text:
    Haynes et al. vs. Butler.
    1. Pasties. Capacity of county treasurer to sue collector.

    The county treasurer has capacity to sue the collector on his official Jiond for a failure to pay over money received by him at a delinquent tax sale, in excess of taxes, penalty and cost.
    2. Pbesumptions. In favor of officers.

    Every act required by law of an officer will be presumed to have been performed until the contrary is shown.
    3. CoIiIiEotoe. Payment to the County Treasurer of proceeds of delinquent tax sale.

    It is the duty of the collector to pay into the county treasury the sum received by him in excess of taxes, penalty and cost at a delinquent tax sale at once, and without waiting for a settlement with the county clerk, or demand by the county treasurer.

      APPEAL from Lafayette Circuit Court.
    Hon. Myron D. Kent, Circuit Judge.

      Smoote & Kelso and Farr, for appellant.

      A. B. Williams, contra.

   Harrison, J.:

This was a suit by Hattie Butler, as treasurer of Lafayette county, against Floyd C. Wood, late collector of taxes of said county, and the appellants, his securities on his official bond, to recover the sum of two thousand nine hundred and ten dollars and seventy-five cents, the aggregate amount received by him as such collector on the sale of lands for the non-payment of taxes for the year 1871, in excess 'of the taxes, penalty and costs charged thereon, which he had failed to pay into the county treasury. The defendants demurred to the complaint, and, upon their demurrer being overruled, they declined to make any further defense.

The grounds of demurrer assigned by them were—

First — That the plaintiff has not, as bounty treasurer, the legal capacity to sue.

Second — That the bond sued on was made to the State and not to the plaintiff as county treasurer.

Third — That the complaint does not show that the plaintiff has any interest in the subject matter of the action.

Fourth — That the condition of the bond was for the faithful performance of the duties of collector for the year 1871, whereas the breach assigned is the failure to pay into the county treasury money collected in 1872; and

Fifth — That the complaint does not state facts sufficient to constitute a cause of action. .

As a general thing “all public officers, though not expressly authorized by statute, have a capacity to sue commensurate with their public trusts and duties.” Supervisors of Galway v. Stimson, 4 Hill, 136; Overseers of Pittstown, 18 John, 407; Todd v. Birdsall, 1 Cow., 260.

Section 101 of the revenue act of 1871 — Gantt’s Digest, 5190— says: “ Should any tract, lot, or part of lot so advertised as aforesaid sell for more than the amount due thereon for taxes, penalty and cost of advertising, the excess shall be by the collector paid into the County Treasury, and placed to the credit of the person in whose name the tract of land, lot or part of lot, was advertised for sale, and the person or persons entitled to such excess, upon making the proper showing to the County Clerk, shall be entitled to a warrant on the treasury therefor, and said Clerk is hereby required to draw such warrant when such satisfactory evidence has been produced to him.”

The duty to receive the money from the Collector, to keep, and to pay the same over to the persons entitled, being thus devolved upon the Treasurer, to discharge his trust and duty he must be clothed with the power to sue for and recover it.

Although the bond was given to the State, and the action might have been in its name, Gantt’s Digest section 4472, the State has no interest in the money when collected, which goes into the County Treasury. Nor are the persons to whom the Treasurer is to pay it, parties in interest, because they have no right to demand it from the Collector, and can only get it from the Treasurer, and in the manner prescribed by the statute.

It follows, then, that the Treasurer is the real party in interest, and except the State, the only one who may sue for the money. Lane v. Kasey, 1 Met. 412.

There is neither weight nor plausibility in the fourth ground, that the breach of the condition assigned is that the Collector failed to pay into the treasury money received in 1872. It is not until the first Friday after the first Monday in October, that tbe County taxes are levied by the County Court, and by the law then in force, Revenue act 1871, section 74 — the tax book was not required to be placed in the hands of the Collector before the first day of January following, prior to which time he was forbidden by the statute to commence collecting, and he was then allowed until the 31st of March to complete the collection; and the second Monday in May was appointed for the sale of the lands, upon which the taxes had not been paid. The taxes levied in 1871, though collected in 1872, were the taxes of the former year, and can in no sense be considered as of the latter. Ib. sections 88, 98, 99, 100.

As the second and third are special grounds of the general objection, that the complaint does not contain sufficient facts to constitute a cause of action, and have been passed upon, we shall not, in the further consideration of it, state the facts the complaint alleges, but notice only such matters as the appellants in their argument insist should have been also averred.

They contend that the complaint should have shown that the tax book was delivered to the Collector on or before the first day of January, 1872; that the Clerk attended the sale, and made a record thereof; that he made a settlement with the Collector and ascertained the amount with which he was to be charged and certified the same to the plaintiff; and that the plaintiff presented the certificate to the Collector and demanded payment. To all of which we answer: Every official act required is presumed to be rightly and duly performed, until the contrary is shown. Broom's Max., 729; Stewart v. Houston, 25 Ark., 311. And we are unable to see how the omission of the Clerk to deliver the tax book in due time, or. to attend the sale and report the same— matters upon which his duty to pay into the treasury the money in his hands in no way depended — could excuse the Collector from the performance of such duty.

The statute, however, does not require the Clerk to make settlement with the Collector concerning such excess, and it is his duty, immediately after it comes into his hands and without demand, to pay the same into the County treasury that the Treasurer may be able to pay it to those entitled thereto.

The Court below did not err in overruling the demurrer, and its judgment must be affirmed.


source: Caselaw Access Project

author: English, Ch. J.:

license: Public Domain

text:
    Countz vs. Countz.
    1. Divorce. Alimony, pendente lite, etc.

    Where the plaintiff, in a proceeding for divorce, applies for alimony pendente lite, and an allowance for attorney’s fees, she must make some showing of merit, by affidavit or otherwise, if the allegations of her complaint are denied by the answer supported by the affidavits of witnesses.
    APPEAL from Pulaski Chancery Court.
    Hon. W. I. Warwick, Chancellor.

      Rose, for appellant.

      J. M. Moore, contra.

   English, Ch. J.:

On the 9th of December, 1873, Charlotte Countz, by her next friend, James L. Witherspoon, filed a bill for divorce from bed and board, etc., against her- husband, Eritz Countz, in the Chancery Court of Pulaski county.

The bill alleged, in substance, that plaintiff and defendant had been married about two years. That for six months they lived together agreeably, and then, without any reasonable or just cause, defendant began to treat her coldly, which increased to abuse; charged that she had married him for his money, and taught his children by a former wife, to disregard her commands; and, in various ways, mistreated and harrassed her for the purpose of driving her away. That she endured all, although her life was rendered miserable, until about two weeks before the filing of the bill, when the defendant, without cause, proceeded to personal violence, and beat and abused her outrageously; struck her on the shoulder with a stick of wood, and bruised it so that she could not use her arm for a week or more, and made use of the most terrible threats against her life. That as soon as soon as she could make her escape she did so; went to a justice of the peace near by, informed against him, and then she came to Little Rock. That she had tried in every way to please the defendant, and submitted even to be his slave in the hope that he would relent and cease his abuse, until she could stand it no longer, and fearing that he would take her life, fled from him. That before the marriage she had household and kitchen furniture, worth about $300, which was in 'possession of defendant, and had been much abused by him and his family. That she was left without any property, or means of support, was forty-four years of age, and dependent on the charity of a friend for support. That the defendant had lots and houses in Little Rock worth $2,000, and a farm and personal property in the country, where he lived, of the value of $4,000, and was a thrifty, moneymaking man, but threatened to put his property out of his hands in order.to prevent her rights. Prayer for divorce from bed and board, for alimony and for an allowance for her solicitor’s fees, costs, etc. The bill was sworn to by the plaintiff.

On the filing of the bill the court ordered a subpoena and notice to the defendant to appear on a day fixed, and Show cause, if any he could, why an order should not be made requiring him to pay into court temporary alimony for the benefit and support of plaintiff during the pendency of the suit.

The defendant filed a sworn answer, in which he pointedly denied all of the material allegations of the bill, on which the plaintiff asked for relief. He admitted the marriage, and was silent as to the alleged value of his property. He also made affirmative allegations, charging plaintiff with outrageous conduct, voluntary abandonment, etc. The charges are specifically made and circumstances detailed. He also filed the sworn statements of four persons supporting the answer. The plaintiff produced no affidavit or witness to sustain her bill.

The application for temporary allowance was heard on the 16th December, 1873, and the court ordered the defendant to pay to the master $150 for plaintiff’s solicitor’s fees, and for her support $20 per month .from the commencement of the suit until the final hearing. •

The defendant filed a motion, asking the court to revoke the order, or to reduce the amount of the allowance, alleging inability, etc.

The court so far modified the order as to allow the defendant thirty days to pay in one-half of the sum allowed for the fees of the plaintiff’s solicitor, and ninety days to bring in the other half. The defendant appealed.

In Hecht v. Hecht, 28 Ark., 92, this court held that an appeal would lie from an order requiring the husband, on a bill against the Wife for divprce, to pay in $500 for the wife’s solicitor, and $250 for her costs pending the suit, and reversed the order because the sums allowed were excessive, and an abuse of the discretion of the court. The order was held to be, in its effects, final under section 15 of the code.

The statute provides that during the pendency of an action for divorce or alimony, the court may allow the wife maintenance and a reasonable fee for her attorneys, and enforce the payment of the same by orders and executions, and proceedings as in cases of contempt.” Gantt’s Digest, sec. 2202.

The words “ may allow ” imply that the court is to exercise discretion, which must of course be a sound judicial discretion, and if abused is subject to review. The court below seems to have been of the opinion that the allowances for the attorney’s fee and support pending the suit, were to be made as a matter of ■course and of right, notwithstanding that the material allegations of the wife’s bill were denied by the sworn answer of the husband, and regardless of the fact that the answer was supported by the affidavits of four witnesses, and of the further fact that the wife produced upon the hearing of the application, no affidavit or witness to sustain her complaint or show any merits in her case.

The counsel for the appellant insists that the husband should not be permitted to prevent such allowance by answer and ex parte affidavits, for thereby the wife might be prevented from prosecuting her suit, and defeated in obtaining merited relief, which she might otherwise obtain on the final hearing, if aided by the means of the husband.

We have examined the authorities cited by the counsel for appellant, and others, and find that they do not sustain the proposition as broadly'as submitted.

In Koch v. Koch, 42 Barb., 515, where the bill was brought by the husband, the wife made application for alimony and counsel fees, to aid her in conducting her defense. The husband read affidavits on the hearing of the application, tending to show that the wife was an adulteress, etc.

Clerke, J. said : Formerly it was usual to grant alimony and counsel fees, in all actions for divorce brought by the husband against his wife, but of late the rule has been relaxed, and that it would be an outrage to grant an allowance iñ such a case as this.”

In Whitney v. Whitney, 22 Howard Pr. E., 177, the court said t “ The discretion conferred by the statute (which is similar to ours) enables the court to require the wife, when plaintiff, to show that the action is brought in good faith, before compelling the husband to pay her money to enable her to prosecute the action. The court should do this to protect the husband against vexatious suits. The ad interim alimony and money to sustain the expenses are given, not as of strict right to the wife, but of sound judicial discretion in the court.”

The court held that the application might be made before the husband was served with a copy of the bill, but should be supported by affidavits showing facts to make a good complaint.

In Carpenter v. Carpenter, 19 Howard Pr. R., 539, the court said : This application is made by the plaintiff, with full knowledge of the facts set up in the defendant’s answer, charging her .with dereliction in the discharge of her marital duties, and excusing his own conduct, and yet no affidavit is made in explanation or denial of these facts. Then, too, the acts of misconduct and abandonment set up in the complaint, are, most of them,, denied or explained by the defendant; and the principal allegations are explained by other parties who were witnesses to the transactions. Upon the whole matter, I have come to the conclusion that there is too much doubt raised by the facts now presented, as to her right to ultimate relief, to justify me in extending to the plaintiff the relief she now asks,” etc.

In Mix v. Mix, 1 John. Ch., 108, the husband demurred to-the wife’s bill, and on her application, alleging that the husband had abandoned her, and that she was destitute, Chancellor Kent made her an allowance before the hearing of the demurrer.

In Purcell v. Purcell, 3 Edwards Ch., 194, the wife answered the husband’s bill, denying, on oath, the grounds of complaint, and the court held that he must furnish her money for defense and suitable support during the litigation.

In Worden, by her next friend, v. Worden, 3 Edw. Ch., 387, the husband answered, denying the allegations of the wife’s bill, and supported his answer by copies of her letters before the bill was filed, and the Vice Chancellor refused her allowances. He said her next friend, who had been willing to embark in her enterprise, must be considered as willing to defray the expense, until she made it appear that she had a meritorious cause of complaint.

Mr. Tyler says: It is not at all a matter of course to allow an advance to the wife on a bill for divorce, a mensa et thoro to enable Her to prosecute her suit. Injury and meritorious cause of action must be made to appear, and then a suitable allowance will be made.’’ Tyler on Inf. and Cov., 912.

Mr. Bishop says: The allowance to the wife of ad interim alimony and money to sustain the expenses of the suit, is not regarded as a matter of strict right in her, but of sound discretion in the court. The discretion, however, is a judicial and not an arbitrary one. And when a case is brought within the principles which have been recognized as entitling the wife to the allowance, it follows pretty much as a matter of course. If for example, she is the plaintiff, it is no objection to making hei the allowance that the husband denies her charges under oath * * * but the pleadings which she presents must show merits.’’ Bishop on Mar. and Div., sec. 581. See, also, Puterbaugh’s Plead, and Prac., 730.

In this case the material allegations of the wife’s complaint were not only denied by the husband’s sworn answer, but the answer was supported by sworn statements of four persons, tending to show that there were no merits in her complaint.

If in fact she was treated with cruelty by her husband, and forced to escape from him for safety, as she alleges, there must have been some witness of her wrong, if not, how could she hope to maintain her bill on the final hearing, against the sworn answer of the husband, by two witnesses, or one with corroborating circumstances.

If there was any witness who could support her complaint, surely her next friend, who had “ embarked in her adventure,” might have gone to the trouble, or borne the expense of procuring his affidavit, or produced him before the Chancellor on the hearing of thé application.

The husband’s answer and witnesses, conduce to show that the wife abused his children, punished him terribly with her tongue, and finally abandoned him.

We think the court below disregarded precedents, and abused its discretion in making the allowances in this case. The wife should have been required to make some showing of merits in her bill before the allowances were made.

Decree reversed.


author: Walker, J.:

text:
    Humphries vs. Harrison.
    1. Mabbied Women: Collection by the liausbnd of her choses in action.

    Husband and wife by their joint deed conveyed land belonging to the wife by inheritance and by general purchase; the purchase money note was executed to the wife, and was collected and used by the husband without objection on the wife’s part; held, that he acquired absolute title to the proceeds.
    2. - Rights under the statutes.

    Before a married woman can hold property under the 1st section of ch. Ill Gould’s Digest she must comply with the provisions of the 7th and 8th sections by scheduling her property, and, if acquired in any of the modes pointed out in the 8th section, there must be an express declaration of purpose; the constitution of 1868 contained provisions similar to those of . the statute, except that it embraced property acquired before, as well as during coverture, and the statute was not repealed by it. Semble that the statute does not embrace money or choses in action.
    If a wife permits her husband to use her means it becomes his absolutely and she cannot, after his death, assert a claim against his estate on account of it.
    APPEAL from Phillips Circuit Court.
    Hon "W. H. PI. Clayton, Circuit Judge.

      Palmer & Sanders, for appellant.

      Tappan & Horner, contra.

   Walker, J.:

At the October term 1873, of the Probate Court of Phillips-County, Margaret Harrison presented a duly authenticated claim against the estate of James H. Harrison, as follows:

The Estate of James H. Harrison,
To Margaret Harrison, Dr.
To amount collected by James H. Harrison on note due me by Manlius Taylor
March 7, 1871.................................$ 1,052
To amount collected by him on same note
March 20, 1871................................ 440
To amount collected by him on same note
July 18, 1871................................... 1,000
To amount collected by him on same note
July 15, 1871................. 158
To amount collected by him from M. Taylor, cash payment on land.................. 1,000
--$3,650

The case was heard upon an agreed statement of facts, which are as follows: “That the claimant, Mrs. Margaret Harrison, sold lands to Manlius Taylor, part of which she inherited from her father, and part she purchased as general estate. Her husband, James H. Harrison, (the defendant’s intestate) joined her in the deed. Taylor paid cash $1,000 on said land, which was used by James H. Harrison in his life time, and Taylor executed his note to Mrs. Harrison for the sum of $3,788.25, of which the said Jame's H. Harrison collected and used $2,650., and had the note made payable to her.”

In addition to this agreed statement, the statement of James C. Tappan was taken, subject to objection for irrelevancy, or incompetency, which was as follows: “ Harrison always claimed said money as his wife’s, and collected it as her money; he always spoke of it as her money; he always expressed his desire to keep her estate separate and distinct from his own.” To the admissibility of Tappan’s statement the defendant excepted, but his exception was overruled.

The finding of the facts by the Court was but a reiteration of the evidence, with the addition that, in the collection of the money, Harrison acted as the agent of his wife.

At the instance of the defendant the Court made the following declarations, of law:

First — Upon a sale of real property by the husband and wife, inherited by th# wife, or purchased by her and conveyed to her by general conveyance, the proceeds of the sale, if reduced to possession by the husband, becomes his absolute property, and his .estate is not liable for the same after his death.

Second — That to constitute property of the wife separate propr erty under section 6, article 12, of the Constitution of Arkansas, she must do some substantial act so as to designate it, and, upon her failure to do so, his marital right will attach, and she cannot recover for moneys used by him iu his lifetime against his estate after his death.

. Third — That the wife cannot become a general creditor against the estate of her husband for moneys she has permitted him to use in his life time.

The first and second propositions were approved by the Court, the third refused to be given, and, thereupon, the Court, upon its own motion, made the following declaration of law as applicable to the case:

“ Where, on a sale of real property belonging to the wife, the notes or evidences of indebtedness are taken in the name of the wife, and, when collected by the husband, he shows by his acts and declarations an intention to keep them as the separate property of the wife, it is not such a reduction of the wife’s choses in action into possession, as will bar her right to recover the amount collected by him from his estate.” Whereupon the Court rendered judgment against the defendant for the sum of $3,650, with six per cent, interest from the rendition of the judgment until paid, and classed the same for payment in the fourth class.

The defendant filed a motion for a new trial:

Because the finding of the Court is contrary to law.

Because it is not warranted by the testimony in the case.

Because the Court erred in declaring the law in the ease.

Because the Court erred in allowing the evidence of witness Tappan to be introduced.

Because the judgment is neither sustained by the law nor the evidence.

Because the Court erred in refusing to declare the law as asked by defendant.

The motion was overruled, defendant excepted and brought the case here by appeal.

The record presents the whole case with commendable brevity and distinctness.

The relations of husband and wife and their respective rights to property at the common law, are too clearly settled to need any particular reference to them in this case. Most of the questions of difficulty presented to the Courts now, arise upon the proper construction o'f statutes enacted to enlarge the marital rights of the wife, and to determine to what extent they have innovated upon the more restricted rights of the wife under the common law rule.

Limiting our inquiry to the rights of the husband to the choses in action of the wife, which is the main question to be settled in this case, we may assume it as well settled that the choses in action which belonged to the wife at the time of the marriage, unless reduced to possession by the husband during coverture, survive to her if the longest liver. But a distinction is drawn between the rights of the husband to the choses of the wife, to which she had title at the time of the marriage, and to those which accrued to her afterwards; in the former it is held that the husband cannot sue for them without joining the wife; in the latter instance it is held that the husband may sue in his own name without joining her, and that the title vests absolutely in him without actual reduction to possession. Toller Executors, 219. Mr. Justice Clayton, who delivered the opinion in the case of Wade v. Grimes, 7 Howard Miss. Reports, 432, cites as authority Toller; Griswold v. Penniman, 2d Conn.; Banks v. Marksbwry, 3d Littell; Armstrong v. Limongton, 2 Taylor, 266; Wilkinson v. Perrin, 7 Monroe, 216, and Me Grunder and Nichols v. Stewart, 4 How., 204, and then cites several adjudicated cases which hold that it matters not whether the chose in action was executed to the wife before or after coverture, unless reduced to possession the chose in action at the death of the husband survives to the wife, but remarks, “we consider the distinction to be well founded.”

In the case of The Fourth Ecclesiastical Society in Middleton v. Mathew, 15 Connecticut, page 588, it was held that “where the land of the wife was sold by the husband and' wife, and a promissory note for the avails was taken in her name, and kept by her during her life, after which it was found in her drawers, and was inventoried by her husband as a part of her estate; such note, when made, became the property of the husband.” Mr. Justice Church, who delivered the opinion of the Court, said: “It is quite unnecessary for us now to examine the state of the common law regarding the right of the husband to choses in action accruing to the wife during coverture, and whether her husband may sue alone, or must, or may join his wife as plaintiff in an action to recover them, because our own Courts, by a uniform course of decisions, founded, as they believe, upon the principles of the common law, have held that such a chose in action vests absolutely in the husband. The note of James Mathew, when it was executed, became the property of Dr. Minon.” This is a case directly in point and a much stronger one than the one now -under consideration. In that case the note never was in the possession of the husband, but remained in the drawer of the wife, was found there by the husband at her death, and inventoried by him as hers. Whilst in this, the husband received a thousand dollars cash at the time of the sale and converted it to his own use, and, although the debt for the balance of the purchase money was evidenced by a note payable to the wife, so far as appears in evidence, it never was in her possession, but remained in his, and from time to time the residue of the money in suit was collected by him and applied to his own use, and, when so collected and appropriated, was reduced to possession and became his absolute property, whether considered as a note executed before or after marriage. All this while the wife is never heard to assert any claim to the note or to the money so collected by the husband. For ought that appears, the money may have been expended in the support and maintenance of his family.

Perry, in his work on Trusts, p. 277, says: “But as under the law in relation to settlements for the separate use of a married woman, if she allows her husband to receive her property, and to deal with it as his own in his business, or in payment of his debts, or in support of the family, she would be presumed to assent to such use; so if a married woman owning property under the statutes, allow her husband to receive her separate property and to use it in business, or mix it with his own in such manner that her property cannot be identified, or separated from the general mass, she will lose her right to such property as against her husband’s creditors, and she will have no remedy, except in equity, as a creditor.”

In order properly to understand the statute in force in this State at the time the right of action accrued in this case, which it is claimed enlarges the marital rights of the wife, we must bear in mind that the provision of the first section is operative only upon condition that the femme covert complies with the provisions of the 7th section, ch. 3, p. 765, Gould’s Digest. By the first section, “ Any married woman may become seized and possessed of any property, real or personal, by direct bequest, demise, gift or distribution in her own right as her own property: Provided, the same does not come from the husband after coverture.”

Section 7 provides “that, before any married woman shall be entitled to. the privileges and benefits of this chapter, she shall cause to be filed in the recorder’s office in the county where she lives a schedule of the property derived through her.”

The 8th section provides “ that the deed, bequest, grant, decree, or other transfer of property of any kind to any married woman, shall expressly set forth that the same is designed to be held exempt from the liabilities of her husband.”

What are the privileges and benefits conferred by the first section of that chapter ? Most clearly they are the privileges and benefit of holding separate property in her own right, and, until there is a compliance with the 7th and 8th sections, there is no right to take and hold separate property. “ Separate property, as contra-distinguished from general property, is that of which a married woman has the exclusive control and benefit, independent of her husband, and the proceeds of which she may dispose of as she pleases, and its character as such must be imparted to the property by the instrument by which she is invested with such right to it.” Cord on Rights of Married Women, ch. 9, p. 255. All of a wife’s real property does not belong to her as her separate property, but is her general property, and is subject to her husband’s marital rights as before.”

At the common law we have seen that the personal property, held by the wife at the time of her marriage, vested absolutely in the husband, as well as the choses in action when reduced to possession, and it follows, as a consequence, that the right to hold a separate property in personal property is derived alone from the statute, in order to do which the statute provisions must be complied with. If the wife suffers the husband to deal with her separate property as his own, or pays his debts with it, or in support of his family, or to mix it with his own in such a' manner as that it cannot be distinguished or identified, she loses it as against her husband’s creditors, and has no remedy, says Perry, except in equity as a creditor. Although the terms used in the first section of the act are broad, in view of the provisions in sections 7 and 8, we are not prepared to say that the terms any property, real or personal,” was intended to embrace money, or even choses in action. Scheduling money would be no setting apart or identification of it, and, although choses in action might be identified, still, from their nature, they must soon be converted into money or subject to be lost.

A reference in the instructions asked was made to the provisions of the constitution of 1868, and of its effect upon the marital rights of a femme covert. This court, at its last winter session, had occasion to consider the effect of the constitutional provision upon the rights of the wife in the case of The Executors of Keatts v. Stillwell and wife, and it was held that, whilst the constitutional provisions conferred upon the femme coverts the right to hold both real and personal property, whether acquired before or after marriage, whether by gift, grant, inheritance, devise or otherwise, as their separate property, with power to bequeath or devise the same, no power was conferred to sell or convey such separate estate, and it was also ordained in the same section that laws should be passed providing for the registration of the wife’s separate property, and that when so registered, and so long as not entrusted to the management or control of her husband only as an agent, it should not be liable for any of his debts, engagements or obligations. Thus it will be seen that these constitutional provisions are substantially the same, so far as the right to take and hold property is concerned, as that of section 1, in Gould’s Digest, except that it extends to property acquired before as well as after marriage; and the same legislative restrictions as to registration were required as those of sections 7 and 8 of that chapter.

After this review of the question of title to the money received from Taylor for the purchase of the wife’s lands, and of the authorities bearing upon it, we are led to the conclusion That the note having been executed to the wife during coverture, the money collected thereon was the husband’s, and not the separate property and money of the wife. There was no evidence whatever that the husband acted as the agent of the wife in the collection of the money, that she set up any title to the note, or to the money when collected, or attempted to control the use or disposition of it, and, whilst the evidence conduced to show the husband expressed his wish and intention to keep his wife’s estate separately from his own, that these declarations are flatly contradicted by his acts, and that, under the state of case presented by the evidence, the court erred in finding the facts to be, that in the collection of the money Harrison acted as the agent of his wife. There was no evidence whatever that he acted for her, unless it be his loose declarations that he wished to keep her property separate from his.

The court correctly held the law, in its second ruling at the instance of the defendant, that the wife, finder our law, must do some substantial act so as to designate her property, and if she fails to do this the marital rights of the husband will attach. We have, by express statute, declared what this substantial act shall be. It sb.all be by scheduling and registration, or by an express declaration of purpose, if by deed, etc. Until this is done, no right to hold separate property is conferred by the first section, or by the constitution, which expressly ordains that Jaws similar to sections 7 and 8 shall be passed, and, until they were passed after the constitution of 1868, the sections in Gould’s Digest, 1, 7 and 8 remained in force. They were statutes of a general nature, and not inconsistent with the provisions of the constitution, except that the constitution permits the wife to hold property, whether acquired before or after coverture, whilst section 1 limits the right to property acquired during coverture.

The first and second declarations of the law, made at the instance of the defendant were correct. The third was erroneously overruled.

If the money was collected and appropriated to the use of the husband by the permission or with the assent of the wife, it became absolutely his. The court should have set aside the'judgment and granted a new trial.

Let the judgment be reversed and a new trial granted.


text:
    Stroud, ex'r vs. Vanzant, ad.
    1. Chancery Jurisdiction: Where the court having jurisdiction for one purpose may dispose of the whole case.

    When a Court of Chancery takes jurisdiction of a case for a purpose within its jurisdiction, it may, with the consent of the parties, retain it and dispose of the whole case.
    2. Waiver of objection to.

    Tf objection to the jurisdiction is raised in this Court for the first time, and there was any vestige of jurisdiction, the cause will not be dismissed.
    APPEAL from Boone Circuit Court.
    Hon. James H. Huckberry, Circuit Judge,
   Walker, J.:

Andrew Yanzant filed his bill in the Boone Circuit Court, in which he alleged that as administrator of the estate of William M. Yanzant, he held a claim against the estate of William P. Stroud, deceased, for eleven hundred dollars. That he presented the claim to the Probate Court for allowance and classification. That the parties appeared in that Court, and after the evidence was heard, his claim was established, allowed and ordered to be classed. That the executrix of the estate of Stroud took an appeal from the judgment of allowance to the Circuit Court, but that before the transcript of the judgment was made out, the records of the Probate Court, including the judgment of allowance and appeal, were destroyed by fire.

The claim which had been allowed and the consideration upon which it was founded were set out in the bill, in which it was averred that since the rendition of the judgment the County of Boone had been established. That all of the parties resided in that part of Carroll County, which now composes part of Boone, and concluded with a prayer, that the records so destroyed be established and certified to the Probate Court of the County of Boone, and for general relief.

The defendant appeared and admitted of record the truth of all the material allegations of complainant’s bill necessary to establish the lost records; but denied the validity of the claim, and thereupon the parties agreed of record that the issue of facts as to the validity of the claim should be tried de novo before the Court sitting as a jury upon the issue of nil debit and payment, the case to be set for hearing at the next term of the Court waiving exceptions to all irregularities. At the next term of the Court the case was tried before the Court, evidence was introduced by both parties, and the Court found that the sum of six hundred dollars debt, and three hundred and ninety-five dollars damages was due to the plaintiff, for which judgment was rendered.

The defendant excepted to the finding of, the Court and the Judge certified that the depositions, copied into the transcript, were all of the evidence in the case.

The defendant has appealed to this Court and by her counsel contends that the Court of Chancery was incompetent to try the issues of fact, and that its jurisdiction under the state of case made, was limited to the questions of the existence, and the destruction of the records of the Probate Court, and that its appropriate and only judgment should have been to establish the lost records and to certify the same to the Probate Court.

It is true that this would have been the proper disposition of the case uninfluenced by the agreement of the parties. To this extent jurisdiction is expressly given by statute, and the Court having taken jurisdiction of the case for a purpose clearly within its jurisdiction, the question is whether by consent of parties the Court may not retain its jurisdiction, settle the question of indebtedness and finally dispose of the whole case.

It has been repeatedly held by this Court, that when a Court of Chancery has once rightfully acquired, jurisdiction .of a case, it may retain and fully dispose of it. No objection was made to the jurisdiction of the Court, so far from this it was expressly agreed by the parties that the Court should retain jurisdiction and try the case waiving exceptions to all irregularities. If objection had been made to the jurisdiction of the Chancery Court, that Court under the code practice is authorized to transfer the case from the chancery to the common law docket for trial. Such was held to be the proper practice in the case of Berry, admr., v. Hardin et al. manuscript opinion of this Court; but no objection was then made, and after final trial and judgment against them, it comes with a bad grace from them to object, for the first time in this Court, that the Court which by their own consent had tried the case, had no jurisdiction of it. We have repeatedly held that where the parties go to trial without raising the question of jurisdiction until the case comes before us, or even until after trial and judgment in the Court below, this Court, will lay hold of any vestige of jurisdiction before it would dismiss a cause and send the parties to a court of law. Daniels v. Street, 15 Ark., 307; Mooney v. Brinkley, 17 Ark., 340; King v. Payan, 18 Ark., 583.

We are sustained by these decisions in holding that the objection to the jurisdiction of the Court is out of time, and under the state of case before us untenable.

It is next contended by the counsel that the finding of the issues of fact by the court is without sufficient evidence.

The counsel on both sides have argued the question .as if a motion for a new trial had been made in the court below and overruled, and in point of fact, such would seem to be the case, as we find in the appellee’s brief what purports to be a copy of the several grounds set forth in the motion for a new trial, but the transcript before us discloses no such state of case. It is true that an issue of fact was tried under the Code practice, by the court sitting as a jury, but it is also true that the trial was had in a court of chancery by consent, and we are not aware that the practice of moving for a new trial’ and bringing the evidence before this court by bill of exceptions, has been established, or that there is ordinarily a necessity for it.

The usual practice is to set the cause in chancery for hearing upon the pleadings, exhibits and depositions, which give evidence of record of the state of case before the Chancellor. In this case the defendant excepted to the finding of the court, and the judge has certified that the depositions found in the transcript were all the evidence in the case. No question has been raised by the counsel on either side in regard to the manner of getting the facts before this court.

In view of which and of the peculiar circumstances of the case we will proceed to consider the remaining question, which is, whether the finding of the court, sitting as a jury, was or not sustained by the evidence.

The court found that plaintiff’s intestate sold to defendant’s testator a tract of land, and that there was still due and unpaid the sum of $600 principal, with interest thereon at the rate of six per cent, per annum, amounting to $395.

The counsel for appellant contend that the $600 certificate of Brooks, quartermaster, was received by Vanzant as part payment for the land, absolutely and at his risk. That this was an executed contract, and that full payment was made at the time the deed was executed. The evidence which best sustains this position was that of their witness, Spring. He states that he was present at the house of Stroud, at the time when both parties were present; that he examined the deed and saw it delivered; that Stroud paid Vanzant a horse at $100, a yoke of oxen at $75, $330 in war bonds, and a quartermaster’s certificate of Brooks’ Confederate regiment, for $600. That Vanzant objected to taking the certificate in payment, and-that Stroud replied, that he must take it or it was no trade; that Vanzant took the certificate, and witness thinks that Stroud remarked, he must take it as a man does his wife, better for worse. Witness told Vanzant that the value of the certificate depended upon the success of the Confederate war.

Witness Vanzant, who also professed to have heen present when the trade was made, says, it was made at Vanzant’s house, two miles from Stroud’s, that witness Spring was not there. That Stroud paid as the consideration for the land, a horse at $150, a yoke of oxen at $50, a quartermaster’s certificate of Brooks’ regiment for $600, which was given by the quartermaster to Stroud for mules furnished that regiment, and a note on one Carroll; that at the time the quartermaster’s certificate was-offered to Vanzant, he asked Stroud what would be done in case it was not good, Stroud replied, that- he would make it good;. that Vanzant never got anything for the certificate, and had it on hand at the close of the war.

These two witnesses differ in their statements as to the place where the trade was made, the value of the property paid, the remaining payment, whether in war bonds or Carroll’s note, as well as the terms upon which the certificate for $600 was to be taken. Witness Crane corroborates the statement of Vanzant as to the price of the oxen, says that he and one Britton were called upon to value the oxen at Stroud’s store, and valued them at $50. He also states that Stroud took out some receipts which were spoken off as quartermaster’s receipts of Brook’s battalion. Vanzant said he was afraid of the receipts, Stroud replied, do you not think that I am too much of a gentleman to pay debts with nothing;' witness heard nothing said about a land trade. Witness Smith lived near to, and was well acquainted with both the parties. Stroud was a long-headed, shrewd business man, a good trader and a gentleman. Vanzant an honest hard-working man, not considered bright. This witness conversed with Stroud about his trade with Vanzant; told Stroud that he would not have taken such pay for the land as he understood Vanzant had, that he considered the quartermaster’s certificate worthless. Stroud replied that if the certificate was not good, he was. That if Vanzant did not get the money on the certificates, he would take them back and pay him- the money on them. Witness Campbell states that he was at Stroud’s store when Vanzant came in and told Stroud that he had sent the quartermaster’s certificate to Little Rock, in order to draw the money, but that the proper authorities there refused to recognize the claim, or to pay it. Stroud told Vanzant that if they would not pay it, he would, that Vanzant should not lose that much on his land. The evidence is clear that the land was worth $1,200.

This is all of the evidence bearing upon the question to be •decided, which is : does the evidence sustain the verdict or finding of the court? We shall not consider this evidence as conducing to prove' an after agreement on the part of Stroud to take back the certificate for $600, but as tending to prove what the contract or agreement was at the time the contract was made. If the certificate was taken as an absolute payment of that much, there might arise a question as to whether the certificate was of any value whatever; or in consideration of the fact ■ it was rejected as unauthorized by the Confederate authorities, whether it was of more value than a counterfeit bill or a forged note would have been; but aside from this, we will refer to all of the evidence to ascertain whether this was an absolute or a conditional payment. If, as the testimony of witness Spring conduces to prove, this Confederate certificate was to be taken as an absolute payment of that much, in the language of the witness, as a man takes his wife, better for worse, why was it, that when informed by Vanzant that the Confederate authorities refused to recognize the claim or pay it, Stroud, instead of promising to pay, did not reply, you took it better for worse, if not paid it is your loss, not mine ? Why, when witness Smith told him he considered the certificate worthless, did he not say it was no difference to him, Vanzant took it with the chances of getting the pay? Instead of which he replied, if the receipt is not good, I am; if he does not get the money on the certificate, I will take it back and pay him the money.”

We think it a fair presumption that if in fact the receipt or certificate had not been taken with an understanding that if not paid by the Confederate authorities, he would pay, he would have upon those several occasions have so stated, and that he promised to pay because it was his original agreement to do so. This all goes to sustain witness Vanzant’s evidence.

When we take all this evidence together and weigh it carefully, we are led to conclude that the weight of the evidence is in favor of the verdict or finding of the court.

Let the judgment be in all things affirmed.


author: Williams, Special Judge:

text:
    Fitzgerald vs. Spain.
    1. Vendor and vendee. Purchase by vendee, at tax sale.

    A vendee in possession of land under a title bond, and those claiming under him after his death, as the widow in right of dower, the heirs at law, etc., are bound to pay the taxes, and cannot, either directly or indirectly, acquire title under a sale for taxes that accrued during the time they were bound to .pay them.
    APPEAL from Phillips Circuit Court.
    Hon. John E. Bennett, Circuit Judge.
   Williams, Special Judge:

Addison Spain filed his bill on the chancery side of the Phillips Circuit Court, in which he states that on the 30th day of December, 1858, he sold to John W. Fitzgerald a certain tract of land described, for thirty-two hundred dollars, payable in three equal installments, due, respectively, the first day of' January, 1859, the first day of January, 1860, and the first day of January, 1861, each payment drawing ten per cent, interest after due; that at the time he gave to Fitzgerald a. title bond, conditioned that he would make title to Fitzgerald on payment; that at the time he sold Fitzgerald the land he also sold him a negro man and all the stock, farming implements then on the land; that Fitzgerald made various payments to plaintiff, and on thé first 1862, he and -Fitzgerald had a settlement, and there was found to be due from him on said purchase ($1898.42-100,) eighteen hundred and ninety-eight dollars and forty-two one hundredths, and that Fitzgerald executed and delivered to Spain his writing obligatory for that sum, due one day after date, and drawing ten per cent, interest, and he delivered to Fitzgerald the notes first executed for said property and received this in lieu of them; that after executing this note, Fitzgerald died, leaving Nancy C., his widow, and the other defendants named in the bill, his children, him surviving, without having paid any part of the writing obligatory, and that there had' never been any administration on his estate; that, after the death of her husband, Nancy C. paid to plaintiff on the note the sum of four hundred and twenty-two dollars, April 25th, 1866, and the sum of forty-five-dollars, December 23d, 1866, both of which sums were credited on said writing obligatory, which was all that had ever been paid thereon and the balance was due and unpaid.

That on the 11th of March, 1867, the said tract of land, while the same was in the possession of the defendant, Nancy C. Fitzgerald, was sold by the tax Collector of Phillips County, for the taxes of 1865 and 1866, and at said sale Judge J. C. Tappan bought the land for the taxes, penalty and cost, and received a certificate of purchase from the Collector.

That soon after said sale Nancy C. Fitzgerald came to Tappan and represented that she was the owner of the land; that it was her home and she desired to redeem the same. She stated that she was poor and had permitted the land to be sold through ignorance, not knowing that the same had ever been assessed, whereupon Tappan permitted her to redeem the land; that Tap-pan had endorsed his name on that, as well as other certificates of purchase which he held, and when he delivered the certificate of purchase to Nancy C. it was with his name endorsed thereon; that he did not sell or assign the certificate to her, but that Nancy C., in order to defraud plaintiff of any lien on the land, after-wards, on the 15th day of April, 1868, presented the certificate to the Collector of Phillips County, and, upon the false representation that she was the assignee of Tappan, procured him to execute to her a deed for the land, which was acknowledged and recorded; that Nancy C. was, at the time of filing the bill, in possession of the land, and had been from the death of her husband, which was long prior to the tax sale; that he had tendered a deed to defendant for the land in accordance with the conditions of the title bond.

Prayer for the sale of land to satisfy lien and that the tax title be cancelled.

Nancy C. Fitzgerald answered; the other defendants, though served with process, do not answer. Mrs. Fitzgerald admits the purchase of the property and terms and conditions of sale and the main allegations of the bill, and the time and manner of payment, the giving of notes and title bond, etc. But she denies that Spain delivered up to John W. Fitzgerald the three notes executed by him for the purchase money of the land, stock, etc., at the time said Fitzgerald executed his writing obligatory for $1,898.42. That he, Spain, retained in his own possession all of the original notes except the one due January 1st, 1859, which having been previously paid was surrendered to Fitzgerald when he paid the same. That the other two which matured on the 1st of January, 1860, and 1861, respectively, were surrendered 4to Nancy C. on the 27th day of February, 1864, when she paid plaintiff $2,100. That she was not aware that her husband had ever made a settlement with Spain on the 1st day of January, 1862, and that he had made the writing obligatory for $1,898.42 as the balance due Spain at ¡that time, when she paid him the twenty-one hundred dollars, nor did Spain tell her of the fact, but she acted under the belief that the original notes were unpaid and she so believed when she made the subsequent payment mentioned in the bill. She claims that all her payments should have gone on the writing obligatory for $1,898.42, which would have extinguished it and left an excess due Mrs.' Fitzgerald of about four hundred dollars, as she claims that at the time of paying the $2,100 on the 27th February 1864, Spain promised to credit the amount on her husband’s notes given the 30th of - December, 1858, which she states Spain said he did not have with him at the time. In this Mrs. Fitzgerald contradicts what she had just averred, to-wit: that these notes were delivered to her when she paid the $2,100 on the 27th of February, 1864. That afterwards in 1866, when applying for further payments, at her request he gave a receipt for $2,100 paid in February, 1864. She denies that anything is, due Spain, sets up her tax title denying that she had any-purpose of defrauding Spain, or her co-defendant in her original purchase. She makes the allegations of her answer the subject of a cross bill against Spain. Spain denies the statements of the answer and cross bill as to the payments, and by way of amendment to the bill and answer to the cross bill, he avers that the statements of his original bill, that there was but one writing obligatory for $1,898.42 given by John W. Fitzgerald in January, 1862, was a mistake of his counsel in drawing the bill, and of himself in not stating all the facts, which, knowing the note sued on to be all that was then due, he deemed unnecessary. That at the time he made the settlement with Spain in January, 1862, that the then overdue notes given in December, 1858, were taken up, and after deducting payments and counting interest there were two notes given for $1,898.42 each. That in February, 1864, Nancy C. paid him the sum of $2,100 in Confederate money and he delivered to her one of the notes executed by her husband in January, 1862, which she burnt at the time. That the note of .$1,725 exhibited with Mrs. Fitzgerald’s answer was delivered up to John W. in his life time. That after the war closed Nancy C. applied to him for a receipt for $2,100 paid in February, 1864, in Confederate money, giving as a reason that her husband’s children, her own step-children, had an interest in the land, and she must show that she had paid for it. The testimoney fully sustains Spain’s version of this disputed matter.

Even Mrs. Fitzgerald’s sister; Miss Collins, who is her only witness, states on cross examination that but one note was delivered up when Nancy C. paid the $2,100 Confederate money in February, 1864, and that was for $1898.42, as claimed by Spain, and that it was burnt. This totally contradicts her sistei’, who. in her cross bill owned that Spain said then that he did not have either of the notes with him, but promised to credit it on them. Spain is sustained by Mathews, his own witness, and the only witness except Miss Collins, who testified as to this. Mrs. Fitzgerald admits her possession and occupancy of the land at the time the taxes accrued and at the time of the sale therefor, and up to the time of filing her answer, from the death of her husband.

The court below found the facts as claimed by Spain in his original bill as amended, and rendered a decree for the balance due on the note of $1898.42, after allowing the two credits above mentioned of $-192, and $45, and cancelled the tax deed. Tappan & Horner, in their deposition, fully show that Mrs. Fitzgerald got the tax certificate by way of redemption, and although Miss Collins, who was present, understood it differently, the weight of the testimony is with Spain. But it matters not, a vendee in possession under a title bond in the enjoyment of rents and profits, or having power to enjoy them, is so far bound to pay taxes, as to preclude him from acquiring title, directly or indirectly, from or under a sale for taxes which accrued while he was so under obligation to pay, and those who claim under such vendee, as in this case, ,as dowager, heirs at law and homestead occupants enjoying, and having the legal right to enjoy the rents and profits, are in no better plight, and cannot take advantage of their own wrong in letting the property sell for taxes, to acquire a title thereby. Hall, ad. of Lyon, v. Denckler, et al., M. S. Opin. 1873; Cochran v. Guild, 8 American Reports, Hilliard on Vendors, 398 ; Butler v. Porter, 13 Mich., 299; Barton v. Moss, 32 111., 50; Hart v. Rowland, 22 Iowa, 53 ; Miller v. Corey, 15 Iowa, 166. Therefore the court rightly cancelled the tax title. It follows — this tax title out of the way — that there was a lien on the land for the unpaid purchase money, and the court properly so decreed. Finding no error in the proceeding an^. decree of the Circuit Court of Phillips county in this cause, let the same be in all things affirmed with costs.

Mr. Ch. Justice English did not sit in this case.


text:
    Greedup et al. vs. Franklin County et al.
    1. '.Taxation. Levy for ordinary county purposes.

    The fees and salaries of the county court are embraced in a levy of taxes for ordinary county purposes; and where the maximum rate allowed by law is levied for the latter purpose, an additional levy for the former is illegal.
    2. Levy for county indebtedness, when illegal.

    A levy of taxes by tho county court for the payment of county indebtedness, when there is no such indebtedness, is illegal.
    3. Injunction. To restrain an illegal levy of taxes.

    Where the record shows a prima facie valid levy cf taxes, which it would require extrinsic evidence to show the invalidity of, or where the parties affected by an illegal levy are numerous, so that redress at law would require a multiplicity of suits, a court of equity will enjoin.
    APPEAL from Franklin Circuit Court.
    Hon. William N. May, Circuit Judge.

      W. W. Mansfield for appellants.
    An insufficiency of first and fourth causes of demurrer, and defective nature of last clause of eighth cited. Civil code, sec; 112 ; Myers’ Codes (Ky.), p. 361 N. C.; 3 Metcalf, 61; 8 How., 177, 258.

      The second ground for demurrer is only ground for motion to strike out names of those improperly joined. See code, sec. 155; 17 B. Monroe, 602; 1 Duval, 84; 18 B. Monroe, 132.
    The fifth and sixth causes constitute no ground of objection to the bill. Allen ex parte, 26 Ark., 9. The third never was ground of demurrer. The eighth is the only valid ground of demurrer, if' supported by the bill.
    That plaintiff has ample remedy at law is not a good ground of demurrer. It must be overruled if the complaint shows any cause of action, at law or in equity. Civil code, secs. 7 and 111; Foster v. Watson, 16 B. Monroe, 387; 10 How., 222; Trustees v. Forest, 15 B. Monroe, p. 168. "
    There was no appeal from the county court.
    The county court had no jurisdiction to levy taxes, except in the manner, to the extent, and at the time provided by act of 25th of March, 1871. See Const., 68, art. 10, sec. 5; Dunn v. State, 2 Ark. Rep., 230; State v. Bromley, 20 Ark., 78.
    The remedy by certiorari was not safe and certain. Burnett v. Cincinnati, 3 Ohio, 73. See Nash’s PI. and Pr., under Ohio code, 490; also City of Covington v. Ludlow, 1 Metcalf, 295; Bowling Oreen v. Hobson, 3 B. Monroe, 479; City of Lexington v. Me Quillan’s heirs, 9 Dana, 514.
    Thei’e is also jurisdiction to prevent multiplicity of suits. 4 Ark., 303, 340; 8 Ark., 9. ’ '
    See as to equity of the bill act of March 25th, 1871, secs. 74, 146, 148, and act of July 23d, 1868.
    The circuit court erred also in dismissing the complaint. Lansdale v. Mitchell, 14 B. Monroe, p. 348.

      Montgomery & Warwick for appellees.
   Walker, J.:

The appellants, in behalf of themselves and the other taxpayers of said county, filed their bill in chancery against, the county of Franklin and Charles E. Berry, the sheriff of that county, to enjoin the collection of certain taxes alleged to have been illegally assessed, and about to be collected by the sheriff. The defendant, Berry, filed a demurrer to the bill, and assigned, amongst other causes, that a court of chancery had no jurisdiction to render the relief sought.

The demurrer was sustained, a temporary injunction', which had been granted by one of the judges of the Supreme Court, was dissolved and the bill dismissed. The plaintiffs named in the bill entered into bond to stay proceedings as to them, and appealed.

The question to be determined is, do the allegations of the bill present a case of equitable jurisdiction ? The plaintiffs aver that they are residents of Franklin county; that they sue in their own behalf as well as all the owners of taxable property in that county; give the value of each of the plaintiff’s property separately ; state the assessed value of all the property liable to taxation in the county. They allege that no county court was held in the year 1871, at the time prescribed by law, and that, on the day fixed by law for that purpose, said court did not determine the several amounts of revenue to be raised for ordinary county and other purposes for the year 1871. Nor did said court, at any time thereafter, determine the several amounts to be raised for ordinary county expenses, and other lawful purposes, by taxation by setting the same forth upon the records of the court. But that, at an after day, on the 26th October, 1871, did make an order levying on all of the property of the county assessed for taxation for that year the following rates of taxation: For ordinary county purposes, one-half of one per cent; payment on county indebtedness, three-fourths of one per cent; road purposes, one-tenth of one per cent; building and repairing public buildings, one-fourth of one per cent; maintenance of poor, one-tenth of one per cent; and for payment of salaries and fees of the county court, one-eighth of one per cent, besides other rates and levies therein made.

Plaintiffs aver that the assessment of one-half of one per cent for county purposes was all that could be lawfully levied for that purpose; that the fees and salaries of the county court were part of the ordinary expenses of the county, and that the tax of one-eighth of one per cent for salaries and fees of the county court was without authority of law, and which they, as tax-payers, were not bound to pay. That said levy of one-eighth of one per cent, so assessed, amounts to $2,510, which sum is in excess of the salaries and fees of said court for that year the sum of $856.99. That the levy of three-fourths of one per cent for the purpose of paying county indebtedness was illegal, because there was no county indebtedness at that time. That no order was ever made to call in and fund the outstanding county warrants, or scrip of the county, for the payment of which, as a county indebtedness, a tax could be lawfully assessed. That it had never been ascertained or declared by said court that there was a deficiency, or that it was necessary, to make a levy to meet it. That no. such question has ever been submitted to the qualified electors of the county. That said levy of three-fourths of one per cent to pay county indebtedness is without authority of law. That the illegal taxes so assessed is nine and one-half mills on the dollar in excess of the aggregate legal rates which said court has lawful power to levy. That the entire assessment of taxes, legal and illegal, was ordered by said court to be levied. That, in obedience to such order, the clerk of said court made a tax book for the collection of taxes for the year 1871, upon which was assessed and levied said illegal tax upon all of the taxable property in the county. That said book was delievered to the defendant, Berry, as sheriff and collector of said county. That, as such sheriff, he is proceeding to collect from the tax-payez’S of said couzzty such illegal tax, which, upozz. the whole of the property assessed, amounts to $11,923, the collection of which, under the authority of a warrant attached to said book, will soon be made, unless such officer be ezzjoined from so doing.

Plaintiffs set forth the amount of unlawful tax that each of them will be required to pay. And further state that they appeared by attorney, and moved said court to amend their order, by which they'levied such illegal tax, but that their motion was overruled by the court, who refused to permit any entry of their motion upon record, or any notice of it whatever. That unless imznediate relief is gz’azited by injunction, the defendazzt as Sheriff, will proceed to distrain and collect such taxes.

All of the material allegations of the bill are sustained by exhibits, duly certified and made part of the bill.

The jzraj er of the bill is that the collection of such illegal tax may be perpetually enjoined and for other adequate relief.

Uzzder the state of case thus presented, the question is, have the plaizztiffs a right to redress, and if they have, is it in a court of law, or in equity? The court below held that the party plaintiffs should resort to a court of law, not equity, for redress. In thus deciding did the court err ?

That the County Court acted without authority of law in levying a tax of one-half of one per cent, for county purposes, and also in levying a tax to pay the salaries and fees of the County Court, is evident. The greatest amount for ordinary county purposes, which the court had, under the statutes, power to levy in one year, was five mills on the dollar. The payment of the fees and salaries of the County Count were part of the ordinary expenses of the county and were embraced in the levy of five mills, and therefore the levy of one-eighth of one per cent, was in' excess of what, as regards that item of tax, it was lawful to levy.

The levy of three-fourths of one per cent, for the payment of county indebtedness was made upon the false assumption, that Franklin county had an outstanding debt, when in fact the county had no such debt, as was stated in the bill and proven by the exhibits.

That these two items of taxation were illegal and should not be collected of the tax-payers of Franklin county, there can be no doubt. The material facts are fully stated, and well sustained by the exhibits, and unless there is a full and complete redress at law, we should feel it our duty to grant the relief prayed.

As our former adjudications have gone far to settle this question of jurisdiction, we will briefly review them in order to determine whether they were made under a state of case which will make them authoritative in this.

In the case of Clayton, sheriff, v. Lafargue, 23 Ark., 138, a bill was filed by Lafargue to restrain the Sheriff of Desha county, from selling a tract of land for the payment of taxes, under a special act of the Legislature to raise a revenue for repairing levees. It was claimed by the plaintiff, that the land levied upon was not subject to taxation for that purpose, and prayed an injunction.

Mr. Justice Compton, who delivered the opinion of the court, held that the complainant, if .entitled to redress, had no remedy at the common law by certiorari. Chief Justice English, in a separate opinion, referred to the fact that the allegations were general, and stated no fact upon which to impeach the judgment of the court. That the determination of the fact as to whether the land was subject to the special tax, was one of which the assessor had superior advantages of determining, and was of opinion that a court of chancery should not interfere by injunction, to enquire into the legality of an assessment unless for mistake, or such abuse of judgment and discretion as amounted to fraud in the assessment.

The case of Floyd v. Gilbreath,, 27 Ark., 67 5, was, in many respects, like the present. The plaintiffs sued for themselves and all of the other tax payers of the county of Scott. The taxes sought to be enjoined were alleged to have been illegally levied by the County Court; this illegality was apparent upon the record of the Court making the assessment. Mr. Justice Stephenson, who delivered the opinion of the Court, reviewed the authorities bearing upon the question of jurisdiction with care, and held that where the wrong complained of exists de hors the record, as where the levy on the face of the proceedings to impose it, is a valid lien on land, and extrinsic evidence is required to show its invalidity, neither the writ of certiorari or prohibition is of any value, and, in such a case, the Court of equity will interfere to prevent a multiplicity of suits. And also held that, in the state of case presented, a bill for injunction was not the appropriate remedy, because the plaintiff had a full, adequate and complete remedy at law, and had failed to show any reason for not pursuing it; that a review of the proceedings by certiorari would have disclosed the error, and quashed the levy. In the ease of Ramsauer v. Harbison, manuscript opinion, it was held that a bill to enjoin the collection of taxes on the ground that the taxes were illegal, should show by proper allegations that the complainant was without adequate relief at law, with such allegations of irreparable injury as to bring his case within the equitable jurisdiction of the Court.

In the case of Murphy v. Harbison, ms. op., a bill was filed to enjoin the collection of a school tax, alleged to have been illegally assessed. Chief Justice English, who delivered the opinion of the Court, said: “On the face of the record before us, the County Court had no jurisdiction to levy the five per cent, tax complained of, and it might have been quashed by the Circuit Court on certiorari * *. True there is a general averment in the bill that the appellant was otherwise remediless; but it appears of record that it was a single tax levied for a special purpose, to maintain a district school. That the County Court, which made the levy, had no sueh facts before it, as to give it jurisdiction to make the levy, and it is manifest that the Circuit Court, on certiorari, could have quashed the whole levy. The appellant having a plain and simple remedy in a Court of law, and averring in his bill no such facts as to bring the case within any of the established subjects of equity jurisdiction, the Court below properly sustained a demurrer to the bill.”.

It will be perceived that, in each of these cases, the jurisdiction of ;bhe Court of Chancery was denied, because there was, in the opinion of the Court, a full, complete and perfect remedy at law, which remedy, in each case, was declared to be by certiorari.

This remedy at the common law then, is to quash or affirm upon the state of case presented by the record. Matters de hors the record cannot come in aid of the record, or to vary the state of ease presented upon its face. Miller v. McCullough, 21 Ark., 426. Carnall v. Crawford County, 11 Ark., 604. The errors complained of in the several cases above cited, were all apparent upon the face of the record, and consequently might have been reached by certiorari. But such is not the case, so far as regards one of the items of illegal taxation complained of in this case, the illegality of the levy of one half of one per cent, for ordinary county purposes, and the further levy of one-eighth of one per cent, for the payment of salaries and fees of County Court, was apparent upon the face of the record. But the illegal tax of three-fourths of one per cent, for the payment of county indebtedness was not apparent upon the face of the record; for aught that appears upon the record such indebtedness may have existed; if it did, then the order was not illegal; if there was no such indebtedness, then the tax was illegal. This question of fact not being apparent upon the record, could not be enquired into upon a writ of certiorari. For this then there was no remedy for certiorari; there was none by appeal, because there was no law providing for an appeal. All of the necessary facts to show the illegality of this tax were shown by distinct and positive allegations in the bill.

It was stated that there was no county indebtedness, no debts had been funded, no county liabilities to pay for which this three-fourths of one per cent, should be levied. It is moreover stated that the complainants appeared before the Court and moved that these errors be coi’rected, but that the Court not only refused to entertain the motion, but also refused to permit an entry of its having been made to be placed upon the record. This wanton, and (we hope) unprecedented abuse of power amounted to a fraud upon the tax payers of the county.

Under the state of case thus presented, there could be no full, complete and adequate remedy at law to correct this flagrant abuse of power; and when such is the case, when the record shows a prima facie valid record and in the language of the Court in Floyd v. Gilbreath, 27 Ark., 675, “extrinsic evidence is necessary to show its invalidity,” a Court of equity will take jurisdiction, and arrest the threatened wrongs.

And whilst we will sustain the jurisdiction of a court of chancery upon this ground, under the state of case presented, we will remark that there is another ground of equitable jurisdiction, which should not be overlooked.

In the case before us, it is shown that the illegal tax thus assessed amounts to $11,923.21. These plaintiffs have sued in behalf of themselves and of the other taxpayers of the county, this they may do in a court of equity. But suppose we send them back to a court of law, to assert their rights, we know that at the common law, there can be no combination of parties, each tax payer must sue in his own right to recover the tax erroneously assessed against him. What a multiplicity of suits at law must be brought, in order to get redress for an injury which it is proposed to stop in a single suit in equity; we have no means of ascertaining the number of tax payers in Franklin County, but may suppose that they exceed two thousand. Of these perhaps five hundred may be able to assert their rights at law, whilst fifteen hundred, who pay less tax, are in moderate circumstances or too poor to employ counsel to stop the payment of an erroneous tax ten times less than it would cost to employ counsel La prosecute their ' suit. The mex*e suggestion of the situation, if left to redress at law, shows that it in effect would amount to a denial of redress to offer it to them. In such cases chanceiy will interfere to prevent multiplicity of suits.

Although we have contented ourselves with deciding this case upon grounds strictly in harmony with our former decisions, we have not felt at libex’ty to omit some reference to this additional ground of chancery jurisdiction.

We must hold that the Court below erred in sustaining the demurrer to the bill, and for this erx’or the judgment must be reversed, and the cause remanded for further proceedings.


author: Harrison, J:

text:
    Jackson, et al. vs. Allen.
    1. Deed : Without attesting witnesses or acknowledgment, effect of.

    A deed without attesting witnesses or acknowledgment is good and will pass the legal title as between the grantor and grantee: And if acknowledged and recorded after recovery of judgment against the grantor, but prior to a sale under execution, is good as against the purchaser at judicial sale.

      2. Homestead : Jüien of a judgment attaches to.

    Under the provisions of the Constitution of 1868, the lien of a judgment attached to land occupied as a homestead, and could be enforced by execution as against one who purchased from the judgment debtor.
    3. Judgment Lien: Bankruptcy, etc.

    The lien of a judgment creditor who fails to prove his debt, is not displaced by the subsequent bankruptcy of the debtor: And where a judgment debtor is declared a bankrupt, has his homestead set apart, procures his discharge, and afterward disposes of the property set apart as a homestead, it at once becomes subject to execution under the prior judgment.
    4. Judgment Lien and Judicial Sale: Effect of secret resulting trust

      notice, etc.

    In the absence of notice the lien of a judgment on real estate of the debtor is not affected or impaired by a trust in favor of a third person, as to ' whom the debtor sustained fiducial relations, whose funds were used in the purchase of the property: And the execution and recording, after recovery of judgment, of a deed in favor of such person, which recites the payment of a money consideration is no notice to a subsequent purchaser under an execution issued on the judgment.
    5. Parties: In Ejectment.

    Ejectment may be maintained against the tenant in possession of land or his lessee, or both. Where the tenant alone is sued, the lessor may on motion be made a party, but where no such motion is made, it is too late to object to the want of parties in a motion for a new trial.
    APPEAL from Desha Circuit Court.
    Hon.--, Circuit Judge.
   Harrison, J:

Thos. H. Allen & Co. brought ejectment against Henry Jackson and Cyrus Jones in the Desha Circuit Court, for the lands described below, and other tracts.

In this answer the defendant below admitted that they were in possession of the northeast quarter and the north half of northwest quarter of section 22, township 8 south, range 2 west. Part of the lands described in the complaint, denied the title of plaintiffs thereto, and alleged that they .held them as tenants of Irene F. Carder, who for a long time had been in possession of said lands, claiming title, and by her guardian Wm. M. Carder, leased them to defendant.

To the affirmative allegations of the answer the plaintiffs replied that the claim of the said Irene F. Carder, the alleged owner of the lands, was derived from L. A. Sullivan, through whom they claimed, and that her supposed title was subordinate- and junior to theirs.

The issue was submitted to the Court sitting as a jury, and the Court found and rendered judgment in favor of the plaintiffs for the two tracts of land in controversy. A new trial was-refused and the defendant excepted and appealed.

On the trial the appellees proved that on the 20th of November, 1867, they obtained a judgment against L. A. Sullivan in the Desha Circuit Court, upon which an execution was issued to the Sheriff of Desha County on the 13th of September, 1869,, who, on the 29fch of the same month, levied on the lands in controversy, offered them for sale on the 26th of October, 1869, and they were purchased by appellees, who obtained the Sheriff’s deed therefor on the 6th of December, 1870. The judgment and deed were introduced in evidence.

Appellees also introduced a deed executed by L. A. Sullivan to Irene F. Carder, bearing date 23d September, 1867, for the northeast quarter of section 22, township 9 south, range 2 west,, one of the tracts in controversy. This deed was without subscribing witnesses, but acknowledged before á Justice of the Peace on the 23d of January, 1869; filed for registration in the Recorder’s office, of Desha county, on the 1st of March, 1869, and duly recorded.

Appellee also introduced a deed executed by L. A. Sullivan to Irene F. Carder, on the 23d day of January. 1869, for the north half of the northwest quarter of section 22, township 9 south, range 2 west, and another tract.

This deed was acknowledged on the day it bears date, and registered in the Recorder’s office on the 1st of March following.

The appellees read in evidence the above deeds for the purpose of showing that Irene E. Carder derived title from L. A. Sullivan.

Appellants proved by "Win. M. Carder that he was the father of Irene F. Carder, a minor, that L. A. Sullivan married her grandmother, and was the guardian of witness’ wife, who was the mother of Irene, had no other child and died before the 23d of September, 1867; that on that day Sullivan made, signed, sealed and delivered the deed first introduced by appellees bearing that date; that it was delivered to witness as the father and guardian of Irene; that he put it in his desk where it remained until about the time Sullivan bankrupted. Sullivan told witness that he would have to take the benefit of the bankrupt law, and that he had better have the deed acknowledged and recorded, which he did at the date shown by the certificates of the officers; that.Sullivan bought the land, and other land with the money of his ward, Irene’s mother; that he was largely indebted to Irene on account of money and property received as guardian of her mother, and also owed witness large sums of money; that witness desired the deed made to his daughter, and Sullivan, who was living with him at the time, named the sum of one thousand dollars as the consideration (which was recited in the deed); that the deed was bona fide, and was not intended as a mortgage or security, but absolute conveyance. Witness paid Sullivan some money at the time, but did not remember how much. Sullivan owed his daughter much more than the sum mentioned in the deed. The land was wild. Possession was delivered to witness for his daughter at the time the deed was first made, and he had paid taxes on the land since; that appellees had no knowledge, as far as witness knew, of the sale when they obtained their judgment.

It was admitted by both parties that in May or June, 1868, Sullivan was, on his own application, adjudged a bankrupt by the District Court of the United States for the Eastern District of Arkansas, and that James P. Clayton was duly appointed assignee, etc. That the land described in the second deed introduced by appellees was scheduled by Sullivan in schedule 331, and in schedule B5 claimed as a homestead. That in August or September, 1868, the assignee assigned and set apart to Sullivan the land as a homestead, and so reported to the District Court, and the report was approved and confirmed, and Sullivan subsequently discharged. That Sullivan placed the judgment of appellees (upon which the execution was issued and the land sold) in schedule A2, but appellees did not prove their claim in the bankrupt court, or take any steps to enforce it there. It was also admitted that Sullivan was living at Auburn, Lincoln county, on leased land.

At the instance of the appellees (plaintiffs below) the court declared the law to be, in substance, as follows.

“The judgment of plaintiffs having been rendered November the 20th, 1867, execution issued 13th of September, 1869, levied on wild land in the same county, regular sale and purchase by judgment creditors on the 26th of October, 1869, the purchaser’s title is superior to that of a purchaser for value on the 23d of September, 1867, by deed duly signed, sealed and delivered, but not witnessed, acknowledged or recorded, and of which plaintiff had no knowledge at the time of judgment rendered.”

This declaration of law relates to the northeast quarter of section 22, township 9, south range 2 west, embraced in the deed from L. A. Sullivan to Irene F. Carder, dated 23d September, 1867, and it involves two questions: First — Whether the deed, without attesting witnesses or acknowledgment, sealed and delivered, was valid between the grantor and grantee ? and if valid between them; Second — Whether its acknowledgment and registration after appellees recovered their judgment, but before they purchased the land at the execution sale, defeated their title ?

The first question was fully discussed in Stirman et al. v. Cravens et al., 29 Ark., 548, and, without repeating the argument of that case, or sifting again the conflicting authorities there referred to, the judgment of the court is, upon the facts of this case, that the deed in question was valid between the parties to it at the time of its execution. The land was wild, it is true, but the guardian of the grantee, who was an infant, took possession of it at the time of the execution of the deed, paid subsequent taxes, and, it seems, continued in possession himself or by tenants until this suit was commenced. Had Sullivan brought ejectment for the land after the execution and delivery of the deed, before its acknowledgment, against his grantee, he could not have recovered the land. He would have been estopped by his deed.

The second question was decided in Byers et al. v. Engles, 16 Ark., 543. True, in that case the Chief Justice dissented, but he was overruled by a majority of the court, and the case having stood unreversed for about twenty years, repeatedly followed, and involving a rule relating to title of real property, we are disposed to treat it as settled law.

It follows that the court below erred in making the declaration of law above copied. The appellants asked for several declarations of law, which were contrary to that made by the court, as above copied, and which, so far as consistent with Stirman et al. v. Cravens et al., and Byers et al v. Engles, should have been announced.

At the instance of the appellees, the court below also made the following declaration of law:

“ Although land may have been claimed as a homestead, and assigned as such to a bankrupt by the assignee, if he afterward sell and abandon the same, the purchaser will not be protected as against an execution purchaser under a judgment which was a lien on the land, if sale was made within three years from day of judgment.”

This declaration of law relates to the north half of the northwest quarter of section 22,-township 9, south range 2 west, conveyed by L. A. Sullivan to Irene F. Carder, by deed bearing date 23d January, 1869.

In addition to the facts above stated, the court specially found that Sullivan abandoned this land as a homestead, and was not living on it when it was sold under execution and purchased by appellees.

The appellants also asked the Court to make the following declarations of law applicable to this branch of the case, which was refused.

“That if Sullivan was declared a bankrupt after the judgment and before the issuing of the execution and the assignee appointed by the bankrupt court assigned and set apart the land in question, or any part thereof as a homestead and the judgment of Thomas H. Allen & Co. was scheduled, such land was not subject to sale under an execution issued upon such judgment.

“That after a homestead is assigned and set apart by an assignee in bankruptcy, the bankrupt takes such homestead divested of all judgment liens existing at the time of adjudication of bankruptcy.

“That the bankrupt can afterward sell such homestead free of judgment liens existing at the time of bankruptcy.”

The homestead clause of the Constitution of 1868, which is involved in this ease was construed in Norris et al v. Kidd, 28 Ark., 485, and followed in the more recent case of Chambers, v. Salle, admr., et al, 29 Ark., 407.

Under the theory of that case, the judgment of appellees against Sullivan was a lien upon the tract of land in controversy, though occupied and claimed by him as a homestead, and when he sold and abandoned the land as a homestead, the lien could be enforced by execution and sale, and the title of the purchasers would be superior to that of his vendee. This would be the result putting the bankruptcy of Sullivan out of view.

But .it is insisted for appellants that Sullivan having been adjudged a bankrupt, the land set apart to him as a homestead by the bankrupt court, and he discharged from the judgment debt, the lien of the judgment which was an incident of the debt was extinguished and could never be enforced against the land though he sold and abandoned it as a homestead.

This proposition is not well founded. The appellees obtained their judgment against Sullivan before the bankrupt proceedings were commenced, and the judgment was a statute lien upon the land. He placed the judgment in his schedule, but the appellees did not prove their debt, or seek any satisfaction of it in the bankrupt court out of his assets.

By the final adjudication of the court he was personally discharged from the judgment, but the lien, upon the land was not discharged or extinguished. Liens are not destroyed but preserved by the bankrupt act. Sec. 20, Bump. 133, 316. Freeman on Judgments, sec. 337, a.

The land in question was set apart to Sullivan as a homestead because the laws of the State secured the homestead right to him. The bandrupt act and the bankrupt court invested him with no new homestead right, but merely protected him in the enjoyment of such homestead exemption as was given to him by the state laws. After the homestead was assigned and set apart to him by the bankrupt court, the lien of the judgment of the appellees upon the homestead land could not be enforced so long as he continued to occupy it as a family residence, either by the bankrupt court or by the state court. He could have remained upon the land and enjoyed it as a home during his life, his wife could have held it as a home after his death during her life, and his children while minors could have remained upon it under the protection of the law, alter she was gone. In the mean time the appellees could revive and keep alive their judgment lien upon the land but could not enforce it by execution so long as the land remained protected by law as a homestead, nor Could the judgment have been revived or enforced against Sullivan personally, or against any property acquired by him after he was adjudged a bankrupt, he having been discharged from all personal legal obligation to pay the debt, and the statute lien of the judgment on the land only remaining, and subject to be revived and continued. Jones v. Lefiyet etal., 39 Georgia 64, Bump. 396;

But after Sullivan had been finally discharged in bankruptcy, he thought proper to sell and abandon the homestead land.

The land was then no longer under the protection of the law as a homestead, and the lien of appellees’ judgment being still alive and unextinguished, they had a right to enforce it by execution upon the judgment, and having purchased the land at the execution sale their title was superior to that of Irene F. Carder, who purchased from Sullivan after the date of the judgment and when its lien was existing. She took the land encumbered with the lien and subject to its enforcement.

This is harmony with the theory of Norris et al. v. Kidd, in which the homestead exemption of the Constitution of 1868, was construed, and which we have followed. What may be the proper construction of the exemption clause of the present Constitution, which provides that the homestead, etc., shall not be subject to the lien of any judgment or decree, etc., must be determined when cases arise under it.

It follows that the court below did not err in making the declaration of law above copied as moved by the appellees, nor in refusing those moved by the appellants as above copied.

The appellants also moved the court to make the following declaration of law, which Vas refused.

“ That if the land was originally purchased with the money of Irene F. Carder’s mother, and the deed of Irene was properly acknowledged and recorded before sale, her title will be protected.”

Passing over the loose manner in which appellant proved that Sullivan was the guardian of Irene’s mother, and used money held by him in such fiduciary capacity in purchasing lands, etc., and passing ovér the further fact that this is a suit in a court 'of law, and not in a court of equity, where trusts and the misappropriation of trust funds are appropriately looked into, it is sufficient to say of the above proposed declaration of law, that it. was not proven that appellees had any notice when they obtained their judgment, or when they purchased the land at execution sale, that Sullivan had purchased the land with money belonging to his ward. The second deed made by Sullivan to Irene was executed after the lien of the judgment of appellees attached. True it was recorded before they purchased, but that did not displace their lien, and there was nothing on its face to indicate that Sullivan had purchased the land with trust funds, or that he conveyed it to Irene in payment of a trust debt. It recited as the consideration of the sale, sixteen hundred dollars in hand paid by Irene to Sullivan.

It was objected by appellant for the first time in their motion for a new trial, that Irene F. Carder was not made a party defendant to the suit.

The appellants were in possession of the lands as tenants of Irene. The appellees had the right to sue the tenants or the lessor, or both, and the lessor might have been made defendant^, on her motion, or the motion of her guardian. Gantt’s Dig., Title Ejectment.

The objection was not well taken.

The result is that the appellees rightfully obtained judgment for the north half of the northwest quarter of section 22, etc., but were not entitled to recover the northeast quarter of section 22, etc.

The judgment must be reversed, and the cause remanded for further proceedings.