author: Walker, J-

text:
    Stillwell and wife vs. Adams et al., Ex’rs.
    1. Chancery Practice: Exhibits.

    Exhibits are no part of the pleadings, and the failure to file them is not a proper ground of demurrer.

      2. Mortgage : Foreclosure before matw'ity of principal of debt.

    A mortgage executed to secure a debt and interest, the latter being payable semi-annually, may be foreclosed before the maturity of the principal.
    3. Complaint in Equity: Must show the interest and liabitiiy of the defendant.

    It is not sufficient to show the title and interest of the plaintiff in the subject matter of the suit; there must be such averments as show that the defendant also has an interest in the subject matter, and is liable to answer the plaintiff therefor.
    4 Married Woman: How far her contracts bind her separate estate.

    It is the established rule in England that the contracts of a married woman will be presumed to have been made in reference to her separate property, and therefore binding upon it, unless something to the contrary appears.
    5. — Same.
    In a majority of the United States a more limited rule is applied, and the contracts of married women are not enforced against their separate estate, unless they were made in reference thereto, or for their personal benefit.
    6. — Same.
    This court have adopted the rule which restricts the wife’s power to contract, unless in direct reference to her separate property.
    7. — Same : Averments necesscm'y to cha/rge the wife's separate property.

    As a general rule, the wife has no power to contract, and if the pleader wishes to fix a liability upon her, to account out of her separate estate, he must state such facts as take his case out of the general rule, and fix the liability. And if such facts do not appear in the pleadings, no cause of action is made against her.

      8. — Same.
    This was a proceeding in chancery against husband and wife, to foreclose a mortgage executed by them jointly; there was no averment that the debt was intended to charge her separate property, or that she had a separate estate, or had any interest in the land conveyed other than such as was hers by virtue of the marital relation. Held, that a general demurrer was well taken to the complaint.
    9. Acknowledgment op Deed : What the certificate of the wife's aaTcnowledgment must show.

    It is not sufficient that the wife executes and delivers a deed, hut to make it her act, she must do so without the undue influence of her husband, and must so declare upon privy examination in his absence, and this fact must he shown by the certificate of acknowledgment.
    10. — Same : Bffect of defect in the certificate of acknowledgment.

    Where the certificate failed to show the foregoing facts, the court had no evidence whatever upon which to render a decree against the wife.
    APPEAL from Pulaslci Chancery Court.
    Hon. W. J. Warwick, Chancellor.

      ¡3. B. CocJcrill, for appellant.

      W. 0. Batcliffe, contra.

   Walker, J-

The executors of the estate of Keatts filed their bill in equity to foreclose a mortgage executed by •Still-well and wife, to secure the payment of a debt of $5,000 and interest.

A demurrer was filed to the bill, which was overruled, and without further defense, a decree was rendered against the defendants, from which they have appealed to this court.

The defendants contend that the bill is defective:

First. That no exhibit has been made of complainant’s authority to sue.

Second. That no right of foreclosure has yet accrued on the mortgage.

Third. That the debt for which the mortgage was given is not due.

The first ground of demurrer taken, we think, was properly overruled. The failure to file the exhibit was not properly ground for demurrer. The exhibit constituted no part of the pleadings, nor was it the ground for equitable relief. The letters testamentary could only be evidence of the right of action in the complainants, and if deemed important to the defendants, should upon motion have been filed.

The second and third grounds for demurrer are substantially the same. It is true that the note was not due until June, 1876. But the interest became due semi-annually, and there was due and payable according to the terms of the contract, more than $2,000, at the time the suit was brought. And the mortgage was given to secure the payment of the interest as well as the principal.

These being the only grounds specially set forth as cause of demurrer, under the code practice, all others are considered as waived, except such as are necessary to constitute a cause of action.

The remaining question, therefore, is: Have the complainants set forth such facts as entitle them to recover of the defendants, and for the relief prayed ?

The complainants, with more than usual clearness and precision, show a right of action in themselves as executors, set forth the contract, the mortgage, the property conveyed, the terms and conditions of the mortgage, make it an exhibit, file a copy of it with the certificates of acknowledgment and record, state that the interest which has accrued, amounting to $2,051, is due and remains unpaid; with an appropriate prayer for judgment, that the equity of redemption be foreclosed, and the estate sold to pay the interest due; with a further prayer for further payment of interest, and finally for the principal debt when it shall become due.

We have deemed it unnecessary to set forth the several averments at greater length, because there is but one question which can arise as to the sufficiency of the bill, which is: Have the complainants made such averments as are necessary to charge the defendant Laura E. Stillwell, who is sued as a feme covert?

It is not sufficient for complainants to show their own right ©f action; but they must, with apt averments, show the liability of the defendants to them.

Story, in his Equity Pleadings, p. 505, says: It is not sufficient to show the title and interest of the plaintiff in the subject matter in the suit; but there must be such averments as show that the defendant also has an interest in the subject matter, and is liable to answer to him therefor.”

Have the complainants shown that Laura E. Stillwell, a feme covert, has contracted a debt, or executed a deed, by force of which she has made herself liable to complainants ? It is not questioned but that she signed the note and the mortgage deed intended to secure the payment of the debt; nor can it be questioned that, although a feme covert, she may, under certain circumstances and for certain purposes, so contract as to bind her separate estate. But for what consideration this note was given does not appear. The ownership of the land mortgaged is not disclosed. It is true, a feme covert may contract a debt by which she may bind her separate estate; but was such the case in this instance; had she an estate of her own to be charged ? If not, her contract is void. Perry, in his work on Trusts, vol. 2, p. 253, after a lengthy review of the English decisions, says: “ It is established in England that a wife’s general contracts may be satisfied out of her separate estate, if they were entered into with reference to, or upon the faith and credit of such estate; and that the contract of a married woman, being a nullity unless made with reference to her separate estate, will be presumed by the court (unless something else appears) to be made in reference to her separate estate, and therefore binding upon it.” And says, further, that this rule has been sanctioned and adopted in the states of Connecticut, Maryland, North Carolina, Missouri, Florida and Georgia, whilst the states of New York, Vermont, Wisconsin, New Jersey, limit the power of contracting in relation to her separate estate, or for the benefit of such estate, or for her own personal benefit upon the faith and credit of such estate. Perry, 255. By this rule, the wife’s general engagements, which have no reference at the time to her separate estate, or to her own benefit, cannot be enforced against such separate estate.

The same author, after a review of the decisions of the several courts of the states, says: “In a majority of the United States, a more limited rule was applied, and the contracts of married women were not. enforced against their separate estates, unless their contracts were made in relation to their estates, or for their personal benefit, and the same principles are applied in enforcing contracts of married women under the statutes." Perry on Trusts, 279.

It will be perceived that the point of difference between the decisions of the courts of the several states is, that part of them have adopted the rule as held by the English courts, which give validity to the wife’s contracts which have no reference to her separate estate, whilst the other states have limited the right of the wife to contract alone with regard to her separate estate, made for the benefit of her estate, or for her personal benefit. To the correctness of this more restricted right to contract, we yield our assent upon principle, and more particularly under the provisions of our constitution of 1868, under which this contract was made, because whilst it does enlarge the capacity of the feme covert to take and hold the estate, as her separate property, and also to devise and bequeath it, no power is given to sell or convey her separate estate, and with the exception of her power to take and hold the estate, and to devise or bequeath it, she rests under the same disabilities as if no such constitutional provision had been made. The wife had no greater power to contract after, than she had before this constitutional provision was ordained. No remedy at law ever existed with regard to her contracts, even when made in reference to her separate estate. The remedy is not properly against the person, but is in equity, and upon equitable principles against her separate estate. The judgment or decree cannot bind her; but it is against the separate estate, which is laid hold of to satisfy a debt contracted upon the credit of it, or in regard to it, when made directly in reference to such estate.

The authorities cited by counsel to show that a contract made by a feme covert, apparently without reference to her separate estate, will be, by implication, taken as relating to the wife’s separate estate, has been held applicable under the rule that the wife has general power to contract, but is inconsistent with the rule which we have adopted, which restricts the power to contract unless in direct reference to the wife’s separate property.

As a general rule, the wife has no power to contract and bind herself, and if the pleader wishes to charge her, and fix a liability upon her, to account out of her separate estate, he must state such facts as take his case out of the general rule, and fix upon her such liability; and as these facts do not appear in the pleadings, no cause of action is made against the wife.

Newman, in his work on Pleading and Practice, p. 667, says: “ It is not only necessary for the petition to show that the plaintiff has title or interest in the subject matter of controversy, but also that the defendant is liable. Thus if a married woman is sued for a debt, evidenced by a promissory note executed by her when she is a feme covert, and the fact of the coverture appears on the face of the petition, as she is not by law bound by her contracts, nor liable to the plaintiff, she may demur, unless the facts alleged in the petition also further show a state of case in which she was authorized to bind herself by the writing sued on.”

And because in the case before us, no such averment is made, nothing whatever to show that the note made was intended to charge her separate property, or that she had a separate estate, or even that the lot of land conveyed by mortgage was hers, or that she had any interest in the same other than such as is hers by virtue of the marriage relation, we must hold that the demurrer was well taken. If in fact this contract was intended to charge the separate estate of the wife, an averment of the fact should be made.

The sufficiency of the acknowledgment of the deed is questioned, and must arise upon the trial of the cause, when the deed is offered as evidence to support the allegation. And when, as in this case, the cause is set for hearing upon the complaint and the exhibits, before the court could proceed to render a decree against the wife, it became necessary to see whether she had in fact executed the mortgage; and at this point we may notice the argument of complainant’s counsel.

It is contended that although the certificate of acknowledgment is not in compliance with the statute, as between the parties to the deed, it was valid and binding, and as effectually conveyed the estate by mere act of signing, sealing and delivery, as if acknowledged and recorded. In most instances this is undoubtedly true, but- then, when the deed is not acknowledged, it must be proven to have been executed by the grantors, and when an attempt is made to make this proof, as to the fact of whether the wife executed the deed, the question arises as to whether any other evidence of that fact can be received, than that of her privy examination and voluntary acknowledgment that the deed is her voluntary, unrestricted act. The authorities touching this point are numerous. The case of Landers v. Bolton, 26 Cal., 408, is fully in point. Sawyer, J., who delivered the opinion of the court, said: “ Eor the purpose of protecting the wife against fraud, coercion, and undue influence of any kind, the acknowledgment of the wife is made part of the deed itself, or, perhaps more properly speaking, an indispensable part of the evidence of its execution. To secure perfect freedom of action, the wife must be examined separate and apart from her husband, and even at the last moment, the right of retracting is secured to her. It must appear in the certificate of acknowledgment that she stated that she did not wish to retract. In her case the certificate cannot be made, as in others, upon proof by subscribing or other witnesses. The acknowledgment in person before the proper officer, and his certificate in the form prescribed by law, is the only evidence admissible that she ever executed the instrument. All other proof, in court or out, is incompetent.”

The defect in the certificate in the case under consideration is, that it is not shown that the examination was taken in the absence of her husband, which is expressly required to be done by our statute. The acknowledgment was, for this defect, insufficient. It is not sufficient to show that she executed the deed, and delivered it, but to make the act hers, she must do so without the undue influence of her husband, and she must declare this fact upon privy examination, when freed from the restraint thrown around her by the presence of her husband.

As this proof was necessary to make her deed valid, in 'its absence, the court had no evidence whatever upon which to render a decree against her, and in no event could a decree against her personally be rendered, as appears in this case to have been done.

Eor these errors, the decree of the court below must be reversed and set aside, and the cause remanded, with leave to-the complainants to amend their bill if they choose to do so.


source: Caselaw Access Project

author: Harrison, J.

license: Public Domain

text:
    Wallis et al. vs. Smith.
    1. Taxes: County and District School : In what funds payable.

    The orders of school trustees are receivable for the school tax of the district for which they are issued, but not for county taxes. And county warrants are receivable for all county taxes, whether for ordinary or special purposes, and for interest on county bonds issued under an act of the legislature, approved the 23d of July, 1868, but not for the district school tax which is strictly local and assessed only on the property of the district for which it is levied.
    2. — County bonds not receivable for.

    The bonds of a county issued under the act of July 23, 1868, are not receivable for taxes.
    APPEAL from Sevier Circuit Court.
    Hon. E. J. Searle, Circuit Judge.

      Gallagher & Newton, for appellants.

      Diclt Gantt, contra.

   Harrison, J.

William M. Wallis, Wash. Wallis and other tax payers of Sevier county, applied to the circuit court of said county, at the February term, 1870, for a mandamus against Jehiel B. Smith, the collector of taxes of said county, to compel him to receive county warrants; bonds of the county issued under the provisions of the act entitled “ an act to authorize the funding of a floating debt in certain cases,” approved July 28, 1868; the interest on said bonds, and the orders of school trustees on the county treasurer, in payment of the county tax for ordinary purposes; other county taxes and the special school tax levied by the county court for the year 1869, and charged against them on the tax books ; all ■which had been tendered to and refused by the said collector. The court sustained a general demurrer to the petition, and refused the mandamus, and the petitioner appealed.

For what purpose the county taxes, other than for ordinary county purposes, was levied, is not shown. Exhibits are referred to which do not appear in the record, which, perhaps, aided the statement in the petition and made the same explicit and plain. It is, however, obvious that they could have been levied only for such special purposes as are authorized by law; as for the repair of roads, the erection of public buildings, the payment of interest on bonds, etc.; all of which, though special, are none the less county taxes, and on the same footing with the tax levied for ordinary county purposes, as held in English v. Oliver, Coll., 28 Ark., 317, and payable in county warrants or state treasurer’s certificates. Most likely a part of these special taxes was levied to pay interest on bonds of the county, issued under the provisions of the act before referred to, but the act does not require such tax to be paid in currency, or make any exception in regard to its payment, nor is there any law making them receivable for taxes.

It does not appear in what form the interest was offered, whether in coupons or merely as a credit to be indorsed on the bonds; and the statement of such offer is too vague and indefinite to show a tender of the same, and we shall therefore express no opinion in regard to that matter.

We understand the special school tax mentioned, to be that which the court was required to levy for the several school districts, for the maintenance and support of schools therein, for no other could have been legally imposed. Such is, in no sense, a county tax, but strictly local, assessed only on the property of the district for which. it is levied. School districts are expressly declared by the school law to be bodies corporate, and, as such, capable of holding property, of contracting, suing and being sued, and having for the object for which they were created — the maintenance and support of schools — a revenue of their own. The collector could not, therefore, be compelled to receive county warrants for the district school taxes, nor trustees’ orders for county taxes. Whether trustees’ orders are receivable for the school tax of the district for which they are issued is a question of more difficulty. Section 88 of the revenue act of 1869, under which the taxes of that year were levied, says that the collector “shall receive county warrants in payment of county taxes ; the orders or warrants that may be payable on presentation of any township, town or city, for their respective taxes, and the warrants of the auditor of state, or the treasurer’s certificates of indebtedness, for state taxes.” It will be noticed that no mention is made of school districts or trustees’ orders, whilst townships are named, which have neither taxes nor power to draw orders or warrants, and have no corporate capacity whatever. It is therefore apparent that the provisions, that the orders or warrants of a township shall be received for its taxes, taken literally, has no sensible meaning, and can have no effect. It then must mean something other than its language literally implies; and if we can ascertain that intention, it must prevail over the literal sense. 1 Kent Com., 510.

The provision we have quoted was clearly intended to apply to all taxes, of whatever kind, which might be levied, and all are expressly mentioned except the district school tax.

If we, for township, which, in the connection it is, taken literally, has no meaning, read district, the sense of the sentence is clear and consistent with the context and subject matter of the provision; but without resorting to such interpretation and rejecting the word entirely, the intention of the legislature that the provision should apply to trustees’ orders as well as other orders and warrants is very clear, because the reason for making them receivable for the school tax is as apparent and strong as for making county warrants receivable for county taxes, or city or town warrants for city or town taxes ; and when the expression in a statute is special or particular, but the reason is general, the expressions should be deemed general. 1 Kent Com., 510; People v. Utica Ins. Co., 15 Johns., 380; Whitney v. Whitney, 14 Mass., 88; Woodruff v. The State, 3 Ark., 285; Wilson v. Biscoe, 11 id., 44; Mason v. Finch, 2 Scam., 222.

We are therefore of the opinion that the orders of school trustees are receivable for the school tax of the district for which they are issued, and county warrants for all county taxes, whether for ordinary or special purposes, and that the court below erred in not granting a mandamus to compel the collector to receive them for the same, and its decision is reversed and the cause remanded to it, with the instruction to issue a peremptory mandamus to said collector to receive the said warrants and orders for the said taxes.


author: Williams, Sp. J.

text:
    Holman vs. Patterson’s Heirs.
    1. Chancery Pleading: Exhibits.

    While it is true that a fact affirmatively appearing in an exhibit would extend and supply defective allegations in a bill, the court will not look to the exhibit for the purpose of contradicting the bill.

      3. — Intendments on demurrer.

    Where an important statement is omitted in a bill, the court will, on demurrer, take it that the omission was purposely made.

      3. Lis Pendens.
    A purchaser, pendente lite, is bound by the result of the suit.
    4. Vendor and Vendee : Effect of a title bond, etc.

    The legal effect of a title bond is like a deed executed by the vendor and a mortgage back by the vendee. And the lien of the vendor affects all persons who purchase from the vendee.
    5. Vendor’s Lien.
    A vendor who executes a deod, reciting payment of the purchase money, has an equitable lien therefor as against the vendee and purchasers with notice.
    6. — Created by the transfer of a title bond.

    The interest of one who holds under a title bond is subject to sale and transfer; and an assignment of the bond has the same legal effect in creating an equitable lien for the purchase money in favor of the assignor of the bond as a sole and absolute conveyance would have.
    APPEAL from Jefferson Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      T. D. W. Yonley, for appellant.

      Watlcins & Bose, contra.

   Williams, Sp. J.

Holman, appellant, bought certain lota in tbe town of Pine Bluff, from William E. Woodruff, Sr., paid a portion of the purchase money, and for the balance, two notes of Holman were given, one due June 8,1860, the other was due June 8,1861.

Woodruff gave Holman his title bond, conditioned to make him a deed upon payment of the purchase money. Holman made some improvements upon the lots, and on the 27th day of September, 1859, sold them to D. C. Hardeman, and assigned the title bond of Woodruff to him, and also his interest in the lots, and authorized him to receive a deed from Woodruff to the lots when he paid the two notes due from Holman — all of which was indorsed in writing on the bond— and took Hardeman’s note for about five hundred dollars, balance of purchase money due Holman himself. On the 7th day of March, 1860, Hardeman assigned the title bond to Caldwell Brewer. In September 1860 afterwards, Holman filed a bill in the Jefferson circuit court against Hardeman, Brewer and Woodruff, to foreclose a lien Holman claimed against the lots, for the sum for which Hardeman had given his note to Holman as the consideration, in addition to the payment of the notes to Woodruff for the transfer and assignment of the title bond. This bill •claimed that Brewer bought of Hardeman, with full notice of Holman’s rights, and assumed that Brewer still owed Hardeman a sufficient sum to pay Holman’s lien debt. Process was issued on this bill, and returned non est as to Brewer; at the fall term of the Jefferson circuit court, 1860, an alias was •ordered for him for the March term, 1861. This writ is marked by the clerk, “Returned and filed in April, 1861.” The sheriff seems to have made no statement whatever on it; no further process appears in the transcript. Pending this suit, Brewer, ■on the 29th day of April, 1862, assigned the title bond to Edward W. Noonan. Neither the bond for title nor theas-sigmnent was ever recorded. On the 2d day of May, 1862, Noonan, holding Woodruff’s bond so assigned, presented it to him, paid the purchase money due Woodruff, and Woodruff rand wife executed to him a deed for the property.

Patterson, appellee, avers in his bill that on the 21st day of .September, 1866, Edward W. Noonan and wife executed and delivered a deed to him of the lots. This deed is exhibited, and on the demurrer we will take the allegation of execution to' be true; but exhibit “ 0 ” to Patterson’s bill, if the fact of execution were controverted by an answer, would require some showing of power in the attorney in fact who executed it for Edward W. Noonan. Holman’s bill, filed on the 29th of September, 1860, slept, as far as this record shows, until the 15th •of June, 1866, when Hardeman, who had not been served, entered his appearance and consented to a decree. The record exhibited with the bill states as follows : “ And it appearing that the allegation of the complainant’s bill had been taken for confessed, and • decree pro confesso had been entered up at the last term of this court against defendant, Caldwell Brewer.” [Yet no such record entry is copied in the transcript exhibited.] The court then proceeds to render a decree against Hardeman and Brewer in favor of Holman, directing that the lots be sold, etc., at the fall term, 1868.

Appellee presented his bill to the Jefferson circuit court, setting forth the proceedings and decree in Holman’s suit, to which it is averred Woodruff and Brewer were made parties, and a decree pro confesso was rendered against them, and that the note given by Hardeman to Holman for the. purchase money, which stipulated that the same should have the force of a mortgage and be a lien on the lot, had not been recorded, and that the assignment of the title bond did not show that anything was due Holman from Hardeman, and that the decree of Holman had been rendered without any service on Noonan and Patterson. On this ground alone, his prayer for-review was based. Patterson exhibited a copy of Holman’s bill and decree, with a portion of the process; for it shows that separate process was issued for Woodruff. Yet no such process appears in the exhibit. The transcript exhibited with the bill contains no record entry at the fall term, 1860, and the final decree is 15th June, 1866, although the final decree refers to a decree pro confesso, entered at a former term. Patterson also exhibited with his bill the title bond of Woodruff and the several assignments, the deed from Woodruff to Edward W. Noonan, and a paper which purports to be the deed of Noonan, executed by an attorney in fact, to appellee, and so much of the record of the proceeding of the Jefferson circuit court in chancery, in the case of Holman against Hardeman, Brewer and "Woodruff as showed the bill and part of the process and final decree.

In this bill, appellee prays, either that the decree may be enjoined in so far as it affected the lots, or that the sale of the lots by the commissioner under Holman’s decree, about to take place, be suspended, and that the decree be reviewed and opened to the extent that it affected the lots, etc. The court, upon appellee giving bond,' suspended the sale. The record states that defendants entered their appearance and waived notice.

The record before us contains the following as a part of the orders at that term : “ It was therefore ordered, adjudged and decreed by the court, after hearing the reading of the bill and exceptions and the argument of counsel thereon, that the prayer of said bill be granted, and that said decree be set aside and held “ for void,” and that the said Robert B. Patterson and Edward W. Noonan be and they are hereby made parties defendant to the original bill filed in this case, with leave, on the part of the said Robert B. Patterson and Edward W. Noonan, to file their respective answers to the original bill filed, on or before the third day of the next term of the court.” The record then proceeds to order that the commission to sell be recalled until further decree, on condition that Patterson enter into bond to Holman, which h„e did. This order, which begins this transcript, would be incomprehensible to us if it were not that we find at the close a general demurrer to the bill of Patterson, filed November 17, 1868, by Holman, and on the last page, we find that this demurrer was argued and submitted, and was overruled, and Holman “ refused to plead over;” and the order states, “rests upon their demurrer, and by leave of the court files their prayer for an appeal to the supreme court, from the decision and ruling of the court here, in overruling the demurrer to complainant’s bill, and by consent, the usual affidavit required is waived and said appeal granted.”

Thus we find that Holman, Woodruff and Brewer, who were made defendants, entered their appearance to Patterson’s bill, and Holman filed a general demurrer, which the court overruled, and he rested and declined to plead further, and a final decree was rendered reviewing and opening Holman’s original decree against Brewer and Hardeman, and allowing Patterson and Noonan — who were purchasers pendente lite, from Brewer' — to answer the original bill.

There can be no question as to their attitude. Story’s Equity Pleadings, sec. 156.

Patterson insists here, because the imperfect record exhibited with the bill does not show service on Woodruff and Brewer, that Noonan and Patterson are not bound, because they were not bound, and that they are not purchasers pendente lite, because these vendors were never parties. Both Noonan and Patterson bought after Holman filed his bill. Patterson avers that Woodruff and Brewer were made parties, and a decree pro confesso was entered against them. If in point of fact Brewer never had notice, Patterson should have so averred, and his right to review would have been clear. We cannot look from plaintiff’s bill to the exhibit, which on its face shows that it is imperfect, and is only exhibited to show the original bill and decree, for the purpose of contradicting his allegations, especially when, as in this case, we are asked to infer a fact, from the omissions in the exhibit. While it is true, a fact affirmatively and distinctly appearing in an exhibit would extend and supply defective allegations in a bill, we cannot extend the rule, as asked here, when the whole gravamen of the bill is based upon a different hypothesis, and the allegation is not only not made, but is inferentially contradicted by the bill.

The record exhibited here in the final decree recites facts as appearing of record, as the transactions of a former term, which are not copied into this transcript, nor is there a single entry, as appears in this transcript, from November, 1860, until the 15th of June, 1866. Even were we on demurrer disposed to look from the statements of the bill to the exhibits, to determine the correctness of the court’s action, we could not act on this transcript alone. Patterson, in his bill, nowhere alleges that Brewer and Woodruff were not served with process, and by that rule of pleading which makes intendments most strongly against him who omits an important statement. We shall take it that the omission was purposely made. If Holman’s statement in his original bill is true, that Brewer had full knowledge, and Patterson and Noonon having bought pending the suit, they are bound by its results. Story Eq. PL, 156.

If Brewer was not served in fact, and that fact had been alleged, Patterson would then have had ground to review the original decree. Patterson very properly made all the parties to the original bill defendants; his was an original bill in the nature of a bill of review. Story Eq. Pl., sec. 409. The court overruled Holman’s demurrer and rendered the above decree.

The legal effect of a title bond is like a deed executed by the vendor and a mortgage back by the vendee. The vendor in such case has a lien, which alike affects all persons who purchase, as the legal title is outstanding in the vendor. Moore v. Anders, 14 Ark., 628. The vendor of real estate has an equitable lien thereon for the purchase money, though he make the purchaser an absolute deed, reciting the receipt of the purchase money, as against the vendee or a person purchasing with notice that the purchase money is unpaid. Shall v. Biscoe, 18 Ark., 142; Scott v. Orbison, 21 id., 202.

In this case, although Holmam had nothing but the equity of redemption in this land, and occupied the attitude of a mortgagor in possession, while Woodruff occupied the attitude of mortgagee, holding the title by reservation, rather than by grant, as in case of ordinary mortgages, which is the only difference between this class of transactions and ordinary mortgages, as the owners of this equitable interest, Holman had such title as was subject to sale and transfer. His assignment of the title bond to Hardeman made the latter his vendee, and the note Hardeman gave Holman, for the purchase money, gave him a lien on the land for its payment against Hardeman or any one claiming under him who purchased with notice that the debt was unpaid.

Holman, in his original bill, avers that Brewer had notice that his debt was unpaid at the time of his purchase and at-the time of bringing suit. If this fact be true, the original decree in favor of Holman was right, if Brewer was served with process. But as Patterson does not' aver to the contrary, that part on the demurrer to his bill should have been taken as true. The facts which he set up in his bill as the ground for review, that the note to Holman was not recorded and that himself and Noonan had no notice of the suit, were not sufficient grounds to review. From the allegations of Holman’s bill, he was entitled to a decree, even if he had no note for the purchase money, and Noonan and Patterson having purchased, pending the suit, are bound by it as fully as if they had been parties. The decree was not void on its face, and the new facts alleged in Patterson's bill were not sufficient in law.

Therefore the court erred in overruling Holman’s demurrer. For this error the decree of the Jefferson circuit court is reversed, and the cause is remanded to said court with instructions to allow appellee to amend his bill, if he desires to do so, and proceed tbereon in accordance with law and not inconsistent with this opinion.

Harrison, J., did not sit in this case.


author: English, C. J.

text:
    Norman vs. Rogers.
    1. Pleading : Paragraphs in complaint and answer.

    The paragraphs in a code complaint take the place of counts in a common law declaration; and in an answer, they take the place of several pleas at common law.
    S. — Demurrer to separate paragraphs of an answer.

    Where, taking all the paragraphs of an answer together, they constitute a good defense to the action, it is error to sustain a demurrer to a part of them, and thereby render the remaining paragraphs insufficient as a defense.
    8. Tender : In Trover.

    In trover, the right of action is complete when a conversion is shown, and no tender of the property after conversion, or mere agreement of the owner, without consideration, to receive it, will defeat the action or mitigate the damages; but it the owner accept the property when tendered, it may be shown in mitigation, though not to defeat the action.
    4. Trover : Conversion by pledgee of a note.

    When the pledgee of a note hands it to the maker to be delivered to the payee, the pledgor, he thereby constitutes him his agent, and after an offer by such agent to deliver it to the payee, and a refusal to accept it, the latter cannot maintain an action against the pledgee for its conversion.
    APPEAL from Ashley Circuit Court.
    Hon. H. B. Morse, Circuit Judge.

      Norman, for appellant.

      Farr, contra.

   English, C. J.

Jerome B. Rogers sued Augustus H. Norman and George W. Norman, in the Ashley circuit court, for the conversion of a note.

The plaintiff alleged in the original complaint, in substance, that being the owner of two notes, executed to him by W. E. McCombs, for $500 each, one due on the 1st of January, 1871, and the other due on the 1st of January, 1872, he deposited said notes in February or March, 1870, with the defendants, who were merchants, under the firm name of Norman Bros., as collateral security for a debt which he was contracting with them for that year.

That in April, 1872, he owed them $680, which was paid by McCombs. That at that time the interest on the note first due amounted to $37.50, and the interest on the other note amounted to $7.50. That the payment made by McCombs took up the first note, and left a balance of $142.50 to go as a credit on the second note, leaving still due upon it $365.

That defendants, sometime in April, 1872, converted said ■note, with that amount remaining due upon it, to their own use. That about the first of May, 1872, plaintiff demanded of defendants the possession of said note, which was refused. That plaintiff had been damaged by such conversion and refusal to the amount of $365, with interest thereon from the 1st of April, 1872, for which he prayed judgment, etc.

Augustus H. Norman filed an answer, denying that he was a partner in the house of Norman Bros., and alleging that the concern was owned by George W. Norman, who did business under that style. On the filing of this answer, the suit was dismissed, by consent, as to Augustus H. Norman, and his name ordered to be stricken from the complaint.

The defendant, Geo. W. Norman, filed an answer, in substance, as follows:

1. That about the — day of April, 1870, the. plaintiff contracted with defendant to furnish him supplies, money and merchandise, to enable him to make a crop in said year. That in order to secure defendant on account of said advances, plaintiff deposited with him two promissory notes, executed to plaintiff by W. E. McCombs, for $500 each, due January 1, 1871, and January 1, 1872, with instructions for defendant to collect the notes as they become due, and apply the money to defendant’s account against plaintiff.

2. That on January 1, 1871, plaintiff was indebted to defendant for provisions, corn, meat, sugar, money, etc., in the sum of $709.20, and that in part payment thereof, he applied the note of McCombs then due.

8. That on January 1, 1872, plaintiff was indebted to defendant in the sum of $230.21, which was paid to defendant by McCombs, and credited on the second note, and said note delivered to McCombs by defendant to be handed to plaintiff, as said McCombs informed defendant; that since the said notes were deposited with defendant, plaintiff had become largely indebted to him (McCombs), and that he (McCombs) would deliver the said notes to plaintiff if he (plaintiff) would not permit him (McCombs) to set off against the note the amount he held against plaintiff.

4. That it is true that about the time mentioned said plaintiff demanded said note of defendant, when defendant informed him that McCombs had the note and would deliver it t© him, as above stated; but defendant is informed that although McCombs sent for plaintiff, he declined to see him.

5. That McCombs offered to deliver [tendered, as amended] to said plaintiff, or his attorney, before this suit was brought, the said note, and they agreed to receive it.

6. Defendant now brings into court said note, and here offers and tenders the same to said plaintiff.

7. Defendant denies that he ever collected or converted any other amounts or sums of money due on said notes except as above stated. Wherefore, he prays to be discharged.

The plaintiff filed a general demurrer to the first, second, third, fourth, sixth and seventh paragraphs of the answer, which the court sustained. ’

The cause was submitted to the court, sitting as a jury, and the court, after hearing the evidence and taking the matter under advisement, rendered the following judgment:

“It is considered by the court that plaintiff have judgment for the sum of $269.79 damages, together with six per cent, interest on debt and damages from this date” [October 28, 1872].

The defendant moved for a new trial on the grounds:

1. That the court found contrary to law and evidence.

2. That the court erred in sustaining the demurrer to the paragraphs of the answer, as above stated.

The court overruled the motion. The defendant took a bill of exceptions, setting out the evidence and appealed.

I. The paragraphing of the answer of the appellant, and the sustaining of the demurrer to six of the seven paragraphs, leaving the fifth paragraph standing alone and disconnected from the others, was a misconception by counsel and court below of the code of practice.

Paragraphs in a code complaint take the place of counts in a common law declaration. Gantt’s Dig., sec. 4563. And where the defendant has several distinct grounds of defense, counter claims or setoff, they are stated in separate paragraphs of the answer, and take the place of several pleas in the common law practice. Id., sec. 4569.

The sustaining of the demurrer to all of the paragraphs of the answer, except the fifth, left the appellant no valid defense to the complaint. The action is a code' substitute for the common law action of trover.

The conversion of the note is the gist of the action. The fifth paragraph of the answer, when the other connected paragraphs were cut away by demurrer, left the allegation of demand, refusal and conversion, as made in the complaint, unanswered; and a mere tender of the note before suit and agreement by the appellee or his attorney to receive it was all that remained as a defense to the suit. In trover, when the conversion of the property is shown, the right of action of the owner is complete. No tender or offer to restore the property after conversion' will defeat the action or mitigate the ■damages. If the injured party accept the property when tendered, this may be shown in mitigation of damages, but will not defeat the action entirely. Nor will a mere agreement without consideration to receive the property defeat the action or mitigate the damages, where the injured party thinks proper to disregard the agreement, and bring his suit for the conversion.

Where the suit is for the property itself, as in replevin or detinue, an offer to surrender the property before suit is a defense. But the rule is as above stated when the suit is not for the property, but for damages for its conversion. Savage et al v. Perkins, 11 Howard Pr., 17; Hanmer v. Wilsey, 17 Wend., 91; Vosburgh v. Welch, 11 Johns., 175; Gibson v. Chase, 11 Mass., 128.

Taking all of the paragraphs of the answer together, we think they set up a valid defense to the suit, if the material allegations made in them are proved upon a trial. Appellant did not intend, it seems from the answer, to convert the note when he delivered it to McCombs, but he handed it to him to deliver it to appellee, if the appellee would not consent for him to keep it in discharge of a debt due to him from appellee.

Appellant thus made McCombs his agent to deliver the note to the appellee, and if he offered to deliver the note, appellee should have accepted it, and then there would have been no cause of action.

Whether there was in fact a conversion of the note by appellant was a question to be determined by the court upon the evidence introduced by the parties, and, as there was some conflict in the evidence, we should not disturb the finding upon a question as to weight of evidence.

But for the error of the court in sustaining the demurrer to all of the paragraphs of the answer, except the fifth, the judgment must be reversed, and the cause remanded for a new trial upon the whole of the answer.


author: Walker, J.

text:
    Swope vs. Ross.
    1. Exemption : The right of, not triable by fury.

    The statute does not authorize the impaneling of a jury to determine whether a party is entitled to the benefit of the exemption law.

      2. —As between a landlord and debtor of the tenant.

    The rights of a landlord against his tenant do not attach as against a debtor of the tenant, against whom the landlord has recovered judgment in a proceeding by garnishment, so as to deprive him of the benefit of the exemption conferred by the constitution.
    APPEAL from Monroe Circuit Court.
    Hon. W. H. H. Clayton, Circuit Judge.

      S. P. Hughes, for appellant.
   Walker, J.

It appears from the record, that the appellant Swope, a landlord, obtained judgment before a justice of the peace, against William H. Green, his tenant, and, that Crusiana Ross was garnished to answer, whether she was indebted to Green. She failed to answer and judgment was rendered against her in favor of Swope, for the amount of the judgment recovered by him against Green. on which execution was issued and the property of Ross levied upon. Ross claimed the benefit of the exemption act, of personal property, and made and filed her schedule of personal property, which amounted to less than the sum exempted from sale under execution. Swope, by attorney, filed a petition in the justice’s court, claiming a jury trial to determine whether the property levied upon by the sheriff, and embraced in the schedule, was or not, subject to Swope’s execution, notwithstanding the amount was less than $2,000, the amount exempted from execution by law; upon which a jury was summoned and sworn to try, whether the property levied upon, was or not, subject to the execution of Swope. The jury rendered a verdict, that the property was subject to the execution, and the justice rendered judgment in accordance with the verdict. From this judgment the defendant appealed to the circuit court. Upon the trial in the circuit court, the judge ruled the law to be, that Ross, the garnishee, was not the tenant of Swope, and that she did not stand in that relation to him, and that she was entitled to the benefit of the exemption act, giving to the defendant the right to exemption of $2,000 personal property. Judgment was rendered in favor Ross. The evidence and exceptions were made of record and Swope appealed to this court.

We know of no statute which authorizes such a proceeding as was had before the justice in this case. If it was intended to try the right of property levied upon and taken in execution, the proceeding could not be sustained under sec. 2671, Gantt’s Dig., p. 515, because the application for a jury to try the right of property must come from some person other than the defendant in execution — some one who claims the property levied upon as his, not the defendant in execution. But in this case, the defendant in execution applied for and obtained a jury trial, to determine, not that the property was not the defendant’s, for of that there was no question, but to determine a mere question of law, as to whether Ross was or was not entitled to the benefit of the $2,000 exemption.

The judge of the circuit court to whom the facts were submitted, as if sitting as a jury upon an agreed state of factsj declared the law to be, than as the relation of landlord and tenant did not exist as between the landlord, Swope, and Mrs. Ross, the garnishee, she was entitled to the benefit of the $2,000 exemption, of personal property provided for by statute.

We fully approve of the decision of the circuit court. The debt upon which judgment was rendered against her in favor of Swope was a debt which she owed to Green, not Swope, and as regarded the debt, the relation of landlord and tenant did not exist, and as to which the rights of the landlord against his tenant could in nowise exist. 0

Let the judgment be affirmed.


text:
    Jetton & Farris vs. Smead.
    1. Evidence: Writ and return in replevin to identify the property.

    If the plaintiff, in an action of replevin, desires to prove that the prop, erty in controversy was taken from the possession of the defendant and delivered to him by thé officer, he should introduce the order of delivery as well as the return, where the latter does not, of itself, identify the property.

      3. — The defendant's bond insufficient to prove redelivery, etc.

    The bond executed by the defendant is insufficient, of itself, to prove the redelivery to him of the property.
    8. Pleading: Mattel' in abatement.

    A plea that the plaintiff was non compos mentis, etc., presents matter in abatement only; in such a case, if the plaintiff has no guardian, he should sue by his next friend.
    4. Practice : When plea in abatement properly stricken out.

    Where such a plea was not filed until after several continuances and the beginning of the trial, it was properly stricken out.
    5. — When an answer should be allowed after the trial is begun.

    When the circumstances show that the parties went into trial under a mutually erroneous impression that the defendant’s answer was in, and he, upon discovering its absence, filed a substituted answer, it would have been a sound and just exercise of the discretion of the court below to have permitted the substituted answer to remain on file; and in case of surprise, to have given the plaintiffs further time in which to prepare to meet the defense interposed.
    6. — Upon striking out the answer.

    Where, in an action of replevin, the answer is stricken from the files, judgment by default should be entered against the defendant, and an inquest of damages taken.
    7. Evidence: Inguest after default in'replemn.

    On an inquest after default in replevin, the value of the property would have to be proven in order that an alternative judgment might be rendered, also the damages sustained by the detention of the property. And the defendant could introduce mitigating evidence, but none to defeat the action.
    8. Replevin: Judgment in.

    The judgment in an action of replevin should be in the alternative for the property or its value, as ascertained by the jury, if delivery cannot be had.
    APPEAL from Union Circuit Court.
    Hon. Myron D. Kent, Circuit Judge.

      J. H. Carlton, for appellant.

      U. M. Rose, contra.

   English, C. J.

This was a code action for tbe recovery of specific personal property. The only thing answering to a complaint in the transcript before us seems to have been intended to serve the double purpose of a complaint and an affidavit to obtain an order for the delivery of the property. It is as follows :

After the names of the parties, etc,, “The plaintiff, H. P. Smead, states that the cotton claimed by him in this action is six bales, five of which are marked H., and numbered 7, 8, 9, 10 and 11, and three others marked B. No. 11, all of which is bound in iron ties, and is worth three hundred dollars, and for the detention of said cotton, he believes he'ought to recover one’hundred dollars; that he is the owner of the cotton, and is entitled to the immediate possession of it; that the cotton is wrongfully detained by the defendants, Jetton & Farris, and was not taken for tax or fine against the plaintiff, or under an order or judgment of a court against him, or under an execution or attachment against his property, and that his cause of action herein accrued within one year past.” See Gantt’s Dig., ch. 115.

It was sworn to and filed in the office of the clerk of the Union circuit court, March 29, 1871.

No writ appears in the transcript.

On the 27th of September, 1871, there is an entry that the parties appeared, and, on motion of the defendants, further time was given them in which to file their answer to the complaint.

October 3, 1871, the cause was continued by consent.

April term 1872, a like order of continuance without prejudice ; March 27, 1873, the cause by consent was set for “ disposition” on the 1st of April, and on that day it was continued by consent.

September 19,1873, the parties appeared by their attorneys, and both parties announcing themselves ready for trial, a jury was called and sworn, “Well and truly to try the case of H. P. Smead against Jetton & Farris, and a true verdict render according to law and evidence; unless discharged by the court or withdrawn by the parties.”

After the jurors were sworn, it was discovered that one of them was disqualified, and the parties agreed that he might be discharged and the cause tried by the eleven remaining jurors.

Plaintiff then introduced witnesses by whom he proved that the cotton in dispute was produced, ginned, baled and weighed on his farm, of the crop of 1870; that it was his property, the probable value of such cotton; and that it was taken from his farm on the 21st of March, 1871, without his permission, by defendant Jetton.

Plaintiff next proposed to read in evidence “ the return of the officer who executed the writ of replevin in the case,” to which the defendants objected; but the court overruled the ■objection and the same was read as follows:

“ Sheriff’s Office, Union County — March, 24, 1871. I hereby deputize and empower H. Y. Sims, constable of Yan Burén township, Union county, Ark., as special deputy to •serve the within writ, this March 24th, 1874. (Signed) Lee Clow, Sheriff, etc.

“ Whereas, I have this 25th day of March, 1871, duly executed this writ by taking possession of the within mentioned property and delivered the same to the possession of the said H. P. Smead, he executing a bond according to law in the sum of $600 which has been approved by me. (Signed) Lee Clow, Sheriff. By J. G-. Chapin, Deputy. By H. Y. Sims, Special.”

It does not appear that the writ was read in evidence, nor •does it appear in the transcript.

Plaintiff was then permitted to read in evidence, against the ■objection of defendants, what is termed, in the bill of exceptions, a bond executed by defendants to retain the cotton ip this case.

It is in code form: “We undertake and are bound to the plaintiff, H, P, Smead, in the sum of six hundred dollars, that defendants, Jetton & Earris, etc., shall perform the judgment of the court in this action.”

It purports to be signed by the defendants and three other persons ; and to have been approved by the sheriff, March 30,-1871.

Whether, upon the execution of this bond, the cotton was redelivered to the defendants, was not shown by the plaintiff. Here the plaintiff closed his case.

Defendants then proposed to read in evidence a mortgage purporting to have been made to them by plaintiff, and called defendant Earris as .a witness to prove the signature of the plaintiff; to which the plaintiff objected on the ground that there was an attesting witness of its execution, and the court sustained the objection.

Here the court adjourned until the next morning (September 20, 1873).

The counsel for defendants seems to have discovered during the adjournment that the defendants had no answer to the complaint on file, and on the next morning when the court met, filed an answer which purports to be a substitute for one previously filed with an amendment, etc.

There are two paragraphs of what purports to be substituted, in substance as follows :

1. Defendants for answer say, as they did in their original answer, that they do not unlawfully detain the cotton nor did they at the institution of the suit.

' 2. And for further answer they state, as in their original answer, that they do-not detain the cotton of plaintiff unlawfully, but aver that on the 24th of April, 1874, plaintiff was indebted to them in the sum of $590, and wanting further supplies for that year in goods, wares and merchandise, executed to them an instrument by which he bargained and pledged his entire crop of cotton raised in Union county in the year 1870, and on default of payment, authorized defendants to take possession of the cotton and sell the same at auction or privately. That plaintiff got of defendants, under said contract, other supplies, etc., amounting to $264.12, as would appear by bill of particulars A, marked filed in this case March 29,1871, but filed, as defendants believe, March 29, 1872, with original answer which is lost or mislaid and not in the papers. That they took possession of said cotton under and by virtue of said instrument, as well they might, because plaintiff wholly failed to pay for said goods, wares and supplies as agreed in said contract; and defendants held and sold said cotton under said authority and make account of sales in exhibit, etc.

To the above paragraph of the answer was attached the affidavit of Farris, that the facts set forth were true, and that the answer would have been presented sooner, but he verily believed that said original answer was in, and was not advised to the contrary until the same could not be found, since the commencement of the trial.

3. And for further answer, defendants state that plaintiff was, at the institution of this suit, has since been and now is, non compos mentis, and had not- at the institution of this suit, nor has he since had, any lawful curator or guardian.

This additional paragraph was also verified by the affidavit of Farris.

The plaintiff moved to strike the answer from the files, on the grounds:

1. That it was filed out of time, etc.

2. That it did not state “ whether the sums stated therein were paid before they seized the cotton.”

3. Because the paper filed as an answer contradicted the record, in stating that defendants had previously filed an answer, when the record showed no such filing.

The court struck out the answer and exhibits, and defendants excepted. Defendants then moved to strike plaintiff’s complaint from the files, which was overruled, Defendants produced the mortgage referred to in the answer, and after proving its execution by Phillips, the attesting witness, offered it in evidence, and also proposed to prove that the debts secured by the mortgage were not paid by plaintiff, as agreed before the taking of the cotton, and that they took possession of the cotton under the mortgage and sold it to pay the debts thereby secured, etc.

To the introduction of all of which evidence, the plaintiff objected, because the defendants had no answer on file, and could only contest the damages.

Defendants insisted that they could introduce the evidence to lessen the damages, by showing that the cotton was sold under the mortgage and applied to the payment of plaintiff’s debts secured thereby, but the court ruled out the evidence.

Defendants then proposed to prove that the cotton in dispute was sold by them in New Orleans for but $258, and the proceeds applied to the credit of plaintiff, all in accordance with previous agreement, etc., which the court ruled out on the grounds that defendants had no answer in.

No further evidence being offered or introduced by the parties, the court, on motion of the plaintiff, and against the objection of defendants, instructed the jury:

That if they believed from the evidence that the property in question was at the time of suing out the writ herein, the property of the plaintiff, they will find for the plaintiff the value of the same, as they may believe the same was shown by the evidence; and that they also find whether the defendants took the property and appropriated the same to their own use, by giving a bond for the same.”

The jury returned the following verdict:

‘‘We, the jury, find the cotton in controversy to be the property of the plaintiff; that it is of the value of $246.60, and that defendants converted the same their own use.”

The court rendered a judgment in favor of plaintiff against defendants for $246.60 and costs.

The defendants filed a motion to set aside the verdict and for a new trial, on the grounds:

1. The court erred in striking from the files the substituted answer filed by them.

2. In refusing to permit them to introduce as evidence the mortgage, etc.

3. In refusing to permit them to prove that the cotton was sold and the proceeds applied to a debt due by plaintiff tp them, in accordance with an agreement between them and plaintiff.

4 In giving the instruction asked by plaintiff.

5. Verdict contrary to law and without evidence.

The motion was overruled, and the defendants took a bill of exceptions, setting out the facts above stated and appealed to this court.

1. The complaint, if it may be so named, is a sorry specimen of pleading, even under the code system.

Instead of concluding with a prayer for judgment, or as expressed in the code, “ a demand of the relief to which the plaintiff considers himself entitled ” (Gantt’s Dig., sec. 4562), it concludes with allegations which should have been made in a separate affidavit for the purpose of obtaining an order for the delivery of the property sued for. Gantt’s Dig., ch. 115.

The action, however, as indicated in the complaint, was for the recovery of the possession of specific personal property and damages for its detention, and a substitute, under the code practice, for the former action of replevin in the detinet. It was not an action like trover or trespass, for damages for the conversion of the cotton.

2. If it was material for the appellee to prove that the cotton was taken from the possession of the appellants by the the sheriff, and delivered to him, the writ or order for the delivery of the property, as it is called in the code, as well as the return of the sheriff thereon, should have been read in evidence, for the return, read in evidence on the trial, did not of itself identify the cotton, but referred to the “ within mentioned, property,” etc., meaning, it may be supposed, the property described in the process on which the return was made.

3. If it was material for the appellee to show that the cotton was redelivered to appellants, upon their executing bond, etc., the bond read in evidence did not, of itself, prove that fact.

Properly the bond should have been made part of the return of the sheriff, with a statement that, upon its execution, the property was restored to the appellants. Gantt’s Dig., sec. 5042, etc.

4. When appellee closed his case on the trial, he had proved his title to the cotton, its probable value, and that one of the appellants, Jetton, had, before suit, taken it from his farm; but he bad not proven that the other appellant was connectéd with the taking, or unlawfully detained the possession of the cotton at the time the suit was commenced against him. The complaint alleged the unlawful detention of the cotton by both of the defendants, and had the answer been in, disputing this allegation, the appellee could have re■covered, on the evidence introduced by him, against one of them only.

5. The first and second paragraphs of the answer filed by the appellants, and which the court struck from the files, were in bar, but the third paragraph related to the disability of the appellee, and was matter in abatement, if a defense at all.

It alleged that the appellee was, at the- institution of the suit, etc., non compos mentis, and had no guardian, etc.

“The action of a person judicially found to be of unsound mind must be brought by his guardian, or, if he has none, by bis next friend,” etc. Gantt’s Dig., sec. 4486.

It is not alleged in the paragraph that appellee had been judicially found to be insane before suit. If the appellee was, in fact, insane before suit, he should properly have sued by his next friend, though no inquest had been held before the proper court; but it is not certain that his failure to do so would be cause for abating the suit. 2 Saund. on Pl. and Ev., 318; 1 Chitty Pl., 18; 3 Rob. Pr., 240; 19 Wend., 650.

Be this as it may, the appellants did not pretend that this defense was set up in their former answer, and filed as it was after several continuances, and after the trial had commenced, it was properly stricken out by the court.

The first and second paragraphs, with the mortgage, etc., exhibited with the answer, set up a probable meritorious defense to the action.

There can be but little doubt, from all the facts' disclosed by the record, that both parties went into the trial under the impression that an answer was in, or that the cause was in some way at issue. The cause had been several times continued by consent. Both parties announced themselves ready •for trial, a jury was sworn, as if to try a cause and not to make an inquest of damages, one of the jurors was discharged by consent, and it was agreed that the eleven others should try the case; no default .had been taken against appellants for want of an answer; the appellee introduced his evidence to sustain the allegations of the complaint as if they were at issue; when the appellants first offered to prove the execution of their mortgage, no objection was made on the ground that they had no answer in, but it was insisted that an attesting witness should be called. In this attitude of the case, the court adjourned on the first day of the trial. On the next morning the substituted answer, as it is called, was filed, accompanied by the affidavit of one of the appellants that he verily believed that an answer of like import was in, and was not advised to the contrary until after the trial had commenced, etc. True, there is no record entry showing that an answer had been previously filed; but this may have been an omission of the clerk, or it may be that the counsel for appellants supposed he had filed the answer, when, in point of fact,, he had not, the case having been pending for several years, and repeatedly continued by consent. If the counsel for appellee knew that no answer had been filed before he consented to go into a trial, he should have asked for a judgment by default and an inquest. Gantt’s Dig., sec. 4212.

Under all the circumstances thus appearing, it would have been but the exercise of a sound and just discretion of the court to have permitted the answer, except the third paragraph, to remain on file. Then, if the appellee had' shown that he had gone into trial knowing that there was, in fact, no answer on1 file, and that he was surprised by the matters of defense Set up in the answer, and not prepared to meet them, the court should have given him such further time as might have seemed reasonable, even if the jury had to be discharged.

But the court having thought proper to strike out the answer, the after progress of the trial was a farce. On striking out the answer, a default should have been entered against the appellants for failure to answer, and an inquest taken.

The default would have admitted the right of action in the appellee, that he was the owner of the cotton and entitled to its possession, and that defendants wrongfully detained it. On the inquest appellee would have to prove the value of the Cotton, that he might take an alternative judgment for its value, in case its delivery could not be had (Gantt’s Dig., secs. 4682-4718), and such damages as he had sustained by its de tention; and appellants could introduce mitigating evidence, but none that would defeat the action. Hunt et al. v. Burton, 18 Ark., 188.

6. But treating the trial as a mere inquest, without the formal entry of a default, though the verdict was not in proper form, it found the value of the cotton, and the judgment was for its value, as in a suit like trover, for its conversion, which was not the gist of the action in this case, as made by the complaint.

The action was for the recovery of the property and damages for its detention, and the judgment should have been for the property on the verdict, or for its value, as ascertained by the jury, if its delivery could not be had. Gantt’s Dig., sec. 4718. For anything appearing to the contrary, by the evidence introduced on the part of the appellee, the appellants might have been in possession of the cotton when the verdict and judgment were rendered, and they had the right to satisfy the judgment by restoring it to the appellee, no damages being assessed for its detention.

It is true appellants offered to prove that they took possession of the cotton and sold it, and applied the proceeds to the payment of a debt due them from the appellee, but all this evidence was excluded by the court, and neither the verdict nor the judgment could properly be based on excluded evidence. Upon the whole record, we think the judgment should be reversed, and the cause remanded with instructions to the court to permit the appellants to refile their answer, except the third paragraph, and for a new trial.


text:
    Sherrill vs. Wilson & Keach.
    1. Jurisdiction : Of justices of .the peace.

    Under the provisions of the constitution of 1868, the jurisdiction of a justice of the peace was determined by the amount of the debt, exclusive of the interest.
    APPEAL from Jefferson Circuit Court.
    Hon. Reid Fletcher, Special Judge.

      Farr for appellant.

      Bell and Wassell & Moore, contra.

   English, C. J.

On the 21st February, 1873, Wilson & Keach sued A. R. Sherrill before a justice of the peace, on a promissory note, for $496.71, dated Pine Bluff, June 27, 1871, payable one day after date, and bearing interest at the rate of ten per cent, per annum from its date until paid.

The plaintiffs filed with the note a brief complaint, describing the note, alleging that no part of the debt had been paid, and praying judgment.

The defendant was served with process, and on appearance day (3d March, 1873), judgment was rendered against him by default, for $496.71, debt, the principal of the note, and $83.43 for interest; and he afterwards appealed to the circuit court of Jefferson county. At the term to which the appeal was taken, the cause was continued. At the October term, 1873, Sherrill filed a demurrer to the complaint, on the grounds that the court had no jurisdiction to hear and determine the cause of action.

The court overruled the demurrer, and the defendant resting, final judgment was rendered against him for $496.71, for debt, and $111.75 for interest, etc.

On the 30th January, 1874, Sherrill obtained an appeal from the clerk of this court, and executed a supersedeas bond, •with J. B. Dodds as surety.

The constitution of 1868, which was in force when this suit was brought, and when the judgment was rendered on appeal, provides that: “Justices of the peace shall have exclusive original jurisdiction in all actions of contract and replevin, where the amount in controversy does not exceed two hundred dollars, and concurrent jurisdiction with the circuit court where the amount in controversy does not exceed five hundred dollars.” Sec. 20, art. VII.

The principal of the note sued on in this case was less than five hundred dollars, but by adding the interest which had accrued on the note at the time the suit was brought, to the principal, it made a sum greater than five hundred dollars.

By the constitution of 1886, justices of the peace were given “exclusive original jurisdiction in all matters of contract except in actions of covenant, where the sum in controversy is of one hundred dollars and under.” Sec. 15, art. VI.

There is no substantial difference between the words 41 amount in controversy,” as used in the one constitution, and “sum in controversy,” as used in the’other.

In Chatten et al. v. Heffley, 21 Ark., 314, the suit was brought under the constitution of 1836, on a note for $ 100, bearing ten per cent, interest; this court, citing the previous decisions on the subject, held that the interest, whether legal or conventional, was not to be added to the principal in order to give jurisdiction to the circuit court, or to defeat the jurisdiction of the justice of the peace.

The court said: “ "Whether the rate of interest be fixed by law, or agreed on by the parties, it is still but interest; it is but an increase or fruit of the principal debt, etc., etc. If the amount of debt demanded be regarded, in all cases, as the criterion of jurisdiction, there is no difficulty in determining whether the suit must be brought before a justice of the peace or in the circuit court; but if the jurisdiction is made to depend upon the amount of interest which has or may accumulate upon the debt, it would be contingent, floating, and in some instances the creditor might be in doubt as to the forum in which he should seek his remedy.”

The judgment must be affirmed with ten per cent, damages, and judgment rendered against the surety in the supersedeas bond, as prescribed by the statute.