text:
    Hall vs. Denckla et al.
    Statute of Limitations: As to foreclosure of mortgages.

    While there is no statute expressly fixing the lapse of time which shall bar a suit to foreclosé a mortgage, our courts of equity have adopted, seven years as the period of limitation, being the length of time allowed by the statute for the mortgagor to bring ejectment to obtain possession of the land, and satisfy his debt out of the rents and profits.
    Same : Suspended during the rebellion.

    The statute of limitations ceased to run, in this state, between the 8th day of May, 1861, and the 2d day of April, 1866, by reason of the civil war.
    Statute of Nonclaim: When not available.

    In a proceeding to foreclose a mortgage, or in any action asserting an original, specific, and absolute charge on the land, the plea of the statute of nonclaim is not available, nor is any affidavit of nonpayment or justness necessary.

      Yendee: Liable for taxes, etc.

    On sale of lands, and title bond given, the vendee is bound to pay all tax assessments on the land after sale.
    APPEAL from Arkansas Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      A. H. Garland, for appellant.

      Clark & Williams and Bell & Carlton, for appellees.
   Bennett, J.

William P. Denclcla and wife, Calvin Thompson and Francis M. Scott, on the 7th day of May, 1870, filed their bill of complaint in the circuit court of Arkansas county, to enforce an expressed lien against the south half of the northwest quarter, and the west half of the northeast quarter of section seventeen in township seven, south of the base line of range 6 west of the fifth principal meridian.

The plaintiffs allege that they are the sole heirs of David Thompson deceased, who died in 1843, and that they inherited the above described lands. On the 5th day of October, 1857, Calvin M. Thompson, acting in behalf of all the heirs, sold the land, containing 560 acres, to James M. Lyon, for the sum of three thousand and three hundred dollars, three hundred and fifty dollars of which was paid down, the balance to be paid according to the tenor and effect of three promissory notes: one for seven hundred and fifty dollars, due the first day of January, 1858; one for eleven hundred dollars, due twelve months from date, and one for like sum, due at two years, bearing interest at six per cent. Thompson executed and delivered to Lyon his bond for title, by which he bound himself to make to Lyon a good deed to the land upon the payment, at maturity, of the note first falling due, and Lyon ■was to execute a mortgage on the land to secure the other two notes.

The bill further alleges that Lyon having failed to pay the two notes first falling due, Thompson instituted suit thereon, and recovered judgment on the 25th day of April, 1859, for $1,768.80 debt, and $88.95 interest, which judgment, it is averred in the bill, “ still remains in full force, and in no wise paid or discharged; and that the said last mentioned note, for $1,100, due the 5th day of October, 1859, is still wholly unpaid.”

Lyon died intestate, and S. M. 'Morris, E. E. Morris, A. Morris, Thomas Morris and Ella Morris are his sole heirs at law.

The plaintiffs aver the tender of a deed to Lyon. On the 7th day of September, 1870, the defendants, except Ella Morris, a minor, were served with process.

At the October term, 1870, of the Arkansas circuit court, the adult defendants filed their answer. The answer set up the following defenses: First. Statute of limitations. Second. The failure to authenticate the claim before suit was brought. Third. A tax title to the land by deed by the sheriff of Arkansas county, on the 15th day of March, 1860. Fourth. And that the plaintiffs had no title to the land by inheritance.

The answer admits the transfer of the land and the giving of the notes; admits the rendition of the judgment against Lyon on the 25th day of April, 1859, but avers that more than ten years had elapsed before the commencement of the suit; also set up a forfeited delivery bond on the execution on the judgment which created a statutory judgment.

At the October term, 1871, plaintiffs filed an amended bill, in which they set up, in avoidance of the statute of limitation, the pendency of a suit of Lyon’s to enjoin the collection of the purchase money for the land, which suit was still pending and undisposed of; also set up a title bond of one Mussett, in which he obligated himself to reconvey the land to David Thompson on condition stock in the western branch of the Eeal Estate Bank was not awarded, and if awarded to convey the stock. This title bond of Mussett is exhibited.

'The amended bill also alleges that on the 5th day of October, 1857, Lyon took possession of the land, and from that time until his death continued in possession, and since his death his heirs and administrators have had the possession and enjoyed the rents and profits of the same; and avers that Lyon was bound in law, in fact, to pay the taxes, but that he had fraudulently neglected to do so in order to get a tax title through a tax sale, and suffered the land to be sold by the collector, on the second Monday of March, 1859, and' purchased the same. Also alleges that Lyon had the tax deed at the time he applied for and procured the injunction restraining Galvin M. Thompson from collecting the purchase money, on the ground of want of title, and did not set it up ór rely on it.

The original answer as amended was taken as an answer to the amended bill.

At the September term, 1872, of this court, the cause was heard upon the original and amended bills, exhibits and answers and deposition of O. G. Scott, and decree for plaintiffs for $5,661.07, and in case of nonpayment, the land mentioned in the original bill was to be sold.

Erom this decree defendants appealed to this court.

The appellants assign several errors:

First They claim that appellees are barred by the statute of limitations and'of nonclaim.

Second. That the debt was not properly authenticated before suit was brought.

Third. That there was no title in plaintiffs below to the land, but that their ancestor, David Thompson, had conveyed the land to Tyru Mussett.

Fourth. That Lyon had bought the land for taxes on the second Monday of March, 1859, and it being unredeemed a year thereafter, the time allowed by law for redemption, had procured a deed from the collector, which was executed March 15, 1860.

Fifth. That Ella Morris, a minor defendant, had not been served with process, and without such process James A. Gibson had been appointed her guardian ad litem, and had answered for her.

As to the first cause of error, the plea of the statute of limitation and nonclaim, we would say that when Galvin M. Thompson sold the lands to James M. Lyon, and gave him his bond for title, the transaction was in all essential features a security for the payment of the purchase money ; the same in effect as if he had made him a deed and taken a mortgage back (Smith v. Robinson, 13 Ark., 553), and the usual incidents of a mortgage attached to the transaction, and the rights of the parties growing out of it are to be governed by analogous rules. There is no statute expressly fixing the lapse of time which shall bar a suit to foreclose a mortgage, but our courts of equity have adopted as the period of limitation the length of time which is allowed the mortgagee to bring ejectment in order to obtain .possession of the land and satisfy his debt out of the rents and profits. This period is seven years. (See Sullivan v. Hadley, 16 Ark., 145; Guthrie v. Field, 21 id., 386. See, too, the principle and act of January 4, 1851, Gould’s Dig, 749, for the time.)

This title bond was executed on the 5th day of October, 1857. The last note was due October 5, 1859. The bill of complaint was filed on the seventh day of May, 1870, thus more than seven years having elapsed from the time the title bond could have been enforced before suit was brought. The action is barred unless it can be shown that something has suspended the statute.

It has been held that the statute of limitations did not run during the rebellion. (See Metropolitan National Bank of New York v. Anderson Gordon, ante, p. 115; Brown v. Hyatts, 15 Wall., 182; The Batesville Institute and Erwin, Adm’r v. Kauffman, Chicago Legal News, January 81, 1874.) The question, then, is, making allowance for the suspension of time produced by the rebellion, Was the action out of season ?

In the case of “ The Protector,” 12 Wall., 700, the United States supreme court held that the proclamation of intended blockade by the president may be assumed as marking the time of the beginning of the rebellion, and the proclamation that the war had closed as marking the time of its close. There were two proclamations of intended blockade: The first, of the 19th of April, 1861 (12 Stat. at large, 1258); the second, of the 27th of April, 1861 (same, 1259).

The state of Arkansas is not mentioned in either of these proclamations, and it was never directly blockaded in technical sense. Therefore, we cannot determine the beginning of the war by the rule adopted by the United States court, but in several decisions of this court, it has been decided there were no legal courts in Arkansas during that period, and the 6th day May, 1861, the date of the passage of the ordinance of secession, has been the time fixed as the destruction of legal tribunals. Penn v. Tollison, 26 Ark., 515; Thompson v. Mankin, id., 586.

There were two proclamations declaring the war had closed; the one issued on the 2d of April, 1866, embraced the state of Arkansas. 14 Stats, at Large, 814.

Applying the rule of the United States tribunals to the case now before us, we find that the statute of limitations, ceased to run between the 6th day of May, 1861, and the 2d day of April, 1866, by reason of the civil war.

By this we do not mean to assert that there were no legal tribunals in existence within this state previous to the 2d day of May, 1866, but such as were organized and attempted to exercise their functions did so at the will and pleasure of a military force. Martial law (which is no law) was in the supremacy. A corporal with a squad of soldiers could intrude themselves upon any court, and by his command disperse any tribunal and take possession of records and papers and scatter them to the four winds, and the judge, sheriff and clerk were powerless to resist. Consequently no litigant should have been compelled to risk important documents, the foundation of their litigations, in the possession and custody of those courts, though organized and proceeding under the permission and sanction of civil law.

The time thus taken from the operation of the statute, by the application of the above rule, not more than seven years had elapsed from the time the cause of action accrued to the commencement of this suit, therefore, it is not barred.

As to the question of nonclaim, we would say that this is an action asserting an original, specific and absolute charge on the land, and does not come within the statute. The complainants do not claim a debt from Hall’s administrator, but demand the performance of a specific duty, and the case comes clearly within the exception laid down in Sullivan v. Hadley, 16 Ark., 144; Walker, Adm'r, v. Byres, 14 id., 242; Pope's Heirs v. Boydad, 22 id., 535.

The same authorities and argument which tend to show that the case is not affected by the statute of nonclaim, also show that no affidavit of nonpayment and justness is necessary. Those sections of our administration laws which relate to authentication before suit brought, refer alone to suits against executors and administrators, as such, to subject the general assets to the payment of debts. In the case at bar the administrator is only a necessary party because the real estate is in his possession. If the administration had been completed, the action would have been maintainable against the heirs of Lyon, if they had been the holders of the specific property.

The third objection to the decree rendered in the court below is: That there was no title in the plaintiffs to the land, but that their ancestor, David Thompson, had conveyed the land to Tyru Mussett.

The record shows that on the 6th day of October, 1838, David Thompson, the ancestor of these plaintiffs, did execute a warranty deed of conveyance of these lands to Tyru Mus-sett, and this deed has in no manner been set aside or annulled. But these appellees assert that this conveyance was made to Mussett for a specific purpose, and that he held it as a mere trustee, and in proof of this assertion, exhibit a bond for a title given by Mussett to Thompson, executed two days afterward, which bond recites the fact “ that said above enumerated tracts or parcels of land have been granted, bargained, etc., unto Tyru Mussett, and his heirs and assigns, forever, for the sum of eight thousand eight hundred dollars, upon the express condition that the same be invested in bank stock in the Real Estate bank of the state of Arkansas, and Mussett obligated himself to reconvey this land to Thompson on condition stock in the western branch of the Real Estate bank was not awarded, and if awarded to convey the stock to him.”

It is alleged that Mussett did not obtain any stock in the bank, and that Thompson is now entitled to the land by reason of the trust having failed, and they submit that the trust being satisfied, it was executed by the statute of uses and the legal title by operation of law vested in Thompson.

This bond of Mussett shows that he held this land as a meie trustee, to reconvey to David Thompson upon condition that the stock in the western branch of the Real Estate bank was not awarded, and if awarded to convey the stock. The reason why this transfer was made seems to have been from averments in the bill, because David Thompson desired stock in this bank, but not being a resident of certain western counties, was not one of the class of persons who was authorized to subscribe stock, under tbe act of the general assembly creating the western branch. To enable him to get the stock he had conveyed these lands to Mussett, who was qualified, with the understanding that he was to get the stock and transfer the stock to Thompson. These averments are not contradicted by the answer, and may reasonably be taken as true.

But still the fact exists that Thompson, during his lifetime, did deed these lands away, and these appellees have no legal title to them; and if the conveyance was made under such circumstances as would make it of no binding effect, or that Mussett or his heirs could not assert and claim under it, it is the duty of Thompson or his heirs to remove this cloud from their title before they can come into equity and ask for an enforcement of the collection of the purchase money due from Lyon or his representative.' It is an established rule in equity that where the vendor has not the power to make title, the vendee may, before the time of performance, enjoin the payment of the purchase money until the ability to comply with the agreement for title is shown.

The heirs of Thompson have not shown how they can make a'title. They may make to Lyon a warranty deed, but how do they get the land themselves ? Their ancestor, under whom they claim, has deeded it away. But they ask the court to set their conveyance aside, without making Mussett, the grantee or his heirs, a party to the suit. This cannot be done. The allegation of the bill and the exhibits may tend to show that this deed to Mussett was for the sole purpose of creating a trust, although such instrument is an absolute conveyance in fee simple of the legal estate, yet such legal estate remains in Mussett until removed by a reconveyance or an order of a' court of equity declaring the trust satisfied. And before the. appellee can demand the payment for the land from Lyon or his representative, they must remove this cloud from their title. This could have been done by making Mussett or his heirs parties to this proceeding, or by a separate action. It would be inequitable for any court to enforce the collection of the purchase money of land when no title can be given. This part of the proceeding of the court below was erroneous.

The fourth assignment of error is the tax deed of Lyon. This can be of no avail for the defendants.

The land was sold in 1859 for the taxes of 1858. Lyon bought the land and took possession October 5, 1857. By law he was bound for the taxes, and it was an 'attempted fraud to suffer them to be sold and to buy them in. That would be to take advantage of his own wrong. A vendee is bound to pay all tax assessments on land after sale.

But it is urged that the vendor, by terms of bis bond, was bound upon payment of the purchase money, to make and execute “ a good and sufficient deed, clear of all incumbrances,’’ and that this could not be done while the taxes accruing after making the bond and before the ¡execution of the deed re mained unpaid.

These taxes, however, arose after, and were liens or incumbrances subsequent to the sale. The obligation of the vendor was to convey the property clear of any incumbrance placed thereon by himself or on his account, and not those arising on the account of the vendee. Taxes against the property existing at the time of the sale; mortgages made by tbe vendor, whether before or after; judgments against him or any former owner, he of bourse would have to meet and satisfy ; but not mortgages made by the vendee, nor judgments against bim or other liens created by bis act, or failure to discharge bis liabil ities. The vendor is not responsible for anything done or omitted in relation to the title by the vendee, nor is he bound to covenant against liens arising by reason of his failure to discharge his duty.

As to the service on Ella Morris, the record does not show that she has been formally served as the code directs, and any decree rendered against her is null and void.

Eor the errors above, the decree rendered in this cause must be reversed and cause remanded, with leave to the complainants to amend their complaint and bring the heirs or representatives of Tyru Mussett before the court, and summon Ella Morris, and proceed to a final decree according to this opinion.


source: Caselaw Access Project

author: Gregg, J.

license: Public Domain

text:
    Coit vs. Claw, Collector.
    Collector, oe Taxes : What funds or parts of taxes must receive.

    When the amount- of any fund or funds is tendered in money or such scrip as the collector is required to receive, he should accept the same. Whether the owner of real estate will pay all taxes, or pay one kind and not another, or let his lands go to sale for all or part, are questions for him and not the collector to determine.
    Board oe Supervisors : Cannot order in what taxes shall he paid.

    The law prescribes in what taxes shall be paid, and the collector is bound by his bond and official oath to collect accordingly. There, is no discretion in the matter conferred upon the county board, and any orders they may make, declaring in what kind of funds any division of taxes shall be paid, are extra judicial and of no effect.
    PETITION for Mandamus.

      Yonley & Whipple, for petitioner.

      D. G. Griffin, for respondent.
   Gregg, J.

On the 26th of January last past the plaintiff filed his petition in this court, in which he alleged that he was a resident of said county, and the owner of certain real estate described therein; that state, county and district taxes were due thereon for the 3year 1873, amounting to $112.05 ; that such taxes had been duly extended upon the tax books of the county, and that they were in the hands of the defendant, who is duly authorized to collect, etc.; that $19.50 of said taxes is for ordinary county tax upon said lands; that on the 17th day of the same month he tendered said Claw as such collector, $92.55 in United States currency, and $19.50 in Union county warrants, bearing date in July, 1872, which warrants had been duly issued, were valid and owned by the petitioner, in payment of said taxes; but said Claw, as such collector, refused to receive said sums in payment of the taxes so due and unpaid, and he prayed for a writ of mcCndamus against the defendant and that he be compelled to receive said sums of money and warrants, etc.

The defendant waived service of the alternative writ, entered his appearance and responded that he did refuse to accept said sums of money and county warrants in payment of the taxes, as alleged by the complainant, because the board of supervisors of said county, on the 8th day of January, 1874, did order and adjudge that no outstanding scrip or warrants of said county, issued prior to the 1st day of January, 1873, should be received in payment for any taxes levied for said year 1873, and that he, as such collector, was duly notified thereof, etc.; that he was bound to obey said order, and could not receive such scrip; that he did not receive the currency because said Ooit did not tender him enough to pay all state, county and district taxes assessed against said lands, and he was not bound to accept the state tax until all other taxes thereon due were paid or tendered.

To this response the plaintiff interposed a demurrer, and the cause was submittted.

Section 75 of the revenue act of April 28, 1873, provides that “ the board of supervisors of each county shall, on the first Friday after the first Monday in October in each year, determine the amount to be raised for ordinary county purposes, for public buildings, for the support of the poor, for bridges, for roads, and for interest and principal on the public debt. -The county supervisors shall set forth upon the record of proceedings specially the amount to be raised for each of the ■above defined purposes. The county clerk shall carefully ascertain the net amount collected for each purpose under said levy, and it shall not be lawful to use any specific fund for any other purpose than the one for which the same was specifically levied until the purpose for which such tax was levied shall have been accomplished,” etc.

Under this section these specific county taxes must be paid in the warrants issued against the specific fund to be raised, or in currency or state auditor’s or treasurer’s warrants.

The sheriff in his settlement with the county authorities cannot pay the poor tax by warrants issued for road purposes, or the bridge tax in warrants issued for building purposes, etc., but he must settle each kind of tax in the warrants issued for such specific purpose, or in currencj’' or state warrants, and cannot settle these different levies in one kind of county warrants.

But in this case the county warrants were tendered in payment of the taxes for which they were issued.

When the amount of any fund or funds is tendered in money or such scrip as the sheriff is required to receive, he should accept the same. Whether the owner of real estate will pay 'all taxes, or pay one kind and not another, or let his lands go to sale for all or part, are questions for him and not for the collector to determine.

Section 89 of said revenue act provides, among other things, tbat “the collector shall receive county warrants in payment of county taxes, the orders or warrants that may be payable upon presentation, of any township, town or city for their respective taxes, and the warrant of the auditor of state or the treasurer’s certificate of indebtedness for state taxes,” except such warrants as are by law required to be funded.

It is not pretended that the warrants here tendered were required to be funded, and they had been regularly issued and were legally receivable for ordinary county taxes.

There is no provision of law declaring that warrants issued in one year if not redeemed or funded shall not be received for the county taxes of the succeeding year.

The orders of the county board of supervisors, under which the defendant attempts to justify, were a nullity. The law prescribes in what taxes shall be paid, and the collector is bound by his bond and official oath to collect accordingly. There is no discretion in this matter conferred upon the county board, and any orders they may make declaring in what kind of funds any division of the taxes shall be paid are extra judicial and of no effect, and if sued, such orders could afford no protection to the collector.

The peremptory writ of mandamus is ordered.


author: Bennett, J.

text:
    Wilkes vs. Cotter.
    Arbitration : Common law as to, not repealed.

    The provisions of the revised statutes on the subject of arbitration do do not repeal the common law in relation thereto, nor are parties thereby prohibited from submitting their controversies to arbitration without the .intervention of a court.
    Award : Defense to action on.

    An award can always be enforced by an action, and the defendant may avail himself of any defense appearing on the face of the award and submission, or any defense that would defeat any other written agreement.
    APPEAL from Phillips Circuit Court.
    Hon. W. H. Clayton, Circuit Judge.

      Palmer & Sanders, for appellant.

      A. S. Garland, for appellee.
   Bennett, J.

On or about the 30th day of May, 1872, there was a suit pending in the Phillips circuit court for the enforcement of a laborer’s lien, wherein W. O. Wilkes was plaintiff and W. D. Cotter was defendant, and said Wilkes and said Cotter, being desirous of adjusting and settling the matter in controversy between them, without further litigation, agreed outside of court, to submit the matter of said controversy to arbitration. H. W. Cotter, Sr., agreed to join with the said W. D. Cotter in executing the articles of agreement, submitting said matter in controversy to arbitration. On the 30th day of May, 1872, articles of agreement were executed and signed by W. O. Wilkes, W. D. Cotter and H. W. Cotter. In said articles it was agreed that Gen. O. O. Govan and Thomas Gist shall act as arbitrators, 'and if they fail to act, two other parties shall be selected by the parties who shall have the same power to act as was conferred on Govan and Gist. The arbitrators have power to appoint a day on which to meet and settle the controversy. It was further agreed, that if said arbitrators should decide that said Wilkes was entitled to any amount upon settlement of claims, etc., it should be paid off and discharged with cash in hand. And it was further agreed, that the award of said arbitrators should be final and decisive in settling all matters of dipute between Wilkes and Cotter; and H. W. Cotter, Sen., and W. D. Cotter did covenant and agree to and with W. O. Wilkes, that they would pay off and discharge with cash, the balance found due him by these arbitrators.

On the 9th day of November, 1872, the arbitrators met and adjusted the matters in controversy between Cotter and Wilkes, and made their award in writing, as follows: “ In our judgment, we believe the said W D. Cotter is owing and indebted to the said W. O. Wilkes in the sum of three hundred and ninety-six dollars, and do award to him that sum.” This is signed by them.

Afterward W. D. & H. W. Cotter refused and failed to pay off this sum, according to their agreement and covenants. Wilkes then brought suit before a justice of the peace upon this agreement and award, and obtained a judgment; from which judgment the Cotters appealed to the circuit court of Phillips county. Upon trial in the circuit court, the Cotters moved to dismiss the suit, because the same purports to be founded upon an arbitration upon an agreement between the parties to arbitrate, when from the award made out by the arbitrators, it appears that they failed to comply with the law.

The court sustained the motion, dismissed the suit, and Wilkes appealed to this court.

On the part of Cotter, it is contended that since the adoption of the code of practice, no arbitration is binding on the parties unless it is made in the manner therein prescribed.

There is nothing contained in the provisions of the revised statutes or of the code of practice on this subject, which repeals the common law, or prohibits a submission under an agreement of the parties. The manner in which controversies may be submitted to arbitration under an order of court, so that the award may be made the judgment of the court, is therein prescribed; but the common law on the subject is not altered, nor are parties prohibited from submitting their controversies to arbitration without the intervention of a court. Consequently this objection to the award is untenable. It is admitted by Wilkes, the appellant, that if this was an attempt to arbitrate under section 494 of tbe code, the decision of the circuit court in dismissing the cause was correct. This is not an arbitration suit, but rather an action on specific written articles of agreement where two persons agreed to submit matters in controversy to arbitrators for adjustment, and bound themselves to abide their decision. This is an action on that covenant and the award made in accordance with it. This submission is a contract, the consideration of which is the settlement of differences between the parties, and the obligation to perform-'the award arises from the promises express, contained in the articles of agreement. Comyns’ Dig. Arb., D; Bacon Abr. Arb., C; Furbish v. Hall, 8 Green 1., 815.

When there is a capacity to contract with a liability to pay, there is generally a power to arbitrate. Brady v. The Mayor of Brooklyn, 1 Barb., 584.

An award can always be enforced by an action. In such case, defendant may avail himself of any defense appearing on the face of the award and submission, or any defense that would defeat any other written agreement; such as misconduct or partiality of arbitrators, or fraud, mistake of injustice of parties. This submission was tbe act of the parties, and if either neglects to perform as he has agreed, recourse may be had to an action upon the award, or upon the submission, agreement or bond, or upon both.

It will not be contended that the parties to these articles of agreement or bond were not capable in law of binding themselves, by a contract. It is a general principle that all persons capable of suing and being sued may be parties to a reference. The rule is generally laid down in these words: “Every person capable of making a disposition or a release of his right may make a submission of that right to arbitrators, and consequently will be bound by an award made in pursuance thereof.”

The court below erred in dismissing this case. The judgment is reversed and cause remanded, with instructions to reinstate it and proceed to final judgment.


author: Farrelly, Sp. J.

text:
    Shinn vs. Taylor et al.
    Judgment Liens: When not available as against lien of vendee.

    Where title bond is given for the conveyance of lands upon the payment of the purchase money, the lien of the vendee upon the lands for title, after payment of the purchase money, will prevail against the lien of -a judgment creditor, attaching subsequent to the agreement to convey. •
    APPEAL from Maclison Circuit Court.
    Hon. Gf. C. Crump, Sp. J.

      Rose & Green, for appellant.
   Farrelly, Sp. J.

This was an action, under the Code, for the recovery of certain real property, in the complaint described, brought by the appellant against the appellees, in the Washington circuit court, and afterward transferred to, and tried in the Madison circuit court.

The appellees answered, admitting that they held possession of the lands, but denied property in the appellant, or that he was entitled to the possession thereof.

A trial was had and a verdict and judgment for the appellees ; appellant moved for a new trial; the court overruled the motion; he excepted and tendered his bill of exceptions) setting out the evidence, the instructions asked by the appellant and refused, the instructions asked by the appellees and given, and the instructions given by the court on its own motion, and appealed.

The facts adduced at the trial, on the part of the appellant, as appears from certain deeds and depositions read in evidence, without objection on the part of the appellees, are substantially as follows: Charles W. Dean purchased the lands in question from one Samuel R. Bell in 1856 ; Dean sold the lands in 1857, to one Jacob Battenfeld for a valuable consideration, the sum of six hundred dollars, and gave title bond conditioned to make a good and sufficient title when the last instalment of the purchase money should be paid. Battenfeld fully paid off the last of the purchase money in 1862, at which time Dean was leaving the country and went off neglecting to make a deed. Battenfeld subsequently went to the state of Ohio, taking with him the title bond, .and while there, in June, 1864, sold the property in question to Shinn, the appellant, for the sum of seven hundred dollars, which was fully paid off in July, 1866, and the title bond of Dean to Battenfeld transferred in writting to the appellant in order that he might receive a deed direct from Dean. The purchase by appellant was made in good faith for a valuable consideration, without any knowledge on his part, or on the part of Battenfeld, of any claim or incumbrance upon the property. Battenfield and appellant were not in communication with Dean at the time of this transaction. When Dean returned home, appellant informed him of his purchase from Battenfield, and requested him to make a deed direct to appellant, which Dean, by letter, readily agreed to do at any time, saying that Battenfeld had fully paid him the purchase money; but through neglect of appellant’s attorney, or other cause, the making of the deed was neglected or delayed until the 18th of June, 1867. Battenfeld, who is the father-in-law of the appellant, went into possession of the property under his purchase from Dean, and held possession until sometime after the commencement of the rebellion, when he went to the state of Ohio. In 1865, or earty in 1866, Battenfield wrote to one La Fayette Gregg, directing him to take charge of the property and rent it, and afterward wrote that appellant was the owner ; appellant also wrote to Gregg in regard to the property. Gregg, as agent, rented the property as directed, until sometime in the fall of 1867 or 1868. While acting as agent, he received the title bond given by Dean to Battenfeld, with an assignment on the bond to appellant, with directions to take a deed from Dean to appellant. In 1867 or 1868, C. M. Duke, who was holding the property under the agent of the appellant, refused to continue paying the rent as he had been doing, and claimed to have possession under J. L. Duke (his son) who claimed to have bought the property at a sheriff's sale, sold upon execution as the property of C. W. Dean. The agent of the appellant ousted C. M. Duke, the tenant, by legal process, but J. L. Duke refused to give possession, and the appellees afterward came into possession, and by their tenant, Marr, held actual possession of the premises, at and before the commencement of this suit. Demand for the possession of the premises was made, in writing, upon each of the appellees by the agent of the appellant before suit commenced. The property in question was sold under two executions, one against Dean and the other against Battenfeld ; the sale was made, under the former, in August, 1867, at which J. L. Duke became the purchaser, and under the latter, sometime after that, and at which one Wesley Barnes became the purchaser. The agent of the appellant, acting in his capacity as such, appeared at both sales and forbid the selling of the propert} and notified the parties purchasing, and others present, that the property belonged to appellant and stated aloud at the sales, respectively, that Dean and Battenfeld, against whom the ex-cutions under which the property was to be sold, had no title or claim to the property. This was all the evidence introduced on the part of the appellant.

The appellees introduced and read to the jury deeds to the property in question, of the following purport: Sheriff’s deed, of date February, 1868, to Wesley Barnes, as purchaser at a sale had under an execution issued December 12, 1867, on a judgment obtained against Battenfeld and others, on the 18th of August, 1866. Sheriff’s deed, of date August, 1867, to J. L. Duke, as purchaser at a sale had under an execution issued April ■ — •, 1867, on a judgment obtained against Gibson & Dean on the 15th of February, 1867. Deed of J. L. Duke to Wesley Barnes, of date February, 1868. Deed of ■ Barnes and wife to Jennings and Taylor, appellees, of date 12th of January, 1869.

The above is substantially all the evidence introduced by the parties at the trial.

Several instructions were asked by the respective parties, but we deem it necessary only to notice, as principally relied upon, and as materially affecting the rights of the parties under the case presented, the first two instructions asked by the appellant and refused, and the first two asked by the appellees and given by the court over the objection o£ the appellant, and those given b} the court on its own motion.

The appellant asked the court to declare the law as follows:

1st. “ That if the jury believe from the evidence that Dean owned the land in controversy and that before the judgment was obtained against him, upon which the execution and sale to Duke was had, he, Dean, had sold the land and received pay therefor and that Duke was notified that Dean had no title, or that he had sold the property and had been paid for it at or before his bidding for the property at the sheriff’s sale and before the property was bid off by him, that he, Duke, acquired no title by his bidding or purchase at such sale.

2d. “ That if the jury believe from the evidence that Battenfeld had a legal or equitable title to the property and that before the judgment was obtained against him upon which an execution and sale was had to Barnes, he, Battenfeld, had sold all his interest in that property to the plaintiff and that before the property was bid off by Barnes, he was notified that such sale and payment had been made, or that Battenfeld had no title to the property, he, Barnes, acquired no title by his purchase at such sheriff’s sale.

The court refused to give these instructions, to which decision the appellant excepted.

At the instance of the appellees, the court gave the following:

1st. “That if the jury find from the evidence that C. W. Dean had the legal title to the land in question at the rendition of the judgment against him in February, 1867, that such legal title was bound by the judgment, and the plaintiff in the judgment had a right to sell the land on this execution on said judgment, and the purchaser under such execution sale acquired the legal title of Dean at the time of the rendition of such judgment.

2d. “That if the jury find from the evidence that Jacob Battenfeld had an interest in the land in question at the time of the rendition of the judgment against him, in August, 1866, that the plaintiff in such judgment sold such interest on execution on such judgment, the purchaser under such sale acquired all the equitable and legal interest of Battenfeld at the date of such judgment.”

And the court, on its own motion, gave two instructions to the jury differing from those asked by the appellant and refused, only in this, that instead of instructing the jury as asked in the instructions of the appellant, to wit: that Duke or Barnes acquired no title by purchase at the sheriff’s sales, the court instructed the jury that Duke or Barnes could only acquire such title as Dean or Battenfeld had at or after the rendition of the respective judgments and before tbe issuing of the executions.

The appellant excepted to all the instructions given, and he here insists that the court erred in refusing those asked by him, and giving in lieu thereof those asked by the appellees and those given on its own motion, and as a consequence, the verdict of the jury and judgment of the court are contrary to •■he law and the evidence.

The question presented by the whole record is very similar to that in the case of Byers et al. v. Engles, 16 Ark., 543, except that the parties here occupy an attitude the reverse of those in that case. The appellant here seeks to -recover, claiming title from the defendants in execution by purchase and full payment and title bond executed prior to the rendition of the judgments and full deed executed prior to the execution sales under which the vendor of the appellees claimed title as purchaser at a judicial sale.

It seems to be well settled law, that a conveyance of real estate, prior to the rendition of the judgment is good and valid as against a purchaser of such real estate at a judicial sale under the judgment, actual notice of the conveyance being given to the purchaser and creditor, and this, though the conveyance be not produced at the sale; that notice may be given at the time of the sale, and that possession from the rendition of the judgment up to the day of sale is sufficient to put both the creditor and the purchaser upon enquiry. Byers el al v. Engles, 16 Ark., 543, and cases there cited. That where a title bond is given for the conveyance of lands upon payment of the purchase money, and the purchase money has .been paid, the lands are not subject to sale under an execution at law, at the suit of a judgment creditor obtaining judgment subsequent to the execution of the title bond and payment of the purchase money; that the lien of the vendee upon the land, for title, after payment of the purchase money, will pre vail against the lien of a judgment creditor attaching subsequent to tbe agreement to convey, and that the lien of a judgment creditor only operates on the interest of the judgment debtor at the date of its rendition. See Money v. Dorsey et al., 7 S. & M., 22; Taylor v. Eckford, 11 id., 21; Wiley v. Hightower, 6 id., 345.

From a review of the facts in the case it appears that on the 13th of August, 1866, when the judgment was rendered against Battenfeld, and under which Barnes, the vendor of the appellees purchased the property, Battenfeld had as early as 1864 sold the property to the appellant for a valuable consideration and had, prior to the rendition of the judgment, been fully paid therefor, and had transferred Dean’s title bond to the appellant, and that, prior to the sale at which Barnes purchased, Dean had made a full deed to appellant, and that Barnes and all others at the execution sale at which he purchased were notified that Battenfeld neither had nor claimed any title to the property; that, on the 15th of February, 1867, when the judgment was rendered against Dean, and under which J'. L. Duke purchased the property, Dean had, as early as 1857, sold the property to Battenfeld for a valuable consideration, giving his title bond therefor, and the purchase money had been fully paid off in 1862, prior to the sale of Battenfeld to appellant, and long prior to the rendition of either of the judgments, and that appellant, by his agent, notified Duke and all others at the execution sale, at which he purchased ; that Dean neither had nor claimed any title to the property.

That appellant, by his agent, had the control and possession of the property, and leased and received rents therefor, prior to the rendition of the judgments, and up to and after the times at which Barnes and Duke purchased at the respective execution sales; that the appellees acquired possession by C. M. Duke, the tenant of the appellant, denying his landlord’s title and refusing to attorn, claiming to hold under J. L. Duke, the purchaser at the execution sale on the judgment against O. W. Dean.

With the law, as above stated, and with these facts before us, not controverted on the trial, or anything to the contrary attempted to be shown, it seems to us that the conclusion can hardly admit of a reasonable doubt that at the time the judgments were rendered against Battenfeld and Dean, and under which the vendor of the appellees purchased, the defendants in the execution neither had nor claimed any interest whatever in the property, and that the appellant has shown such legal title as entitled him to bring his suit in ejectment. Applying the facts and the law then to the instructions as asked by the appellant and refused by the court, we have been unable to discern wherein the instructions were not as broad as the case, thoroughly sustained by the evidence, and well grounded in the law, and being so, should have been given. The instructions as above given at the instance of the appellees, based, as it clearly appears, entirely upon the assumption that a legal or equitable interest in the property existed in Dean or Battenfeld at the time of the rendition of the judgments against them, were wholly unwarranted by the evidence, were necessarily abstract and should nothave been given.

As to the instructions given by the court on its own motion, being identical with those asked by the appellant and refused, with the exception of the modification thereof by the court, above pointed out, and which modification, we think, unauthorized by the evidence, and on that account objectionable, though not so much so as to vitiate the instructions or furnish sufficient ground of reversal, had they been the only instructions given in the case, yet, taken in connection with the fact, that the court overruled the instructions of the appellant, which ought to have been given, as embodying the law applicable to the facts in the case, and gave the instructions asked by the appellees, abstract and wholly unsupported by the evidence, as they were, were well calculated to mislead the jury.

Eor the errors in the giving and refusing of the instructions as above indicated, the judgment must be reversed and the cause remanded for a new trial.

G-regg, J., beiDg disqualified, did not sit in this case.


author: McClure, C. J.

text:
    Wallace vs. The State.
    Practice : On what ground judgment of conviction in felonies reversed.

    Under section 832 of the Criminal Code, on appeal from a conviction in a case of felony, no objection to any of tlie proceedings of the circuit court, which does not come under one of the heads mentioned in section 332, can be relied upon in this court, or made available for the reversal of a judgment of conviction.
    Admissibility oe Testimony: Reexamination of witness.

    The reexamination of a witness, as to new matter, is within the sound discretion of the court, and will not be questioned here, unless it . appear that the substantial rights of the party were prejudiced by the refusal.
    Irrelevant Testimony: When not ground of reversal.

    Where testimony, which ought to have been excluded from the jury, on account of irrelevancy, is permitted to go to the jury, but such testimony is of such character or nature, as could neither have tended to prove the guilt nor the innocence of the prisoner, a judgment will not be reversed for such an error.
    New Trial : When not granted on account of newly discovered evidence.

    A new trial will not be granted on the ground of newly discovered evidence, when the newly discovered evidence relates solely to the impeachment of a witness.

      Admissibility ob Concessions: Within the province of the judge.

    The admissibility of confessions or admissions, in proof of guilt, is a question wholly within the province of the judge to consider and decide, and when the court has once passed upon the admissibility of evidence relating to a confession or admission of the defendant, going to establish guilt, if admitted, the jury must consider it as complete evidence and cannot exclude it.
    Credibility cot Witness: Determined by jury.

    The determination of the credibility of a witness is to be judged of and determined by the jury, and the jury may base their estimate of the amount of credit which shall attach to the testimony of a witness upon immaterial as well as material facts.
    Practice : When judgment not reversed.

    Where a trial has been properly conducted in other respects, this court will not reverse a judgment of conviction simply because the record fails to show that the court set a day for trial.
    APPEAL from Johnson Circuit Court.
    Hon. H. R. Withers, Circuit Judge.

      H. C. Barrow and S. R. Allen, for appellant.

      T. D. W. Yonley, Attorney General, for appellee.
   McClure, C. J.

Before proceeding to an examination of this case, it may not be amiss to inquire upon what grounds a judgment of conviction in a case of felony may be reversed. Section 332 of the criminal code is as follows:

“A judgment of conviction (in cases of felony) shall only be reversed for the following errors of law, to the defendant's prejudice, appearing upon the record:
“1. An error of the circuit court in admitting or rejecting important evidence.
“ 2. An error in instructing, or in refusing to instruct the jwy-
“ 3. An error in failing to arrest the judgment.
“4. An error in allowing or disallowing a peremptory challenge.
“5. An error in overruling a motion for a new trial.”

Our criminal code is much like that of Kentucky, and the section just quoted, with the exception of the fifth clause, is a literal copy of section 334 of the code of that state. In the case of Cornelius v. Commonwealth (15 B. Mon., 544), one of the grounds on which a reversal was asked was, that the court erred in overruling a motion for a new trial. As will be seen, the code did not authorize a reversal of a judgment of conviction, in a case of felony, for any such reason, and in disposing of that ground of error, said: “No objection to any of the proceedings of the circuit court, which does not come under one of the heads mentioned in section 334, can be relied upon in this court, or made available for the reversal of a judgment of conviction.” The same question was again raised in the case of Comely v. Commonwealth (17 B. Mon., 408), and the language above was reiterated in response thereto.

It is not claimed that the court below erred, “ in failing to arrest the judgment,” nor is it claimed it erred “in allowing or disallowing a peremptory challenge.” This being true, our inquiry must be confined to three propositions: 1. Did the court err “in admitting or rejecting important evidence?” 2. Did the court err “in instructing or in refusing to instruct the jury?” 3. Did it err “ in overruling a motion for a new trial?” Under the code, these are the only inquiries to be made on the record before us, and we will take them up in their order.

The seventh ground of a motion for a new trial is, “That the court erred on the trial in permitting the plaintiff, after the examination in chief of Thomas H. Payne and his cross examination, by the defendant, to reexamine the said witness as to new matter, that is to say, as to additional admissions of the defendant stated to have been made to said witness in the prison.” The bill of exceptions does not show that any objection was made to the reexamination of Payne; nor does it show he was reexamined at the trial. The reexamination of a witness, as to new matter, is within the sound discretion of the court, and will not be questioned here unless it appear that the substantial rights of the party were prejudiced by the refusal.

The eighth ground is, “that the court erred on the trial in refusing to exclude from the jury the evidence of Shropshire, Lankford and Bristow.”

Shropshire testifies that Wallace told him that there were several persons about Clarksville who had meddled themselves about his business, and he intended to hold them responsible; that Ward, the deceased, resided at Clarksville at the time of this conversation.

Lankford testifies that, in August last, he met the defendant Wallace about four miles east of Clarksville, riding a mule, and that he asked him why he was riding a mule; that he replied he was fattening his horse and that the fun had not commenced yet. Defendant at the time was armed with a double barreled shot gun and a pair of pistols, and said he would not be arrested and would not give the road for any' three of them; that there was some kind of process against the defendant at that time, and that he understood him to refer to the officers having the process. .

All of this testimony was objected to by the defendant, and the objection overruled by the court, and exception taken. It is irrelevant and ought to have been excluded from the jury, but inasmuch as it neither tended to prove the guilt nor the the innocence of the prisoner, a judgment would not be reversed for such an error.

Bristow testifies that in June last he had a conversation with the defendant, and he was talking of his troubles; said he had a few wild oats to sow, and a few to mow; and when that was done he did not care what became of him; that he was ready to die, or something to that effect; that Dr. J. P. Mitchell wanted him hung, and that he intended to go for him ; ” that Doe. Ward (the deceased) had “ shot his mouth off ” about the matter, but George Wallace had met him at Flood's saloon and made him take it all back. Defendant also said something about Sykes, and said he would “ go for him; ” that he had always looked upon Judge Mears as his friend until he discharged Dudley Turner for shooting bis brother George, but he believed he was a snake in the grass, and some day he might or would “go for him ; ” that he came very near going for Capt. J. C. Hill, but he got off of the track somehow; that Jake Rodgers was a friend to Turner and he intended “ to go for him; ” that he would get the fattest of them.

All of this testimony, so far as the same relates to any statement made by the defendant in relation to others than the deceased, the defendant objected to, which objection was overruled, and exception taken. The evidence so far as it relates to threats made by the defendant as to Mitchell, Rodgers, Mears, Hill and Sykes, ought not to have gone to the jury, and-the court ought to have excluded it, and why it was admitted is beyond our comprehension. Believing as we do that the jury could not have come to any other conclusion, on the facts proven and instructions given, if the entire evidence of Bristow had been excluded, the refusal to exclude is not such an error as would warrant a reversal.

The sixth ground is : “That the court erred on the trial in refusing to allow Thomas H. Payne to state whether he had not, at a time and place mentioned, and before he was called to testify on this trial, made a statement of the whole conversation which occurred between bim and the defendant near or at the court house yard in the town of Clarksville, on Monday night preceding the Wednesday on which Ward, the deceased, was shot, and whether he did not give as part of such statement that defendant, in speaking of his intentions of killing, etc., said, before he would be taken he would kill some of them, and that he did not intend to be taken.”

It does not appear from the bill of exceptions that Payne was ever asked any such question, or that the court refused to allow it to be asked.

The ninth ground is: “ That the court errred in refusing to allow McMurray, on his voire dire examination, when offered as a witness on the part of the defendant, to state the whole conversation which it had shown had taken place between said witness, after he was sworn as such, and H. C. Barrow.”

There is nothing in the bill of exceptions to show that the defendant ever offered to ask McMurray any questions in relation to a conversation with Barrow, or that the court refused to allow him to ask such question.

The tenth ground is: “That the court erred in rejecting the testimony of Joseph Stewart, John Foley, E. G. Connelly, C. D. Eison, John Danner, William Hutcherson and Mrs. Highland.”

The defendant offered to prove by Stewart that about one week after the shooting of Ward, and the next day after the assassination of Meara, one Joseph Thompson, a notorious criminal, who was a few years ago condemned to death, and who escaped from prison, passed by his house, about twenty miles from Clarksville, with a double barrelled shot gun and four pistols, and stated to him that he had had “good luck ” in Johnson county in the last few days.

This testimony was irrelevant and properly excluded.

The defendant offered to prove by Hutcherson and Foley that they had a conversation with Payne, and that Payne stated to them that he knew nothing about the killing of Ward, and that he had no idea who did it; that he did not know of the existence of this testimony at the time Payne testified, and asked that Payne be recalled that he might be questioned in regard to.such statements.

The court refused to allow the testimony of either Hutcherson or Foley to go to the jury. The testimony of these witnesses evidently was intended to weaken the testimony of Payne, and it was not admissible until the proper foundation had been laid. The recalling of a witness for the purpose of impeaching him stands upon no higher ground than does the right to recall him for the purpose of reexamining upon new matter. We have already stated that the recalling of a witness to be examined as to new matter was within the discretion of the court trying the cause. A refusal to recall Payne was not error, nor would it have been error to have recalled him.

The defendant offered to prove by Eison and Danner that on the day on which Ward was shot, Ward and one Barnes had a difficulty, and that Barnes had threatened to kill Ward. If Barnes had been on trial for the killing of Ward, this testimony would have been admissible; as he was not, it was not responsive to the issue then before the court, and was properly rejected.

The defendant offered to prove by Mrs. Hyland that Ward boarded at her house, and that while boarding there Ward came very near being assassinated by some unknown person shooting the said Ward with a shot gun, inflicting wounds from which he came near dying; and that while Ward was lying wounded at her house the threats against his life were numerous, and that she requested him to leave her house for fear he would be assassinated there.

There was no error in refusing to allow this testimony to go to the jury.

The defendant offered to prove by Connelly that Ward, a day or two before he received the wounds from which he died, stated to him that his enemies had been trying to kill him for a long time, but had failed ; and that if they did kill him it would take some bigger slugs than they had ever shot him with yet. This testimony was clearly irrelevant, and there was no error in excluding it.

The eleventh ground is, “ That the court erred in admitting against the objection of the defendant, the witness Bristow to testify as to threats of the defendant against Mitchell, Sykes, Rodgers, Hill and Mears.”

We have already stated, in disposing of the eighth ground of the motion for a new trial, that the court erred in not striking out the testimony relating to these persons ; but that such error was not of so glaring a character as to warrant a reversal.

The fifteenth ground is but a restatement of the sixth ground for a new trial, with the addition thereto that Hutcherson and Foley are residents of Johnson county; that he did not know what he could prove by them at the time Payne was on the witness stand, and that if a new trial should be granted he would prove by them that Payne had made the statements to them indicated in the sixth ground for a new trial. We know of no instance where a new trial has been granted where the newly discovered evidence (and this is what the defendant claims it is) related to the impeachment of a witness.

The sixteenth ground is: “That the court erred in excluding the evidence of James Warran and Michael Warren when offered by the defendant to impeach the testimony of Bristow.”

It does not appear from the bill of exceptions that the defendant ever offered to introduce either of the Warrens for the purpose of impeaching Bristow, or for any other purpose, or that the court prohibited him from so doing, nor was the foundation laid for impeaching him.

The seventeenth ground is: “That he has discovered since the examination of the witness Bristow, whom he was not allowed to recall, that if a new trial should be granted him he could prove by the two Warrens that Bristow had admitted to them he had sworn falsely.”

The bill of exceptions does not show any attempt on the part of the defendant to recall Bristow. And what is said in relation to the recalling of Payne, in disposing of the tenth ground for a new trial, and that of the fifteenth, is equally applicable here. In support of the seventeenth ground for a new trial, the defendant proffered to tender the affidavits of the two.Warrens, and the court seems to have overruled this ground for the reason that the Warrens would not make the affidavit proffered by the defendant.

Having disposed of all the questions relating to the admission and rejection of testimony, we will examine the grounds of error alleged to have been committed in the giving and refusing to give the instructions asked.

The defendant claims that the court erred in giving to the jury, against the objection of the defendant, the sixth, seventh, ninth, tenth and fourteenth instructions asked by the plaintiff, and that the court erred on the said trial in refusing to give to the jury in the form asked for by the defendant, the fifth, sixth and seventh instructions, and that the court erred in refusing to give, in any form, the twelfth and .thirteenth instructions.

The sixth instruction asked by the state, and to which the defendant excepts, is as follows: “If there should appear to be a conflict of evidence, the jury should first inquire whether the apparent inconsistencies may not, without violence, be reconciled, and if not, to what extent and in what particulars the adverse evidence is irreconcilable, and then, by careful investigation and comparison, reject that which is vicious.”

There was much conflicting testimony on the trial, and, in view of this fact, some such instruction was necessary. The instruction is not hypothetical, and it embodies the law applicable to-the evidence then before the court.

The seventh instruction asked by the state reads as follows: “ In case a reconciliation cannot be made, the jury may disbelieve altogether the testimony on one side or the other, and when testimony is equally balanced in all other respects, a slight degree of interest or connection may be sufficient to turn the scale as to who should be believed.”

In the case of The State v. Nash, 8 Iredell, 35, the court charged “ that the law regarded with suspicion the testimony of near relatives when testifying for each other; that it was the province of the jury to consider and decide on the weight of testimony.” State v. Ellington, 7 Iredell, 67.

In the case at bar, quite a number of the relatives of the defendant-testified to a state of facts, which, if true, rendered it impossible for the defendant to have been at Clarksville at the time Ward was shot. The instruction does not in any manner direct the jury which of the witnesses it should give the greatest credence to, nor does it say the evidence is contradictory or irreconcilable, but leaves the jury to determine the question, and prescribes a rule to govern them in the. event they should find it could not be reconciled, and there was no error in giving it.

The ninth instruction asked by the state reads as follows: “ A confession voluntarily made is one of the strongest proofs of guilt; and more especially so when corroborated by other proofs, and if the jury believe that the defendant voluntarily admitted to Payne that he committed the deed, and they believe it to be true, and the other attending circumstances show the killing to have been murder in the first degree, they will so find.”

If there is objection to the above instruction it must be on the ground that it makes the admissibility of the defendant’s admissions a matter for the jury to pass upon. The admissibility of confessions or admissions in proof of guilt is a question wholly within the province of the judge to consider and decide. 1 Greenl., 219.

In this case, the admissions of Wallace to Payne went to the jury without exception or objection, and were as fully befóte the jury as though the question of the admission of the confession had been presented to the court and passed upon, and admitted by the judge. When the court has once passed upon the admissibility of evidence relating to a confession, an admission of the defendant going to establish his guilt, if admitted, the jury must consider it as competent evidence, and cannot exclude it; an instruction, therefore, although erroneous, that could only inure to the benefit of the accused, is not a ground of reversal.

Counsel contend that the instruction assumes that the accused had confessed the crime by certain statements he made to one Payne. Payne testified that after Judge Mears was shot, he was at the defendant’s house, and that defendant asked him what the people said about the killing of Mears; that he answered, “they don’t talk much about it;” that the defendant then said: “Tom, don’t tell that I killed Doc. Ward (the deceased); if you do, they will go for me, and I will shoot you if you tell it.” After the defendant was arrested he had another conversation with him, in which defendant said: “Tom, if you should be brought before the grand jury, I don’t want you to remember anything, for, if they find out that I killed Ward, it will take two or three hundred dollars to prove out of it.”

Before testifying to these confessions or admissions, Payne testifies that on the Monday night previous to the Wednesday when Ward was shot, at eight or nine o’clock, he saw the accused crouched down behind the court house fence, nearly opposite Ward’s (the deceased) office, with a double barrelled shotgun and pistols, and said, “Hello! who is this?” when defendant said, “Is that you, Tom?” and he answered “Yes.” Defendant informed him he was watching for Ward, and said he intended to “burst his old hide,” and asked witness if he knew where Ward was. Witness said he had gone to bed. Defendant then asked where Ward usually sat. Witness told him Ward usually sat in front of the drugstore which adjoins his office. Defendant said he intended to “burst his (Ward’s) old hide,” and if he continued to sit there he would shoot him in two; that he was “ on it,” and intended to kill until he was killed, and if he (witness) ever told any one that he saw him (defendant) there, and what was said, he would shoot witness.

The instruction does not assume a confession — it merely undertakes to describe the effect of a confession, and the grade of such evidence. The confession — if confession at all — is extra judicial, and whether such confessions stand upon as high grounds as the judicial is not well settled. If the corpus delicti be proven, and there be corroborating facts, we are unable to see why an extra judicial confession is not as high a grade of evidence as the judicial, where the corpus delicti is proven but no corroboration; but, whether it is or not, there is no reason why an extra judicial confession voluntarily made should not go to the jury. Wharton says (vol. 1, p. 472): “A free and voluntary confession by a person accused of an offense — whether made before his apprehension or after, whether on a judicial examination or after commitment, whether reduced to writing or not, in short, any voluntary confession made by a defendant to any person at any time or place — is strong evidence against bim, and if satisfactorily proved when there is proof of the corpus delicti, sufficient to convict according to the common law, without any corroborating circumstances.” 2 Leach C. C., 625; 2 Hawk. P. C., 46; 2 Russ, on Crimes, 824; and State v. Lamb, 28 Mo., 218.

In the last cited case, the supreme court of Missouri held that, “An extra judicial confession, with extrinsic circumstantial evidence satisfying the minds of a jury beyond a reasonable doubt that the crime charged had been committed, will warrant a conviction; although the dead body may not have been discovered and seen, so that its existence and identity can be testified to by an eye witness.”

The tenth instruction asked by the state is as follows: “Of all kinds of exculpatory defense, that of an alibi, if clearly established by unsuspected testimony, is the most satisfactory and conclusive.”

The defense set up was an alibi, and we cannot see wherein the defendant’s rights were prejudiced by the instruction. It is general in its terms, and is the enunciation of a well established principle of law, and seems to have been given as a prelude to the eleventh instruction, which to some extent attempts to point out an artifice sometimes resorted to in proving an alibi.

The fourteenth instruction asked by the state is as follows: “ The legal test of evidence for conviction is its sufficiency to satisfy the understanding and conscience of the jury, and their minds should be so convinced by the evidence that they would venture to act on that conviction in matters of the highest importance and concern to their own interests.”

In argument, counsel have not attempted to point out any error in this instruction, and, seeing none at a casual glance, we will pass it without further comment.

The fifth instruction asked by the defendant reads as follows : “In cases of circumstantial evidence a complete chain of material facts must be credibly and satisfactorily proven, and conflicting proof as to any material fact in the chain of evidence may justly raise a reasonable doubt as to the guilt or innocence of the defendant.” To this the court added the words, “when the weight and credibility of opposing evidence is equal.”

The sixth instruction asked by the defendant reads as follows : “ That in order to convict the defendant the state must prove all the material allegations in the indictment, and that the act charged was committed willfully, deliberately and with malice aforethought.” To this instruction the court added the following words: “But proof of the killing may raise a presumption of malice.’'’

The seventh instruction asked by the defendant reads as follows: “ That although the jury believe from the evidence that the defendant did threaten to take the life of the deceased, it is proper to consider such threat as a circumstance in the evidence, yet in doing so they should also consider that the words in which such threats were supposed to be made may have been misunderstood or misremembered, and that the defendant may have made such threats without any intention of committing a crime.” To this instruction, after the words “yet in doing so they should also consider,” the court added the words, “ if they believe the evidence warrants it.”

We see no error in making the addition that was made, nor in refusing to give the fifth, sixth and seventh instructions as asked.

After the conclusion of the opening argument by- the state, the defendant asked the court to instruct as follows : “ That a difference or contradiction in the statements of witnesses who have testified in behalf of the defendant, as to any immaterial fact or matter, is not sufficient to render them unworthy of belief, or even to affect their credibility, and that in the absence of proof to the contrary, the veracity of a witness is presumed.”

The determination of the credibility of a witness is to be judged of and determined by the jury, and the jury, in our opinion, may base their estimate of the amount of credit which shall attach to the testimony of a witness, upon immaterial as well as material facts. ■ There was no error in refusing to give this instruction.

The thirteenth instruction asked by the defendant, like the twelfth, was presented to the court after the close of the opening argument, and is as follows: “ That in case of conflicting presumptions, that which assumes innocence of a criminal offense will be adopted.”

We can see no reason why the conflicting presumptions, any more than conflicting evidence, should be resolved in favor of the innocence of the accused. The accused is always given the benefit of doubts, but beyond this the law does not go. There was no error in refusing to give this instruction. The court is under no obligation to give an instruction asked by either party. The duty of the court is to charge the jury as to the law of the case, and if this be done in the instructions given at its own instance or on its own motion, this is all the law requires. Either party has the right to ask the court to charge what he believes to be the law, and if this has not already been done in the charge given, a refusal to charge the law would be error. The code contemplates that counsel shall present their instructions to the court before the argument of the case. (Sec. 349, Crim. Code.) After the court has instructed the jury as to the law of the case, the cause is in effect submitted, and whether after the submission the court will instruct the jury is a matter within the discretion of the court.

Having disposed of the questions arising on the admission and rejection of important evidence, and those arising on in-' structing or refusing to instruct the jury, but one other remains to be disposed of, and that is, Did the court err in overruling-a motion for a new trial?

There are but seven grounds named in the code for which, a new trial can be granted:

First. Where the trial in k case of felony was commenced and completed in his absence.” No claim of this sort is made-in the case at bar, and for this reason we pass without further-comment to the next ground.
“Second. Where the jury has received any evidence out of court other than that resulting from a view, as provided in this code.” It is not claimed the jury received any evidence outside of the court; and. for this reason we pass to the next ground.
Third. Where the verdict has been decided by lot, or in any other manner than by a fair expression of opinion by the-jurors.” It is not claimed the judgment in this case was decided by lot, or in any other manner than by a fair expression of opinion; and this ground of the motion, like the first and second, need not be further mentioned?
Fourth. Where the court has misinstructed or refused properly to instruct the jury.” The objections to the instructions given and refused that were objected to have already been referred to, and it is unnecessary again to discuss them.
Fifth. Where the verdict is against law or evidence.” The jury, in our opinion, under the law given, might well have found the verdict it did, and the verdict is not without evidence to sustain it.
“Sixth. Where the defendant has obtained important evidence in his favor since the verdict.” There is no claim that such evidence has been discovered.
Seventh. Where, from the misconduct of the jury, or from any other cause, the court is of opinion that the defendant has not received a fair and impartial trial.” Under this last clause five distinct causes are alleged for a new trial.
“1. That the indictment against him upon which he has been tried herein was found at the present term of this court, before he had been arrested, held or committed to answer the plaintiff upon the charge made in said indictment, and the same was not, before the trial herein had, docketed in this court for any day.
“2. That said indictment was found against him at the present term of this court, and yet no order of this court was made fixing a day of trial thereof.
“ 3. That in selecting the j ury who rendered the verdict herein, the clerk of this court did not draw from the jury box the names of jurors as provided by law until the regular panel was exhausted, nor was such drawing waived by the defendant.
“4. That the court erred in ordering the sheriff to summon an additional panel of twenty-four jurors before the regular and duly elected panel had been drawn from or exhausted.
“ 5. That the court erred in refusing to sustain the defendant’s challenge to such additional panel of jurors, and in overruling the defendant’s motion for an order of the court directing a new panel to be summoned by some person to be by the court designated.”

Section 277 of the criminal code declares that: “Decisions of the court, upon challenges, to the panel, and for cause, and upon motion to set aside an indictment, shall not be subject to exception.” This section disposes of the fifth ground or reason assigned for a new trial, for it must be clear to all that this court ought not to reverse a judgment for a cause, the ruling of the judge on which the law says “ shall not be subject to exception.”

There is nothing in the bill of exceptions in this case in support of the third and fourth grounds for a new trial. The things complained of therein do not appear of record, and where this is the case, the only manner in which or by which they can be brought before this court for review is by a bill ■of exceptions. '

Section 186 declares: “If the defendant is in custody, or •on bail, when the indictment is found, the trial may take •place at the same term of the court, on a day to be fixed by Abe court.” •

The defendant in moving for a new trial says he was not in Custody, or on bail, at the time of the finding of the indictment, and insists it was the duty of the court to have fixed a day for the trial. It appears from the record that the defendant was arraigned on the twenty-fifth day of October, 1878, and that he pleaded not guilty, and that he was not again brought into court until the eleventh of November following, at which time, the record shows the selection of the jury commenced. If the defendant was not ready for trial, or desired the court to fix a day for trial, he ought to have so moved the court, and if it refused to do so, to have excepted to its rulings in that respect and saved the point by a bill of exceptions. Neither the record, nor the bill of exceptions, discloses an exception to the action of the court in proceeding to trial. The 189th section of the code declares that, “When an indictment is called for trial, or at any time previous thereto, the court upon sufficient cause shown by either party may direct the trial to be postponed to another day of the same term, or to another term. The record shows the indictment was “called for trial,” and when it was called, if the defendant was not ready to proceed, it was his duty to have the court fix another day, if a proper showing was made. The defendant is entitled to a fair and impartial trial, and if in anything he has been deprived, of this, we should not hesitate to reverse the judgment of the court below; but while this is true the law also enjoins a duty on him, and that is that the acts and proceedings which tended to deprive him of a fair and impartial trial shall be excepted to, and the evidence thereof preserved by a bill of exceptions as to all matters that do not otherwise appear of record. "Where a trial has been properly conducted in other respects, this court will not reverse a judgment of conviction simply because the record fails to show that the court set a day for trial. In our opinion neither the first nor second grounds named in the motion for a new trial come within the spirit or meaning of section 268 of the criminal code.

We have at great length taken up and in regular order discussed all the questions raised by counsel, without regard to any defect in the bill of exceptions and as though none existed. The bill of exceptions clearly and distinctly shows that it contains all the evidence, but it nowhere negatives the idea that no other instructions were given; this it -should show. The object of a bill of exceptions is to present to the appellate court a point of law decided in the court below prejudicial to the substantial rights of the party appealing. The code (367 civil) says: “ The objection must be stated ” in the bill of exceptions. Justice Daniel, in the case of Camden v. Doremus, 3 How., 530, in speaking of a bill of exceptions, says: “ Upon the offer of testimony, extended and complicated as it may often prove, it could not be expected upon the mere suggestion of an exception which did not obviously cover the competency of evidence, nor point to some defect in its character, that the court should explore the entire mass for the ascertainment of defects, which the objector himself either would not or could not point to. It would be more extraordinary still if, under the mask of such an objection, or mere hint at an objection, a party should be permitted, in an appellate court, to spring upon his adversary defects which it did not appear he ever relied on, and which, if they had been openly and specifically alleged, might have been easily cured.” Crisman v. McDonald, ante, p. 8.

No ground of objection is stated to advise this court of the question presented in the court below, to show whether the court was passing upon the relevancy, competency or admissibility of testimony. This practice cannot be tolerated, for were we to indulge it we might strike out evidence admissible for one purpose when it had been excluded upon other grounds.

The condition of the record and bill of exceptions is such that, although more egregious blunders had been committed than were at the trial, we would not be authorized to reverse the judgment in this case.

Judgment affirmed.


author: Searle, J.

text:
    Pierce vs. Lyman et al.
    Contracts of Sai/e : Test as to tranfer of title.

    The test as to whether, upon a contract of sale, the property vests in the vendee or remains in the vendor, is, could the vendee recover of the vendor, either in a court of law or equity, the interest or property he claims to have purchased of the vendor ?
    Practice : When record not filed twenty days before commencement of term.

    The provisions of sec. 876, Civil Code, as to the time when appeals shall stand for trial are directory; and when the record has not been filed in the clerk’s office more than twenty days before the commencement of the term, but the appellee has been summoned over twenty days before the submission of the cause on the part of the appellant, the case may be properly disposed of at that terih.

      Same : When defendant may he required to produce his evidence first.

    On plea of failure of consideration, where the burden of proof in the whole action seems to rest upon the defendant, it is not improper for the court to require him to produce his evidence first.
    •Same : Where no evidence to support the verdict.

    Where the record shows that the verdict of the jury was grossly contrary to the law, though in accordance with the instructions of the court, and it was totally unsupported by any legal evidence in the case, the judgment will be reversed.
    APPEAL from Jefferson Circuit Court.
    Hon. Read Eletci-ier, Special Judge.

      Yonley & Whipple, for appellant.

      H. Carlton, for appellees.
   Searle, J.

This suit was brought upon a promissory note for the recovery of five hundred dollars. Trial by a jury— finding and judgment for defendants. Motion for a new trial ■overruled and plaintiff, bringing upon the record his exceptions, appealed to this court. Before going into the merits of' this case, we will remark that the record was not filed in the -clerk’s office of this court twenty days before the commencement of this term, in accordance with the provisions of section 876, Civil Code. But we regard this provision as directory, and the appellees having been summoned over twenty •days before the submission of the case, on the part of the appellants, it may properly be disposed of at this term.

The motion for a new trial is based upon the following •grounds:

1st. Because the court decided that the defendants should, produce their evidence in the ease first.

2d. Because the court admitted the paper offered as a bill of sale from Pierce to Davis of the property in question, and allowed the same to go the jury as testimony for the defendants.

3d. Because the court refused to declare the law to the jury as asked by the plaintiff.

4th. Because the court declared the law to the jury as asked by the defendants.

■ 5th. Because the finding of the jury was contrary to the law and the evidence.

First. The court decided, over the objection of the appellant, that the defendants should produce their evidence first. The suit was brought upon a promissory note given for a printing press, etc. The only defense set up in the answer was a failure of consideration. The burden of proof “ in the whole action ” seems to have rested upon the defendants, and the ruling of the court that they should “ produce their evidence first” was not improper. See clause third, sec. 349, Civil Code.

Second. The remainder of the reasons assigned for a new trial will all be considered together.

The appellant, Pierce and Bawers, as partners, being the owners and in possession of a printing press, Pierce sold and delivered his one-half interest thereof to the appellee, Lyman. For part of the purchase money thereof, Lyman with the other appellees, in this case, as security, executed to Pierce his promissory note, which is the note sued on in this action. Lyman, in his answer, alleges a failure of consideration ; and this is based upon what is averred to be a breach of the implied warranty of title in said property. That is to say, it is averred in the answer that sometime before said sale of said printing press, etc., to Lyman, Pierce sold the one-fifth interest therein to one Davis, for six hundred dollars, and that' Pierce owned and had the right to sell only three-fifths of the one-half interest in said property, etc., and that therefore the consideration of the note failed to the extent of three-tenths of the property.

Pierce replies that he was the owner of the one-half undivided interest of said property and had a legal right to sell the same, and did sell and deliver the same to Lyman in pursuance of his contract of sale. He further states that he did not dispose of any part of said property to the said Davis ; that sometime before the sale by him to the said Lyman, he and one Grroesbeck, being then the owner of said property? entered into a verbal agreement with Davis to sell him a one-fifth interest in the whole of said property upon the consider-' ation of six hundred dollars; that in pursuance of said agreement, he wrote and signed an instrument conveying to said Davis a one-fifth interest in said property and delivered the instrument to Davis to obtain the signature of Grroesbeck, and for no other purpose ; that the instrument was never signed by Grroesbeck and the sale was never completed ; that Davis never paid one cent of the amount agreed upon ; that afterward the agreement to sell was rescinded by mutual consent of the interested parties, etc. We deem it necessary to consider but one question presented by the record, as that, we think, will dispose of the case.

It appears clearly from the evidence that Pierce and Grroesbeck, being partners and equal owners in the property, agreed with Davis to sell him one-fifth of the same. In pursuance of the agreement a bill of sale was written in the plural by Pierce, signed by him and given to Davis with the understanding that he (Davis) should procure the signatnre of Grroesbeck. It was presented to Grroesbeck and he refused to sign it. Davis not being able to raise the six hundred dollars according to the agreement, the same was revoked as to all the parties.

Now we presume it will not be disputed that in order to convey an interest in the whole property (which was the verbal ¡agreement) it was indispensable for Pierce and Grroesbeck, who were partners and joint owners therein, to join in the conveyance — Groesbeck refusing to carry out the contract of sale, no sale in law was ever made, and no title at any time vested in Davis. ■

The test as to whether upon a contract of sale the property vests in the vendee or remains in the vendor is, Could the vendee recover the property from the vendor? Upon the state of facts shown by the testimony, could Davis have recovered either in a court of law or equity the interest he claimed to have purchased of Pierce ? No one would answer this in the affirmative. Now if he could not recover from Pierce, before his sale to Lyman, a fortiori, he could not recover from Lyman after his purchase. Hence the rights of Lyman were not affected by the transaction between Pierce and Davis. Such being the case, Lyman could in no event suffer any damage which he could recoup out of the note. Lyman testified that he, -as agent, bought in this claim of Davis to the property for one Hubbard. From what we have seen, this transaction amounts to nothing in this case, except as showing the anxiety of Lyman to devise some means by which to avoid the payment of his honest debts.

From the foregoing, it will be readily seen that the instrument •of writing purporting to be a bill of sale from Pierce to Davis of an interest in the printing press, etc., in question, should not have been admitted in evidence to the jury, the evidence clearly showing that it was not executed. It will also be seen that the court erred in giving the instructions asked by the appellees to the jury, the same being founded upon the admission of said bill of sale as evidence, and upon the assumed facts that Pierce was not the owner of, and had not the right to ■convey the one-half undivided interest of the printing press to Lyman. These instructions should have been refused.

It will be further seen that the court erred in refusing to give tbe instructions asked by tbe appellant, the same being tbe converse of those given for tbe appellees. It will be further seen that the verdict of the jury was grossly contrary to the law, though in accordance with the instructions of the court, and it was totally unsupported by any legal evidence in the case.

For these errors the judgment must be reversed and the cause remanded to the court below with instructions thereto to try the same anew in accordance with the law and not inconsistently with this opinion.

G-regg, J., dissented.