text:
    Washington et al. vs. Love.
    1. Replevin. Mortgage : For part of undivided crop.

    Washington rented land from Jones, agreeing to give one-fourth of the cotton produced on it, for rent. He afterward mortgaged to Love three bales of the cotton to be produced on the farm, to secure a debt payable the first of November following, with power to take possession and sell, upen default of payment. After this mortgage was executed and recorded, he made another mortgage, to Deutseh, upon the whole crop, to secure indebtedness to him; and Jones, being indebted to Deutseh, gave him power of attroney to collect the rent, and apply it to his indebtedness. Washington raised and gathered eleven bales. Deutseh got about eight bales, leaving in a pen on the premises about three bales. Love demanded this under his mortgage. Soon afterward Deutseh, with Washington’s assent, moved this cotton to a gin to be ginned. Love then brought replevin against Washington for “three bales of cotton, valued at $90,” and the officer seized it at the gin. Deutseh interpleaded for the cotton, alleging that “he was the owner, and entitled to the immediate possession;” and was also, on his motion, made defendant. Washington made no defense Held:

    1. The contest for the cotton was between Love and Deutseh, and Love . was entitled to the verdict on the interplea.
    2. The eight bales, being more than sufficient- to pay the rent, which was the first lien, Deutseh had no right of possession against Love, his mortgage being subsequent to Love’s.
    3. While the cotton was undivided on the premises, and the three liens upon it, Love could not maintain replevin for three bales, or as much as would make three bales, for he had no title to any particular part of the undivided crop. He should have sued in equity, making the three others parties. But after all but three bales had been taken away, he could, under the circumstances, maintain replevin for the remainder.

      2. Replevin : Not avoided by transfer of possession.

      A party in possession of goods can not avoid replevin by wrongfully transferring the possession to another.
    3. Practice in Supreme Court : No reversal where justice is done.

    Where substantial justice has been done in the circuit court, the supreme court will not reverse for matters of form.
    APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      N. T. White, for appellant.

      T. B. Martin, contra.

   English, C. J.

On the fifteenth of January, 1877, T. C. Love brought replevin before a justice of the peace of Jefferson county against Samuel Washington, “for three bales of cotton, valued at $90,” and a skew-bald, mare.

On the execution of bond by plaintiff, the constable took into his possession, as he returns upon the writ, “seed cotton sufficient to make three bales of cotton, and the mare described within.”

The property was seized on the day the writ issued (the fifteenth of January), and was bonded by Washington, Charles Heutsch and J. B. Core becoming bis sureties in the bond.

On the twenty-fifth of January, the return day of the writ, Deutsch, by permission of the justice, filed a sworn interplea, alleging that he was the owner of the cotton, and entitled to the immediate possession thereof; and that neither plaintiff Love nor defendant Washington had any legal title thereto, or ownership thereof. He was also, upon his own application, made a defendant in the suit.

On the trial before the justice, the right of plaintiff to the mare was conceded, and the contest was as to the cotton, for which, plaintiff recovered judgment, and Deutsch appealed to the circuit court, where the appeal appears to have been treated as if taken for both defendants.

The cause was submitted to a jury on the twelfth of Decemb >r, 1877, and the jury returned a verdict that the plaintiff was entitled to the possession of the three bales of cotton, and fixed the value thereof at $135, and assessed plaintiff’s damages at $15.

Judgment was rendered against defendants for the three bales of cotton; or, if not delivered, the value fixed by the jury, and for the damages assessed, etc.

A motion for a new trial was filed, on several grounds, and among them, that the verdict exceeded the amount claimed in the affidavit, and the court ordered a credit of $45 to be entered on the judgment, and overruled the motion for a new trial; and defendant took a bill of exception, and appealed to this court.

On the trial, plaintiff Love testified that, in the fall of 1875, he sold defendant Washington a horse for $112, and on the eighteenth of March, 1876, took a mortgage to secure the debt, and the mortgage was read in evidence.

By it, Washington conveyed to Love “one sorrel skewbald mare, fifteen hands high, and eight years old; also, three bales of cotton, to weigh about five hundred pounds each, to be raised by me (Washington) the present year (1876), upon the farm known as the Parson Jones place, in Jefferson county, Arkansas,” to secure the payment of a note for $102.50, executed by him to Love, about the first of December, 1875, payable the first of November, 1876, with power to Love to take possession of the property on default of payment, and sell it on public notice. The mort'gage was recorded the twenty-ninth of March, 1876.

Love further testified that, about ten days before the issuance of the writ of replevin, he called on Washington, and demanded payment of the debt; that the cotton in controversy was then in his pen on the Jones place, where it was raised; that he agreed to give him the cotton in payment, or part payment, of the debt.

He returned to the Jones place six or eight days after-wards, and the cotton was gone. Washington told him that a clerk of Deutseh had come there with Deutseh’s wagon and hauled it off'. He went to Pine Bluff, brought this suit, and accompanied the officer, who executed the writ. They found the cotton in the gin of J. B. Core, about five miles from the Jones place. He estimated the value of the cotton taken- by the officer at $90, and his damages at $15.

After he replevied the skew-bald mare, he sold her, under the power in the mortgage, for $38, and credited the note with $17, the balance remaining, after deducting expenses and costs.

J. H. Jones testified, in substance, that he and his brother, B. M. K. Jouqs, owners of the Parson Jones place, rented the land to Washington for the year 1876, and he was to pay them in money for corn land, and one-fourth of the cotton as rent for all the land cultivated by him in cotton.

That Washington raised, in all, eleven bales of cotton, and the cotton in controversy in the suit was in his pen when plaintiff, Love, was up to see him, and was the last of his crop, and that defendant, Deutseh, had gotten all the rest of his cotton.

That the cotton in controversy was taken from the place for Deutseh by his agent, by virtue of witness and his brother being landloi’ds. They had not received one-fourth of this cotton. They had become indebted to Deutseh for supplies, and witness afterwards found their account credited with $82, as their share of the cotton in controversy. Deutsch was authorized by them to collect the rent of Washington.

James Y. Saunders testified that he took the cotton from the Jones place for Deutsch, by his orders, and hauled it to the Core gin, where it was found by the officer when replevied.

Charles Detjtsch testified, in substance, that Washington became indebted to him for supplies to make liis crop, and gave him a mortgage, which was read in evidence.

The mortgage bears date the twenty-ninth of April, 1876, and by it Washington conveys to Deutsch some stock and his entire crop of corn and cotton, then raising and to be raised on the Jones place, to secure an indebtedness of $200, more or less, for goods, wares, merchandise and supplies furnished and to be furnished him by Deutsch, payable on or before the first of November, 1876, with power to Deutsch to take possession of the property, on default of payment, and sell it to pay the debt, etc. The mortgage was recorded the twenty-ninth of May, 1876.

Deutsch further testified that the Jones brothers, landlords of Washington, had also become indebted to him for supplies, and to secure payment for them, as well as for other supplies afterwards furnished them by him, they executed to him, on the twenty-third of December, 1876, a power of attorney to collect their rent of Washington, which was read in evidence.

By this instrument, Jones brothers appointed Deutsch their agent, and authorized him to collect for them and in their names, all rent due, or to become due, from Washington to them, for land occupied by him during the year 1876, and, when collected, to apply the proceeds thereof to any and all debts owed by them to Deutsch, and Washington was thereby authorized to pay to him the part of the crop coming to them for rent, and the receipt of Deutsch therefor was to be a3 valid and binding as if executed by them.

Deutsch further testified that, after the cotton was picked, Washington turned it over to him to pay the part of the-crop agreed to be received as rent, and the remainder toward paying his account. That he sent Saunders with the wagon to get the cotton, and he got it and took it to Core’s gin to be ginned, where it was when the officer replevied it. That. Washington was still due him for supplies secured by the mortgage.

Washington testified, in substance, that he rented land of the Jones brothers, and was to pay them money rent for land worked in corn, and for all land cultivated by him in cotton, they were to receive one-fourth of the cotton for rent. That the cotton in controversy in this suit was raised by him under this contract. That he executed both mortgages read in evidence, one to Love and the other to Deutsch. That he raised, during the year 1876, eleven bales of cotton, including the bales replevied. That defendant, Deutsch, received all the cotton raised by him during the year, for the purpose of paying the one-fourth for rent, and the balance to be applied in payment of his supply account. Witness knew that he had authority to collect the rent, etc. At the time he turned over to Deutsch the cotton afterwards replevied in this suit, neither Jones brothers or Deutsch had taken out their fourth for rent, but the cotton was still undivided. Witness never agreed with Love to deliver this cotton, in payment of the indebtedness he held against him, secured by hia mortgage. The cotton replevied was the last of the crop raised by witness during the year 1876, and was turned over by him to Leutsch, for tbe purposes aforesaid, about four days before tbe institution of this suit. Love came to witness and inquired about the cotton, and he informed him that he had turned it over to Leutsch, for the purpose of taking his share due for rent, and the balance to be applied toward paying the indebtedness of witness to him. When the process was served on witness, Leutsch was in possession of the property, and had been for four days.

The plaintiff moved six instructions. The defendants objected to each of them, except the sixth, but the court gave them all. The five objected to are as follows:

“1. This being an action of replevin, the only question for the jury to determine is as to the right to the posses sion of the property in controyersy, and if the jury believe, from the evidence, that plaintiff was entitled to possession of the cotton at the time of the commencement of the suit, they will find for plaintiff.

“2. If the jury believe that the mortgage from Washington to plaintiff provides that if payment of the debt therein mentioned is not made on a certain day, then plaintiff might take charge of the property mentioned therein ; and that, if the said^ debt was not p&id at the time mentioned, plaintiff’s right to possession is clear, unless there is an older mortgage than plaintiffs remaining unsatisfied, or other superior right of possession.

“3. A landlord has only a lien on the crop raised on the rented land, which lion may be enforced in the manner provided by law, and the landlord has no right to possession of the crop, in the event of the failure of the payment of rent, but must enforce his lien by attachment, if he desires to subject the crop raised on such land.

“4. If the jury believe, from the evidence, that plaintiff' had the first dated and first recorded mortgage on the cotton in controversy in this suit, and that the same ivas due and not paid, at and before the commencement of this suit, no turning over or delivery of the cotton by the defendant to any other person could defeat the claim of plaintiff thereto.

“5. If the jury believe, from the evidence, that Charles Deutsch received the cotton in controversy herein from defendant, "Washington, with the understanding that Deutsch was to sell the same and then pay Jones brothers their rent, and apply the balance to his debt against Washington, and that Jones brothers were parties to such agreement, then Deutsch recéived the cotton as the trustee and agent of W ashingtou, and in that case it makes no difference whatever as to where the cotton was, as the possession of Deutsch was, in law, the possession of Washington.”

The defendant moved six instructions, and the court refused the third, fifth and sixth, and gave the others.

Those refused are as follows:

11 3. By the law of this state the writ of replevin issues to enforce the claim of an owner of property for its delivery to him by one Avho wrongfully detains it, hut it confers no authority on the officers to seize property which is not actually or constructively in the possession of the party named in the process, and when the property is taken from the possession of a third party, the process will not justify the taking, although it be the identical propei ty described therein.

“ 5. If the jury find, from the testimony, that plaintiff held a mortgage on three hales of cotton against defendant, Washington, and that Washington made eleven bales of cotton by his crop, and that the said three bales so mortgaged had never been set apart or designated as the cotton embraced in said mortgage, then plaintiff can not maintain this action.

“6. A mortgage on three bales of cotton out of a crop of eleven bales of cotton, although it may create an equitable interest in favor of the mortgagee, will not be sufficient in itself to authorize the bringing and maintaining an action at law, unless the said three bales of cotton have been identified or set apart as the cotton intended to be covered by the mortgage; and if the jury find, from the testimony, that the said cotton had not been set apart and identified, and agreed that it should be embraced in said mortgage, they will find for defendants.”

I. Deutsch placed himself in the double attitude of interpleader for the cotton and defendant in the main suit. Although, in bonding the cotton, when seized by the constable, Washington was put in front of the battle, and kept there, he set up no claim to the cotton, and had really no interest in the result of the suit, except to save himself harmless on his bond. The contest for the cotton was between Love and Deutsch, both his creditors, and both claiming under mortgages executed by him.

Deutsch failed to establish the allegations of his inter-plea: he did not prove that he was the owner of the cotton and entitled to the immediate possession thereof, as against Love.

The mortgage of Love was executed and recorded before Deutsch obtained his, and of course the title of the senior mortgagee is superior to that of the junior.

Upon the facts disclosed upon the trial, Deutsch derived no title to the cotton in controversy, from or through the Jones brothers, that was superior to or displaced the title of Love.

’Washington was the tenant of the Jones brothers, and they had the first lien upon his cotton crop for rent, which by contract, was one-fourth of the cotton.

Love had, by his mortgage, the second lien upon the cotton crop to the extent of three 500-pound bales.

Deutseh had, by his mortgage, the third hen to the extent of his debt for supplies.

Washington raised eleven bales of cotton.

On the twenty-third of December, 1876, Jones brothers •gave Deutseh a power of attorney to collect of Washington the fourth of his cotton crop due them for rent, and put the proceeds to their credit. By virtue of this power, and under his own mortgage, he induced Washington to turn over to him his entire crop of cotton, amounting to eleven bales.

About four days before this suit was commenced, Washington had still in his pen the cotton in controversy, about three bales, and the last of his crop. This remnant Love demanded, under his mortgage, and testified that Washington agreed to let him have it, which the latter denied. Be this as it may, after Love made the demand, Deutseh sent his wagon for the cotton, and had it taken to Core’s gin. By what right did he so take this cotton ? Not, certainly, to satisfy the claim of the landlord for rent, for he had before then received of Washington as much as eight bales of his crop, which greatly exceeded a fourth of the cotton; so, he then had in his bands largely more than the share of the landlord, whose agent he claimed to be, and to whom he was obliged to account. Nor could he rightly take the last three bales of the crop under his own mortgage, and leave none for Love, whose claim upon as much as three bales was prior and superior to his.

True, the landlords’ fourth might not have been taken out of the particular cotton in controversy, at the time Deutseh had it hauled from the premises, but their share of the whole crop was one-fourth, and it is manifest, from all the facts in evidence, that Deutseh had received, as their agent, or in trust for them, more than their share— •eight bales; beyond dispute, is more than the fourth of •eleven bales.

If, therefore, the trial had been on the interplea of Deutseh, and not in the main suit against both Washington and Deutseh, as defendants, the verdict and judgment on the interplea should have been for plaintiff, Love.

II. The court below refused to instruct the jury, in effect, that Love could not maintain replevin on the facts of the ease, and that his only remedy was in equity. While Washington’s cotton crop was on the premises, where it was produced, and undivided, with the three liens upon it — the landlords’ for rent, the mortgage of Love and the mortgage of Deutseh — Love could not have maintained replevin for three bales of the crop, or as much cotton as would make thrt e bales, for he bad no title to any particular part of the undivided crop. Hall v. Robinson, 16 Ark., 90. His only remedy would have been to file a bill in equity to foreclose his mortgage, making Washington and his landlords defendants, and Deutseh, the junior mortgagee, would have been a proper party. In such a suit, the rights of all the parties could have been ascertained and settled. And it would have been the better practice for him to have filed a bill upon the facts existing when he brought this suit: but could he have maintained replevin at all?

When he called on Washington for payment, a few days before bringing the suit, he found that all of his crop had been disposed of and removed from the premises but three bales, or enough to make three bales. Who could have objected to his taking peaceable possession of this remnant of cotton — the last of the picking — all of the crop that was left — and selling it to satisfy his mortgage ? Not Washington, because the law day of the mortgage had transpired, and Love was empowered by the mortgage to take possession of the property embraced in it, and sell it, on default of payment. Not the landlords, for they had already received, through their agent, Deutseh, one-fourth of the whole crop, which was their share for rent. Not Deutseh, for his mortgage was junior and inferior to Love’s. If, therefore, Love, under such circumstances,, .could legally have taken possession of the remnant of the crop, and sold it, under the power in his mortgage, to satisfy his debt, we can see no good reason why he might not obtain possession of it, by replevin, for the same purpose, on refusal of Washington to surrender it. Jarratt et al. v. McDaniel et al., 32 Ark., 595.

III. A few days before this suit was commenced,. Deutseh, by consent of Washington, removed the cotton in controversy from Washington’s pen, on the Jones place, to Core’s gin, where the constable found it and took it into his custody, under the writ of replevin. The court below refused to instruct the jury that the officer had no authority to seize the cotton, because it was not in the actual possession of Washington.

A party in possession of goods can not avoid replevin, by wrongfully transferring the possession to another. Nichols v. Michael, 23 New York, 266.

In this case, the ginner was in the actual possession of the cotton when the suit was commenced, and it is of no consequence to determine whether Washington or Deutseh had constructive possession. Both of them were defendants. Washington by the act of Love, and Deutseh by his own voluntary act. Ib.

Substantial justice having been done by the court below, upon all of the facts of the case, we are not disposed to reverse the judgment on matters of form and drive the parties to the expense of transferring the suit to the chancery side of the court, amending their pleadings and litigating the matter over again.

The sum in controversy is too small for so much trouble. Deutsch got very near the lion’s share of the cotton, leaving in Washington’s pen not more than Love was entitled to under his mortgage, and then attempted to deprive him of that.

The value of the cotton alleged in the complaint was matter of form (Baily v. Ellis, 21 Ark., 488), but the court, by reducing Love’s recovery to $90, left him enough, perhaps, with the proceeds of the sale of the horse, to pay his debt.

Upon the whole record, thp judgment must be affirmed.


source: Caselaw Access Project

author: Harrison, J.

license: Public Domain

text:
    Trammell vs. Town of Russellville et al.
    1. Cities and Towns : Liability for injuries to individuals. Enforcing illegal ordinances.

    Ror acts done by them in their public capacity, and in discharge of their duties to the public, cities and towns incur no liability to persons who may be injured by them.
    Neither for the act of the council in passing an illegal ordinance, nor for that of the mayor in issuing a warrant of arrest for its violation, nor for that of the marshal in arresting the offender under it, is a town liable to him.
    2. Judge : Liability for judicial acts.

    One acting judicially in a matter within the scope of his jurisdiction, is not . liable in an action for his conduct.
    3. Jurisdiction : What it is.

    The power to hear and determine a'cause, is jurisdiction.

      4. Damages: Officer protected by fair process.

    Process fair on its face, though not in all respects regular, will protect from liability the officer executing it.
    APPEAL from Pope Circuit Court.
    Hon. "W. W. Mansfield, Circuit Judge.

      Pice § Bishop, for appellant.
   Harrison, J.

This was an action by the appellant against the town of Russellville, J..13. Ewin, C. C. Luker and James M. Luker, for false imprisonment.

The complaint alleged: That the defendants, on the fifth day of February, 1877, maliciously, and without probable cause, arrested, and, against his will, imprisoned and restrained the plaintiff of his liberty until the sixth day of said month; and that they again, on the sixth day of February, 1877, arrested, and, against his will, imprisoned and restrained him of his liberty until the tenth day of said month, to his damage $1,500.

The defendant Ewin filed a separate answer, and, in justification of the arrests of the plaintiff, averred that he was mayor of said town of Russellville ; that the council of said town had passed an ordinance declaring all dealers in spirituous, vinous or malt liquors, in quantities less than five gallons, in said town, to be retail liquor dealers, and assessing a tax on each of $300 per annum, to be paid before commencing or continuing the business, and for every violation of the ordinance by keeping ojien the saloon, store or place of business, for the purpose of selling without having paid the tax, it imposed a tax of $15 for every day the saloon, store or place of business, should be kept open; that his co-defendant James M. Luker, who was at the time a deputy marshal of the town, on the fifth day of February, 1877, filed with him, as such mayor, an affidavit charging the plaintiff with a violation of the ordinance, and asked a warrant for his arrest on said charge, which he issued, and the plaintiff was thereon arrested and brought before him f©r trial by said deputy marshal, which was the arrest and imprisonment first mentioned in the complaint; that the plaintiff not being ready for trial, the ease was, at his request, continued until the next day, and he was, upon his, promise to appear for trial, discharged from the arrest; and that, on the next day, he appeared and the case was tried, and the violation of the ordinance being proved, he was fined, from which judgment he took an appeal to the circuit court.

That afterwards, on the same day, the sixth day of February, 1877, his co-defendant C. C. Luker, who was at the time marshal of the town, filed an affidavit with him charging the plaintiff with another violation of said ordinance, and asking a warrant thereon for his arrest, which was issued, and the plaintiff was again arrested and brought before him by said marshal, which was the arrest and imprisonment last mentioned in the complaint; and the plaintiff not being ready for trial, the case was, at his request, continued until a future day, and he was, upon his promise to appear for trial, discharged from the arrest; and that the enforcement of the ordinance being enjoined by the order of the judge of the circuit court, the last case had never been tried ; and he denied that the arrests were malicious or without probable cause.

■The answer of the town and that of the other two defendants were a general denial that they had unlawfully, maliciously and without probable cause, arrested and imprisoned the plaintiff.

The verdict was for the defendants.

There was no material conflict in the evidence, and the facts proven were as stated, in the answer of Ewin.

It is, and was upon the trial, conceded that the town council had no authority to pass such an ordinance, and that the same was .void, as was held in regard to a similar ordinance, in Tuck v. Town of Waldron, 31 Ark. 462.

Municipal corporations are created by the state for political objects, and invested with a portion of governmental power, to be exercised for local purposes connected with the public good. “ They possess, according to many courts,” says Judge Dillon, “ a double character, the one governmental, legislative or public; the other, in a sense, proprietary or private. The distinction between them,” he continues, “ though sometimes difficult to trace, is highly important, and is frequently referred to, particularly in the cases relating to the implied or common law liability of municipal corporations for the negligence of their servants, agents or officers in the execution of corporate duties and powers. On this distinction, indeed, rests the doctrine of such implied liability. In its governmental or public character, the corporation is made by the state one of its instruments, or the local depositary of certain limited and prescribed political powers, to be exercised for the public good on behalf of the state, and not for itself.” Dillon on Municipal Corporations, 39.

For acts done by them in their public capacity, and in discharge of the duties imposed upon them for the public benefit, cities and towns incur no liability to persons who may be affected or injured by them.

The doctrine is thus*-stated by the court of appeals of Maryland:

u With regard to the liability of a public municipal corporation for the acts of its officers, the distinction is between an exercise of those legislative powers which it holds for public purposes, and as part of the government of the country,'and those private franchises which belong tp it as a creation of the law. "Within the sphere of the former, it enjoys the exemption ofthe government from responsibilities for its own acts and for the acts of those who are independent corporate officers, deriving their rights and duties from the sovereign power.” Commissioners v. Duckett, 20 Md., 476.

Then, for neither the act of the council in passing the ordinance, the acts of the mayor in issuing the warrants, nor those of the marshal and his deputy in making the arrests, was the town liable to the plaintiff.

It is a universally recognized principle, that one acting judicially in a matter within the scope of bis jurisdiction, is not liable in an action for his conduct. Judge Cooley says: “Whenever the state confers judicial powers upon an individual, it confers them with full immunity from private suit. In effect, the state says to the officer, that those duties are confided to his judgment; that he is to exercise his judgment, fully, freely, and without favor, and he may exercise it without fear; that the duties concern individuals, but they concern more especially the welfare of the state, and the peace and happiness of society; that if he shall fail in a faithful discharge of them he shall be called to account as a criminal; but that in order that he may not be annoyed, disturbed, and impeded in the performance of these high functions, a dissatisfied individual shall not be suffered to call in question his official action in a suit for damages. This is what the state, speaking by the mouth of the common law, says to the judicial officer.” Cooley on Torts, 408.

That in issuing the warrants the mayor acted in a judicial capacity, will not be questioned; and we think it is equally clear, within the scope of his jurisdiction.

The enforcement of the ordinances of the town was a duty imposed upon him by the statute, and the validity of the ordinance was a question he had the unquestionable power to pass upon.

“The power to hear and determine a cause is jurisdiction; it is coram judice, whenever a case is presented which brings this power into action.” United States v. Arredondo, 6 Pet., 709. “A court has jurisdiction of any subject-matter if by the law of its organization it has authority to take cognizance, try and determine eases of that description.” Cooley on Con. Limitations, 398.

Did the warrants protect the marshal and his deputy in making the arrest? It is established doctrine that process fair on its face will protect from liability the officer executing it. It is not meant that it shall in all respects be regular; but that it shall appear to have been lawfully issued, and such as the officer might lawfully serve. “That process may be said to be fair on its face which proceeds from a court or magistrate, or body having authority by law to issue process of that nature, and which is legal in form and on its face contains nothing to notify or fairly apprise the officer that it issued without authority. When such appears to be the process the officer is protected in making service, and he is not concerned with any illegalities that may exist back of it.” Cooley on Torts, 459; 2 Hill, on Torts, 184.

That the marshal and his deputy were protected from liability by the warrants, we think is clear.

The judgment is affirmed.


author: Eakin, J.

text:
    Donnelly vs. Wheeler.
    1. Exemption: Only residents entitled to. How pleaded.

    The right of exemption of pi-operty from sale under execution appertains only to residents of the State. The pleading asserting it must show such facts as bring the pleader within the expressions of the exemption law. It is not sufficient to allege that the goods are exempt.
    2. Replevin : Affidavit for, no part of complaint.

    The affidavit for replevin in the circuit court, is not a part of the complaint which the defendant is hound to answer.
    APPEAL from Sebastian Circuit Court.
    Hon. J. H. Rogers, Judge.

      Du Val Sf Cravens, for appellant.

      Clendening, contra.

   Eakin, J.

This is a suit, in replevin, byDonnelly against Wheeler, for certain articles of household furniture. The property was taken and delivered to Donnelly. Wheeler pleaded that he held them, as constable, by virtue of an order of attachment against Donnelly, in a suit by a third party.

The transcript of the proceedings before the justice, showed that the attachment was issued upon a debt contracted under the constitution of 1868; the grounds of which attachment, stated in the affidavit, were: That the defendant (with another co-defendant) was a non-resident of the state, and was about to sell, convey or otherwise dispose of his property, with the fraudulent intent to cheat, hinder or delay his creditors. Defendants appeared, 'and filed an affidavit contesting the grounds of the attachment. No defense was made to the debt for which the suit was brought. There was judgment by default; and, in the judgment, it is recited, that the attachment was sustained. Upon that, there was an order of sale, and the wife of Donnelly filed a schedule, both as his wife, and his. agent, claiming the attached property as exempt. A supersedeas was refused by the justice, and this action brought; judgment for return, or for value. Motion for a new trial overruled, and appeal.

It is unnecessary to consider the points raised upon instructions. The right of exemption appertains only to residents of the state. Plaintiff does not show that he was such, and the finding of the jury for defendant was the only legal verdict it could render.

It is true, that in the affidavit for replevin, plaintiff says the goods were exempt from execution, and the answer does not directly deny that, but denies that plaintiff is entitled to the possession. The affidavit for replevin in the circuit court is not a part of the complaint which the defendant is bound to answer. The complaint itself must show cause of action. It is not enough to say that the goods are exempt. That is a conclusion of law from the facts. This court held, in the case of Cowan v. Baker et al., at the May term, 1875 (unrepoi’ted), that “a party who seeks the protection of a court, against the sale of property, which he claims to be exempt from execution, must show such facts as bring himself within the expressions of the. exemption law.”

Affirm the judgment.


text:
    McConnell, Adm’r, vs. Beattie, Adm’r.
    L Vendor by Title Bond: Rights of assignee of purchase notes. Duty to surety on.

    A vendor of land by title bond stands in tbe position of a mortgagee for tbe purchase money, and his rights pass to the assignee of the purchase notes, -who may proceed against the purchaser to foreclose the lien, or against him and his sureties on the note personally, or any of them separately, or may prosecute all these remedies at once, pari passu, until satisfaction. But he must take care that the lien is not lost to the surety by his act or negligence; but to stay the enforcement of the lien is no defense to an action against the surety.
    2. Surety : When subrogated to liens.

    A surety can not have subrogation to liens until he pays the entire debt.
    APPEAL from Crittenden Circuit Court in Chancery.
    Hon. L. L. Mack, Judge.

      Adams, for appellant.

      ■ Weatherford, contra.

   Eakin, J.

This suit was commenced in May,'1868, by petition in debt, by Andrew J. Cunningham, the holder of the notes, against J. M. Jones, who appeared, on the face of the notes, to be a surety for the maker, J. W. Dillard. The notes were for $500 each, dated December 1,1860, and payable, respectively, on the first days of January, 1862 and 1863.

The answer sets up that the notes were given for the purchase of certain lands, by Dillard, upon which there was a lien retained; that they were assigned by the vendor and payee, one to Justice Rives and the other to Edwin Dickinson, and had become, each, entitled to a credit; that said assignees had filed bills in chancery, and had obtained decroes of foreclosure against the principal and the land, with orders for sale, and the appoinment of a commissioner for the purpose, who had proceeded to advertise the lands. Rives and Dickinson then sold and assigned the notes to plaintiff, who directed the commissioner not to proceed ■with the sale, and that the laud is worth the sum due. Defendant claims that he is entitled to have the lands sold for his protection ; or, on payment by himself, to be subrogated to the lien. lie prays that the cause may be transferred to the equity docket; that said decrees may be enforced and the lands sold ; or, if judgment be rendered against himself, that he be subrogated,to the benefit of the decree (which he speaks of in the singular), and declared entitled to enforce the same against the land.

It appears, from the proceedings, that both parties died pending the suit, the later papers being in the name of their respective administrators.

Plaintiff replied in equity, 'admitting the facts of the answer, and showing that Dillard, the purchaser of the land, had (giving no date) sold the lands to one Beattie, by title bond, and that afterwards (Dillard having died) a title had been made to him by order of the probate court, and that Beattie had taken, and since retained, full possession. Plaintiff submits, on this reply, that the proper parties were not before the court to enable defendant to set up the defense attempted ; and also demurs to the answer for want of parties and for want of equity.

Upon hearing, the chancellor found for plaintiff the amounts due on the notes; but, reciting the pending causes in equity, by their titles, and naming the parties, and alluding also to the orders of sale, and their suspension by Cunningham, directed : that the collection of the decree in this case be “ stayed until the sales adore mentioned,” and that the balance which might be due after appropriating the proceeds to the debt, should be certified to the probate court to be allowed against the estate of the defendant Jones. From this decree the administrator of Jones appealed.

The vendor of the lands, as respects the matters involved in this suit, stood in the position of a mortgagee for the purchase money, and his rights passed to the assignees of the notes. They might elect to proceed against the purchaser to foreclose the lien, or against all the makers of the note personally, or any of them separately; or, they might have proceeded upon all these remedies at once, pari passu, until satisfaction.

They "were subject to one restriction. At their peril, they dealt with the lien upon the property, and were required to take care that it be not lost to the surety on the note by their act or negligence. The act of stopping the sale did not have that effect. The land remained bound, is worth the debt, and the lien may be enforced in favor of the surety when, by full payment, he entitles himself to subrogation. He can not have subrogation before, for whilst anything remains unpaid, the creditor is entitled, himself, to hold all the securities.

The plaintiff in this cause, by his purchase of the notes from the complainants in the chancery decrees, succeeded to their rights. As to the surety, who was not a party in the chancery suits, the notes were not merged in the decrees. The holders had the right to proceed upon them at law, and nothing set up in the answer constituted a defense. Whatever rights of subrogation the defendant might acquire by payment, or rights to enforce and carry into execution the original decree or decrees, for his indemnity, did not entitle him to delay the plaintiff in his suit at law. Upon an original bill, properly framed, or even on a cross-complaint in this suit, bringing in the parties to the decrees, and seeking enforcement, the court would have gone on to enforce them for the exoneration or protection of the surety; and where that might be done without serious delay to the plaintiff, a chancellor might mould his decree to settle all rights at once; order the sales, ascertain the balance and render a final decree for that. The answer of defendant can not be taken as a bill for subrogation, or for the enforcement of the decrees. It lacks proper parties and contains nothing definite enough to found a decree upon. The decrees should have been specifically set forth with the parties, so that they might have day in court; the complainant (who is t not plaintiff here) to show that he is entitled to retain his interest in the decree, if. such be the case; and the defendants, to show cause why the decree should not be executed. The chancellor did well not to attempt any decree for enforcement of the former deci’ees. The course which defendant should have pursued for that purpose is clearly marked out by sec. 4559 of Gantt's Digest, as is also the extent of his immunity meanwhile against the plaintiff’s rights. The third clause of said section provides that ‘'the filing and prosecution of the cross-complaint shall not delay the trial and decision of the original action, when a judgment can be rendered therein that will not prejudice the rights of the parties to the cross-complaint.” The decree for the money in this case against the surety, recognizes and enforces a legal right, which does not affect any right of subrogation, and the chancellor would doubtless have felt constrained to render it in any case, even if a proper cross-bill had been filed, and retained for other purposes.

If any one has the right to complain, it is the plaintiff", that the demurrer to the answer was not sustained, and that the collection of his debt against the estate of defendant is stayed, and even its probate delayed, until he can execute, or have executed, the decrees. That depends upon himself, however, and, as he does not appeal, we will not interfere for him. Perhaps he recognizes in the decree a practical, common-sense view of what is' right between man and man, which has prompted the chancellor to try and do substantial justice. ~We think that he has succeeded, although somewhat irregularly, and for that reason the decree must stand. Let it be affirmed.


author: Turner, Sp. J. Harrison, J.

text:
    Shegogg vs. Perkins et al.
    1. Administration: Jurisdiction of courts in.

    The probate court has the exclusive right to make settlements with administrators, which, when confirmed, can never be reinvestigated except in chancery upon a charge of fraud, supported by affidavit. Chancery will then take jurisdiction, not to supersede the probate court, or to withdraw the case from its jurisdiction, but to correct and prevent fraudulent abuse, and to hold the administrator liable for losses or injuries resulting from his mal-administration. It will determine the amount of the administrator’s liability and set aside fraudulent settlements made and confirmed by the probate court; and, when the matters in issue are determined, the administration must be remanded to the probate court to be proceeded with as directed by the decree in chancery.
    2. Decree : What is final.

    A final decree is the order of the court pronounced upon hearing and understanding all the points in issue, and determining all the rights of the parties to the suit, according to equity and good conscience.
    If a decree does not profess on its face to dispose of many of the important matters involved in the cause, and it is manifest that the cause was not in condition to be heard upon those matters, and the decree fails to show affirmative action of the court upon them, the presumption may be indulged that they were not under consideration at the hearing or intended to be embraced in the decree.
    3. Administration: Principal and ancillary. Duty of ancillary administrator.

    When different administrations are granted in different countries, that at the intestate’s domicile is the principal administration. It is the duty of the ancillary administrator to collect the assets in his state, and apply them to the payment of debts due citizens of his state, and remit the balance to the principal administrator. He can not allow and pay claims of non-resident claimants. (Harrison, Justice, dissenting).
    APPEAL from Pulaski Chancery Court.
    lion. J. R. Eakin, Chancellor.
    Before Hon. William M. Harrison, Justice, and Hon. Jesse Turner and Hon. B. B. Battle, Sp. JJ. — Chief Justice English and Justice Eakin being disqualified.
    Brown, for appellant.

      Clark $ Williams, Bose, Farr, contra.

   Turner, Sp. J.

The plaintiffs, who were heirs at law of Constantine Perkins, deceased, state, that on the fourteenth of November, 1864, the said Constantine, who was a resident of Maury county, Tennessee, died at his home, intestate, leaving a widow, Nancy R. Perkins, but no children, lie had a large estate in Tennessee, real and personal, and a valuable plantation in Arkansis, with the usual accompaniments of stock and farming implements.

By the laws of Tennessee the widow was entitled to all his personal property, subject only to the payment of his debts.

By the laws of Arkansas she was entitled to one-half of his personal property, irrespective of the claims of creditors, and to half the rents and pi’ofits of his real estate until her dower was assigned her.

That, on the sixth day of February, 1865, the said Nancy R. was duly appointed administratrix of his estate by the county clerk of Maury county, Tennessee; and that,on the-sixth day of April, 1865, William Q. Pennington, a resident of Pulaski county, Arkansas, was duly appointed administrator of said estate by the probate court of said county. Both administrations progressed,the one in Tennessee, and the other in Arkansas, until the commencement of this suit.

The bill alleged in substance: that said administrator (Pennington) and the widow had confederated together in the matter of the Arkansas administration ; that the said widow had received from the rents and profits of the plantation for 1864, and the succeeding years, as her share, large sums of money, the estimated amount of rents and profits for three years amounting, as they allege, to $27,-000, the plaintiffs having, in the meantime, received nothing; that the administrator (Pennington) had improperly allowed an account, in favor of the widow, which she claimed to have paid in August, 1865, to the firm of Brennan & Co., of Nashville, Tennessee, for $2,000, denying that she paid it all, or, if she had, alleging it had been paid with money of the estate.

That the allowance of claims against the estate, a list of which they set forth, amount to something over $5,000, all of which have been paid ; but as they had no means of proving payment, prayed discovery; conceded dower to the widow; prayed that an account be taken, and for a full and final settlement of the estate, and that after assignment of dower, partition be made of the balance of the lands. The administrator (Pennington) answered: .Denied that the deceased resided in Tennessee; stated that in 1865 the widow cultivated 100 acres of the plantation for her own use, free of rent, in consideration that she would claim none of the rents, and that he received that year from the other lands, $600 ; that for the current year (1867) he had rented the plantation for $4,750, and the whole amount previously received for rents, he stated to be $4,437.05, clear of allowances, one-half of which was paid to the widow. Explainingthe claim of Brennan & Co., he stated that it was due for an engine and fixtures put on the plantation in the lifetime of the intestate; that the widow was sued for it, as administratrix in Tennessee; that she compromised the suit for $2,000, and paid her attorney $100, and sent the claim to him, to be allowed against the estate in Ai’kansas; denied that she got the money from him. He admitted the list of probated claims set forth in the bill, to be correct, with the addition of a claim allowed himself, which was pending when the suit commenced, and showed a balance of money to his debit of $2,028.48. He concluded with a demurrer to the jurisdiction of the court.

Nancy R. Pei’kins (the administratrix) answered and made her answer a cross bill, claiming the whole of the rents and profits of the land until assignment of dower; denied all confederation with Pennington ; admitted that she received her share of the corn and cotton crops for the year 1864, amounting to the sum of $1,421.95.

She admitted the use of 100 acres of land in 1865, which she claims as her right, but denies using any afterwards; also, that she received from Pennington $1,998.80, one-half of the clear rents of 1866, but claimed that she was entitled to the whole. Explaining the claim of Brennan & Co., she stated that her husband had been sued upon it in his lifetime for a larger amount, and that after the grant of administration to her, she was threatened with a revival of the suit, and that, by the advice of William C. Perkins, she had compromised it by paying $2,000 to the claimant, and $100 as fees to her attorneys; that she presented this claim to the Arkansas administrator for reimbursement,because she thought it most proper to have it allowed against the Arkansas property, as it was contracted for that; denied that she had received any of the personal property of the Arkansas place except a mule valued at $25, but that Pennington had bid off'for her at the sale, other personal property of the value of $312, for which he Bad accounted, and paid her, with that, the sum of $455.65 as her half of the sale of the other personal property.

She also set up a parol contract -between her husband and Pennington, for an exchange of eighty acres of land, which she alleged had been carried into effect by her husband’s occupancy and cultivation for a number of years, and now constituting part of the land in which she claims dower, and prays a specific performance against Pennington. She also claimed the whole of the rents and profits until the assignment of dower.

On the twentieth of December, 1867, Pennington filed a supplemental answer, admitting the receipt of the corn and cotton of the crop of 1864, as stated by said administratrix, and corrected his former statement of balance in hand, to show the balance to be $3,626.44.

On the twenty-third of June, 1868, the plaintiffs answered the cross bill of said administratrix, in which they insisted that the domicile of deceased was in Tennessee, and protested against her claim for all the rents and profits.

They still insisted that the allowance of the Brennan claim was wholly wrong, and that it should have been paid out of the estate in Tennessee, and allege that another claim allowed by the administrator here in favor of John Rowland was improperly allowed. That they believed it had been allowed for the benefit of Mrs. Perkins ; that nothing was due him, and that if anything was due Rowland, as claimed, it had been presented hero in Arkansas by her procurement to relieve the personal property in Tennessee.

Issues were made up on the twentieth of July, 1868, by the answer to the cross bill of the guardian, ad litem, of the minor heirs ©f Thomas Perkins, deceased, and by replication of the plaintiffs to the answers of Nancy R. Perkins and Pennington to the original bill.

A number of depositions were taken, filed and published on the eighteenth of February, 1869.

These depositions relate only to the residence of the deceased, and concerned nothing else in issue.

The record shows that upon these pleadings, and the accompanying exhibits, the cause was heard on the fifteenth day of December, 1869. The chancellor found that the said Nancy R. Perkins, widow of the said Constantine Perkins, was entitled to dower in the estate of said Constantine, as follows, to-wit: “To one-half of all the personal property and dioses in action of which the said Constantine died possessed, as well as to one-half of all the clear rents and profits of the lands of said estate, absolutely and for her own use forever; and also to a life interest in one-half of all the lands of which the said Constantine died seized and possessed.” Dower decreed accordingly, and commissioners appointed to make the assignment thereof in the lands, which were particularly described.

The same commissioners were also appointed to take an account of the rents and profits of the lands after the death of the said Perkins, and it was decreed that plaintiffs were entitled to partition of the balance of said lands, etc.

The plaintiffs afterward filed a supplemental bill, to which the said Nancy R. and Pennington appeared, on the twelfth of September, 1870.

On the seventh of November following, the said Nancy R. and Pennington moved to strike out this supplemental bill.

On the eighth of March, 1871, leave was given plaintiffs to amend the supplemental bill, and on the fourth of April following, the bill was struck from the files at the cost of the plaintiffs. On the next day, April 5, 1871, the report of the commissioners appointed to assign dower was taken up and confirmed. It simply assigns dower in the lands, taking no account of rents and profits. No exception has ever been taken to this assignment of dower.

On the nineteenth of May, 1871, plaintiffs filed .a motion to reform and correct the decree of December, 1869, and to reinstate the supplemental bill, which at that term had been struck from the files, basing their motion upon the affidavit of George 0. Watkins, Esq.; the effect of which is that the decree was framed and entered hastily by the attorney for Pennington, and is not according to the understanding, which was that the decree should be interlocutory for the purpose of ascertaining dower and to take an account for future action, and not to be decisive of the rights of the parties; that the case was not actually heard by the chancellor then sitting, who, only consented that the decree might be entered up as understood by the attorneys, etc.

The attorney for Pennington, C. B. Moore, Esq., filed a counter affidavit in opposition to the-motion, to the effect that the decree was drawn as he understood the agreement, which was that it should be final as to all' matters save dower; and contends that he so intended it at the time, and insists that it should so stand. The motion was not then acted upon, nor was any further proceeding had in the cause for many months.

On the twenty-second of February, 1872, while the motion was pending, the plaintiffs asked leave to withdraw the amended supplemental bill, which they had previously attempted to file, and upon leave they were then allowed to file a supplemental and amended bill with the exhibits thereto.

Pennington appeared to it, and was granted until rule day to answer. Ilis securities, Tucker and Bertrand, also appeared. Edward Shegogg (who had become the husband of Nancy R. -Perkins) and his wife refused to appear, and a warning order was made, as to them.

In the meantime, pending this suit, Pennington was proceeding with the administration, filing accounts current, etc. The amended and supplemental bill of the twenty-second of February, 1872, assails these accounts and settlements as fraudulent, and repeats the charge of fraud against the said Nancy R. (now Shegogg), in the allowance of the Brennan claim.; and charges the allowance of the Rowland claim to be fraudulent also, and that Pennington had fraudulently obtained an order from the probate court to employ an attorney to defend this suit, which was not against the estate but against himself, on account of his own mal-administration. Ti.at the accounts and settlements filed in the probate court were in contempt of authority, and except to them as fraudulent.

A full transcript of the proceedings and settlements in the probate court are filed as exhibits in the cause.

The plaintiff's charge mismanagement of the estate in many ways, and allege a relationship and connection between Nancy R. Shegogg (late Perkins), Pennington and one Chravis, hostile to the interests of the estate, and prayed an injunction against Pennington, to restrain him from further proceedings in the probate court. Ask that an account be taken of all the matters charged with regard to the assets received, or which ought to have been received by the administrator. That he be charged with the Brennan allowance, which they allege was collusively and fraudulently paid to the said Nancy R. That the securities be held liable for any deficiency, and that the money, when collected, be brought into court and distributed under its order.

The injunction prayed for was ordered on the twenty-ninth of February, 1872.

The record fails to show any answer of Pennington to the last bill, while there is among the papers of the cause an answer of his, which appears to have been intended for the first supplemental and amended bill, and which puts in issue the material matters alleged in the last bill, and although it bears date in 1870, we may reasonably assume that it was intended to be filed as a response to the last bill.

The answer contains a demurrer to, and protest against, the jurisdiction of the court.

On the fifth of December, 1872, the death of. Pennington was suggested, and the suit was revived against the administrator.

The death of Mary A. Bradley was also suggested, and the suit revived against her heirs at law.

Shegogg and ■wife answered on the twenty-fourth of May, 1878. She denied any and all fraud, either in the Brennan or Rowland claim, and asserts that she had the right to pursue the course admitted by her to have been taken.

She says that the personal estate in Tennessee has turned out less than, she supposed, although, at the time of the Brennan settlement, she did not doubt its sufficiency. She exhibits, with her answer, the inventory returned and filed by her in Maury county, Tennessee, which contains a large amount of personal property, consisting of furniture, cattle, carriage, mules, horses and other property about the plane, which is not valued. Also, an inventory of notes reported good, amounting to something more than $8,000, besides $5,250 in gold.

A large list of notes reported doubtful were also in eluded. Of those returned as good, the exhibits show a subsequent report to the court of the insolvency of moré than $6,000.

Solomon F. Clark appeared as the administrator de bonds non of the estate of Constantine Perkins, deceased, and was ordered to rent out the lands.

Thomas Fletcher, as administrator of Pennington, filed an answer. Tucker’s assignee in bankruptcy also appeared, aud the administrator of Bertrand appeared and filed a demurrer aud answ er.

On the nineteenth day of March, 1875, the cause came on for final hearing, and was submitted to the court on the pleadings aud papers in the cause, and argument of counsel; whereupon, the chancellor decreed that there is fraud in the settlements of William Q. Pennington, deceased, as administrator of the estate of Constantine Perkins, deceased, and that said accounts should be surcharged and falsified, and that an account should be taken of the amounts due from the estate of said Pennington, with which it would properly be chargeable, upon an adjustment of his accounts as administrator; and that the claim of Brennan & Co., allowed by the said Pennington against the estate of the said Perkins, be wholly disallowed and rejected, aud that all the settlements of the said Pennington, as administrator as aforesaid, made with the Pulaski county probate court, be annulled for his fraud, as charged by plaintiffs, and that said account be restated by the special master of the court1, and that he make report thereof to the next term of the court thereafter.

From this decree Nancy R. Shegogg, a defendant in the original and supplemental bills, appealed to this court, and there was also a cross-appeal by W. O. K. Perkins et al.

The record presents several questions for our consideration :

1. As to the question, of jurisdiction. The original jurisdiction of courts of equity in the administration of assets is founded on the principle that it is the duty of courts to enforce the execution of trusts, and that the executor or administrator, who, as trustee, has the property in his hands, is bound to apply it to the payment of debts and legacies, and the surplus, if any, according to the will of the testator, or, in cases of intestacy, according to the statutes of distribution.

It is true the probate court has the exclusive right to make settlements with administrators, which settlements, when confirmed, can never thereafter be subject to investigation, unless in a court of chancery, upon the allegation of fraud, supported by the affidavit of the party making such allegation.

The court of chancery, then, upon the allegation of fraud, as iu this case, will entertain jurisdiction of the bill, not for the purpose of superseding the probate court, or withdrawing the case from its jurisdiction, which it has no power to do, hut to correct and prevent fraudulent abuse, and to hold the administrator accountable for losses or injuries to the estate, resulting from his mal-administration. The 'court can determine the amount of liability with which the administrator ought to he chargeable, and may annul and set aside settlements made and confirmed by tbe probate court, if their fraudulent character is made manifest. The court, however, confines itself to questions arising in the course of tbe administration between parties interested in the estate, and does not attempt to set up an administration independent of the probate court. On the contrary, when the matters in issue are determined by the court, the administration must be remanded to the probate court to be proceeded with there, according to the decree of chancei'y in determining the rights and liabilities of the parties in interest.

2. As to the effect of the decree of the fifteenth of December, 1869:

It is contended by the learned counsel for Mrs. Shegogg that the decree is final and conclusive, as to all matters put in issue by the pleadings; and this position is plausibly and ably maintained in the argument of counsel, and yet we can not think it was so understood by the plaintiffs’ solicitors, or was tbe design of the chancellor. The court decreed dower to the widow of Perkins and provided for its assignment. It was accompanied by a further decree for partition. The widow’s rignt to dower was conceded, and the only question was as to its extent. The right of the heirs of Perkins to partition was not contested. The widow, as such, claimed all the rents and profits of the plantation, accruing before the assignment of dower.

This right she asserted as a resident, in vhtue of the alleged residence of her husband in Arkansas, while her rights to more than half was resisted, on the ground of his alleged non-residence in Arkansas.

The hearing of the cause, if hearing it could be called, was singularly imperfect and incomplete.

The residence of Constantine Pei'kins was important as determining the extent of tbe widow’s right to dower in the rents and profits of the real estate before dower assigned; lienee, up to this time, all the evidence taken in the cause is confined to Perkins’ residence, and none of the depositions have any allusion to the alleged waste and mismanagement of the estate. The liabilities of the administrator, his failure to file annual, accounts current, his wrongful allowance of the claim of Brennan & Co., and other acts of mal-admiuistration charged, are totally ignored, and seem not to have been in the mind of the court at the rendition of the decree.

Whatever the decree may seem to be in form, we are disposed to regard the action of the chancellor as a preliminary disposition of matters mostly not contested, which, though final and conclusive as far as it goes, was not intended to be, and is not, final and conclusive as to the other material matters in issue between the parties, in reference to which, in point of fact, there seems indeed to have been no hearing at all.

A motion was made by the plaintiffs to correct and reform the decree.

This motion was not formally granted, but the plaintiffs had leave to file their amended and supplemental bill, which involved the same matters embraced in the original bill, and the cause, on the amended pleadings, proceeded to a hearing.

Is then the decree final as to all matters put in issue by the pleadings ? We think not. It does not profess on its face to dispose of any of the important matters involved, except the subjects of dower and partition, and it is quite apparent that the cause was not in a condition to be heard _ upon the other matters involved in the pleadings, and we think if the decree fails to show affirmative action of the court upon these matters, the presumption may be indulged that they were not under consideration at the hearing, or intended to be embraced in the decree of the chancellor.

“A final decree is the order of the court pronounced upon hearing and understanding all the points in issue, and determining all the rights of the parties to the suit according to equity and good conscience.” Lube, 156.

“A decree is final token all the facts and, circumstances material and necessary to a complete explanation of the, matters in litigation are brought before the court, and so fully and clearly ascertained on both sides, that the court is enabled, upon a full consideration of the case made out and i'elied upon by each party, finally to determine between them according to equity and good conscience.” 1 Barb. Ch. Prac., 330; 2 Litt., 261; 7 Paige, 18; 4 How. Miss., 485; 1 Ark., 391; 10 Ark., 333.

'And to this effect we think are most of the authorities referred to by the learned counsel who contends for the absolute finality of the decree of the 15th December, 1869.

This decree does not profess to 'dispose of all the matters in controversy between the litigants. On the contrary, the circumstances attending its rendition, taken in connection with the face of the decree itself, conclusively shows that material matters in issue between the parties were not heard, considered or acted ripon by the chancellor, and not intended to be embraced in the action of the court.

We are, therefore, of the opinion that t'he decree, except as to matters of dower .and partition, was not final and did not. in any wise, affect the other matters in controversy, which remained open for the future action of the court.

3. As to the validity of the claim of Brennan & Co.

Two administrations were granted on the estate of Constantine Perkins. One by the county court of Maury county, Tennessee, the place of his domicile, where he owned a large estate, and the other by the probate court of Pulaski county, Arkansas, where he also owned a large estate.

By the long since settled law, when different administrations are granted in different countries, that is deemed the principal or primary administration which is granted in the country of the domicile of the deceased party; for the final distribution of his effects among his heirs, or distributees, is to be decided by the law of his domicile. Hence, any other administration which is granted in another country is treated as in its¡ nature ancillary merely, and is generally tafeld subordinate to the original administration.

The Tennessee administration, then, is to be regarded as the primary, and that of Arkansas as the ancillary administration.

It is alleged in the bill that the claim of Brennan & Co. was allowed in Aikansas through the fraudulent procurement of Mrs. Shegogg (Perkins) in confederation with Pennington, the Arkansas administrator.

The claim originated in Tennessee, where all the parties in interest resided. At the time of the death of Perkins a suit was already pending in one of the Tennessee courts for the recovery of this claim. After the death of Perkins this suit wfts compromised, and the claim sent to Arkansss for allowance.

Both administrations controlled a large amount of assets, but our conclusion is, that the personal effects of the deceased in Tennessee was more than sufficient to have paid all of his debts, and especially his Tennessee debts ought to have been paid.

The Arkansas administration was purely ancillary, and the only duty devolving upon the administrator was to collect the assets here, and to appropriate so much of the avails of the same to the payment of debts due to our citizens, as would be authorized by the general solvency or insolvency of the estate of the deceased, and remit the balance to the place of primary administration. See 3 Met. (Mass.), 114; 8 Pick, 475, 11 Mass., 256; 2 Mass., 384; 13 Pick., 23; 3 Penn., 185; Story's Conf. of Laws, sec. 518; 2 Kent, 434.

Here the'question presents itself: -Was the ancillary administrator in Arkansas authorized to allow this claim as in case of the claim of a local creditor residing in this state? We think not.

In the case of Churchill et al. v. Boyden, adm'r, 2 Wash. Vermont Reports, 321, Rebeielb, J., in delivering the opinion of the court, said: “ The only question here, is, whether the creditors of an estate where the principal administration is out of the state, and au administration of the estate has been granted here, are all: alike entitled to have their demands allowed by the commissioners appointed hei’e; or whether the commission extends only to resident creditors.

“ We think it may be regarded as well settled in this state, that it is ouly the latter class of creditors who are entitled to have their claims allowed here.” The court further said:

“I am aware that upon general principles of moral equity, there may be much said against this rule of allowances. Hut the law seems to be so settled in most of those countries where the common law of England prevails, and in many others. It has never been questioned that the court of probate, where the ancillary administration is, will take no notice of foreign creditors, and not usually of foreign legatees or distributees.” 5 Vt., 333; 6 Vt., 374; 7 Vt., 170; 3 Pick., 128; 3 Penn., 185; 81 Penn. S., 441; 3 Rawle, 312; 20 N. Y., 103; 9 Wall., 740; 2 Kent, 434, and note a, Story’s Conf. of Laws, 334, 336-7, and authorities there referred to; 7 Johns’ Ch. Rep., 45-47. And to the same effect is a late decision of the supreme court of Pennsylvania. See Barry’s appeal — Foster’s estate. An abstract of this decision may be found in the Southern Law Review, Vol. 5, No. l, for April and Mag, 1879, p. 142.

In that case the court decided that: “In ancillary administrations in Pennsylvania, of the effects of a decedent who was domiciled elsewhere, the court will pay only such claims as are proved only residents of Pennsylvania, and order the fund to be turned over to the foreign administrator, and non-resident creditors must resort to that jurisdiction.”

This court has never expressly decided the question under'consideration, yet our decisions, so far as they go, are in harmony with the authorities here cited. See Clark v. Holt, 16 Ark., 257; Du Val et al. v. Marshall, 30 Ark., 230; Williamson v. Furbush, 31 Ark., 539.

In the last ease the facts were, in some respects, analogous to the facts of this case.

Mills and the plaintiff were citizens of Tennessee. Mills died in Tennessee, and left a will, which was probated. Caledonia Mills, his widow', was his executrix and sole devisee. The personal property was more than sufficient to pay his debts; the plaintiff had a note against the estate which was never presented for allowance or payment in Tennessee; there wras no administration on Mills’ estate in Arkansas, and the claim never was allowed here.

A bill was filed in equity to enforce the claim against certain real estate in Arkansas, alleged to be subject to the payment of the debt.

Mr. Justice Walker, who delivered the opinion of the court, in discussing the question of the liability of the real estate in Arkausas in such a proceeding, after intimating distinctly that the claimant ought to have presented his demand to the administrator in Tennessee for allowance, goes on to say: “ It will be seen, too, that this is a foreign debt; one contracted at the testator’s domicile, in which administration had been granted, and it is questionable whether, if ancillary administration was had in Arkansas, a foreign claim could be presented here and the assets of the estate exhausted to pay it, to the prejudice of the rights of creditors in Arkansas.”

The court further said : “ The plaintiff says that the personal estate in Tennessee is amply sufficient to pay his debts, and if such is the case, there is no apparent reason why he should not enforce his claim there. But suppose such was not the case; that there were many claimants whose debts greatly exceeded the assets in Tennessee, and that in Arkansas there was an estate largely more than necessary to pay the debts here,'and, upon settlement, there was a balance on hand; it would certainly not be equitable to allow one creditor to bring his claim to Arkansas and take full satisfaction of his debt, leaving the debts of the other creditors unpaid, or but partially paid.”

We have given this question anxious consideration, and devoted a good deal of time to its investigation. We find the decisions on the subject conflicting, and often unsatisfactory. But while it is impossible to reconcile those conflicting decisions, we think, according to the weight of authority, to which we yield our assent, the claim of Brennan & Co. ought to have been allowed,if allowed at all, by the administrator of the domicile, and that its allowance by the ancillary administrator in Arkansas was wholly unauthorized.

Independently of the want of authority in the ancillary administrator to allow the claim, viewed in another aspect, the circumstances attending its presentation and allowance in Arkansas are well calculated to throw suspicion upon the motives of the principal actors in the transaction.

Previous to Perkins’ death, he had been sued in one of the Tennessee courts for the recovery of this claim, and soon afterwards the widow (administratrix) compromised the suit for $2,000, to which she added $100 for attorney’s fees, making in all $2,100, which she claims to have been paid out of her own money. The Tennessee estate consisted largely of personal property, and by the law of that state the widow was entitled to this absolutely, subject only to the payment of the debts of the deceased.

If, then, the widow, as is alleged, paid the claim out of her own money, she being entitled to the whole of the personal estate, subject only to the payment of debts, it was in effect, repaid to her from the personal assets in her hands, which was thereby relieved from further liability on that account.

It seems quite evident that the claim was sent to Arkansas for payment, in the first instance, to relieve the personal property in Tennessee from a liability which originally attached to it, and impose a corresponding burden upon the real estate in Arkansas, to which the plaintiffs, as heirs at law of Constantine Perkins, were entitled, subject only to the dower inteiest of the widow.

To compel the heirs to pay this claim out of the real estate in Arkansas, which has already, in effect, been paid out of the personal estate in Tennessee, would be unfair and unjust to them, and equivalent to a second payment of the same debt, to their prejudice and for the special benefit of the widow.

Pennington, who seems throughout the whole business to have acted in counsel with Mrs. Perkins, must have fully comprehended the character of the claim, and the purposes for which it was sent to Arkansas for allowance. As we regard it, looking at the matter in the light of the facts and circumstances attending the allowance of the claim here, its fraudulent character is evident; and we agree with the chancellor in his decree, that said claim be wholly set aside and rejected, because of fraud in its allowance.

4. As to the validity of the John Rowland claim.

The reasons which, in our judgment, warrant the rejection of the Brennan & Co. claim apply, with nearly if not equal force, to the Rowland claim. This, too, was a Tennessee debt Rowland lived with the deceased, and continued to reside with the widow after Perkins’ death. The claim is said to have been for services rendered Perkins in his lifetime. If a legitimate claim, it ought to have been allowed and paid in • Tennessee. There was the bulk of personal assets out of which the debts, especially the home debts, 'were to be paid. Why, then, was the Tennessee administration ignored and the claim sent out to the-Arkansas administration for allowance ? We may reasonably suppose that it was sent here, as in the case of the Brennan & Co. claim, to relieve the personal property in Tennessee from a liability primarily resting upon it, and impose such liability as a burden upon the real property in Arkansas, to the prejudice of the plaintiffs. That an understanding was had between the widow, Pennington and Rowland to this effect, hardly admits of a doubt. Indeed all the circumstances lead to this conclusion. The fact that the claim was first presented and allowed in Arkansas, where, as we hold, the ancillary administration had no authority to allow it, was, in connection with other attending circumstances, strong presumption of the fraudulent character of the claim. It ought to have been rejected.

Upon review of this cause, we are of opinion that there is error in so much of the chancellor’s decree as decides that the claim of John Rowland is a valid and binding claim against the estate of Constantine Perkins; and to this extent the decree is reversed, but in all other respects affirmed.

Harrison, J.

Dissenting. I am unable to conftur in the conclusion reached in the opinion of the court, that no other creditors but those residing in this state were entitled to prove their claims in the administration here.

For such a distinction there is in my mind no well-grounded or satisfactory reason.

Though an ancillary administration is, as it is said, subservient to the rights of creditors, legatees and distributees who are residents within the state or county where it is granted, the rights of all are to be regarded; their protection is not the primary object of such administration.

During his lifetime, the law gives no preference to the debtor’s creditors residing within the state, and all may alike sue him in the courts. Why may not all also, upon his death, sue his administrators or prove their claims against his estate? All creditors may prove their claims in the,domiciliary administration, and it is agaiust every principle of equity and justice that the local creditors, or those within the jurisdiction of the ancillary administration, who have equal right in the assets of the former, should exclude the foreign creditors from any participation with them in those of the latter.

All that the local creditors may in justice demand, as I understand the rule to be, is that the effects of their deceased debtor shall not be withdrawn from the state until they are paid, if the estate is solvent; or, if insolvent, they have received a joro rata of their claims, according to the law of their state, in the aggregate assets of both the domiciliary and ancillary administrations.

Chief Justice Parker, in Goodall v. Marshall, 11 N.H., 94, said : “As the movable property must be administered according to the lex loci rei sites until it comes to the disposition of the balance in the hands of the administrator, is there any sound reason why a distinction should be made between creditors, citizens of that place, and those who reside in other governments? or, in other words, shall the government which administers the property within its jurisdiction, and causes that administration to enure for the benefit of its own citizens, exclude the citizens of other states from a participation in it by refusing to entertain their claims?

“The first answer to this question may be drawn from a consideration of the state of the laws relating to the remedies of the creditors preceding the death of their debtor. It would, perhaps, be too much to say, that there is no nation, possessing just claims to be regarded as a civilized government, in which, during a time of peace and friendly relations, the subjects or citizens of a foreign state are excluded from pursuing similar remedies for the collection of debts provided lor its own subjects. It is sufficient- that no such exclusion is known to the common law, nor to the statutes of England, or those of the several United States. So far as regards the relations of the latter to each other, any attempt at such exclusion is prohibited by the clause of the Constitution of the United States, which provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. If the creditors of the domicile may pursue the property of the debtor in his lifetime, in another government, equally with the citizens of the government where the property is situated, no sound reason suggests itself why they should he debarred of a remedy, and the property be appropriated exclusively, or in the first place to the satisfaction of the creditors in the latter government on his decease. Even if by permitting them to come in, the property may be insufficient to pay all, and the creditors in the government where the property is situated thereby compelled to resort to the principal administration where the debtor had his domicile, or to lose,their debts, or a portion of them; this result is no other than might have been obtained in the lifetime, of the debtor, by his withdrawal of the property from their jurisdiction.

“Another answer, and one which seems entitled to weight, is furnished by the considerations to which we have before adverted, showing that the ancillary administration, so far as creditors are concerned, is to be governed by the lex loci. It' no regard is had to the place of residence of the deceased, in the marshaling of the assets, and the payment of the debts, no good reason occurs to us why any regard should be had to the place of residence of the creditors, in the allowance of the claims.”

And all the cases I have been able to find, in which the question has been directly passed upon, or adverted to, except the one hereafter mentioned, are in agreement with the case from which I have quoted. Dawes v. Head, 3 Pick., 144; Davis v. Estes, 8 Pick., 475; Harvey v. Richards, 1 Mason, 381; Cummings v. Banks, 2 Barb., 607; DeSobry v. DeLaister, 2 Harris & J., 244; Rosenthal v. Renick, 44 Ill., 202.

I find no direct expression in Kent’s Commentaries upon the point in controversy. The passage referred to in the opinion, if not indicating a contrary view, certainly does not admit of a construction favorable to that taken by the majority of the court. The author, after saying, “whether the court here ought to decree distribution, or remit the property abroad, was matter of judicial discretion, and there was no universal or uniform rule on the subject,” proceeds as follows:

“The manner and extent of the execution of the rule were well discussed and considered in the supreme court of_Massachusetts. A person was domiciled at Calcutta, and died there insolvent, and his will was proved and acted upon there. Administration was taken out in Massachusetts, on the probate of the will in the East Indies; and assets came to the hands of the administrator at Boston, sufficient to pay a claim due citizens of the United States, and a judgment debt due a British subject in England; but all of the assets were wanted to be applied, in the course of administration, by the executor at Calcutta. It was held that the administrator here was only ancillary to the executor in India; and the assets ought to be remitted, unless he was compelled by law to appropriate them here to pay debts. It was not decided whether he was compelled to pay here; but if it were the case, it would only be the American creditors; and the British creditor was not entitled to come here and disturb the legal course of settlement of the estate in his own country. If there were no legal claimants with us in the character of creditors, legatees, or next of kin, the administrator would be bound to remit the assets to the foreign executor, to be by him administered according to the law of the testator’s domicile; and if any part of the assets were to be retained, it would form an exception to the general rule, growing out of the duty of evei’y government to protect its own citizens in recovery of their debts. The intimation has been strong that such an auxiliary administration, in the case of a solvent estate, was bound to apply the assets found here to pajr debts due here; and that it would be a useless and unreasonable courtesy to send the assets abroad, and the resident claimant after them. But if the estate was insolvent, the question became more difficult. The assets ought not to be sequestered for the exclusive benefit of our own citizens. In all civilized countries, foreigners, in such a case, are entitled to prove their debts and share in the distribution. The court concluded that the proper course, in such a case, would be to retain’ the funds; cause them to be distributed pro rata, according to our own laws, among our own citizens, having regard to all assets and the whole aggregate amount of debt here and abroad, and then to remit the surplus abroad to the principal administrator. Such a course was admitted to be attended with delay and difficulty in the adjustment; but it was thought to be less objectionable than either to send our citizens abroad upon a foidorn hope to seek for payments of an insolvent’s estate, or to pay them the whole of their debts, without regard to the claims of foreign creditors.” 2 Kent's Com., 433, 434.

The case alluded to in the above extract is Dawes v. Head, 3 Pick., 128, which was a suit lipón the administrator's bond, for failing to pay the claims mentioned, and the court, in the course of the opinion, say:

‘•Whether citizens of other states claiming payment of their debts of the administration here, are to be put upon the same footing with citizens of Massachusetts, by virtue of the privileges and immunities secured to them by the constitution of the Nnited States, is a point ivhieh we do not now decide. But, without doubt, the courts of the United States, having full equity powers, would enforce payment upon the principles above stated, where there is no suggestion of insolvency of the estate. There would be no doubt, we think, that the payment of debts by the administrator here, after sufficient proof that they were due, and an allowance of his account therefor by the probate court, with proper notice, would be faithful administration, according to the condition of his bond, and would be a proper way of accounting to the principal administrator abroad.

_ “In regard to effects thus collected within our jurisdiction, belonging to an insolvent estate of a deceased person having his domicile abroad, the question maybe more difficult. We can not think, however, that in airy civilized country, advantage ought to be taken of the accidental circumstances of property being found within its territory, which may be reduced to possession by the aid of its courts and laws, to sequester the whole for the use of its own subjects, or citizens, where it shall be known that all the estate and effects of the deceased are insufficient to pay his just debts. Such a doctrine would be derogatory to the character of any government. Under the English bankrupt system, foreigners, as well as subjects, may prove their debts, and share in the distribution. Without doubt, in other foreign countries, where there is a cessio honor um, or other process relating to bankrupts’.estates, the same just principle is adopted. It was so under our bankrupt law while that was in force,and no reason can be suggested why so honest a principle should not be applied in the case of insolvent estates of deceased persons. It is always practiced upon in regard to persons dying within our jurisdiction, having had their domicile here; that is, creditors of all countries have the same right as our own citizens to file their claims and share in the distribution. There can not be, then, a right in any one or more of our citizens, who may happen to be creditors, to seize the whole of the effects which may be found here, or claim an appropriation of them to the payment of their debts, in exclusion of foreign creditors.”

The precise question here is not considered, nor even stated, in, Story’s Conflict of Laws, and there is to be found in it no intimation of opinion as to it, except such as may be presumed from a very copious extract from the case of Dawes v. Head, in a note to sec. 513.

I have not been able to see the case of Barry’s appeal; of the others cited, Hunt v. Fay, 7 Vermont, 170, is the only one directly in point, or which, indeed, has any material bearing, and the decision in that case was by a divided court, Justice Mattock dissenting. Mothland v. Wiseman, 3 Penn., 185, is an authority the other way. The court in that case say : “ But that the effects are to be collected and administered by local authority, is a principle, not only of British, but of American law. In Topham v. Chapman, 3 Rep. Const. Court, S. C., 283, it was much debated whether they should not also be distributed by the same authority, though according to the law of the domicile; but that the collection and payment of the debts might be by any other authority, was never supposed. The same question was debated in Harvey v. Richards, 1 Mason, 485; and in Dawes v. Head, 3 Pickering, 128, it was held that an administrator here, though admitted to be but auxiliary to the administrator at the place where the decedent was domiciled, is bound to remit the assets to be administered there, only in case there are no domestic claimants in the character of creditors, legatees or next of kin; but that when these appear, the assets are to be retained for administration, according to our own laws, permitting the foreign creditors to participate in proportion to their debts, respect being had to the aggregate of the estate and of the debts, whether foreign or domestic.

The authorities, it is thus seen, almost without an exception, sustain the doctrine for vTiich I have contended.