncertainty, how remedied.

    When some of the averments of a complaint are wanting in clearness and certainty, the defendant’s remedy is by motion to have the pleading rendered more definite.
    2. Malicious Pp.osecution.
    The averments in a complaint for malicious prosecution, that the defendants held the plaintiffs’ note for collection, and falsely and fraudulently •represented that they had purchased it before maturity, for the purpose of preventing the plaintiff from setting up valid defenses against the original holder, the recovery of judgment on the note in an action thereon by " the defendants, suing out execution, its levy, and the damages sustained thereby, and that the judgment had been perpetually enjoined, are sufficient to sustain a judgment for damages in iavor of the plaintiff.
    3. Evidence: Judicial.record.

    The record of a former proceeding between the same parties is admissible in evidence; the objection that the pleading of the party who introduces . the record are made evidence against the opposite party, is untenable, because it is necessary to read the entire record for a proper understand- ■ ;i‘ ing of it.

      4. Partners: Bow far liable for each other's torts.

    Partners are liable in solido for the tort of one, if that tort was committed by him as a partner, and in the course of the partnership, whether thoy all had knowledge of it or not,
    APPEAL from Washington, Circuit Court.
    Hon. J. M. Pittman, Circuit Judge.

      Gregg, for appellant.

      Davidson, contra.

   Harrison, J.:

This was an action by Adams & Bro., against Denton D. Stark and William Mcllroy, for the malicious prosecution, without probable cause, of an action against them.

The averments of the complaint were: That the plaintiffs, on the 8th of September, 1873, executed to J. C. Pendleton, a note for $1032, payable ninety days thereafter, and that Pendleton, indorsed the note in blank, and the same was before maturity delivered to the defendants, who were partners and bankers under the firm name of D. D. Stark & Co., in Fayetteville, for ■collection. Pendleton not parting with his interest, and remaining the owner thereof.

That the defendants after the note fell due, falsely and fraudulently represented, that they were the owners of the note, and had purchased the same for a valuable consideration before maturity, and brought suit thereon in their own names against the plaintiffs in the Washington Circuit Court, and recovered judgment by default; that the plaintiffs had a good and valid defense against the note, which the defendants knew when they brought their suit, but the plaintiffs were deceived by the representations of the defendants, and supposed that they were the owners of the note and had acquired it by purchase before its maturity, and did not know any better until after the judgment had been obtained: That the defendants sued out execution on the judgment, and the same was by their direction levied on the plaintiffs’ stock of drugs and medicines, they being druggists, which were seized and taken and their store closed; and that their stock of drugs and medicines were detained from them five months, and they were dispossessed of their store thirty days:

That after the levy of the execution the plaintiffs filed their complaint in equity in said court against the defendants, for an injunction against the judgment, and upon the hearing of the cause, it was by the decree of the court perpetually enjoined.

And that whilst the said goods were in the custody of the sheriff they were damaged and reduced in value $1000, and by the seizure of- their stock, and the closing of their store, their credit was ruined and their business destroyed, and they thereby ■sustained damage to the amount of $4000.

Stark was not served with process and did not appear.

Mcllroy answered the complaint; and denied that he had made any representations concerning the note, and having had any connection whatever with or participation either in the action, or in the proceedings after the judgment was obtained, and any knowledge thereof during the pendency of the same, and denied that Stark had any anthority from him to bring the action in their joint names.

A trial was had as to Mcllroy, and a verdict was returned for the plaintiff for $650. He moved for a new trial, which was refused; he then moved in arrest of judgment, and that motion was likewise overruled.

He appealed.

The cause assigned in arrest of judgment is that the complaint did not state facts sufficient to constitute a cause of action.

. Some of the averments in the' complaint were, it would seem, wanting in requisite clearness and certainty; but the appellant might by motion have required them to be made more certain .and definite.

Sec. 4619, Gantt’s Dig., says: “The court must in every stage •of an action disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party; .and no judgment shall be reversed or affected by reason of such •error, or defect.”

It was averred thát the defendants held the note only for collection ; that Pendleton, was still the owner of it, that the plaintiffs had a good and valid defense against it, that the defendants knew of their defense when they commenced their action; and that to avoid the defense, they falsely and fraudulently claimed to have purchased the note before maturity; that they had sued •on it in their own names and recovered judgment, the plaintiffs believing from their representations that they were the owners ■of the note and had purchased it before maturity, and not knowing better until after the judgment'was recovered; the suing out -of the execution, its levy, and the damages sustained thereby, •and that the judgment had been perpetually enjoined.

By these averments were set forth not only a grievance and injury to the plaintiffs, but a willful and wrongful commission of -them. 2 Green. Ev., sec. 449.

The appellant excepted at the trial to the ruling of the court in permitting the plaintiff to read to the jury the record in their suit for injunction. We are unable to see any objection to the admission of this record in evidence. It was a suit between the same parties as were then before the court, and it was averred in the complaint that the judgment had been enjoined by the •decree in it. The answer in that case was put in jointly by Stark and Mcllroy; and it admitted the institution of the suit, the recovery of the judgment, and the • suing out and levy of the -execution as alleged in the complaint in this case, and also that they had no other interest in the note except as holders for collection and as collateral security for claims of other persons in their hands' against Pendleton; and it appears from it that the decree was rendered by the consent of the defendants. The objection urged against its admission, that the allegations of the complaint were made evidence against the defendants is untenable, because to read the answer and the decree, it was necessary for a proper understanding of them, also to read the complaint. 1 Green. Ev„ secs. 511, 512.

An exception was also taken to the admission of the deposition of W. H. Etter. but upon what ground does not appear.

A general objection to a deposition reaches.the relevancy, competency, or legal effect of the testimony only; and will not be considered as extending to any matter of form or question of regularity, or authority in respect to the taking of such deposition. Blackburn v. Morton, 18 Ark., 384.

He deposed; that he was, in 1873, a banker in Fayetteville, and that the note was deposited with him by Pendleton as collateral security for acceptances and other obligations of his belonging to St. Louis merchants and others, in his hands for collection, and that he, on the 20th of October, 1873, turned the note and the acceptances and matters it was intended to secure, over to D. D. Stark & Co.

This evidence clearly supported the complaint, and the only possible or seeming objection that might have been made to it, that we can conceive of’ is that it was unnecessary, as the answer of the appellant did not deny and put in issue the averment, that the defendants held the note only for collection.

The appellant read to the jury the articles of partnership between himself and Stark, by which it was agreed, that they should form a partnership by the firm name of Denton D. Stark & Co., “in the buying and selling of exchange, gold, silver, bonds and whatsoever to the said business belongs,” to which Stark was to give his entire attention; and he testified that the partnership was strictly confined to the business of-banking, and it had no authority from him to engage in anything which did not appertain to that; that he had nothing whatever to do with the management or control of the business, and the same was attended to and conducted solely by Stark. That the purchase of notes Avas no part of the business of the firm, and if Stark claimed the note as the property of the firm, it Avas' Avithout authority from him ; that he had no knowledge of the note, nor of the suit and the proceedings to collect the note during their pendency, and they Avere' unauthorized by him.

He asked, Avith others, the folloAving instructions which the court refused to give, viz.:

Fourth — The obtaining of money, or the attempt to obtain money by fraud for the use of a firm, does not render the partners liable as such, without their participation in or consent to the fraud.

Twelfth — Unless Mcllroy individually participated in falsely and fraudulently procuring the judgment against the plaintiffs, and causing the alleged Avrongs to be committed, the verdict should be for him.

Fifteenth — The plaintiff cannot recover against Mcllroy, unless it be proven that the defendants fraudulently prosecuted the action to judgment, knowing that they had no right to recover, and that Mcllroy personally had such knowledge.

The instructions Averc properly refused. Partners are liable in solido for the tort of one, if that tort Avei-e committed by him as a partner, and in the course of the partnership.” Par. Part-., 150. And Judge Story says : “ It has been Avell remarked by a learned Avriter that although the general rule of laAV is that no one is liable upon any contract, except such as are privy to it yet this is not contravened, by the liability of partners, as they may be imagined virtually present at, and sanctioning the proceedings they singly enter into in the course of trade; or as each vested with a power enabling them to act at once as principals and as the authorized agent of their copartners.’ ” The principle,” he says, extends further, so as to bind the firm for the frauds committed by one partner in the course of the transaction and business of the partnership, even when the other partners have not the slightest connection with, or knowledge of, or participation in the fraud; for, as has been justly observed, by forming the connection of partnership the partners declare themselves to the world satisfied with the good faith and integrity of each other, and implicitly undertake to be responsible for what they shall respectively do within the scope of the partnership concerns.” Sto. Part., sec. 104, 108.

It was objected also, that the evidence did not sustain the verdict ; that there was no proof of Mcllroy’s assent to the acts of Stark; but we have already seen that none was necessary. The evidence as to the damages directly occasioned by the levy was ample and every other material fact was admitted or proven.

The judgment is affirmed.


author: English, Ci-i. J.:

text:
    Black vs. Walton, Guardian, etc.
    Saab by Guardian : False representations as to title.•
    A sale by a guardian of his ward’s land under an order of the Probate Court, is a judicial sale, and the rule caveat emptor applies; but if the land is purchased upon the representations of the guardian that the purchaser would acquire a good title, which turn out to be untrue, the purchaser will not be held at law or in equity, although the guardian ina,y not have known of the falsi tv of his representations.

      APPEAL from Monroe Circuit Court.
    Hon J. N. Cybert, Circuit Judge.

      Hughes, for appellant.

      Smith, contra.

   English, Ci-i. J.:

This was an action at law in the Circuit Court of Monroe County, brought by William J. Walton as guardian of D. P. and J. C. Stibbs, minors, against William Black, for the purchase money of lands.

The complaint alleges, in substance, “that plaintiff is the guardian of the above named minors, who - are the heirs at law of Joseph C. Stibbs, deceased. That on the 19th day of February, 1876, pursuant to orders of the.Monroe Probate Court, he caused to be exposed to public sale, to the highest bidder, upotí a credit of six months, as the property of his said wards, the east half of section three in township three north, of range two west, containing 326.55 acres; and the northwest quarter of the northwest quarter of section four in the same township and range, containing 42.63 acres. That one W. J. Daley acted as auctioneer at said sale. That defendant bid and offered to pay for the tract first above described $489.75, and for 'the tract last above described $33, and, being the highest bidder, said lands were stricken off to him at the prices above mentioned. That said auctioneer then and there made the annexed memorandum writing of said sale, and signed the name of said purchaser. That defendant afterwards refused to make his note for said purchase money. That defendant was thereupon let into.possession of said premises, and has continued ever since in the undisturbed possession thereof. That on the 14th day of September, 1876, at, etc., the plaintiff tendered to the defendant a sufficient deed of conveyance of the same and demanded said purchase money. That said sale had been previously reported to said Probate Court, and had been confirmed, and the plaintiff had been authorized to execute a deed to said defendant. That defendant has not paid the aforesaid purchase money of said lands, nor any part thereof.” Prayer for judgment against defendant for $522.75, with interest from the 19th of August, 1876, etc.

The defendant filed an answer in substance as follows:

“Defendant says, for answer, that at divers times before the day of sale mentioned in the plaintiff’s complaint, the plaintiff represented to defendant that the land to be sold wras the property of the Stibbs’ estate, and by such representations lead the ■defendant to believe that if he purchased any of said lands at said sale he would obtain a good title thereto. That relying upon the representations of the plaintiff, at the sale, he bid the price ■on the lands mentioned in the complaint, as therein stated. Admits that he never executed his notes therefor, but denies that he had possession. of said lands or any part thereof. He says that after bidding on the lands upon the representations of the plaintiff, and before any notes were drawn for the purchase money, or any deed or bond -was drawn, or defendant let into possession of said lands, he discovered that the Stibbs’ estate had no title whatever to said lands save the 42.63 acres in section four as 'mentioned; and that the plaintiff, as guardian of the heirs of said estate, had no right whatever to sell the same, and •would convey no title thereto; but that the 326.55 acres in section three was the property of E. H. Porter, as will appear from a deed herewith filed as Exhibit A, reference being had thereto. That he, upon the discovery of said facts, refused to execute any nptes, or to accept from plaintiff any deed or bond for title to .said land; and denies that plaintiff, before the commencement of this suit, or at any other time, ever tendered him a sufficient deed to said lands; and if he ever tendered a deed of any kind, asks that the same, or a copy, be produced in court.

“And, further answering, says that he is now, and has been at all times, willing to pay to the plaintiff the amount due upon the land in section four whenever he will execute to defendant a sufficient deed thereto, and is now ready and offers to pay said amount in court.”

•The plaintiff demurred to the first paragraph of the answer, in short upon the record by consent, the court sustained the demurrer, and gave the defendant leave to amend, which he declined to do.

The cause was submitted to the court on issue to the second paragraph of the answer, and finding and judgment in favor of plaintiff for the sum of $527.75, being the amount of plaintiff’s-demand, including interest from the 19th of August, 1876.

The defendant appealed.

No motion for a new trial having been made in the court below, and no bill of exceptions taken, the only question presented for decision by this court, is whether the court below erred in-sustaining the demurrer of appellee to the first paragraph of the answer of appellant.

A sale made by a guardian of his ward’s land, under an order of the Probate Court, is a judicial sale, and, as a general rule, a purchaser at such sale acts at his peril. The guardian sells-such estate only as his ward has in the land, and the purchaser must make inquiry as to the title, and the authority of the guardian to sell. The guardian makes no warranty of title for his-ward, and if he covenants for title, he only binds himself personally. The rule caveat emptor applies to such sales. McCurdy et al. v. Guynn et al., ante.

But in this case the substance of the appellant’s answer is, that he was induced to bid for the land by the false representations of the guardian that he would get a good title; and ascertaining after the sale that the wards had no title to the tract of •326.55 acres bid off by him, but that the title was in another person, and that the guardian had no right whatever to sell the land, he declined to execute his note for the sum bid by him, and did not take possession of the land. These allegations of the answer, admitted to be true by the demurrer, set up a good defense to so much of the complaint as was for the sum bid for the tract to which the allegations relate. Rice et al. v. Richardson, adm’r, et al., 3 Ala., 428; Ray v. Virgin, 12 Ill., 216; Atwood’s Adm’r, v. Wright et al., 29 Ala., 346.

It is not averred in the answer that the representations made by appellee to appellant as to the title to the land, were fraudulently made, in other words that appellee knew them to be false when he made them.

In an action at law by a purchaser against a vendor of real or personal property for false representations as to the title, quality or quantity of the property, the plaintiff must allege and prove that the vendor knew that the representations were false when he made them. Plant v. Condit, 22 Ark., 454; Morton v. Scull, 23 Ark., 289; Benjamin on Sales, 345.

Had appellant perfected his bid for the land, and brought an action for damages against appellee for such false representations, he would have been obliged to prove that they were false, and that appellee knew them to be false and hence fraudulent when he made them.

But this is not an action by appellant against appellee for deceit in the sale, but appellee is seeking by this suit to recover of appellant a sum which he was induced to bid for the land by his false representations as to title.

The consequences to appellant were the same whether appellee knew the representations to be false or not. The case, in brief, is that appellee represented to appellant that if he would bid for the land at the sale, he would get a good title; confiding in such representations appellant was induced to bid, but, ascertaining-them to be untrue, and that he would get no title to the land, he-refused to pay his bid.

Equity would not compel appellant to accept a worthless deed,, and pay his bid, merely on the ground that appellee did not know that the representations were false when he made them ;• nor will a court of iaw permit appellee to recover a sum of' money which he induced appellant to bid for the land by such false representations, upon the excuse that he did not know them, to be false.

Whether the party misrepresenting a material fact knew it to be false, or made the representation without knowing whether it was true or false, is wholly immaterial, for the affirmation of' what one does not know or believe to be true, • is equally, in morals and law, as unjustifiable as the affirmation of what is-known to be positively false. And even if the party innocently misrepresent a material fact, by mistake, it is -equally conclusive, for it operates as a surprise and imposition on the other party, 1 Story Equity, sec. 193; Davis, adm’r, v. Heard, 44 Miss., 58; Wilcox v. Iowa Wesleyan University, 32 Iowa, 374; Blackman v. Johnson, 35 Ala., 252; Bennett v. Judson, 21 New York, 238; Smith et al. v. Mitchell, 6 Georgia, 458; Oswald v. McGehee, 28 Miss., 351; 1 Perry on Trusts, sec. 171; Rawle on Covenants for Title (4th ed.), p. 573, and notes.

The fact that appellee was -acting as guardian in making the-sale does not prevent the application of the rule.

If his wards had no title to the land, they will lose nothing by his failure to recover in the action; and he should not be permitted to. make money for them by obtaining an order from the-Probate Court to sell land to which they had no title,- and then inducing appellant to bid for it by representing to him that he-would get a good title.

Having charge of the property of his wards, real and personal, he would be presumed to have a better knowledge of what property they owned, and of the nature of their title than strangers. He should have acted with fairness before and at the sale, and offered to sell only such title as his wards had in the lands. Gantt’s Dig., sec. 3071. He should not have represented their title to be good in order to induce bidding, unless he knew it to such. To represent that the bidder would -get a good title to the land, when, in fact, as alleged by the answer, there was none in his wards, and he could convey no title whatever, was acting in bad faith, and neither a court of law or equity would aid him to be recover money on a bid induced by such representations. Atwood’s Adm’r, v. Wright et al., 29 Ala., 376, and eases above cited.

The judgment must be reversed, and the cause remanded to the court below with instructions to overrule appellee’s demurrer to the first paragraph of appellant’s answer, and for further proceedings, etc. •


text:
    Frits vs. Frits.
    1. Pleading.
    The allegation in an answer to a proceeding on a note, purporting to have been executed by the defendant, that she could not read or write, and if she executed the note did not know that it was a note, is not a sufficient denial to put the plaintiff upon proof of the execution.of the note, nor is it a sufficient allegation of fraud or imposition in obtaining its execution.
    2. Homestead: Mortgage upon, schedule, etc.

    Under the provisions of the Constitution of 1868, a married man or thehead of a family, could not encumber the homestead by mortgage, except for taxes, laborers’and mechanics’liens and purchase money; it is not necessary in such case for the mortgagor to file a schedule of the homestead.

      APPEAL from Madison Circuit Court in Chancery.
    Hon. J. M. Pittman, Circuit Judge.
    -, for appellant.

      Gregg, contra.

   English, Ch. J.:

On the 19th of August, 1876, Charles P. Frits filed a bill on the Chancery side of the Circuit Cou'rt of Madison County, against Jane Frits, to foreclose a mortgage upon lands.

The substance of the material allegations of the bill is, that on the 5th of August, 1869, the defendant being justly indebted to plaintiff, and for a valuable consideration, executed and delivered to him, a note of that date, by which she promised, for value received, to pay him six years after date §200, with interest from the 5th of August, 1872, payable yearly in advance, both principal and interest to become due on default of the payment of interest at any time due th'ereon. A copy of the note is exhibited.

That on the same day, to secure the payment of said note, she executed to him a mortgage conveying all the right, title, claim and interest which she had in and to certain lands which had been devised to her by her deceased husband, for and during the time she remained a widow, etc., and which are described in the bill and mortgage made an exhibit, as follows: the north half of the northeast quarter of section one, township fifteen north, range twenty-eight west, 12.54 acres off of the west side of the northwest quarter of the northwest quarter of section six, township fifteen north, range twenty-seven west; 9.96 acres off of the west side of the southwest quarter of the southwest quarter of section thirty-one, township sixteen north, range twenty-seven west. And the south half of the northeast quarter of section one, township fifteen north, range twenty-seven west.

All in said County of Madison, and known as the lands formerly owned by John Frits, deceased, and willed by him to Jane Frits to be held by her during the time she remained his widow.

The bill further alleges that but $30.62J (which was credited as paid in corn 5th November, 1870), had been paid upon the note secured by the mortgage, and that defendant remained a widow.

Prayer for foreclosure and sale, etc.

The defendant filed the following answer to the bill:

“ Defendant reserving, etc., for answer, etc., saith: that on the 5th day of August, 1869, she was not justly indebted to said plaintiff, and that she cannot read or write, and that if she, on the 5th of August, 1869, executed a note to the said plaintiff for two hundred dollars, she did not know that it was a n'ote, and that she has no knowledge or remembrance of executing but one paper, and that she was informed that that was a mortgage.

“This defendant further answering saith, that she is the widow of John Frits, Sr., deceased, and that he, the said John Frits, Sr., made and executed the will recited in said plaintiff’s complaint.

“ Defendant further saith, that the said plaintiff did not advance to her two hundred dollars upon condition that she would secure the same by mortgage on lands specified in plaintiff’s complaint.

“ Defendant further saith, that she was residing upon the lands described in said mortgage, on the 5th day of August, 1869, and was then, and still is, the widow of said deceased, and the head-of a family, and claimed and held the same as and for a homestead (except the south half of the northeast quarter of section one, township fifteen north, range twenty-seven), and now resides upon the said lands so mortgaged to said plaintiff, and claims and holds the same as and for a homestead.

“All which matters and things she is ready and willing to aver,, maintain and prove, etc., etc.”

Plaintiff demurred to the answer on the following grounds:

“First — Said answer does not contain facts which constitute a. defense to plaintiff’s action.

“Second — Said answer admits plaintiff’s cause of action and does not set up any valid defense.

“Ihird — Defendant admits that she executed a good and valid mortgage to'plaintiff, for a valuable consideration, and she cannot thereafter claim and hold said lands as a homestead.

“Fourth — The defendant shows by her answer (admitting the allegations in the complaint), that she was not the legal owner of said real estate, but she only held a conditional estate, which she had accepted in lieu of dower, and that she deeded away for her own individual debt, and she cannot hold a homestead in such estate after such conveyance.

“Fifth — The claim of homestead can only be set up against incumbrances created by law, such as judgment liens, etc., and she cannot set up such right against a valid deed of her own.” The court sustained the demurrer to the answer, and defendant electing to stand on her answer, a final decree was rendered against her for the debt, foreclosing the mortgage, and directing the lands to be sold by a commissioner, ’etc., and she appealed.

I. In Fenter et al. v. Obaugh et al., 17 Ark., 78, it was held that when a bond was misread, or its character misrepresented to an unlettered man, who was thereby induced to sign it, he was not bound by it.

No doubt appellant is illiterate, for besides the averment in the answer that she could neither read nor write, the note and mortgage, as exhibited with the bill, purport to have been executed by her by making her mark.

She was, however, aided by her solicitor in preparing her answer, and it is not alleged that the note was misread or misrepresented to her. The substance of so much of the answer as relates to the note is, that if she executed a note to plaintiff, on the 5th of August, 1869, for $200, she did not know that it was a note, and she had no knowledge or remembrance of executing’ but one paper, and that she was informed that it was a mortgage.

These allegations were not sufficient to make a case of fraud or imposition in obtaining the execution of the note within the rule as declared in Fenter et al. v. Obaugh et al.; nor, though the answer was sworn to, does it sufficiently deny the execution of the note to require appellee tobe put upon proof of its execution.

The answer, in effect, admits the execution of the' mortgage, and the making of the note is recited in the mortgage, and the body of it copied.

The court did not err in sustaining the demurrer to so much of the answer as relates to the execution of the note.

II. In Greenwood & Sons v. Maddox & Toms, 27 Ark., 657, this court decided, in effect, that under the exemption provisions of the Constitution of 1868, a married ’man or head of a family,, could not incumber the homestead by mortgage (except for taxes,, laborer’s and mechanics’ liens, purchase money, etc.), and directly so decided in Harbison v. Vaughan, not reported, but noted among the unreported cases on p. 15, 31 Ark.

Appellant in her answer states she was residing on the lands-described in the mortgage at the time of its execution, and continued to reside thereon, that she was a widow and the head of a family, etc., and claimed the lands as a homestead, except one of the tracts, which she designates, and which is not adjacent to the other tracts. The lands, as described in the bill and mortgage, Avhich she claims as a homestead, are contiguous, and contain less than 160 acres.

Counsel for appellee submits that the answer is defective in not alleging that appellant had scheduled the Lands claimed by her as a homestead, citing Norris et al. v. Kidd, 28 Ark., 486.

That case is unlike the one now before us. In that the claimant .permitted the land to be sold under an execution issued upon a judgment, without scheduling the property as required by the statute (Gantt’s Dig., sec. 263, etc.), and afterwards the homestead claim was set up 'as a defense to an action of ejectment by the purchaser, and was held to be too late.

Here the homestead claim was properly interposed in the answer to the bill to foreclose the mortgage, and condemn the lands to be sold to satisfy the debt.

The court erred in sustaining the demurrer to so much of the answer as sets up the homestead claim.

Admitting the answer to be true, as the demurrer did, appellee was only entitled to a decree of foreclosure and sale of the tract not claimed as part of the homestead.

So much of the decree as is for the debt and for foreclosure •and sale of the tract not claimed as a part of the homestead is affirmed, and the remainder of the decree reversed, at the costs •of appellee, and the cause remanded for further proceedings.