author: Mr. Chief Justice WalKee

text:
    Upham vs. Dodd.
    A landlord, under see. 14, oh. 100,'Dig-, p. 685, has alien upon the crop grown upon his land, which he may enforce in the mode pointed out by the statute in preference to all other claims against the tenant; but he has no title to such crop or any part of it by virtue of such lien.
    A sale of a certain quantity of lint cotton — part of an unginned crop — neither delivered, separated from the bulk, marked or otherwise identified, is but an agreement to sell and deliver that quantity; and the vendee acquires no .title to the property under such contract. {Better vs, Bloch, 19 Arh., 66*1.)

      Appeal from, Woodruff Ci/rcuit Court,

    Hon. L. B. Mace circuit judge.
    J. H. PattbesoN and Garland & Nash, for appellant.
    1. We take it, there was no evidence at all showing any sale of the cotton — no specifying the property — no delivery; but a mere general agreement that Dodd was to have some cotton, but it was net pointed out, marked or delivered. According to the rule laid down in Belter vs. Bloch, 19 Arh., 566, there was in truth no sale of the cotton so as to give Dodd title to it. And see Pothier on Contracts of Sale, 190 et seq. (§ 307 et seq.)

    2. If he had not the property in himself, he had only a lien on it by virtue of his being the landlord of Elder, and this would, in no event, give him a right to the property, but merely a lien on it. So, in any event, the finding of the jury was incorrect. No property could be adjudged in him (Dodd,) and therefore no damages could be found. Gould’s Big., p. 685, sec. 14, chap. 100; Acts 1860-61, p. 101, 2.
    3. The first instruction of Upham should have been given. It but spoke the law when it said if Dodd agreed to take certain property in payment he waived his lien. If he relied on his special contract in payment of his claim for rent, the lien is at an end. See Cross on Lien, 9 Law Lib. p. 44* et seq.; 16 Ves. 279; 1 Parsons on Con. 681 n. (a), Adams Eq. 128-9* (3 Amer. Edi) 3 J. J. Marsh., 553.
    4. The second instruction should also have been given. It but recognizes the doctrine that in all proceedings under a statutory remedy, the statute must be strictly followed. Hardeman vs. Shumate Meigs, Bep. 398, 403; Lawrence vs. Jenkins, † Yerg., 494-7; Edwards vs. Davis, 16 J. B. 281.
    Then if Dodd relies upon a sale of two bales of cotton he fails in his proof, as there was no such sale as the law contemplates. If he stands on his lien he has not pursued it as the law directs and his judgment is illegal.
    Wateins & Rose for appellee.
    I. By express law every landlord has a lien on the crop grown-on the demised premises in any -year. Gould’s Dig., p. 685, It is the essence of a lien that the party claiming it has the possession of the chattel upon which the lien exists; 5 Ham., 88. Property in the hands of a third person having a claim thereon is not attachable in a suit against the general owner. . 1 Gallis., 419.
    Oh the above propositions it was immaterial whether there was a sale of the cotton to Dodd or not. If there was no sale, Dodd’s right by virtue of his lien as against Upham’s attachment is unquestionable. If there was a sale then the verdict is right. In regard to the objection to the sale that there had been no delivery, it is sufficient to say that delivery was unnecessary, because in legal contemplation it was already in the possession of Dodd by virtue of the statutory lien. To insist on a delivery in such a case would be a work of supererogation.
    II. The instructions asked for on behalf of Upham were properly refused.
    The first instruction is founded on a supposed waiver of the lien by agreement,to receive “certain property” in payment.
    There was no waiver or abatement of the lien on the cotton because the “certain property” happened to be this same cotton upon which Dodd already had a lien by statute, and as to that there was no relinquishment oí possession — no additional security taken, nor other constructive abandonment of lien.
    As to the last two instructions they were properly refused, as the landlord has his option to elect a legal or equitable remedy; and because no one particular mode is prescribed by the statute to the exclusion of others. Furthermore this is not a proceeding to enforce a landlord’s lien — it is a proceeding by interplea under the statute.
   Mr. Chief Justice WalKee

delivered the opinion of the court.

The material facts in this case may be thus briefly stated. Dodd, the owner of a plantation in Woodruff county, rented part of it to one Elder, under an agreement to furnish Elder with a team and implements for farming, and supplies of subsistence— Elder to cultivate the land and to give to Dodd one half the crop raised. That with the exception of twenty-five bushels of corn, Dodd furnished nothing, and refused to do so; told Elder that “he would not make any thing any how, and that he (Elder) would have to take the crop and do the best he could with itThat Elder thereupon applied to Upham and obtained from him supplies; that being left without a horse, he procured and used an ox in plowing the crop. After the crop of cotton (less than four bales) had been picked and housed in the seed, (except about two hundred pounds of seed cotton which was afterwards picked and housed with the crop,) Upham sued out an attachment against Elder, and had the cotton, then housed upon the land of Dodd, but in possession of Elder, attached. On the morning of the day the attachment was levied, but before the levy, Dodd came to Elder and made an agreement with him, that Elder, for the use of the land, was to let Dodd have two bales of lint cotton, not to weigh less than 485 pounds each. That no delivery of the cotton w,as made, nor any part of it set apart to him.

Dodd appeared in court, and under the statute, was permitted to file his interplea; in which he set forth that the cotton attached was his property; to which the plaintiff, Upham, answered that the cotton attached was the property of Elder, and not his, Dodd’s. This issue was submitted to a jury, and verdict and. judgment for Dodd. A motion for new trial was overruled, Up-ham excepted and has brought the case here by appeal.

The whole question at issue turns upon the right of property in the cotton under the state of case thus presented.

As landlord, there can be no question but that Dodd, under the provisions of the 14th section of the statute, Dig., page 685, held a lien upon the crop of cotton grown upon his land, and had an unquestionable right to subject it to the payment of the debt for rent, in preference to all other claims against Elder, (the tenant.) But however perfect this lien maybe upon the property, it vested in Dodd no title whatever to the property itself. It was still Elder’s property, subject, however, to Dodd’s lien under the statute, and in the mode there pointed out. In the case of Davis vs. Parks, reported in 6th Yerger R., p. 252, suit was brought by the landlord against one who had purchased cotton from his tenant, claiming title to it as landlord under a statute lien, much like that given by our own statute. CateoN, Chief Justice,, who delivered the opinion of the court, said that the landlord could not maintain his action against the purchaser of the cotton; that the title to the cotton did not vest in him by reason of his lien upon it; that if such were the effect of the lien, even the miller who took toll for grinding, or the owner of a gin, for picking cotton, might be subjected to suit. But that such lien may be enforced by judgment and execution against the tenant, and that a levy of execution, when made, shall have precedence over all other debts for the length of time given by the statute. In the case of Hardeman vs. Shumate, 1 Meigs Rep., 398, the same question came up and the former opinion of the court was reviewed and affirmed. The court held that “the landlord had no property in or right to the crop grown by his tenant, and could maintain no action grounded upon any taking of, or trespass to it: that the landlord’s debt is entitled to satisfaction out of the crop growing, precedent to all other debts of the tenant, and this precedence is preserved by bringing suit for the debt within the three months after the debt falls due, and prosecuting it to judgment, the lien of which judgment and the execution thereon take date from the day the rent fell due.”

Such, in our opinion, would have been the rights of Dodd in this case, under our statute, admitting it to be true, as contended for by the appellee’s counsel, that there existed a lien in this case upon the crop of cotton in favor of Dodd.

But it is insisted, that if in this counsel should be mistaken, still Dodd, by virtue of his contract with Elder, became the owner of two bales of the cotton, and that, to that extent at least, the cotton levied upon was his.

There is no conflict in the evidence, with regard to the terms of the agreement between Dodd and Elder with regard to the cotton. The question is; whether it was so separated from the bulk of the cotton, marked, or otherwise identified, as to distinguish it as his, or delivered. "We think not. From the then condition of the cotton, most of which was seed cotton in the bulk, the balance in the field unpicked, considered in connection with the acts and declarations of the parties, and the contract made between them, it is apparent that something remained to be done before the sale was consummated. The cotton was in the seed, yet the contract was not for seed cotton, but for two bales of lint cotton baled, the bales to weigh 485 pounds. It was in bulk, not separated, and yet the contract was for a specific quantity. It is not pretended that any amount of cotton whatever was either set apart or delivered. The most that can be made of the contract is, that it was an agreement to sell and deliver a certain amount of ginned cotton — two bales at given weights. Under such a contract Dodd acquired no title to the property.

This question was considered and definitely settled by this court in the case of Beller vs. Block, 19 Ark. Rep., 567, in which it was held: “ That no sale is complete so as to vest in the vendee an immediate right of property so long as any thing remains to be done between the buyer and seller in relation to the goods. The goods sold must be separated and identified by marks and numbers, so as to be completely distinguished from all other goods, o.r from the bulk-or mass with which they happen to be mixed.”

From this view of the questions of law presented for our consideration, it is evident that the court erred in the instructions given to the jury. The distinct issue to be tried by the jury, was, whether the property upon which the attachment was levied, was the property of Dodd, the claimant, or Elder, the defendant in the attachment suit. And as we have seen that Dodd could acquire no such title to the property by force of a mere lien upon it, as to entitle him to recover it as his own, and that he acquired no title by his contract of purchase, there remains no shadow of ground upon which either of the instructions, or the finding of the jury, can rest.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Walkek,

license: Public Domain

text:
    State Use etc. vs. Croft.
    The declaration, in a suit upon a eounty treasurer’s bond, averingthat a specified sum, as appeared by the books, remained in the treasurer’s hands; that he had been summoned by the county court to settle his accounts but had failed to do so; that the court struck the balance due by him, and that he is justly indebted to the county as treasurer in such sum, which he had neglected and refused to pay, held sufficient to charge the sureties in the bond, without the averment of a formal judgment being rendered by the eounty court.

      Appeal from Greene Ovreuit Court.

    Hon. Z. Stoddakd, special judge.
    Watkins & Rose, for appellant.

      I. The declaration contains, substantially, the averments which it was insisted, were wanting.
    1. The act of January 11th, 1851, under which the bond sued on in this case was given did not require as a prerequisite to suit, that the county court should render adjudgment against the obligor for the balance due. If it be a prerequisite, then we insist that the stricking of the balance by the court is the same ■ thing, in effect, as the rendering of the judgment; because, rendering judgment is the act of the mind of the court rather than the mere formula of causing it to be entered at length upon the record.
    2. That the book referred to in the declaration is a record of the court, sufficiently appears from the averments.
    II. If these averments are wanting, their absence is of no material consequence, since the declaration is sufficient without them.
    1. A breach is well assigned if it be in the words of the contract, or in words co-extensive with its legal import. Its object is to apprise the opposite party of what he is called upon to answer. Phillips & Martin vs. Gov., 2 Ark., 389. Surplusage is not a subject of demurrer. Stephens on PI., p. 424; Gomyn’s Pig., Tit. Pleader, G. 28, E. 2. The condition of the bond is that Poole should pay over all moneys that might come to his hands by virtue of his office, etc. The breach (rejecting all the other averments as surplusage,) is that there came to his hands, as such officer, $805.01 more than he paid out, and that he is justly indebted, etc., in said sum. This would seem to be, within the rules, a sufficiently direct and positive averment of the receipt and non-payment of the amount by Poole.
   Mr. Chief Justice Walkek,

delivered the'opinion of the court.

This is an action of debt, brought in the name of the state, for the use of the common school commissioner and of the county of Greene, against the defendant, as security upon the official bond of the county treasurer of that county. The defendant demurred to the declaration and assigned numerous causes of demurrer, all of wbicb were overruled except the third, fourth and seventh causes, which were sustained, and for which the declaration was adjudged insufficient. The third ground of demurrer is, that it is not averred that the defendant is indebted to the county. The fourth cause is, that it is not averred that the county court had adjusted the account, found the balance due, and rendered judgment against the defendant tor it. The seventh.cause of demurrer is, that there is no breach of the condition of the bond.

The defendant, as the security of Pool, who was elected county treasurer, entered into bond conditioned that Pool would faithfully discharge the duties of treasurer of common schools, and should pay over all moneys which should come to his hands by virtue of his office, to the proper claimants, and in all things demean himself in office according to law. Pool entered upon the duties of his office, and as such officer received eight hundred and five dollars and one cent more than he paid out for the use of common schools of said county.

TJnder the statute, it became the duty of the treasurer to make settlements with the court, and to pay over the balance of the money received by him as such, to those entitled to receive it. Upon the failure of the'treasurer to make settlement, and pay as required by law, and by the condition of his bond, it is made the duty of the county court, (whose duty it is to have an account kept of the amount of money received and the amount paid out and expended by the treasurer,) to cause settlement to be made with the treasurer, to ascertain the state of accounts, and strike the balance, if any, due by him. This it was necessary to do, in order to fix the liability of the treasurer and his securities upon the bond ; and in an action upon the bond for a breach thereof, in failing to account and pay over money was a necessary averment, as held by this court in Jones et al. vs. The State use etc., 14 Ark. Rep.) 170, and in several other cases. This is the only material question presented by the demurrer, and it only remains for us to determine whether this averment has been sufficiently made.

It is averred that the sum of eight hundred and five dollars and one cent, as appeared from the boohs, remained in the treasurer’s hands; that he was summoned to appear in court and settle, but failed to do so, and that the court struelc that sum -as the balance against him; that he failed to make settlement with the court at the time required by law, and is justly indebted as such treasurer, to the county, in the sum of eight hundred and five dollars and one cent for the use, etc., which he neglected and refused to pay over, or any part thereof, or the sum of ten thousand dollars, or any part thereof, either to his successor or to the plaintiff for the use etc., although said court struck a balance against him for such sum so found due from him to the school fund by said court, as the records of said court show.

Without following the precise order and connexion of these averments, (interspersed with which is much superfluous matter,) we have given what we suppose to be the substance of the aver-ments ; upon a fair consideration of which we think them sufficient to bring this case within the spirit of the rule laid down in our former decisions referred to, which we do not understand as deciding that there must in such cases be a formal judgment rendered for the amount ascertained to be due. The material matter is to liquidate and settle the amount actually due; it is the more appropriate, if not the peculiar province of the county court to do this; for, as remarked in the case of Jones et al. vs. The State, unless settled by the county court, whose province it is to have the accounts kept and to make settlement, the whole subject of settlement and account would be transferred to the circuit court, upon an issue as to the amount of damages.

When the action of the county court in this case is considered with the additional facts averred; that Pool and his securities were summoned to appear in court and make settlement, and had failed to appear, and that the books showed the balance due, which was struelc by the court, followed by a breach that the balance of $805.01 was found due and struck against Pool as due to tbe school fund by the court as the records of the court show, we think they amount, substantially, to an averment that the county court proceeded to settle, adjust and determine the amount really due from the treasurer to the common school fund, and that such adjustment and settlement are ‘ shown by the records of that court.

Thus considering the questions presented by the demurrer, we think the declaration sufficient to charge the defendant.

Let the judgment of the circuit court be reversed.


author: Ur. Chief Justice Waleee

text:
    Yell vs. Snow.
    The principles decided in Roane vs. Green & Wilson, approved.
    On demurrer the court will consider the sufficiency of the previous pleading.
    The suit by petition in debt must be brought by the parties to whom the note was given, not by one of several payees, unless there be an assignment, which must be averred.

      Appeal from Jefferson Ci/reuit Court.

    Hon. ¥m. M. HareisoN, Circuit Judge.
    Tell for appellant.
    PiCE for appellee.
   Ur. Chief Justice Waleee

delivered the opinion of the court.

The plaintiff, Snow, tiled in the Jefferson circuit court, the following petition:

“Tour petitioner, "William D. Snow, the plaintiff in this cause states that he is the legal owner of a bond against H. P. Tell, as administrator of S. Gaster, dec., James Tell and Ií. P. Tell, (the said James Tell being alone sued in this action) to the following effect: .

4 Pene Bluff, Aeic, January 23,1863.

$1,000.

One year after date, we promise to pay Snow & Ketchum or order the sum of one thousand dollars (borrowed money,) with eight per cent, interest per annum thereon from date until paid. Witness our hands and seals.

H. P. Tell, [Seal] as adm’r of S. Gaster, dec.

James Tell, [iSéai.]

H. P. Tell, [Seal¡\

Tet the debt remains unpaid, therefore he demands judgment for his debt and damages for the detention thereof, together with his costs.

B. P. Bice, attorney for plaintiff.

To this petition the defendant, Tell, filed several special pleas, to which the plaintiff demurred. The demurrers were sustained by the court, and the defendant, electing to rest' upon his demurrer, final judgment was rendered against him, from which he has appealed to this court.

The defence attempted to be set up in the pleas was the same as that interposed by Julia Hoane in the case of Oreen & Wilson against her, decided at the last term of this court, and upon the authority of that decision, the pleas were fatally defective.

But the counsel for Tell contends that, conceding the pleas to be insufficient, yet as the petition was also insufficient, the court below should have given judgment upon the demurrer in favor of the defendant, upon the familiar rule that upon demurrer to the plea the court must look into the sufficiency of the declaration, and give judgment against the party who commits the first error.

Upon examination of the petition it will be seen that Snow, the plaintiff, claims to be the legal owner of a writing obligatory executed by the defendant and others to Snow & Ketchum. It was to them, and not to "William D. Snow individually, the defendant was bound to pay. It is a familiar rule that the, action must be brought in the name of the party in whom the legal interest in the contract was vested, (1 Oh. PI. p. 2,) which has been repeatedly recognized by this - court, commencing with Phillips vs. Brown, 1 Ark. R., 61; and in a late case, Hardie vs. Mills, 20 Ark. R. p. 151, the same state of pleading was presented as in this case. In that case, suit by petition was brought by Mills, upon a bond payable to Jackson & Mills. IJpon demurrer the petition was held insufficient, because in Jackson & Mills-were vested the legal title and right of action, and unless assigned to the plaintiff (which, if done, should have been averred) there was no right of action in Mills alone.

Fully recognizing the correctness of this decision, we must hold the petition for like reasons insufficient in this case; and upon demurrer to the -defendant’s pleas, the court should, under the state of the whole pleading, have rendered judgment for the defendant.

Let the judgment be reversed.


author: Mr. Justice ComptoN

text:
    Denton vs. Brownlee, Homer & Co.
    There oan be no suspension of the statute of limitations under the 3d and 7th sections of the act approved 31st May, 1864, {Acts of 1864-6, p, 46,) if the net is constitutional, unless it is shown that the party belonged to that class of persons as to whom the eolleetion of debts was suspended.
    The case of Bennett ad. vs. Worthington, ante, approved.
    The provision of the 32d section of the limitation aet {Gould’s Big., eh., 106,) does not give the plaintiff the benefit of the exception where the improper act of the defendant is done after the cause of action has accrued — the disability of the plaintiff to sue in consequence of the act of the defendant, must exist at the time the cause of action accrues.
    The issue to a replication setting up matter insufficient to avoid a good plea, is immaterial, and the judgment rendered thereon erroneous.

      Appeal from Ga/rroll Ovrcuit Court.

    Stillwell & Wassell, for appellant.
    G-eegg for appellees.
   Mr. Justice ComptoN

delivered the opinion ot the court.

This was an action of debt brought by Brownlee, Homer & Co., against Denton on a promissory note for $505.86, due and payable on the 30th September, 1860.

The defendant pleaded, 1st. That the' cause of action did not accrue within five years next before the commencement of the suit; and 2d, That after the making of the promissory note, the plaintiffs aided and abetted the so-called Confederate States in the late rebellion, giving money, arms and subsistence to the insurgents. This latter plea was stricken out, and properly so, as is conceded by the counsel for the appellant; leaving as the only defence to the action, the plea ot the statute of limitations, to which the plaintiffs filed five replications.

The first replication alleges “ that the promissory note sued on was made prior to the 1st day of January, 1864.” The object of this replication was to bring the defendant within the provisions of an act of the legislature, approved 3d May, 1864. The act provides ■ that no suit “for the collection of debts contracted by persons now in the military service of the United States, or of the state of Arkansas, prior to the 1st day of January, 1864, shall be brought in any court of this state so long as said persons are in said military service:” and it further provides “ that the statute of limitations shall not take effect against debts, the collection of which is suspended by this act.” {Ads 1864-5, p. 45, sees. 3, 7.) Waiving the question as to whether the provisions of the act above quoted, are constitutional or not, it is sufficient to remark that the replication does not aver that the defendant belonged to that class of persons as to whom the collection of debts was suspended. Unless he was of that class, there could be, as to debts against him, no suspension of the statute of limitations. The court therefore erred in overruling the defendant’s demurrer to this replication.

The second replication alleges that, after the accrual of the cause of action, the ordinary course of judicial proceeding was so interrupted, by reason of the late civil war, that suit could not be commenced against the defendant, and that the plaintiffs commenced their suit within five years next after the accrual of said cause of action — the time during which judicial proceedings were so interrupted not being deemed and taken as any part of said period of five years. This replication is substantially the same as that in the case of Bennett adr. vs. Worthington, decided at the last term of this court, where it was held that the replication was no answer to the defendant’s plea. Hence there was error in overruling the demurrer to this replication.

The third replication having been held bad on demurrer, no question arising upon it, is presented for the consideration of this court.

On the fourth and fifth replications issues were made up and submitted to the jury, who found for the plaintiffs, and judgment was rendered accordingly, for the debt and damages, with costs of suit, to reverse which the defendant appealed. Upon this state of case it remains to be determined — first, -whether the fourth and fifth replications were defective; and, second, if defective, whether the defect is cured by the verdict.

The fourth replication alleges that, after the accrual of the cause of action, the defendant, on to wit: the 6th day of May, 1861, by an [improper act of his own, to wit: by engaging with divers other persons in rebellion and war against the lawful authority and government of the United States, and of the state of Arkansas, for a long space of time, to wit: until the 18th day of April, 1864, prevented the commencement of the plaintiffs’ action, and that the plaintiffs brought their said action within the time limited by law for bringing the same after the commencement thereof ceased to be so prevented. This replication, involves a construction of the 32d section of the limitation act (Gould’s Dig., ohwp. 106,) which provides that, “ if any person, by leaving the county, absconding or concealing himself, or any other improper act of his own, prevent the commencement of any action in this act specified, such action may be commenced within the times respectively limited, after the commencement of such action shall have ceased to be so prevented.” "Without discussing other objections that might be taken to the replication, it may be observed that the section of the act on which it is based, contains no express provision to the effect that the plaintiff shall have the benefit of the exception where the improper act of the defendant is done after the right of action has accrued, nor is such provision apparent by necessary implication. If, instead of allowing the plaintiff the full period of limitation, in which to sue, after the hindrances indicated have ceased to exist, it had been provided that the space of time during which such suit could not be brought, should not be taken as part of the time limited for the commencement of the action, as is provided by the 30th section of the same act, in cases where the suit is stayed by injunction, it might be inferred that it was the intention of the legislature to allow the plaintiff to take advantage of the exception, though the wrongful act of the defendant was done after the accrual of the right of action. As a general rule, when the statute of limitations once begins to run, it continues to do so until the bar is complete, unless provision is otherwise made, and the section under consideration makes no such provision. It merely provides for a disability in the plaintiff, arising from the act of the defendant, and we think the disability must exist at the time the cause of action accrues: indeed this conclusion would seem to be unavoidable, in view of the 31st section of the statute, which enacts that no person shall avail himself of any disability in the act mentioned unless the disability existed at the time the right of action accrued. .We are aware that a different view seems to be intimated in Peters vs. Harris, 6 Eng., 294, but in that case^ the replications did not raise, nor did the court decide the question now presented. The replication in this case expressly avers that the act of the defendant, which it is alleged prevented the commencement of suit, was done after the accrual of the cause of action, and for this reason we hold it insufficient.

The fifth replication is, iri substance, the same as the second, and upon the authority of Bennett adr. vs. Worthington, supra, is no answer to the plea.

The fourth and fifth replications being defective, the only, remaining question is whether the defect is cured by the verdict. In Hughes vs. Sloan, 3 Eng., 146, this court adopting the language of Mr. Chitty in his work on pleading, lays down the general rule to be that “ When there is any defect, imperfection or omission in pleading, whether in substance or form, which would have been a fatal objection upon demurrer; yet if the issue proved to be such as necessarily required, on the trial, proof of the facts, so defectively or imperfectly stated, or omitted, and without which it is not to he-presumed that the judge would have directed the jury to give, or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict.” Applying this rule to the replications in the case before us, it is manifest that they are not cured by the verdict. . The replications do not contain a defective statement of matter which, if jrroperly stated, would have been good in avoidance of the plea, but the matter set up is, itself, insufficient. The issues formed were, therefore, immaterial, and the judgment rendered thereon erroneous. Hughes vs. Sloan, 3 Eng., 146; Lowry vs. Drake's heirs, 1 Dana, 46.

Let the judgment be reversed and the cause remanded with leave to the plaintiffs to reply de novo to the defendant’s plea, if they shall desire to do so.


author: Mr. Justice OomptoN

text:
    Hampton et al. vs. Physick, Adm’r.
    Although the probate court may fail to make an order vesting the entire estate of a deceased husband in the widow, when it does not exceed three hundred dollars, she may, in a proceeding against her to account for the estate, show that it did not exceed that sum, and thus avail herself of the benefit of the statute.

      Appeal from Hot Spring Circuit Court.

    Hon. Libeety Bartlett, Circuit Judge.
    Garland & Nash, for appellants.
    If tbe estate amounted to only $300, Mrs. Jackson did not take tbe proper course to have it given to her. There was no petition to court, no order of court. The statute upon which she relies was not complied with. Gould’s Dig., ch. 4,p. 104, sec. 3.
    According to the testimony the value of Jackson’s estate is variously estimated; but there is no doubt that the estate was worth more than $300 ; that J ackson paid in his life time a portion of the purchase money on the land, and that Mrs. Jackson paid the other out of personalty of the estate. Equity will regard her simply as a trustee for the estate and hold the land as property belonging to Jackson’s estate. Hill on Trustees, 114, 534, (2d Amer. Ed.) Adams Equity, 143, (3d! Amer. Ed)

    WatkiNS & Nose, for appellee.
    On the merits, the bill was properly dismissed, as the answer and proof show.
    The suit was revived on the suggestion of the complainants below, against the heirs of Priscilla Adams without naming them; it results that no decree could have been rendered in favor of those complainants, and they have no ground of appeal from the appeal from the decree dismissing their bill, even though it had not been done on the merits.
   Mr. Justice OomptoN

delivered the opinion of the court.

The bill in this case alleges that James Jackson died intestate, on the loth day of June, 1852, leaving him surviving Priscilla Jackson, his widow, and the complainants his only heirs at law and distributees; that at the time of his death, he was the owner of a tract of land lying in Hot Spring county, and of personal property of the value oí about eleven hundred dollars ; that he purchased the land in 1851, from George C. Miller, who executed to him a title bond íor the same, and that, when Jackson died, the greater part of the purchase money remained due and unpaid to Miller; that no administration on his estate was ever taken out; that Mrs. Jackson, the widow, sold and appropriated to her own use the entire personalty, and that she paid Miller the residue of the purchase money for the land out of the assets of the estate, and took a deed for the same in her own name and for her own use.

The bill prays an account of the personalty so converted,- and for partition oí the realty, after first assigning dower to Mrs. Jackson, etc.

The proof read at the hearing in the court below does not sustain the case made by the bill. It appears that, although James Jackson purchased the land from Miller and paid him part of the purchase money therefor, he conveyed his interest in the same to his sons, Pleasant and Branson Jackson, shortly before his death, by assignment to them of Miller’s title bond; that Pleasant and Branson died without having paid the residue of the purchase money to Miller, and leaving them surviving Mrs. Jackson, their sole heir at law and distributee, who, as such, became the owner of their entire estate; that, afterwards, Mrs. Jackson purchased the land from Miller for the sum of seven hundred dollars, who executed to her a deed, bearing date the 15th of June, 1853, she having paid the purchase money for the same with her own property, the larger portion of which came to her as next of kin to-her two sons, Pleasant and Branson. James Jackson was not, therefore, the owner of the land in controversy, at the time of his death. The evidence also clearly shows that his entire estate did not exceed, in value, the sum of three hundred dollars. In such case, the statute provides- that the probate court shall make an order vesting the estate absolutely in the widow, (Gould’s Dig., ch. 4, see. 3;) and although it does not appear that such a decree had been rendered, vesting the estate in Mrs. Jackson, it was, nevertheless, competent for her to show, as she did do, that the value of the estate did not exceed three hundred dollars, and thus avail herself, in this proceeding of the benefit of the statute.

According to the view we have taken, the circuit judge, sitting in chancery, did not err in dismissing the bill for want of equity, and the decree must be affirmed.


author: Mr. Justice GlendeNIN

text:
    Crawley vs. Riggs et al.
    Where the vendor conveys land by deed, taking the note of the vendee for the purchase money, a mere assignment of the note does not transfer to the assignee the benefit of the vendor’s lien upon the land for the payment of the purchase money, (18 Ark., 15T) — the lien of the vendor being personal to him, and not assignable unless under some peculiar equitable circumstances. (14 Ark., 684.) But the peculiar equitable circumstances under which the vendor’s lien follows the-notes in the hands of an assignee do exist, where the assignment is made as collateral security for the notes of the vendor; the assignee, in such casej holding the lien as well for the benefit of the assignor as for himself, is subro- ■ gated to all his equities.

      Appeal from Jeferson Circuit Court in Chancery.

    Hon. ¥m. M. Harrison, Circuit Jucjge.
    ENGLISH for the appellant.
    Riggs had a vendor’s lien on the land he sold to Harris to secure the two notes which Harris gave him for the purchase money ; and he assigned the two notes to Crawley as collaterals. The appellant seeks by this bill to collect the collaterals by enforcing Riggs’ lien for the benefit of Riggs, and the casé stands just as if Riggs himself had filed the bill to enforce the lien.
    In /Shall as ad. vs. Biscoe et al., 18 Arle., 142, the question whether the lien of the vendor passed with the assignment of the note for the purchase money was fully discussed and decided. On page 162, the court, quoting from a decision of New York, say: “If the note is assigned or transferred to a third person for his benefit, the lien of the vendor is gone forever. The reason is there is no peculiar equity in favor of third persons. But that does not apply where, as in this pase, the transfer is only for the purpose of paying the debt of the vendor so far as it may be available, and is therefore for his benefit. There the equity (the vendor’s lien) continues-.” The case quoted from is Hallock vs. Smith, 3 Barbour, S. C. B., 272.
    The case now before the court falls within this rule. Here the assignment was not in the ordinary course of business, but the notes were assigned as collaterals and are still held as collaterals, for the benefit of Riggs.
    MoCraokrn for appellees.
    The solicitor for the appellees submits the following points and authorities:
    The assignment of the notes for the purchase money did not carry with it the lien on the land in said transcript described, and vest in the appellant the right to foreclose as in his bill is claimed. And hence the demurrer of the said defendant Harris to the said appellant’s bill in the court below was properly sustained, and said bill dismissed for want of equity. See Moore c& ' Gail admr. vs. Anders, 14 Arh, 628; Pettit et al. vs. Johnson et al., lo ib., 55; Shall as ad- vs. Biseoe et al. 18 Arh, 142,
   Mr. Justice GlendeNIN

delivered the opinion of the court.

The complainant, and appellant, hied his bill in the circuit court in chancery, alleging in substance: that on the 4th of July, 1860, Zachariah Eiggs,' the intestate of Ann T. Eiggs, admin-istratrix, being indebted to W. G. Crawley for a tract of land, executed to W. G. Crawley a writing obligatory for $2,394.64 of that date, payable on the 1st January, 1861, which W. G. Crawley, before the death of Eiggs, assigned to J. F.-Crawley (the complainant in the bill and appellant in his court:) that the obligation had been duly probated by J. F. Crawley against the estate of Eiggs: that Eiggs, on the 10th of December, 1859, sold to J. W. Harris a tract of land in Jefferson county for the consideration of $1100 in cash, and $1,341.50 to be paid on the 1st of January, 1861, and a like sum to be paid on the 1st of January, 1862, with interest, which deferred payments were evidenced by the notes of Harris to Eiggs, dated and payable as stated: that at the date of the sale, Eiggs executed to Harris a deed for the land, specifying on the face of the deed the two notes for the deferred payments, which deed was duly recorded : that Eiggs, being so indebted to W. G. Crawley, by the writing obligatory of July 4, 1860, and the lands which he had purchased from Crawley being liable therefor, he some time prior to the 25th December, 1865, to induce W. G. Crawlej^ to release said lands and make a deed therefor, assigned to him the two notes of John F. Harris, it being understood that the notes so assigned as collateral security for the payment of said writing obligatory given by Eiggs to William G. Crawley, and that when the same were collected, the money should be applied to the payment- of said writing obligatory: that afterwards, when Wm. G. Crawley assigned the writing obligatory of Eiggs to John F. Crawley, he also assigned to him the two notes of Harris: that Harris bad paid complainant $740, which had been credited on the writing obligatory of Higgs, and also on the two notes of Harris, and that no other payments had been made.

The prayer of the bill seeks to enforce a lien on the lands sold by Higgs to Harris, for the satisfaction of the balance due on the notes given by Harris for the lands sold to him by Riggs.

Mrs. Higgs, the administratrix of Higgs, answered the bill, admitting it ito be true, and praying that after the payment of the writing obligatory of Higgs to W. Gr. Crawley, and by him assigned to the complainant, the balance due on the notes of Harris should be decreed to her as such administratrix.

Harris demurred to the bill, and the court having sustained the demurrer, Crawley appealed.

There can be no question that if Higgs, the vendor was alive, and had the notes of Harris in his posséssion, he could enforce the lien upon the lands sold to Harris; so if the notes were in the possession of the personal representatives of Higgs, they could enforce the lien. This court, in the case of Shall as adr. et al. vs. Biscoe et al. 18 Ark., 157, on this point, say: “ It is very well settled in England and in most of the states of this union, that, in equity, the vendor of land has a lien for the purchase money, not only against the vendee himself and his heirs and other privies in estate, but also against all subsequent purchasers, having notice that the purchase money remained unpaid. The lien exists although there .be no special agreement for that purpose, and notwithstanding the vendor conveys the land by deed, and takes the note or bond of the vendee for the purchase money: To the extent of the lien the vendee 'becomes a trustee for the vendor and his heirs, etc., and all other persons claiming under him with such notice, are treated in the same predicament.”

The question then arises: the lien for the purchase money being perfect in Higgs, could he, by the assignment of the notes for the purchase money, assign the lien he had as vendor?.

The American decisions on this point are very much in conflict. But this court in the case of Shall adm. et al. vs. Biscoe et al., after a very full review of the decisions, remark, “ that the weight of authority is, that where the vendor conveys the land by deed, taking the note of the vendee for the purchase money, a mere assignment of the note does not transfer to the assignee 'the benefit of the vendor’s lien upon the land for the payment of the purchase money.” And in the case of Moore & Cail, admr. vs. Anders, 14 Ark., 634, the court say : u The weight of authority, no doubt, is, that the equitable lien of the vendor is personal to him, and is not, unless under some peculiar equitable circumstances, assignable.” This being the law we must inquire whether this was an assignment by Riggs to Crawley in the ordinary course of business, which would deprive Crawley of the lien, or whether it was not such a transfer of the notes to Crawley, presenting such peculiar equitable circumstances as would subrogate Crawley to the lien of Riggs upon the land sold to Harris, and whether the equity does not continue.

Riggs, it appears, was indebted to "YV. G. Crawley, for a tract of land, in the sum of $2,398.64, bearing interest; soon afterwards, Riggs sold a tract of land to Harris, and Harris owed him a balance (evidenced by notes bearing interest for $2,683.00.) Riggs, to get title to his land from Crawley assigned Harris’ notes to Crawley as collateral security, and. ~W. G. Crawley assigned both the notes of Riggs and the two notes of Harris to John R. Craw-ley, and Harris recognizing the transaction paid to J. R. Crawley, the complainant, $740, which was credited on his own notes and also on the note of Riggs.

Riggs could, at. any time before his death, and his representatives could, afterwards, have paid his note to Crawley, and have taken back the notes of Harris, and enforced his lien. He had not, according to the bill, absolutely and unqualifiedly parted with the notes; they were collaterals in the hands of Crawley for the payment of Riggs’ own debt, and under these circumstances, the equity continued with the notes. And we think that Craw-ley, the complainant-, may well be subrogated to the lien which Riggs would have had in his lifetime, and his representatives have now, on the payment of the debt of Riggs to Crawley. The complainant is entitled to enforce the lien; it is partly for his benefit, but generally for the benefit of the estate of Riggs; and two suits are not necessary to do that which can be done by one. Equity abhors a multiplicity of suits, and we will not require the complainant to prosecute his claim against the estate of Riggs and after its payment, that Riggs’ representative shall proceed to enforce the lien against the land sold to Harris.

Judge Story says: “ The lien of the vendor is not confined to himself alone, but in case of his death, it extends to his personal representatives. It may, also, be enforced in favor of a third person, notwithstanding the doubts formerly expressed by Lord Hardwick; as for example, it may be enforced by marshaling assets, in favor of legatees and creditors, and giving the benefit by way of substitution to the vendor, when he seeks payment out of the personal assets of the vendee. Story’s Eq. Jurisprudence, chap. 33, Sec. 1227. And in the case of Halleck vs. Smith, 3 Barb. S. C. R., (N. Y.) 272, the court say, in referring to a point similar to the one before us, “ If the vendor take a note or bond from the vendee, for the purchase money, that is no waiver of the lien, for such instruments are only evidences of the debt. But if the note or bond is transferred to a third person, for his benefit, the security is gone forever. The reason is, that there is no peculiar equity in favor of the third person. But that does not apply where, as in this case, the transfer is only for the purpose of paying the debt of the vendor, so for as it may be available, and is therefore for his benefit. There the equity continues.”

We therefore think, from the facts of this case, as shown by the bill, and the authorities we have examined, that the circuit court in chancery erred in sustaining the demurrer to the bill, and its judgment must be reversed, with instructions to overrule the demurrer to the bill, and to permit the defendant Harris to answer if he wishes to do so.


author: Mr. Justice CleNdeniN

text:
    Wade vs. Bridges ad. ad litem.
    According to the forms and rules of pleading a plea in abatement ia defective, •which does not pray for a particular and proper judgment; and in such case the court will not give the proper judgment on the whole record as on pleas in bar, (18 Ark., 359.)
    A plea which sets up a defective defence, or a defence defectively stated, must be met by demurrer, not by motion to strike out. (6 Ark., 196; 16 id, 669.)
    It is error to adjudicate and render judgment in favor of a plea to which there is no issue.
    The 10th section, chap. 1 Gould’s Digest, authorizing the appointment, by the courts, of administrators ad litem, is not in violation of the constitution.

      Error to Dallas Ciremt Coucrt.

    Hon. Liberty Bartlett, Circuit J udge.
    "WARKiNS & Bose for plaintiff in error.
    This court should give such judgment, upon the whole record, as the court below ought to have given. Digest, title Practice in Supreme Court, seo. 37.
    The plea in form was a plea in bar, but the matter set up was only pleadable in abatement, and the motion to strike out the plea ought to have been sustained. Mcmdelvs. Peel, Sims dé Co. 18 Ark., 236; loimds, Orgill dé Co., vs. Brown et al., 22 Ark., 359; Edmondson vs. Carnall, 17 Ark., 285.
    The plea was'sustained, costs adjudged against the plaintiff and the attachment dissolved — all done;without any issue upon the plea or trial of it. And the plea was frivolous — the alleged defect in the affidavit being so obviously a mere clerical misprision, that it should be considered as amended. Mitehell vs. Conley 13 Ark., 420.
    The plea was interposed by a party called Administrator ad litem. It is submitted the act of January 10th-, 1851, authorizing any court to appoint a special administrator, is unconstitutional, because in parceling out jurisdiction, that relating to estates of deceased persons is confided to courts of probate. The administration law was designed to be a complete harmonious system. Barrassien vs. Odum, 17 Ark., 122; Walker vs. Byers, 11 Ark., 247; Bennett vs. Dawson, 18 Ark., 334; ILomer vs. Hanks, 22 Ark., 573; Brown vs. Merriok, 16 Ark., 612.
    Without qualification, without bond or security, without letters, without accountability, with all powers for harm, and none for good, a special administrator, if his acts are binding on the estate he assumes to represent, is a monstrosity, in view of the administration system, and the act in question ought to be strictly construed. On principle, the plea, to be sufficiently certain, ought to have alleged that there was no administration on the estate; and if the act is to be sustained, it should be construed in pari materia with the general administration law, and the special administrator required to make affidavit and give bond, as in all other cases, before he could act in a representative capacity, so as to bind the estate.
   Mr. Justice CleNdeniN

delivered the opinion of the court.

This was a proceeding by attachment in the circuit court of Dallas county, by petition, against Miller W. McCraw. The petition, writ and return, as well as the bond and affidavit are copied in the transcript.

At the March term, 1866, there being no personal service upon the- defendant, an order of publication was made, and at the September term, 1866, the following order appears: “ came said Wade by attorney, and suggests and shows to the court that said McCraw has departed this life;” and on another day of the term after is the following order, “ came the plaintiff by attorney, and on his motion it is ordered that William U. Bridges be appointed administrator ad litem in this case.”

The administrator ad litem appeared and filed the following-plea:

“ And the said defendant comes and defends the wrong and injury, and says that the affidavit filed herein is insufficient in this, that said affidavit says £ remove his goods and effects oí this state,’ whereas it should have stated, 'remove his goods and effects out of this state,’ and this he is ready to verity, wherefore he prays judgment,” annexed to which is an affidavit in good form.

The plaintiff moved to strike out this plea, which motion was overruled, and judgment for cost oí motion entered. T.he record then states the following : “ Said plea in abatement is submitted on argument of counsel and by the court sustained,” and judgment for costs on said plea is given, and that the attachment in this case be dissolved.” To which the plaintiff excepted.

The defendant then entered his appearance, but making no other defence, final judgment was rendered for the plaintiff and he sued out his writ of error; and we have thus before us the record.

The plaintiff assigns for error :

1st. That the court refused to strike out the plea in abatement.

2d. That the court, erred in sustaining the said plea in abatement.

3d. The court erred in dissolving the attachment.

And the counsel of the plaintiff in their argument submit to us, and question thé constitutionality of the law of this state, authorizing the circuit courts to appoint administrators ad litem.

We have had some difficulty at arriving at the conclusion, whether this plea is a plea in bar or in abatement. It has some of the requisites of both. As a plea in abatement, (for which we suppose it was intended,) according to the forms and rules of pleading, it is defective, both in its commencement and conclusion. It does not pray for any particular judgment, and without the defendant prays a particular and proper judgment in abatement, the court are not bound to give the proper judgment upon the whole record, as they would be in pleas in bar. 18 Ark., 359; 10 East, 87.

This, then, being a defective plea could it be reached by the motion to strike out? We think not. This court has heretofore held that a plea which merely sets up a defective defence, or a defence defectively stated, should be met by demurrer. Wilson & Turner vs. Shannon and wife, 6 Ark., 196; Alexander vs. Foster, 16 Ark., 669; Allis vs. Bender, 14 Ark., 627. And therefore the circuit court did not err in overruling the plaintiff’s motion to strike it out.

But we think that the court erred in sustaining the plea: There is no record showing that there was any issue to the plea for the court to determine, (even if the court could try an issue made upon a defective plea,) the record only stating that said plea in abatement is submitted to the court on argument of counsel and by the court sustained.”

As this case will be again before the circuit court, it is necessary for us to notice, and dispose of the question raised by the counsel, as to the constitutionality of the law authorizing the appointment of administrators ad litem.

The 12th section of the 7th article of the constitution of this state prescribes that, “ the qualified voters of each county shall elect a county and probate judge, who shall hold his office for two years, and until his successor is elected and qualified. He shall, in addition to the duties that may be required of him by law, as a presiding'judge of the county court be a judge of the court of probate, aud have such jurisdiction in matters relating to the estates of deceased persons, executors, administrators and guardians, as may be prescribed by law, until otherwise ordered by the general assembly.”

The section of the law deemed objectionable to this provision of the constitution is as follows : “ In all cases where suits may be instituted, and either plaintiff or defendant may die pending the same, it shall be lawful for the court, before which suit or suits may be pending, on motion of any party interested, to appoint a special administrator, in whose name the cause shall be revived, and said suit or suits shall progress in all respects in his name with like effect, as if tbe plaintiff or defendant, (as the case may be,) had remained in full life.” Seo. 10, oh. 1, Digest.

Itwill be seen by the the provision of the constitution that the probate court have ¿the exclusive jurisdiction in all matters connected with administrations, until otherwise directed by the general assembly; and that by the section of the law, the general assembly, in January, 1851, provided for the appointment of administrators ad litem.

"While we recognize the law heretofore decided by this court, that the administration laws of this state are, and are to be considered as a consistent and harmonious whole, we do not think that the section of the law under consideration is liable to the objection of marring that harmony and consistency. It is no part of the administration law, nor do we suppose the legislature so intended it to be. It was enacted after the administration laws were in force, and neither to cure their defects, nor impair their efficiency, but for the purpose of aiding parties litigating causes in the circuit courts, in their early and speedy* adj udication. It was not intended that the person so appointed, should have any of the ordinary powers of a regular administrator. He is in court alone for the purpose of prosecuting or defending the particular suit, in which he is appointed; he is not liable for costs, and upon the appointment of a general administrator, or the rendering of the final judgment his duties and powers cease. Seos. 10, 12, oh. 1, Digest. The appointment of guardians ad litem may be said to be liable to the same objection, as that made to administrators ad litem, because minors are peculiarly the objects of jurisdiction and care of the probate courts. Tet we know that it is the constant practice, justified by the law as we believe, and we are not aware that objection is ever made to such appointments ; and the courts always recognize the proceeding as valid.

With the policy of the law we have nothing to do; we can only construe it in connection with the constitution, and if in our view it is not in conflict with the constitution, it is our duty to carry out the expressed will of the legislature.

From the view we have thus taken oí the section under consideration, we do not think it is in conflict with the constitutional provision, before referred to.

But for the error before referred to this case must be reversed, and remanded to the circuit court with direction to that court to permit the parties to amend their pleadings if they wish to do so, and otherwise to proceed according to law and this opinion.

Mr. Justice. Compton did not sit in this case.


author: Mr. Chief Justice "Walker

text:
    McCravey vs. Cox.
    The service of a writ of summons upon Jonathan McCarver is not a legal notice to John MeCravey to appear and defend.

      Error to Washington Cvrouit Court.

    Hon. Elias Harrell, Circuit Judge.
    J. D. Waleer, for plaintiff.
    G-regg, contra.
   Mr. Chief Justice "Walker

delivered the opinion of the court.

This is an action of trover. At the return term the defendant made default; judgment was rendered, and at the next term of the court, a jury assessed the plaintiff’s damages, upon which judgment was rendered, to which a writ of error has been prosecuted from this court. The defendant made no appearance in the court below, and the only question is, whether there was or not service upon him. The plaintiff in error contends that there was not.

Upon referring to the record, we find a declaration and writ, followed by judgment against John McCravey. The return made by the sheriff upon the writ is, that he executed the within writ on the within named Jonathan McCarver.” That the two names are essentially different needs no argument. The service of the writ upon Jonathan McCarver was not notice to John McCravey to appear and defend .the suit, any more than if no return whatever had been made upon the writ. In point of fact, it may be true that the summons was served upon the defendant, but that the sheriff made a mistake in writing the return upon it. If such was the case, the plaintiff had it in his power to have the return amended according to the facts ; but this he has failed to do, and as appears from the record the return is insufficient to charge the defendant with notice.

The judgment of the circuit court must be reversed, and the cause remanded; and as the defendant has made himself a party to the record by prosecuting his writ of error in this court, he will be held as chargeable with notice in the court below, with leave to make such defence as he would have been entitled to make at the return term of the writ, if regularly served upoñ him.


text:
    Keller vs. Henry.
    A declaration in an action of forcible detainer, under the latter clause of the section, chap. *12, Gould’s Dig., alleging that the plaintiff “-was entitled thereto and lawfully possessed of ” certain lands, “which possession of right then belonged to the plaintiff, which right plaintiff in nowise alienated, transferred or conveyed away; but that the defendant afterwards lawfully and peaceably obtained possession of the land, and long after the termination of his right of possession thereof, has held and detained, and now holds the same unlawfully and by force after demand,” will not be held bad on motion in arrest of judgment, though it might be so held on demurrer.
    After verdict and judgment for the plaintiff, the judgment will not be arrested unless the record clearly shows a defective cause of action. Every intendment is to be made in favor of the declaration, and whatever is implied, or is infer-able from the state of the pleading will be presumed in favor of the pleading and judgment.
    The latter clause of the third section of said act was intended to provide for a class of cases wheive the defendant does not enter by force and violence, and yet does not enter by any agreement with the owner of the land; as where he enters peaceably upon premises which are at the time vacant, without the consent of the owner if absent, or without his objection if present; and holds the same unlawfully and by force, after demand made therefor in writing.
    In construing the several sections of the said act, so that they may be in harmony with each other, the court considers that the phrase “lawfully and peaceably obtain possession,” was not intended to apply alone to eases where the defendant entered under a lease from the owner, or by his express consent; but also to cases where the entry is such as to negative the idea of a forcible intrusion in the first instance, though not by express consent.
    Where the sheriff’s return of a writ of forcible detainer shows a personal service on the defendant, in substantial compliance with the statute, his return is not invalid because he fails to return a bond as required in such cases, although such failure may subject him to liability as an officer.
    In an action of this kind the jury cannot assess damages in favor of the plaintiff. The only judgment which the plaintiff can have, is for costs. (Gould's Dig., clt. 12, sec. 16.)

      Appeal from Washington Oirouit Oourt.

    Hon. Elias HaeRell, Circuit Judge.
    J. D. WalKee, for the appellant.
    The action of unlawful detainer is based on contract, either express or implied. The relation of landlord and tenant must -exist. See MeGuvre vs. Goofc, 13 Ark..M>0 ; Miller vs. Turner, ib. In his declaration, appellee expressly declares that the “right of possession belonged to him, and that he had never alienated transferred or conveyed away the same.” How, then, could a contract, express or implied, have existed? The declaration expressly negatives a contract.
    Title cannot ’be drawn in question in this action, and if defendant was in possession without license from the plaintiff, and had not entered with force, ejectment was the remedy. Miller vs. Tierney, 13 Ark., 388.
    Although courts will presume, after verdict, that the averments in a declaration are proven, they cannot presume that a cause of action is proven where none is stated, and it is error to render judgment. Bedell vs. Stevens, 8 Foster, (W. II.,) 118.
    The return of the sheriff shows no such service as authorized the court to render judgment by default. The return does not show the taking of any bond whatever; and the sheriff is expressly prohibited from executing the writ unless bond is given ; and he is required to make return of the facts. See sees. 11 — 12, chap. 72, Big.

    It is insisted for appellant that the judgment should have been arrested: 1st. On account of the failure of the declaration to show a contract expressed or implied — the declaration showing that the relation of landlord and tenant could not exist, “ that plaintiff had never parted with his right of possession.” 2d. That the service is not sufficient. 3d. That the court rendered judgment for the lands and tenements, and at a subsequent term rendered judgment for damages and costs.
    Gregg, for appellee.
    We submit that the sheriff’s return shows a valid service. The defendant in the court below was duly dispossessed and the writ read to him, and he was required to appear at the proper time and place to answer the plaintiff in the premises. The return of the bond was not an act necessary to the jurisdiction over the party. If the sheriff committed a failure in that, it left upon him the responsibility.
    "We submit also that the judgment rendered at the return term of the writ was strictly in accordance with law. It announced the defendant’s default, the plaintiff’s right to recover the property and damages, and that a jury came at the next term to assess damages. State use, etc. vs. Grow et al., 6 'Eng., 648; Goulds Dig., ch. 138, secs. 18, 82.
    And we further submit that the declaration in this case does disclose a good cause of action. It avers that the plaintiff was “ rightfully in the posession of the premises,” and thereafter the defendant came “ lawfully and peaceably ” into possession, and that long after the determination of any right to the possession, and after demand in writing, defendant refused to quit possession and unlawfully detained, etc.
    This action was based upon the latter clause of the 3d section of the act of forcible entry and detainer, and it was not necessary that the plaintiff should have averred that he contracted the premises to the defendant: The case of Miller vs. Turney, 13 Arh., 38, and the other decisions of this court were upon the first, not the second clause of the act.
    The plaintiff here averred his own right, his actual possession, and then, in the very words of the statute, that the defendant peaceably and lawfully came into posession; and the law implied a contract to pay for use and occupation and to redeliver.
    There is a clear distinction between the cases for which the remedies in the first and second clauses of the section were intended, and that distinction must be borne in mind in order to a clear understanding of the pleadings in the case. There is also a clear distinction between possession, and the right of possession, and under the second clause the plaintiff may have always had the right of possession, and he must have had such right when he brought his suit.
   Mr. Chief Justice "Walker

delivered the opinion of the court.

This is an action of forcible detamer, brought under the latter clause of the 3d section, of chap. 12, Gould's. Digest, page 542, which gives a right of action against any one who shall lawfully and peaceably obtain possession of the lands, tenements or possessions of another, and shall hold the same unlawfully and by force after demand. And the question presented by the motion in arrest of judgment is, whether the allegations in the declaration are sufficient to uphold the judgment by default rendered in favor of the plaintiff.

It is alleged in the declaration that on the 2d day of August, 1863, the plaintiff “was entitled thereto and lawfully possessed of certain lands, (describing them,) which possession of right'then belonged to the plaintiff, which right plaintiff in no wise alienated, transferred or conveyed away. But that the defendant afterwards lawfully and peaceably obtained possession of the land, and long after the termination of his right of possession thereof has held and detained, and now holds the same unlawfully and by force after demand.”

It is to be observed that there is no contract of lease or rent averred, indeed no contract whatever under which the defendant entered, but on the contrary the allegation that the plaintiff had never parted with his right of possession, negatives any conclusion that such was the case, and thus the point in controversy is raised: which is, that inasmuch as the defendant did not enter upon the premises under a contract or agreement with the plaintiff, (who is alleged to have been in possession and never to have conveyed or transferred the same,) the defendant must necessarily have entered unlawfully, and that the plaintiff’s right of action should be under the second section for forcible entry and detainer, and not under the third section for forcible detainer.

The proper construction to be given to .this statute has, upon several occasions, been considered by this court; but in no instance heretofore has a case been presented where the plaintiff’s right to recover has been based upon the latter clause of the 3d section. In the case of McGuire vs. Cook, 13 Ark., page 448, which was an action for forcible detainer, this court most carefully considered the right to recover under the first clause of the 3d section, and held that the action for an unlawful detainer under that clause is founded upon a breach of contract, but expressly reserved for future consideration, the proper construction to be given to the latter clause of that section, under which the present action is brought.

The 3d section provides that “when any person shall wilfully and forcibly hold over any lands, tenements or other possessions after the determination of the time for which they were demised or let to him or the person under whom he claims; or shall lawfully and peaceably obtain possession, but shall hold the same unlawfully and by force, and after demand made in writing for possession thereof by the person having a right to such possession, his agent or attorney shall refuse or neglect to quit such possession, such person shall be deemed guilty of an unlawful detainer.”

We may safely say, as was said in McGuire vs. Cook, that the •first clause in the section gives*the right of action to those who temporarily part with their right of possession under contract, such as exists between landlord and tenant; whilst' the latter clause provides, that if by any other means possession shall lawfully and peacefully be obtained, but held over unlawfully and by force after demand, such person shall be deemed guilty of an unlawful detainer. It will be perceived that much must depend upon the construction to be given to the words, “ lawfully and peaceably,” taken in connection with the whole section.

If we give to the word “lawfully” its fullest signification, we must thereby exclude the idea of any possession not taken by the consent of the party lawfully entitled to the possession; because, it is unlawful and wrongful for an entry to be made upon such possession without the consent of the owner, either express or implied: and if thus construed, the latter clause of the section would be rendered useless and superfluous, which should not be done, if by any fair mode of construction it can be avoided. By qualifying the meaning of the word, “ lawfully,” so as to give it the same effect as the word “ peaceably” in immediate connection with it, effect can be given to the latter clause, so as to give the right of action for a forcible detainer against all persons who enter peaceably upon the possessions of another, and unlawfully and by force hold the same after demand.

By thus construing the latter, clause of the section, a remedy will be ¿iven for all cases in which the entry was peaceable; and when taken in connection with the first clause of the section, affords a remedy in all cases of unlawful detainer where the entry was peaceable, whether under contract to enter or otherwise: whilst the second section gives a right of action in all cases where the entry is forcible; and thus considered, the two sections give redress to all persons aggrieved, whether the entry be forcible or peaceable, to be sought under the one or the other section, according to the facts of the case. "We will not attempt to enumerate the cases that might arise under the latter clause of this section, but can well conceive how an entry might be peaceably made, otherwise than under a contract with the owner of the land, or him who was entitled to the immediate possession; as, for instance, if the owner of a tenement should stand by and see one enter upon his possession, and should make no objection to his doing so. By such conduct there might arise'such an implied assent to such entry' as not only to .make it peaceable but lawful: or, in case a tenement should be abandoned by the owner, or one in possession under him, and a third person finding the tenement vacant should enter into it, although in strictness, it could not be said to be lawful for him to do so, still in a more liberal sense, as the entry was unattended with actual force, it might be held to be peaceable. And in support of this construction, we may refer to the case oí Green vs. Wroe and wife, 1 Sneed’s Rep., 246, where an entry was made in a vacant house, the doors being open. Such entry was .held to be neither forcible in fact, nor in law And in a later case, Hopkins vs. Caloway et al., 3 Sneed’s Rep., 11, the action being for forcible entry and detainer, hi which, as appeared from the evidence, the defendant moved his family upon, and took possession of an abandoned farm, the fences being down and the dooi-s open, the entry was held to be quiet and peaceable.

In view of the actual state of case presented for the consideration of the court in the case of Fowler vs. Knight, 10 Ark. Rep., 43, it is fully reconcilable with these decisions, and it will be seen that the decision oí the court upon this point (as remarked by the chief justice who delivered the opinion in McGuire vs. Cook) was correct under the state of case presented. In that case the tenant had locked the door and delivered the key to his landlord, who, under such circumstances, is not to be presumed to have abandoned his possession; and in the absence of proof to the contrary, the presumption was strong, that the defendant broke open the doors and entered by force. Thus considered, the case of Fowler vs. Knight will not be understood as giving the right of action under the second section of the act in cases where the entry has been made peaceably and without force. But that in all cases where the entry, whether under contract or otherwise, has been peaceable, that is, without force, the party aggrieved should seek his redress under the third section of the act, by an action for forcible detainer. This construction of the statute is in harmony with our decisions in the case of McGuire vs. Cook, and the latter decisions of Brady vs. Hume, 18 Ark., 284, and Frank vs. Hedrick, id. 304.

Turning to the case now under consideration, we find nothing ’ in the declaration from which an inference may be drawn that the defendanhentered under a contract, or upon what terms he ’ did enter'. It is however alleged that the defendant held over long after the termination of his right of possession which would seem to imply that possession was given for a limited time; but there is no averment that this limitation was 'by contract; indeed it is expressly averred that the plaintiff had in no manner parted with his right of possession.

In view of the whole declaration, we confess that we are not free from doubt, ás to whether the declaration, which contains no allegations disclosing the terms upon which the defendant entered, should be sustained or hot. But as this is not a question arising upon demurrer to the declaration, but a motion in arrest of judgment, in determining which the rule is that alter verdict and judgment for the plaintiff, the judgment will not be arrested unless the record shows a clearly defective cause of action, and that every intendment is to be made in favor of the declaration, whatever is implied, or is inferable from the state of pleading will be presumed in favor of the pleading and the judgment rendered upon it. The objection to the declaration being for the bad statement of a good cause of action, under the rule above stated, will be held sufficient.

■ The objections to the sufficiency of the sheriff’s return, we think not well taken. There was, as shown by the sheriff’s return, personal service upon the defendant, in substantial compliance with the statute; his failure to return a bond, as required in such cases, might have subjected him to liability as an officer, but did not relieve the defendant from his obligation to appear and defend or suffer the consequences incident to his default.

The judgment is, however, fatally defective, and shpuld have been arrested upon the ground that the assessment of damages by the jury, and the judgment rendered thereon are wholly unwarranted by law. The only judgment to which the plaintiff in this action is entitled (as will be seen by reference to the 16th sec. of ch. 72, Gould’s Dig., p. 544,) when tlie iinding is in his favor, is for costs. No judgment for the property was permissible, because the title to the property was not in issue; nor for the possession of the property, because that had already been given him by the writ;' nor for damages, because this is not an action for the recoyr ery of damages: no issue of that kind could be presented in tins action. Under the lYth section, the defendant could have his writ of inquiry and damages assessed, in case the verdict is for him, for the damages sustained for having been dispossessed of his property; but no such right is given to the plaintiff.

The interlocutory judgment, the judgment of continuance, the writ of inquiry, the verdict and the judgment thereon were all without warrant of law, and for this the judgment must be arrested and set aside, and the cause remanded, that judgment may be rendered upon the default of the defendant as provided . by the 16i/i section of ehap. 72 of the Digest, page 544.


author: Mr. Justice Compton

text:
    Frank vs. Godwin, ad.
    Where issues were made up in the probate court and submitted to the court and verdict for the defendant, and the judgment of the probate court was affirmed in the circuit court, and it appears that the judgment of the probate court was fully warranted by the evidence, the case will not be reversed.
    A judgment will not be reversed and a repleader awarded in order to permit the party first in fault to take advantage of the immateriality of an issue, super-induced by his own blunder.

      Appeal from Ohieot Circuit Court.

    lion. W. M. Harrison, Circuit Judge.
    Garland & Nash, for appellant.
   Mr. Justice Compton

delivered the opinion ot the court.

This was a proceeding in the' probate court of Chicot county for allowance and classification of a él aim against the estate of W. T. Ferguson, deceased.

The administrator pleaded that the claim was not presented to him within two years next after the date of the letters of administration; to which the plaintiff replied, first, that there was no sufficient notice to him of the grant of letters of administration; second, that by ordinance of the convention of 1861, the statute of non-claim was suspended, and continued so to be up to and until the time when said claim was presented;- and third, that the county of Chicot was, at the time of granting said letters and for more than two years next thereafter, held and occupied by the enemies of the United States, and that there were no legal courts held in said county in which the plaintiff could assert his claim? or which had the power to grant letters of administration. Upon these replications issues were joined and submitted, on an agreed state of facts, to the court, who found for the defendant, and rendered judgment disallowing the claim. Whereupon the plaintiff appealed to the circuit court, where, on due consideration of the points excepted to, the judgment of the probate court was affirmed, and the case'now comes up by appeal to this court.

The finding of the court upon the issue to the first replication was fully warranted by the evidence.

As to th'e second replication, waiving any expression of opinion as to the power of the convention of 1861, to suspend the statute of limitations and non-claim, in certain cases, it is sufficient to say, that the evidence adduced did not bring the claim in question, within the provisions of the ordinance; and consequently the finding of the court upon the issue to this replication was also correct:

Upon the authority of Hawkins vs. Filkins and Bennett ad. vs. Worthington, decided at the last term, the third replication was insufficient; and the issue thereto was immaterial. But the immateriality of the issue cannot affect the judgment in this case; because it is a web settled rule of law, that the judgment will not be reversed and a re-pleader awarded, in order to permit the party first in fault to take advantage of the immateriality of an issue superinduced by his own blunder.

Finding no error in the record, the jndginentmust,' in all .things be affirmed. <


author: Mr. Justice Compton:

text:
    Wilson vs. The State.
    The ease of Matthews vs. State, ante, approved.

      Appeal from, Ouachita Circuit Gourb.

    Hon. JohN T. Bearden, Circuit Judge.
    Gallagher & Newton, for appellant.
    JORDAN, Attorney General, relied upon the cases of Brittmi vs. State, 5 Eng., 301, and Matthews vs. State, decided at December term, 1866.
   Mr. Justice Compton:

The only question presented in this case, is precisely the same as that determined in Matthews vs. State, at the last term. The decision in that case is the law of this. Let the judgment be affirmed.


text:
    Wilson vs. Brownlee, Homer & Co.
    The death of an individual, though disconnected with any question of pedigree, may be proved by hearsay, subject to the same restriction as where matters of pedigree are involved.
    Although declarations of members or relatives of the family, are good evidence to establish marriage, death, birth, heirship and the like; and may be proved by others, as well as by surviving members of the family, as held in Kelly vs. McGuire, 15 Arfo, 606, yet the statement of a witness that he had received information verbally and by letter, as to the death of a party, when it does not appear that the witness was related to .the party in question, or how he obtained his information, is not competent evidence of that fact.

      Where debt was brought on a written instrument, from which the plaintiff’s demand might be ascertained, and the defendant pleaded in abatement; and issue was made up on his plea, and submitted to a jury, and a part of defendant’s evidence was excluded as incompetent, whereupon he declined to proceed further in the ease, and the plaintiff read the instrument sued on to the jury, and verdict was rendered in his favor: Held, Tbat'the proceedings were irregular; that the court, after seeing that the issue on the plea in abatement was properly disposed of, should have proceeded under the statute, (Dig., chap. 133, sec. 81,) to render judgment for the debt, damages and costs; the amount of the demand being evident from inspection of the instrument sued on: but that the judgment, being substantially the same as it would have been, had the proceedings been regular, will not be reversed.

      Appeal from Oa/rroll Circuit Court.

    Hon. Elias Haekell, Circuit Judge.
    GaelAND & Nash, for the appellant.
    Hearsay evidence of death seems to be receivable under the same restrictions as that respecting other matters connected with questions of pedigree. To what extent hearsay evidence may be received to prove the death of a person, see Scott’s Lessee vs. Ratcliff,5 Peters, 81, 86; Jackson ex. dem. Miner vs. Boreham, 15 John. Rep., 226; Jackson ex dem.. Woodruff et al, vs. Cady, 9 Cowen’s Rep., 140; 6 Terger, 494; Kelly’s Heirs, 15 Ark., 604-5, and authorities cited; Anderson vs. Pa/rker, 6 Cal. Rep., 197; 2 Bouvier’s Law Die. (Pedigree) 307, and cases cited. The above fully establish the rule that hearsay evidence is admissible to prove the death of a party. It is beyond all doubt prima facie evidence; and general rumor is frequently the only means by which the death of au individual can be established.
    The only issue submitted to the jury was as to the death of Brownlee; there was no question before them either as to the debt or damages. The issue as to Brownlee’s death being found against Wilson, then if he had nothing more to say, the court should have assessed the damages or found the debt with the damages for its detention. Gould’s Dig.,p. 858, see.' 81; Johnson vs. Frank, 16 Ark., 199.
   Mr. Justice Compton

delivered the opinion of the court.

This was an action of debt by attachment brought by John A. Brownlee, Thomas J. Homer, David Brownlee, John Nix and Charles F. Tracy, partners, under the style of Brownlee, Homer & Co., against James A. Wilson on two promissory notes, the one for $538.74, bearing date the 28th February, 1860, and the other for $110.95, dated the 26th July, 1860, and both payable* to Brownlee, Homer & Co., at six months.

The defendant pleaded in abatement, that, after the making of the promissory notes and before the institution of the suit, John A. Brownlee, one of the plaintiffs, had departed this life. Upon this plea an issue was regularly made up and submitted to a jury; and the defendant, to maintain the issue on his part, offered to prove by the witnesses, Peel, Denton and Gaither that, “according to information which they had received, and which they believed to be true,” John A. Brownlee was dead prior to the commencement of the suit — which testimony, on motion of the counsel for the plaintiffs, was excluded as incompetent.' The defendant then offered to prove, by the witness, Gregg, that he, Gregg, “ had received-information, verbally and by letter, informing him of the death of Brownlee,” at the time above indicated, which was likewise refused.

The question thus raised, is, whether the evidence offered was competent. Although the uniform current of decision is to allow hearsay of facts, under certain restrictions, bearing upon questions of pedigree, yet hearsay of the same kind of facts has, in some cases, been refused when introduced for other purposes, as in Whittuck vs. Waters, 4 Carr. & Payne, 375, where, in an action for use and occupation, it became necessary to show the determination of a life estate by proving the death of cestui que vie, Pare, Justice, refused to allow hearsay, remarking that the question was not one of pedigree, “ where hearsay in the family is admissible.” It may be laid down, however, as a general rule, sustained by the decided weight of authority, especially in this country, that the death of an individual, though disconnected with any question oí pedigree, and for whatever purpose sought to be established, may be proven by hearsay, subject to the same restrictions that are applicable in cases where matters of pedigree are involved. It is necessary, then, to refer to these restrictions, in order to determine whether the testimony offered, in the case under consideration, is admissible or not. The rule intimated by this court, in Kelly's heirs vs. McGuire et al., 15 Ark., 605, is that “ declarations of members, or relatives of the family, or general repute in the family, are good evidence to establish marriage, death, birth, heirship and the like, and may be proved by others as well as surviving members of the family.” And while it has been found, upon examination, that some of the American courts have allowed greater latitude than is indicated in Kelley's heirs vs. McGuire, et al., sivpra, we have met with no adjudication which would sanction the admissibility of the evidence in question. Thus, in Dudley et al. vs. Grayson et al., 6 Monroe, 259, the court said, the declarations of relatives, and perhaps of neighbors and intimate acquaintances, have been received, but not so of a mere stranger; and the declaration of one in Missouri, as to the death of a resident in that state, was refused, it not appearing that the speaker was even an acquaintance of the deceased. How the witnesses, in the case we are considering, obtained their information, whether from members oí the family, or from relatives, or even from the neighbors and acquaintances of the deceased, we are not informed. For any thing that we know they may have derived their information from a solitary stranger, residing at a great distance from the deceased, and who possessed none of the ordinary means of reliable information. Hearsay, from such a source, all must admit, ought not to be received in any case. For these reasons we are clearly of opinion that the testimony of the witnesses Peel, Denton and Gaither was properly refused, and also that of the witness, Gregg, aside from any question growing out of his relation to the plaintiffs as their attorney. We have examined the cases to which we have been referred by the counsel for the appellant, but do not understand them as warranting a conclusion different from that which we have reached.

After all the evidence offered by the defendant under the issue to the plea in abatement had been excluded, the record entry states that “ the defendant said he had nothing further to say, and said plaintiffs might take their course.” Whereupon the plaintiffs read the notes, sued on, in evidence to the jury, who returned the following verdict: “We the jury find the issue for the plaintiffs, and find for their debt and damages the sum of seven hundred and sixty-eight dollars and thirty cents” — for which sum with costs of suit, judgment was rendered. This was irregular. When the defendant declined making further defence, the court, after first seeing that the issue to the plea in abatement was properly disposed of, should have proceeded, under the statute, (Dig., chap. 133, sec. 81,) to render judgment for the debt, damages and costs, the amount of the demand proceeded for, being ascertainable from the instruments sued on. But conceding, as we do, that the reading of the notes in evidence to the jury, under the issue to the plea in abatement, was irregular and erroneous, and that the finding of the jury was, in no wise, responsive to the issue, yet the judgment is, substantially, what it must have been if the proceeding had been regular; and being, therefore, correct upon the whole record, it will not be reversed for the 'errors indicated, but is, in all things, affirmed.