author: Mr. Chief Justice Englisu

text:
    M., O. & R. R. R. R. Co. vs. Gaster.
    The act of January Id, 185'/, amending the charter of the Mississippi, Ouachita and Red River Rail Road Company, sanctioning a material and unwarrantable departure from the route of the road as designated in tho original charter, having been accepted by the president and directors of the corporation, acting by authority of a majority of the stockholders, was binding on such of the stockholders as solicited or assented to the passage of the act; but such stockholders as did not assent to it were released from their contracts of subscription. (Witter vs. M., 0. & JR. £. JR. R. fía„ 20 Arle., 490.)
    An act of the general assembly altering the charter, to be binding on all tho stockholders, must be accepted by a vote of the majority of the stock, exclusive of that taken by tho stale, at a meeting of the stockholders regularly convened for that purpose, as provided by tho 21st section of the original charter of tho company. Ib.

    The charter of a private corporation is an executed contract between the government and tho corporators, and the legislature cannot repeal, impair or alter it in a matter materially affecting the interest of the corporators against their consent, or without the default of the corporation judicially ascertained.
    Tho board of directors may act for and represent the stockholders in matters within the scope of the powers conferred upon them by the charter; but when they undertake to aocept a legislative amendment of the charter, they act beyond the scope of their authority, and their act is not obligatory upon the corporation.
    The plea, failing to show that the act of 14th January, 185‘l, changing the provisions of the charter, as to the location of the road, was so accepted as to make it valid and binding on the corporation, held bad on demurrer.
    If the directors were proceding to apply the funds of the company in building tho road on a line materially variant from that designated in the charter, the defendant had his remedy by injunction. (M., 0. & JR. R. JR. R. vs. Gross, 20 Ark., 443.)

      Error to Drew Oi/rcuit Court.

    lion. JohN C. MujbRAY, Circuit Judge.
    HARRISON, for plaintiff in error.
    WinteEj contra.
   Mr. Chief Justice Englisu

delivered the opinion of the court.

This was an action of assumpsit, by the Mississippi, Ouachita and Red River Rail Road Company against Daniel Caster, for assessments upon twenty-live shares of the capital stock of the company subscribed by him. The case has been here before. See 20 Ark. Rep., 455-461. After the cause was reversed and remanded, the plaintiff filed an amended declaration; to which the defendant interposed five pleas.

The fourth plea, upon which the case was determined, is as follows:

“ That John Dockery and others, on the 29th day of November, 1852, filed in the office of the secretary of state,- etc., a charter of the Mississippi, Ouachita and Red Diver Dail Eoad Company, drawn under an act entitled, an act granting corporate powers for certain purposes,’ which charter was drawn up for the purpose of constructing a railroad from a point on the bank of the Mississippi river, at or near Caines’ Landing, in the state of Arkansas, through or near Camden, on the Ouachita river, thence to some point on the Red river at or hear Fulton, thence to some point on the boundary line between the states of Texas and Arkansas ; which charter, by an act of the general assembly of the state of Arkansas, approved January 22d, 1855, became a public law; and that under the provisions of said charter said defendant became the holder of twenty-five shares of the capital stock of said company; and that on the 23d day of October, 1853, and after said defendant’s said subscription of said sums of the capital stock of said company, the said company commenced opening said rail road, by an alleged authorized survey thereof, and to locate and establish the same, beginning at the Mississippi river at Ferguson’s point, four miles, on an air line, and about eight miles, by the usually traveled road, north of Caines’ Landing, thence through Camden, thence to a place on Red river, called the Cut-off, twenty-one miles, on an air line, and forty milés, by the usually traveled wagon road, north of said town of Fulton, and thence to a place called Texarkana, on the boundary line between said states of Texas and Arkansas: and defendant avers that a part of the stock-holders of said company, on the 14th of January, A. D., 1857, and after said defendant had become such stock-holder, in said company as aforesaid, procured the passage, by the general assembly of the state of Arkansas, without the knowledge or consent of said defendant, of an act by which said above’ described location and termini of said rail road was adopted in all respects, and made as valid and binding as if specified at length in said original charter, and that said amendatory act of the 11th January, 1857, was never accepted by a vote of a majority, nor of all the stock of said company, or by said defendant; yet the board of directors of said company have adopted the same, and are now building and constructing said rail road on the line and between the termini last aforesaid, and not on the line and between the termini designated in the charter under which he became the holder of said shares of the capital stock of said company mentioned in said plaintiff’s declaration, but on a line and between termini materially different, and this he is ready to verify,” etc.

To this plea the plaintiff demurred on the following grounds: “ It is not alleged in said fourth plea that the said alleged act of the general assembly of the 14th of January, 1857, amendatory of said charter, was procured, accepted or adopted by a majority of the stock-holders of said company, and because the same is otherwise uncertain, informal,” etc.

The' court overruled the demurrer to the plea, the plaintiff rested, the defendant withdrew his other pleas, final judgment' was rendered in his favor, and the plaintiff brought error.

In Witter vs. Miss., O., & R. R. R. R. Co., 20 Ark., 490, we held that the company, in abandoning Fulton, and adopting the Cut-off, as a crossing point on Eed river, in the location of the rail road, made a material and unwarranted departure from, the route designated in the original charter under which Witter, like Caster, became a subscriber for shares in the capital stock of the company:

That the act of 14th January, 1857, amending the charter, and sanctioning this change in the location of the road, accepted, as it was agreed in that case, by the president and directors of the corporation, acting by authority of a majority of the stock-holders, was binding upon such of the stock-holders as solicited or assented to the passage of the act; but that such of the stock-holders as did not assent to the act were released from their contracts of subscription:

That an act of the general assembly, altering or amending the charter, to be binding upon all of the stock-holders, must be accepted by the vote of a majority of the stock, exclusive of that taken by the state, at a meeting of the stock-holders, regularly convened for that purpose, as provided for by the 21st section of the original charter of the company:

That it did not appear in that case that a majority of the stock was owned or represented by the majority of the stock-holders who accepted the act of 14th January, 1857, sanctioning the change in the line of the road, etc.

In the case now before us, the plea alleges that a part of the stock-holders procured the passage of the act of 14th January, 1857, approving the change in the location of the road referred to above, without the knowledge or consent of the defendant. That the act was never accepted by a vote of a majority of the stock, nor of all of the stock of the company, nor by the defendant ; but that the board of directors had adopted the same, etc.

The object of the plea was to show that the defendant was legally discharged from his contract of subscription to the capital stock of the company, upon which the suit was founded, by means of a legislative change in the terms of his contract, made without his consent.

The plea sufficiently avers that the act of 14th January, 1857, was not accepted by a vote of a majority of the stock, etc., and consequently was not binding upon all of the stock-holders. It also negatives the defendant’s assent to the act, and shows that he was not bound by it. But the plea fails to show that the act was valid and binding upon the corporation.

It avers that a part of the stock-holclers procured the passage of the act, and that the hoard of directors had adopted the same. But it fails to aver that a majority of the stock-holders procured the passage of the act, or that the board of directors in adopting the act, acted by authority of a magoriinj of the stock-holders.

flic British parliament, among other unlimited powers, claims that of altering and vacating charters ; not as an act of ordinary legislation, but of uncontrolled authority. It is theoretically omnipotent. Tet in modern times, it has attempted the exercise of this power very rarely. • But the king cannot abolish a corpo. ration, or new-model it, or alter its powers, without its assent. This is the acknowledged and well }mown doctrine of the conr-mon law. Webster, in Dartmouth College, vs. Woodward, 4 Wheat., 560.

It is a happy feature in the constitution of our own government, says Mr. Angelí in his work on corporations, that the power of the legislatures of the different states, resembles in this respect the prerogative of the king of Great Britain, who may create, but cannot dissolve a corporation, or, without its consent, alter or amend its charter.

In the 10th section of the first article of the constitution of the United States, (which was the supreme law of this state at the time the charter in question was granted, and at the time the amendatory act of 14th January, 1857, was passed,) it is declared that no state shall pass any law vnvpavrvng the obligation of contracts. Under this clause, it has been well settled, that the charter of a private corporation, whether civil or eleemosynary, is an . executed contract between the government and the corporators, and that the legislature cannot repeal, impair or alter it, in a matter materially affecting the interest of the corporators, against their consent, or without the default of the corporation judicially ascertained. Ang. on Corp., 801; Dartmouth College vs. Woodward, 4 Wheat.

In Witter vs. M. O., & R. R. R. R. Co., it was assumed in the defence, and not controverted, that the act amending the charter, procured by a majority of the stoclc-holders, was binding upon the corporation, and we decided that the stock-holders, who did not assent to it, were released from their subscriptions.

But surely, upon general principles, if a majority may, less than a majority of the stockholders cannot accept an act of the legislature making a material change in the provisions of the charter, so as to bind the corporation.

The board of directors may act for and represent the stockholders, in matters within the scope of the powers conferred upon them by the charter, but when they undertake to accept a legislative amendment of the charter, they act beyond the scope of their authority, and their act is not obligatory upon the corporation. They are but the agents of the corporators, acting under limited powers, and when they exceed their authority, their acts are not binding upon their principals, unless they are ratified, or acquiesced in by them.

The plea failing to show that the act of 14-th January, 1857, changing the provisions of the charter, as to the location of the road, was so accepted as to make it valid and binding upon the corporation, the defendant was not thereby legally released from his contract of subscription to the capital stock of the company; and if the directors were proceeding to apply the funds of the corporation in the construction of the road upon a line materially variant from that designated in the charter, he had his remedy by injunction, as held in M. O., & R. R. R. R. Co., vs Cross, 20 Ark. 443.

The judgment must be reversed, and fhe cause remanded with instructions to the court below to sustain the demurrer to defendant’s 4th plea.


source: Caselaw Access Project

author: Mr. Chief Justice English

license: Public Domain

text:
    Taylor et al. vs. Armstrong et al.
    The interest which the public acquires by the dedication of land for a highway or street, is merely an easement or right of passage over the soil, the original owner still retaining the fee, together with all rights of property not inconsistent with the public use.
    After a person has dedicated land to public use, he has no right to erect a building or other obstruction thereon, or to authorize another to do so.
    Any person erecting such obstruction upon an easement granted to the public js a trespasser; and the obstruction may be removed at the instance of the public as a nuisance, by indictment or by bill in chancery.
    The owner of the fee may maintain ejectment against one who obstructs a highway, and recover the land subject to the public easement.
    The presumption is that tho owners of the land on each side go to the centre of the road, and they have the exclusive right to the soil, subject to the right of passage in the public.
    And a grant of land bounded on a public highway carries with it the fee to the centre of the road as part and parcel of the grant. '
    But if a highway be laid off entirely upon the land of a person, running along the margin of his tract, and he afterwards conveys the land, the fee in the whole of tho soil of the highway vests in his grantee.
    The same rules are applicable to streets in towns and cities.

      Appeal from Popa Circidt Court.

    lion. JohN J. Ci,endentn, Circuit Judge.
    JordaN for'appellants.
   Mr. Chief Justice English

delivered the opinion of the court.

Armstrong and Eye brought an action of ejectment, in tho Pope circuit court, against Taylor and Dowdle, for premises described in the declaration as—

“All that portion of Water street, in the town of Galley Eock, which is situated between'Main and Walnut streets, together with the warehouse situated on said street, on the north bank of the Arkansas river.”

The case ivas tried on the general issue, verdict and judgment for the plaintiffs, and an appeal by the defendants, on questions of law, reserved by bill of exceptions taken at the trial.

TJpon the trial the following facts were proven:

The town of Galley Rock is situated on the S. W. 1-4 of sec. 13, T. 6, N. R. 19 W., in Pope county, on the north bank of the Arkansas river.

This tract of land had been in possession of Daniel Gilmore for some twenty-three years; and about twelve or fifteen years before the trial, he laid off' the town, and dedicated the streets, including Water street, to public use. (The trial was at March term, 1861.)

"Water street lies along the bank of the river, is 140 feet wide, and embraces the space between the south line of the front lots arid the edge of the water.

Main and Walnut streets run north from Water street, and embrace block A, which is subdivided into lots, nine of which, numbered from 1 to 9, front upon Water street.

On the 14th December, 1860, Gilmore executed to the appel-lees (Armstrong & Bye,) a deed, reciting that he had theretofore caused the town of Galley Nock to be laid off, and had sold lots therein to divers persons, a number of which were situated on Water street/ that the lots were sold with the understanding on the part of the purchasers that Water street was to be kept open as a public street, it having been dedicated to the use of the inhabitants of the town as such. In consideration whereof, and for the purpose of carrying into effect the object aforesaid, he conveyed to appellees, in fee, all that portion of Water street situated between Main and Walnut streets, reserving ferry privileges, upon trust that they were to hold the legal title to the property conveyed, and permit the citizens of the town to use it as a public street during all coming time, or to use it for such other purposes as the corporate authorities might at any future time direct.

In the fall of 1860, the appellants, (Dowdle & Taylor,) asked permission of Gilmore to build a warehouse on that portion of Water street in controversy, or if he had any objections to their building it. He told them he supposed there would be no objections — that he had none; but he told them they must not take advantage of the statute of limitations. They then proceeded to build the warehouse — locating it in the street opposite lot 2, in block A, leaving a space of 70 or 80 feet between the warehouse and the north line of the street, for the passage of the public.

Sometime in December, I860, when the warehouse wras nearly finished, appellees gave appellants notice to desist from building, and to remove the house; but they completed the building, and continued in possession of it until suit was brought, February 1, 1861.

From the time Gilmore laid off the town and dedicated the streets, including Water street, to the use of the public, he had not had possession of them, nor used or controlled them, except that he, in common with the other citizens of the town, had used them as public streets.

Since the year 1857, the appellant Taylor had owned, and was in possession of all the lots, fronting on Water street, opposite the warehouse. In the plat of the town introduced in evidence, his name is written upon lots 1, 2, and 3, in block A. Appellees admitted that he owned the front lots opposite the warehouse.

The court below gave the jury six instructions moved by the appellees, against the objection of the appellants; and refused to give all but the first of six instructions moved by appellants.

The substance and effect of the instructions moved by the appellees is, that, upon the facts in evidence they could maintain the action of ejectment against appellants for the premises in controversy.

The fact that Gilmore, the original proprietor, dedicated Water street to the public use, at the time he caused the town of Galley Bock to be laid off, is not controverted.

The interest which the public acquires by the dedication of land for a highway or street, is merely an easement or right of passage over the soil, tbo original owner still retaining the foe, together with all rights of property not inconsistent with the public use. Angell on Highways, 104.

After Gilmore had dedicated Water street to public use, he had no right to erect a building or other obstruction thereon, or to authorize the appellants to do it. They, therefore, acquired from him no legal right to erect the warehouse upon the street in question. They were trespassers upon the easement granted by him to the public, and the obstruction might have been removed, at the instance of the public, as a nuisance, by indictment or bill in chancery. Ang. on High., 254-260; 22 Wend., 115.

In Goodtile vs. Alker, 1 Burr., 133, it was held by Loed MaNS-field, the other judges present concurring, that the owner of the fee may maintain ejectment against one who obstructs a highway, and recover the land subject to the public easement. Though the correctness of this decision was questioned by Mr. Justice Thompson, in the case of the City of Cincinnati vs. the Lessees of White, 6 Peters U. S. R., 431, yet it has been followed and approved by the American courts and text writers generally. Ang. on High., 305; Dovaston vs. Payne, 2 Smith’s Lead. Ca., by Hare & Wal., 212, and cases cited; Cooper et al. vs. Smith, 9 Serg. & Raw., 31; Alden vs. Murdock, 13 Mass., 255; Bolling vs. Mayor etc. of Petersburg, 3 Randolph, 563; Thompson et al. vs. Proprietors of And. Bridge, 5 Greenleaf, 48; Hund vs. Blackman, 19 Conn., 182; Chatham vs. Brainard, 11 ib., 82; Pearsall vs. Post, 20 Wend., 115; 3 Kent’s Com., 432; Swift, J., in Peck vs. Smith, 1 Conn., 132.

And this rule applies to'streets in towns and cities as well as to highways.

If therefore Gilmore was the owner of the fee in that part of "Water street covered by appellants’ warehouse, at the time he undertook to convey it to the appellees, they succeeded to all his legal rights in the soil, and had the right to maintain ejectment against appellants, and recover the land subject to the public easement.

But prior to the time of the conveyance from Gilmore to appel-lees, Taylor had' become the owner of. the front lots in bloch A, opposite the warehouse. That is, the east and west boundary lines of Taylor’s lots projected across 'Water street to the river, would include all that portion of Water street covered by appellants’ warehouse.

Whether Gilmore had conveyed these lots to Taylor directly, or whether he derived them through an intermediate purchaser, does not appear; but it was admitted in the trial that he was the owner of the lots.

Mr. Kent, (1 Com., vol. 3, p. 433,) says:

“ The law with respect to public highways, and fresh water rivers is the same, and the analogy perfect, as concerns the right of soil. The presumption is that the owners of the land on each side go to the centre of the road, and they have the exclusive right to the soil, subject to the right of passage in the public. Being owners of the soil they have a right to all ordinary remedies for the freehold. They may maintain an action of ejectment for encroachments upon the road, etc. The freehold and profits belong to the owners of the adjoining lands. They may cany water in pipes under the highway, and have every use and remedy that is consistent with the public servitude or easement of a way over it, and with police regulations. The established inference of law is, that a conveyance of land bounded on a public highway, carries with it the fee to the centre of the road, as part and parcel of the grant. The idea of an intention in the grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to the adjoining land is never to be presumed. It would be contrary to universal practice; and it was said in Peck vs. Smith, 1 Conn. R., 103, that, there was no instance where the fee of a highway, as distinct from the adjoining land, was ever retained by the vendor. It would require an express declaration, or something equivalent thereto, to sustain such an inference; and it may be considered as the general rule, that a grant of land bounded upon a highway or river, carries the fee in tbe 'highway or river to the centre of it, provided the grantor at the time owned to the centre, and there be no words or specific description to show a contrary intent. But it is competent for the owner of a farm or lot, having one or more of its sides on a public highway to bound it by express terms on the side or edge of the highway, so as to rebut the presumption of law, and thereby reserve to himself his latent fee in the highway. Ife may convey the adjoining land without the soil under, the highways, or the soil under the highway without the adjoining land. If the soil under the highway passes by a deed of the adjoining land, it passes as parcel of the land and not as an appurtenant.”

If a highway be laid out through the land of A, and he after-wards conveys the land, upon one side of the highway to B, and the land upon the other to 0, without reservation, they become the owners of the fee in the soil of the highway equally, each owning to the centre.

So if A and B, being the proproprietors of adjoining tracts of land, contribute equal quantities of land to a highway, and after-wards convey their lands respectively, their grantees become the owners of the fee in the soil of the highway equally, each going to the centre.

But if a highway be laid off entirely upon the land of A, running along the margin of his tract, and he afterwards conveys the land, the fee in the whole of the soil of the highway vests in his grantee. Watrous vs. Southworth,, 5 Conn., 305; Chatham vs. Brainerd et al., 11 ib. Champlin vs. Pendleton, 13 ib.; Read vs. Leeds, 19ib., 187.

The same rules are applicable to streets in towns and cities. Hammond et al. vs. McLachlam, 1 Sandford, 323; Pearsall vs. Post, 22 Wend., 126; Mayor and Council of Macon vs. Franklin, 12 Geo., 245; Trustees of Watertown vs. Cowen, 34 Paige, 513; State vs. Mayor and Ald. Mobile, 5 Porter, 309; Ang. on High., 293-303; O’Linda vs. Lothrop, 21 Pick., 295; Barclay et al. vs. Howell's Lessee, 6 Peters, 499; New Orlens vs. United States, 10 ib., 633; Dovaston vs. Payne, 2 Smith’s Lead, Ca., 218, and cases cited.

Whether Gilmore, when he conveyed the front lots on Water street opposite the warehouse, expressly reserved the fee in the soil of the street, or whether such reservation is to be implied from the descriptive language employed in the grants, we have no means of determining, as the conveyances were not introduced in evidence upon the trial. But it was proven and admitted that Taylor was the owner of the lots, and the presumption follows, in the absence of proof to the contrary, as above shown, that he was the owner of the fee in the soil of that portion of the street upon which the warehouse was situated; not only to the centre of the street but to the margin of the river, there being no opposite proprietor.

. Gilmore having no title to that portion of Water street covered by the warehouse at the time he executed the conveyance to appellees, they acquired none from him; and it follows that they could not maintain the action of ejectment therefor.

Upon the facts in proof the court below erred in giving the jury the instructions moved by the appellees, and for this error the judgment must be reversed, and the cause remanded for further proceedings.

It may be remarked that the appellees in taking, an order for a writ of possession upon the judgment, in the court below, waived their recovery for so much of the street as was not covered by appellants’ warehouse.


text:
    Marlow vs. Adams.
    In a suit for title to land, the party in possession failing to make good his title, cannot be allowed for improvements more than the value of tho rents.

      Appeal from Premie Ow&mb Court in Chancery.

    Hon. John J. Clendenin Circuit Judge.
    JORDAN, for Marlow.
    Williams, contra.
   Mr. Chief Justice English

delivered tho opinion of the court.

Marlow and Adams both applied to the land agent of the Little Rock swamp land district, in March 1859, to enter the land in controversy in this case, as pre-emptors. The land agent, upon the evidence produced before him by the parties, gave the certificate of entry to Adams. Marlow filed a bill in the Prarie circuit court to cancel the certificate of entry, etc., and upon the pleadings and evidence the court refused to cancel the certificate of Adams, but decreed that he should pay to Marlow $100 for improvements he had made upon the land; and both parties appealed.

The preponderance of the evidence is in favor of the legality of Adams’ entry, but its fairness is more questionable.

The evidence conduces to prove that one Hendricks made the original improvement on the land. That in the year 1852, Stephen Smith purchased the improvement for his son Levi, for $17, ten dollars of which was furnished by Levi, and the remaining seven his father paid in shop work. Levi was of age but lived with his father on a neighboring tract, and he, assisted by his brothers, made additional improvements on the land, and the old man and the boys cultivated a small field on the place for several years; but it was always called and known as Lew’s place.

In the year 1854, Adams, representing to Levi that lie bad entered the land With scrip, purchased his improvement for $20, and obtained from him a written transfer.

Not long after this, Marlow coming into the neighborhood, obtained permission of Adams to go upon the place as his tenant.

Prior to the time Levi sold the improvement to Adams, Stephen Smith had always called it Levi’s place, but disapproving of the sale, he claimed that the place belonged to him.' — -that he intended to give it to Levi, but had not done so — and ho after-wards gave it to Marlow, who married his daughter. Marlow continued in the undisturbed possession of the place until the time of the contest before the land agent, making improvements, which were doubtless worth $100; and he seems to -have been very earnest in the belief that he obtained a good title to the original improvement from his father-in-law.

Both the land agent and the circuit judge, sitting as chancellor, having decided upon the facts of the case that I&oi Smith was the owner, and not his father, of the original improvement, and that he made a valid transfer of it to Adams, which gave him a preference to enter the land, we are not disposed to overrule their decisions. And we are as little inclined to disturb the decree in favor of Marlow for $100, as some compensation for improvements, which appear to have been made in good faith, but we know of no law or precedent that would allow him compensation for his improvements over and above the value of rents.

The decree in his favor must be reversed, on the appeal of Adams: and upon his appeal so much of the decree as was against him in the court below must be affirmed ; but the costs in both appeals must be taxed to Adams.


author: Mr. Chief Justice ENGLISH

text:
    Finn, et al. vs. Hempstead, ad. et al.
    An admission made by a guardian for infants in one' suit cannot be used against them in another.
    Crosby died leaving a will whereby he devised his whole estate to Finn, who was made sole executor thereof; Finn having qualified as such executor, the will was set aside by a proceeding at law, and the administrator and heirs of Crosby filed a bill against the administrator, widow and heirs of Finn, he having died, to compel them to account for the estate of Crosby: Meld, that the widow was not responsible for waste committed by her husband as executor of Crosby.
    She was only answerable for such of the assets of Crosby’s estate as remained unadministered by her husband, and came into her possession after his death.
    And for them, she was properly responsible to the administrator of Crosby, and not to his heirs,
    Finn having died before the institution of the proceeding to test the validity of the will, while an appeal in that cause was pending in this court, the probate court granted letters of administration de bonis non on Crosby’s estate: Meld. that while it would have been more regular for the probate court to have deferred granting letters de bonis non until the appeal was determined, yet the executor of Crosby being dead, and the action of the probate court coming before us collaterally, there was no such want of jurisdiction as to render the grant of letters null and void. (State vs. Richards, 21 Arh, 516; Rogers vs. Dimal, 23 ib. 19.)

    The extent of the power and authority of an administrator de bonis non, is simply to collect and administer such property and effects of the deceased unad-ministered by the former representative, as remain in specie and are capable of being ascertained and identified as the specific property or estate represented by him.
    An administrator de bonis non cannot maintain a suit against a former executor or administrator, or his representatives, for effects of the estate wasted or con-
    . verted by him; though such suit may be brought by creditors, distributees, or legatees.
    By statute an administrator de bonis non may invoke the aid of the probate court against his predecessor or his legal representatives, to obtain possession of effects unadministered, or he may bring suit on the bond of the delinquent predecessor.
    But he cannot compel the representatives of such delinquent to account in equity fc effects wasted or converted.
    The after declarations of a vendor are worthless to invalidate a sale made or a bill of sale executed by him. (Gullett vs. Zamberton, 1 Mng., 110.)
    A bill of sale being an executed contract, the sufficiency of the consideration could not be inquired into by those who claim to stand in the place of the vendor, except for the purpose of conducing to show that it was procured by coercion and fraud.
    A slave, the property of Crosby, having como into possession of the widow of Finn, as guardian of her children, upon the affirmance by this court of the judgment of the circuit court in the- case contesting the validity of Crosby’s will, whereby the same was pronounced invalid, she should have surrendered him to the administrator de bonis non, of Crosby, and paid to him a reasonable hire for his services from the time he came into her possession.
    Certain assets, rents, hires, etc., of Crosby’s estate having been administered into the estate of Finn, it is proper that his administrator should account therofor to. the administrator de bonis non of Crosby.
    But the administrator of Finn having distributed nearly all the estate in his hands, it is but just to charge the estate in the hands of the distributees with the payment of the value of the assets of Crosby, that were administered into Finn s estate.
    Until tho will of Crosby was finally adjudged to be invalid, no cause of action accrued to his administrator de bonis non, to recover the goods of Crosby that remained unadministored by Finn, and the statute of limitation would not begin to run until that time.

      Appeal from Hempstead Circuit Court in Chcmcery.

    Hon. L. B. GeeeN, Circuit Judge.
    Gallaghee, for the appellant.
    Hempstead, contra.
   Mr. Chief Justice ENGLISH

delivered the opinion of the court.

About the 10th of October, 1852, Joseph B. Crosby, who had neither wife nor children, died in Hempstead county, leaving a will, in which he named Bichard H. Finn, as his executor, and devised to him his entire estate, after the payment of his debts.

The will was duly probated, in the probate court of Hempstead county, and letters testamentary granted to Finn, on the 23d of October, 1852, who qualified as executor.

On the 22d November, .1852, Finn returned an inventory and appraisement of the personal estate of Crosby, including two slaves, Dick and Nelly.

On the 1st of April, 1854, Finn died, without having filed in the probate court any annual or final settlement of his accounts, as executor of Crosby, for settlement; and on the 23d. of May, 1854, letters of administration upon the estate of Finn were granted to James McDaniel, by the probate court of Hempstead county.

McDaniel, as such administrator, made out and filed in the probate court, for final settlement, a statement of Finn’s account, as executor of Crosby, which on the 11th of January, 1855, after due public notice, was approved and confirmed by the court.

On the same day, after the confirmation of the account, the court, upon the petition of McDaniel, made an order thát he take possession of Crosby’s effects, and administer them as part of Finn’s estate, he being Crosby’s devisee.

It appears that Finn left a widow, Nancy, and four minor children, Catharine, Frances, John and Mary, and that the widow was appointed guardian of the children.

On the 15th of October, 1855, the probate court, upon the petition of Mrs. Finn, made an order that McDaniel, as administrator, etc., turn over • to her, as such guardian, on the first of January following, all the slaves belonging to the estate of Finn (after her dower interest therein was set apart,) to be kept together •by her, and worked for the benefit of the children.

At the June term. 1856, of the circuit court of Hempstead county, Daniel P. Crosby and others, claiming to be the heirs at law of Joseph B. Crosby, filed a petition against McDaniel, as the administrator, and the widow and heirs of Finn, for the purpose of contesting the validity of Crosby’s will. An issue of devismil vel non was made up, and on the Jth of June, there were a verdict and judgment against the validity of the will. The defendants in the petition appealed to this court, and on the 4th of January, 1858, the judgment of the circuit court was affirmed. See McDaniel, ad. vs. Crosby, et al., 19 Ark., 533.

In the meantime, Bernard F. Hempstead applied to the probate court of Hempstead county for letters of administration, do bonis non,, on the estate of Joseph B. Crosby, and on the 27th of October, 1856, letters were granted to him.

On the 22d of September, 1858, Hempstead, as such administrator do bonis non, and Daniel P. Crosby and others, claiming to be the heirs of Joseph B. Crosby, being the same persons who were plaintiffs in the petition to contest the validity of the will, tiled a bill in the Hempstead circuit court, against the administrator, widow and heirs of Finn, alleging the facts above stated, and others that will be noticed in the course of this opinion; the object of which was to compel the defendants to account for the estate of Crosby, etc.

Upon the pleadings and evidence, a final decree was rendered against the widow and heirs of Finn, and they appealed to this court.

No decree was rendered against McDaniel, the administrator of Finn, except for costs, and he did not appeal.

A personal decree was rendered against Mrs. Finn, with her minor children; for the sum of $16,664 84, reciting that it appeared from the pleadings that they 'had assets in their hands, belonging to the estate of Finn, sufficient to pay the same, etc. The amount decreed against them was made up, by a master appointed by the court, of the rents of real estate, the value and hire of the slaves, Jarnos, Dioh and Holly, and the value of other personal property, and choses in action, alleged to have been the property of Crosby, with interest, etc.

Included in the amount, ivas the estimated value of goods, choses in action, rents, hires, etc., wasted or converted and appropriated by Finn to his own purposes, while acting as the executor of Ci’osby.

The decree was rendered in favor of the complainants generally, with direction that when the money was collected, Hempstead, as administrator do bonis non of Crosby, retain a sufficient sum to pay some debts which had been allowed in the probate court against Crosby’s estate, and winch Finn as executor had failed to pay.

1. It is insisted that such of the complainants as claim to bo the heirs of Crosby, were not admitted to be such by the answers, nor proven to be such upon the hearing, and consequently so much of the decree as was in their favor was erroneous.

It is alleged in the bill, in general terms, that they are the heirs and distributees of Crosby, but the relationship between him and them is not stated, and there was no proof upon the hearing that they were his heirs, or in any degree related to him.

The bill alleges, however, that upon the trial of the issue oí devisavit vel non, it was admitted by the administrator, widow and heirs of Finn, that these complainants were the heirs and distributees of Crosby.

Mrs. Finn, in her answer to the bill, concedes that there was such an admission upon the trial of that issue, and there is a similar concession in the answer of the administrator. The guardian ad litem of Finn’s heirs filed no answer, but adopted the answer of their co-defendants.

If it be conceded that the adoption ot their answers adopted their admissions, the admission in question amounted to this, that in a former suit between the same parties, the guardian ad litem of the minor heirs of Finn, admitted that these complainants were the heirs and distributees of Crosby.

But the admission made by the guardian for the infants in that suit, cannot be used as evidence to support a decree against them in this. Gresley's Eq. Ev., 50; Miles vs. Dennis, 3 John. Ch., 368; 1 Greenleaf’s Ev., sec. 179.

So much of the decree therefore as is in favor of these complainants, as Crosby’s heirs, against the infant heirs of Finn, is erroneous and must be reversed. Blakeney vs. Ferguson, et al., 14 Ark., 641; Hardy vs Heard, et al., 15 ib., 194; Roane vs. Bonnell, 20 ib., 125.

Conceding that the admission was good against Mrs. Finn, the decree against her in favor oí the complainants in question, as the heirs of Crosby, was nevertheless erroneous, because she was not responsible for waste committed by her husband as executor of Crosby. She was only answerable for such of the assets of Crosby’s estate as remained unadministered by her husband, and came into her possession after his death, and for them she was properly responsible to Hempstead as administrator de bonis non of Crosby, and not to the complainants claiming to be his heirs. See Pope’s Heirs, et al., vs. Boyd’s adx., 22 Ark., 535; Lenox’s Heirs vs. Rector, 15 Ark., 438.

2. But it is insisted that' the grant of letters of administration de bonis non to Hempstead, upon the estate of Crosby, by the probate court, pending the appeal from the judgment of the circuit court in the proceedings to contest the validity of the will, was null and void, and that Hempstead, as such administrator, had no legal authority to maintain the bill, or obtain any decree.

The statute provides that, “ if any will be proved, and letters testamentary thereon -granted, and such will bo afterwards set aside. The letters testamentary shall be revoked, and letters of administration de bonis non granted.” Gould’s Dig., ch. 4, sec. 33.

If Finn had been living, and acting as executor at the time the judgment of the circuit court, pronouncing the will invalid, was rendered, and had appealed therefrom, the probate court would, perhaps, have had no jurisdiction to grant letters de bonis non to Hempstead, pending the appeal, because an appeal in such case stays the judgment of the circuit court until the matter is determined by the appellate court.

But Finn had died before the institution of the proceedings to contest the validity of the will, and at the time the judgment was rendered, and the appeal taken, there was no executor or administrator of Crosby’s estate, and no one representing the estate except the persons who claimed under Finn as devisee. And though the appeal stayed the judgment, and it would have been more regular for the probate court to have deferred the grant of letters de bonis non until after the appeal was determined, yet its action coming before ns collaterally, we think we may hold, consistently with previous decisions of this court, that there was no such want of jurisdiction, under the circumstances, as to render the grant of letters null and void. See State vs. Richards et al., 21 Ark., 515, and cases cited; Rogers, ex’r, vs. Duval, ad., 23 Ark, 79.

3. But it is a well settled principle of the common law, that the extent of the power and authority, as well as of the duty of an administrator de bonis non, is simply to collect and administer such property and effects of the deceased, n'ot administered by the former representative, as remain in specie, and are capable of being ascertained and identified a3 the specific property or estate represented by him. Hence, it has been held that an administrator de bonis non cannot maintain a suit at law, or bill in chancery, against a former executor or administrator, or his representatives, for effects of the estate wasted or converted by him, though such suit or bill may be brought by creditors, distri-butees or legatees. Coleman vs. McMendo. et al., 5 Rand., 51; Stell ad. vs. Alexander ad., 2 Sneed., 650; Thomas vs. Stanley, 4 ib., 411; Young vs. Kimball, 8 Blackf., 167; Oldham vs. Collins, 4 J. J. Marsh., 49; Felts vs. Brownsard, 7 ib., 147; Thomas vs. Hardwick ex., 1 Kelly (Geo.) 80; Oglesby vs. Gilmore et al., 5 Geo., 58; Cheatham ad. vs. Bearfoot, 9 Leigh, 514; Kelsay vs. Smith, 1 How., 80; Stubblefield et al. vs. Raven et al., 5 Sm. & M., 140; Smith vs. Carrere, 1 Rich. Ch., 123; Haythrop vs. Hook, 1 Gill & John., 270; Hemphill vs. Hamilton, 6 Eng., 425; State, use Higginbotham’s ad. vs. Watts et al., 23 Ark., 312.

In the case of Coleman ad. vs. McMendo et al., above cited, Judge Cabe, after reviewing the authorities on the subject, said : “ To meet this formidable array, what is there on the other side ? Not one single case; not the dictum of a single judge; not the assertion of one elementary writer,'that the administrator de bonis non, either at law or in equity, can support an action, or file a bill for account, against the representative of a delinquent executor or administrator.”

By statute, an administrator de bonis non may invoke the aid of the probate court against his predecessor, or his legal representatives, to obtain possession of effects unadministered, or he may bring suit upon the bond of the delinquent predecessor. Gould's Dig., ch. 4, secs. 43, 44. But we have no statute authorizing him to compel the representatives of such delinquent to account in equity for effects wasted or converted.

It follows that Hempstead, as administrator do bonis non of Crosby, liad no legal right to maintain tiie bill, or to obtain a decree against the widow and heirs of Finn, for the value of so much of the estate of Crosby as was wasted by him, or converted to his own use, while acting as the executor of Crosby.

4. The slave Amos was not included in the inventory of Crosby’s estate returned by Finn as executor, nor was Finn charged with the value of Amos in the settlement of his accounts made with the probate court, by McDaniel as his administrator: and for this cause, as well as' upon other grounds, the settlement was impeached for fraud, by the bill, and set aside by the court below ; and in the decree against Mrs. Finn and her children, they were charged with the value of Amos, hire, interest, etc.

The bill charges that before the death of Crosby, Finn paid an execution against Crosby, with the money of Crosby, and after-wards, by coercion and without consideration, obtained a bill of sale from him for Amos. The • answers of McDaniel and Mrs. Finn deny that Finn paid the execution with the money of Crosby, or that he obtained the bill of sale without consideration and by coercion; and they allege, on the contrary, that Finn purchased the slave fairly, and paid for him the consideration recited in the bill of sale, etc.

The bill of sale is made an exhibit to the answer of McDaniel, bears date July 6,1851, and by it Crosby acknowledges that he liad received of Finn the sum of $869.39, as the consideration for Amos. It is an absolute bill of sale, with warranty of title, etc.

There was no testimony read upon the hearing to prove that Finn used any coercion, or practiced any fraud upon Crosby to obtain from him the bill of sale. There were two attesting witnesses to the instrument, (K. K. Conway and George Conway.) Their depositions were not taken, and it was not shown that they were dead, or out of the jurisdiction of the court.

It is to be presumed that they knew something of the circumstances attending the execution of the bill of sale; and if Finn had procured it by force or fraud, it is but reasonable to suppose that their testimony would have conduced to prove that fact. The failure of the complainants to take their depositions, or to account for not doing so, is a circumstance to be considered against them.

The deposition of no witness was taken who professes to have been present when the bill of sale was executed, or to have known the circumstances attending its execution.

Wyatt doposed that he understood from Crosby that Finn paid the execution that was levied upon Amos with Crosby’s money; but the after declarations of Crosby are worthless to invalidate a sale made, or a bill of sale executed by him. Gullett and wife vs Lamberton, 1 Eng. R., 110.

It is true that the depositions of Wyatt and Andrews conduce to prove that Finn may have used the means, of Crosby in paying the execution, but there is a want of evidence to prove satisfactorily that there was no other consideration for the bill of sale than the money so paid by Finn. If there was none other, and the money was Crosby’s, why, it may be asked, did ho execute the bill of sale ?

Moreover, the bill of sale being an executed contract, the sufficiency of the consideration could not be questioned, or inquired into by the complainants, who claim to stand in the place of Crosby, except for the purpose of conducing to show that the instrument was procured, as alleged, by coercion and fraud; and we have already stated that the proof fails in this.

The testimony in regard to the matter was too loose and weak to warrant the court below in pronouncing a solemn instrument invalid, and decreeing against Mrs. Finn, etc., for the value of Amos and his hire, etc., and in this respect the decree must be reformed.

5. The slave Dick, it appears, came to the possession of Mrs. Finn, as guardian of her children, under the order of the probate court above referred to, on the first of January, 1856, and she kept and controlled him from that time forward. Upon the affirmation by this court of the judgment of the circuit court (fourth of January, 1858,) pronouncing the will of Crosby invalid, she should have surrendered the slave to Hempstead, as administrator da bonis non of Crosby, and paid to him a reasonable hire for his services from the time he came into her possession. In failing to do so, she acted in her own wrong, and is personally responsible for the slave and hire to him as such administrator, and he is entitled to a decree against her for the negro and hire, with a provision that if the property bo not surrendered, he recover of her the value thereof as ascertained by the master of the court below.

6. It appears that at the time McDaniel became the administrator of Finn, (May 23, 1854,) ho found remaining in specie, and undisposed of by his intestate, besides the slave Dials, a negro woman named Nelly, a mule, a sorrel horse, two cows, one yearling, a note on W. & M. Moss, and a note on Brunson, which were of the estate of Crosby, and which, under the order of the probate court, were administered into the estate of Finn by McDaniel.

From the time of the death of Finn, his estate got the benefit of the rents of the real estate of Crosby.

Also, the services of the negro Dick, until he was turned over to Mrs. Finn.

Also, the services of the woman Nelly, until the first of January, 1855, when she was sold by McDaniel, as part of Finn’s estate.

These assets, rents, hire, etc., having been administered into the estate of Finn, by McDaniel, as his administrator, it was proper for him to account therefor to Hempstead as administrator

da bonis non of Crosby. (Marlatt vs. Scantland ad. et al., 19 ArK., 444;) and a decree should have been rendered against him, as such administrator, for the value thereof. It appears, however, that at the time he answered, he had very nearly administered or distributed all the assets of his intestate which came to his hands, and consequently the court below rendered no decree against him except for costs. From this decree the complainants did not appeal, nor did he, and he is not therefore before this court, and the decree as to him cannot be changed. But inasmuch as the estate of Finn was enhanced by so much of the estate of Crosby as was administered into it by McDaniel, as above shown, and passed, so increased in value, into the hands of his distributees, (the infant appellants,) we think it is but just and. equitable to charge the estate distributed to them, with the payment to Hemp-stead, as administrator de bonis non of Crosby, oí the value of the assets of Crosby that were so administered into their father’s estate by his administrator; and the decree of the court below as to them must be so reformed.

7. A decree might also be rendered against the distributees of Finn, in favor of the complainants, who claim to be the.heirs of Crosby (if not barred by the statute oí non claim,) for the value of so much of the estate of Crosby as was wasted or converted by Finn, as executor of Crosby, during the time he acted as such, had they proven, as against the infant distributees of Finn, that they were the legal heirs and distributees of Crosby, but in this they failed, as we have above shown. And this relieves us from the necessity of deciding the perplexing question, discussed at great length by counsel, whether the demand against the estate of Finn for the value of the assets appropriated by him to his own use, or wasted in his life time, should have been presented to his administrator, properly authenticated, for allowance, within the time prescribed by the statute of non-claim; or whether the heirs of Crosby might not delay the institution of any proceedings therefor, without prejudice, 'until alter the will of Crosby was finally adjudged to bo invalid; and then proceed against the estate of Finn in the hands of his distributees.

8. We have not overlooked the fact that Mrs. Finn and her children rely upon the statute of limitations to bar any recovery against them. It is sufficient to say, as to this, that until the will of Crosby was finally adjudged to be invalid, no cause of action accrued to Hempstead, as administrator de bonis non of Crosby, to recover the goods of Crosby that remained unadministered by Finn as executor, etc., and this suit was commenced within less than a year thereafter.

The clerk of this court, as master, will take and state an account between the parties, in accordance with this opinion, and a decree will be entered thereon, and certified to the court below, to be executed.

As to the complainants who claim to be the heirs and distrib-utees of Crosby, the bill must be dismissed without prejudice.


text:
    Shaver & Son vs. Shell.
    Judgment by default having been rendered by a justice of the penco, and it appearing that on the day of trial, the plaintiffs as well as the defendant, failed to appoar: Held, that the plaintiffs should have boon non-suited; and that this error might have been corrected by appeal.
    But the justice having jurisdiction of the subject matter and of the person 'of the defendant, the judgment could not be regarded as null when presented collaterally in a ease of garnishment founded thereupon. (Hill vs, Steele, II Arh,, 440; Alston ex parle, ib. 680.)

      Appeal from Iza/rd Gwcuit Court,

    Rose and Hempstead, for appellants.
    No appeal was taken on the principal judgment against King; and of course that wa3 a valid and subsisting judgment, and record evidence of the debt, which could neither be enquired into or impeached in any collateral proceedings. Borden vs. The State, 6 Bng., 519.

      The judgment of the justice having been rendered by a competent court having jurisdiction, and on actual service, could neither be impeached by Shell, the garnishee, nor declared erroneous or void by the court in the proceeding on garnishment.
   Mr. Chief Justice English

delivered the opinion of the court.

Shaver & Son having obtained a judgment against Eliza King, before a justice of the peace of Izard county, caused to be issued thereon a writ of garnishment against Shell, and upon his answer recovered judgment against him, and he appealed to the circuit court.

Upon a trial de novo, the court excluded from the jury the original judgment, on the ground that it was null and void; there was a verdict for Shell, motion for a new trial overruled, and Shaver & Son appealed to this court.

It appears that the original suit was founded upon an open account for $46.33, and that upon the day fixed for trial, the parties failing to appear, the justice rendered judgment, by default, against the defendant for the amount of the account.

The circuit judge held the judgment to be void, and excluded it from the jury, because the entries upon the docket of the justice failed to show that the plaintiffs proved their account upon the trial: in other words, that upon the failure of both parties to appear, the justice rendered judgment against the defendant, without evidence to establish the account.

The suit being founded upon an open account, on the failure of the plaintiffs to appear and prove their demand, on the day fixed for trial, the justice should have non-suited them. Gould’s Dig., p. 665, sec. 87; and it was an error for him to render judgment by default against the defendant, which she could have corrected by appeal; but failing to appeal, the judgment became final.

The justice having jurisdiction of the subject matter of the suit, and of the person of the defendant, by service of process, which affirmatively appears, the judgment could not be regarded as null and void, when presented to the circuit court collaterally, on account -of tbe error of the justice in rendering it without evidence. Hill vs. Steel, 17 Ark, 440; Alston ex parte, ib., 580.

The j udgment of the court below must be reversed, and the cause remanded, with instructions to the court to grant the appellants a new trial.


author: Mr. Justice English

text:
    Pike et al. vs. Underhill's ad. et. al.
    The defendant in chancery must prove all ne%v matter set up in his answer which is not responsive to the bill.
    Pike and Underhill entered into a contract by which they agreed to jointly enter swamp lands, Pike making the selections and Underhill furnishing the scrip, and charging Pike with one-half its value, to be paid whenever the lands were sold. Various entries having been made under this contract, Underhill died, and Pike brought a bill for specific performance against his administrator, widow and heirs and Burgett. The latter answered that one-half of a certain portion of tire scrip furnished by Underhill belonged to himself, and therefore claimed to bo the equitable owner of one-half of the lands so entered, or to have a lien on the lands for the value of so much of his scrip as was used by Underhill in making the entries: Held, that the burden of proof was upon Burgett.

      Held, further, that in order to make good his claim, Burgett should have set it up in a cross-bill;
    And that the allegations of the answer could not bar Pike’s claim, because he was not charged with notice of Burgett’s interest in the scrip used by Underhill.
    It was improper for the court below in assigning the widow her dower to lessen it3 value by causing it to be scattered in inconsiderable bodies over a great many tracts of wildland.
    Where it would be detrimental to tho interest of the parties to assign the widow her dower specifically in certain of her husband’s lands, the court will direct them to be sold, and that the interest on one-third of the proceeds of the sale of her husband’s interest therein, shall be secured to her for life.
    But as to other lands where no suoh inconvenience or difficulty exists, the court will direct that dower be specifically assigned out of the estate.

      Appeal from Hempstead, Circuit Court in Chcmcery.

    Hon. Lew B. OiiseN, Circuit Judge.
    Watkins, for Pike.
    The decree assigning dower to the widow in each specific tract of land, is disastrous to her; and Pike is injured by it because it is an unwise restriction, a clog and incumbrance upon the advantageous sale of his share or interest in the land.
    It is quite plain that Pike and Underhill entered into a land speculation in partnership. Their agreement constituted them partners quoad the proposed land investment. See on this subject, 3 Kenfs Com., p. 38, et seq., and notes cmd oases cited. Smiths'1 Mfr. v. Garth, 32 Ala. Rep., 368, is a case in point to show that they were partners to all intents and purposes.
    But whether Pike and Underhill contemplated a partnership in the buying and selling of swamp lands, is not material; because their agreement expressly provides that what Pike should owe to Underhill should be paid out of the proceeds of the sales: that contract became the law of their projected adventure, and any right or claim of either of them, or the representatives of either, must be held in subordination to it: It is clear, therefore, that neither Underhill nor his representatives can have any rights unless in specific performance of that agreement. The lands or a sufficiency of them are to be sold, and Underhill’s estate re-im-bursed out of that fund, and so far as the decree clogs or hinders that with a claim of dower in wild lands, it is erroneous and ■ought to be reversed, because in clear violation of the contract.
    On the appeal of Burgett, it is sufficient to say, that if his answer were a bill in chancery, and every word of it were proven, or confessed to be true, it would have to be dismissed, because owing to the vagueness of the allegations, no decree could be rendered upon it; and if he had any claim to relief against either party, he should have presented a cross-bill. See Lube’s Eq. Plead., p. 142, et seq. and notes.

      Jennings and Knigiit, for Burgett.
    The answer of Burgett responds that his interest is as stated in the bill, that is: that he was jointly interested with Underhill in the funds with which the lands were purchased. His answer, then, must be taken as true. 2 Story’s Ey., sec. 1528 ; Fenno vs. Sayre, 3 Ala. 458.
    Burgett being equally interested in the funds, that interest could not be divested by the misuse of the funds by his co-partner in the purchase of property for the benefit of himself and a stranger, whether he knew it to be partnership property or not —being joint property it could be transferred or used only for the benefit of the concern. Story on Part., p. 220, n. 1; Goll. on Part. 2T9 ; 11 S. <6 M. 326; 24 Miss., 172.
    As this case was presented to the chancellor by the 'bill and answer — the one stating that Burgett asserted a claim and interest in the lands; the other admitting it and setting it up as prayed to be discovered, the court should have adjudicated such claim; but if a cross-bill was necessary, the court should have directed such bill to be filed in order to bring the rights of all the parties fully and properly before the court, before a final decree was rendered. Daniels Oh. PI. and Pr., p. 1745, and eases there eited in a note.

   Mr. Justice English

delivered the opinion of the Court.

On the 28th of November, 1852, George W. Underhill, of Crit-tenden county, and Albert Bike, of Pulaski county, entered into a written contract, by which it was agreed between them, in substance, that they would jointly enter and locate such swamp and overflowed lands of the state, south of Bed river, as Pike should select, and furnish the numbers thereof, to the quantity of at least 20,000 acres, and as much more as Underhill might be able to obtain scrip to enter.

That the lands should be selected and entered in certain townships mentioned, and in other townships contiguous thereto.

That the lands so selected should be entered by lists thereof (furnished by Pike) and annexed to the agreement, signed by the. parties.

That all the lands so located should be held and owned by the parties jointly and equally, as tenants in common.

That Underhill should furnish all the scrip, and make all the entries, for which Pike should be indebted to him one half of the value of such scrip, at the price at which entry of the lands should be allowed; and that the amount due by Pike should bo paid out of the proceeds of sales of the lands, to be made after they were reclaimed, by assent of both parties. Pike being in no event bound to pay for said scrip any more oí other sum than his half of any deficit caused by the sales of the lands falling short of paying the price of the scrip and interest thereon from the time of location.

The contract was signed and sealed by the parties.

In pursuance of this contract, Underhill entered a large amount of lands (over 50,000 acres,) with scrip, and balances due him from the state as a levee contractor, from selections made, and lists furnished by Pike; and through the exertions of Pike, final certificates of purchase were obtained for most of the lands, so entered, from the swamp land commissioners.

Underhill having died, Pike filed a bill in the Lafayette circuit court against his administrator, widow and heirs for specific performance of the contract.

Isaac Burgett was also made a defendant to the bill, upon an allegation that he claimed, as the complainant Pike had lately been informed, an interest in the lands as having been jointly interested, with Underhill, in the scrip and balances with which they were purchased, etc., etc.

All of the defendants answered, and on the final hearing, the bill was dismissed as to Burgett, a decree rendered in favor of the widow of Underhill, (who had intermarried with Vm. E. Jones,) for dower in the lands, and in favor of Pike for specific performance of the contract, etc.

Pike and Burgett appealed.

The subject of Burgett’s answer is, that he hacl no personal knowledge of the contract between Pike and 'Underhill.

That about the year 1851, he and Underhill having entered into a partnership for that purpose, contracted to construct thirteen miles of levee on the Mississippi river, and were to be equally entitled to the profits thereof. That Underhill drew a large amount of scrip tor levee work done by them under their contract, in which they were jointly interested, a portion of which he used in the entry of the lands described in the bill. He therefore claimed to be an equitable owner of one half of the lands so entered, or to have an equitable lien upon the lands for the value of so much of his scrip as was used by Underhill in making the entries.

He does not aver that Pike had any knowledge of the partnership between him and 'Underhill, or any notice that he was interested in the scrip used by Underhill in the entry of the lands.

The answer was filed, and replication entered thereto, on the 14th November, 1859, and the cause continued with leave for the parties to take depositions.

On the 22d November, 1861, the cause was called for final hearing, and the solicitor of Burgett filed a motion for continuance, on the ground that he desired to obtain the depositions of witnesses to prove that the lands in controversy were entered by Underhill with scrip, etc., which belonged equally to him and Burgett under their partnership levee contract, etc. The court overruled the motion, proceeded to a final hearing of the cause, and dismissed the bill as to Burgett, without prejudice to any claim that he might have to relief as against the repsentatives of Underhill, he having failed to assert such claim by cross-bill.

The matter of defence sot up in the answer of Burgett was not responsive to the allegations of the bill, but new affirmative matter, and the burthen of proof was upon him; and he failed to produce upon the hearing depositions to sustain it.

Passing over the questions of diligence, had. the court continued the cause to afford him further time to procure depositions to prove the matter set up in the answer, it would have been of no avail to him, because it is manifest that any equitable claim that he had upon the lands as against Underhill’s representatives should have been asserted by a cross-bill, which he failed to file, or to offer to file. And' had he been afforded any time that he might have desired to prove every allegation of the answer, it would have been no bar to the relief sought by Pike, as to his interest in the lands, because there was no averment in the answer that Pike had any notice that Burgett had any interest in the scrip used by Underhill in the entry of the lands, or that there was any partnership existing between Burgett and Underhill.

So much of the decree of the court below, therefore, as dismissed the bill as to Burgett must be affirmed.

Pike complains of so much of the decree as gives to the widow of Underhill dower in each specific tract of land.

The court decreed to her one-sixtli of all the lands, that being equal to one-third of her deceased husband’s half of the lands, and appointed commissioners to lay off her dower accordingly ; and decreed to Pike three-fifths of the remainder of the lands, that being equal to one-half of the whole of the lands, charged with the payment to Underhill’s administrator of one half of the value of the scrip, etc., expended by him in the entry of the lands; and decreed to Underhill’s heirs the remaining two-fifths of the lands with the remainder in the sixth of the lands to be set apart to the widow as her dower interest.

The court appointed a trustee to make sales of so much of the lands as might be necessary to pay the debt due from Pike to Underhill, with directions to the trustee to pay the proceeds of the sales to the administrator of Underhill, and that he credit Pike with three-fifths thereof, until his indebtedness to Underhill should be extinguished, and that the remaining lands be partitioned between Pike and Underhill’s heirs in the proportions above indicated.

The decree in favor of the widow was unfavorable to her, and prejudicial to the interests of Pike and[ the heir§ of Underhill.

Her dower, if assigned under the decree would be scattered in inconsiderable bodies, over a great many tracts of wild lands, many of which aie the smaller subdivisions of sections, and the value of her dower, by such mode of allotment, would be necessarily impaired.

It would, also, constitute an inconvenient incumbrance upon such of the lands as by the terms of the contract between her deceased husband and Pike, and by the provisions of the decree for specific performance, are to be sold, as well as upon the lands to be partitioned between Pike and her children, after the extin-guishment of the debt due from Pike.

We think the more equitable mode of giving her dower will be to direct that one sixth of the proceeds of the lands sold by the trustee be put at interest, upon safe securities, under the supervision of the court, and the-interest paid to her during her life, and the principal turned over, after her death, to Underhill’s heirs, and that the lands remaining after the making of such sales as may be required to extinguish Pike’s debt be partitioned equally between him and Underhill’s heirs: and that she be assigned for dower one-third of the lands allotted to the heirs, in a manner most beneficial to her and least incumbering to their lands; and that the remainder of their lands and all of Pike’s be disencumbered of her dower.

So much of the decree as relates to her dower most, therefore, be reformed, by a decree entered here, in accordance with this opinion, and certified to the court below to be executed.

So much of the decree as is not reversed, or modified, by the decree to be entered here, must be affirmed. '

It may be remarked that it would have been more regular for the widow of Underhill to have made her answer a cross-bill, in order to have her dower rights, as between her and the heirs of Underhill settled, but they did not appeal*, and this irregularity in practice is not the subject of complaint on the appeal of Pike.


author: Mr. Justice Fairciiild

text:
    Daniel vs. Roper.
    The bill in this ease charges that the defendant reduced the plaintiff to slavery, and that she was compelled to bring a suit whereby, after a protracted litigation, she regained her freedom; that when the defendant reduced the plaintiff to servitude he tooli from her certain personal property; that she brought an. action of trover therefor, soon after the judgment was rendered whereby she was finally liberated from slavery: that the defendant offers to plead the statute of limitation at law, from which she prays that he may be injoined: Held, that it appearing that the plaintiff recovered her liberty on the ground that she belonged to the white race, the claim of the defendant to hold her in servitude is no excuse to the plaintiff for not bringing her suit at law within the period of limitation.
    The judgment in the suit for freedom having decided the fact that the plaintiff is a white woman, it follows that she was never under any disability to sue by reason of the claim preferred by defendant that she was his slave.
    Neither her bondage before the institution of the action of trover, nor the restraint by being hired out under the direction of the court pending her suit for freedom, prevented her from bringing her actiou of trover for damages sustained by reason of the unlawful conversion of her property.
    Nor is the alleged fact that she was advised by her counsel not to bring the action of trover until her suit for freedom should be decided, such an excuse for her failure to sue as will displace the statute bar.

      Appeal from Ashley Gireuit Court in Ghcmeery.

    JohnstoN and HutchiNsoN for appellant.
    The plea of the statute of limitations is admissible in all cases, both in law and equity, where the facts support it; and will not be disallowed on account of any supposed odiousness to it in the particular case. .
    During the pendrenc^ of the appellee’s suit for freedom, she was a free woman, and might at any time have brought her suit in trover; and as by her laches she has permitted the statute bar to become complete, she must bear the loss.

      "Waddell, and GarlANd & Randolph, contra.

    It is well settled that a slave cannot sue except for freedom. 9 Lou. Rep., 156 ; 2 Swan’s Tenn. Hep., 149. And during the pendency of the appellee’s suit for freedom, she was treated as a slave, was to all intents and purposes a slave — was hired out— had no civil rights, and therefore could not sue for the infringement of them. Then had she sued, her suit would have been dismissed. 2 Swanks Rep., 159.
    As the statute of three years had run before she could commence her suit, to permit Daniel to have the benefit of the statute ■would be unjust, and a taking advantage of his own wrong; and in such cases equity will interfere. Eden on Injunctions, by Waterman, 14; Story’s Eq., secs. 903-1521; Drewry on Inj., 320.
   Mr. Justice Fairciiild

delivered the opinion of the Court.

By bill preferred on the chancery side of the Ashley circuit court, Abby Roper represented that, about January, 1856, Daniel, the defendant, took her and her children into custody, claiming them as his slaves; that to obtain relief from the illegal bondage extended over them, they instituted legal proceedings under the statute of this state allowing persons held in slavery to sue for their freedom, returnable to the April term, 1856, of the circuit court of Ashley county, that the proceedings were protracted by appeals to the supreme court, change of venue or mis-trial, till the January term, 1861, of the supreme court, when the judgment of the Drew circuit court, liberating the plaintiff and her children, was affirmed, and they thus finally obtained the freedom to which they were entitled, and of which they were deprived by the defendant. The bill also charges that when the defendant reduced her and her children to slavery, he took from her two mares and a colt, a yoke of oxen and a cart, which were property of her own acquisition, and to which the defendant had no title, and made no claim of any, only that as acquired by her, and she being a slave, it belonged to him; that she sued for the property at the first court after she could do so after the final decision of the'supreme court; that this suit, an action of trover, against tlie defendant, was then pending in the circuit court of Ashley county; and that the defendant, after having kept her in slavery during the period of litigation, has the hardihood to plead the statute of limitations of three years to her action ; that she is advised the case does not present Itself within any exception of the statute, but from the defense being against equity, she asks that he be enjoined from interposing the plea.

The bill was presented to the court. The judge, from having advised the plaintiff in relation to the action of trover mentioned in the bill, declined to preside in the case, and under the provisions of the constitution of 1861, a special judge was selected from among the attorneys present, who qualified and took jurisdiction of the case. No demurrer or motion was filed to the bill, but it was immediately taken np by the court; and by the consent of the defendant, as we must suppose, as the order of the court states that argument of counsel on behalf of both parties was heard by the court. Notwitstanding the informality of the proceedings, we shall consider the case as if it were regularly sot down for hearing upon bill and answer, .or upon- demurrer to the bill,'as the parties evidently considered that the refusal or grant of injunction as to the use of the plea of limitations in the action of trover, was the only point in the case', and approached it without the formality of technical pleadings and orders. With the same promptness that characterized the whole proceeding, the defendant, when the court awarded the injunction, subject to the bond required by statute being given, took his preliminary order as a decree disposing of the whole of the case, and without showing a disposition to wait further, or wait for the bond to be given, elected to consider it as a final decree, and prayed an appeal to this court. We shall make no objection to the consideration of the case, on account of the manner in which it is presented to the court, but shall proceed to the determination of the only matter involved in it; that is, whether the claim made by the defendant over the plaintiff and her children as his slaves, is an excuse to the plaintiff for not bringing her suit at law for the property taken from her by the defendant, within three years from the time of its taking or conversion.

Although the bill does not state whether the plaintiff is a white woman, of Indian blood, or of pure or mixed African descent, it alleges she is the person whose case, under the name of Abby Guy, was twice before this court, and at each time she was one of the appellees, and Daniel, the present defendant, was the appellant. The case is reported in 19 Ark., 137, where the evidence adduced upon the trial in Ashley county is set out at large, and in 23 Ark., 50. In the last case the opinion of the court mentions the appellees as having the appearance of belonging to the white race, and of having for many years acted and been treated as a free person. This is a statement of the effect of the testimony as given on the trial in Drew county, while the detailed testimony of the first trial given in the report of the case in 19 Ark., shows that Abby Guy and her children claimed to be free persons solely from belonging to the white race.

Then taking the plaintiff to be what, throughout her protracted litigation with the defendant, she claimed to be, what the’juries of two counties found her to be, a white woman and a free person, she was never under any disability to sue from the time the defendant took, and converted to his own use, the property specified in the bill. For the mere claim that a white, or a free person is a slave, a resort to our statutory mode of procedure by the person claimed to be a slave, the bondage before suit and the restraint by being hired out under the direction of the court, while the suit is going on, do not make a person a slave, as the case of this plaintiff and her children abundantly proves.

Nor did the asserted claim of Daniel over Abby Guy, prevent her from beginning her action of trover, or other appropriate action, for the recovery of the property taken from her by Daniel, or for its value, as soon as he took it from her by force, or when lie converted it to his own use. Because she was wrongfully subjected to bondage, and obliged to sue as a pauper to be freed from it, sbe was not deprived of the ownership of property, or of her right to sue for.its conversion. If that were the law, Daniel, or any evil disposed person might claim the whitest, the purest blooded and richest man of the land as his slave, reduce him to a state of slavery, take all his property from him, hold'it while the litigation about the right to freedom was proceeding, and so long that the law of limitation would give him the property against any legal claim that the rightful owner could make after the courts had pronounced upon his right to freedom.

But even without adverting to the Abby Guy cases, upon the case made in the bill by Abby Boper, the same conclusion must be reached. The plaintiff does not state whether she is a white or a black woman, or of mixed blood, but she does charge that the defendant wrongfully extended a claim over her and held her in slavery, and that he took from her property of her own acquisition. She must, then, have been acting under the claim of being a free person, must have been recognized and treated as such by others; for otherwise she could not have accumulated horses and oxen. No free person, white or black, can be deprived of the right to appeal to the courts for the restoration, or for the value of his property, because it may be taken from him by violence, and because the wrong doer adds wrong to wrong by falsely claiming the owner of the property to be his slave. The inj ured person may, at the same time, sue for his property and sue for his freedom, if his adversary have the power to put him under restraint or hold him unlawfully. Commonly, those that sue for freedom are of the African race, in whole or in part, have been held in slavery, and claim their freedom from their ancestors or themselves having been kidnapped, or from being entitled to emancipation by the acts of former owners. In such cases, the claimants to freedom remain in a state of slavery, can have no property to call their own, have not the legal standing to enable them to bring any suit except to claim the right to freedom. But Abby Guy’s case was far different from such cases. She must be likened to persons in the enjoyment of freedom, not to those in the condition of slavery, though claiming freedom and perhaps entitled to it. She could have sued Daniel for her property when she and her children sued for themselves. If she had been able to'have withstood Daniel without the assistance afforded by the act under which she sued, she, like any other white person, restrained of liberty, could have sued Daniel in trespass for false imprisonment without alleging that she was free but held in slavery, and could have recovered damages according to her proof, and according to the law administered between free persons in like controversies: always supposing juries to find her condition to be as found by the two juries who affirmed her right to freedom.

The plaintiff alleged in her bill that she was anxious to have sued Daniel for her property, while her suit for freedom was pending, but that her counsel would not bring the suit, on the ground that she had no right to sue till her freedom should be won. If this be so, it is not the first time that this court has been obliged to differ from opinions that have been given by counsel upon the subject of litigation; but mistaken advice, though injurious to the interests of the client, may not, cause the courts to swerve from the correct administration of the law.

Holding that the bill has made no case to avoid the plea of limitations apprehended in the plaintiff’s action of trover, we reverse the decree without expressing any opinion upon the question mainly argued by her counsel that it is within the province of a court of equity to prevent a defendant in a suit at law from relying upon the plea of limitations. The case must be remanded to the circuit court of Ashley county setting in chancery with instructions to set aside the order for an injunction and to dismiss the bill.


author: Mr. Justice .Fairohild

text:
    Schaer vs. Gliston.
    In order to make an improvement on the lands of the state available, there must have been no prior improvement thereupon.
    It does not belong to the plaintiff to object to the smallness of defendant’s improvement when his own does not largely partake of the qualities of a substantial improvement.
    when men fully acquainted with the qualities of objects for which they Bearch, and with the ground where the search is made, do not find them, their testimony is not subject to the suspicion that attaches to negative testimony concerning facts to which their attention has not been directed.
    To disturb a legal title acquired under our swamp land laws, the plaintiff must show a prior light and a superior equity. (Mclvor vs. Williams, 28 Ark.; Wright vs. Oreen, ib.)

    The plaintiff must recover on the strength of his own case, and not on the weak ness of that of the defendant.
    If the adverse claims of persons having improvements on the same land were not known to each other, the success of one, whether the most or the least deserving, did not clothe it with a trust for the benefit of the losing claim. (Paty vs. Har-rel, 28 Ark.) ♦
    Where the equity is doubtful the legal title must prevail. (Paty vs. Harrell, ubi sup.; Woodruff vs. Gore, 23 Ark.)

      Appeal from Pulaski Chancery Court.

    Hon. IJ. M. Rose, Chancellor.
    JordaN, and Williams & Martin, for appellant.
    Two points are submitted to the consideration of the court for the reversal of the decree herein:
    1st. That the improvement upon which appellee bases his right of pre-emtion was not on the quarter section in controversy.
    2d. The accrual of the right of appellant to a pre-emption on the land, is prior in date, and therefore paramount to that of ap-pellee. And no fraud, dishonesty or unfairness being shown on the part of Schaer in selecting the land, making his improvement and obtaining bis certificate of purchase, he should not be disturbed in his legal title to the land.
    S. EL Hempstead and J. T. Trigg, for the appellee,
    contended that the evidence clearly shows that the improvement of Woodard, from whom appellee purchased, was prior in date to the improvement made by appellant: that the fact that the improvement was not seen by the witnesses of the appellant is not proof oí its non-existence ; that the improvement of Gliston was a Iona fide, substantial one — he living on, and cultivating the land; whereas that of appellant could not properly be called an improvement, and should not have been considered as such.
   Mr. Justice .Fairohild

delivered the opinion of the court.

In the spring of 1857, Schaer attempted to make an improvement upon the north-west quarter of section twenty-seven, in township two south, of range ten west, but was afterwards told by Hardy, a surveyor, and who had selected the land for the state, as part of the swamp land'grant, that his improvement was not on this quarter section. Hardy was then employed by Schaer to show the land, and to direct where an improvement should be made, and in August, 1857, he, with three other persons, proceeded to the work of running out the land and making the improvement. In tracing the lines, Hardy was the surveyor, his son and another person were the chain-bearers, and Schaer’s father was present representing the interest of the son. The lines were ascertained by aid of the compass and chain ; but to make the intended improvement available as a pre-emption right, there must have been no prior improvement upon the land. To ascertain this, and also to see the quality of the land, the four persons engaged for Schaer made what Hardy calls a pretty thorough examination of the land, and could not find upon it any improvement.

The claim of Gliston is also supported by the testimony of two witnesses, who prove that, in November, 1857, he bought an improvement which had been made upon the same quarter section before August, 1857, when Schear’s improvement was made. These witnesses, Hester and McCall, both testify that the improvement which Gliston bought of 'Woodard, and which he afterwards much extended, is on the piece cf land mentioned; and they state this from actual knowledge of the lines, from having been often upon the land, and from being familiar with the region of .country where the land lies. Woodard’s improvement made in the latter part of 1856, consisted of between one and two acres of deadened timber, with some saplings cut, as shown by Hester— as testified to by McCall, of some acre and a-half or two acres deadened. This being the improvement which is claimed to be prior to that of Schaer, is the one taken into consideration by us, passing by the subsequent and enlarged and actual improvements that were made in the fall of 1857, and in the succeeding winter by Woodard and by Gliston. The particular point to which our attention is directed, being, which was the first improvement upon the land in controversy, sufficient to uphold a pre-emption right.

The testimony adduced on the part of Gliston when taken by itself, is abundantly sufficient to show that an improvement was made, or begun, by Woodard, on the piece of land in question in the latter part of 1856, if an acre or two acres of deadened timber be such improvement. And whatever might be our opinion upon this, it does not belong to Schaer to object to the sufficiency of Woodard’s improvement, when his own does not largely partake of the qualities of a substantial improvement.

But although Gliston’s case is fully made out by his own witnesses, that of Schaer is also well established in relation to there being no improvement on the land in August, 1857, that could be discovered by the four men employed by him to ascertain this particular fact. Bor it was known to Hardy that it was necessary not only that the improvement should be upon the desired land, but that there should be no other improvement thereon, as appears by his deposition. Itis also evident that the improvement proposed to be made for Schaer, was not intended to conflict with .any other; that is, in. the words of Iiardy, if any improvement had been found on the quarter section, none would have been made on it for Schaer. We cannot see how four men, intent upon finding an improvement upon the land just surveyed by them, on going all over the land, in open woods, could have overlooked such an improvement as Woodward’s is shown to have been by his witnesses, it being equal, in amount of labor, to that by which they proposed to secure the land for Schaer, and equal to another made by Hardy which answered its purpose in enabling him to secure the land. When men fully acquainted with the usual qualities of objects for which they search, and ydth the ground where the search is made, do not find the improvements they are looking for, their testimony is not subject to the suspicion that attaches to negative testimony concerning facts to which the attention may not have been directed, or which may escape notice in the multitude of distracting incidents. Such testimony, confronted by affirmative testimony of the existence of facts that are the subject of inquiry, is far different from the testimony of the two Hardys in this case. Notwithstanding the positiveness with which Hester and McCall depose that Woodard’s improvement was on the north-west quarter of section twenty-seven, in township two south of range ten west, we can conceive of their being mistaken in the locality, as well as we could conclude that Woodard’s improvement eluded the search of the two Hardys,1 of Brown and oí Schaer, the father of the appellant. Or, observing the different estimates of the amount of the same improvement made by unimpeached witnesses upon opposing sides of a case, as is shown by what is said about Schaer’s improvement, we might infer that Woodard’s improvement, if upon the land mentioned, would be found to be less than set forth by Hester and McCall, and so not found in August, 1857, by Schaer’s improvement hunters. In whichever point of view the case is regarded, or in any way that we can look at it, it is painfully embarrassed by conflicting testimony.

We cannot reconcile the testimony by holding that the Hardys are mistaken in tbeir identification of the land. For, conceding to Hester and McCall, the advantage of long acquaintance with the land and a habit of tracing lines, their testimony cannot be stronger, nor, we think, as strong to fix the location of the land as that of the two Hardys. George W. Hardy had selected the land for the state, he surveyed its exterior and interior lines, and he had every inducement, in consideration of the former mistake of the chain-carriers, to run out the land for Schaer with exactness. James Hardy, also, assisted his father in surveying the land when it was selected as swamp land, looking at it with a view to its appropriation by himself: he had also traced the lines when helping Brodie to find his lands, so that with the survey made in August, 1851, hehadparticipated'in three surveys of the land.

And even if the testimony should be reconciled by supposing that Woodard’s improvement was on the land in August, 1851, if it could not be found by such search as was made over the land for Schaer, the case would clearly fall within the principle of the cases of McIvor vs. Williams, and Wright vs. Green, decided at the term of. this court, held in December, 1862 ; that principle being, thatto disturb a legal title acquired under our swamp land laws, the plaintiff must show a prior right and a superior equity. And this is only an application of the maxim recognized in all legal proceedings, that a plaintiff must recover upon the strength of his own case, not upon the weakness of that of defendant.

Gliston’s purchase of Woodard’s improvement and ample extension of it by his own labor, occurring after the improvement of Schaer was made, which was converted into a pre-emption right by being so regarded by the state land agent, and which has been merged into the legal title, were subsequent claims, and gave no strength to the improvement which Woodard made before August, 1857, and which might be existing at that time.

The evidence also plainly shows that Schaer did not intend to defraud Gliston or any one, as if there had been any improvement found on the land', it would not have been subjected to any claim by Schaer, whence the claim of Gliston could not be considered as an equitable right. If the two claims were not known to these respective claimants,'they were simply statutory claims; and the success of one, whether the most or the least deserving, did not clothe it with a trust for the benefit of the losing claim. Paty vs. Harrell, Dec. 7, 1862. Nor can Gliston assert that the affidavit of Schaer before the land agent was so inconsistent with his improvement, then become substantial, as to make Schaer’s claim fraudulent any more than Schaer can retort the same charge upon Gliston. 1 b.

Any possible effort which could be used to make the testimony agree, would result with us, as it did with the chancellor, in a hesitating opinion ; yet, the effect of it in this court, unlike its influence with the chancellor in this case, is held insufficient to overcome the better condition of the defendant in a doubtful case, or to divest a title fairly obtained and with the sanction of our system of swamp land laws. Paty vs. Harrell, and Woodruff vs. Core, 23 Ark., 346.

We think the decree of the court below should have been for the defendant: we reverse it, and decree here a dismissal of the plaintiff’s bill.