text:
    Walworth vs. Miles.
    A sub-commissioner reported the measurement and estimates of the value of work done and furnished by M., a levee contractor, and the reports were confirmed by the Board of Swamp Land Commissioners. M. then applied to enter certain lands in part payment of the sum reported due him for levee work, and received from the Secretary of the Board a certificate that he had applied to enter the lands, and also a certificate of the balance due him after deducting the price of the lands. The Board afterwards, on ascertaining that the levee work was insufficient, rejected the reports, and canceled the certificates : Held, that the reports of the sub-commissioner, their confirmation by the board, and the issuance of the application certificate, etc., did not constitute a complete sale of the lands, so to pass the matter beyond the control and revoking power of the commissioners — that they had the authority to cancel the certificatesjon ascertaining the insufficiency of the levee work, of which they were the judges — that a sale by them was not complete until the lands were legally paid for, and a patent certificate issued.
    Where parties to a contract for the sale of lands mutually manifest an intention to repudiate and abandon the agreement, by a series of acts in hostility to it, neither of them can afterwards enforce the specific performance of the contract in chancery.

      Appeal from Chicot Ci/rcuit Court i/n Cha/ncery.

    I-Ion. J. 0. Mubbay, Circuit Judge.
    G-ARLAND and Hempstead, for Walworth.
    Puns & SoN, for Miles.
   Mr. Justice Fairchild

delivered the opinion, of the court.

In May, 1852, Miles endeavored to enter at the Swamp Land Office, in Helena, about forty-six hundred acres of land, most of which was then in the occupancy of Walworth, and which, known as Point Chicot, had comprised Ms plantation from 1828 and 1836. The lands in question, with other lands that were occupied by Miles, were within the limits of the De Yillemont claim, which had caused them to be reserved from sale by the United States. This claim being about this time adjudged to be bad, the lands were taken to be within the swamp land grant, and Miles early availed himself of the opportunity, thus afforded, to secure, with other lands, those upon which "Walworth had long resided. Walworth maintains that his possession should have exempted the lands occupied by him from entry by Miles: and that the claim of Miles is founded on a violation of the rules of fair dealing, of good neighborhood, and of the personal relations between the parties, growing out of Walworth’s exertions to defeat the De Yillemont claim.

This part of the case may be passed over with the remark, that .courts take no notice of personal obligations, or social duties, unless they involve legal rights. And this is a rule in equity as much as in law, for an equitable right is only a right to relief that cannot be redressed at all in a court of law, or as well as in a court of equity; it is not in any case a question of courtesy, of propriety, or of good behavior. The effect, then, that is to be given to what Miles claims to have been an entry of the Walworth lands, must be that which the law ascribes to it, disconnected from any question growing out of Walworth’s possession, unless the law affixes a legal right to his possession.-

Previous to the 6th of May, 1852, Miles had contracted to do, and furnish levee work for the Swamp Land Commissioners, in townships fifteen south, range one west, and fifteen south, range one east; and estimates of the work had been made, by which a sub-commissioner reported that for work done in section twenty-five, in the former township, Miles was entitled to the sum of two thousand, four hundred and fifty-nine dollars and eighty-nine cents; and that for work done in township fifteen south, range one east, he was entitled to the further sum of two thousand, three hundred and forty-two dollars and forty cents. Upon these reports, a confirmation was endorsed, signed by three commissioners, but the order of the Board of Commissioners approving the estimates, and ordering the sums named to be paid, was made upon the 6th of July, 1852; and this we take to be the first regular meeting of the board after the reports of the sub-commissioners were filed in the swamp land office. There was also endorsed upon each estimate, a receipt of payment by Miles, the first receipt expressing the payment to be in an application for lands in township fifteen south, range one east; the second, for the same, and for a certificate of thirteen hundred and fifty dollars and ninety-nine cents. These receipts were dated the 10th of May, 1852, as were also the following papers — an application of Miles, and certificate of application:

I, James B. Miles, do hereby apply for the purchase of frl. sec. 4; frl. sec. 5; frl. sec. 7; sec. 8; frl. sec. 9; frl. sec. 16; sec. “ 17; frl. sec. 18; frl. sec. 19; frl. sec. 20, and frl. sec. 30, contain- ing 4,548.28 acres, all in 15 south, 1 east, in payment for levee work done, and received by the commissioners, or scrip “ issued to --by the Swamp Land Commissioners under act “ of the Legislature of Arkansas, approved 6th and 11th January, “ 1851.

“ JAMES B. MILES.”

Office of the Board of Swamp Lard ComMissionees, )

Selena, ArJecmsas. j

“ This certifies, that James B. Miles has this day applied, “ at this office, to purchase the following lands, to-wit: frl. sec. “ 4; frl. sec. 5; frl. sec. 7; sec. 8; frl. sec. 9; frl. sec. 16; sec. 17; “ frl. sec. 18; frl. sec. 19; frl. 20, and frl. sec. 30, containing “ 4,548.28 acres, in 15 S., B.. 1 East, in payment for levee work “ done and received by the Board of Swamp Land Commission- “ ers, or scrip.

W. E. BUTTS, Secretary.”

These papers, the estimates mentioned, and their approval by the commissioners, constitute the claim of Miles, and must make it a title if the commissioners thereby sold the land to Miles, so as not to be able to suspend their allowances of pay to him, and also his application to receive his pay in the lands and in scrip.

But at the same meeting of the Board of Swamp Land Commissioners, and the next day after the allowance to Miles of the sums of money named in the estimates, the following order was made: Now on this day came H. B. Walworth, and filed his protest against the sufficiency of the old levee-as reported by John A. Craig, in township 15 south, range 1 east, as the levee of James B. Miles, and the further payment to said Miles for “ the same until the subject matter of the protest can be investi- gated by the board.

And the same having been fully considered by the board, it “ was ordered that the application of the said Miles for lands upon said report, and also the report of 15 south, 1 west, be sus- “. pended, and also the payment of the certificate issued for the “ balance of his allowance for the said levee, until the sufficiency of said levee, and the claims arising thereon, shall be fully adjust-u ed; and it is further ordered, that said Miles be notified of the sus- “ pension herein until the next meeting of the board, to be held “ at Helena, on the first Monday in October, 1852, to which time “ the further consideration and action in this cause by the board “ is continued.

And at the next term of the board, the following order was made:

“ Now on this day came Horace B. Walworth, and the mat- “ ters and things arising upon the protest heretofore filed by “ him against the levee reported by John A. Craig, in favor of “ James B. Miles, situate on the west side of the Mississippi “ river, in township 15 south, of range 1 east, for the insuffici- “ ency of the size of said levee, and for other causes, coming “ up for hearing by the Board of Swamp Land Commissioners; “ and it appearing, to the satisfaction of the commissioners, “ that said Miles had received due notice of the same, or that u the same had been forwarded to him, that his cause would “ come up for hearing at this session of the board, and the said “ Miles not appearing,' the board proceeded to hear testimony • “in support of the allegations contained in said protest, and “ having fully, heard the same, and fully considered what order “to make herein, it is ordered that the report of said levee, “ amounting to the sum of $2,342 40, be, and the same is here- “ by rejected, and.the entries made by said Miles in said town- “ ship, by virtue thereof, and the certificate for the balance “ thereof, granted by the secretary to said James B. Miles, be “ and the same is hereby rescinded, canceled and held for “naught.”

To understand, fully, the nest order of the board, it may be stated here, that after the order of the board suspending the entry of Miles, had been communicated to "Walworth, he wrote from Louisville, Ky., under date of 12th July, 1852, to Hornor, that, being informed of the suspension, he was anxious to prevent any other person from entering the lands in the event of the entry of Miles being rejected, and requested Hornor to enter them for him, if the secretary could permit it to be done. The secretary permitting, Hornor, on the 21st of July, 1852, entered, in the name of Walworth, twenty-five hundred and three 84-100 acres of land, and at the bottom of the certificate the secretary noted that the lands embraced in it had been before entered by Miles, but that his entry was suspended by an order of the Board of Swamp Land Commissioners.

The next and final order made iipon the allowance of the application of Miles, was made by the board on the 6th of January, 1853, and is thus:

“This day came James B. Miles and protests against the “ action of the board upon the sufficiency of the levee work as “reported by the sub-commissioner, and the entries of land “made by him at this office on account -of said levee work. “And also came Horace F. Walworth and protests against the “ sufficiency of said work, and prays it may be examined by a “ suitable engineer, and against being disturbed in his claim to “ the lands which he was permitted to enter after the entry of “ said Miles had been canceled by order of last meeting of this “ board. Thereupon the board do order the further considerar “ tion of this subj ect to be dismissed, and leave the parties to their “ rights at law in the premises.”

This is called the final order upon the application of Miles, notwithstanding that, on the 5th of April, 1853, it was ordered .by the board that the application should be certified to the Auditor of the State. For assuming that this, which was done on motion of John A. Craig, was at the instance of Miles, it could not operate for his benefit, for the commissioners had no authority to make such a certificate; and when made, it would be of no avail, as seems to have been understood by the secretary of the board, who made no return of the order in a regular official report, but merely sent the list of lands applied for by Miles to the Auditor, upon a sheet of loose paper, as upon the motion of John A. Craig, which the Auditor properly considered as no report that Miles had entered the lands.

By the 6th section of the swamp land act of 6 th January, 1851, it was provided that when a contractor had finished his work according to his contract, and had selected land in payment of it, or had located his scrip therefor, and had furnished the numbers of the land selected, or located, to the commissioners, the commissioners should certify these facts to the governor, who should execute a deed for the lands. And by the 8th section of the same act, when lands were sold by them, for scrip, they were to furnish the purchaser with a certificate of purchase and payment, which would entitle him to a deed for the lands.

Such a certificate as Craig moved to have made, though made with as much form as the Board of Commissioners, or their secretory could clothe it, would not have been a certificate' under either of the sections quoted, and the commissioners had no power to give any other. They could sell the land, and they could give certificates of sale, on payment being made, but had no authority to give certificates of application for the purchase of lands, when the work for which the lands were to be passed as payment, had been rejected, the attempts at their entry suspended, and the scrip, which had been issued for an excess of the estimated value of the work over the price of the lands, had been canceled after full opportunity for investigation of the levee work. This case calls for an application of the principle heretofore announced by this court, that the title to the swamp lands was not in the commissioners; that they derived their power to sell from the statutes upon, the subject, whose requirements they must observe, to make a lawful sale. Cheatham vs. Phillips, 23 Ark.

The certificate of application for lands, which was the only one Miles ever received, from Ordinance No. 9, Hempstead’s Swamp Land, Laws, 48, does not seem to have been intended, as it was not in terms, a certificate of purchase; but when the lands should be confirmed to the State, the application, if found to be correct, and accompanied with the scrip, or with an authenticated account of the levee work, whichever the application was founded upon, would entitle the applicant to a final certificate of purchase. This course of procedure, which seems first to have been a rule adopted by the commissioners, probably in analogy to the form of entry in the United States land oifices, was afterwards sanctioned by legislative enactment, when the final or patent certificate was required to be issued by the land agent of the district upon the surrender of the certificate issued by the commissioners, and upon finding that the lands had been paid for, had been confirmed, and were not the subject of conflicting claims. Act of 20th January, 1855, sec. 1, Gould’s Dig. 730.

The certificate which Miles must have obtained before his entry was complete, before he could demand a deed from the governor, under the 6th section of the act of 6th January, 1851, was a patent certificate, as much as that afterwards provided for by the 1st section of the act of 20th January, 1855, transferring the issuance of the final certificate of purchase to the land agent. They are so styled in a case strongly litigated before this court, and the certificates in that case showed the times when the applicant filed his lists of lands, the times ot his application to purchase, and of his completion of the purchases. Hempstead vs. Underhill, 20 Ark. 344.

So far as the claim of Miles depends upon the action of the State authorities, it rests where it was left by the commissioners in January, 1853, when they refused to modify their order of October, 1852, that rescinded the entry of Miles in township 15 South, range 1 East, and canceled his scrip on account of their rejection of the estimate that allowed Miles twenty-three hundred and forty-two dollars and forty cents. And this order shows what must be the result of the claim of Miles, unless it be, as contended for by his counsel, that the lands had previously vested in him by the favorable report made by the sub-commissioner upon his work, by the approval of that report by the board, by Miles’ receiving in payment for the amounts of the estimates of his work? the lands, and the scrip that represented the difference between the price of the lands and • the estimates of the work: and that being so vested, the orders and action of the board in suspending the approval of the estimates, and in finally rejecting the application of Miles, and canceling his scrip, could not deprive him of a vested estate in the lands.

It may be conceded that if the commissioners had once sold the lands to Miles, it was beyond their power to divest the title resulting from a sale, but the point is, whether the lands were sold until the commissioners had made the certificate to the governor, under the 6th section of the act of 6th January, 1851.

To sustain the argument for Miles is to hold that a favorable report by a sub-commissioner once made upon the levee work of Miles, and the consequent allowance for its payment, and an application to take.lands in payment, are forever binding upon the board and the State, notwithstanding, before any certificate of purchase is made by the commissioners, it be ascertained that the report is flagrantly incorrect or false, from the ignorance, carelessness, or dishonesty of the subordinate agent, who made the report. A statement of such a proposition carries with it its own refutation. No matter what efforts had been made by Miles to obtain the lands, nor what concessions had been made by the commissioners, whenever they ascertained that the levee work of Miles was an old levee, not built nor owned by himself, and that either it, or new levees included in 'his estimates, were not such work as should have been accepted, or should be paid for; at any time before their final certificate of purchase of the lands, and payment for them, it was the right and duty of the commissioners to refuse to consummate the sale. Tne approval of the estimates of the work of Miles made by the board upon the 6th of July* 1852, did not, then, preclude them from suspending the allowance on the next day, or at any subsequent time before a complete entry of the lands by Miles. This was what the board did on the 7th of July, on being informed and made to apprehend that the work reported on in township 15 south, range 1 east, was insufficient to justify the allowance made for it; and the suspension of the application of Miles, and the cancellation of his scrip, were made final by the orders of the board of the 4th of October, 1851, and of the 6th of January, 1853, after provision had been made by the board for notice of its action to be given to Miles, and when, as upon' the making of the last order, Miles was before the board. And the question is not, whether the board acted with leniency towards Miles, or with discretion, or even with proper regard te his legal rights; but it is, what they did, and whether they acted within the scope of their official authority. They were empowered by law to sell the lands for levee work, to determine the extent and dimensions of the necessary levees, and when under a contract, new work was to be made, or old work to be received, they constituted the tribunal, the exclusive tribunal, for deciding when the work tendered should be received. Gaines vs. Hale, 16 Ark. 25. And not being shut out from enquiry into the fact whether work ought to be paid for, though its estimates had been sanctioned by them, and finding at their sitting of 4th October, 1852, on testimony, that the levee work of Miles, in township 15 south, range 1 east, was insufficient in not conforming to their pre„ scribed lists of levees, their rejection of the work was within the lawful exercise of their authority; and whether the evidence which was brought before them justified their action, is not material to say, as we do not sit to correct the errors of the Board of Swamp land Commissioners. 2 Land Laws, Instructions and Opinions, (Ed. of 1838,) 85; Wilcox vs. Jackson, 13 Pet. 511. And whether the board were acting judicially upon testimony, or ministerially upon their own knowledge, and the best information they could obtain, will not affect this conclusion.

It was said, by the counsel for Underhill, in Hempstead vs. Underhill, 20 Ark. 343, that the duty of the commissioners in regard to certifying entries made before them, was “to ascertain that the “ State was indebted to the contractor for work done; to receive “ his application for land in payment, and if it was swamp land, “ and there was no prior application, to certify that he had ap- “ plied to purchase it, and had paid for it.”

These are facts that must have been verified as existing facts when the certificate of purchase was to be signed by the 'commissioners. And if . the commissioners, thinking that Miles had paid for lands in levee work, when his application to receive them in payment was entertained, should afterwards ascertain that the payment was fictitious, they could not certify that Miles had paid for the lands. And until Miles had received such a certificate, he had no evidence of an entry of the lands; till he had in fact made the payment in sufficient levee work, he he was not entitled to any such certificate. Indeed, Miles does not impugn the propriety of the action of the board, granting to it the power to act after the 10th of May, or after the 6th of July, 1852, the dates of his application for the land, and of the allowance by the board of the estimates of his work; but he objects that the subsequent suspending and rescinding orders of the board were nullities, vain attempts to cancel completed entries, destroy perfect titles.

If Miles had shown that. the estimates of his work first allowed, were but the prescribed compensation for work satis; fying the calls of his contract, and the requirements of the

ordinance of the board fixing the dimensions and quality of levees, he would have approached much nearer to showing a purchase of the lands, for it was only by payment of the lands that he would be entitled to a certificate of purchase. And though he had tendered insufficient work as payment, which had been received as such, that was no more to be considered as complying with his contract, than if, in buying land with scrip or money, he t should effect an entry with base coin or counterfeit scrip. In either case, upon discovery of the mistake or fraud, the land officers, while the business was in their hands, might well treat the attempted entry as amounting to nothing. It was upon this principle, that instructions were given from the treasury department, in 1801, relative to receipts given in part payment of public lands : “ The register is bound “ by his duty not to grant certificates unless the money shall “ have been actually paid according to the true construction of “ the law, although you may have given receipts in full. And “ supposing he had, through mistake, supposed himself obliged “■ to consider those receipts as binding upon him, most assuredly “'this department will not: and no patents shajl issue, except “ when the whole purchase money shall have been paid accord- “ ing to law.” And in a former part of the letter, it is written : “ But a wrong construction heretofore given to the law, and “ your having granted receipts in full on that wrong construc- “ tion, although in conformity to your former instruction, cannot “ alter the law itself.” And in a circular to the registers, it is further said, on the same subject: “It is your special duty, before “ you give to any purchaser either a certificate stating a partial “ payment, and the balance due, or a final certificate of the pay- “ ment being completed, to examine, yourself, whether the ac- “ count, as stated by the receipt of the receiver, is correct.” 2 Opns. & Ins. 224, Nos. 158, 159. .

These instructions are imperative upon registers to disregard the recitals of payment made in receipts of receivers, unless upon their own investigation they found the recitals to be conformable to the facts; snd they also state that it is erroneous for either receiver or register to hold themselves bound by a receipt of full payment that should have been given only for partial payment. So, in Cocrall vs. Safford, 3 Sow. 461, the opinion of the court, after stating in general terms that lands which have been sold by receiving the purchase money and issuing a patent certificate, are no longer the property of the United States, but of the purchaser, and cannot be sold a second time, says that “ where there has been fraud or mistake, the patent may be withheld and this we know to have been the practice of the land department, sanctioned by legal opinions and judicial decisions. And the department in such cases, only does what the subordinate officers ought to have done, but omitted to do, while the business was under their control, that is, to refuse to recognize as purchases, transactions that are founded in fraud or mistake. The allowance to Miles of pay for his work was evidently founded in mistake or fraud of the person who made favorable reports upon the work-; that is, the 'commissioners so thought when they made the suspending order of 7th July, 1852, when, on the 4th of October, 1852, they rescinded all approval^ of allowances before made to him, and when they finally refused, on the 6th of January 1853, to make any further order in the premises, leaving Miles and the conflicting claimant to their legal rights.

The whole argument for Miles, upon this branch of the case, consists in assuming that the lands were once sold to Miles, .and could not therefore be sold away from him. The conclusion would inevitably follow from the assumption, but the latter not being well grounded, the former is, of course, unsound. Miles could not buy, could not acquire a valid claim to the lands without paying for them; the work'that was once received as pay was found to be insufficient work; was therefore, no payment for the lands : that being so, his application for them was rightly disregarded, his scrip properly canceled. And we take the insufficiency of the work to be an established fact, because the Board of Commissioners so viewed it — not thinking it proper to go behind their action to see if it was well supported by testimony, or by tbeir own information. "With that we have nothing to do ; but have carefully examined the documents and depositions embodied in the record, and have a decided opinion of the way in which they ought to have affected the claim of Miles before the board ; but that was for them, and is not for us to determine.

It was out of the power of the commissioners, if they had wished to do so, to make a transaction a sale, without actual payment for the lands. They could only sell the lands according to law; they could not give them away, or feign a sale, under the pretence of receiving as pay insufficient levees. Such is the principle heretoiore applied by this court upon the naked power of sale by the commissioners. Deloach vs. Brownfield, 22 Ark., 348. See also Wynn vs. Garland, 16 Ark., 461.

The certificate of Miles’ application, and his acts in relation to the lands, seem both by the commissioners and in the record of the two cases before us to have sometimes been denominated entries; and the argument for him is persistent in bestowing that appellation ; but we hold that he never entered the lands. Even if Miles had received a certificate of the purchase of' the lands, but without paying for them, his cause would have been no better, although the argument for him might have been more pertinent.

By the éstimates, Miles seems to have done levee work in two townships, and though, in July, 1852, the allowance of the estimates for work done in township 15 South, Bange 1 "West, was suspended, yet, in October, 1852, when the board took the matter into final consideration, it was only the report of the levee work in Township 15 South, Bange 1 East, that was rejected, with the entries made by Miles in that township. The attempted entries of Miles were all in that township, so far as they are to be considered in this case, and it is strongly urged that the unfavorable action of the commissioners was highly oppressive and illegal, in disallowing the application of Miles as to all the lands in the last named township, when the work done in. Township 15 South, Bange 1 West, which amounted to two thousand, four hundred and fifty-nine dollars and eighty-nine cents, was not condemned by the board as insufficient. Although no formal order from the minutes of the board rejecting the work in this township appears in the record, yet from the report of Bailey, a sub-commissioner, this work would seem to be resting under the suspicion thrown upon it by the suspension of its estimates made in July, 1852; for, in July, 1853, he reports that he had measured and examined it under the direction of Trousdale, one of the commissioners, and recommended the rejection of the several parcels of work in that township, which would seem to be all that Miles had done therein, for insufficiencies in the quality of the work, that are specified in the report. Bailey’s report also shows that Miles had been allowed for seven thousand, eight «hundred and twenty-one yards more than he was entitled to by Bailey’s measurement of the work. This alone woixld deduct fifteen hundred and sixty-four dollars from the estimates of that township, and taking into consideration that all the levees in this township, but one of eight hundred and fifty-nine feet in length, were made around trees and stumps, contrary to the ordinance of the board, Miles would not have reason to complain that a large amount of dues to him were retained in the swamp land fund. The report of Bailey is endorsed: “Rejected, and all applications for lands to be null and void. J. W. Buckner, Swamp Land Commissioner.” The rejection evidently referring to the work that the report recommended to be rejected. But whether the work in this township was, or not, formally rejected by the board, by its express order Miles was prevented from enjoying the avails of it, in the rejection of his application, and in the cancellation of the scrip, and whether they acted wisely or legally is not for us to say. If Miles was entitled to pay for the work in Township 15 South, Range 1 West, and he only wished to have the amount due to him, without contending for . the lands, after Smith, the land agent, refused to give him the patent certificate, he could have called for a refunding certificate, under the 5th section of the act of 20th January, 1855, through which he might have obtained what was his due: or, adopting the course of the court in Galloway vs. Finley, 12 Pet. 297, which left it to an unsuccessful claimant of land to “secure the benefit of his warrants,” used in the entry of the lands, as he could, we may leave it to Miles to settle as he can with the proper authorities relative to the estimates of the levee work in Township 15 South, Range 1 West.

We have considered the claim of Miles, without regard to the adverse claim of Walworth, for that oí Miles being prior in time, could not have been affected by the entries of Walworth, if it had been superior in law. And any equitable circumstances that attach to the claims from a consideration of the relations between the parties belong to another head oí the case. Neither has any mention been made of the contest of Miles and Walworth before the land agent, in 1858, as we understand the position of Miles to have been fixed by the action of the commissioners upon his dealing with them, and that his rights could not have been destroyed by an adverse decision of the land agent, if he had been entitled to the lands. In the conflict between him and Walworth, the decision of the land agent in favor of the latter, would indicate him as the one to receive a deed from the governor; but if the right of Miles was better than the.claim of Walworth, the deed would only confer the legal title upon Walworth, charged in equity with holding it in trust for the benefit of Miles. This is in accordance with the opinion of this court in a case which seems to be misapplied by the counsel of both parties in this case. For, 7 in that.case, this court expressly held that the 5th section of the act oí 20th January, 1855, did not confer any judicial power on the land agent to determine upon the validity of the conflicting claims presented to .him, and said: “ On the contrary, it merely “ confers upon the land agent ministerial power to inquire into “ the facts in relation to conflicting entries, and to give the pa- “ tent certificate to the party appearing to be entitled to it by “ law. But his decision is not conclusive upon the rights of the “parties.' The party to whom he issues the patent .certificate “ may obtain the deed of the governor for the land ; but the party holding the conflicting certificate, is not bound to surrender it, “ and take a refunding certificate. He may stand upon his rights, ££ notwithstanding the decision of the land agent against his claim, and when the deed is issued to the successful claimant, “ may file a bill in equity to divest his title.” Hempstead vs. Underhill, 20 Ark. 358.

This shows that the finding of the land agent could not be “ necessarily conclusive, and not subject to review except for fraud or unfairness by bill in equity,” as argued for Walworth: nor do we see the force of the argument of the counsel for Miles, who impugns Hempstead vs. Underhill, because it upheld a statute that required a final certificate of purchase to be submitted to the land agent for a patent certificate, instead of the direct submission to the governor, allowed under • the act of 1851. For, if there were conflicting certificates for the same land submitted to the governor, he would have to determine on which certificate he would issue a deed; and in so doing, would act as a ministerial officer. The act of 1855 only relieved the governor from the burden of the act of 1851, in making the land agent to act ministerially in deciding to which of conflicting claimants for the same land the deed should be given, and did not impose any new burden upon the holder of a certificate of purchase from the commissioners, that conflicted with another certificate; it only shifting the burden and responsibility of the same ministerial act to another ministerial agent. The act of 1855 was designed to afford a remedy for irregularities which had fastened upon entries made before the commissioners, and attached the duty of deciding between conflicting entries, to the person who, in having the books and papers evidencing the entries, had the best means of investigation necessary fo an intelligent decision.

On this branch of the case, we therefore hold, that Miles did not obtain any right to the lands by his application to enter them, nor by the certificate given him of such application for levee work received by the Board of Commissioners; that he did not enter the lands, did not buy them, did not pay for them, and that on account of his naked claim to the lands he cannot be heard in a court of equity, to abate the amouut of an admitted debt to Walworth, by the value oí the lands, by the sum that under his application for the lands he proposed to pay for them', nor in any other sum, unless from some fact yet to be considered, Walworth’s mortgage debt against Miles ought to be affected by the attempted entry of the lands by Miles.

Although the greater part of ■ the record of the two cases before the court consists of documents and testimony relative to the attempted entries of Miles, and to the entries of Walworth, yet the title to the lands is not directly in controversy. Walworth settled upon Point Chicot, in 1828 ; in 1836, he extended his possessions by, buying the improvements of another settler, and from these times till Miles attempted his entry of 10th May, 1852, Walworth was the occupant of the lands, using them as his own, and doubtless expecting at some day to obtain title to them from the United States. But the De Yillemont- claim had been overshadowing these lands, with others' that Miles was holding, for nearly half a century, on account of which the general government had not exposed them for sale. But this claim was finally held to be worthless by the Supreme Court of the United States, at its December term, 1851,13 Sow. 261, when the lands covered by it fell to the State under the swamp land grant. Miles, on the 10th of May, 1852, and while Walworth maintains that he was absent for the purpose of defending the possessions of himself and of Miles from the De Yillemont claim, endeavored to appropriate to himself the lands, so long and so exclusively occupied and enjoyed by Walworth. But, by the 18th of May, Walworth had returned home, had been informed of the action of Miles, and had expostulated against it, as may be inferred from the following writing:

“ PoiNT Chicot, May 18th, 1852.

“ I agree with Colonel Walworth, to submit to Colonel E. “Worthington and Major .William McD. Pettit, the question, “ whether I was justifiable in entering, and am justifiable in “ bolding (tinder existing circumstances,) certain lands held and “ claimed by said 'Walworth. The part claimed by me being “ all said lands said Walworth cannot hold by pre-emption or “ cultivation. I agree, if said decision is against me, to take “ the market value of my scrip (located on said lands) at Helena, on the first day of June next. It is agreed that if-said “ Worthington and Pettit cannot agree, they are to call in any “ third person whom they may agree upon.

JANEES B. MILES.”

On the 20th of May, 1852, the persons named in the foregoing writing reported this award:

“ The undersigned deem it not commendable nor justifiable that “ one neighbor should take possession of the plantation or pre- “ mises of another. We are willing to pay taxes for the support of government, that we may be protected in the security of our property, and the safety of our persons; for these alone “ are laws instituted, but if upon the happening of any extraor- “ dinary circumstances, not contemplated by the makers of laws, « and therefore not condemned by law, one oí us is enabled to “ take possession of the property of another, it is as morally “ wrong, and would be as legally wrong, as any other offence “ known to the laws. Therefore, the undersigned believe that “ Mr. J. B. Miles should not wish to hold the lands located by “ him, belonging, or supposed to belong to Col. Walworth. The “ undersigned would also suggest, that Col. Walworth pay to Mr. “ J. B. Miles one dollar and twenty-five cents per acre for all the “ lands located by him, belonging to Col. Walworth. The under- “ signed would furthermore recommend Col. Walworth to give “ Mr. J. B. Miles, on the score of liberality, one year’s extension “ of time upon the debt wherein he has confessed judgment. “ May 20th, 1852.

E. WORTHINGTON.

WM. MoD. PETTIT.”

But upon the same date of the award, Miles wrote to the arbitrators the following letter, which purports to be written before Miles had been informed of the award:

“ Milbsea, May 20th, 1862.

Messrs. WoethotgtoN and Pettit—

Gents: I have considered the matter submitted to you “ for arbitration, between Ool. Walworth and myself, and have “ concluded that inasmuch as I do not consider that I have any “ thing to gain by your decision, even if decided favorably to “ me (he, Ool. Walworth, making no concession in such an “ event), but all to lose, and that the reasons I claim for my jus- “ tification in the premises not.being properly known or under- “ stood by you, and the unjust influences brought to bear upon “ me, in influence ng me to submit to your arbitration, are known “ only to myself, I decline abiding any decision made in the matter.

“Tours, etc.,

“ JAMES B. MILES.”

The nest step taken by the parties, was an agreement that was made between them at New Orleans, on the 25th of May, 1852, which is also here copied:

“ Articles of agreement, made the 25th day of May, 1852, “ between James B. Miles and H. E. Walworth, (both of Chicot “ county, State of Arkansas,) witnesseth: That whereas the “ said James B. Miles has entered certain lands in said county “ of Chicot, State aforesaid, being the plantation and lands “ adjoining thereto, occupied and cultivated by said Walworth, “ and described as follows: all the lands north and east of the “ fence which now divides the fields of said Miles and Wal- “ worth, including the lands known as the Boon’s place; pro- “ vided the said Walworth makes a satisfactory arrangement “ with Boon’s heirs. The dividing fence, before spoken of, is to “ be continued on the line extending from the river, back to “ Long Pond, crossing it, to a gate on the line between the “ parties, west of said pond, thence to a box-elder or hackberry “ (not now remembered,) marked by J. H. BLunnecntts and J. “ H. Calloway, and thence to continue to the river above, in “ the same direction that the tree is from the gate. Said Miles “ binds himself to relinquish all said land to said Walworth by “ a sufficient deed, at one dollar and twenty-five cents per “ acre for tbe scrip used in locating the same, and as soon “ as the quantity is ascertained, said Walworth agrees to pay for “ the same at said rate, by entering a credit for the amount “ thereof on a judgment confessed by said Miles in favor of said Walworth, for fifteen thousand dollars, besides interest “ and cost, before Samuel W. Cooper, clerk of the Circuit Court of Chicot county, Arkansas, on the 13th day of March, 1852, “ and for the residue of said judgment, said Walworth agrees “ to extend the time of payment as follows: one-fourth thereof “ to be paid 1st February, 1853; one-fourth 1st February, 1854; “ one-fourth 1st February, 1855 ; and the remaining 'fourth 1st “ February, 1856. And it is further agreed that if the said “ Miles shall fail to make any one of the payments, or any part “ of any one of them at the time the same may be payable, “ the said Walworth, his heirs, executors or administrators, “ may without bill to foreclose, proceed to sell to the highest “ bidder, for cash, so much of the property, real or personal, “ mortgaged to secure the debt for which said judgment is con- “ fessed, as will be necessary to satisfy the same so unpaid, “ giving ninety days previous notice of such sale, by advertis- “ ing the same at court-house door of said county of Chicot. “ In witness whereof, the parties hereto have set their hands and seals, this 25th day of May, 1852.

“ JAMES B. MILES, [seal.]

“ H. F. WALWOBTÍI, . [seal.].”

It seems to be admitted by the parties, and the court below found, that the lands embraced within the lines stated in the agreement, would measure about thirty-seven hundred acres, which would make a credit for Miles, on his mortgage debt to Walworth, of about forty-six hundred and twenty-five dollars.

By the 31st óf May, 1852, Walworth was in Helena, endeavoring to ascertain at the swamp land office the facts concerning the alleged entries of Miles. He then was informed that Miles had entered about twenty-five hundred acres of the lands, but obtained a certificate from the person in charge of -the office that , about eighteen'hundred and twenty acres of the land which Miles..claimed to have entered, and which was included * in the New Orleans agreement, were not located, or reported to the office. Walworth, according to the testimony of Hornor, then applied for and entered these lands, which he was informed that Miles had not entered; although the record shows that the entry was made the day after Walworth obtained a certificate frqm the office, of the lands that had been, and had not been entered by Miles. Proceeding further in his researches, Walworth was advised that an allowance had been made to Miles for a levee in township 15 south, range 1 east, and upon the same day of his own purchase of the eighteen hundred and twenty acres, he. signed a paper that is called through these proceedings, a protest, in which he claimed that the levee was not .a sufficient one under the rule of the commissioners, and that the levee was partly made by himself, and that his interest in it was still existing. The paper, though of date of 1st June, 1852, does not appear to have been presented to the board of commissioners till the 7th of July, 1852, during a regular meeting of the board, and when presented, it was the foundation, or at least it preceded the action of the board upon the está-, mates,, and application and scrip of Miles, that ended so disastrously for him, as has been set forth in a former part of this opinion. After the order of the board of 7th July, 1852, suspending the application of Miles, Walworth, having been informed of it, wrote to Hornor, which fact, with its results, is thus stated in Hornor’s deposition: “ Afterwards, to-wit: on the “ 12th of July, 1852, Col. Walworth wrote to me from Louis- “ ville, stating that he was informed the Board of Swamp Land « Commissioners had. suspended the entry of Mr. Miles, and, “ being anxious to .prevent any other person from entering said “ lands, in the event Mr. Miles’ entry being rejected ' and set aside,.he requested mes to enter in his name the same lands “ that had been entered by Mr. Miles, if the secretary coulcf “ permit such an entry. I accordingly went'to the Bwampland’ “office, and made.the application,'.which.wasgranted,_and,djcb. then enter in the name of Horace F. "Walworth, 2,503 84-100 “ acres* of land, being the same and only lands, as I under- “ stand from the secretary, that had been entered by Mr. Miles. “ Judge Butts, the secretary, made a note at the bottom of “ the certificate he granted to me for Col. "Walworth, that the “ lands embraced therein had been previously entered by James “ B. Miles, but that his entry was suspended by an order of the “ Board of Swamp Land Commissioners.” In due course of time Walworth appeared before the Board of Commissioners at their regular meetings in October, 1852, and in January, 1853, and if he did not procure, he at least urged the board to mako their orders of 4th October, 1852, and of 6th January, 1853. So, in May, 1858, when both Miles and "Walworth appeared before the land agent, the latter contested the right of Miles to a patent certificate, obtained one certifying to his own entries, and upon them procured deeds from the Governor, by which, on the 1st of March, 1859, he acquired a perfect legal title to the lands.

These acts of "Walworth relating to the claim of Miles, ahd in urging his own cláims from their first inception in June, 1852, by his successful application for eighteen hundred and twenty acres of the lands, and by his eventual successful protest against the allowance to Miles for the levee in township 15 south, range 1 east, to obtaining the patents for all the lands in March, 1859, show what response should be made to his offers to perform specifically the New Orleans agreement, by allowing to Miles the credit of forty-sis hundred dollars, if he could not do better by relying upon his own title.

Since "Walworth discovered that Miles had not entered all the lands embraced in the New Orleans agreement, he has done no act in recognition of the agreement, but with persistence, vigor and success, he has done all that could be done to destroy the claim of Miles, lest he might have to give to Miles the credit for the lands provided for in the agreement, and to strengthen and establish his own claims to the lands so as to hold them by his own title independent of the agreement. No specific performance of the agreement could then be decreed at the request, or upon the consent of "Walworth.

But before determining the remaining point in the case, whether a specific performance of the New Orleans agreement, sbn.ll not be enforced against W alwortli, for the purpose of allowing to Miles the credit upon his mortgage debt, that the price of the lands provided for in the agreement would produce, it may be' well to detail with more particularity than has been observed the manner in which the question of the credit has been raised.' This will also explain why it has been necessary in this opinion, as well as incumbent upon the parties to the controvery, to examine the claim of Miles to the lands, although its validity was but incidentally involved, there being no prayer on the part of Miles that it should be decreed to be valid, or superior to the title of Walworth; and none on the part of Walworth that it should be canceled, or that Miles should be enjoined from setting it up to the prejudice of Walworth. ‘ ■

In January, 1848, Miles executed to Walworth a bond, ' which contained an acknowledgment of indebtedness in the Bum of fifteen thousand dollars, payable in installments, the last of which was to' be due the 1st of February, 1852. A mortgage of even date with the bond, was. also given to secure the payment of the money. On the 13th of March, 1852, Miles con- ■. fessed judgment before the clerk of the Circuit Court of Chicot county in the sum then due. This is the debt that is referred to in the award of the arbitrators, upon which they recommended Walworth to give Miles a further credit of a year-; and thé sarde "■ that is mentioned in the New Orleans agreement, wherein WaT' - worth agreed to receive the remainder of the debt not satisfied-*"' by the price of the lands in four equal annual payments, be. -? ginning with 1st February, 1853, and ending on the 1st- Febru- ' ary, 1856. But after Walworth was informed at Heleüá, at. thó swamp land office, that Miles had not.- entered all the lands of A which Walworth was in possession, and. was himself permitted: '■ to purchase a portion of them on the 1st .of Jripé.yl'852,;:áhd' esíA-j pecially after hé had .. .procure^ ;thei.appjieatíb.n>:of:;Müeh!fóri'.íiIhm of the . lands to be suspended, and was permitted to enter them in his own name, he did not depend upon Miles for a title to the lands, nor for his enjoyment of them, nor did he regal’d the agreement as binding in its stipulation to extend credit to Miles upon the judgment taken by confession. Walworth, therefore, filed a. bill on the chancery side of the Circuit Court of Chi-cot county, on the 20th of February, 1855, for a sale of the mortgaged property, and for a decree for the .mortgage debt. At the same time he procured an execution upon the confessed judgment, which was levied on property of Miles.

On the 26th of March, 1855, Miles filed in the same court a bill against Walworth, claiming two credits of $4,650, each, to be applied respectively the 15th of December, 1852, and in November and December, 1853, as having been paid to Walworth, through Wright, Williams & Co., of New Orleans. Miles-al'so’set up his alleged' entry of the Walworth lands, the New Orleans agreement, and by virtue thereof claimed a further credit against the mortgage debt. .These credits, he claimed, would so reduce the debt that nothing would be due, except what, under the. agreement, would fall under the last installment to be paid the 1st of February, 1856; whence he asked injunction against the execution and for a stay of the suit of foreclosurei.

On the 10th of April, 1855, Miles filed an answer. to the bill of Walworth, in which he relies for a defence upon the same matters that were contained in his own injunction- bill, and made his answer a cross-bill. In both, suits Miles charges that Walworth, with fraudulent intentions, attempted to set aside the title of , Miles to the .lands, which Walworth had purchased of him by the agreement....

.Walworth, also made .his answer to the injunction, bill of. Miles.,a .cross-bill, and resisted the ¡allowance to. Miles of the credit for the lands, on the ground that Miles .-had not - éntered. them as he.had alleged: and undertaken- .:he hady by. the agree- * ment j: that ho fraudulently concealed, the facts from Walworth, intending to deceive and injure him by obtaining pay for lands, a part of which he had not entered at all, the remaining part being taken np by Miles in fraud of the rights of the State, and in violation of the acts of the General Assemblyj • or of the ordinances of the board of Swamp Land Commissioners; that the alleged entries of Miles had been canceled, • and that he could not perform his part of the agreement by giving title to the lands.

From this statement of the case, it will be seen how the validity of the alleged location of the Walworth lands by Miles was brought into controversy, for if the lands were well located' by Miles, under the New Orleans agreement he was entitled to a credit for them of one dollar and a quarter per' acre upon his mortgage debt to Walworth. And on the' other hand, if Miles never located or entered the lands, he ought not to have the credit, unless Walworth wrongfully interfered to frustrate his efforts to obtain a title to the lands.

A review of the acts of Walworth has shown that, from the 31st of May, 1852, he entirely disregarded the agreement, and it now remains to be seen whether Miles respected the agreement so as to be heard to ask for its specific performance. For if it be found that he, as well as Walworth, repudiated the agreement, that will dispose of his prayer for its execution. If it be found that his actions have been consistent with the agreement; that since its date he has recognized its obligations,' then it may be necessary to recur to facts that were antecedent to the agreement, to determine from them whether it be such an agreement, and executed under such circumstances, as will require a court of equity to uphold it, and decree its specific performance for Miles against Walworth, by allowing to the former the credit so often mentioned. '

- In a former part of this opinion it has been stated that Miles, on the 6th of'January, 1853, appeared before the Board of Commissioners,'and protested against its action upon the sufficiency of his levee work, and upon' his alleged entries made on account of-the work. ■ Walworth was also'before-the board at the same time [protesting against the work, asking for its examination by a suitable engineer, and claiming not to be disturbed in Ms claim to the lands, which, he alleged, he had been permitted to e.nter, after the previous cancellation of the entry of Miles.

At that time, Miles must have known that Walworth was disavowing the agreement. But, before this, he had been informed by Wright, Williams & Co., that Walworth was not depending upon the agreement, but would endeavor to make his money under the judgment of confession; for in a letter to this firm, under date of 5th November, 1852, he says: “ You wrote “ me that Col. W. had written to you that he would proceed “under Ms judgment to make his money. He has been to “ Helena and done something, I do not know exactly what, and “ I do not believe he does himself; but I do not apprehend that “ he can do me much damage. I suppose he will issue his exe“cutionnext February, but I shall get an injunction, and it will ‘‘ probably be some year or more before he will get his money.” Under date of 14th January, 1853, he writes to the same: “ 1 should bo very much obliged to you, if you would send me “ either a letter of credit to draw on you for $3,975, or send mo “the gold, as I wish to tender it to Col. Walworth, on the first “day of February next. I have no idea that he will accept it. “ He wishes now to bind me to the old contract, and he has “ violated it, and I consider that I am relieved from all moral “obligation to him, and shall, therefore, make all I can out “ of it. I have offered to take $25,000, and if he pays me “ before it commences in law, it will settle the matter. . But I “think lie will hold off', thinking I will take less. Please “ preserve his letters, as it may be of use as evidence, although “ I have sufficient, I think, without it. He now claims that he “has done nothing to break the contract. I seo Col. W. has “got Point Chicot1 advertised'in the Picayune. I expect it “ it would be a good plan for me to insert an advertisement under “ it, saying that I claim it, and forewarn all persons from pur- “ chasing. If you think it will do me any good, you will please “ have it inserted. You will please pay for it, land at the same “ time pay my subscription for the year. I enclose an adver- “ tisement which you will please insert ■ twice a week, in daily “and-weekly, until March 1st. Have it done immediately, as “ February 1st is close by. Tell them to insert it under Col. W’s “ advertisement. I think I can pay some of my debts off of Point “ Chicot yet. I have been advised to insert the above by my “ lawyers.”

The advertisement above alluded to reads thus:

“ Noticje. — -Whereas, H. F. Walworth has advertised' Point “ Chicot for sale, this is to let all -persons designing to purchase “ know that I claim the whole of said Point Chicot by right of “ location in the swamp land office, Helena, Ark., and any one “ purchasing the same will do it at their own risk.

“JAMES B. MILES.

“January23d, 1853 — w. & d.”

A note was also added over the initials “ J. B. M.” Columbia, Ark., directing other papers to copy the advertisement.

On the 13th of February, 1853, Miles writes again: “ Col. “Walworth is acting a little singularly: at one time ho thought “ he had the advantage of me, and did not care for our New “ Orleans contract: then he went to Heléna and was told a dif- “ ferent story, and he then said he should hold ine by the contract, “ and now he seems to think he has got the advantage again, “ and does not wish to hold me by it. If he is satisfied, it is all • “ right, as I do not wish to go by the contract, áñd if he cannot “'hold me to it, I am bound to have at least 2,500 to 3,000 acres " “of his land, and as the thing is now, I shall get every acre of ! it, and if I do get it at the end of the law, he shall never have ' “ it.” And in a letter of the. 8th of March, 1853, Miles thus expresses himself As to ■ Col W.’s and myself’s difficúl- “ ty, I do not suppose it can be; settled' except at the end of the'”' “law- He-thinks he can get clear‘of the'whole'concern; but ; “I think not. I would not séttle with him- now for less than ’’ “ $25,000, and 1,200 acres of land. He seems inclined to “fight the matter through, and I shall try him any how. I can get men to take tbe responsibility of tbe costs for a propor- tion of tbe amount to be made off it. He thinks be has got all £t of my locations upset; but that is all a notion.”

From these letters, and from tbe advertisement of Miles, no inference of any other intention can be drawn than that which is emphatically, expressed: that Miles was contented with Walworth’s disregard of the agreement, that he did not intend to enforce it against Walworth, and that he would be a great gainer by the adoption of this line of conduct. If -Miles had wished, or had intended to perform his part of the agreement, he would not have endeavored by the assertion of a hostile title to hinder Walworth from making the sale that his advertisement in the. New Orleans Picayune offered. For in such- a case it was immaterial to Miles what Walworth .should do with the lands, and.whether he kept them, or exposed them to sale, Miles had no right, while standing upon his agreement, to obstruct Walworth in their use, or to interfere in any disposition of them he might propose. Ilis interest, in them only concerned the credit for them upon- his mortgage debt, and his legal. obligation was .to be ready, if necessary, to assist in any transfer of the lands Walworth might- make, by giving, to his representatives, which would include purchasers, such deed as by thp. agreement he was ,to' make to Walworth himself. The expressions used in .the letters, to Wright, Williams & Co., might not perhaps: be sufficient for’Walworth to-show that Miles abandoned, the agreement because he might not, to Walworth, claim the, exoneration from the agreement that he rejoiced in. by his letters to. .other persons; but the position'taken by him in -his published notice was a proclamation to Walworth,as-well as to the world .beside, that his claim was hostile and paramount to. that. of. Wajworth. That notice, alone is. .sufficient to,.deprive. him from any benefit of .the agreement; the■';?ííf3rsí(\?':a..P:ilJy'.-fce>fised.i:n;support of. the. conclusion, as showing thq. -same .intention,.. ;asy that . which the notice -itself.'sufficiently manifested. The letters and-notice certainly show, on the part, of .Miles,, an accptance.pf Walworth’s rejection of the agreement. Neither one, nor the other can say but that they have both annulled the agreement as much as if.by mutual assent they had agreed to waive its provisions, and to- be-and to act as if it never had been made. And in such a case, the agreement could not have been performed. Willards Equity Jurisprudence 202; Baldwin vs. Salter, 8 Paige 475.

Walworth’s repudiation of the agreement may have been sufficient ground for Miles ' to disregard ■ it, and ■ endeavor to make the most of his speculation of locating Jfche Walworth lands, but after what Miles has done, it is idle for him to ask for an enforcement of the agreement, by giving, to .him the benefit, in this controversy, of the forty-sis hundred and twenty-five dollars, which would be the price of the lands included in the agreement. And so Miles seems to have been advised in an advanced period of the litigation, for in March, 1857,- he filed a pleading, in which he stated, that.“ owing to a change of his “ condition, and situation of his'affairs, he is now'willing and “ consents that the prayer of the said Walworth, whereby he “ plays that - the agreement or contract copied into his answer “ to the original bill of complaint and made part thereof, be “ canceled and held for naught, be granted in order to end con- “ troversy, and all farther litigation; but only on' the following “ express and equitable conditions: that he, the said respondent “ shall be placed by this honorable court, in regard to the said “ agreement, in the same condition to all intents and purposes “ as if the same had never existed, or in the condition iff which “ he was before the said agreement was made, and without “.any prejudice to his rights as they existed anterior to that “ time.”

Although Walworth might consider the conditions of the consent , thus expressed, to be high sounding and unnecessary,, they were very harmless, because Walworth, by his own dissolution of the agreement, had absolved Miles from any . obligation imposed by it, and had thereby put' him in the condition in which he was before the agreement. Just a year afterwards, Walworth filed an amendment-to his original bill, seemingly, to avoid some unknown but anticipated effect of the new position of Miles, by which it is suggested to the court that "Walworth’s wish was to have the agreement canceled, if it should hold that Miles obtained no title by his location, but if the court thought otherwise, Walworth was willing to allow Miles credit for the lands, and that Walworth intended no more by his former pleadings. Upon this, the counsel for Miles has justly commented,, but it was only pursuing the same course that had before been taken by Miles in first insisting on, and then in forsaking the agreement. It is enough to say upon these proceedings, that they are an apt representation of the inconsistencies and confusion that were triumphant throughout the case, as shown by the transcripts of them filed in this court.

The result which has been reached from an observation of the course of conduct taken by the parties to the agreement with reference to it, or rather in spite of it, relieves us from the disagreeable task oí determining on the inefficiency of the agreement, which the counsel of Walworth allege against it, from its want of consideration on his part, and from the unfair conduct of Miles with relation to Walworth’s possessions, which induced Walworth to enter into the agreement. Yet, as supplementary to another part of this opinion, which announced that the legality of the location of Miles must be determined without regard to the possession of Walworth, we will not refrain from remarking that a different pi’inciple might be applied, when Miles, after having established a legal right, should make it the ground of equitable relief. It is very clear that, as the action of Miles in his alleged entry did not commend itself to Mooney, when Miles was obtaining the numbers of Walworth’s plantation to make his entry, nor to Worthington and Pettit, the arbitrators, so it could not but seriously affect him in a court oí chancery; not to1 deprive him of a legal defence, but in keeping back the active interposition of the court for him as a plaintiff, or as a defendant, in avoidance of' a just complaint' against him.

Walworth, on the other hand, could not regard the act of Miles in attempting to enter bis occupany, with complacency: necessity would only compel Mm to recognize the claim of Miles, and when he discovered that the claim was not well founded in extent, and in character, nothing else could have been expected of him than to object that the agreement which bound him to pay for the claim, was without consideration. It would be a grievous mistake to consider him as a purchaser in the first instance from Miles, and put into possession oi the lands by Mm. Then he would have been subject to the application of the principle of Galloway vs. Finley, 12 Pet. 264, and of Pintard vs. Goodloe, 12 How. 24, but in his actual position these cases do not affect Mm.

At the time of the hearing of these causes in the court below, the right of Miles to a credit of payments to Walworth, through Wright, Williams & Co., was not contested. When Walworth filed his original bill, a part of the mortgage debt had been assigned to Wright, Williams & Co., for moneys wMch they advanced to Walworth for Miles, but in the dealings of the latter with the firm he became entitled to credit for these sums. The court below deducted them at the proper dates from the mortgage debt and so far its decree was light. But because the Circuit Court of Chicot county, sitting in chancery, held the attempted location and entry of Miles to be valid, investing him with the title to the Walworth lands, and that by virtue of the New Orleans agreement, Miles should have credit on the mortgage debt for the price of the lands included within the lines mentioned in the agreement, its decree is reversed; and we direct that a decree be entered in this court conformably to this opinion.

The clerk of this court is appointed special master in chancery, to ascertain the sum due upon the mortgage debt. ■ The decree will be made in the original suit of Walworth, the injunction bill of Miles and his cross-bill in the first suit being dismissed. As the two causes have been consolidated here, but one decree for cost will be made, which will be that Miles shall pay the costs of this court, and one-half of the costs in the court below, Walworth paying one-half of the costs in the Circuit Court, as unnecessary costs were there incurred on his part as well as by Miles.


source: Caselaw Access Project

author: Mr. Chief Justice English:

license: Public Domain

text:
    Crow et al. vs. State use of Brown.
    The appraisement act of 1840, (Acts 1840, page 58,) applied as well to executions against steamboats, aB where other property was seized; and the defendant’s right to have the boat appraised, etc., did not depend upon his giving bond for the delivery of the boat on the expiration of the stay.
    The defendants having claimed the benefit of the appraisement act, and the property failing to bring two-thirds of its value, the law made it the duty of the sheriff- to-reserve the property from sale, without any request of the defendant; and if such request be alleged in the declaration in an action on the official bond of the sheriff for proceeding to sell, such allegation is mere surplusage.
    The granting of permission to file pleas out of time is a matter within the sound legal discretion of the court; and the court may well strike out the plea of limitation where the defendant had neglected to plead for nearly five years.
    The declaration in a suit upon a sheriffs bond for a tresspass committed in selling the plaintiff’s property, under an execution issued by the clerk of the Circuit Court upon a judgment of a justioe of the peace, having alleged in the breach that the plaintiff in the execution did not cause a transcript of the judgment and proceedings of the justice to be filed in the clerk’s office, such allegation becomes material and traversable.
    Under the laws of this state, an action on an official bond in the name of the State for the use of the-party injured, is a private suit in all respects and to the same effect as if the party were the nominal plaintiff. And so a replication to the plea of limitation, in an action by The State use of Brown & Bean, alleging that the State had instituted suit against the same defendants, on the same cause of action, the judgment in which was arrested and the present suit brought within a year, is insufficient.

      Where the action is misconceived — as where an action on the case exdclicto, instead of an action of debt, was brought — it is within the mischief intended to be remedied by sec. 21?, ch. 106, Gould’s Digest.

    To the plea of limitations in an action brought by The State use of Brown <h Bean, after the period of limitations had elapsed, the plaintiff replied, setting forth an action within the period of limitation, by The State use of Brown against the same defendants, on the same cause of action, and arrest of judgment, and the present suit within a year: Held, that the replication did not avoid the plea: all the plaintiffs in the present suit not having joined in the first.
    In an action against a sheriff, on his official bond, for abusing the process of execution whereby the defendant in the execution has suffered injury, it is within the province of the jury to allow interest on the valué of the property injured by way of increasing the damages: but it is error in the eourfr to instruct them to allow interest.
    For the tortious sale of a steamboat by a sheriff, under execution, the owner is entitlod to recover the actual value of the boat as property, though she may havo been unriver-worlhy at the time of the Bale.
    The death of ono of Several plaintiffs before verdict *and judgment, is not technically a matter in arrest; but if the court is satisfied of the death, during the term, the judgment ought to be set aside, and a judgment rendered in favor of the survivor.

      Appeal from Cla/rTc, Circuit Court.

    Hon. LeN E. GeeeN, Circuit Judge.
    Gallagheb, for plaintiffs.
    GaulaNd & Eakdolph, and JoedAN, contra.
   Mr. Chief Justice English:

delivered the opinion of the court.

This case has been twice here before, on writs of error prosecuted by the State. See 6 Eng. R. 642; 20 Ark. 209.

After the last remanding of the cause, there was a third' trial, judgment in favor of the State, and appeal by the defendants: who have brought up the whole record, and complain of alleged errors of the court, in passing upon questions of law arising upon the pleadings prior to both writs of error, but’of-which the State did not complain, the points having been determined in her favor;

1. A demurrer to the declaration, interposed hy Crow, was overruled. • ■ ■ . ' \

The suit was brought in the name of the State, for the use of Wm. Brown and Bailey Bean, upon the official bond of James TT. Crow, as sheriff of Clark county.

Crow, the principal, and James Sloan and Abner E. Thornton, sureties in the bond, were the defendants in the suit.

The special breach of the bond assigned in the declaration, is set out in the report of the case in 6 Eng. R. 643. The gravamen of the action is that an execution, issued by the clerk of the Ouachita Circuit Court, upon .the transcript of the judgment of a justice of the peace, against the steamboat Areadelphia, came to the hands of Crow to be executed — he seized the boat and advertised her for sale; at the instance of Brown and Bean, her joint owners, she was appraised at $1,000, and when offered for sale, failing to bring two-thirds of her appraised value, Crow refused to reserve her from sale, but sold her for $125.

It was assigned as cause of demurrer to the declaration, that the owners of the boat were not entitled to have her appraised and reserved from sale if she failed to bring two-thirds of her appraised value. In other words, that the appraisement act did not apply to executions against steamboats.

The act (Acts of 1840, p. 58,) in terms, applied generally, and without exception, in all cases where an execution was levied on property, real or personal. No distinctioh is made in the act between executions issued upon judgments in personam, and executions issued upon judgments m rem; and we know of no good reason why the court should or could make any such distinction.

It was assigned as a farther cause of demurrer to the declaration, that it was not averred that any bond was tendered to Crow for the delivery of the boat at the expiration of twelve months — the period of the stay prescribed by the act.

If the [property did not bring two-thirds of its appraised value, it was made the duty of the officer to reserve it from sale, and return the writ, etc. The lien of the execution was not thereby released, but the creditor had the right, at the end of twelve months from the return, to sue out another writ, and sell the property, without appraisement (secs. 4 cmd 5.) The 6th section provides: “that until the sale thereof, the property levied upon shall remain in the hands of the owner or claimant thereof, •mike, same ma/rmcr as is now prescribed by Imo.'”

The reservation of the property from sale, on its failure to sell for two-thirds of its appraised value, was not made to depend upon the giving of a bond by the owner, for its delivery at the expiration of the stay. The duty of the officer to reserve it from sale was imperative. If the owner failed or refused to execute a delivery bond, the officer should have retained the property in his custody until the time of sale, as in ordinary cases, under existing laws, where personal property is levied on, and no delivery bond given.

The above are the only causes of demurrer urged by the counsel for the appellants, and there is less plausibility in the other causes assigned than in the causes discussed.

2. The demurrer of Crow to the declaration was overruled at the September term, 1847. At the March term, 1852, he filed a plea of limitation, which, on motion of the State, the court struck out, as having been filed out of time, and he excepted.

The granting of permission to file pleas out of time, is a matter within the sound legal discretion of the court; and we find nothing in the record to induce the belief that the discretion of the court was-abused, in striking out the plea filed by Crow after so much delay. See State vs. Jennings, etc., 5 Eng. R., 442.

3. The court sustained a demurrer to the 4th plea, interposed by Sloan and Thornton, which alleged:

That said McConnel [the plaintiff in the execution under which the boat was sold,] did not cause a transcript of the judgment and proceedings had in said justice’s court, to be filed in the clerk’s office of the Circuit Court of Ouachita county, in manner and form as alleged, etc.

When the case was first here (6 Eng. 640,) this court held, in effect, as we understand the decision, that the execution being upon its face regular, and Crow having undertaken to execute it, he and his securities were liable for its abuse, whether it was founded upon a valid judgment or not; and consequently, that it would have been sufficient for the plaintiff, in assigning the breach, to have set out the process — that it was not necessary to allege the recovery oí the judgment before the justice, etc.; but the plaintiff having done so, as a part of the description of the cause of action, the allegation became material and traversable, and necessary to be proven substantially, though not strictly.

Eegarding this decision as the law of the case, it applies with full force to the allegation in the breach that a transcript oí the judgment was filed in the office of the clerk of- the Circuit Court, without which the clerk has nothing to base an execution upon.

In other words, if, as held by the court, the allegation of the recovery of the judgment was material and traversable, the allegation of the filing of the transcript in the office- of the clerk was also material and traversable, for the latter allegation is as -much a part of. the description of the cause of action as. the former:-and the recovery of the judgment was not more essential to the issuance oí the execution by the clerk, than the filing of the transcript of the judgment in Ms office, for, as above mentioned, until the transcript was filed, he had nothing to base the execution upon, and no authority to issue one.

The allegation being material and traversable, it follows that the plea denying it was not demurrable; and that the court erred in sustaing. a demurrer thereto.

4. The court also sustained a demurrer to the 9th pléa filed by Sloan and Thornton, which alleged:

That said Brown , and Bean did not request said sheriff to reserve..said .boat, etc., from sale, in manner and form as in said :decaration-alleged, etc.

The owners of the boat having claimed the benefit of the appraisement act;. and the sheriff having caused it to be appraised,.and it-failing, when offered for sale by him, to, bring, two-thirds of its appraised value, the law made it his duty to reserve the boat from sale, whether requested so to do by the owner or not. The allegation in the declaration that Brown'and Bean requested (or ordered) Crow to reserve the boat from sale, was, therefore, mere surplusage, immaterial and not traversable ; and the court did not err in sustaining the demurrer to the plea denying it.

5. The court below sustained a demurrer to Sloan and Thornton’s second and third rejoinders to plaintiff’s replication to their first plea.

The first plea was, that the cause of action did not accrue at any time within two years next before the commencement of the suit.

The plaintiff replied, in substance, that she commenced a suit for the same identical cause of action, as; in the declaration mentioned, in the Clark Circuit Court, against Crow, and tho other defendants, within two years from the time the cause of action accrued, to-wit: on the 3d of January, 1846, and that at the March term of said Circuit Court, 1847, she recovered judgment in said suit against said defendants; and. they caused said judgment to be arrested, set aside and held for naught, at the same term, etc.; and that she commenced this suit,, which is for the same identical cause of action, and upon the same writing obligatory, as that upon which judgment was recovered and arrested at the March term of said court, as aforesaid, within one year after said judgment was arrested, to-wit: on the 31st day of May, 1847, etc.

The second rejoinder alleged, in substance, that the said action, commenced and prosecuted as in said replication is alleged, was misconceived, the same being an action on the case, ex delicto, and not an action of debt, etc.

The third rejomder alleged, in substance, that the said other action mentioned in said replication as having been commenced and prosecuted as therein alleged, was an action in the name of the State, who sued therein for the use and benefit of ¥m. Brown, sr., without this that the said action was an action in the name of the State for the use of ¥m; Brown, sr., and Baily Bean, etc.

See. 27, chap. 106, Gould’s Dig., tide Limitations, provides that: “ If any action shall be commenced within the times respectively prescribed in this act, and the plaintiff therein suffer a non-suit, or after a verdict for him, the judgment be arrested, or after judgment for him, the same be reversed on appeal or writ of error, such plaintiff may commence a new action, from time to time, within one year after such non-suit suffered, or-judgment arrested or reversed; and if the cause of action survive or descend to his heirs, or survive to his executors or - administrators, they may, in like manner, commence a new action within the time herein allowed to such plaintiffP

Sheriff’s bonds are made payable to the State. Dig., ¿harp. 160, see. 2.

See. 15, ¿harp. 127, Dig., provides that: “In all cases, where by the laws of this State, any person is authorized to prosecute a suit to his own use, on any official bond, he shall sue in the name of the State, or other obligee named in the bond, stating in the process, pleadings, proceedings and record in such action, thatthe same is brought for the use of the person suing.”

And section 21, of the same chapter, provides : “ Every suit brought on such offieial bond to the use of the party aggrieved, and every judgment thereon, shall be deemed the private suit and judgment of the relator, in the same marmer as if he were the nominal plaintiff, and such relator shall be liable for costs as other plaintiffs.”

Before passing upon the sufficiency of the rejoinders, it may be remarked that the replication to the plea of limitation was bad. It avers a suit by the State, against defendants, on the same cause of action, before the bar attached, judgment arrested, and present suit within a year, etc., but it does not allege that the first suit was brought for the use of Brown and Bean, the joint owners of the steamboat, for whose use and benefit the present action was brought.

It may be stated in general terms, that to prevent, the cause of action from being barred, by the operation of the 27th section of the limitation act, above copied, the parties to the first suit, or their legal representatives, or privies in estate, title or interest, should be parties to the second suit. Ingraham et al. vs. Regan, 23 Miss. 224. Hence, a former suit in the name of -the State, simply, on Crow’s official bond, would not prevent the statute from running against the present suit, brought in the name of the State for the use of Brown and Bean, who are the parties com-' plaining of the official misconduct of the sheriff; and who are to be regarded, under sections 15 and 21, of chop. 127, Dig., as the real plaintiffs in the action, the State being but nominally a party.

If the replication had been good, the second- rejoinder, alleging that the first action was misconceived, being an action on the case ex delicto, instead of debt, would havé been an insufficient answer to the replication. "Where the parties to the two actions are in legal effect the same, and the cause of action the same, an error in the form of the first action is within the mischief intended to be remedied by the 27th section of the limitation act — such error being cause for arresting the judgment. See Young vs. Devis, 30 Ala. 213.

Was the third rejoinder good ? Brown and Beam were the joint owners of the steamboat Arkadelphia, and they were the parties jointly injured by the trespass of the sheriff, Crow, in selling the boat without authority. The first suit was brought, the rejoinder alleged, in the name of the State for the use of Brown, and not for the use of Brown and Bean.

In legal effect, under the 15th and 21st sections of chap 127, Dig., the first suit was brought by Brown, one of the- joint owners of the boat, and the present suit was brought’by Brown and Bean, both of the parties in interest.

When the present suit was commenced, the cause of action was barred as to Bean, who had never sued before, but was not barred as to Brown, who brought the former suit.- But the action being barred as to one plaintiff, must fail as’ to both, for in a suit like this, they must share a common fate. Both must have the legal right to recover, or both must fail.

Of this result Brown has no cause to complain, because he must have known, as well when the first suit was brought as when this suit was, commenced, that Bean was his partner in the ownership 'of the boat, if such was the fact. Nor has Bean any right to complain at the result, because he should have seen that a suit was commenced for his benefit within the period of limitation prescribed by the statute.

This case does not fall within the point decided in Biscoe, et al. vs. Madden as ad., 17 Ark. 541, as supposed by the counsel for appellee. There the first suit was brought by the surviving original trustees of the Beal Estate Bank, and the second suit was brought by the residuary trustees, who were also original trustees, and the court specially remarked upon the fact that the plaintiffs in the second suit were also plaintiffs in the first, although some of the persons who were plaintiffs in the first suit were not plaintiffs in the second. So in James et al. vs. Biscoe et al., 5 Eng. 184.

If Brown and Bean and other persons had been plaintiffs in the first suit, then the present suit, brought by Brown and Bean only, would have been similar, in principle, to the cases cited.

It has been held that where several persons are defendants to the first suit, and but one of them defendant-in the second, the first suit was effectual to prevent the bar as to him, because he was a party to both suits. State Bank vs. Gray, 7 Eng. 760; State Bank vs. Roddy, ib. 776; State Bank vs. Davis, ib. 768.

But where the first suit is against one of two persons jointly liable, and the second suit is against both of them, the first action is of no avail to prevent the running of the statute in favor of the person not made a defendant to that suit. See State Bank. vs. Sherrill, 7 Eng. 186; Mann vs. Pattingale, 7 Harris, Penn. 313; Hopkins vs. McPherson, 2 Bay 194; Gray vs. Trapnall et al., ante.

To bold that Brown could prevent the running of the statute, both as to himself and Bean, by bringing an ineffectual suit, for his use alone, within the period of limitation, would be giving a latitudinous construction to the 27th section of the limitation act, not warranted by previous adjudications of this court, nor sustained by the decisions of other courts, upon similar statutes, so far as they have fallen under our observation. Williams vs. Council, 4 Jones, 210; Moody vs. Threlkeld, 13 Georgia R. 60; Ingraham et al. vs. Regan, 23 Miss., 224; Angel on Lim., 350.

It follows that the judgment of the court below upon the demurrers to the 2d and 3d rejoinders to the plaintiff’s replication to the plea of limitation should have been in favor of defendants Sloan and Thornton, who filed the plea, because the 3d rejoinder, though not good, was a sufficient answer to a bad replication.

6. The plaintiff, on the trial, moved the court to give the jury five instructions, four of which the court gave, against the objections of defendants, which are as follows:

■“ 1. If the jury believe from the evidence, that the facts stated in the declaration are substantially proven, they must find for the plaintiff, on the issues before them.
“2. If the jury find for the plaintiff, in assessing her damages they are to ascertain the actual value of the steamboat, her machinery, etc., at the time of the sale under the execution ; and to calculate interest on the amount thereof at the rate of six per cent, per annum, from the date of the commencement of this suit till the present time — and the aggregate of the said value and interest is the measure of the plaintiff’s damages — and that in ascertaining the value of said steamboat, the jury are not to confine themselves solely to her value as a steamboat in the Ouachita river, but are to ascertain from the evidence her actual value, or the actual value of her materials and machinery to Brown and Bean.
“ 3. If the jury believe from the evidence that the plaintiff in this suit brought her action against the defendants herein within two years after the canse of action therein complained of accrued, that plaintiff recovered judgment therein; that said judgment was, by the court, arrested; that the .present suit was instituted within one year after such arrest, and that the malfeasance complained of in the present action is the identical malfeasance complained of in the said first suit; that these facts, if pro,ven, defeat the defendants’ plea of the statute of limitations of two years.
“4.- That if the jury believe from the evidence that Smith, as. sheriff, seized the steamboat in controversy, and delivered the same to defendant Crow, as sheriff pro tempore, and that Crow, as such sheriff pro tempore, advertised said steamboat under the levy made by Smith, that these facts, if proven, constitute a seizure in law by the defendant Crow.”

The defendants moved the court to give the. jury three instructions, the first and third of which the court gave, but refused the second, which is as follows :

“ 2d. In case the jury find in favor of the plaintiff, they must assess her damages at the value solely of the steamboat ArkadeT phia, as a steamboat.”

The only objection made by the counsel for the appellants to the. first instruction given for the appellee, goes to the sufficiency of the declaration, and not to the form or substance of the instruction. The objection is, that the appraisement act was not applicable to the ¿xecution against the boat, and therefore Crow was not obliged to reserve it from sale. This objection we have settled against the appellants in considering Crow’s demurrer to the declaration.

The jury were not legally obliged to give the appellee interest as such, upon the value of the boat, at six per cent, from the time of the commencement of the suit, as the court, in effect, told them in the second instruction moved by appellee.

In Watkins vs. Wassell, 20 Ark., 420, this court held that, “in this State, interest can only be recovered upon contracts for the payment of money, in the cases specified in the statute, leaving the recovery thereof in those cases where the liability is tortious in its character, to be governed by the general principles of the law applicable to them.”

In this case, though the suit is debt upon the sheriff’s bond, the gravamen of the action is that he abused' the process in his hands in selling the boat, when it was his duty, under the appraisement act, to reserve it from sale for twelve months, and consequently he was a trespasser.

In such cases the jury may, in their discretion, allow interest upon the value of the property, from the time of the illegal sale, as part of the damages; for when the owner of property is wrongfully deprived of it, the jury may think it unjust that its value should be withheld from him for years without compensation. Sedgwick on Damages, 385, and authorities cited. The increase of damages, by way of giving such compensation, is to be left to the discretion of the jury, upon the peculiar facts and circumstances of each case. The second instruction was erroneous in not properly submitting the matter to the discretion of the jury. ’

The first rejoinder of Sloan and Thornton to appellee’s replication to their plea of limitation, was, that no such action was commenced and prosecuted, etc., and the third instruction given for appellee was intended, we suppose, to apply to the issue thus formed. No objection is perceived to the instruction, if the replication had been good, and had not been otherwise met than by the first rejoinder, but, as we have above shown, the replication was not only bad, but was well answered by the third rejoinder, to which the court improperly sustained a demurrer; hence, the finding of the jury in favor of the appellee on the issue formed by the third rejoinder to the replication, was unavailing.

The gravamen of the action being that the boat was illegally sold, and not that she was illegally seized or levied upon, the fourth instruction appears to relate to an immaterial matter, but jt is not perceived that the appellants could have been legally prejudiced by it.

The court did not err in refusing the second instruction asked by appellants.

Assuming it to have been proven that at the time the boat was sold, she was lying up as v/nHverworihy, or not in a condition to run as a steamboat, still as property, for some purposes; she was no doubt of some value to her owners, and they were entitled to recover that value, by way of damages, for tho tortious sale, if their case had been, otherwise, well made out by appropriate pleading, and sufficient proof, though she was described as a steamboat in the declaration. But in ascertaining her value, the jury, of course, would take into consideration any thing in evidence that detracted from, or deteriorated her value as a steamboat, or as property to be used by the owners for other purposes.

For the error of the court in giving that portion of the second vnst/rucUon moved by appellee,' which relates to interest, the appellants were entitled to a new trial, as it tended to deprive the jury of the right to exercise that discretion in the matter, which we have shown, above, belongs to them.

7. For Thornton and Sloan a motion in arrest of judgment was filed, on the ground that Bean, one of the parties for whose use the suit was brought, had departed this life several years before the term at which the judgment was rendered. The motion was supported by the affidavits of Crow, and another person, who was not a party to the suit.

The death of Bean, being a matter dehors the record, was not technically a matter in arrest of judgment; but if the court was satisfied that the affidavits were true, it should have set aside the judgment, and rendered a judgment, upon the verdict, for the use of Brown, as surviving owner of the boat, reciting the death of Bean.

8. At the next term of the court, Brown, having given notice to the opposing parties, applied to the court to amend the judgment by striking out the name of Bean, on the ground that he was dead when the judgment was rendered. The court refused so to amend the judgment, and Brown, in the name of the State, appealed. The defendants having previously appealed from the judgment, the two appeals were consolidated.

Though there is a precedent for such an amendment in Newnham et al. vs. Law, 5 Term R. (D. & E.,) 577, yet we do not deem it necessary to give any decided opinion upon the matter, inasmuch as the judgment must be reversed, for the errors above indicated, and when the cause is remanded, the court below can make the proper entry in relation to the death of Bean.

The judgment for costs here will be against Brown, as survivor, both parties concurring in the fact, that Bean died before judgment below.


author: Mr. Justice Fairchild

text:
    Keeler et al. vs. Harding.
    A misunderstanding having arisen between a lessor and lessee, where the lease was by indenture, the matters of difference were submitted to arbitrators, who made their award, stating, among other things, that the lessee should pay the same amount of rent and in the same manner ns provided for in the original lease: Held, that an action on the covenant in the lease for the rent reserved was well brought.

      Appeal from, Jefferson Cvrcuit Court.

    lion. JonN C. Murray, Circuit Judge.
    Bell & Carlton, for appellants.

      Watkins, for the appellee.
   Mr. Justice Fairchild

delivered the opinion of the court. ■

• Harding conveyed to Keeler and Woodall certain lands for a term of years. The object of the lease, on the part of the lessees, was to have the use of a saw and grist mill on the premises ; the lands not seeming to be important only as yielding timber for the consumption of the saw-mill. ■ The original lease was by indenture, and simply described by their numbers the lands that were the subject.of the lease, the duration of the term, the amount and mode of payment of the rent reserved. This suhffwas an action of covenant upon the lease, and complained that Keeler and Woodall had not paid the stipulated rent.

The term of the lease began upon the 1st of January, 1857, and about the 1st of June, 1857, the mill was burned, when a misunderstanding occurred between the parties, and to settle the matters of difference they submitted to arbitrators. They awarded that Keeler and Woodall should pay the same amount of rent, and in the manner provided for in the original lease, and that if they should rebuild the mill, under other provisions in the award, they should, for the same rent, have the lease extendedtwo years beyond the duration of the original 'term. Keeler and Woodall rebuilt the mill.

Judgment was rendered against the defendants in the Circuit Court, and, having appealed, the defendants below ask a reversal of the'judgment, on the ground that the action should have been brought on the award, and not on the original conveyance.

If the action, had beeen founded on any thing that was newly stated in the award, as for the use of fire-wood during the two years that were added to the original term, it must have been brought upon the bond submitting to the award, on the principle that an award, being an adjustment and merger of the matters submitted to arbitration, is itself the foundation of any actions intended to enforce its provisions. But in this case, the award does not differ from the lease, but- expressly confirms its stipulations of the payment of rent, both in amount and time of payment. It cannot then be held that the contract for payment of rent contained in the lease is in ..any way affected by the award, and when the former is in full life, we cannot see the force of the argument that would forbid it to be the ground of an action.

This being the' only matter presented by the appellants for our consideration, the judgment is affirmed.