text:
    Youngblood vs. The State.
    1. ' Criminal Practice: Appeal: Suspending judgment.

    It is the duty of tbe circuit court, when asked, to suspend the execution of a judgment against a defendant in a criminal case, for a reasonable time, for him to apply to a judge of the supreme court for an appeal and supersedeas, as provided by law.'
    2. Verdict : General, on several counts.

    When an indictment for murder contains several counts, alleging variously the means of death, the jury may render a general verdict.
    3. Evidence : Statement of prisoner to officer.

    Voluntary statements of a prisoner, though made to an officer, and while he was in custody, are admissible in evidence against him.

      APPEAL from Franklin Circuit Court.
    Ron. W. D. Jacoway, Circuit Judge.

      Henderson, Attorney General, for the State.
   English, C. J.

In November, 1879, Cal Emory and James Youngblood were jointly indicted in the circuit court of Franklin county for murder.

They were charged with murdering Mary E. Taylor, on the seventh of July, 1878, in said county.

The indictment contained seven counts, alleging variously the means of death.

The first count charged that they murdered her by stabbing her with a knife.

The second, by striking, beating, wounding and bruising her with clubs.

The third, by striking, beating, wounding and bruising her with their fists.

The fourth, by striking and beating her with stones.

The fifth, by throwing her into water and drowning her.

The sixth, by stabbing her with knives; and by beating her with their fists; and by beating and wounding her with clubs; and by beating, wounding and bruising her with stones; and by throwing her into water and drowning her.

The seventh, killing and murdering her by some means, instruments and weapons to the grand jurors unknown!

Each count alleged the time and place of the offense, and employed the technical words requisite and usual in an indictment for murder in the first degree.

Both defendants entered a general demurrer to the whole-.indictment, which the court overruled. They elected to-sever. Youngblood was tried on the plea of not guilty. The jury found him guilty of murder in the second degree, and fixed his punishment at imprisonment in the penitentiary for twenty-one years. He filed motions in arrest of judgment and for a new trial, which were overruled, and he took a hill of exceptions. He was sentenced upon the verdict, and prayed an appeal, which was allowed by one of the judges of this court.

Appeal:

infus?udg°iro u i t

I. At the time appellant was sentenced (the eleventh of December, 1879), fie moved the court to suspend the execution of the iudgment, and allow him sufficient time to obtain a transcript of the record, and submit the same to one of the judges of the supreme court for the allowance of an appeal, etc., which motion the court overruled. At what time the execution issued, does not appear. The clerk’s certificate of authentication to the transcript bears date the seventh of January, 1880, and the appeal was allowed on the twenty-seventh of the same month, before which time, it seems, appellant had been lodged in the penitentiary, and the allowance of the appeal did not operate as a supersedeas.

On the thirtieth of January appellant’s counsel moved this court for an order to remand him to the jail of Franklin county, that he might there remain until his appeal could be heard and determined, as he would have done had the court below suspended the execution until he obtained the allowance of the appeal, and had a certificate thereof sent to the clerk below, etc.

This motion was overruled because there is no law providing for such an order, and no precedent for it.

By statute, if appellant is confined in the penitentiary before the certificate of the allowance of the appeal is delivered to the sheriff, he must remain there during thependency of the appeal. Gantt’s Dig., sec. 2134.

Sec. 2120 Gantt’s Dig. provides that: “Hpon an appeal being prayed, the circuit court shall grant to the defendant a reasonable time for obtaining a transcript of the record, for submitting the transcript to a judge of the supreme court for his allowance of the appeal, for filing the same in the clerk’s office of the supreme court, and obtaining the certificate of appeal.”

2. Verdict:

General, on several eount s, good.

"Why the court below did not suspend the execution of the judgment for a sufficient time to e.nable appellant to apply for an appeal and supersedeas, as provided by the statute, does, not appear.

But such an error occurring after the judgment is no ground for its reversal.

II. The demurrer was general to the whole indictment, and, in short, upon the record by consent.

The motion in arrest of judgment was upon two grounds: First — That the indictment does not charge any public offense known to the law; and, second — because the jury, in their verdict, did not state upon which count of the indictment they found defendant guilty.

No particular objection to the indictment is pointed out, and we can see no substantial defect in it; and the jury had the right to render a general verdict. Howard v. The State, 34 Ark., 433; Edmonds v. The State, 84 Ark., 720.

III. In the motion for a new trial are the usual grounds that the verdict was wholly unsupported by the evidence, and was against law and the instructions of the court.

The death, of Mary E. Taylor was proved beyond a reasonable doubt, by the finding and identification of her remains, and there were some indications that her death was caused by violence. The criminal agency of appellant rested upon circumstances, and upon his own statements.

Mary E. Taylor was married at the house of her brother, Starling Dabbs, in Franklin county, some seven years before her death, and went with her husband to Missouri, where, from some canse not appearing, they separated, and she returned, and had been living at her brother’s house for two years before her death.

On Sunday morning about 8 o’clock, July 7,1878, she left the house to go to John George’s, who lived about a mile east, up Mulberry creek, near its bank, and on the same side of the creek on which Dabbs lived. Members of the family testified that she was in good health and spirits, looking unusually well, of sound mind; her front teeth above and below were in her mouth and in an apparently sound condition, and she wore a light brown calico dress and checked sun-bonnet when she left the house on that morning.

Railing to return as soon as she was expected by the family, an uneasiness grew up, the neighbors were alarmed, and a general search was made for her. -

On Saturday, the thirteenth of July, her bonnet was found hanging on a bush, on the bank of the creek, near the water’s edge; and her rings, which she wore when she left the house, were tied to the bonnet-strings. The water in the creek at this place was twelve or fourteen feet deep, and ran slowly. "When she left the house, she went eastward, in the direction of the place where the bonnet was found.

On Monday, July 15th, her body (or its remains) was found in a slough, about three-quarters of a mile west of the house, and about a mile and a quarter from the place where the bonnet was found. The body was in still water about ten inches deep. The place where it was found was wild and unfrequented, no habitation being nearer than three-quarters of a mile. A thicket of underbrush extended across the slough below the body. At the head of the slough was a bar over which the water was running from four to six inches deep into it, from the creek, and flowing back into the creek below, through an unobstructed channel about ten or twenty steps above the place where the body was found. The slough was on the south side of the creek, and its deepest part probably about two feet. It went off from the creek in a southwesterly direction, and curved back into it some two or three hundred yards from its head. The feet of the body were up stream, the head down, skirts forward over the body as if washed up, and the legs exposed. The flesh was gone from the face, the scalp off, with the hair in it lying near the head, the entrails out and the body swollen and offensive Seven of the upper and lower front teeth were missing. There were several slits or cuts- in her dress over, above and below the breast, and maggots were working out of the holes. The.re was a pole by the side of the body, its lower end in the underbrush and upper end in the eddy water, which appeared to have floated there with the drift.

Members of the family identified the remains as those of Mary E. Taylor, by her clothing, shoes, hair, etc.

Some time after the remains were buried, and after the flesh had all decayed, they were exhumed under the order of a magistrate, and the skeleton examined by medical witnesses. They found no fracture of any of the bones except a fracture of the eighth rib on the left side, which fracture was about an inch from the spinal column. Around the fracture they discovered signs of coagulated blood, which must have settled there.immediately before or after death. They were of the opinion that the fracture of the rib and the settling of coagulated blood, about the fracture, were caused by violence shortly before or immediately after death.

A dentist, who aided in this examination, testified that lie had operated upon the teeth of Mary E. Taylor about two months before her death, at which time the front teeth in her upper and lower jaws were in a sound condition. At the post mortem examination, three of her upper and four of her lower front teeth were found missing. Three or four months before her death he had extracted three of her molar or jaw teeth, and corresponding vacancies were found in the skull. He had also filled some of her teeth with amalgam, which he identified as yet in the skull.

The above, in substance, was the proof, on the trial, of the corpus delicti.

From various facts stated by a majority of the witnesses as to the course of the current of the creek, obstructions in it, the bar at the head of the slough, and the shallowness of the water passing over the bar into the slough, it seems doubtful whether the body of Mrs. Taylor could have floated down the creek from the place where her bonnet was found, and entered the slough over the bar at its head, at which point the current of the creek turned towards its north bank. It seems from the testimony of other witnesses that there was a rise in the creek of about two feet between the seventh and fifteenth of July, and that the body might have been floated in the slough on such rise. What the jury concluded about this we do not know.

About the time the body was found, Cal. Emory, who had taken some part in the search, disappeared from the neighborhood. About a month after, appellant, who, in the meantime had been making efforts to sell his crop, and manifested uneasiness, disappeared, and they were both afterwards arrested in Sharp county.

Emory had been visiting Mrs. Taylor, at her brother’s house, from May, 1878, down to within a few days of her death, and, to use the language of her brother, ■'■sparking her,” though she had not been divorced from her husband. She received his visits and associated with him.

During the search Emory and appellant were several times seen together in consultation, and the former was-attempting to borrow money, offering the latter as surety. Emory lived at the house of Richard E. Huggins, and was not there on Sunday, the seventh of July. Appellant lived with James M. Etuggins, and made a crop on his place, but was not there on that Sunday.

After the body was found, appellant was attempting to sell J. W. Childress his crop, but said he did not want to be in a hurry about it, as it might raise a suspicion against him.

Emory and appellant staid at the house of appellant’s father the night of the sixth of July. On the next morning (Sunday, the seventh of July,) they left there together when the sun was about a half hour high. Emory asked appellant to go with him over to his home at Richard E. Huggins’, and they took their hats and started off' in an easterly direction. It was about a mile and a half or two miles from the house of appellant’s father to the house of Richard E. Huggins, and both of them lived on the south side of Mulberry- creek, and in the neighborhood of Starling Dabbs, brother of Mrs. Taylor.

After the body was found, appellant stated to H. J. Randall that he and Emory went from his father’s house to Richard E. Huggins’, and from there to James M. Huggins’, and from there to Oliver’s on Sunday morning, the seventh of July, 1878. There was testimony conducing to prove this statement to be false.

There was a school-house about two and a half miles, in a southerly direction, from the place where the bonnet was found, and there was an appointment for singing and preaching there on Sunday, the seventh of July, 1878.

After some people had assembled, appellant came there on foot, and-inquired of a witness if he had seen Emory, and he replied that he was in sight, coming up the road. Appellant started off, and met Emory about twenty yards from where the people were collected, and they went into a hollow, out of sight; remained there’ about fifteen minutes, and then returned to the church. It was a warm day; appellant had on thin clothing, and they were wet with sweat. The appointment for singing was at 9 o’clock, but what time appellant and Emory got there, does not appear. Emory’s clothes were also wet with sweat.

"William L. Huggins testified that within a week after the body of Mary E. Taylor was found, appellant came to .him, at the church house, and stated to him that he supposed that Emory had told him “about their meeting with that woman at the creek on that Sunday morning.” Witness replied that he had, and appellant remarked “ that he» (Emory) was a damned fool for ever saying anything about it.”

Robert Case, sheriff of Independence county, who arrested appellant in Sharp county, testified that on their way to Batesville appellant voluntarily told him that he and Emory had an understanding by which Emory was to meet deceased at a certain place on Mulberry creek, in Franklin county, on Sunday morning, and that he (appellant) was to come up on them and catch them in the act of sexual intercourse, and demand a participation in the same himself; that he accordingly went to the place at the appointed time, and saw Emory and the deceased having sexual intercourse; that he approached, and asked her to yield to him, but that she refused, and said she would die first; and that he and Emory then left her, and went on together to the church house ; and on the way Emory stopped at a branch and washed the blood out of his handkerchief, when he (appellant) remarked to Emory, “You had a rough job of it;” to which Emory replied, “Yes,” etc.

After making this statement, appellant offered witness his horse and cfop if he would turn him loose.

Appellant appeared to desire to turn state’s witness, and repeated the above statement several times, but never would make any further disclosure.

Frank P. Southard, of Independence county, testified that in a conversation he had with appellant, about the twelfth of November, 1878, appellant asked him if Emory had heard about the reports concerning Mrs. Taylor in Franklin county. Witness told him he had, and appellant said nothing would ever be done about it, as the woman was a damned “whore” and bad no friends that would take ,it up. In a second conversation witness had with appellant about this matter, he said Mrs. Taylor was a perfect lady and a virtuous woman.

A. J. Nichols, deputy sheriff of Franklin county, testified that about the middle of August, 1878, he went to Batesville after Emory and appellant; Sheriff Case took appellant out of jail into the court yard, where he conversed with him, after which Southard asked witness, in the presence of appellant, if there was any danger of the prisoner being mobbed in Franklin county, and witness told him but few persons knew anything about it, and there was no danger; they afterwards went into the jail, and appellant asked witness how public sentiment relative to the matter was in- Franklin county; witness replied that but little was known of the matter, but it was worse against Emory than him ; witness told him what he had understood William L. Huggins would testify, and appellant then said, “ God knows I am not guilty as chargedwitness told him he was glad to hear it; after he was put into the cell, and witness was about to leave, appellant caught hold of him, and said he wanted to talk to him; witness stepped back with him, and, when they were alone, told him he wanted to ask him some questions, and if he answered him at all he wanted him to tell him the truth, and if he could not do this he need not answer; witness then asked him, first: “ Did you and Emory commit an outrage on Mary E. Taylor?” second: “Did you and Emory outrag’e Mary E. Taylor and murder her and throw her in the creek ?” to which appellant replied: “Jack, I did not help to throw her in the creek; I did not see that; I did not know anything about that.”

He did not answer any further, but said he would rather see a lawyer first, and if witness would come back that evening about sundown, he would see further about it. About sundown that evening witness was again at the jail, and asked appellant if he wanted to answTer any questions, and he replied he believed he would not answer them.

The foregoing are, in substance, the leading circumstances and statements tending to connect appellant criminally with the death of Mary E. Taylor. The transcript discloses other slight circumstances and statements, which, in the minds of the jurors, who doubtless understood the local surroundings better than we do, might have had such tendency, but we deem it unnecessary to attempt to state them.

Hpon the whole of the evidence, the question of the guilt or innocence of appellant was for the jury. Their verdict shows what their judgment was upon the iacts, and the presiding judge, who heard all the evidence, refused to ■set it aside.

In Liles v. The State, 30 Alabama, 24, the accused was convicted of murder on slighter statements connecting him with the crime than were proved to have been made by appellant in this case, and the supreme court, after holding that such statements were admissible, as tending to prove the guilt of the accused, and that their weight was 'matter for the jury, affirmed the judgment.

Erom all the indications in the transcript, the penitentiary is a more appropriate place for appellant than in a civilized community.

It is not improbable that Mary E. Taylor was outraged, murdered and put into the creek, and her bonnet hung on a bush, and her rings tied to its strings, to make the impression that she had committed suicide by drowning herself. If she voluntarily yielded to the solicitations of Emory, why did he have a rough job of it? and why was there blood on his handkerchief? By the statement of appellant to Case, if true, he and Emory left her at the same time, and appellant must have been present when she was put into the creek, if put in by violence before they left her. He, in effect, admitted to Nichols that she was outraged, but denied that he saw her murdered and thrown into the creek. It was for the jury to get at the truth, as best they could from all of his statements, and from the circumstances in evidence. If he was present, aiding, abetting, encouraging, or consenting, when she was murdered and put into the creek by Emory, and if such was the fact, he was a principal in the crime, as the court charged the jury.

3. E VIdence:

Voluntary confessions of prisoner t r* officer admissible.

IV. Appellant objected to the admission of the evidence of his statements as made to Case and Nichols on the .ground that they were not voluntarily made; the court overruled the objection, and this is made, in different forms, the fifth, sixth and seventh grounds of the motion for a new trial.

The statements appear to have been voluntarily made, and though made to officers, when appellant was in custody, they were properly admitted in evidence. Meyer v. The State, 19 Ark., 156. Austin v. The State, 14 ib., 556.

V. The fourth ground of the motion for a new trial is, that the court erred in excluding the testimony of John R. Eisher, a witness on the part of defendant.

The bill of exceptions shows that after this witness had testified about the depth of the creek, etc., defendant offered to prove by him “that he knew the general reputation of Mary E. Taylor for sanity and insanity before her death — that she had the general reputation of being a woman of sane mind, but that he had heard some persons, a minority of her neighbors, express themselves as believing her to be of unsound mind;” which the court excluded.

That defendant offered to prove by the same witness “that the oldest sister of Mary E. Taylor, to-wit: Winnie Ann Dabbs, is and has been insane for a number of years;” which the court excluded.

If it was competent to prove by general reputation that Mary E; Taylor was insane, what some of her neighbors, a minority of them, said about her, would not be general reputation.

The fact that her sister had the misfortune to be insane was no evidence of her insanity.

If she was insane, the statement of appellant that he and Emory had made arrangements to have intercourse with her was the more shocking; and if they, or either of them forced her, it was the more brutal; and if they murdered her, her insanity enhanced, rather than mitigated-the enormity of the offense. If she was insane, why would she drown herself from any sense of shame, which seems to have been the theory of this attempted feature of the defense.

VI. The remaining grounds of the motion for a new trial relate to the ruling of the court in giving and refusing instructions.

On behalf of the state, the court gave twenty-six instructions, to most of which appellant objected, and some of which were really needless, though they seem to have been harmless.

Appellant moved eight objections, of which the court gave those numbered 2 and 3, and refused the others, but gave two (numbered. 27 and 28) in lieu of such as were not substantially embraced in instructions given for the state.

The instructions given by the state were very much of the same character as those given in the case of Edmonds v. The State, 34 Ark., 720, though in this case there was no question about the surname of the deceased, and-appellant did not think proper to put his character in issue, hence there was no instructions on these- subjects.

It must not be expected that we can take the time, or do the labor of copying and commenting on the instructions, taken in substance from the provisions of the statutes, or the text-books, opposed by sweeping objections, and followed up by no brief here pointing out specific objections to any of them. -

Upon the whole we think the instructions given submitted the case fairly to the jury upon the evidence.

Affirmed.


source: Caselaw Access Project

author: PIarrison, J.

license: Public Domain

text:
    Sentell vs. Armor.
    1. Homestead oe Tenant in Common: Mortgage on, under constitution of 1868.
    A tenant in common has such a right of homestead in the estate in common, that he might, after executing a mortgage on his interest in it while the constitution of 1868 was in force, have it partitioned, and By fixing his dwelling on the part allotted to him, have it exempted from the foreclosure of the mortgage, unless the mortgage was for some of the excepted debts specified in that constitution.
    APPEAL from Lafayette Circuit Court in Chancery.
    Hon. J. K. Young, Circuit Judge.

      John Cook, for appellant.

      Williams ‡ Battle, contra.

   PIarrison, J.

Virginia W. Armor, on the seventh clay of May, 1874, executed to George W. Sentell a mortgage on her undivided interest in certain lands — 1,160.71 acres —owned in common by her and. Francis W. Armor, to secure to said Sentell a debt of §2,654.14, to become due on the first day of January, 1875 ; and also as security for supplies, to be thereafter furnished her by him during that year.

After the execution of the mortgage, partition of the lands was made between her and her co-tenant, and her share assigned and set apart to her in severalty.

A balance of her indebtedness to him remaining unpaid, Sentell, on the twenty seventh day of February, 1878, filed his complaint in equity against her for a foreclosure of the mortgage on the lands set apart-to, and held in severalty by her.

She made no other defense to the suit than to claim as a homestead a designated part of the land — 160 acres — averring in her answer that she was when the mortgage was executed, and had ever since been, a resident of Lafayette county, and the head of a' family, and then was, and had ever since been, residing with her family on, and occupying the same as her homestead; that its value did not exceed five thousand dollars, and she had not since had any other homestead; and that no part of the indebtedness for which the mortgage was given was for taxes, laborers’ or mechanics’ liens, or purchase-money of the homestead. The plaintiff demurred to the answer as setting forth an insufficient defense. The court overruled the demurrer, and decreed a foreclosure and sale only as to, and of the, remainder of the lands.

i. home-STEAL OF Tenant in

Exempt oution.

The plaintiff appealed.

It was decided in Greenwood & Son v. Maddox & Toms, 17 Ark., 648, that a co tenant has such a right of homestead in .the estate in common, that he may, after an execution has been levied on the land, have partition made of it, and, by fixing his dwelling on the part set apart to him, have the benefit of the homestead exemption.

That case is decisive of this, as to the right of a co-tenant to a homestead in an estate in common. The doctrine, though there are decisions to the contrary, is well sustained, both by reason and authority. Mr. Freeman, in his work on co-tenancy and partition, says: “ The homestead laws have an object perfectly well understood, and in the promotion of which courts may well employ the most liberal and humane rules of interpretation. This object is to assure to the unfortunate debtor, and his equally unfortunate but more helpless family, the shelter and the influence of home. A co-tenant may lawfully occupy every parcel of the lands of the co-tenancy. lie may employ them not merely for cultivation or for other means of making profits, but may also build houses and barns, plant shrubs and flowers, and surround himself with all the comforts of home. His wife and children may of right occupy and enjoy the premises with him. Upon the land of which he is but a part owner he may, and in fact he frequently does, obtain all the advantages of a home. These advantages are none the less worthy of being secured to him and his family in adversity, because the other co-tenants are entitled to equal advantages in the same home. That he has not the whole is very unsatisfactory, and a very inhumane reason for depriving him of that which he has.” Freeman’s Cotenancy and Partition, sec. 54.

Mr. Thompson, after an examination of the principal cases in support of the opposite view, remarks: “One can easily imagine cases where the rule that there can be no homestead in estates held in common would work peculiar hardship to poor debtors, and defeat the apparent purposes of the homestead laws. Thus, the parents die, leaving two •sons, their sole heirs, in possession of the home farm. They, finding the premises incapable of an equitable partition without sale, and knowing that the property would be sacrificed by sale, determined to reside together, with their respective families, in the common dwelling, and work the farm in common. Under the view animadverted upon, neither can claim a homestead therein as against creditors, Although the value of his interest is less than the value of the statutory exemption. But it is not necessary to search the imagination for hard cases, for the books furnish them. Thus, in one case, the right of homestead was denied in lands held by a husband, his wife and their child, as tenants in common. It was also denied, in favor of a creditor, to A tenant who was the sole occupant of the premises, holding title to an undivided seventeen-eighteenths of the entire estate, which title he had purchased under the belief that he had acquired the entire estate. The absurdity of such rulings is illustrated by the fact that if he had been a naked trespasser, disputing the title of the real‘owner, the same court would have accorded to him the benefit of the exemption against his creditor. Thompson on Homesteads, sec. 188; Hoback v. Hoback, 33 Ark., 399; McClary v. Bixby, 36 Vt., 254; Thorn v. Thorn, 14 Iowa, 49; Hewitt v. Rankin, 41 Iowa, 35; Williams v. Wethered, 37 Texas, 130; Smith v. Deschaumer, 37 Texas, 429; Tarrant v. Twain, 15 Kan., 146; Horn v. Tufts, 39 N. H., 478.

Mortgage on, during thet constitution of 1868, void.

The mortgage, as to the homestead, was void. Sec. 2 of Art. XII of the constitution of 1868, in force when the mortgage was given, was as follows: “ Sec. 2. Hereafter the homestead of any resident of this state, who is a married man, or head of a family, shall not be incumbered in any manner while owned by him except for taxes, laborers’ and mechanics’ liens, and security for the purchase-money thereof.”

There is no error in the decree.

Affirmed.


author: Eakin, J.

text:
    White et al. vs. Friedlander et al.
    1. Usury : Including in note for account, interest not due. -

    An Arkansas note executed at the maturity of a bill for goods, for the aggregate amount of the bill and interest on it at ten. per cent, per annum from the date of purchase instead of from its maturity, is void for usury.,

      2. Lex Loci: By what law contracts governed: Laws of other states must he proved.

      A note made in Arkansas, and payable in Tennessee, will be governed by the laws of Tennessee; and in the absence of proof of the law of Tennessee, such note, though usurious if governed by the laws of Arkansas, will be enforced in her courts.
    APPEAL from Lee Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Lose, for appellant.

      Brown, contra.

   Eakin, J.

Appellants, merchants at Memphis, sued appellees, Eriedlander & Co., a firm doing business at Marianna, Lee county, Arkansas, in the court of common pleas of that countj1', upon two notes, dated, both, on the thirty-first- day of May, 1877, and payable to appellants, or their order, in Memphis, Tennessee. One was for $50, payable October first, after date; the other for $293.92, payable November first, after date. No interest was expressed on the face of either.

Defendants pleaded usury, stating that on said thirty-first of May, 1877, they owed appellants, on account, for invoices of goods sold, §509.92, of which they paid, in cash, $50, leaving $459.92. That, to satisfy said balance, they gave plaintiffs, upon agreement, five notes, four of which,for $50 each, were made payable, respectively, on the first days of July, August, September and October; and the fifth, for §293.92, was made payable on the first- of November, all next after date. Upon .the last note there was a •credit of cash, §75, on the eighteenth of December, 1877.

The court of common pleas, on trial, rendered judgment in favor of plaintiffs for §272.08, after having deducted $4.15 on account of an error in the calculation of interest. Defendants appealed to the circuit court, where the matter was again heard by the court sitting as a jury.

1. Usury:

Including in note for account interest not due.

It appeared in proof, that on the twentieth day of February, 1877, defendants bought of plaintiffs a bill of goods, invoiced to the amount of $475.57, to be paid for in sixty days. On the sixth of March, 1877, they bought, on the same terms, another bill of $34.35. The bills remained unpaid until the last day of, May, when defendants paid $50 cash, and gave the notes in question for the balance. The plaintiffs offered to remit a small excess, arising from a mistake in calculation, which the court held competent,, so far as it was only an error in calculation; but as it did not cure the usury, and inasmuch as the interest had been calculated on the invoice from the date of the sales, the court gave judgment against the appellants with-costs. A motion for a new trial was overruled, and bill of exceptions taken.

All the notes were executed together, and must be all considered together in estimating the nature of the agreement in accordance with which they were executed. "Without descending to minutiae, it is evident that the intention of the parties was to charge, in the notes, interest at the rate of ten per cent, per annum, from the time of the invoices of goods furnished, instead of interest from the expiration of sixty days.

The purchasers had sixty days, under the agreement, from the date of each invoice, to pay it. Only that amount, and no more, was demandable by the vendors at the end of the time. It is to be presumed that the parties, on both sides, bargained on this basis; and that the vendors had recompensed themselves for the delay in the prices charged, and the purchaser had agreed to give that much in consideration of the delay, There was no moral obligation, nor any reason, save in the nature of a penalty, why the purchaser, on the failure of payment at the end of sixty days, should pay interest at the rate of ten per cent, per annum from the date of the purchase. Such an express agreement might be permissible, but in the absence of proof of it the vendor would not have the right to exact such terms.

2. lex

what }Jacts °a?é Es™* of other states must. be

The agreement, carried into effect by the execution of the notes, to pay ten per cent, interest, by relation, from the time of the purchase, — making all together a larger amount than would have' resulted from taking the sum actually agreed to be paid, and the subsequent interest at ten per cent, from the time it was due, would have been void, as usurious, if the transaction had been governed by the laws of Arkansas.

But the notes were made payable in Tennessee. There is no proof of what her laws were in this regard. If such contracts are void there, policy and comity forbid that we should lend the aid of our tribunals to enforce them. That however, should be shown affirmatively, otherwise wTe cannot presume that laws of a penal nature, involving forfeitures, are the same in other states with our own. Independently of statutes, there is no principle of common law defining usury, or punishing it by forfeitures. There was nothing in proof to show these notes illegal, by the laws of the place where they were to be paid.

The circuit judge erred in refusing a new trial. Reverse the judgment, and remand the case for a new trial, as moved.


text:
    Reynolds vs. Holland, as Sheriff.
    1. Statutes: Rule for construction of.

    In construing a statute, the question for the courts is, what did the legislature really intend to direct; and this intention must be sought in the whole of the act taken together, and other acts in pari materia. If the language be plain, unambiguous and uncontrolled by other parts of the act, or other acts or laws upon the same subject, the courts can not give it a different meaning to subserve a public policy or to maintain its constitutional validity. The literal meaning of words will be disregarded, when it is obvious from the act itself that the use of the word was a clerical error, or that the legislature intended it in a different sense from its common meaning.
    2. County Lines: Power of legislature to change.

    The power to change county lines is inherent in the legislature, subject to express constitutional restrictions, and the essential requisites of the state which are implied in our frame of government. The consent of a majority of the voters in the part taken off, is only required in the case of new counties to be formed out of portions of old ones.
    APPEAL from Chicot Circuit Court.
    Hon. T. F. Sorrells, Circuit Judge.
    Reynolds, for appellant.

      Pindall, contra.

   Eakin, J.

Appellant recovered judgment in the Chicot circuit court, against "Watt C. Halley, on the sixteenth'of January, 1868, upon which, on the eighteenth of July, he sued out execution.

The sheriff’ returned no property found. Appellant sued out an alias, and pointed out to the sheriff lands of the defendant in the west half of section 29, in township 13 south, of range 2 west, upon which he requested him to levy. .The,sheriff refused, upon’the ground that the lands were not within his county, and. made ’'return of this reason upon the writ.

Appellant then filed in court a petition for a mandamus to compel the levy, to -which the defendant responded, relying upon the act of February 10, 1879.

The court dismissed the petition, and Reynolds appealed.

The validity of the act above cited is all that is brought in question. No evidence upon either side appears to have been adduced.

By the act establishing the county of Drew, passed November 26, 1846 (sec. 17), all that portion of township 11 south, included in west ranges 2, 3, 4 and 5, the east-half of range 6, and so much of range 1 as lay south of Cypress bayou, “ except sections 32 and 33” were taken from Chicot county and added to Desha. This left the former county to consist of all the territory in the state lying south of the line between townships 11 and 12 south, and east of the range line between 3 and 4 west, together with the two sections above excepted (and, perhaps, a small fraction of section 31). These two sections lay contiguous to the body of tie 'county, on the north, and, as appears from the United States government surveys, upon the Mississippi river. Their exception in the act of 1846, in the absence of other evidence, and in view of the fact that they were not necessary to make up the constitutional area of Chicot county, raised a presumption of their importance to the county, which the courts are not authorized in overlooking.

The act in question (February 10, 1879), was passed, as its title expresses, “to change the boundary line between the counties of Chicot and Desha.” Section 1 provides, “ That the boundary line between the counties of Chicot and Desha, in the State of Arkansas, be, and it is hereby, changed; and that all that portion of Chicot county comprised within the following limits, to wit: township 12 south, range 1 west; township 12 south, range 2 west; township 12 south, range 3 west; fractional sections 4, 5, 8 and 17, in township 13 south, range 1 west; township 13 south, range 2 west; sections 1 to 18, inclusive, in township 13 south, range 3 west, be and the same is hereby detached from the county of Chicot, and attached and added to the county of Desha.”

No provisions are made in the act for distribution of-the burden of the debt of Chicot, or for the transfer of causes pending in her courts.

If the force of the act is to be confined strictly to the literal import of the language, it would leave, as still belonging to Chicot, the sections 32 and 33, in township 11 south. They are not transferred eo nomine. This would leave Chicot consisting of two detached parts, not contiguous at any point, and with a considerable portion of Desha intervening.

It is nowhere provided in the constitution, in express language, that counties shall consist of contiguous territory, lying in a body. Neither is there any description of counties, nor express provision of any kind'for their organization. They are presupposed. They underlie all the free governments of the American states. They are essential to political representation, and to the administration of justice, through the courts, as well as to local police. Their nature, organization, and functions, are supposed to be so well known, and are, and have been for nearly a thousand years, so well understood, that it is not considered necessary in constitutions to lay the foundations of the government by providing for them. They are taken for granted, as essential foundation stones in our free system of representative government, ancl no constitutional provisions of an affirmative character, regarding them, are made. The provisions are restrictive on the legislative body. But express restrictions for their protection do not remove those which spring from the essential nature of these organizations. The legislature has no’power to destroy the system,, if it can be done without violating express prohibitions, but it can mould these political organizations, and define their boundaries, and impose upon them duties and obligations, within the scope of their general purposes, as presupposed by the constitution.

xStatutes:

const?totlonof-

A little reflection will make it clear that the system of counties, to be efficient, must include the idea that they shall be composed of contiguous bodies of territory. This needs no argument.

It would not do to have a county composed of separate parcels of land, in separate portions of the state, like a small German principality. The'idea is inconsistent with our form of government through county organizations. If the legislature intended to retain sections 32 and 33 as parts of Chicot, they can not be neglected as of too small importance for consideration. The doctrine, de minimis, etc., is precluded by the act of 1846. The act of February 10, 1879, would in that view be void, as an attempt to abrogate and destroy an essential feature of the government, to-wit, the division of the state into solid counties of contiguous territory. It becomes a question of intention, to be reached by construction.

The rule to be applied in this view, is : First — That the intention is to be sought in the whole of the act taken together, and in other acts in pari materia. If the language be plain, unambiguous, and uncontrolled by other parts of the act, or other acts or laws upon the same subject, the courts can not give it a different meaning to subserve a public policy, or to maintain its constitutional validity. The question for the courts is not what1 would be wise, politic and just, but what did the legislature really mean to direct. This narrow circle embraces and circumscribes the whole ambit of the court, although within that it may move very freely in catching the intention. It may disregard the literal meaning of words, when it is obvious from the act itself that -the use of the word has been a clerical error, or that the legislature intended it in a sense different from its common meaning. This was done by this court at the last May term, in the case of Haney v. The State, 34 Ark., 263.

The title of this act affords the clue to its intention. It was to change the boundary line between the two counties. It was not so much the specific intent of the legislature to transfer to Desha county the particular sections and townships designated, from anything peculiar to them, but rather to use them as the most convenient means of describing a line to constitute the boundary between the two counties. A view of the plat of the government surveys, with the cognizance this court has of former boundaries, shows that this new line is very clearly established by the act, running entirely through and across.the northern portion of Chicot, and making a clear division between that county and Desha. Enough territory is mentioned to fix the line, although all is not mentioned which lies north of it, and which must go with the other to make a line. This carries out the clear intention and makes a boundary line between the counties. The literal construction would not make a boundary line between the counties at all, but would leave their territories intermingled. This would be not only absurd but unconstitutional. We must not attribute such an intent to the legislature, when a plain, clear, constitutional intent can be derived from the act itself.

2. County Lines:

Power of legislature to change*

Consent of inhabitants.

There are numerous decisions, which may be found collected under note “a” to page 255 of Mr. Sedgwick’s work of Const. and Stat. Law, 2d ed., to show that the intent and spirit.of the act, and not the literal meaning, must govern, where absurd consequences would otherwise follow. It is only necessary, upon the other hand, that the courts should take care to find the intent and spirit in the act itself, or in laws in pari materia, and not in their own views of policy.

It is no objection to the validity of the act that it made no provision for apportioning the burden of the debt of Chicot, or the transfer of causes in the courts. These matters do not affect the essential nature and functions of co.unties in our system, and are within legislative control. The power to change county lines is inherent in the legislature, subject to express constitutional restrictions, and the essential requisites of the state which are implied in our frame of government. See ease of Eagle et al. v. Beard, 33 Ark., 497.

The consent of a majority of the voters in the part taken off is only required in the case of new counties to be formed out of portions of old ones.

The mandamus was properly refused.

Affirm.


author: English, C. J.

text:
    Martin et al. vs. O’Bannon.
    1. Acknowledgment of Mortgage: The word “ uses" in, not the sam.e as “ consideration.” Lien, etc.

    The acknowledgment of the execution of a mortgage for the uses and purposes therein specified is insufficient to authorize it to. he recorded. The word “ uses” is not the same, or of similar import, as the word “ consideration ” required by the statute; and such mortgage, though recorded, is no lien upon the property except between the mortgagor and mortgagee.
    2. Decrees: Bind only parties to them.

    The heirs of a deceased mortgagor are not bound by a decree foreclosing a mortgage executed by him on land, unless they are parties to the suit; nor are any others who are not parties to it.

      3. Vendor’s Lien: When passes to assignee of purchase notes.

    When one sells land and gives a bond to make title upon payment of the notes given for the purchase-money, his lien upon the land is in the nature of a mortgage, and jiasses to his assignee of the notes, who has the right, by subrogation, to foreclose the lien.
    4. Assignment of Note: Consideration for, not impeachable by one without interest.

    In a suit by the assignee of a note given for land, to foreclose a mortgage upon it for payment of the note, a defendant who has no lien upon the land as against the assignee, is in no attitude to impeach the consideration of the assignment.
    6. Dormer Judgment: Plea of must show parties to the suit, etc.

    A plea in bar of a suit, that the plaintiff had instituted a former suit in equity upon the same cause of action, and that it was, upon final hearing, dismissed, but not showing who were defendants in it, nor that the decree of dismissal was upon a hearing on the merits, is insufficient.
    APPEAL from Arkansas Circuit Court in Chancery,
    lion. J. A. Williams, Circuit Judge.

      Dooley, for appellants.
   English, C. J.

The bill in this case was filed on the chancery side of the circuit court of Arkansas county, in January, 1875, by Thomas W. O’Bannon, against Robert C. Martin, D. B. Forster, 0. W. Zealhofer and Thomas Day — the last three composing the firm of Forster, Zealhofer & Co. — R. B. Dollarhide, as administrator of John O. Hare, deceased, George Zealhofer, and the unknown heirs of said Hare.

The bill alleges, in substance, that on the eleventh day of March, 1871, John 0. Hare, being the owner and in possession of lots Nos. 3 and 4, in block No. 27, situated in the town of De Witt, with a store-house and other improvements thereon, contracted to sell said lots and improvements, and some personal property, etc., to defendant Robert C. Martin, for $3,090, of which $1,090 was paid down, $1,000 to be paid in six and $1,000 in eighteen months thereafter, for which Martin gave his notes, and Hare entered into a written contract to make him a deed to the lots on payment of the two notes, retaining the legal title as security for their payment.

That Hare afterwards, on the-day of-, 187 — , fur a valuable consideration, indorsed said notes, and assigned and delivered them to plaintiff.

The contract of sale, signed by Hare and Martin, and a copy of the notes, with the indorsement thereon, were made exhibits, and the original notes afterwards produced and filed by plaintiff. •

In the written contract the notes are described, and declared to be a lien on the lots, and Hare binds himself to execute to Martin a deed on payment of the notes, and in each note the lots are described, and the amount of the notes and interest (at 10 per cent.) declared to be a lien upon them.

The bill further alleges that the notes were long since due, remained wholly unpaid, and were a lien on the lots, etc.

That defendant George Kealhofer was in possession of the lots, and claimed some interest therein, in connection with Forster, Kealhofer & Co., under some pretended agreement with Martin or Hare, which was subordinate and inferior to plaintiff’s lien for purchase-money as holder of said notes.

That John 0. Hare, since he transferred the notes to plaintiff', had died, without executing said contract of sale, or conveying said lots to Martin, and that the title thereto descended to his legal heirs, subject to plaintiff’s lien for purchase-money. That the names of his heirs were unknown to plaintiff', and non-residents of the state, and, hence,were made defendants by description of the unknown heirs of John 0. Hare, deceased; and that defendant R. B. Dollarhide was the administrator of the estate of said Hare.

Prayer for decree against Martin for the amount of the notes and interest, that the same be declared a lien ' upon the lots, and that they be condemned and sold for the satisfaction of the decree, etc.

An affidavit was attached to the bill that its allegations were true, and that the defendants, composing the firm of Forster, Kealhofer & Co., and the unknown heirs of John 0. Hare, deceased, were non-residents of the state, as to whom publication was ordered, and made, and an attorney ad litem appointed for them. The other defendants were served with process.

Bay, Kealhofer & Co. applied to be made defendants to the bill in place of Forster,'Kealhofer & Co., stating that they were a firm of merchants, of Memphis, composed of Thomas Day and Charles W. Kealhofer, under the style of Bay, Kealhofer & Co., and as such the successors of the dissolved firm of Forster, Kealhofer & Co., and the real parties in interest; and they were accordingly substituted.

Bay, Kealhofer & Co., with Robert C. Martin, demurred to the bill, the demurrer was overruled, and said firm answered, in substance, as follows:

That as the successors of Forster, Kealhofer & Co., which firm was dissolved the sixteenth of June, 1874, they are the owners and in possession of the lots described in the bill.

That on the twenty-first of February, 1871, said John 0. Hare, then owner of the lots, mortgaged them to Forster, Kealhofer & Co., to secure a debt of $1,500, with interest, etc., which mortgage was executed and recorded before the sale of the lots by Hare to Robert C. Martin, eleventh of August, 1871. (Copy of mortgage exhibited.)

That on the sixth of August, 1872,-Forster, Kealhofer & Co. brought suit in the same court to foreclose the mortgage, and on the--day of March, 1873, a decree was rendered in their favor for their debt, etc., and for sale of the premises. (Copy of decree, etc., made exhibit.) That the court appointed A. L. Truman a commissioner to sell the lots who made the sale the twenty-first of April, 1873, and they were purchased by Forster, Kealhofer & Co., to whom the commissioner executed a deed, the twenty-second of July following, approved by the court, a copy.of which is exhibited.

That if the notes sued on in this case were assigned by Hare to plaintiff', he took them with knowledge of said mortgage, etc., but “they deny that plaintiff came into possession of said notes for a valuable consideration or any consideration whatever.”

The remainder of the answer is in these words:

“Befendants do plead and hereby set up as a defense to the complaint, in this case, former judgment, that on the -day of-, 187 — , this plaintiff filed in this court a 'complaint, the subject matter of which was and is the same as and identical with this complaint herein responded to, and that thereafter, to wit, on the--day of--, 187 — , á final judgment of dismissal was given and entered by this court on said anterior complaint, appeal prayed, and never prosecuted.

1. Acknowledge ent of Mortgage:

The word “u^es” in, not the same as “ consideration.

“Wherefore, the premises considered, defendants pray to be dismissed, etc.”

The plaintiff filed a demurrer to the answer of Day, Kealhofer & Co., which the court sustained, and they rested. Defendant, Robert C. Martin, rested on his demurrer to the bill. Dollarhide, the administrator of Hare, who was served with process, made no defense, and none was made for the unknown heirs of Hare.

The court rendered a decree in favor of plaintiff' against defendant, Martin, for the amount of the two notes sued on, with interest, declared the notes a lien in the hands of plaintiff on the lots, foreclosed the lien, and condemned the lots to be sold to satisfy the decree, etc.

The defendants, who pleaded, appealed.

No question is made by counsel for appellants as to the sufficiency of the original bill.

I.' There is no averment in the answer of Day, Kealhofer & Co. that the mortgage upon the lots in controversy executed by John 0. Hare to Forster, Kealhofer & Co., was acknowledged in due form, etc.

On looking at the copy of the mortgage, made an exhibit to the answer, we find the certificate of acknowledgment to be as follows:

“The State oe Arkansas,

Arkansas County.

“ Before me, the undersigned, clerk of the circuit court of said county, this day personally came John 0. Hare, and acknowledged that he signed, sealed and executed the foregoing instrument of vi riting for the uses and purposes therein specified ; and I do so hereby certify Witness my hand and the seal of said court, this twenty-second of February, 1871.

2. Decree.-

Binds only Parties to it.

[Seal.] ■ “A. C. Wiley, Clerk.”

It appears that the mortgage was filed for registration on the same day, and afterwards recorded.

The word “uses,” in the certificate, is not of similar import, or substantially the same as the word “consideration” required by the statute, (Gantt’s Dig., sec. 1846,) and the certificate was invalid, and the mortgage was not legally recorded, and was no lien upon the lots except between the. mortgagor and mortgagees. Jacoway v. Gantt, Ad. of Loupe, 20 Ark., 190; Little, trustee, v. Dodge, guardian, 32 ib., 458.

II. The answer does not allege who were made defendants to the foreclosure bill of Forster, Kealhofer & Co.

It appears from the copy of the decree, made an exhibit to the answer, that the suit was brought against John 0. Hare, George Kealhofer and Robert C. Martin; and when the decree was taken, the death of Hare was suggested, and the suit abated as to him, and revived against his administrator, R. B. Dollarhide, who entered his appearance and consented to a decree; whereupon the bill was •dismissed as to the other defendants and a decree of foreclosure, and for sale of the lots, taken against Dollarhide, as such administrator alone.

The decree was not binding, or conclusive upon the heirs of Hare, nor upon Martin, nor upon appellee, who were not parties to it. As to them the mortgage still stood open and unforeclosed. Haskill, Ad., v. The State et al., 31 Ark., 91.

3 Vendor's

assignee of notes!11 ase

?ie nStI<oíp

im g®1o°neawith out mter-

When this suit was brought, therefore, all the claim that Day, Kealhofer & Co., as successors of Forster, Kealhofer & Co., had upon the lots in controversy, was an unrecorded and unforeclosed mortgage, valid only as between them and the administrator and heirs of Hare. Haskill v. Sevier et al., 25 Ark., 152.

HI. The lien of Hare upon the lots to secure the purchase-money notes executed to. him by Martin, was in the nature of a mortgage, and when he transferred the notes to appellee, the lien passed with them, and appellee had the fight, by subrogation, to foreclose the lien. Garrett v. Williams et al., 31 Ark., 240.

The bill alleges that appellee took the notes for a valuable consideration, which the answer denies, and the demurrer to the answer admits this to be true.

But Day, Kealhofer '& Co., having no lien upon the lots excePl as against Hare, his heirs and administrator, under their unrecorded mortgage, were in no attitude to impeach consi(jeration for the- transfer of the notes by Hare to appellee. As to appellee, their mortgage was as if never made. Nor had they any lien or claim upon the-notes in suit, and whether appellee paid Hare little or much for them was of no consequence to them or Martin.

This court has repeatedly declined to depart from the decision in Main v. Alexander., 9 Ark., 112, which was founded upon the strong and peculiar language of the mortgage statute, and became a rule of property, that an unrecorded mortgage is not a lien as against strangers, though they have actual knowledge of its existence.

If a man makes a mortgage to another, and before its. registration makes a second mortgage, or sells the premises to a third person, who has actual notice of the first mortgage, this, in the general law of conveyancing, is a fraud upon the first mortgagee, and makes a strong case for relief; but none is afforded under our statute, as construed in the above case, regulating' the registration of mortgages.

5. former

^parties t01t’ et°‘

The party holding the unrecorded mortgage, and therefore having no lien upon the premises, is in no attitude to question subsequent sales or incumbrances, or the consideration for the transfer of notes executed upon such sales.

To open the door to him for such purposes would be a departure from the absolute rule, and lead to other departures, and finally, perhaps to the mischief of unsettling a rule of property.

Persons taking mortgages must protect themselves by care in their execution and acknowledgment, and diligence in filing them for registration. The trusting • to unskillful persons in conveyancing has been an evil and occasioned much loss.

IV. The attempt in the answer to plead a former decree in bar of the bill-was a failure. It does not allege who were defendants in the former suit, nor that the decree of dismissal was upon a hearing on the merits, nor is the answer aided by bringing into the record of this case the decree relied on as a bar.

The decree must be affirmed.


author: En&lish, C. J.

text:
    Boyd vs. Bryant.
    Statutes : Local option liquor law, constitutional.

    The act approved March 2, 1875, “to prevent the sale or giving away of vinous, spirituous, or intoxicating liquors, within three miles of any academy, college, or university, in this state,” is not unconstitutional.

      2. Legislature : What power it may delegate.

    The legislature can not delegate the power to make laws, hut it can make a law to delegate the power to determine some facts or state of things upon which, the law makes or intends to make its own action depend.
    Statutes:
    tionTiquor law of 1875.
    APPEAL from Dorsey Circuit Court.
    Hon. T. S. Sorrells, Circuit Judge.

      Rousseau, for appellant.

      M. L. Jones, contra.

   En&lish, C. J.

This ease involves the constitutionality of the following act: °

“An act to prevent the sale or giving away of vinous, spirituous or intoxicating liquors, within three (3) miles of any academy, college or university in this state.

“ Be it enacted by the general assembly of the state of Arkansas :

Sec. 1. That it shall be unlawful for any person to sell or give away any vinous, spirituous or intoxicating liquors, within three (3) miles of any academy, college, or university in this state while pupils are being taught or instructed in the same.

“ Sec: 2. The provisions of this act shall not apply to druggists who sell said liquors for medical purposes only; provided, that said druggists shall in every case procure the written cei’tifieate of a regular practicing physician, that the liquor so sold or given -away is for use in a case of actual sickness, and as a remedy therefor; provided, further : that the provisions of this act shall not apply to-cities of the first and second classes, in which a regular police force is maintained.

“ Sec. 3. That the provisions of this act shall apply to those preparations known as ‘ bitters,” the body or portion of which consists of alcohol or other intoxicating liquors.

“ Sec. 4. That whenever the adult residents of any township of any county desire to avail themselves of the provisions of this act, a majority of them shall petition the county court of their county, setting forth the fact that an academy, institute of learning,' or university, in which pu*pils are taught, is located in their township or district, and praying that the sale or giving away of spirituous liquors be prohibited within three (3) miles of the same; whereupon should said county court be satisfied that a majority of said residents so petition, shall make an order in accordance with said prayer, and from thenceforth it shall not be lawful to vend or give away any spirituous liquors within the limits aforesaid.

“ Sec. 5. This act shall not be construed to affect or repeal any law in force in regard to selling liquors, within certain prescribed limits of any institution of learning, passed at this session of the general assembly.

“ Sec. 6, That any person violating the provisions of this act shall be deemed guilty of a misdemeanor, and for each offense shall be fined in any sum not less than twenty-five (25), nor more than one hundred (100) dollars; and this act shall take effect .and be in force ninety (90) days after its passage.” Approved March 2,-1875.

On the first of October, 1877, William Bryant, and about 224 other persons, filed a petition in the count,y court of Dorsey county, representing that they were a majority of the adult residents of Red Land township in said county, and that there was an academy at New Edinburgh, in said township, in which pupils were taught, and that spirituous liquors were sold in New Edinburgh, to the detriment of the school kept in said academy, and praying an order of the court, under the above act, to prevent the sale or giving away of spirituous liquors, etc., within three miles of said academy, etc.

Is constitutional.

"W. M. Boyd, a licensed liquor dealer of New-Edinburgh, on behalf of himself, and others, not named, demurred to the petition, on the grounds that the court had no jurisdiction of the subject-matter of the petition, and that the granting of its prayer would conflict with his vested rights under the constitution and laws of the state. The court overruled the demurrer, and, on ascertaining that the facts stated in the petition were true, made the order prayed for, with an exception in favor of any duly licensed dealer until the expiration of his license.

Boyd appealed to the circuit court.

In the circuit court the demurrer to the petition was argued and submitted on the grounds that the above act was unconstitutional and void.

The court held the act valid, overruled the demurrer, heard the case de novo, and, finding the facts stated in the petition to be true, made an order similar to that made by the county court, and Boyd appealed to this court.

I. Counsel for appellant submits that the act in question is a local or special law within the meaning of sections 24 and 25 of Art. V of the constitution.

Section 24 provides that, “ the general assembly shall not pass any local or special law changing the venue in criminal cases; 'changing the names of persons, or adopting or legitimating children; or granting divorces; vacating roads, streets or alleys.”

It is plain that the above act is not a local or special law within any of the provisions of this section.

Section 25 provides that, “ in all cases where a general law can be-made applicable, no special law shall be enacted; nor shall the operation of any general law be suspended by the legislature for the benefit of any particular individual, corporation or association; nor when tlxe courts have jurisdiction to grant the powers, or the privileges, or the relief asked.”

What gower legislature may-delegate.

The act in question is not a special law within the meaning of this section, because it applies to academies, colleges and universities generally, except in the instances indicated in the act.

Moreover, in the constitutions of other states there are clauses to the effect that “ in all cases where a general law can be made applicable, no special law shall be enacted,” and the courts of those states have held that such clauses left a discretion with the legislature to determine the case, which the special law should be passed. Cooley on Con. Lim. (4th ed.), 155, note 4; State v. Hitchcock, 1 Kan., 178; Gentile v. State, 29 Ind., 409, (overruling Thomas v. Board of Com., etc., 5 ib., 4); Marks, etc., v. Trustees, etc., 37 ib., 163; State v. Tucker, 46 ib., 355; State v. Boone Co., 50 Mo., 317; State v. County Court New Madrid, 51 ib, 83; Hall v. Bray, 51 ib., 288; St. Louis v. Shields, 62 ib., 247; Ex parte Pritz, 9 Iowa, 30.

II. It is furthermore submitted that the act is 'unconstitutional because it is left to také effect or operate in the school districts at the option of a majority of the adult residents thereof, etc.; in other words, that it is a local option law.

If the act is unconstitutional for that reason, it would follow that all of our statutes making the granting or withholding of licenses to sell liquors, etc., to depend upon the suffrages of the electors of townships and wards, ivould be for a like reason invalid, and the state and her courts have done great injustice to vendors of ardent spirits by enforcing such acts, for they are and have been classed as local option laws.

■In some of the states such laws have been held unconstitutional, but the clear weight of authority is nowin support of the validity of such acts. See Cooley on Con. Lim., (4th ed.),pp. 151-2, and cases cited in note 2, p. 152.

In the cases cited the question is fully discussed, and we deem it of no importance to repeat the argument. See State v. Court Com. P., 36 N. Y., 72; Locke’s appeal, 22 Penn. State, 441; 42 Conn., 364.

“ The legislature can not delegate the power to make laws, but it can make a law to delegate the power to determine some fact or state of things upon which the law makes or intends to make its own action depend.” Locke’s appeal, 72 Penn. State, 491; 38 Wis., 504; 91 Ill., 94.

Under the act in question, upon the petition of a majority of the adult residents of a township in which there is an academy, etc., the county court makes an order preventing the sale, etc., of liquors, etc., within three miles of such academy, etc., under the penalty prescribed by the act.

Under the license act, the licenses are granted or withheld on the vote of tne electors of a township or ward.

Under either act, the operation of the law in a particular township, ward or district, is made to depend upon the option of the electors, or adults, and the order of the county court.

On principle there is no difference between the acts.

All such acts are passed, and their mode of operation regulated, under the police power of the state over the subject of vending ardent spirits.

Affirmed.


author: Harrison, J.

text:
    Pugh vs. The City of Little Rock.
    1. Evidence: Parol inadmissible to prove matter of record.

    Parol evidence is not admissible to prove an ordinance or resolution of a city council. The ordinance or resolution itself, or a certified copy of it, must be produced.
    2. Municipal Corporation : Issuing scrip at discount: Evidence.

    An ordinance of a city council providing for the issuance of certificates of indebtedness at a discount, and not dollar for dollar of indebtedness, is illegal and void, and not admissible as evidence against the city.
    3. Payment: Acceptance of city scrip as.

    The acceptance of a city’s certificates of indebtedness as satisfaction in full of a claim against the city, is a payment and extinguishment of the debt.
    APPEAL from Pulaski Circuit Court.
    Hon. J. "W. Martin, Circuit Judge.
    Howard,, for appellant.

      Ben. Johnson, contra.

   Harrison, J.

Henry H. Pugh, on the tenth clay of May, 1872, brought suit against the city of Little Rock for fees due him as city solicitor from the first day of January, 1871, to the thirtieth day of April, 1872 inclusive, amounting to the sum of $5,424.50.

The city, in her answer, alleged that the city council, on the-day of January, 1871, suspended the plaintiff from office for misdemeanor in office, and that he so continued suspended until the expiration of his then term, on the tenth day of November, 1873, and denied that he was entitled to the fees of the office during that time; and she alleged that by an ordinance passed on the fourteenth day of October, 1871, previous to the plaintiff’s election for the term upon which he entered on the tenth day of November, 1871, the city c.ouncil fixed the city solicitor’s compensation at $1,800 a year, and that he was not entitled to fees; and also averred that he had been paid.

Though containing no matter of counter-claim or set-off, the plaintiff filed a reply to the answer, in which he denied the averment of his suspension by the city council, and admitted a payment on. his claim since the commencement of his suit of $2,754 in warrants of the city, worth when received — the tenth day of September, 1872 — seventy cents on the dollar. On the twenty-seventh day of May, 1873, he brought another suit against the city for like fees from the eighteenth day of 'May, 1872, to the thirtieth day of April, 1873, amounting to the sum of $5,295. The two suits were, at the June term of 1873, consolidated and continued.

After the continuance, the case appears to have been dismissed by the plaintiff', but wTas reinstated by consent.

At the October term, 1873, the city filed an answer to the whole action, none having been filed in the second suit before the consolidation, and averred therein that she had, since the continuance, paid the plaintiff the sum of $10,-134, in certificates of indebtedness, which he accepted in full satisfaction in and discharge of the demands sued on, and of his claim against her on like account up to the thirty-first day of August, 1873; each of said certificates stating that the amount named in it had been allowed by the council, and that a -warrant for the same would be drawn in favor of the holder on the city treasurer when there should be money in the treasury belonging to the police fund to pay it.

After t-wo trials had been had, and the verdict set aside, in the first instance upon the application of both the plaintiff and the defendant, and in the second upon the defendant’s, the case was finally tried at the October term, 1877, and a verdict for the plaintiff' was returned for one dollar.

The plaintiff filed a motion for a new trial. His motion was overruled, and he appealed.

It was upon the trial admitted by the plaintiff that his fees had been paid to the tenth day of November, 1871.

He testified in his own behalf that he was elected city solicitor in November, 1869, and was re-élected in November, 1871, and held the office until the eleventh day of November, 1873. That he was as such solicitor entitled to receive as compensation for his services a fee of $2.50 upon each conviction in the police court, which was taxed as part of the costs, and was either collected in money and paid into the city treasury, or paid in labor upon the streets by the party convicted. That during his «second term, a controversy arose between him and the city council about his fees, and for a long time it refused to audit his account, and which was not done until the fifth day of September, 1873. There was thei?found to be due him on the first day of that month, $10,135, and on the twelfth day of September he received that amount in certificates of indebtedness from the city clerk, and receipted to him for it. The certificates were then only worth from thirty-three to thirty-five cents on the dollar, and he at first refused to sign the receipt, which was written and handed to him by the clerk, because the amount in certificates was not equivalent in money to the sum due him, and demanded for each dollar due him, two in certificates. That was on Thursday or Friday, and the clerk, saying he had not time to make them out then, told him to, come again on Monday, and he would hand him a like amount, and that with that understanding he signed the receipt. He went again on Monday, but the clerk then refused, to issue or let him have any more. He then offered to return those he had received, and demanded ■& return of his receipt, but the clerk refused to take them back or to surrender the receipt.

He had since, he said, sold and disposed of the certificates. He further said that his claim against the city for fees that had accrued from the first of September to the -eleventh of November, 1873, when he went out of office, and which amounted to $740, had been paid him, except one dollar, and in certificates.

And John R. Montgomery testified for him, that he was present when he received the certificates from C. M. Earnes, the city clerk, and heard him. tell him that the •amount was not sufficient to pay his claim according to the ordinance of the city, council, and claimed that he was entitled to double the amount that he had made out, and Earnes told him that he would have the balance ready and hand it to him on Monday, and the plaintiff' said he would with that understanding sign the receipt and did so.

The defendant read in evidence thfee letters or communications from the plaintiff to the city council in relation to his claims against the city. The first, dated the sixth of •June, 1873, simply requested a settlement of his claims. In the next, which has no date, he asked the council to pass an ordinance or resolution, directing the city clerk, when he should produce to him satisfactory evidence of the dismissal of his suit, to issue certificates of indebtedness to him to the amount of bis fees as reported by the police judge .in his monthly reports; and in the other, which was dated August, 1873, after saying he had understood that it objected to making any allowance for his fees until his suit was dismissed, stated that he had dismissed his suit and that objection was removed.

The defendant then read from the records of the city council, the following resolution, passed or adopted on the fifth day of September, 1873:

“Whereas, no compensation has been paid to EL EI. Pugh, for his services as city solicitor, since the tenth day of November, A. D. 1871; and whereas, a fee of two dollars and fifty cents was by law allowed to the city solicitor for each and every ease successfully prosecuted by him, when the said EL IE. Pugh was last elected, and said fee has been assessed and taxed as costs since the time aforesaid, a portion of which has been paid into the city treasury and the balance worked out; and whereas, the said H. EL Pugh has withdrawn all suits by him against the city ; therefore, be it resolved, that the city clerk be, and he is hereby, ordered to issue and pay over to the said IE. IE. Pugh, or his attorney, certificates of indebtedness of the city — no money being in the treasury to pay the same — for the amount of fees due the said H. EL Pugh from November 10,1871, to August 31, 1873. Said certificates to be in the usual form of certificates past due; and the amount to be ascertained by the clerk from the reports of the judge of the police court of cases prosecuted in said court during said time and other official records. Said certificates to be issued by the president of the city council and the city clerk.”

She then produced and read an itemized statement, dated September 12, 1873, of the plaintiff’s fees from November 10,1871, to August 31, 1873, for each month, amounting in the aggregate to $10,135, to which was appended the following receipt:

“Received of the City of Little Rock the sum of ten thousand one hundred and thirty-five dollars ($10,135) in full of the above stated account. IE. IE. Push.”

1. Evidence:

Parol inadmissible to prove ordinance or resoluti o n of a city council.

Also, the following instrument:

“ In consideration of the sum of ten thousand one hundred and thirty-five dollars, in certificates of indebtedness of the City of Little Rock, the receipt whereof is hereby acknowledged, I hereby waive all right or claim to any further compensation, whether for fees or salary, on account of services rendered in the police court as city solicitor from the tenth of November, 1871, to the thirty-first day of August, 1873.

“H. H. Pugh,

“City Solicitor.”

Several exceptions were reserved by the plaintiff during the trial to the rejection of evidence offered by him, and also to the admission of evidence adduced by the defendant.

Plaintiff’s witness, Montgomery, was asked at what rate of amount of claim were the certificates to be issued to the plaintiff, which question he was not permitted to answer.

If certificates might have been lawfully issued at a discount, or otherwise than dollar for dollar of the claim, the authority therefor could only have, befen by ordinance or resolution of the council duly passed, the proof of which could only have been by the ordinance or resolution itself, or a duly certified copy of it, and not as was offered to be done by parol testimony.

He was also asked by the plaintiff the question: “ Do you know how the city was then paying her officers ?” but was not allowed to answer it. What was expected to be proved by the witness’s answer does not appear, and we are unable.to see its relevancy to the issue, or how the plaintiff may have been prejudiced by the refusal of the court to permit the witness to answer the question.

The plaintiff' offered but was not permitted to read the following resolution of the council, passed or adopted on the first day of August, 1873: '

2. Municipal Corporation:

Iss u i n g scrip at discount: Evidence.

8 Payment:

Accept-n n ce oí c i ty :crip as.

“Resolved, That the order of the council passed on the twenty-third day of,May, 1873, forbidding the further issuance of certificates of indebtedness, be and the same is hereby suspended for the special purpose of paying the city officers; and the president and clerk are hereby directed to issue certificates of indebtedness bearing no interest, sufficient to pay in currency the claims of city officers that have been allowed prior to this time, and pay the same over without delay.”

When this resolution was passed the council had not adjusted or allowed the plaintiff's claim, or made any provision for a settlement of it. But if it extended to and embraced his claini as wéll as others, and provided, as it seems to have done, for the issuance of certificates at a discount and not dollar for dollar of indebtedness, it was, as we shall presently see, without authority of law and void, and its exclusion from the jury was proper.

He also offered to read the record in a case in the Pulaski chancery court in which he was"plaintiff and John R. Triplett, the police judge, was defendant, concerning his fees, and as the bill of exceptions states, the stating and auditing the same, which the court refused to permit him to do. The record wTas not made part of the bill of exceptions, and we are unable to see its pertinency to the case.

He objected to the defendant’s reading to the jury the beforemen-tioned letters or communications to the city council. We can see no objection to their admission.

The court refused to instruct the jury at the request of the plaintiff, that if when he received the certificates and gave his receipt for them in satisfaction of his demand against the city, it was with the understanding and upon the assurance of the city clerk that he would thereafter issue to him other certificates of a like amount; and that the clerk had afterwards declined and refused to issue to him other certificates than those he had then so received, and that he, upon such refusal, tendered back to the clerk those received and demanded a return of his receipt, and the clerk declined to take back the certificates and surrender the receipt, he had the right to sell and dispose of the certificates; and his acceptance of them was not a satisfaction and discharge in full of his demand, but only to their money or market value;, but against his objection, instructed them as follows: If the plaintiff accepted from the defendant its certificates of indebtedness as satisfaction in full of his demand, and said certificates had a market or money value, it was an absolute payment and discharge; and where an open account is settled by the note or other evidence of debt of the debtor,'1 which the creditor assigns or disposes of, so that he can not surrender it or return it to the maker, the account is extinguished and no action can be maintained on it.

The city clerk had no authority to issue certificates to the appellant to an amount greater than the sum actually due him — in other words, more than a dollar in certificates for each dollar due him in money — and so bind the city to the payment of more than it had received consideration for ; and the council could not, if it had attempted to do so, confer such power upon him.

Judge Dillon says: “The general principle of law is settled beyond controversy, that agents-, officers or even a city council, of a municipal corporation, can not bind the corporation by any contract which is beyond the scope of its powers, or entirely foreign to the'purposes of the cor poration, or which (not being in terms authorized) is against public policy. This doctime grows out of the nature of such institutions, and rests upon reasonable and solid grounds. The inhabitants are the corporators ; the officers are but the public agents of the corporations.” Dill. on Munic. Cor., sec 381; Shirk v. Pulaski County, 4 Dill., 209; Foster v. Coleman, 10 Cal., 278.

The instruction asked by the- plaintiff was rightly refused.

There can be no question that if the plaintiff accepted the eeitifn ates as satisfaction in full of his claim against the city, it was a payment and an extinguishment of the debt, as the jury were instructed by the court. 2 Sto. on Con., 979; 2 Pars. on Con., 624; 2 Green. on Ev., secs. 519-520; Carter v. Davis, 8 Ark., 213; Carlton v. Buckner, 28 Ark., 266; Brugman v. McGuire, 32 Ark., 733.

And if not so intended at the time, it became such by his election when he sold the certificates, and so put it beyond’his power to return them. Holmes v. D’Camp, 1 John., 34; Spooner v. Rowland, 4 Allen, 485; Mooring v. Mobile M. D. and M. Ins. Co., 27 Ala., 254.

The court gave on its own motion, also, the following instruction, to which the plaintiff' excepted :

If the plaintiff received from the defendant certificates of indebtedness to the amount upon their face of his claim, $10,875, and he has sold or disposed of the same, he is estopped to say that he has not been paid ; but if those so received and sold or disposed ,of by him did not nominally amount to the sum due, he is entitled to recover the difference between the nominal amount and the said sum of $10,875.

The court evidently misapprehended the issue before the jury. The second suit was commenced on the ’twenty-seventh of May, 1873, and was for fees which accrued prior to the first of that month, and the fees which after-wards accrued were not, as a matter of course, sued for. The amount paid the plaintiff on the twelfth of September, 1873, included as -well those which had accrued between the thirtieth of April and first of September of that year as those sued for, unpaid.

The plaintiff stated in the course of his testimony that his fees which accrued between the thirty-first of August and the end of his term amounted to $740, all of which, he said, with the exception of one dollar, had been paid, and for that, as we must suppose, the jury gave him a verdict.

The instruction, though clearly wrong, was to the prejudice of the appellee and not of appellant.

The judgment is affirmed.


text:
    Banks et al. vs. Green et al.
    1. Ohancbby Practice: Where necessary parties are not made, etc.

    Where necessary parties are not made in a suit in equity, the court, of its own motion, should refuse to proceed until they are brought in and proper allegations made to bind them.
    2. Husband and Wire : His interest in wife’stand, held by title-bond, etc.
    Where a feme-sole marries while in possession of land under a bond for title, or has taken possession and done such acts'under an oral contract as would entitle her to specific performance from her vendor, she has an equitable title to and estate in the land to which the husband’s marital rights attach, but which she can alienate from herself and her heirs only by some statutory mode. It may also be divested by a decree of foreclosure. But her husband can acquire no adverse legal title to it by paying the unpaid purchase-money and taking the deed to himself.
    3. Statute oe Limitations : Against wife’s heirs during curtesy.

    Where one having an estate by curtesy in the land of his wife, sells the land, the statute of limitations does not begin to run against the heirs of the wife until the termination of the curtesy.

      APPEAL from Lee Circuit Court in Chancery.
    Hon. J. N. Cypert, Circuit Judge.

      Tappan JETornor, M. Anderson, for appellant.

      Palmer, contra.

   Eakin, J.

Appellants and complainants below are the heirs of Mary M. Yarborough, a widow and ferne-sole at the beginning of the transactions • out of which this litigation has grown, who afterwards intermarried with P. C. Green.

Appellees and defendants below are the widow of said Green by a second marriage, together with his- executor, and a great many others, to whom said Green in his lifetime, or his executor since, have conveyed portions of the land in controversy.

The bill states that said Mary M., being the widow of Yarborough, in the year 1849 purchased from one Cavins a quarter section of land, described as the northwest quarter, of sec. 83, in township 8 north, of range 3 east, for the sum of $625, of which she paid in cash $300, and gave notes for the balance, taking from Cavins a title-bond, in the usual form, for a deed, to be executed on the payment of the purchase-money. This was not recorded. Afterwards she hired to Cavins, for the year 1850, a certain slave, for the sum of $140, to be applied as a credit on the debt for the land.

She was then, as charged, possessed of a number of slaves., Before obtaining a deed for the land she intermarried with said Green, -who took possession of the title-bond and obtained from Cavins a deed to himself personally, which he put -upon record. The complainants say that if he paid any part of the consideration, the means came from the proceeds of the labor of property derived through the wife.

She died in 1869, after which Green married the defendant, Alicia, and himself died on the twenty sixth of September^ 1875. He left a will, which was duly probated. During his life he, with his second wife, conveyed small portions of the land to divers persons. These conveyances are set forth, and claimants under them made parties.

Some of them are conceded to be innocent purchasers for valuable consideration, against whom no relief is sought. With regard to the others, it is charged generally that they knew of the equities of complainants.

The bill concedes the right of the husband Green to the enjoyment of the property during his life, by curtesy, as there was issue of the marriage, but claims that said Green took title from Cavins, and held it as trustee for himself during life, and for the heirs of Mary, his wife, after his death.

The object of the bill is to declare that trust, and have partition of the land amongst complainants as heirs. There is, besides, a prayer for all appropriate relief. The defendants, some of them, answered severally, and all filed a joint answer, in which they admit the purchase of the quarter-section from Cavins by Mrs. Yarborough, at .the time alleged, and for the price stated, but deny that she paid any of the consideration, or gave her notes for the residue. They deny, further, that Cavins ever executed a title-bond, or gave any writing regarding the sale. They deny that Mrs. Yarborough ever hired a slave to Cavins in part payment of the price of'the land. They say the purchase was wholly verbal, and void' under the statute of frauds.

They deny that Mrs. Yarborough had any considerable amount of property when she intermarried with Green, but say she was in debt and much embarrassed; and that Green paid off for her debts to'the amount of $2,200; that he liad some means at the time of his .marriage; was a physician in good practice, and managed the property of his wife so as to support her and her family.

They claim that Mrs. Yarborough (then Mrs. Green) was unable to complete the purchase, and abandoned it, and that afterwards, in 1854, Dr. Green bought it upon a new contract and obtained a deed, paying the whole consideration himself.

They, one and all, except the executor and widow, deny any notice of complainant’s equity at the time of their respective purchases, and down to the payment of the purchase money. Some of them say they have made valuable improvements, which they claim in case of an adverse decree as to title.

The cause was submitted to the court upon the pleadings and evidence, under an agreement, made of record, that in case of a decree for the complainants, there should be a reference to the Master to take testimony as to who were or were not innocent purchasers for value. Whereupon the court dismissed the bill for want of equity, and complainants appealed. This eliminates from the question, now presented here, all considerations of notice, and of the doctrine of innocent purchasers for value. If complainants have any equities, against any parties, the decree is erroneous; and the cause should be returned for further proceedings.

The professional prominence, and well-known ability of the counsel, on both sides, engaged in the preparation of the pleadings, justify some remarks of the court upon the looseness to which a misunderstanding of the spirit of the Code is leading. In this case, no exhibit of the will of Dr. Green is made, nor statement of its provisions. No de- ■ visees are named, nor is- it shown'who were the heirs of Dr. Green. Two of the defendants evidently are, but there may be others. If complainants have any equities at all, they must, as to the unsold portions of the quarter-section, be enforced against Green’s heirs or devisees; and it is impossible to bind them, from anything which appears in this record. The Code does not contemplate such pleadings, and the indulgence of'the courts is too freely invoked and too often extended in their toleration.

1 Chancery Practice:

Where necessary parties are not made, etc.

2. Husband and Wife:

His interests wife’s land held by title bond.

Where the attorneys make no objections, it would be well for the courts to refuse to proceed, at least until parties are brought in, and allegations made to bind them to the extent of determining and setting at rest some substantial matters of litigation. It is incidentally developed in the evidence that Mrs. Green is the devisee of a half interest in the lands, and the briefs seem to assume that she claims all. We will proceed nevertheless to consider of the questions presented by counsel.

It is conceded that the lands were originally purchased by Mrs. Mary A. Yarborough, dum, sola, from Cavins; that she took possession under and in pursuance of the contract; was in possession when she intermarried with Dr. Green, and’that he acquired his original' possession by marital right. The questions which first arise are: 'Had she, at the time of her marriage, any title-bond, or contract in writing binding on Cavins? or, if not, had she gone into possession and done such acts as would have given her a vested right to enforce against Cavins a specific performance? In either case she would have had an equitable title to, and estate in, the land to which, indeed, all the husband’s marital rights would attach, but which she could only alienate from herself and her heirs by some statutory mode. It might also have been divested by a proceeding to foreclose. Otherwise, it remained.in her, and subject to all equities against it, passed to her heirs on the expiration of the husband’s courtesy.

This title the husband could, for his own marital enjoyment, protect, by payment of the purchase-money, but could not acquire. The personal property of the wife became his, together with the obligation to pay her debts, but with no special trust attached to it, in his hands, for the purpose of paying her debts, more than to any other persona] property of his own.

There is no principle in equity by which if the legal title had been in the wife, subject to a lien for a pai’t, or all, of the purchase-money, the husband could have raised, for his benefit, a resulting trust, by paying it; nor, on the other hand, where the wife has the equitable title, is there any recognized principle of equity, by which the husband could gain an adverse legal title, by paying off an incumbrance and taking the deed to himself. He will be held a trustee of the wife for her equitable estate. To allow him thus to acquire an adverse right would be incompatible with the marital relation. Whether or not, as against the wife and her heirs, he would be subrogated to the lien of the vendor, or incumbrancer, is a question not free from doubt. It is not made by counsel and will not be prematurely decided. Attorneys should have an opportunity of being heard upon the precise question. It is of great practical importance.

The evidence is strongly preponderating to show that Mrs. Mary A. Yarborough, the ancestress of complainants, had a title-bond from Cavins for the land in question, and, consequently, an equitable estate in the whole quarter-section as against her husband, his heirs or devisees, or purchasers with notice, or without valuable consideration. What the husband actually paid is not clearly apparent. ‘Whether, if ascertained, it may be treated as a lien, is a question left for original determination in the court below. In no case can it be considered as having given him an estate in the lands beyond his curtesy.

or^miT™

duringeurtesy.

The statute of limitations did not commence running against the heirs of Mrs. Mary A. Green before the termination of her husband’s estate by curtesy,

The ^]e 0f j)r. Q-reen appearing perfect on the record, will protect all innocent purchasers from him, or from his executors, under proper powers conferred by will, or the probate court; that is to say, those who purchased for valuable consideration and without notice, according to rules regulating this protection as established by courts of equity.

As for the rest of the quarter-section in controversy, it belongs to the heirs of Mrs. Mary A. Green, formerly Yarborough, subject to such liens, if any, as remain upon it, for purchase-money, the validity of which we, for the reason above given, express here no opinion. This court approves the practice in cases like this, of referring the matter to the Master, to take and report testimony as to whether the several purchasers had notice or were not purchasers for value. •

Reverse the decree, and remand the cause for further proceedings, and with leave to the parties to amend their pleadings, and make new parties if deemed advisable.