text:
    Stone, adx., v. Kaufman & Co.
    In a suit by the assignee of a note ag-ainst the administrator of the maker, affidavits of the non-payment of the note, by the payee and assignee, while in their-hands'respectively, held sufficient.
    A commissioner of deeds of this State, residing in another State, is authorized to take affidavits to authenticate claims against deceased persons.
    Where the court erroneously instructs the jury that the plea of payment admits the indebtedness. charged, but proceeds to instruct that without evidence of payment they will find for the plaintiff, the instruction is not calculated to mislead the jury, and the verdict will not be disturbed.

      On a plea of payment, it is not necessary for the plaintiffs, suing as partners, to prove who compose the firm — the statute dispensing with such proof imless the defendant deny by idea and affidavit that the plaintiffs are partners, as described in-tlre declaration.
    Where a suit is instituted and progresses against the defendant as administrator, and the judgment is against said defendant, it is a judgment de bonis intestatoris.

      Appeal from Independence Circuit Court.

    Hon. Richard H. Powell, Circuit Judge.
    Byers & Cox, for appellant.
    Watkins & Rose, contra.
   Clendenin, J.

This was an action of debt instituted by the appellees, against the appellant, in her representative character, as administratrix of Jefferson Stone, deceased, upon a writing obligatory for a sum certain, executed by Jefferson Stone and Rufus Stone, to Hirsch & Adler, and by them assigned to the plaintiffs in the court below. The ■ defendant filed two pleas of payment: 1st, by Jefferson Stone to Hirsch & Adler when the note fell due; and 2d, payment of Jefferson Stone, after the note fell due, and before the assignment to plaintiffs. To these pleas replications and issues were made up and the case submitted to a jury, who found, upon the issues, for the plaintiffs, the amount of debt and damages; for which final judgment was rendered.' During the trial, the defendant excepted to the decision of the court in admitting certain testimony against her objections, and also in giving the instruction asked by the plaintiffs, and in refusing to give those asked by the defendant, and having tendered her bill of exceptions, which was signed and sealed, appealed.

It appears, from the record, that the plaintiffs, on the trial, offered and read in evidence the original note sued on, to which the defendant objected, because of a variance between the note offered in evidence and the copy to which the affidavits of prohate for non-payment were attached. Upon inspection we cannot perceive the point of variance between the instruments, and there is, therefore, nothing in the objection. The plaintiffs also offered and read to the jury, at the same time, a copy of the original note, with the affidavit of A. Hirsch; one of the firm of Iiirsch & Adler, of the non-payment of the note, while in their hands as payees, and the affidavit of L. Kaufman, one of the firm of the plaintiffs, of the nonpayment while in their hands. These affidavits were taken before James Graham, who signs himself commissioner, and whose attestation recites that they were “sworn to before me, a commissioner for the State of Arkansas, acting in Louisiana,” and are dated and sealed.

It was objected in the court below, and is urged in this court, that the affidavit of Iiirsch was not sufficient, under the statute, and because both the affidavits wei’e taken before a person who had no authority to administer them. The affidavit of Iiirsch, which is objected to, is, substantially, in conformity with sections 103 and 106, chap 4, Digest of Arkansas; the first of which sections, prescribes the form of the oath, and the second declares: “If the debt be assigned after the debtor’s death, affidavits shall be made by the person who held the debt at the death of the debtor, as well as the assignee.” This requirement has been complied with by the original payees of the note, and by the assignees, and we do not think the objection to the affidavit well founded; nor do we think the other branch of the objection tenable, because the 1st section of chapter 32 of the Digest authorizes the appointment of commissioners in other States,, and defines their powers, among others, “ to administer oaths and affirmations,” and the 2d section of the same chapter provides that, “ an affidavit taken by them shall be as effectual in law, to all intents and purposes, as if done and certified by any justice of the peace, or other authorized officer within this State.” Johnson v. Cocke, use, &c., 12 Ark., 672; and Grider & Henderson v. Williams, decided at the present term.

The instruction given, at the instance of the plaintiffs, to which the defendant excepts, is: “ The defendant in this case has pleaded payment; this plea admits the indebtedness to the parties, in the manner and form as declared in the declaration, and without evidence of payment introduced by defendant, you will find for the plaintiffs.” "We are not prepared to admit the proposition in this instruction, that the plea of payment admits the indebtedness of parties; on the contrary, it is expressly what it denies. The court, no doubt, intended to instruct that the plea of payment admitted the execution of the note and the original indebtedness. That part of the instruction given was erroneous, but taking it in connection with the latter part of the instruction and the testimony in the case, we do not think it was calculated to influence or mislead the jury; and where such is the case, we will not disturb the verdict. Wood v. Wylds, 11 Ark., 754; Ingram v. Marshall, 23 Ark., 115.

The instructions of the defendant, which the court refused to give, are: 1. “ The declaration and affidavits of probate are no evidence to the jury as to who compose the firm of M. Kaufman & Co.” 2. “ Before the jury can find for the plaintiffs in this case, they must find from the evidence that the firm of M. Kaufman & Co., the plaintiffs in this suit, are composed of the following persons, to wit: Louis Kaufman, Mark Kaufman and Cal. Hirsch.”

These instructions the court properly refused to give. There Avas no issue to which they could apply. The only issues, as Ave have have seen, were payment, and it was not necessary upon those issues for the plaintiffs to prove who composed the firm of M. Kaufman & Co. Our statute expressly declares that ■“in action brought by partners it shall not be necessary to prove the partnership unless the defendant shall, by his plea, deny that the plaintiffs are partners, or carry on business as described in the declaration, and no such plea shall be admitted, unless it be verified by affidavit.” Sec. 4, chap. 1, Digest of Ark.

It is further contended and assigned for error, that the judgment in this case is erroneous, because it is against the defendant de bonis propriis, when it should have been de bonis intestatoris. This proposition is certainly correct, if such is the fact.

At the June term, 1868, there were no opinions delivered by the OQurt.

Reporter.

The suit was instituted and progressed against the defendant in her representative character as administratrix. The caption of the trial and judgment entry is in the name of the plaintiffs, in their individual and partnership name of “ Louis Kaufman, Mark Kaufman and Cal. Hirsch, partners, as M. Kaufman & Co., against Frances A. Stone, administratrix of Jefferson Stone, deceased.” The judgment is, “ that the plaintiffs do have and recover of and from the said defendant” the sum found by the jury. The entry of judgment is not technically formal, or in accordance with the precedents ; but we think the whole entry sufficiently shows in what capacity the defendant was sued, and that the judgment was rendered against her in that capacity. Where the entry once shows who is defendant, the after recital in the words “ the said defendant ” relates back and has reference to such description.

If this rule is correct, and we think it is, the judgment in this case is rendered against Frances A. Stone, as administratrix of Jefferson Stone, in her representative character, and is correct, and there was no error in the judgment. 4 Mass., 520; 4 Wendell, 623; 4 Ark., 623.

Judgment affirmed.


source: Caselaw Access Project

author: Harrison, J.

license: Public Domain

text:
    Moody v. Hawkins.
    TJ sury. Where the action is upon a writing obligatory for the payment of money, and the plea sets up that it was agreed between the parties thereto that it should be paid in Confederate■ money, which, at the time the contract was made, was worth but twenty cents on the dollar. Meld, that the plea sets up a parol contract different in terms from that declared upon, and which presents no valid defense to the action.
    Plea op usury. The plea of usury must always aver the intention to take or reserve more than the legal rate of interest.
    Where the contract, by its terms, does not import usury, it must be proved that there was some corrupt agreement, device or shift to cover usury.
    The fact that a contract in terms payable in so many dollars, and drawing ten per cent, interest, was in fact agreed to be paid in Confederate money, which was greatly depreciated, is not alone sufficient to prove an intention to reserve more than the legal rate of interest.

      Appeal from Pulaski Circuit Court.

    Hon. Liberty Bartlett, Circuit Judge.

      Clark, Williams & Martin, for appellant.
    This case, so far from being the same as that presented in Roane v. Green $ Wilson, or Hastings v. White, is one in which the appellant bases his right to relief upon an act of the Legislature of Arkansas, which grew out of those very decisions ; which was designed, and, as we insist, did relieve parties bound by Confederate money contracts from the hardships imposed upon them by the then existing law, as declared in those cases.
    Conceding the correctness of those decisions, under the law as it then stood, such concession does not in the least militate against the appellant’s right to relief under the law as it existed at the time the decision was rendered in this cause in the court below.
    The act in question is impeached upon the sole ground that it “ impairs the obligation of a contract.”
    We think it is manifest beyond all question, that the act of March 5, 1867, does not, even in the most remote degree, affect the contract entered into between Moody and Hawkins.
    Stillwell & Wassell, for appellee.
    The only question presented by this record is, did the circuit court err in overruling the pleas ?
    The question involved, so far as it arises upon the first plea, has been fully settled. See Roane v. Green f Wilson, Ark., 9210.

    We can not determine what the second and third pleas are, or were intended to be. They are, to a certain extent, the same as the first plea; but the latter part seems to be intended as pleas of usury. In other words, the matters set up are, first, no consideration,or an insufficient consideration; second, that the contract was usurious. Two separate and distinct defenses, that, if properly pleaded, could not be presented by one flea.

      So far as the pleas seek to set up a want of consideration, and to lay a foundation for the introduction of parol testimony, they fall within the case of Soane v. Green Wilson.

      ■ As pleas of usury, they utterly fail to come up to the requirements of the law. No corrupt intent is alleged in either. 4 Ark., 44; McFarland v. The State Bank, 5 Ark., 195; Seed v. State Bank, ib., 193.
    Whether any contract is usurious or not, is not a question of fact to be left to a jury, but a conclusion of law drawn from the facts.
    If issue had been taken to these pleas, not only would the jury have to pass upon the testimony, but also the law of the case.
    Moody, doubtless, relies upon the act for the relief of persons bound by contract for the payment of Confederate money, Acts of 1866-7, 195, to sustain the first plea.
    Upon this subject we have but little to say further than that if the passing of this act by the Legislature was not an attempt to impair the obligation of contracts, we have never seen one.
   Harrison, J.

This is an action of debt by Jacob Hawkins against Francis H. Moody, on three writings obligatory, each payable one day after date, and bearing ten per cent, interest from date, until paid. The defendant filed three special pleas, to all of which the plaintiff demurred; The court sustained the demurrers and rendered jugdment for the plaintiff, and the defendant appealed.

The first plea, which is a special non estfactum, and extends to all the counts, to show that the instruments sued on are not the acts and deeds of the defendant, alleges that, when the writings obligatory were executed, the county of Pulaski, where the transactions took place, was held and occupied by the Confederate forces and Confederate States notes were and had been for a long time previously, in all business transactions, tlie customary, commonly recognized, and almost universal circulating medium in it; that the parties had reference in their execution to that fact, and intended that they should be paid in that currency, and that such notes were then worth, in United States currency, only about twenty cents on the dollar.

The demurrer to this plea- presents the same question decided by this court in the cases of Roane v. Green & Wilson, 24 Ark., 210, and Hastings v. White, ib., 269. In these cases the court held that the defense merely set up a parol contract, different in terms from that declared upon, and which, no matter how pleaded, could present no valid defense to the action; of the correctness of which decisions there can be no doubt.

The second plea is to the second count only, and is as follows : 44 And for a further plea in this behalf, said defendant, as to said second count, in said declaration contained, says actio non, because he says that said writings obligatory, therein mentioned, were executed to secure to said plaintiff the repayment to him of amount due for one thousand dollars in 4 Confederate money,’ or 4 Treasury notes of the Confederate States of America,’ at the nominal value represented on the face of said notes, thou loaned by him-to said defendant, (and said loan rvas the sole consideration for the same,) and that said notes were then greatly depreciated in value, and worth in gold or United States currency, only about twenty per centum of said nominal value thereof, and that said writings obligatory, according to the tenor and effect thereof, as set forth in said count, was founded upon a contract for the reservation of more than ten per centum interest for forbearance on said loan, contrary to the form of the statutes in such cases made and provided, and was corrupt, usurious and void.” And the third plea, which is to both the first and third counts, sets up the same defense, and is exactly similar to the above, except it states that the consideration of the writings obligatory, mentioned in these counts, were like sums of44 Confederate money,” found to be due the plaintiff upon settlement of accomrts between liim and the defendant. The demurrers to these pleavS may be considered as general.

The intention to take or reserve more than the legal rate of interest is an essential ingredient in all usurious contracts, and must always be averred in a plea of usury. Thompson & Rawles v. Real Estate Bank, 5 Ark., 59; McFarland v. The State Bank, 4 Ark., 44; McFarland v. The State Bank, ib., 410; Reed, et al., v. The Bank of the State, 5 Ark., 193.

Where the contract by its terms does not import usury, as by an express reservation of more than legal interest, and is ■on its face for legal interest only, “ it must,” as Judge Story remarked in the case of The Bank of the United States v. Waggoner, et al., 9 Pet., R., 378, “be proved that there was some corrupt agreement, or device, or shift, to cover usury; and that it was in full contemplation of the parties.” The writings obligatory declared upon do not reserve more than legal interest, and appear upon their face to be valid contracts. The defendant attempts to invalidate them by setting up in their stead other corrupt and illegal contracts. The fact that ■Confederate money was greatly depreciated, is not alone sufficient to prove an intention to reserve more than the legal rate of interest and the contracts, consequently, corrupt and void. The pleas contained no averment that the plaintiff knew of such depreciation, nor of any other ,fact conducing to show a corrupt agreement, device or shift to cover usury. • The Court of Appeals of Virginia, in the case of Brockenbrough's exrs. v. Spindle’s admrs., 17 Grat., 21, say: “A man must knowingly and intentionally commit the acts which constitute the usury, but the law presumes that he intended the necessary consequence of these acts and presumes, even, in opposition to the fact that he knew those acts were usurious and unlawful.” The allegation that more than the legal rate of interest was reserved may be true, yet, unless the plaintiff intended to do so, the contracts are not usurious, and the allegation that the contracts were “corrupt, usurious and. void,” is but a conclusion drawn from facts that do not support it. In Hill v. Montague, 2 Maule & Selwyn, 377, the defendant pleaded that the bond was executed in pursuance of a certain corrupt contract, made at a time and place sj)eciiied, between the plaintiff and defendant, by which there was reserved above the rate of £5 for the forbearance of £100 for a year, contrary to the statute, &c., upon a demurrer to the plea. The court held it bad for not setting forth particularly the corrupt contract and the usurious interest; and-BAYLEY, J., observed that he had “ always understood that the party who pleads a' contract must set it out, if he be a party to it.”

We are of opinion that the pleas contain no statement of such facts or circumstances as show a design or purpose to reserve more than the legal rate of interest, and that the demurrers were rightly sustained.

Judgment affirmed.


author: Gregg, J.

text:
    Johnson v. Walker, et al.

    Answer in chancery. The answer in chancery must he taken as true, unless the complainant has controverted it by sufficient proof.
    Rescinding contract. One who asks to rescind a contract must put, or offer to put, the other party in statu quo; or sufficiently excuse himself from such duty.
    Rights or vendor. One who purchases property with a full knowledge of all the surroundings, and of all the defects in the title, can not afterwards enjoin the collection of the purchase money.
    Contracts. Where a third party steps in and assumes the obligations of one of the parties to a contract of sale, he is as much hound by the contract as was the party for whom he is substituted, and the other original party to the contract has the same rights as against the substituted party that he had as against the party with whom he originally contracted.
    Costs or injunction. Upon the dissolution of an injunction restraining defendant from collecting notes given for the. purchase money on a contract of sale, the court should assess damages and award costs in favor of the defendant.

      Appeal from Crittenden 'Circuit Court.

    Hon. James M. Hanks, Circuit Judge.
    Pike, Garland & Nash, for appellant.
    The position assumed in this cause, by our associates, as to the title, under the deed of trust, to the trustee, and the consequent rights and liabilities as to all parties concerned, is well sustained by reason, and by authority. We beg leave to cite Hill on Trustees, 51,274,316 ; 2 milliard on Mortgages, 518,522; Kannady v. MeCoxon, 18 Ark., 166 ; Gilchrist v. Patterson, ib., 575; Fitzgerald v. Beebe, 7 Ark., (2 Fng.,) 319.
    Hpon the question touching the consideration of the notes, freeing of the negroes, &c., we beg leave to call the attention of the court to the opinion of the Supreme Court of Louisiana in Wainwright v. Bxidges, herewith presented, and also the argument of Mr. Sage, in the same court, in the ease of Austin v. Sandell. This question has been well argued already before this court in Smith, ad., v. Sevier, ad., at this term, and nothing more, we presume, is needed here. In this case, the court will bear in mind that it is a proceeding in equity, and the court must dispose of all the rights growing out of or connected with this transaction, and in giving equity to one, he will be required to do equity himself. Then, upon this old and familiar principle of equity, if Hodges conveyed nothing to Johnson, when he sold or pretended to sell him the negroes, he can not get any thing for them; and this is fully established and recognized by this court in Steele v. Bichardson, 24 Ark., 366. Indeed, the case of Steele v. Bichardson is decisive on this very point involved here, and upon it we feel satisfied to rest the case, so far as any recovery is sought for the price of the negroes.
    As for the lands agreed to be sold, Hodges must be prepared with his title to give to Johnson, and a good and valid title at that; nothing less will meet his contract, and the law 'will not compel Johnson to receive less. By this is meant a deed sufficient in form, and one that carries a title in fee. And, until he does this, he has no claim at all against Johnson. 2 Parsons Con., 168; Rawle on Con. for Title, 564 and notes; Whiter. Folijambe, 11 Vcsey, 337; 18 ib., 508; Warring v. Marknett, Forrest, 129; Yeates, et al., v. Prior, 6 Fng., 60; 22 Ark., 435. -
    The proof by Hodges of the conveyances, if properly pleaded, was defective; in truth he makes no proof at all, under the rules of practice. Whiting v. Peebe, 12 Ark., 427. Nnléss these papers were records, proving themselves, he should have proved them at the hearing, or by depositions. Walker v. Peay, 22 Ark., 103 ; 2 Daniel, Ch. Pr. 1024, et seg.

    Watkins & Rose and B. C. • Brown, for appellees.
    A vendee desiring to rescind must aver that he has returned, or offered to return, every thing received under the contract of sale, and must show that the parties can be placed in statu quo. Davis v. Tanoater, 15 Ark., 286; Bellows v. Cheek, 20 id., 424; Desha v. Robinson, 17 id., 228; Seaborn v. Sutherland, id., 603 ; Thrcadgill v. Pintard, 12 JEbio., 38 ; 1 Hilliard on Vendors, 228? 224, 338, 426, 424; 8 Paige, 600 ; 12 Barb., 641; 10 Ohio, 42; Campbell v. Hopkins, 15 Ark., 51 ;< Smith v. Robinson, 23 Ala., 312. • •
    , As Johnson bought Avitha knowledge of the defects of title, he can not enjoin the collection of the purchase money. Washington v. Card, 22 Ark., 277, 285; Walker v. Towns, 23 id., 147 ; I Hill Vend., 223; Hill v. Bush, 19 Ark., 522; Yeates v. Pryor, II Ark., 66.
    The substitution of Johnson for Walker Avas a novation of the contract, by Avhich the old debt was discharged. Bouvier’s L. D. Tit. Novation; 1 Pars. Con., 188; Burge on Suretyship, 168, 171, 172, 174. No loss in this case could fall on the trustee. Cornish v. Dews, 18 Ark., 172; Adams’ Fq., sec. 27; Chaplin v. Givens, Riley Ch. R., 26.
    ■ Where time has not been made a part of the contract, if the \Tendor can make title at the time of the decree, the vendee will be compelled to accept it. Hepburn v. Aultl, 5 Crunch, 262; Hepburn v. Douglas, 1 Wheat, 179 ; Hobson v. Bell, 2 Beav., 17; Townsend v. Champesdoron, 3 Young C., 505; 1 Hill Vend., 194, 195, 223; 21 Barb., 381; 5 Paige, 241; 8 Coto., 445; HUI on Mort, 708; Clarke v. Bell, 2 B.. M., 1; Yeates v. Prior, 11 Ark., 59.
    A mistake in the contract which does not affect the real interests of the parties affords no ground for rescission. Butler v. Miller, 15 B. M, 617; Miles v. Williams, 24 Tcnn., 135 ; 2 Hill Vend., 297; Bcaverly v. Dawson, 8 Munf, 317 ;1 Hill Vend., 317; Keyton v. Branford, 5 Leigh., 59 ; Long v. Israel, 9 id., 556.
    A mistake which the other party is willing to rectify is no ground for rescission. Beck v. Simmons, 7 Ala., 71.
    Damages should have been awarded on the dissolution of the. injunction. Blakcney v. Ferguson, 18 Ark., 354; 2 J. J. M., 443, 369;. 3 Dan. Chy., 1845, n. 2.
    The injunction should have never been granted.- 5 Hoto., (Miss.,) 542; 5 Leigh., 606; 2 Dana, 276; 5 Munf., 295; 7 Hoto., (Miss.,) 167; 1 Dana, 385; 5 Ala., 604; 1 Ham., 449.
    Costs in chancery should generally be decreed to the prevailing party. 3 Dan. Chy., 1520,1546; 3 S. C. R., 61.
   Gregg, J.

This srdt is by a bill brought by the complainant against the defendants, on the chancery side of the Crittenden circuit court, to rescind a contract, by complainant made with defendant, "Walker, for the purchase of certain lands, negro slaves, farming implements, crop, stock, &c., amounting in the aggregate to $83,000,-and for a return of part payment of the purchase money paid to Walker and Hodges, and for a cancellation of a deed of trust made by complainant to Swepston.

The bill alleges that through the solicitation, urgent persuasion and inff uence of defendant Ilodges, the complainant, on the 18th day of March, 1863, purchased of the defendant Walker,, twenty-eight negro slaves, estimated at $28,000, and section 16, and half of section 15, in township 7, north of range 8 east, and the growing crop, stock, farming implements, &c., then oh the land ; that of the purchase price, he paid $17,500 down to Walker; that Walker had previously purchased the same property from defendant Hodges, and, by agreement between all the parties, complainant was to pay Ii. a balance due from Walker to him amounting to $68,199Tyg-, and for which Hodges •held Walker’s notes, which were to be surrendered up to-Walker, and accordingly complainant executed to Hodges his obligation to-pay Walker seven promissory notes, amounting, in the aggregate, to the sum aforesaid, and H. alleging that said notes were not present to be at once surrendered, executed to Walker an acquittance or receipt against them, and ■complainant executed a deed of trust upon all the property so purchased to defendant Swepston, as trustee, to secure the payment to Hodges of the amount of said uotes. Complainant alleges a payment to Hodges of the two notes first due — the one for $8,328151/)0-, the other for $8,800 — and that he failed ' to meet the third installment when it fell due, and he alleges as an excuse therefor that he had discovered large incumbrances and liens upon section 16, and that neither Walker or Hodges ever had title to one-half of the lands sold him in section 15 ; that Hodges was a lawyer of eminent ability; that he was an old acquaintance of complainant’s, and had great influence over him, and that he, Hodges, willfully and fraudulently persuaded and induced complainant to make the trade with Walker — that he, complainant, might be substituted debtor in the place of Walker, and thereby make the debt more secure to the defendant Hodges, &c. Complainant also alleges that one Trezevant had a lien upon section 16 for about $10,000, which defendant Hodges had promised to extinguish, but had not done so, and that large sums for purchase money on said lairds were due from Hopkins to Trezevant, and from Scruggs to- Hopkins, and from Arnold to Scruggs, parties through whom the title had passed, as well as a large sum from' Hodges to Arnold, and that the same is an incumbrance on the title. He alleges that the misrepresentations of Hodges and Walker were fraudulent, and he asks that the contract he rescinded, the deed of trust canceled, and that the parties he restrained and enjoined from collecting the amount of the outstanding notes, and that he may have a return of the part consideration paid.

The complainant makes no offer to return any part of the property hy him received, or to account for such as may have been converted or lost, only by averring that the slaves were freed-, nor does he propose to set off the payments against the property, the title of which is not questioned, or to make any other equitable adjustment in reference to that part of the contract.

Hodges filed his answer and cross-bill. He admits the purchase, by the complainant, of Walker, of all the property alleged in the bill, except the east half of the west half of section 15 in township 7, n. r. 8 east, and avers .that there was a clerical error in the title bond, describing the lands in section 15 as the west half of that section, instead of the w. J of the w. | of section 15, &e., and alleges that the understanding, intention and agreement of all the parties was to include in the sale and purchase 800 acres only, and that that was composed of section 16 and the w. J of the w. J of section 15; that he drew up the title papers at the instance of the parties, and made that mistake in the description.

Hodges denies using persuasion or undue influence over the complainant to affect the trade, and avers that what he did was done at the instance of the' complainant; that he agreed to accept complainant as his debtor, and to release Walker. He admits the payment of $17,500 in Confederate money, by the complainant to Walker, and that complainant paid off two of the notes — one for $8,325and the other for $8;800 — the first in Confederate money at its nominal value, and that the other was paid, $500 in H. S. currency, and $8,300 in $17,000 of Confederate currency, which currency -was then worth only 12 cents on the dollar.

Hodges admits the appointment of defendant Swepston as trustee — the conveyance to him, &c., as alleged in the bill.

Swepston filed his answer, in which he, from information and belief, adopts the answer of defendant Hodges.

Walker also answered, admitting all the main facts alleged in the bill, only the description of the lands ; in that he alleges, as did his co-defendant Hodges, that but 800 acres were sold; that no more were offered or represented, and that the complainant well knew the fact, aiid that the lands sold were the w. -J- of the w. J of section 15 and section 16, all in t. 7,-r. 8, and the misdescription in title bond was the oversight or willful misconduct of his co-defendant Ilodges. He denies all fraud or misrepresentation, and charges that his co-defendant Hodges was the active man in the trading,.and that the complainant was to take the debt off of his hands; that he was to receive $17,500, and then step out and let the complainant step into his shoes.

Upon the presentation of the bill to the Chancellor, in the court below, an injunction was issued against defendants restraining the collection of the notes, &c. • Various motions and orders were made during the progress of the cause not material in its final determination.

Various depositions were taken — the bearing of which seemed most calculated to affect a motion to dissolve the injunction pending the suit, and do not contradict any of the most material features in the answers or moss-bill, only so far as defendant Hodges charged complainant with intent and preparation to remove, &ci, and with the use and conversion of some of the personal property; consequently, the main issues are left to be determined from the bill, cross-bill and answers.

The bill charges Hodges with superior knowledge of the titles; with a fraudulent concealment of facts; fraudulent misrepresentations and undue influence over complainant, and especially so in reference to the description of the lands and pending liens upon the lands. To all of which charges Hodges put in an emphatic denial, and avers he acted in the premises at the instance of the complainant, and fully communicated to him all the material facts he possessed in reference to the property ; denies that there were any liens upon the lands, only such as were made known to the - complainant at the time of his purchase, and avers that he has satisfied the demands and removed all liens that did exist, and exhibits receipts and title papers; to the authenticity and genuineness of which, the complainant, so far as appears of record, at the hearing, took no exception. lie avers that the title: bond did not correctly describe the lands in section fifteen, but by a clerical oversight, the same was misdescribed, as above stated; and in his cross-bill'calls upon the complainant to answer and say if it was not -the understanding and agreement that complainant in the purchase was to have only 800 acres, and that of section 16 and the west half of the west half of section 15; to which complainant replies he purchased but 800 acres, but denies knowing the amount in either section, or whether the surveys were full or fractional divisions. Not only by the answers and other papers in the cause does it appear that there Avas a misdescription, but the deposition of the only witness of the complainant, avIio testified as to knowledge, showed the same facts very clearly.

Then, so far as the main facts of the Avhole transaction are deA-eloped, the ansAvers of the defendants, Avherein they state facts contradicting the allegations in the bill, according to the well established rules of court, must be taken as true, unless the complainant had contradicted such ansAAmrs by sufficient proof, and that he has Avholly failed to do.

This being the state of the pleadings and evidence, was the complainant entitled to the relief sought? We think not. The Avhole drift of his bill is an attempt to make Hodges assume the responsibility of the loss of the slaves and accept a return of the lands, and that, Avithout saying any thing of the other property that he sold to defendant Walker in 1862. The legality and correctness of AAThich transaction is not complained of by Walker, nor is its fairness or legitimacy questioned by the complainant, further than his allegations charging, incumbrances of the title might be said to affect Hodges, and that, if an object, is l’emoved by Hodges’ showing of title.

Our court has, on more than one occasion, declared that he who would ask to rescind a contract and a return of a consideration, or part consideration paid, must offer' to return all he has received, or sufficiently excuse himself from such duty. In the case of Seaborn v. Sutherland, 17 Ark., 606, the court said: “ If a purchaser wishes to rescind a contract of sale he must put the vendor, or offer to put him, in the same situation he was in before the delivery of the property. See Bellows v. Cheek, 20 Ark., 424; Davis v. Tarwater, 15 Ark., 286, 290 and 293; also, Treadgill v. Pintard, 12 Howard, (U. S.,) 38; 23 Ala. R., 312; Moore, et al. v. Smedburgh, 8 Paige, 600. In this bill there is no offer to return or account for a large amount of personal property.

The complainant places much stress upon the allegation that the negroes-were freed-before his purchase. It is certainly not necessary to pass upon the question as to when slaves in Arkansas became free, in order to come to a correct conclusion in this cause. If there was a want of title at the date of Johnson’s purchase, it resulted from certain transactions and 'acts, with which, as appears by the record in the cause, complainant was as familiar and well advised as the defendants, and it seems to be well settled that one who purchases property with a full knowledge of all of the surroundings, “ with his own eyes,” or with a knowledge of the defects in the title, can not afterwards enjoin the collection of the purchase money. Worthington v. Card, 22 Ark., 285; Walker, et al., v. Towns Exrs., 23 Ark., 147; Hill v. Bush, 19 Ark., 528, and 11 Ark., 66.

All the facts in this case show nothing in the transaction between Hodges and Walker making Hodges liable for any fraud, failure of title or false warranty, and it seems to us Johnson can occupy no more favorable ground than defendant Walker would have done had he seen fit to complain. In this transaction Johnson came forward and substituted himself in the shoes of Walker. If the former contract between Hodges and Walker was valid, and the existing' obligations between them binding, we can not see wherein they could be less obligatory by another assuming to. fulfill. Walker’s part of the agreement, and we know no rules of equity that would require Hodges to lose the value of the property legally owned and fairly sold by him to Walker, if the title did afterwards fail without fault on his part, whether in the hands of Walker or Johnson.

We can not but hold between the three this was a revocation of the contract; so far as it had not already been carried into effect between Hodges and Walker, and Johnson, adopted and confirmed the purchase of Walker, and he is bound thereby. See 1 Parsons on Con., 188 and 191, and Burge on Suretyship, 168, 272, 273 and 274.

The question of the warranty made by Walker to Johnson has been settled by this court in the cases of Dorris v. Grace, 24 Ark., 326, and Milwee, ex parte, ib., 364, and Haskill, admr., v. Sevier, et. al., decided December term, ’67, of this court.

In the view we have taken, it is not necessary to pass upon the validity or worth of the Confederate notes passed between the pai’ties, as none of them complain of this part of the transaction.

The only complaint made by Hodges is that the court refused to assess damages in his favor upon the dissolution of the injunction, and for this alleged error'he appealed, and here assigns that, and the failure to decree costs to him, as error. Sec. 19 of chap. 88, Gould’s Digest, provides that upon the dissolution of an injunction, in whole or in part, if money has been enjoined, the court shall assess the damages at not less than six' nor more than ten per cent., and in other cases damages shall be assessed by a jury. See Blakeney v. Ferguson, 18 Ark., 354, and other reported cases of this court.

The court below erred in not assessing damages in Hodges’ favor upon the dissolution of the injunction and upon the amount of the two notes, the collection of which had been restrained, and also in not rendering a decree for costs, and so much of the decree as relates thereto is reversed.

The damages of the said defendant Hodges, sustained by the injunction arc assessed by this court at one thousand two hundred and five dollars and forty cents, and costs are awarded against said complainant.

It is by this court decreed that the complainant, Madison J. Johnson, pay to the defendant, Asa Hodges, twelve hundred and five dollars and forty cents, and to all the defendants herein all their costs in this court and in the court below expended, and that the decree in this cause in the Crittenden county circuit court in chancery, be, and the same is, in all other things affirmed, and ordered to be carried into effect.


text:
    The State v. Cheek.
    Criminal haw. No person can, for the same offense, he twice put in jeopardy of life or limb.
    One who lias not been put on his trial on the merits in a court of competent jurisdiction lias not legally been put in jeopardy.
    If the circuit court erred in any ruling, a judgment made at the instance of the defendant, before a trial was reached, the case may be remanded for further proceedings.

      General Order Nor 3, Headquarters Department of Arkansas, series of 1866, in terms protecting- from prosecution in the State court all officers and soldiers of the armies of the United States charged with offenses for acts done in their military capacity, or pursuant to orders from proper military authority, was declaratory of the law, and was not intended to change the law.
    But where a grand jury has presented an indictment, though contrary to law, and in violation of said order, the court can legitimately arrive at the fact only by a trial; and in such a case the court could not on an lx-parte showing discharge a prisoner regularly indicted.
    Where the transcript presented in the Supreme Court fails to show the impaneling of the jury, and the presenting of the indictment by the grand jury, and the circuit clerk certifies that the transcript “is a full and complete transcript of the record, and iiroceedings in the case,” it does not appear that there was a prosecution legally pending in the circuit court; and that court could not have rendered judgment upon such record ; and that court committed no error in dismissing the case, even on an ex parte showing-.

      Appeal from Johnson Circuit Court.

    Hon. Thomas Boles, Circuit Judge.
    Jordan, Attorney General, for appellant.
   Gregg, J.

Tliis was a prosecution, commenced by indictment, for murder, at the fall term, 1865, of the Johnson county circuit court.

At the April term, 1866, the defendant appeared and filed his motion to be dismissed from 'prosecution, as he' alleged, because he came within the provision of General Order No. 8, Headquarters Department of Arkansas., series of 1866, &c. The motion was not verified by affidavit. ' The attorney for the State moved the court to strike the defendant’s motion from the files, but the court refused to do so, and allowed the defendant to introduce witnesses to establish the truth of the allegations in his motion. Upon hearing the testimony, which tended very clearly to show that, at the time of the alleged murder, the defendant was a soldier in the second regiment Arkansas infantry volunteers U. S. army, and that he was acting in obedience to the orders of his superior officers, and upon such proof or statements being made, the court ordered the defendant to be discharged, and adjudged that he go hence, without day, &c.,to which ruling of the court, in refusing to srilce defendants’ motion from the files, in hearing proof thereon, and adjudging that the defendant go hence, the attorney for the State excepted, tendered his bill of exceptions, containing the evidence, and appealed to this court.

It is well settled, under our Constitution, that a man can not be twice put in jeopardy of life or limb for the same offense ; Stewart v. The State, 13 Ark., 721; Hand v. State, 6 Ark., 165, and 22 Ark., 331; but one who has not been put upon his trial, upon the merits, before a legal' court of competent jurisdiction, has not legally been put in jeopardy. Dunn v. The State, 2 Ark., 230; Brumley v. State, 20 Ark., 18. Therefore, if the circuit court erred in any judgment or ruling, made at the.instance of the defendant, before a trial was reached upon the merits,'he can not be heard to complain if such error is corrected and the case remanded for further proceedings.

The military order referred to, was issued while this State was undergoing reconstruction. Active rebellion had ceased, a provisional government established, but the State not fully restored to her former relations with the General Government. To afford the soldier and citizen, who had given aid in putting down the' rebellion, protection from their late enemies, whose bitterness, was likely to carry them beyond just grounds in seeking redress for supposed injuries at. the hands of those whose duty, during the conflict of arms, had brought them in contact with rebels or their property. The military authorh •ties of the United States ordered that division and department commanders^ whose commands, in whole or in part, embraced late rebel territory, and who had not previously done so, issue orders -“.protecting from prosecution or suit .in the State, or municipal courts of such States, all officers and soldiers of the armies of the United States, and all persons thereto attached, or in anywise thereto belonging, subject to military authority, charged with offenses for acts done in their military capacity, or pursuant to orders from proper'military authority,” &c., &c. This order certainly was not intended to change the law or to abolish what were high offenses by the law, but it was declaratory of the law, and doubtless was issued to call the attention .of civil magistrates, grand jurors, and others, as well as the military, to the rights legitimately belonging to those who had aided in putting clown the rebellion and restoring the country to peace. The number of oversights or willful perversions of the law, within a short experience, showed the necessity of px-ecautionary measures, and the practical good judgment of the xxxilitary commander in thus exxxxxxciating those principles of soxxnd law.

But ixx cases where grand jxxrors, in the discharge of thpir duties, have preferred and filed indictments, though contrary to law, and to the provisions of the above order, there is but one legitimate mode for the court to arrive at the facts, and that is by a trial, and in our opinion the court could not, upon an ex parta showing, legally discharge a prisoner regularly indicted. See Salliers v. Bevins, 24 Ark., 233.

. Section 240, chapter 52, page 427, (Jould’s Nig., declares, “that no assignment of errors, or joinder therein, shall he necessary upon an appeal in criminal eases, but the court shall proceed, on the return thereof, without delay, to render judgment upon the record before them.”

In this case, the record, by tlie prosecuting officer-presented here, shows no impaneling of a grand jury, or return of an indictment into court by a grand jury, and if the transcript here presented is “ a full and complete transcript of the records and proceedings in the case of the State of Arkansas v. James Cheek, indictment for murder,” as the clerk of that court certifies, then there was no prosecution legally pending in the court below, and, although not set up as a cause in defendant’s motion, that court could not, under any circumstances, have rendered judgment upon such record against the defendant, and if no judgment could have .been pronounced, there was no error in dismissing the ease.

Let the judgment be affirmed.


author: IIarrison, J.

text:
    Tatum, et al., v. Kelley.

      Contracts — void when -in aid, of rebellion. Contracta which contravene the law are void; and courts will never lend tlieir aid to enforce them.
    "Where the intention of one of the parties is to enable the other to violate the law, the contract is void.

      The rule that mere knowledge by the seller of the buyer’s intention to use the goods purchased for an’ unlawful purpose, does not invalidate the contract, does not apply to a case where the contract is so connected with an illegal transaction or purpose as to he inseparable from it.
    Where the payee of a note, sold in consideration thereof guns, which he knew would he used in aid of the rebellion against the Government, he concurred with and actively promoted the treasonable purpose of the buyer.
    Promissory notes — assignment—pleading. The maker of a note is not, by an assignment, deprived of any defense which he had as against the assignor previous to the assignment.
    In the plea of the maker of a note, the averment that the plaintiff, who is assignee thereof, had notice at the time of the assignment of the illegality of the consideration, is surplusage.

      Appeal from Union Circuit Court.

    Hon. John T. Bearden, Circuit Judge.
    Cakleton, Garland & Nash, for appellants.
   IIarrison, J.

This is an action on a promissory note for one thousand dollars, made by defendants to F, L. Gilbko, dated July 11, 1861, and payable’ on the 1st day of March, thereafter, indorsed to I. F. J. Spach, and by him to the plaintiff.

The defendants, besides the general issue, pleaded, first, that the consideration of the note were guns, purchased from the payee by the defendants, to arm men to wage war against' the United States, in the rebellion, which intention and purpose, were well known to the payee at the time of the sale; secondly,} in addition to the above averments, the plaintiff' knew said facts at the time when the note was assigned to him.

Demurrers were sustained to these pleas; a trial upon the plea of- general'issuo, and a verdict and judgment for the plain-' tiff. The defendants complained here that the court erred in sustaining the demurrers.

No principle is better settled than that contracts that contravene the law are void, and that courts will never lend their aid in enforcing them. Illegal contracts are not such only as stipulate for something that is unlawful; but, where the intention of one of the parties is to enable the other to violate the law, the contract is corrupted by such illegal intention, and is void. Pratt v. Adams, 7 Paige, 615; The Branch Bank at Montgomery v. Crocheron, et al., 5 Ala., 250; Beach v. Kezar, 1 New Hamp., 184; Steele v. Curle, 4 Dana, 381; Armstrong v. Toler, 11 Wheat., 258; Giraday v. Richardson, 1 Esp., 13; Langton v. Hughes, 1 Maule & Selwgn, 593; Lightfoot, et al., v. Tenant, 1 Bos. & Pull., 551; Farmer v. Russell, et al., 1 Bos. & Pull., 295.

We are aware that there are cases in which it is hold that mere knowledge by the seller of the buyer’s intention to use the goods purchased for an unlawful purpose does not invalidate the contract. Wo have no inclination to question the correctness of these decisions, or of the rule declared by them, but it can have no application where the contract is so connected with an illegal transaction or purpose as to be inseparable from it.

In Lightfoot, et al., v. Tenant, referred to above, Chief Justice Eyre said: “Upon the principles of the common law, the consideration of every valid contract must be meritorious. The sale and delivery of goods, nay, the agreement to sell and deliver goods, is, prima facie, a meritorious consideration to support a contract for the price. But the man who sold arsenic to one whom he knew intended to poison his wife with it, would ¡not be allowed to maintain an action upon his contract. The consideration of the contract, in itself good, is there tainted with turpitude, which destroys the whole merit of it.”

We do not know that it is possible to find a rule by which to determine when a party, with knowledge of the other’s illegal purpose, “may be,” to use the language of Chief J ustice Robertson, in Steele v. Curle, “ neutral without being guilty of incivism, or of-any intentional participation in the unlawful design;” but, for the decision of this case, more is, required. By selling the guns, with knowledge of the use for which they were intended, the payee of the note concurred with and actively promoted the unlawful and treasonable purpose of the defendants.

The maker of a note is not, by the assignment, deprived of any defense which he had against the assignor previous to the assignment. See. 3, chap. 15, Digest; and see Smith v. Copers, 13 Ark.; Robinson v. Swigart, ib., 71; Walker, ad., et al., v. Johnson, et al., ib., 522. The averment of notice to the plaintiff, at the time of the assignment to him, of the illegality of the consideration, in the third plea, was, therefore, mere surplusage.

The court erred in sustaining the plaintiff’s demurrers. The judgment is therefore reversed, and the cause remanded.


author: WlLSHIRE, C. J.

text:
    McKnight v. Strong, ad.

      Practice — setting aside judgment. The only motions affecting a judgment, duly rendered, authorized by our statute, are motions in arrest of judg-j ment, for a new trial, and to set aside a judgment.
    Tt was too late, at the September term, 18GG, to move to set aside a judg ment rendered at a preceding term.
    . When judgment becomes final. A judgment, at the close of the term at which it was rendered, becomes final, and passes beyond the control] of the court.
    Amendment of record: It is now well settled that the circuit courts o, this State have poiocr to amend their records in accordance with the facts.
    In this case the circuit court had power to allow an amendment of tlr sheriff’s return to a writ of attachment, upon the affidavit of the sheriff.

      Appeal from Calhoun Circuit Court.

    Hon. John T. Bearden, Circuit Judge.
    J. II. Askew, for appellant.
   WlLSHIRE, C. J.

This was an actiou of assumpsit, by attachment, by Strong against McKnight, brought to the March term, 1866, of the Calhoun circuit court.

At that term of the circuit court,, judgment, by default, was rendered against McKnight, and damages assessed by the court for the plaintiff at $8,748^^. On the 3d day of September following, execution was issued by the clerk, directed to the sheriff, &c., by virtue of which the sheriff levied upon certain real estate belonging to the defendant McKnight. And on the 19th day of the same month, McKnight applied by petition, after notice to the plaintiff Strong, to the judge of the circuit court, for an order of sv/persedecis staying the execution, and praying that, at the hearing, the execution and judgment be quashed and held for naught, upon the ground, as alleged in the petition, that the judgment had been rendered without any notice to the defendant McKnight; that the writ of attachment had not been served upon him, or levied upon his property. The circuit judge made the order in vacation, and directed the clerk to docket the case for hearing at the next term of the court.

At the next term of the court the plaintiff’, Strong, moved the court for leave to the sheriff to amend the writ of attachment, by showing how he had executed it, (it appearing by the record that he had not indorsed the manner in which he had executed it, when returned into court). Strong accompanied his motion with the affidavit of the sheriff, stating that he had served the writ by reading the same to the defendant McKnight, in his presence and hearing, and by attaching certain personal property as the property of the defendant McKnight.

The defendant McKnight, on the same day of the court, moved the court to quash the execution and judgment, upon the ground that the judgment was rendered at the last preceding term of the court, without notice to him, &c.

The circuit court, upon hearing the motions of both plaintiff* and defendant, quashed the execution, and granted leave to* the sheriff to amend his return of the writ of attachment in accordance with the facts. To which decision of the circuit court the defendant excepted and appealed to this court, and assigns as error the following:

* 1. “ That the court erred in overruling the appellant’s motion to quash the supposed judgment in favor of the appellee.

2. “ In permitting the sheriff to make the return stated in the transcript, and making it a part of the record.

3. “In not quashing said judgment, and holding the same for naught.” ■

The first and third assignments of error present the same question, and w'e will consider that first. The statute, regulating the practice of law in circuit courts, says: “ That no-judgment shall be set aside in any of the courts of this State, on motion, unless such motion shall be made within four days after the rendition of such judgment, if the court so long continue ; if not, then before the end of the term. ' The motion of the appellant to quash the judgment, we look upon as a motion to set aside the judgment. The only motions affecting a judgment duly recorded, authorized by our statute, are motions in arrest of judgment, for a new trial, and to set aside a judgment, and must be made as prescribed by the statute. We think that it was too late for the appellant to move the court, at the September term, 1866, to set aside a judgment rendered at a preceding term. It has been repeatedly held by this court that at the close of the term of the court at which the judgment is rendered, it becomes final, and passes beyond the control .of. the court. Smith v. Dudley, 2 Ark., 66; Walker, et al., v. Jefferson, 5 Ark., 25; Ashley v. Hyde & Goodrich, 1 Eng., 103.

As to the second error assigned, which presents the only remaining question, wo think that the power of circuit courts in this State to allow their records to be amended in accordance with the facts, so as to make them speak the truth, has been well and correctly settled by this court in the caseB of King & Houston v. State Bank, 4 Eng., 185; Arrington, v. Conrey, et al., 17 Ark., 100; Alexander v. Stewart, 23 Ark., 18; and Brown v. Hill, 5 Ark., 78. The motion of the appellee for leave to the sheriff to amend, was accompanied by the affidavit of the sheriff showing that the writ of attachment had been served upon the appellant, by reading the same to him, in his presence and hearing; also by the sheriff' attaching certain personal property, as the property of the appellant, more than thirty days before the March term, 1866, of the circuit court. We think the amendment by the sheriff, of his return of the writ, was necessary to make the record of the court below speak the whole truth; and the circuit court., by the exercise of its inherent power, in allowing the amendment to he made in accordance with the fact, did not err. In the record and proceedings of the court below we fend no error, and the judgment is, in all things, affirmed.


text:
    Burton v. Brooks.
    Vembication ob plea. Aii affidavit that the facts set forth in the plea, “upon the information of the defendant are substantially true,” is an insufficient verification of a plea.
    Evidence. Where parties stipulate that an agreed statement of what an absent witness would testify to, if present, may be read to a jury, this statement goes to the jury as testimony simply, and not as an absolute admission, ■
    Petition in debt. In petition in debt on a note, the petition need not aver that the note was stamped. No averment is required in the petition except a copy of the note.
    The fact that the note upon which suit isbrought was stamped at an improper lime is no cause for arresting the judgment.
    Petition in debt can be sustained only in cases for the direct payment of money.

    A note payable in “ greenback currency” must he construed as payable in United States currency or legal tender notes, and not in issues of the national banks; and is of the same validity as if the term dollars alone bad been used.

      Appeal from Craighead Circuit Court.

    Hon. L. L. Mack, Circuit Judge.
    'Watkins & Rose, for appellant.
   Gregg, J.

In this case the plaintiff below, in the Craighead circuit court, brought a suit of debt by petition against the appellant, on an instrument, as follows, to wit:

“ $159. Craighead county, Ark., April 8,1865.

“For value received, due A. T. Brooks one hundred and fifty-nine dollars, to be paid in greenback currency, to bear interest at the rate of ten per cent, per annum.

“A. B. BURTON.”

At the return term the defendant appeared and interposed his demurrer, in short, to the plaintiff’s petition. The court overruled the demurrer, and the defendant then craved oyer, and filed four pleas. • The first alleging in general terms that there never was any legal consideration.

2d. That the note was obtained by fraud and misrepresentation, but avers no facts showing the fraud, &c.

The 3d plea alleges that the note was obtained by menaces, threats and duress.

The 4th plea alleges that the note was not stamped, as required by the act of the United States Congress, to which the defendant appended his affidavit that the facts set forth in the pleas “ upon the information of this defendant are substantially true, and further he saith notwhich was certainly an insufficient verification of the pleas; but the plaintiff below saw fit to pass over that, as well as the imperfections in the pleas, and filed his general replication to the pleas, and upon issues thereto made up, the parties went to trial before a jury, and a verdict for $159 debt, and $15^^. damages, was found for the plaintiff, and judgment was rendered according to the finding.

The defendant filed his motion for a new trial, which was overruled, and he excepted. He then filed his motion in arrest of judgment, which was also overruled, and he excepted, and prayed an appeal to this court.

The bill of exceptions shows that the defendant excepted to the opinions and ruling of the court, in allowing the note to be read in evidence; but, so far as we can determine from the transcript, the note may have been properly stamped, and it was in no way at variance with the instrument set out in the petition, and was properly admitted, and the evidence was amply sufficient to sustain the verdict of the jury.

Appellant’s counsel here insist that the admission in the record, “that his,” appellant’s, “witness, Gatton, would, if present, state that, when the note was given, appellant was influenced to execute the same by menaces and threats of plaintiff, and others acting in concert with him,” and the agreement of the parties that the jury should consider the proof as if Gatton was swearing to the same, should be taken and considered by the court as an absolute admission of the facts proposed to be proved by Gatton. This court holds that under our practice, and the statute regulating continuances, if an application is made for a continuance, setting out what the applicant expects to prove by an absent witness, the opposing party can not force such applicant to a trial without admitting such statement of the witness’ testimony to be absolutely true. But we know of no legal rule prohibiting the parties from agreeing that a certain statement might go before the jury as testimony, and not as admitted facts ; hence there was no error in overruling the motion for a new' trial.

The motion in arrest of judgment, assigns as causes: First, “that the petition does not aver that the note was stamped.” Such averment was not necessary. The statute prescribes the form of the petition. Gould’s Dig., p. 130; see Rawlings v. Patty, et al., &c., 23 Ark., 204. No averments other than the copy were necessary.

Secondly. “ That the note was stamped at an improper time.” This is no cause for arresting the judgment.

Thirdly. “ That the note was not for the direct payment of money;” and upon this the counsel chiefly relied in this court.

It has been held, repeatedly, by this court, that petition in .debt can be sustained only in cases for the direct payment of money. Mitchell v. Walker, 4 Ark., 145; Blevins v. Blevins, ib., 441; Hawkins v. Watkins, 5 Ark., 488. But this brings us to the inquiry, whether or not this is such note or instrument in writing. This court held, in the case of Wilburn v. Greene, 6 Ark., 255, tha;t a note payable in Arkansas money was payable in cash or current funds; and in Graham v. Adams, 5 Ark., 261, that a note for good current money,of this State was payable in specie.

In the case before the court, the note is .payable in greenback, currency. Had the words “greenback currency” been left out, it would be sufficiently clear that the parties intended that it should be satisfied in legal tender notes or spiecie — such being the established currency of the country. Greenback money or currency, is not defined by law, and if we refer to the common use of the term “ greenbacks,” we find it applied to the issues of currency circulated by. the Grovei’nment during the late rebellion.

By acts. of Congress of July 17, and August 5, 1861, see Session Acts, p. 261 and 313, and of Feb. 12 and Feb. 25, 1862, Session Acts,p. 338 and 345, the Secretary of the Treasury was .authorized to issue, oxx the credit of the United States, $160,000,000, and, fronx the stamp of the paper upoxi which these notes were issxxed, they were sooix popularly kxxown as greenback currency, and they were legal tender notes, receivable in payment of private as well as most public dxxes. Then we can not hold, as insisted by counsel, that gx’eenback currency means issues of the national baxxks, which banks wore created by acts of Congress of February 25,1863, sessioxx acts of 1862 aixd 1863, page 565, and 3d of June, 1864; session acts of 1863 and 1864, page 99, subseqxxent to the time “greenback curreney” was in circulation. In this view of the case, a note made payable in greenback currency, means the same as if payable in United States currency, or legal tender notes, and is of the same validity as if the_term “ dollars ” alone had been used. Therefore, we are of opinion that the circuit court did not err in refusing to arrest the judgment, and the judgment of that court is in all things affirmed with costs.

Chief Justice 'Wilshire being disqualified, did not sit in this ease. Hon. W. Story, special Chief Justice.


text:
    Leake & Harvey, ads., v. Sutherland.
    Probate court — -pleading. Under our practice it is legitimate in the prohate as well as in the justices’ courts, for a defendant to appear, and, without any written or formal pleading, rely upon any meritorious defense.
    Where the defendant sued in the probate court for money received in a fiduciary capacity, omits to plead formally, and the transcript therefore fails to show the exact ground taken by him, there arises a strong presumption that he set up all lawful defenses.
    Administration of estates — waiver of presentation of claims. Where an administrator, sued in the probate court, appears, and contests the claim, he waives the objection of want of prior presentation to him for allowance of the claim sued on.
    Law of agency — agents’ scope of authority — hispower to receive Confederate ímoney — time to account — his right and liabilities.

    The presumption is that the agent acts within the scope of his authority.

    Where the evidence tends to show that an agent, appointed to hire, lease and sell property, receives Confederate money therefor, it is presumed, in the absence of proof on that point, that his principal authorized him to receive it.
    If the principal authorizes the agent to receive Confederate money, no legal responsibility attaches to the agent for so doing.
    The agent is not bound to account to the principal until the time fixed by the terms of the agency, or a demand by the principal. In such a case the commencement of the suit is a sufficient demand.
    If the agent derives from the principal’s property entrusted to him, any personal benefit, by use, sale or otherwise, he and his -legal representatives are liable for the amount so received.

      Appeal from Ouachita Circuit Court.

    Hon. John T. He-arden, Circuit Judge.
    ' English & Wilshire, for appellants.
   Gregg, J.

This suit is founded upon a claim brought by the appellee against the appellants, in the probate court of Ouachita county, upon an account of $1,575, alleged to be'due for money, by appellants’ intestate, had and received.

Appellee alleges that deceased was her agent from ’61 to ’65, and, as such, received the money for servant hire, house rent, and property sold.

The claim was duly verified by affidavit, but the record show’s no presentment of the claim to the administrators for allowance ; but on the 10th of November, ’66, the same was presented to the probate court. Both parties’ appeared.and went to trial. Upon hearing the testimony, the court found for the appellee $975, that being the sum alleged to have been received' for the piano, the furniture sold, and part of the house rent and negro hire. The appellants excepted to the finding, tendered their bill of exceptions, containing -all the evidence, and appealed to the circuit court. Upon the presentation of the record and proceedings in that court, the judgment of the probate court was affirmed, and appellants appealed to this court, and here assign as error that the circuit court refused to try the cause de novo, and affirmed the judgment, when that court should have granted such new trial.

Under our practice it is legitimate, in the probate as well as justices’ courts, for a defendant to appear, and, without any formal or written pleading, rely upon any and all meritorious grounds of defense. In this instance the defendants saw fit to avail themselves of this liberal practice; hence the court is not fully advised of the exact grounds occupied by them in the court below, but, as they acted in a fiduciary capacity, the strongest reason exists to presume they set up all lawful defenses.

The first ground here assumed by appellants’ counsel is, that the record does not show that the claim was ever presented to the administrators for allowance before proceedings were commenced in the probate court. There is nothing in this objection. The defendants appeared and contested the claim, and thereby the Avant of presentation, like the Avant of notice, Avas by them waived. Madden, admr., v. The State Bank, 13 Ark., 276.

The evidence is all brought upon the record by bill of exceptions. It is insisted the finding of the probate court Avas not supported thereby.

The Avitness, Joseph J. Sutherland, testified that the deceased Avas the agent of the appellee in 1861-’2,-’8 and ’4 ; that he, deceased, “ sold the piano, charged in said bill of items, and he received the money, Avhich Avas Confederate money,” without stating Iioav much money. Possibly the court can be sustained in finding upon that proof the $400 charged in the bill of items, upon the ground that the Avitness spoke of the piano charged and the money, referring to the account.

The next item of $100, for furniture sold, the court found fully proved upon the Avitness’ statement that the deceased, sold said furniture and received some money for it, but don’t know Iioav much it sold for, or Avhat he received, but received all that it sold for.” This proof, Avhich Avas the only testimony bearing upon this point, Avas certainly insufficient to support the finding of $100 alloAved by the court, and this alone was sufficient for the circuit court to have awarded a trial de novo. As to the other items found by the court in favor of the claimant, the testimony tended to sIioav that the deceased had received in Confederate currency the amounts so found.

The evidence shoAA'S the deceased to ha-vo been the agent of the appellee in 1861-’2-’3 and ’4, but for what purpose, and to what extent that agency went, we are left to infer. If he was an agent, and performed acts, the legal presumption is, ho acted within the scope of his authority; and therefore, in this case, was, by his principal, authorized to hire, lease and sell the property for the pretended currency shown to have been received by him.

An agent can derive no benefit from profits properly belonging to his principal; ami, on the other hand, ho is entitled to be indemnified against all losses, innocently sustained by him on his principal’s account. Story’s Agency, secs. 339 and 340.

If the principal directed or authorized him to sell her property for such currency, no legal responsibility could attach to .him for so doing, and he was not, by the laws governing principal and agent, bound to account to her until a time fixed by the stipulations of his agency, or a demand made by the principal, neither of which events happened, so far as we can learn from the record, until the commencement of this suit, (that was, in effect, a demand). See Taylor v. Spears, 6 Ark., 381, and Warren v. Bridges, ib., 385.

If the deceased derived any personal benefit from appellee’s property, by use, sale, or otherwise, he or his legal representatives are liable for the amount so received.

If the deceased, as agent, was authorized by the appellee to receive for her what purported to be Confederate States notes, an attempted currency, contrary to public policy put in circulation, though it may have had a purchasing force or conventional value in certain localities, she can not wait until such currency became utterly worthless every where and then hold her agent or his legal representatives bound for the nominal value of such notes.

The judgment of the Ouachita circuit court is reversed, and this cause remanded.

Chief Justice Wilshire, being disqualified, did not sit in the case. .

Hon. William Story, special Chief Justice.


text:
    Jackson v. Hill, et al.

    Married women — separate property. Property belonging to the wile at the time of the marriage is not within the provisions of chapter III., of Gould’s Digest, entitled “Married Women.” Filing a schedule of such property in the recorder’s office can not affect the rights of the husband in respect to it.
    All the wife’s personal property, in her i>ossession at the time of her marriage, vests absolutely in the husband.
    A court of equity will interfere to decree the wife a reasonable provision, out of her separate property only when the husband asks the aid of the court to enable him to obtain possession of the wife’s property, or where the property, not having come into his possession, is within the reach of the court.

      Appeal from Ouachita Circuit Court.

    Hon. John T. Bearden, Circuit- Judge.
    J. II. Carretón, for appellant.

      ~W. W. Leake, for appellee*.
   Harrison, J.

The appellant alleges in lier bill that at the time of her marriage with the defendant, William L. Jackson, she owned and possessed certain personal property, among which was a stock of cattle, hogs and sheep; that in a few days after her marriage she filed a schedule thereof, in the recorder’s office of Ouachita county, where she resided; that afterwards her husband, to secure to the defendant, Tyra Hill, the payment of a note for four hundred dollars, executed to the defendant, Robert E. Sallie, a deed, by which he bargained and sold to him certain cattle, hogs and sheep, a part or the increase of those contained in the schedule, in trust, should default be made in the payment of the note at maturity, to take the said property into possession, and after giving ten days’ notice, to sell the same at auction, for cash, and with the proceeds pay off and discharge the note; that default being made in the payment of the note, Sallio had taken possession of the property, and was proceeding to advertise and sell it. She claims the same as her sole and separate property, and denies that her husband had any right to sell or incumber it, and prays that the deed be canceled; that the property mentioned in the schedule, with its increase, be settled upon her, for her support and maintenance, and for injunction against the sale, &c.

The defendant filed a demurrer for want of equity in the bill, which, upon argument, -was allowed, and the bill dismissed.

Property belonging to the wife at the time of the marriage is not within the provisions of chapter III., of the Digest, entitled “Married 'Women,” and filing a schedule of it can not affect the rights of the husband in respect to it. Upon her marriage, all the complainant’s personal property, in her possession, vested absolutely in her husband. See Ferguson & Neil v. Moore and wife, 19 Ark., 379.

The court correctly refused to settle the property in controversy upon the complainant. It is only where the husband asks the aid of a court of chancery to enable him to obtain possession of his wife’s property, or where, not having come into possession, it is within the reach of the court, that it will interpose to decree her a reasonable provision out of it.

The decree is affirmed.


author: Bowen, J.

text:
    Kerr v. Birnie.

      Fraud — onus probandi. When a deed is assailed for fraud, the onus is on tlie party attacking.
    Where B., sr., deeds land to his son, B., jr., October 30, 1858, and remains in possession until April 28,1863, and at the latter date deeds the land to Mrs. K., the onus of proving fraud is changed, and of showing the actual payment of tire consideration.
    Evidence of fraud. The allegation that B., jr., was grantee in his father’s fraudulent deed, and that the consideration named was not in fact paid, sufficiently charges him with being party to the fraud to admit the evidence on tliat point.
    Registry of deed. Constructice notice, such as the registry of a deed, is ample for the purpose of settling questions of priority between bona fide grantees, but is not sufficient to charge the last purchaser with being, even constructively, a party to the fraud intended by the grantor and the first purchaser.

      Fraud — actual notice to subsequent grantee. If Mrs. K. had actual notice when she purchased, of the deed to B., jr., she would have been i>ut on inquiry, and would, before she purchased, necessarily have known why the deed to B., jr., was executed; and would then have been a party to the fraud, and would not have been entitled to the’benefit of the statute protecting innocent purchasers.
    Executed contract. Where the contract is an executed one, it is well settled that the court will not inquire into the legality of the consideration.
    If the grantor in a deed not delivered causes the same to be recorded, this is a sufficient delivery to enable the grantee to hold the land as against the grantor.

      Appeal from Sebastian Circuit Court.

    lion. E. J'. ¡¿earle, Circuit Judge.
    DuVal & Kin», for appellant.'
    Tlie bill alleges that in April, A. I). 1863, Charles A. Birnie, |si\, and his wife, the father and mother of the defendants, [wore residing in the house upon the lots mentioned in the hill, and the defendant,. Charles A., jr., and his wife, were also residing with them, as a part of their family. That on the 28d day of that month the said Charles A., sr., sold to the complainants the property, and executed to them a deed, for the sum of five thousand seven hundred and fifty dollars, in which the wife joined, and Henry C. Birnie, one of the defendants, and also a son of the grantor, was a witness. That Margaret, wife of the younger Charles, was present when the deed was executed, and knew all about the sale. That, after the sale, the younger Charles was at home, and i*emained until about the first of September, A. I). 1868, when both families moved out of the house into a house on an adjoining lot, belonging to I)r. Spring.
    That, in 1865, defendant Charles A., jr., called on complainant Maria, and demanded possession of the premises, claiming them under a deed executed to him by his father, in 1858, which was refused. He afterwards instituted suit in ejectment, obtained judgment, &e.
    The hill was filed to cancel the deed executed by the older to the younger Birnie, because it was fraudulent and voluntary, and enjoined the judgment. Defendants, Charles A. and Margaret, answered the bill, claiming to bo entitled to the premises under the deed of 1856. Charles admits that he was at home in 1863, after the date of complainants’ deed, hut denies that he had any knowledge of the sale. His wife says he -was so sick that she concealed the fact from him. Denies that his father had any right to sell the property.
    Defendant Margaret, admits that she was present when the deed to complainants was executed; that she and her mother-in-law did all in their power to prevent the elder Charles from! executing it. Admits that she afterwards tried to rent the! premises from the .complainant, Maria.
    Defendant Charles A., jr., admits that at the date of the] deed to him from Ms father, that the latter was involved ii litigation, as alleged in the bill.
    The first point to be considered is: Is the deed of 1858, from] the elder to the younger Charles, fraudulent ? The Supreme Court of Georgia, in the case of Fleming v. Townsend, 6 Q.eorgia, lays down the following rule, in determining whether a deed be fraudulent:
    “ By inferring from direct evidence, or from circumstances, that it was intended to be a fraud. In many adjudicated cases in England, the courts inferred fraud from the facts of a subsequent conveyance, and held that the conveyance was void, even with notice, making the fraud to relate back from the subsequent sale to the primary conveyance.” 1 Story’s Fq., 381, sec. 402; 2 John Ch. R.,p. 46, 47.
    Fraud may be inferred from circumstances, such as the smallness of the consideration expressed, compared -with the fair price of the property conveyed, the grantor continuing in possession and exercising acts of ownership, &c. Heldville v. Sands, 2 John Ch. R., 35.
    The English courts hold that the subsequent sale is considered as proving conclusively that the voluntary deed was executed with a fraudulent intent to deceive subsequent purchasers. The law in America does not, however, go so far. But the weight of the authorities declare a conveyance, actually fraudulent, is void against a subsequent purchaser for a consideration, even with notice.. Richer v. Ham, et al., 14 Mass., 137; Clapp v. Leatherbee, 18 Bickering, 131; Clapp v. Terrell, 20 id., 247; Lewis v. Love’s heirs, 2 B. Monroe, 445,347; Mason and wife v. Baker, et al., 1 Marshall, 208, 210; Waller v. Cradle, 8 B. Monroe, 11,12; Fllioit v. Hoioe, 10 Ala.; Vertine, et al., v. Humphreys, 14 Smedcs Marshall, 143; Henry v. Fullerton, 18, 20, to 30.
    The next proposition to be considered, is: Does the registry of the prior deed preclude the complainants from showing the first deed to be fraudulent, and is the record of a fraudulent deed notice to subsequent bona fide purchasers for a valuable consideration.
    A. voluntary conveyance is, in law, fraudulent and void against a subsequent pmrehaser for a valuable consideration, even with, notice. Evelyn v. Templar, 2 Eden’s Brown, 148, ' 149; note Doe dem Ottey v. Manning, et al., 9 East; Doe v. Manage, 1 New, 838.
    The general rule is, that a voluntary conveyance, as against a subsequent bona fide purchaser for a valuable consideration, with or without notice, is fraudulent. Cairnes v. Jones, 5 Meyer, 250; Marshall v. Booker, 1 Yerger, 13, 15 ; Mason and wife v. Baker, et al., Marshall, 208,210 ; Doyle, et al., v. Sleeper, ■ et al., 1 Dana, 531; 554. Or at least prima facie fraudulent. Lewis v. Ijovc’s heirs.

    Registry of a fraudulent deed is not notice to a subsequent bona fide purchaser. Bolder v. Waldrip,l(3 Ga., 350.
    S. F. Clark, for same.
    The prior deed, from Birnie to his son, was made to secure the property from Birnie’s debts, and was never designed, between the parties to it, to be a valid conveyance. No court has ever held valid a deed possessing the badges of fraud this does. Chamberlayne v. Temple, 2 Band, 384; Boyd v. Ellis, 11 Iowa, (3 With.,) 97; Bingold v. Waggoner, 14 Ark., 69; Bice v. Gordon, 11 Beav., 265; Osgood v. Franklin, 2 Johns. Gh., 23; Gibson v. Hill, 23 Tex.

    It is the settled doctrine in this country that the subsequent deed by Birnie to Mrs. Kerr, and putting her into possession, renders the prior deed prima facie fraudulent and void, and throws the onus upon young Birnie, the claimant under the prior deed, to prove it a valid and honest transaction, or at least to prove a good and adequate consideration paid. Oath-cart v. Bobinson, 5 Bet., 265 ; Leach v. Folder, 22 Ark., 143 ; Hildreth v. Sands, 2 John. Gh., 36, 44.
    Notice to Mrs. Kerr of the prior deed was in nowise material. She had a good right to purchase and risk the chances of that deed being void for fraud, or want of consideration, or any other ground. If the prior deed was not on record, she had the better title by the registry law, without reference to any extrinsic facts. If it was, still her title was the best, unless the prior deed possessed all the requisites of a valid deed, of which she had the right to put them to the proof. 1 Am. Leading Cases, 47; Ricker v. Ham, 14 Mass., 137; Clapp v. Leather-bee, 18 Pick, 131; Clapp v. Tyrell, 20 Pick, 247; Lewis v. Lewis’ heirs, 2 B. Monroe, 345, 347; Waller v. Croll, 8 B. Monroe, 11,12 ; Mliott v. Haw-, 10 Ala., 348.
    V. Valuer, for appellee.
    The charge of fraud in the vendor is not sustained by the proof. Fraud is never presumed, it must be alleged and proved, (6 Fng., Irons v. Reyburn,) and expressly proved (12 Peters, 196). Presumption of fraud will not suffice, (Story Eg., 199; Parkhurst v. Mc&raio, 27 Miss., 134), but must be proved, (.Hempstead v. Johnson, 18 Ark., 123). Complainant’s own allegations, sworn to, are, that vendor never delivered a deed to vendee. Then, if no delivery, there was no deed, and if no deed, there was no fraud. How could he bo a fraudulent grantee who has never accepted a deed? Every case must be decided secundum allegata etprobata. 2 Story’s R., 469. Alie, gations are taken most strongly against the party making them; and, in case of contradictory allegations, the opposite party may adopt -which he pleases. Mitford Ch. PI, 42; Williams v. Flight, 5 Beav., 41.
    A voluntary conveyance is valid against a subsequent purchaser for a valuable consideration, and record is sufficient notice of such conveyance. 6 Blackf., 391; 11 111., 300; 26 Miss., 615 ; 6 Blackf., 193 ; 11 Tex., 149 ; 3 Minn.,-59.
    Subsequent purchasers for a valuable consideration, with notice, are not protected by statute of frauds. 26 Miss., 515 ; 3 id., 59 ; 11 Tex., 145 ; 1 RavAc, 231; 6 V. # S., 485 ; 4 McCord, 295; 1 Bosley, 875; 1 Robinson, (Va.,) 500; 8 Iredell, 340 ; 19 Wend., 514.
    G-allagiier & Newton, for same.
    Eecital of payment of consideration in a deed is prima facie evidence of consideration. 17 Ark., 147. From the evidence,
      the sale from Birnie, father, to Birnie, son, was for a valuable consideration, and so the Chancellor below decided — and his decision, unless without evidence to support it, must be sustained. Edwards v. State, 22 Ark., 304; 23 Ark., 61. This rule was first established in common law cases (Conway v. State Bank, 13 Ark., 334), and applied by Supreme Court to decisions of Chancellor. 23 Ark., 346. This rule held by Supreme Court of United States. Barnard’s heirs v. Ashley, ct al., 18 Howard, 43.
    Insufficient answer must be excepted to. Complainant can not take bill as confessed as to those points. Blakeney v. Ferguson, et al., 14 Ark., 641.
    Sale to member of family, and property remaining in possession of family, is no badge of fraud. Humphries v. Me Grato, 9 Eng., 91.
   Bowen, J.

A rehearing of this case having been granted heretofore, the same was reargued at the last term of this court.

The case was fully stated by Chief'Justice Walker, who delivered the opinion of the court. We will, therefore, make no further statement, but pass at once to the consideration of the questions involved.

The 4th section of our statute provides that “ every conveyance or assignment in writing, or otherwise, of any estate or interest in lands, * * * * """ * made or contracted with intent to hinder, delay, or defraud creditors or other persons of their lawful actions, damages, forfeitures, debts, or demands, as against creditors and purchasers, prior and subsequent, shall be void.”

“ Section 4. No such conveyance or change shall be deemed void in favor of an innocent subsequent purchaser, if the deed or conveyance shall have been duly acknowledged or proven, and recorded, or the purchaser have actual notice thereof, unless it shall appear that the grantee in such conveyance, or the person to be benefited by such change, was party or privy to the fraud intended.”

The first point claiming our attention is the alleged fraud on the part of Charles A. Birnie, sr., as against his creditors, in the matter of the conveyance of the real estate in controversy to his son, Charles A. Birnie, jr., by the deed of date October 30, 1858. As a general rule, when a deed is assailed on the ground of fraud, the onus is upon the party attacking.

'In this case, however, the grantor remained in possession of the property. The witnesses, the nearest neighbors, and one of them a brother of Birnie, sr., knew nothing of Birnie, jr.’s, claim to the property. Birnie, sr,, held it for sale as his own long after the execution of the deed to his son, and actually did, on the 28th day of April, A. I). 1863, again sell and convey the same, by deed, to Mrs. Kerr and Katharine Kerr, her daughter, the appellants. Birnie, jr.’s, wife was present at the sale, and he, though absent at that time, was present when possession was delivered to Mrs. Kerr, and made no objection nor mention of any claim or title at that time, and, indeed, never, until after the death of his parents, which occurred in December, 1863, and July, 1865. At the date of the deed by Birnie, sr., to his son, on the 30th of October, 1858, the former was in embarrassed circumstances. Two suits were pending against him in the circuit court of Sebastian county. The bill in this ease denies the payment of the consideration named in the deed from Birnie, sr., to Birnie, jr.

In our opinion, the fact of the continued possession of the property by the former, for the long space of time intervening between the date of his deed to Birnie, jr., and the date of his deed to Mrs. Kerr and daughter, and the fact of his having executed the last mentioned deed, to say nothing of the other circumstances alluded to, -would be sufficient to change the onus, and throw upon the party attempting to sustain the deed the burden of proving the actual payment of the consideration named therein. Having entirely failed to do so, we must, conclude that there was no consideration. This, in connection with ■ the fact of the embarrassed circumstances of Birnie, sr., before alluded to; the fact that Birnie, jr., ivas a young man without property ; the fact of the continued possession of Birnie, sr., of the property after the deed to Birnie, jr., his son; the fact of the subsequent sale by the former of the same property to Mrs. Kerr and daughter, and the fact that Birnie, jr., was present when possession was delivered to Mrs. Kerr, and made no objection nor mention of any claim of his to the property, all taken together, lead us irresistibly to the conclusion that the deed by Birnie, sr., to his son, on the 30th of October, 1858, ivas without consideration, and made with intent to defraud his creditors, who were at that time pressing their claims before the circuit court of Sebastian county, and Birnie, jr., was necessarily, under the circum-' stances, both party and privy to the fraud of his father — his connection therewith relating back to the date of the deed to him, he having attempted to hold the property thereunder.

It may be observed, in this connection, that the allegation in the bill that young Birnie was grantee in his father’s fraudulent deed, and that the consideration named ivas not in fact paid, sufficiently charges him with being party to the fraud of his father to admit the evidence upon that point.

From the qualifying clause of the statute, found in section 4, “ unless it shall appear,” &c., as already recited at length, it will be seen that Mrs. Kerr’s notice (constructive) of the former conveyance, by Birnie, sr., to his son, is a point of no importance in this case. The fact that the deed to Birnie, jr., ivas recorded before the purchase of the property by Mrs. Kerr and daughter, does not affect the rights of the parties in any manner, because Birnie, jr., was party and privy to the fraud of his father. "Were this fact otherwise, the registry of his deed would have given him priority, and his title could not have been successfully called in question.

The seeming conflict of judicial opinion, upon this question of notice, which we find in the authorities cited by counsel, arises, in some instances, from the fact that the statutes in relation to fraudulent conveyances are, although, similar, very different in different States. In other instances, from the fact that the word “notice,” as used, sometimes relates to notice of the fraud; at others, to notice of the former conveyance. Still there is some conflict.

Where notice is at all material, the distinction between actual and constructive notice should be observed. Whatever may be the effect of actual notice, we are clearly of opinion that while constructivo notice, such as the registry of a deed, is ample for the purpose of settling questions of priority between bona fide grantees — neither of whom are in any manner connected with the fraud of the grantor — it is not sufficient of itself to charge the last purchaser with being, even constructively, a party to the fraud intended by the grantor and the first purchaser upon the creditors of the grantor.

In this case, Mrs. Kerris notice of the former conveyance was only constructive. Had she had actual notice of the former deed to Birnie, jr., and had she purchased the property under such circumstances, she would necessarily'have known why Birnie, sr., had executed the former deed to his son, before she would have purchased. She Avould then have been as much a party to the fraud upon the creditors of Birnie, sr., as that individual himself, or his son, and could not have successfully claimed the benefit of the provisions of the statute, as an innocent subsequent, purchaser. ConstructiA’o notice, as we have already said, does not affect the rights of Mrs. lien-to such an extent. She is, therefore, an innocent purchaser, and entitled to relief.

The ansAver herein fails to deny the positi\-e allegation in the bill, that the consideration named -in the deed from Birnie,, sr., to Birnie, jr., a vas mwer, in fact, paid, but simply recites the Avords in the deed to that effect. The ansAver does, IioavOArer, allege that Charles A. Birnie, jr., remained in profound ignorance of the sale by 1ns father to Mrs. Kerr and daughter until after he had left home, AA'hich Avas on the last day of August. A. I). 1803. Tliis statement is flatly contradicted by the testimony of Dr. Main and Thomas Quinn, both of whom conversed with him upon the subject during his sojourn at home in tha¡fc month. From them we learn that he not only knew of the sale to Mrs. Kerr, but acquiesced in it. In the consideration, therefore, of this case, the answer, as a matter of evidence, has had but little, if any, weight upon the mind of the court.

Counsel for appellees raise the question of the illegality of the consideration paid by Mrs. Kerr to Birnie, sr. Upon that point we have only to say, that the contract is an executed one, and we have only to concur in the well established rule not to interfere upon the ground urged. Counsel for appellee also urge that the facts set up by this bill are not such as to warrant the interposition of a court of equity. To be brief, among other things, it is alleged that there was no delivery of the deed from Birnie, sr., to Birnie, jr., and that, therefore, Mrs. Kerr should have made her defense to the action of ejectment, the judgment wherein, she now seeks to enjoin. ¥e must consider the bill as a whole; and, in doing so, we conclude that the allegation, “that the deed was never delivered by Birnie, sr., to Birnie, jr.,” was recited as one of a chain of circumstances tending to show the fraud against the creditors of Birnie, sr. Especially, as the statement is followed up by another showing that said deed was caused to be recorded by Birnie, sr., which was of itself such a delivery as would have enabled Birnie, jr., to hold the property as against Birnie, sr., and as shown by these proceedings, to attempt to do so against the whole world.

The decree of the Sebastian circuit court is reversed. Complainants’ prayer will be granted, the deed to Birnie, jr., canceled, and the injunction made perpetual here.