text:
    Kaufman & Co. v. Stone, admr.

    Officer de facto. Title to an office can only be tried in a direct proceeding, to. which the officer is a party.
    The acts of an officer de facto are valid and binding as to the public and third persons.
    ■ Judicial notice. Courts take judicial notice of the appointment of commissioners of deeds.

    Evidence. The certificate and official seal of such officer are all the evidence of official character which parties litigant are bound to furnish.
    Commissioner of deeds. The term of office of a commissioner of deeds, appointed as such “to continue in office during the pleasure of the Governor for the time being,” does not expire with the term of office of the Governor making the appointment.

      Contract op sale. Wliere, on a sale of cotton, there is no agreement that it should be weighed, weighing is not necessary to constitute a good delivery.
    Where it is agreed between the maker and payee of a note that the same may be satisfied by the delivery of cotton to the payee, and the cotton is afterwards burned, the mere delivery to the payee of a receipt for the cotton, given by the person burning it is not sufficient evidence of a change of ownership.

      Appeal from Independence Circuit Court.

    Hon. Richard II. Powell, Circuit Judge.
    Watkess & Rose, for appellant.
    The sale of the cotton being by weight, and. the weight not being ascertained, the property never passed. Fagan v. Faulkner, 5 Ark., 161;.Everett v. Clements, .9 id., 478; Gilliam v. Toldes, 15 id., 64; 2 Kent, 496,' and cases cited; Bussell v. Lytle, 6 Wend., 390; Pope v. Tunstall, 2 Ark., 409; Crary v. Ashley, 4 id., 203; Ballard v. Noahs, 2 id., 45.
    The term of office of the commissioner did not expire with that of the Governor appointing him. Jacques v. Weeks, 7 Watts, 261; Opins. Atty. Genis., 186; 3 Abbots Nat. Big., 275;, Currier v. Boston B. B., 11 Foster, 209. This last case is dir rectly in point. Under the statutebí New Hampshire, of 1830,, a commissioner of deeds was ajipointed, to continue in office substantially “during the pleasure of the Governor.” The revised statutes, however, provided afterwards that the Governor might appoint commissioners to hold for five years, repealing former-inconsistent laws; and the court held that the commissioner appointed under the act of 1830' continued in office.
    Rut, however that may be, the commissioner was an officer defacto, and his official acts cannot be impeached collaterally. Stokes v. Kirkpatrick, 1 Mete., (Ky.,) 138; State v. Williams, 5 Wis., 308; Brown v. Lunt, 37 Me., 423; Burton v. Patton, 2 Jones, (N. C.,) 124; Smith v. State, 19 Conn., 493; Vance v. Schuyler, 1 Gilm., 160; Johnson v. Cocks, 12 Ark., 672; People v. Comptroller, 20 Wend., 595; Prescott ¶. Hays, 42 N. H, 56.

      An officer who has entered on the discharge of his duties is an officer de facto, and his eligibility can not be inquired into in a collateral proceeding, though it may be by a quo warranto. Satterly v. San Francisco, 23 Cal., 314. ' The acts of an officer de facto are valid, where they concern the public or the rights of third persons, and can not be indirectly called in question in a suit to which such officer is not a party. Hooper' v. God-win, 48 Maine, 79; People v. Collins,.7 Johns., 549; Mclntry v. Tanner, 9 id., 135; Wilcox v. Smith, 5 Wend., 231; People v. Stevens, 5 Hill, 616; People v. Hopson, 1 Denio, 574; Packer v. Baker, 8 Paige, 428; Caldwell v. Bell, 6 Ark., 227; Pearce v. Haxokins, 2 Swan., (Tenn.,) 87; State v. Brennen, 25 Conn., 278 ; Conover v. Devlin, 24 Barb., 587. Even where an officer was removed, it was held that he was not deprived of his official power until notice of the removal was given him. Commonwealth v. Slifer, 25 Penn. S. R.,( 1 Casey,) 23; Douglass v. Wickxoire, 19 Conn., 489; and his official acts, until ejected, are valid. Aulanier v. Governor, 1 Texas, 653; Plymouth v. Painter, 17 Conn., 585; Hoaglaxid v. Cxdveifl Spencer, {N. J.,) 387; Farmers’ and Merchants’ Bank v. Chester, 6 Himxph., 458; Burke v. Elliott, 4 Iredell, 355 ; Gilliam v. Reddick, 4 id., 368 ; Schlenker v. Risley, 3 Scam., 483.
    Garland & Nash, for appellee.
    The purchase of the cotton by Kirsch & Adler, was conclusively established by the testimony of Eord and' Eesmire. It ■was a clear and unqualified sale, by all the rules of law, and most unquestionably the estate of Stone was entitled to the benefit of it. That the sale was complete in law,’ see Story’s' Sales, 311; 12 'Mass., 300; 2 Kent, 501; 1 East, 192; 7 East, 558 ; 2 Eng., 197 ; 14 Ark., 351; Better v. Block, 19 Aide., 556; and Pratt v. Parkman, 24 Pick., 42, where the doctrine is fully and ably discussed.
    Commissioners of deeds were appointed, and were uto continue in office during the pleasure of the Governor.” Their appointment ceased at the term of the Governor appointing. People v. Comptroller, etc., 20 Wendell, 595; Union Bank of Maryland v. Bidgeby, 1 Harr. §• Gill, 824; Dedham Bank v. Chickering, 3 Pick., 341; 8 Coxoan and 4 Selden, sup.; F. § M..Bank v. Chester, 6 Humph., 458; 1 Bibb, 533; 5 Bitted, 19; 1 J. J. Marshall, 207; 1 Daxia, 453 ; 1 Gilman’s Beports, 163; 7 Bacon’s Abridg., (offices and officers, B.,) 281; ib., (H.,) 310-11; Coxnmonioealth v. Sutherlaxid, 3 S. and Baiole, 145 ; and especially United States v. Wood, 2. Gallison, 362; Willink v. Miles, Peters C. C., 188. This doctrine is discussed at length- in the King v. Corporatioxi of Bedford, Bevel, 6 Fast, 356; Bex v. Bansden, 3 Ad. and, Fd.is, 462; 30 F. C. B., 222, notes; and the above authorities show that the mere certificate of the person pretending to act, or his acting either, is not sufficient or conclusive.
   McClure, J.

It appears that in January, 1861, Rufus and Jefferson Stone; gave to Hirsch & Adler their note, under seal, payable one day after date, for two thousand nine hundred and twenty-seven and dollars, with interest, payable at the rate of ten per cent, per annum.

This note appears to have been regularly assigned by Hirsch & Adler to Kaufman & Co. On the 18th of February, 1867, Kaufman & Co. brought suit to enforce the payment of the note. At the May term, 1867, defendant craved oyer of the instrument sued on, with all the assignments, affidavits, and indorsements thereon ; which, being granted, shows an assignment to Kaufman & Co., by Hirsch & Adler. Aaron Hirsch, of the firm of Hirsch & Adler, and Lewis Kaufman, of the firm of Kaufman & Co., make affidavit before James Graham, a commissioner of deeds for the State of Arkansas, at New Orleans, Louisiana, that, at the time of the death of Jefferson and Rufus Stone, there ■was justly due on said note the sum of $2,927-/^-, with interest. These affidavits appear to have been' made on the 7th day. of Juno, 1866. Upon the note was the indorsement of Fesmire, the administrator of Stone’s estate at that time, that the claim had been examined and disallowed, on the 25th of August, 1866.'

The defendant filed five pleas:

1. Payment before January 2,1862.

2. Payment before July 1,1862.

8. That plaintiffs’ firm is not composed of the persons alleged in the declaration, but of other and different persons.

4. That thei’e is nó such assignment on the note sued on as is alleged in the declaration.

5. That James Graham, the person before whom these affidavits were taken, had no authority, under the law of the land, to take affidavits for the probate of claims in the State of Arkansas.

The plaintiffs filed a motion to strike out the third, fourth and fifth pleas, and joined issue on the first and second pleas.

The court sustained the motion to strike out the third and fourth pleas, and overruled the motion as to the fifth plea. The plaintiffs then demurred to the fifth plea, and the demurrer was sustained.

The defendant then filed two other pleas:

1. That the said James Graham is not a commissioner of deeds, duly appointed, commissioned and qualified by the Governor of Arkansas, according to the statute in such case made and provided.

2. That, before the commencement _ of this suit, the said plaintiffs did not have the proper affidavits made to said writing obligatory, before any one authorized by law to take affidavits of probate, according to the statute in such case made and provided.

The plaintiffs filed a motion to strike out said pleas, which the court overruled. The plaintiffs then demurred to said pleas, and the court sustained the demurrer.

The defendant elected to stand on her pleas, and then filed a motion to dismiss the suit, because :

1. Thei’e is no affidavit attached to the instrument' sued on, in this cause according to the statute in such case made and provided.

2. Said writing obligatory, and the pretended affidavits thereto attached, are informal and imperfect, and not sufficient in law to authorize or sustain said action by the law of the land. ~

This motion the court overruled. Whereupon, the defendant filed her petition for discovery, which the court granted, and the cause was continued until the next term.

At the next term of the court, the defendant filed two amended pleas, setting up substantially, but in more prolific terms, the facts set forth in her two last pleas.

The plaintiffs demurred to the first amended plea, and filed a motion to strike out the second amended plea. The court refused to sustain the demurrer, and overruled the motion to ■strike out. The plaintiffs then filed three replications to the first amended plea:

1. That Graham, on the 7th of June, 1866, at the time of taking the affirmations, was legally authorized to do so.

2. That the plea of the defendant ought not to bar this action, because Graham, before whom the affidavits were taken, was a commissioner, de facto, for the State of Arkansas.

3. That Graham was duly appointed and commissioned by Governor Conway, then Governor of the State of Arkansas, in the year 1858, and that on June 7,1866, was duly authorized to administer oaths, as such commissioner.

Plaintiffs entered their replication, in short, to second amended plea, to which the defendant joined issue, in short, upon the record, by consent.

Defendant demurred to third replication to first amended plea, and joined issue, in short, upon-the record, by consent, to the plaintiffs’ first and second replications. The court sustained the defendant’s demurrer to the plaintiffs’ third replication.

On the trial, the jury found for the defendant.

The plain, simple rules, whereby the right of the case could be determined, as presented by the defendant’s counsel, seemed to have confused the court.

The .first amended plea states: “That on the 7th of June, 1866, at the time the alleged affidavits were made, the said Graham, before whom they were made, was not a commissioner for the State of Arkansas,” &c.

This plea, the plaintiffs demurred to, because:

1. Said plea tenders an issue immaterial to this cause.

2. Said plea tenders an issue which can not be tried or determined by this court.

3. It tenders an issue over which this court has no jurisdiction.

• The first question for determination, as presented by this plea, is, was Graham a commissioner of deeds for the State of Arkansas, on 7th June, 1866? In determining a question of this kind, it appears to us that he, Graham, ought to have been a party to such a proceeding. If the title to his office was to have been determined in a legal forum, the record should, at least, show some kind of service; some kind of notification of the. pendency of the action against him.

Chap. 32 of Gould’s' Digest, authorizes the Governor to appoint commissioners, and makes all oaths, &c., administered by them, “ as effectual in law as if done by any authorized officer within the State.” Sec. 16, Gould’s Digest, chap. 55, declares, “that no authentication of the official character of any judge, justice of the peace, &c., shall be necessary, when taken before any such within the State.”

These two amended pleas, if they-had been sworn to, could never have arisen above the grade of pleas in abatement; they do not deny the right of the suit, and in the face of all this, the counsel for defendant, with a zeal and persistency that is almost commendable, finally succeeds in receiving the benefit of four pleas in bar.

Now, let us examine if the facts set up would be available as either pleas in bar or abatement.

In Fowler v. Beebe, 9 Mass., 231, the defendant pleaded in abatement, “tliat the service of process, on the defendant, was made by a sheriff whose appointment was made without any authority of law.”, The court held: “ The right of the sheriff to the office could not be inquired into-, in a suit to which he was not a party, and that his acts, so far as they affected third persons and the public, were valid and binding.”

In the State v. Brennan, 25 Conn., 282, the defendant pleaded, “ that the State ought to be barred of having and maintaining the complaint, because Nichols, by whom the warrant was issued, had never executed his bond as constable.” ■ The court, in disposing of the case, says: “The acts of officers de facto are valid, so far as the public and third persons are concerned, who have an interest in their acts, and the validity of their appointment or qualification can not be directly called in question in a suit to which the officer is not a party.” The question also arose, “that the matter pleaded in bar should have been-pleaded in abatement.” The court said: “We deem it wholly unnecessary to consider that question, as we are fully satisfied, that hoioever pleaded',' it would be insufficient either to abate or bar the prosecution.”

In Douglass v. Wickwire, 19 Conn., 492, the court said: *“ The right to the office can only be tried in a direct proceeding, to which the officer is a party, and not in a collateral manner.”

The record of appointment of Graham, by the Governor, is a matter of which the courts of this.State must take judicial notice. . The certificate and official seal of the commissioner, was all the evidence of official character that parties litigant were bound to furnish. 7 Eng., 672. The demurrer of the defendant to the third replication, admitted the appointment of Graham by Governor Conway. The evidence of Governor Murphy and Secretary White, introduced by the defendant, could have left no doubt on the mind of the court that Graham was legally appointed.

There was no fact from which the court could draw judicial notice of the removal of Graham; and, in the absence of it, inasmuch as we have said that the certificate and seal were sufficient evidence of the official character of the commissioner, the presumption was that he was an officer de facto, and not an usurper.

In Reeves v. Patton, 2 Jones, 124, the court said: “Persons who have been regarded as public officers, and whose acts are recognized by other public functionaries, must be taken to be officials de facto, and their acts will be regarded as valid, unless declared otherwise, in a proceeding directly against them.”

In Fowler v. Beebe, the defendant pleaded in abatement, “ that the service of process on him was made by a sheriff whose appointment was made without authority of law.” In a direct proceeding, had afterward, against the sheriff, the court held “ that the appointment was made without constitutional and legal authority.” And further states, “ no public inconvenience need be apprehended from the principle established by this decision; for, so long as the persons were de facto officials, under such an appointment, their official acts aré lawful, except only in cases of direct injuries to their fellow citizens.” Commonwealth v. Fowler, 10 Mass., 301.

The defendant’s counsel, with seeming gravity, contend that the words, •“ to continue in office, during the pleasure of the Governor for the time being,” mean that, if Governor Conway did not remove Graham during his gubernatorial term, the tenure of his appointment ceased, by operation of law, with the term of Governor Conway. The authorities produced do not sustain any such construction of the language, and the uniform practice of both the State and National Government, negatives the idea. ■

■"We are of opinion that the court erred in overruling the demurrer to the first amended plea. The determination of the fact, therein presented, could not result beneficially to the defendant, because the determination in the affirmative, or in the negative, could not have been pleaded in abatement or bar of the plaintiffs’ action. It would be contrary to natural equity, and in opposition to the whole policy of the law, to allow questions of that nature to be determined in a collateral proceeding, even if the party had notice. The security of the public peace, the protection of the rights of individuals claiming title, or interest, under or through the acts and proceedings of public officers, demand, and the highest judicial tribunals in the land have uniformly declared, for more than a century, that the proceedings of officers de facto, so far as the public arc concerned, should be regarded of the same validity and effect as though performed by officers de jure.

Following this error is the fact that the third replication of the plaintiffs ivas demurred to by the defendant. It appears to us that where the defendant succeeded in having her demurrer sustained (as it related back to the plea that we have shown to be bad) she succeeded in striking out her first, amended plea.

The second am'ended plea was intended by counsel to confuse the court and astound the jury. The whole question was settled in Johnson v. Cocks, 12 Ark., 672. The plea ought to have been stricken from the files, and the court erred in not so doing.

The second instruction asked by the plaintiffs is erroneous, because the mere delivery of the receipt to the Stones, or to Hirscli & Adler, by the persons who burned the cotton, could not be construed into a delivery, or a change of ownership; and there ivas no error in refusing to give it.

The third and fourth instructions of the plaintiffs ought not to have been given to the jury, because the court, as we have before stated, ivas bound to judicially know of the appointment of Graham. The presumption of law ivas, until the contrary was shown affirmatively by the action of some legal and competent tribunal, that Graham was yet in office.

The sixth instruction of the plaintiffs says: “If the jury find, from the evidence, that the cotton ivas never weighed, delivered to, and accepted by Ilirsch & Adler, they will find for the plaintiffs.”

The evidence does not disclose when the cotton ivas to have been weighed, or whether it ivas to have been weighed at all. In. the absence of. this fact, and in view of another, that it was possible for a delivery and acceptance to have been made without the mere act of weighing, we think the court properly refused to give the instruction.

"We will not indicate our “opinion as to whether this particular case comes within the statute of frauds, at this time, but will state generally those principles which govern such cases.

The statute does not prohibit verbal contracts; it only requires certain evidence that a contract was made; 'it simply requires the party claiming under verbal contract to show the performance of some act of the party to be charged, from wdiich it may appear to the satisfaction of a jury that the buyer did actually i’eceive and accept the goods.

Under the common law, a sale of chattels, as between the vendor and the vendee, passed the title of the property without delivery, if either party could establish the bargain; and this he was permitted to do, by proving the words of the parties at the time of making the sale.

The object of the statute of frauds was to prevent the subornation of perjury, and the perjury consequent to that state of affairs; and to change the rule by which the ivords of the parties, used at the time of making the bargain, was deemed sufficient to establish an executed sale. The statute was made for the benefit and protection of the party to be charged, and the other party can have no claim against him until he can affirmatively establish the fact of sale, by the memorandum in writing signed by the party to be charged; ot the receipt and acceptance of the goods, or part thereof, or the reception of a portion of the earnest money. It will not do for the vendor to show that he has performed all that he can do to make a good and valid sale, and thereby leave the jury to draw the inference that the buyer is morally bound to accept, because the statute of frauds has nothing to do with moral obligations. It is incumbent on the vendor, in this case, to show, not only that he has performed his part, but that the buyer has become bound* The agreement of the parties, where the same has not been reduced to writing, must be proven; and if from the proof, after this fact is established, it appears that the goods were not in condition to be delivered at the time of the bargain, for the reason that the parties could not satisfactorily ascertain the weight, quality or value, it is fair to presume that such is not an executed sale, nor can it become one, until the formalities of the statute have been strictly complied with; for, it must be borne in mind that the question never is, whether the party ought to accept, hut whether he has. The acts of the vendor may be proven, to establish the fact of having placed the goods in the possession of the vendee, because this goes to show that the vendor has parted with his entire interest, and intended to vest it in the vendee; but it is no evidence that the vendee has accepted. All transactions of this character, if the parties desired to avoid the statute of frauds, must be of such a mature that either party could show to a jury such acts of the other as would convince them that some one of the acts that the statute has erected, by which the fact is to be determined, could be established by proof. To illustrate: Could Ilirsch & Adler have enforced their contract of sale, if the defendant pleaded the statute of frauds? "What act of the vendor could they, have proven, from which a jury could reasonably infer that the vendor had released all control of the property? What portion of the property could they have exhibited as having been received from the vendor, and accepted by them, whereby the transaction would be taken out of the statute.

In Williams v. Allen 10 Humph., 337, the plaintiff bargained with the defendant for a lot- of corn, in pens, near the Cumberland river. The bargain was for all the corn in the pens, at the price of one dollar per bushel; the quantity was not definitely known, and it does not appear when the same was to have been ascertained.

The plaintiff let the defendant have a horse, some pork and money, in part payment of the corn, and thereafter spoke of the corn as belonging to him, and forbade the constable from levying on it as the defendant’s property, stating that he had bought it, and paid part price. In the month of December, before the corn was measured, it was swept away by a flood, and wholly lost. During the rising of the river, the defendant called upon parties, and asked them to help him save the corn. After the loss of the corn, the plaintiff brought his action to recover the value of the horse, pork and money that he had advanced. In disposing of the case, the court said: “ A mere presumption of ownership, or control by the purchaser, will not be sufficient evidence of delivery; such acts merely afford a presumption of delivery, which may be repelled by evidence that the title remained in the vendor; the right of the property remained unaltered, and the risk and loss must follow the ■vendor.”

In Kirby v. Johnson, 22 Mo., 354, the plaintiff bought four yokes of oxen of the defendant, and requested the defendant to keep them for him until he sent for them, and to feed them well, for which he would pay him. At the time of thg bargain and conversation they were in the defendant’s field, and had selected the oxen from others that were in the field. No payment had been made, but the plaintiff offered to pay for them if the defendant would go to town with him; to which the defendant replied that it did not make any difference. As the plaintiff started to leave, the defendant called to him and said: “Remember now, if any of the cattle die they are yours, and you must bear the loss;” and the plaintiff replied: “ Certainly.” The defendant sold the cattle the next day, for fifty dollars per yoke, to another party; the plaintiff then brought his action to recover $40, the difference in the price. The court said: “ There was no act done after the sale, amounting to a delivery of the oxen, with an intention of vesting the right of possession in the vendee; and there was no actual acceptance by the vendee, with the intention-of taking possession as owner.” And the court further says: “We had better blot the statute from our books at once, than fritter away its vitality by constructive deliveries and acceptances.”

The tenor of these decisions, • and the authorities to which they refer, have led us to the conclusion that something more than mere words, that something more than a mere act of assent of the mind, is necessary to. evidence a delivery of property, where either of the parties denied the bargain of sale.

The first and second instructions of the .defendant are erroneous, for reasons heretofore stated. The third instruction, as there was no evidence of acceptance!, is foreign to the evidence, and, as presented, would have had a tendency to'mislead the jury. In the fifth instruction, if, after the word “ accepted,” had been inserted the words “ and, received,” there could have been no objection. Our statute of frauds makes use of the words “ accept” and“ actually received;” thereby clearly showing that the law-makers had in contemplation the performance of-two acts; and an instruction that would' have a tendency to lead the jury to believe that but one of the acts was necessary, ought not to have been given.

We forbear making any remarks or comments on the evidence, for the reason that this cause will be remanded to the circuit court for further adjudication.

We will state, however, in connection with this subject of evidence, that the bill of exceptions presents no facts that would, in our opinion, disqualify either Fesmire or Ford.

Judgment reversed, and this cause remanded to the circuit court of Independence county.


source: Caselaw Access Project

author: Bowen, J.

license: Public Domain

text:
    McMurtry v. Ramsey, admr.

    Illegal consideration. The fact that the consideration for the note sued on was a horse, bought by the maker for the Confederate service, with the knowledge of the payee, constitutes a good defense to a suit thereon by the administrator of the payee.
    Kelly t. Tatum. Affirmed.

      Error to Bradley Circuit Court.

    Hon. William M. Harrison, Circuit Judge.
    Carroll and Gallagher & Newton, for plaintiff.
    Garland, White & Nash, for defendant.
   Bowen, J.

This is an action upon a promissory note executed by plaintiff in error, and J. B. Kestuson (not sued herein) to Thhmas M. McCollough, in his lifetime. Ramsey, administrator of McCullough, brought suit upon the note, in the circuit court of Bradley county. The defendant, McMurtry, plead, setting up that the note sued oh was given for a horse, to be used in the service of the Confederate States, and that McCollough knew the purpose for which he was purchased. Plaintiff demurred to this plea, and the court sustained the demurrer, and rendered judgment for the amount of the note, damages, costs, &c. The defense set up by McMurtry was a good one, and plaintiff’s demurrer should have been overruled. See the case of Kelly v. Tatum, decided at the last term of this court-

judgment reversed.

Judge Harrison, being disqualified, did not sit in this case.

Hon. John Whytock, Special Supreme Judge.


text:
    Hanauer & Co. v. Gray.
    ■ Illegal promises. A promise, illegal only in part, may be enforced as to tlie part which is legal, provided the two parts are separable.
    A due bill, payable in Confederate bonds or Tennessee money, may be enforced as to the latter mode of payment.

      Appeal from Randolph Circuit Court.

    lion. L. L. Mack, Circuit Judge.
    Watkins & Rose, for appellants.
    T. J. Ratcliffe, for appellee.
   Bowen, J.

Tlio appellee brought an action of assumpsit against the appellants, in the circuit court of Randolph county, upon a promissory note, payable in Confederate bonds or Tennessee money, dated January, 26,1862, due at date.

Defendants, L. Hanauer & Co., filed a demurrer, which was overruled; they then plead non-assumpsit and illegality of consideration. Plaintiff replied in short, Upon the record. The cause was submitted to the court, sitting as a jury, who declared the law to be, that “the note being the only evidence, and promise to pay in one of two articles, although one be illegal, the court will instruct in favor of the legal mode of performance of the contract;” and found in favor of the plaintiff', in the sum of $>242^^, and entered judgment accordingly.

The defendants filed a motion for a new trial, which wras overruled; also, a motion to set aside and arrest the judgment, which was also overruled. The defendants excepted, and the cause comes to this court on appeal...

The bill of exceptions shows that the note was the only evidence in the circuit court, and reads as follows:

“Due Daniel Gray $180-^-, payable in Confederate bonds or Tennessee money. ' L. HANAUER & CO.

“Pocahontas, January 25,1862.”

The judgment ivas for $242^0-,' being the amount of the note and interest, at the rate per cent, fixed by statute after the maturity of a note, and, so far as the amount is concerned, seems to be correct.

The only question left, therefore, for our consideration, is in. regard to the illegality of the promises. “ A distinction must be taken between the cases in which the consideration is illegal in part, and those in which the promise, founded on the consideration, is illegal in part. If any part of a consideration is illegal, the whole consideration is void, because public policy will not permit a party to enforce a promise which he has obtained by an illegal act, or an illegal promise, although he may have connected with this act or promise another which is legal. But, if one gives a good and valid consideration, and thereupon another promises to do two things — one -legal and the other illegal — he shall be held to do that which is legal, unless the two are so mingled and bound together that they can not be separated, in which case the whole promise is void.” See Parsons on Contracts,• page 380.

In this case, the payment was to be made in Confederate bonds, or Tennessee money, and the promises are not so mingled and bound together that they can not be separated.

Passing by the promise to pay in Confederate bonds* without expressing an opinion thereon, we will consider the promise to pay in' Tennessee money. In the ease of Wilburn v. Greer, 6 Ark., 257, and in the case of Searcy v. Vance, Martin and Yerger, Tenn. Reports, Arkansas money and Tennessee money were respectively held to mean current coin of the United States. According to these authorities, no doubt can remain as to the legality of the promise to pay in Tennessee money.

The second plea of defendants set up that the note was given for supplies for the Confederate army, to which plea plaintiff replied in short, upon the record,but asno evidence was offered in support of this plea, and no question as to the legal sufficiency of the facts stated therein raised, we see nothing demanding further consideration.

Judgment affirmed.


author: Bowen, J. McClure, J.,

text:
    Milor, et al., v. Farrelly, admr.

    Summary judgments against siieriees — personal service of notice — the proper county. The notice of the motion for the summary judgment against the sheriff and his sureties, prescribed-in chapter 97, Gould’s Digest, must he in writing, and served personally.
    This summary remedy is in derogation of the common law, and penal in its nature, and must he strictly pursued'.
    The notice performs the functions of the summons and the declcoration, in an ordinary case.
    Where the execution issues from the circuit court of one county to the sheriff of another, this summary proceeding can not he maintained in the former county.
    Time or holding courts. The act of January 21, 1861, fixing the time for holding circuit courts, was a law in force on the 4th of March, 1861, within the meaning of the Constitution of 1864; and the previous law, fixing the time for holding said courts, had expired by limitation.

      Error to Pulaski Circuit Court.

    lion. Liberty Bartlett, Circuit Judge.
    Watkins & Nose, William Walker, añd DuVal & King, for plaintiffs.
    The statute, as to this summary proceeding, must he strictly construed, and every fact necessary to the jurisdiction of the court must appear of record. 8 Humph.,.318; 3 Ycrg., 355; id., 85; 7 Ycrg., 365 ; 8 id., 101.
    The record should have shown that the court found that Milor was sheriff; (7 Ala., 46 ;) that the other defendants were sureties; (3 Humph., 313;) that Milor had collected money on the executions, (1 Ala., 635,) and that demand had been made on him. 6 Porter, 48.
    The proceeding could not be had against the sheriff of another county than that where the court sat. 17 Geo., 187, 292; 10 Wry., 505.

      Quere. Should not the demand have been made on the deputy receiving the money? 6 Ala., 314.
    The notice should contain everything necessary to be proved. 6 Porter, 48.
    The evidence fails to show that any money came to the sheriff’s hands. 20 111., 136. The notice was not in writing, {Gould’s Dig., ch. 97, sec. 1,) reading not being a sufficient service. Wright v. Douglass, 3 Barb., 554.
    It should have appeared that the money was collected on the execution named in the notice. 6 Ala., 276.
    The judgment included the costs, on which interest was improperly calculated. 4 Ala., 589 ; 4 W. and S., 52.
    The court was not held at the proper time. A jury should have been called. Coiinsel also urged several other irregularities.
    . C. C. FARRELLY,.for defendant.
    The notice was in strict conformity with the statute authorizing the court to render a summary judgment. It sets out the time, place, the cause, the court before tohich the motion will be made, the amount, ¿-c. The notice was given not only three days before the motion was made, as required by the statute, but some two weeks before, as shown by the return. See Gould’s Dig., sec. 1, ch. 97.
    The service of the notice on P. F. Chapman, by leaving a copy, &c., was good, valid and legal. See return on notice; also, Goidd’s Dig., ch. 113, 'sec. 14.
    The notice arid service being good and sufficient, as required by the statute, and the parties failing to appear and make any defense whatever, the court properly rendered a judgment, by default against them for the amount specified in the judgment — being the aggregate amount of the original judgment, damages and costs, with ten per cent, interest thereon per month, as given by the statute. The returns on the executions show that they were satisfied.
   Bowen, J.

Under the provisions of chapter 97, of Gould’s Digest, Charles G. Farrelly, as administrator of the_ estate of Fred. Heinz, deceased, moved the circuit court of Pulaski county, on the 23d of November, A. D. 1867, for- a summary judgment against Yolney Y. Milor, as late sheriff of Sebastian county, and Daniel McCoy, P. F. Chapman, Charles Milor and Edward Czarinkow, securities on his official bond, for failure on the part of Milor, as sheriff of Sebastian county, to pay over money, collected by him on two certain executions in favor of said Farrelly, as administrator of said Heinz, deceased, amounting in the aggregate to two hundred and seventy-five dollars and forty cents. Said executions were issued from the office of the clerk of the circuit court of Pulaski county, and were directed to the sheriff of - Sebastian county, returnable to the March term, 1866, of said court. A notice to the said defendants, stating that said administrator would, for failure on the part of Milor to pay over the money collected by him on said executions, move the circuit court of Pulaski county, on the 23d day of November, 1867, for a summary judgment against them, it was, on the 5th day of November, 1867, served on the defendant, P. F. Chapman, by leaving a copy at his usual place of abode, with a member of his family, a white person over the age of fifteen years, and on the other defendants on the 6th day of November, 1867, by reading the same in their presence and hearing, at Sebastian county, Arkansas.

The chapter of the Digest, under which these proceedings were instituted, requires notice in writing to the defendants. 'This requirement is not fulfilled by service like that in this ■case. Each defendant against whom judgment is rendered must have had delivered to him, in person, a notice in writing. See the ease of Williams v. Bunnell, 4 Ark., 136; also, the case of Hart v. Gray, 3 Sumner, 339.

This rule is sustained by Judge Story, in the last cited case, by reasons which we deem unanswerable. ’

Notwithstanding the judgment entry herein shows that the defendants had “three days’ notice, in writing, according to the statute in such case made and provided,” this statement is not sustained by the sheriff’s return, which, on the contrary, shows that the defendants did not receive the notice in writing contemplated by section 1 of chapter 97.'

The summary remedy created by the statute, being in derogation of the common law, aud penal in its nature, must be strictly pursued. The notice in writing, required, not only performed the duty of the summons, but, also, that of the declaration, and must, in the language of this statute, contain a succinct statement of the cause for, and the court before, which the motion will be made, and should be directed to the sheriff and his securities, designating him and them as such. Defects in the substance of the notice are not cured by a motion containing all the necessary averments, simply because the statute requires these statements to be contained in the notice, and does not require the motion to set out any thing. Indeed, we see no reason why the motion need be in writing, at all, but may be made orally, for a judgment, for the causes set out in the notice, which, after having performed its office as a summons, takes the place occupied by the declaration in ordinary cases.

The cases in which judgment may be rendered, on motion, are plainly given in section 1, of chapter 97. The second case enumerated therein, under which the present proceeding was had, is as follows: “ For failing to pay over money collected upon an execution on demand of the plaintiff, his agent or attorney, for the amount so collected, and ten per centum per month damages from' the time such demand was made.” The fact that the law only requires, in the notice, a succinct statement of the cause for which the 'motion will be made, does not dispense with the statement of every fact fixed by the statute as a part of the. cause for which judgment will be rendered, but simply means that the statement may be short and concise. and. as the notice fulfills the office of both summons and declaration, it should, in addition to the other facts, set out the demand.

If the notice thus sets out every necessary fact, and there be an appearance on the part of the defendants, and issue made up by a denial of the facts contained in the notice, a finding of the issues for the plaintiff would make the necessary facts appear affirmatively of record, and the judgment need only show the jurisdiction, and give the conclusion of the law from the premises. But, if there be no appearance, the court, in its entry of judgment, must show, not only the jurisdiction, but the facts constituting the defendant’s liability, unless these facts otherwise appear affirmatively of record, as in the ease of Boudurant v. Woods, which we find on page 547,1 Ala., where the court declared that it found “that the facts alleged in the notice had been fully proved.” This was held sufficient; the notice being a part of the record, and containing all the requirements of the statute. In regard to what the judgment should show, see 8 Porter, 372; 19 Ala., 373; and Barry v. Patterson, 3 Humphries, 314. From what we have said, it must not be inferred that the evidence should appear affirmatively of record, but only the conclusions arrived at therefrom.

This brings us to the consideration of another point: The plaintiffs in error claim that, as Milor was sheriff of Sebastian county, he and his securities were not liable to amercement in the circuit court of Pulaski county. This point seems to be well taken. The law under which these proceedings were had, is silent as to where the motion should be made, and •as nothing can be taken by intendment, and as the general law of the State provides that suits be commenced in the county where the defendant resides, or may be found, and as the remedy created is against the securities, as well as the sheriff, and as only three days’ notice is required, we can not place a construction upon the statute which -would require parties living-in one part of the State, to appear before the circuit court of a distant county upon only three days’ notice, especially when such a construction can only be made by supplying by intendment what the statute does not express. Pike v. Lytle, 6 Ark., 212; State Bank v. Terry, et al., 13 Ark., 390; Cross v. Haldman, id., 202; 1 J. J. Marshall, 477; 6 Monroe, 323.

One further question remains to be considered: The law under which the circuit court of Pulaski county was held, although not being acted under on the 4th of March, 1861,, was, nevertheless, a law in force, in the sense used in the Constitution of 1864, having been passed by the Legislature, and approved by the G-overnor, in January, 1861; and notwithstanding the fact that the previous law, fixing the time of holding such circuit court, was still in operation, it expired by limitation of the law in existence at the time. The change in the time of holding the circuit court of Pulaski county was the result of laws in force on the 4th of March, 1861, and it was clearly not the intention of the framers of the Constitution of 1864, to change the law fixing the time of holding a circuit court, but to wipe out' all that transpired after the meeting of the secession convention on the 4th of March, 1861.

In view of the whole record, then, we have concluded that, although the judgment of a circuit court is only voidable by reason of defective service, the judgment in this case is absolutely void, as the defendants were not within the territorial jurisdiction of Pulaski circuit court, and that such court could not, under the circumstances, adjudicate the matter in controversy as between these parties. • The writ of error is dismissed.

Chief Justice 'Wilshirb, and Associate Justice McClure, dissenting.

McClure, J.,

delivering the dissenting opinion, says:

Not being able to arrive at the conclusion just announced, it becomes our duty to give the reasons for our dissent.

The chapter under which these proceedings were had, required three days’ notice, in writing, to be served on the sheriff and his securities, before the making of the motion for a judgment.

The return on the notice shows that one of the' defendants was served, by leaving a copy at his usual place of abode, with a white person of the family, over the age of fifteen years, on the fifth day of November, 1867, and that the other defendants were served, by reading the notice in their presence and hearing, on the sixth of- November, 1867.

The question now arises, was this the service required by law ? The court below said: “Whereupon, it appearing to the court that the defendants have each had three days’ notice, in loriting, according to the statute in such case made and provided, previous to filing said motion, and each of the parties being solemnly called, come not, but make default, and the court being sufficiently advised in the premises, doth consider, order and adjudge,” &c. This action of the circuit court was on the 23d day of November, 1867, being more than three days after the parties were notified.

The majority of the court are of opinion that the return of the officer, which discloses the manner in which the notice was served, contradicts the finding of the court, and shows affirmatively that the court below never obtained jurisdiction of the persons of the defendants, in the manner prescribed by law, because, they say, the law in this case required that the defendants should have been each handed a copy of the notice three days before the making of the motion for a judgment.

Every statute changing a form of proceeding, or creating additional remedies, must also recognize a great variety of existing laws, by the assistance of which the new provisions may be carried into effect, or the provisions understood and interpreted. Human wisdom could hardly devise a law, so perfect in all its parts, that would not come within this rule.

To illustrate: The chapter under consideration requires three days’ notice, in writing, to be served on the defendants, but fails to provide toho may serve that notice. Here we are compelled to search the provision of some other law tp ascertain who may serve “ notices.” Under chap. 133, of Gould’s Digest, regulating the practice at law, we find, in section 22, thefollowng : “ Whenever, in the eoriVuiencemeht of any suit, it shall be necessary to serve any notice on either party to such suit, such notice may be served either, first, by an officer, authorized by law to serve original process of the court in which such suit is to be brought or may be pending,” &c.

We conclude, therefore, that the notice may be served by a sheriff, because the object of the notice is to notify the defendants that a suit will be instituted against them by motion.

The next question arising is, how it shall be served ? By an examination of the 23d section, we find that: “ Every such notice may be served in like manner as a writ of summons.”

We now turn to the 14th section and find that“A summons may be served either by reading the writ to the defendant, or by delivering him a copy thereof, or leaving a copy thereof at his usual place of abode, with some white person of the family, over the age of fifteen years.” '

An examination of the return of the sheriff discloses that the notice, in this instance, was served in thq manner just described, and we are of opinion the service is sufficient.

The next question that now arises, is, was the service of this notice the commencement of a “ suit?” If we had any doubts on the subject, they are removed by this language, that appears in the majority opinion. ■ They sáy, “ as the general law of the State provides that suits shall be Commenced in the county where the defendants reside,” &c. Now, here they admit that the service of this notice was the commencement of a “suit;” therefore wre say, that it may be served as directed by law.

For the pui-pose of further elucidating this subject, let us examine the seventy-sixth section of chap. 68, Gould’s Digest. It reads as follows: “If an officer shall make the money in any execution specified or thereon indorsed, * * * and shall not pay over the same, * “ * he shall be liable to pay the whole amount of money made, to the person entitled thereto, with lawful interest thereon, and damages in addition, at the rate of ten per cent, per month, * * * to be recovered in an action against such officer, and' his securities on his official bond; or, the party aggrieved may proceed against sueli officer, by motion, before the court in which' the writ is returnable, in a summary manner, three days’ previous notice of such intended motion being given,” &c.

In the summary process here provided, it will be observed that the “ notice ” is not required to bo “ in writing.” Now, suppose the action had been brought against the sheriff under the provisions of this law, instead of the act of January 15, 1857, and that the plaintiff, in execution, had come into court and moved for a judgment against the sheriff, and had offex-ed to prove to the court that he, ixi the px’esexxce of witnesses,, two days before, had notified the sheriff that he ixxtended xxxaking the motion agaixxst the shex’iff for failing to pay over the money collected oxx execution.

"We apprehend, under such a state of facts, the coux-t would have said to the plaixxtiff: It is tx-ue that this statute does not say that this notice shall be “ in writing,” yet sec. 11 of chap. 50, Gould’s Digest, deelax’es that “ all writs, px’oeess, proceedings, and records, shall be made out oxx paper or parchment ; that this notice might justly be regarded as a process; axxd, so being, should have been made out on paper or parchment, and in writing ; that this notice, as it takes the place of a sxxmmoixs ixx aix ordinary.action, serves to show how we obtaixxed jurisdiction of the person, and must be placed on file and eoxxstitute a part of the x’ecord of the case, so that, if a superior coxxrt should be called xxpon to examine our x-eeord on error, or certiorari, such court would be enabled to find that we had obtaiixed jui-isdiction in the manner poixited out by law; that the service of process, verbally, was a thing xxnknown to the law; axxd, even if admissible, it coixld only be placed on the record by the appearance of the defendaxxt, by a bill of exceptions; and, this being a default, the jxxdgmentwould avail the plaintiff nothing, because the fact of service could xxot be placed of x’ecord.”

It will he remembered that the words, “ in writing,” do not appear in the sevexity-sixth section after the word “ notice.” Noxv, in what manuec would the sheriff have served it? "We insist that he would have been compelled to have resorted to the manner prescribed by th'e 14th, 22d and 23d sections, hereinbefore referred to-, and that almost any court in Christendom would have so held. We conclude, therefore, that the words “ in writing,” as used in the amendatory act of January 15,1857, were intended merely as descriptive of the form of notice, and not the manner of serving it, and that the Legislature never intended to change the usual mode of serving process, but simply used the Avords in writing,” to give the plaintiff to understand that his notice partook of the nature of a writ, and must be “ on paper or parchment,” as prescribed by section 11 of chapter 50 of Gould’s Digest.

We understand it to be the province of courts, and not only their province but their duty, in construing statutes, to consider the policy and intent of the laAV, and give it such an interpretation as may appear best calculated to advance its object and effectuate the design of the Legislature, if not in conflict with the organic law.

Now, let us apply this rule to the present state of facts. Before the passage of the law of January 15, 1857, as we have before shown, the plaintiff, in execution, had two remedies. By one, he could commence an action against the sheriff and his securities on- the bond; this action, of course, had to be commenced in the county where the sheriff’ and his securities might reside; by the other, the plaintiff could take a personal judgment against the sheriff “ before the court in which the writ is returnable.” The act of January 15, 1857, nowhere repeals the seventy-sixth section of chapter 68 ; but,by its terms, enlarges the remedy existing at the time of its passage, by allowing the plaintiff to notify, not only the sheriff, but his securities. The mere fact that the person who arranged the subjects in —the Digest did not place these acts under the same head, does not establish the fact that they are not to be construed in pari materia. The taste of that individual is no rule or guide for our judgment. These statutes are both on the same subject, and the last one creates no new and distinct remedy, but simply enlarges a remedy already existing. The majoi'ity of the court announce that, because Mr. Gould, in arranging his Digest, placed the act of January 15,1857, in a separate chapter, called “ Summary Judgments,” therefore, they are bound to construe the law as a separate and distinct act; and announce that “ the law under which these proceedings were had is silent as to where, the motion shall be made;” and finally declare that it was never intended to rule the sureties out of the county. "We concede that when the provisions of. two statutes are so far inconsistent with each other that both can not be enforced, the latter must prevail; but we contend that, if by any fair course of reasoning the two can be reconciled, both shall stand. By construing these statutes in pari materia,we are no longer left in doubt as to where the motion may be made, for it is clearly and distinctly stated that it shall be made before the court to which the execution is returnable. The argument that it would work a great hardship on the sureties to bring them into Pulaski county, on three days’ notice, has nothing to do with the law. Whether the law be politic or impolitic, or whether its provisions be strictly equitable or otherwise, are considerations which ought not to operate with the court in determining its effect. It is the duty of the court to declare, not make the law; and, in so doing, sentences and phrases ought never to be distorted in order to sustain a favorite opinion. Every provision of the statute, on the same subject, ought to be carefully examined, in order to ascertain the intention of the Legislature, and the court that rejects a portion of one statute, that should be construed in pari materia, to sustain what they conceive should be the law, must be regardless of their duty.

Pike v. Lytle, 6 Ark., 212, is relied upon as authority, from this court, to show that this action is not of a transitory nature, and that it is of the same class of cases as those of garnishment. There is no similarity between these actions. In the one case you have a judgment against the defendant, and in aid of that judgment you are allowed to inquire of every man, whether he is indebted to the defendant, and, if so, in what amount ? If he refuse to respond, you are allowed to take judgment against him. In the other, you are simply notifying him that you will take judgment against him for a liability created by the default of his principal. In the one case the law is silent as to where the writ may be sent; in the other, the law declares that the sureties shall appear “ before the court in which the writ is returnable.”

It is said that this statute is penal, and must be pursued strictly. The seventy-sixth section, before referred to, created the only penalty against the sheriff and his securities known to the law, and fixed it at ten per centum per month. The act of January dicl not and does not create a simple penalty, that was not in existence at the passage of the act. This being true, it strikes us as being strictly a remedial statute, and as such, entitled to a very liberal construction. The remedy of the plaintiff was extended to the securities of the sheriff, and he was allowed to bring them into the same forum that the seventy-sixth section allowed him to bring the sheriff.

The notice, in our opinion, is sufficient, if it sets out in plain and concise language the substance of any one of the seven causes for which a summary judgment may be taken, and it may be served by the same officer .or .person, and in the same manner, as a summons may be served.

The record of the court below, in this class of cases, need not show anything but the notice, its manner of service, the appearance or default of the defendants and the rendition of a final judgment. The motion and the proofs that aided the court in coming to its conclusions, constitute no part of the i'eeord, the 8th Porter and 1st Alabama to the contrary notwithstanding, unless they are made so by bill of exceptions. The circuit court is a court of general jurisdiction, and if the notice discloses a state of facts for which a judgment might be taken, the proof of facts, or the finding of facts, only going to establish jurisdiction, are not necessary. It is only courts of limited jurisdiction, whose judgments must show affirmatively that in their adjudications they have not gone beyond their powers.

¥e are of opinion, after much reflection : 1. That the service in this case is sufficient; 2. That all the facts, necessary to constitute a valid judgment appear of record in this ease; 3. TJiat the court had jurisdiction fcf the parties and subject matter at the time of the rendition of the judgment; and 4. That, in our opinion, the judgment ought to be affirmed.

Had we reached the conclusions as to the facts, announced 1)y the majority, we have only to say that the judgment rendered in this cause would not have been unanimous.


author: Harrison, J.

text:
    Simpson v. Montgomery, et al.

    Equity jurisdiction — mistakes and accidents. Where a deéd is acknowledged before a commissioner of deeds for Arkansas, who is also a commissioner of deeds for Mississippi, and who inadvertently signed himself as the latter, equity affords relief from the mistake.
    To correct and relieve against mistakes and accidents is one of the principal objects and most ordinary duties of courts of equity.
    This relief is afforded not only against original parties, but also against those elaiming under them, with notice of the facts.
    The only evidence upon which a deed can be admitted to record is the certificate of acknoioledgment by the proper officer.
    Vendor’s lien. The mere assignment by the vendor of land of a note given for the purchase money of the land, does not transfer to the assignee the vendor’s lien.

    Champerty. Where a trustee in a deed of trust sells the lands of M. to S., and the creditors of M. credit the amount of the bid on the notes of M. held by them, but agree not to exact payment of the bid unless the title in S. should prove to be good, the agreement is not champertous.

    In such a case, the object of the sale is as fully accomplished as if the money had been paid to the trustee, and by him to the creditors.

      Appeal from Crittenden Circuit Court.

    Hon. James M. Hanks, Circuit Judge.
    G-arland & Nash, for appellant.
    This case, in its general features, is like that of Martin v. SMI, 19 Ark, 139.
    The mistake, in this case, is of no moment. A mere substantial compliance with the statute is all that is required. Jacoioay v. Gaidt, 20 Ark., 190. The fact of acknowledgment, and the identity of the party acknowledging, are the essential features, and, these appearing, it is sufficient. Bryan v. Ramsey, 8 Cal., 461; ib., 581; Hopkins v. Delaney, ib., 85; ib., 511; and these being complied with, a liberal construction is given to certificates of acknowledgment. Morse v. Clayton, 13 S. 8p M., (Miss.,) 373; Crowley v. Wallace, 12 Mo., 143; and even where justices of the peace do not, in their certificates, describe themselves as such, the acknowledgment is good. Welles v. Cole, 6 Gratton, (Ha.,) 645; and the official seal wanting will not vitiate the acknowledgment. Pilloio v. Roberts, 13 How., (U. S.,) 472. And it may be laid down, as a general if not universal rule, that no mere clerical error in the officer will avoid the acknowledgment. Ives v. Kimball, 1 Mann, (Mich.,) 308; Monroe v. Arledgc, 23 Texas, 478; Cavender v. Smith, 5 Clarke, (Iowa,) 157; and the misdescription of the office held by the person taking the acknowledgment is altogether immaterial. THray v. McKeenan, 6 Hump>h.,(Tenn.,) 207; Beckel v. Pettigrew, 6 Ohio, (N. S.,) 247.
    The court of chancery, having all the parties interested before it, can arrest this mistake, so as to cure all difficulties. Johnston v. Jones, 1 Black., (U. S.,) 209; Simmons v. North, 3 S. $ M., (Miss.,) 67; Whitehead v. Brown, 18 Ala., 682; Stone v. Hale, 17 Ala., 557; Davis v. Rodgers, 33 Maine, 222; Wall v. Arrington, 13 Ga., 88. And, as affecting one having notice of the deed or mortgage, though defective, it is always corrected in this way. Gases sup.; Wordsworth v. Wendell, 5 Johns. Ghy., 224, 230; so that, by these cases, the appellant had in truth his record, and the others were bound by it; and, although this deed may have been defective, yet it appears from the bill that due notice of Simpson’s claim was fixed on the others. 5 Johns. Chy., sup.; Byers Patterson v. Engles, 16 -4?7;.,543. Hornor v. Hanks, 22 ib., 572. The bill, being confessed by the demurrer, must be taken as true; and they show the defendants below (appellees here) did not hold the position of purchasers, without notice, for value.
    Upon the question of depriving Simpson of his rights here, because merely of the error or mistake of Mr. Hill, we state simply what this court will, at once, recognize as almost an axiom of the law, that never will courts prejudice parties by the negligence or mistakes of officers when the facts are or can be otherwise disclosed. 9 Hoio., (U. S.,) 333; 5 Cranch, 234; 5 And., 235.
    Watkins & Rose, for appellee.
    Where a decree pro eonfesso has been rendered, if the defendant does not move to set it aside within the three first days of the next term, it becomes, by its own operation, absolute. Smith v. Yell, 4 Ark., 293; 1 Hoff. Gh. Pr., 551.
    Though a decree he erroneous, yet it can not be collaterally questioned. Evans v. Percifull, 5 Ark., 424.
    The plaintiff must recover on the strength of his own title, and not on the weakness of that of the defendants. Pice v. Harrell, 24 Ark., 402.
    The contract of the plaintiff was champertous, and will not be regarded in chancery. Bowman v. Burnley, 2 Mcljean, 376 ; Biddings v. Eastman, 1 Clark CL, (N. Y.,) 19; Ward v. Bokkelen, 2 Paige CL, 289; Slade v. Rhodes, 2 Dev. $ Bat. CL, 24.
    A mortgage is no lien as against strangers, until it is acknowledged and recorded, even though they may have actual notice of its existence. Gould’s Big-, eh. 117, see. 2; Maine v.

      Alexander, 9 Ark., 112; Jacóioay v. Gault, 20 id., 190 ; Hannah v. Carrington, 18 id., 105.
    No principle of law is more clearly settled than that the registry of a conveyance must have been in compliance with the law, and that otherwise the registry is to be treated as a mere nullity, and that it will not affect a subsequent purchaser or incumbrancer. Astor v. Wells, 4 Wheaton JR,., 466; 1 Binney’s JR., 40; Frost v. Beekman, 1 Johnson’s Ch. R., 300; 1 Story’s Fq. Jurisprudence, sec. 404; Farmer’s Loan and Trust Co. v. Maltby, 8 Paige Ch. R., 361; o Greenleaf’s R., 272.
    And equity will never interfere to correct a mistake in any written instrument, except as between the parties and their privies having legal notice of the mistake at the time their titles accrued. Carroll v.. Duval, ubi. sup., 1 Story’s Fq. Jur., sec. 165 ; and cases there cited.
    A corrected registration operates against' creditors and subsequent purchasers only from the date of such correction. Baldwin v. Marshall, 2 Humph., 116.
    The certificate can not be changed by parol evidence. Wright v. Bundy, 11 Ind., 398; Ridgely v. Howard, 3 Har. ¿fMcHen.,.290; Wooclyard v. ThrelJceld, 1 A. K. Marsh., 10; Sax-ton v. Nimms, 14 Mass., $16 \ Thayer v. Steams, 1 Pick., 109.
    The certificate of a justice taking an acknowlegment can not be qualified by parol testimony, unless fraud is shown. Jami-son v. Jamison, 3 Wharf,, 457; Lloyd v. Giddings, Wright, {Ohio), 694; Filis v. Madison, 1 Shep., 312; Crommett v. Pearson, 6 id., 344; State v. McAlpen, 4 Iredell, 140; Blaisdell v. Briggs, 10 Shep. 123; Sheftall v. Clay, T. U. P. Charlton, {Go.,) 227.
    The fault or fraud of the! officer in the recording of a deed concludes the rights of the parties to the deed as to third persons. The remedy of the parties is against the officer. Sawyer v. Adams, 8 Vermont, 172. ''
    “ The acknowledgment of a deed mfist appear on it, and can not be proved by parol evidence.” Pendleton v. Button, 3 -Conn., 406.

      “Nor can any defect in the certificate of the magistrate be helped by parol evidence.” Hayden v. Wesoott, 11 Conn., 129.

      A public officer should not be pérmitted to impeach his own official certificate. Central Bank v. Copeland, 18 Md., 305.
    Even the recorded certificate can not be introduced to alter the certificate written by the clerk on a .mortgage, the latter being the highest evidence which the nature of the case admits of. Ames v. Phelps, 18 Pick., 314. The clerk’s certificate is conclusive. Tracy v. Jenks, 15 id., 465.
    “The registration system is one of positive -law, and exacts from a court of chancery obedience as implicit as from a court of common law, and must be expounded and enforced in both alike. Defective probates of deeds can not be aided in either, by the production, of probates upon other instruments or other •proof.” Evans v. Wells, 7 Humph., 559.
    “ A deed can not be recorded on parol proof of its proper acknowledgment. Elwood v. Kloek, 13 Barb., 50. In this ease the court say, that the certificate of acknowledgment is a record, which takes the place of the ancient fine of the common law, and that “ parol evidence would not be received to impeach the record, and would be inadmissible to support it.”' Such a certificate is conclusive in the absence of fraud. Hartley n. Frosh, 6 Texas, 208.
    A defective certificate of acknowledgment can not be aided by a court of ecpiity nor by a parol proof. Chanvin v. Wagner, 18 Mo., (3 Bennett,) 581; Gill v. Fauntlerof s Heirs, 8 B'. Monroe, 178; Blackburn v. Pennington, id., 220; Elliott v. Piersol, 1 Peters, 838 ; Barnett v. Shackleford, 6 .71 .7. Marsh., 532; Jourdan r. Jourdan, 9 Serg. f Bawle, 274; Butler r. Buckingham, 5 Day, 504.
    “ A court, can not make a valid registry of a deed in any other manner than that prescribed by the statute.” Caldwell .v. Head, 17 Missouri, (2 Bennett,) 561.
   Harrison, J.

The material facts in this ease are those: William Park and Wife, Henry Fitzgerald and wife, and Jaines Simpson, on the 25th day of October, 1860, sold and conveyed to Andrew J. Montgomery, for the price' of $9,300, certain lands in -Crittenden county, and acknowledged in their deed the receipt of the purchase money. Seven thousand two hundred and one dollars and- eighty-four cents ($7,201T8-^-) of it, however, were uot in fact paid, and for that amount Montgomery gave his five notes, as follows: To William Park, one for $l,590^j-, payable-in one year;- and one for $1,735-^-, payable in two years; to Janies Simpson, one for $1,590^¡-, in one year, and one for $1,735-^-, in two years; and one for $550, payable to his own order, in one year, and indorsed in blank by him.

To secure the payment, Montgomery-conveyed,'by deed of the same date, the lands to James G-. Barbour, in trust, that should default be made in the payment of any of the notes at maturity, to sell -the sarhe at auction, for cash, and to pay and satisfy the notes, not only such as should be due, but those not due, discounting the latter at the rate of six per cent, per annum. Both deeds were acknowledged and recorded, but the commissioner of deeds, before whom the latter was acknowledged in -the city of Memphis, lining also a commissioner of deeds for the State of Mississippi, through inadvertence and mistake, described himself, in his certificate of acknowledgment,' as “commissioner of deeds for the State of Mississippi/’ appointed as such by the Governor of that State. On the 19th day of November, 1860, and after the latter deed had been admitted to record, Montgomery sold and conveyed an undivided third part of the lands to Newton Ford, who, on the 10th day of December following, sold and conveyed the same back to Montgomery, and on the same day Montgomery sold and conveyed the whole to Robert B. Alexander. Montgomery’s deed to Alexander also acknowledged the receipt of the purchase money; and Alexander, when he purchased, had notice of the mistake in the certificate* and all the above mentioned facts.

All the notes having matured and being unpaid, Barbour, at the request of the holders, proceeded to execute the trust; and, after giving notice of the sale, as prescribed in the deed, on the 16th day of January, 1866, sold the lands at auction, and James G-. Simpson, the complainant, became the purchaser, at the sum of $4,000, and under power and authority given by the deed, Barbour executed a deed of conveyance of them to him.

This deed, like the other, recited the payment of the money; but none was actually paid to the trustee. Park and Simpson, the holders of the notes, except the one for $550, crediting the. amount of the bid on the notes, and agreeing with the complainant, on account of doubt and uncertainty about the title, not to exact the money from him, unless it should prove good and indefeasible.

After the sale by the trustee, and after his deed to the complainant had been duly recorded, Josiah I). Williams filed a bill in the Crittenden circuit court to subject the lands to an alleged lien for the payment of a note for $1,650, which Alexander had given Montgomery for a part of the purchase money in the sale to him, and which ho held as assignee. No defense being made to his suit, a decree was rendered according to the prayer of his bill, and the lands were sold, and bought by him for the amount of tie decree, and a deed was made him under xhe authority of the court.

Complainant’s bill further charged that the lands -were wild and unimproved, and not in the actual occupancy or possession of any one; that Williams set up and claimed title to said ands under his purchasethat his claim, and the circumstances before stated, had east a cloud upon complainant’s title; and it prayed that his equities in the lands might be established, and his title to the same cleared from the cloud and quieted, and that, if that, relief could not be afforded him, he be relieved from the payment of the money he owed William Parle and -Tames Simpson.

■ Montgomery and his wife, Williams and wife, and Alexander, filed a demurrer; the other defendants ■ made no defense. The court sustained the demurrer and dismissed the bill, and the complainant appealed.

The mere assignment of a note given for the purchase money of land, which the' vendor has conveyed by deed to the vendee, does not transfer or carry with it the lien of the vendor for the payment of the purchase money. Shall, admr., et al., v. Biscoe, et al., 18 Ark., 142; Williams v. Christian, 23 ib., 255; Crawley v. Biggs, et al., 23 ib., 563. Williams, therefore, acquired no lien by the assignment of Alexander’s note to him ; -and, however conclusive his decree may be against Montgomery and Alexander, who .were parties to the suit but made no defense, the lights of the complainant, who was not a party, are not in the least affected by it, or any proceeding- under it. 1 Sto. Eq. Jur., sec. 407; Sto. Eq. Pl., sec. 72; Trammell, et al., v. Thurmond, et al., 17 Ark., 203; Hannah, admr., v. Carrington, et al., 18 ib., 85; 1 Green. Ev., sec. 522, 523.

The only evidence upon which a deed can be admitted to record is the certificate of proof, or acknowledgment of a court or officer, authorized by the statute to take such proof and acknowledgment, sections 12 to 16, 22, 33, and 34, ch. 37, Digest; Jacoway v. Gault, 20 Ark., 190; Biscoe v. Byrd, 15 Ark., 655; Blagg v. Hunter, 15 Ark., 246; Trammell, et al., v. Thurmond, et al., 17 Ark., 203; Hester’s Lessees v. Fortner, 2 Binn.; 40; Johnson’s Lessee v. Hains, 2 Hamm., 25.

As no such certificate accompanied the deed of trust, it ivas not properly admitted to record, and consequently did not become constructive notice to the world. No question could possibly have arisen had it been duly recorded, and as the mistake of the commissioner of deeds, who took the acknowledgment, was the sole, cause of the omission, the whole controversy rests upon that point.

To correct and relieve against mistakes and accidents, is one of the principal objects, and most ordinary duties, of courts of equity. Judge Story, speaking of the jurisdiction of courts of equity arising from accidents, says: “By the term accident is here intended not merely inevitable casualty, or the act of Providence, or what is technically called vis major, or irresistible force, but such unforeseen events, misfortunes, losses, acts or omissions as are not the result of any negligence or misconduct in the party.”

Lord Cowper, speaking on the subject of accident as cognizable in equity, said: “By accident is meant when a case is distinguished from others of the like nature by unusual circumstances ;” a definition quite too loose and inaccurate, without some further qualifications; for it is entirely consistent with the language, that the unusual circumstances may have resulted from the party’s own gross negligence, folly or rashness. 1 Sto. Eq. Jur., sec. 78. Again, in speaking of the jurisdiction founded upon the ground of mistake, he says: “This is sometimes the result of accident, in its large sense; but as contradistinguished from it is some unintentional act or •omission, or error, arising from ignorance, surprise, imposture, or misplaced confidence.” Ib., sec. 110. In the case before the court neither the cestui que trust, nor the trustee, can be charged with any negligence or misconduct. The mistake was not theirs, and they had no agency in producing it. It was evidently a clerical error, and a very unusual one, the probability of which was not likely to occur to the mind of any one, of such a character as not readily to be discovered, and was made by an officer, in the performance of his duty — in whose skill and correctness they had a right to confide.

That relief is afforded in cases of mistake, such as this, is shown by the following remarks of the author just quoted: “In like manner, as equity will grant relief in cases of mistake in written instruments, to prevent manifest injustice and wrong, and to suppress fraud, it will also grant relief and supply defects, where, by mistake, the parties have omitted any'acts or circumstance necessary to give due validity and effect to written instruments. Thus equity will supply any defect of circumstances in conveyances, occasioned by mistake; as of livery of seizin in the passing of a freehold, or of a surrender in case of a-eopy-hold, or the like; so, also, misprisions and omissions in deeds, awards and other solemn instruments, whereby they are defective at law.” 1 Sto. Eq. Jur., sec. 11, p. 166.

And this relief is not only afforded against original partiés, but also against those claiming under them, as heirs, devisees; judgment creditors, or purchasers from them with notice of the facts. 1 Sto. Eq. Jur., sec. 165; Simmons, et al., v. North, et al., 3 S. and M., 67; Governeur v. Titus, 6 Paige, 347.

. No'notice, however, to Ford, of the mistake, is charged in the bill, and it is to be presumed that he was a bona fide purchaser without notice; but the superior equity he acquired as an innocent purchaser was not transmitted to Montgomery, by the reconveyance to him, and from him to Alexander and Williams in succession; but the same equities his vendor had, when he sold to Ford, reattached upon the property when •conveyed back to him. 1 Sto. Eq. Jur., sec. 410; Schult v. Large, 6 Barb., 373; 2 Lead. Cases in Eq., 184; Kennedy v. Daly, 1 Sch. and Lefr., 379.

Montgomery, being a party to the deed of trust, and Alexander, purchasing with notice of the mistake in the commissioner’s certificate, by which the deed of trust was prevented ‘from being duly recorded, and Williams, with notice of complainant’s title, it is evident that complainant’s equity is superior to that of either, and the equitable being united with the legal title in him, his title to the lands in controversy is absolute and indefeasible.

But it is objected, because the complainant did not pay the money, and William Park and James Simpson agreed with him not to exact it of him unless his title should prove to be good and indefeasible, that his purchase of the lands was champertous, and he has no right to maintain a suit respecting them. We are unable to perceive a single feature of champerty or any thing unlawful, immoral or against public policy in the transaction. The lands were not sold by these * parties, but by Barbour, the trustee appointed by Montgomery, at auction, where any person was at liberty to bid.- and might have become the purchaser, in the execution of the trust, and with no view or purpose of bringing or carrying on a suit; and the sum at which' they were bid off was placed as a credit on the notes, and the end of the sale as fully accomplished as if the money had been paid to the trustee and then paid over by him to the holders. Goodwin v. Floyd, 10 Yerger, 520.

The court below erred in sustaining the demurrer to the bill and in dismissing the same.- Its decree is therefore reversed, and said demurrer is overruled, and the case remanded for further proceedings.


author: Gregg, J.

text:
    State v. Jones.
    What judgments are appealable. Where a motion, to dismiss for want of jurisdiction is made in a criminal ease, and allowed, but without entry of final judgment, this court can not take cognizance. of the appeal thereon.

      Appeal from Carroll Circv.it Court.

    Hon. Elias M. Harrell, Circuit Judge.
    Attorney General, for appellant.
   Gregg, J.

Et appears from the transcript that, at the N ovember term, 1866, of the Carroll county circuit court, the defendant was' indicted for an assault with a deadly weapon, with intent to inflict a bodily injury upon one Calvin C. Shouse, without any considerable provocation.

The indictment is in good form and contains all the statutory requisites to charge the offense.

. At the February term, 1869, the defendant appeared in that court and filed his motion to dismiss the prosecution, because the court had no jurisdiction to try him.

The record, which is certified to this court to be “a true, correct, and complete, transcript of the proceedings in this cause,” recites that, “ the court being advised of the matters and things arising on the motion to dismiss this case for want of jurisdiction, heretofore filed, doth sustain said motion,” and thus concludes the record entry without any final judgment upon the motion or otherwise.

This court can'not, on appeal, adjudicate the alleged error of the court below, in refusing to exercise its jurisdiction, until the case is there prosecuted to final judgment.

The appeal is dismissed for want of jurisdiction in this court.


text:
    Portis, et al., v. Green.
    Illegal consideration. The fact that the consideration for a promissory note sued on was a horse, which the payee, who sues, knew was to be wed in the service of the Confederacy, is a good defense to the note.

      Appeal from Jefferson Circuit Court.

    Il9n. William M. Harrison, Circuit Judge.
    Bell & Oarleton, for appellants.
    Rice, Benjamin & Ratcliffe and Black, for appellee.
   Bowen, J.

This is an action upon a promissory note, executed by appellants to appellee.

Defendants in the circuit court plead that the note ivas given for a horse, and that the appellee, Green, knew that the same was to be used in the service of the Confederate States, against the Government of the United States. A demurrer to this plea having been sustained, to which ruling the defendants excepted and declined to plead over, the court rendered. judgment for the amount of the note, with interest and costs. Defendants appealed.

The case of Tatum v. Kelly, decided by this court at its last term, settled the only point in this case. Defendant’s plea was a sufficient defense, and the demurrer thereto should have been overruled. See authorities cited in the case of Kelly v. Tatum.

Judgment reversed.

Judge Harrison being disqualified, did not sit in this case,

lion. John "Wiiytock, Special Supreme Judge.


text:
    Gresham v. Peterson.
    Writ or xh exeat. The -writ of ne exeat is in the nature of equitable bail.
    Where a debtor is about to permanently leave the country, and the complainant has a clear right to equitable relief, a writ of ne exeat may issue.
    Our statute allows the writ to issue, where there is a contract or covenant to be performed, and the time for performahee has not arrived, and the complainant has entered into the agreement in good faith, and without any knowledge that the defendant intended to leave the State.
    The writ may not issue to retain the defendant sued in an action of tori for unliquidated damages.

      Appeal from Union Circuit. Court.

    Hon. John T. Bearden, Circuit Judge.
    J. H. Askhat, for appellant.
    The only question presented in this case is, whether the writ of ne'exeat properly issued ? Appellant insists that it did, and submits that the 13th section of chapter 118, Gould’s Digest, fully sustains this position.
    If appellant, in the case made by his bill, did not have an equitable cause of action against appellee, we are at a loss to know what state of case could be made in which a complainant would be entitled to 'a writ of ne excat, under the section quoted. Royster, ex parte, G Ark., 29; Mitchell v. Bund, 2 'Paige, ch. 606.
    Carretón and Garland & Nash, for appellee.
    Ne exeat will not lie for mere damages, especially for a past tort. Jackson v. Potreo, 10 Vety ,164; 2 Story Eg., sec. 1474.
    . Complainant must show sufficient equity in his bill to sustain the writ. . Woodward v. Schatzell, 8 J. C. R., 414. So, if a good case is not stated in the writ, it will be quashed. JJydev. Whitfield, 19 Ves., 345.
   Gregg, J.

On the third day of November, 1867, the appellant presented his bill of complaint to the Hon. John T. Bearden, judge of the sixth circuit, in which he alleged that he had been the owner of twelve bales of cotton, worth $2,500 ; that, by false and fraudulent representations, the appellee obtained possession of said cotton, and, without the knowledge' of the appellant, converted the same to his own use; that appellant commenced his action of trover therefor to the fall term, 1866, of the Union circuit court. That appellee owned real and personal property in said county, but that he was trying to sell the same, fraudulently to deprive the appellant from collecting any judgment he might obtain ; that, to afford time to make such sale, the appellee, upon false and fraudulent applications, had procured two continuances of said action, and that he is preparing to leave the State, as soon as he can make such sale; and,if not prevented, he will leave, and deprive appellant of all advantage of a judgment, “ which he had no doubt he would recover against him, for the value of said cotton.”

Appellant prayed for an injunction to restrain the appellee from conveying his property, and also a ne exeat to keep him from departing the State.

Upon the presentation of the bill, the judge overruled the application for an injunction, and" ordered that a writ of ne exeat issue. Appellee gave bond, and, at the April term, 1868, appeared in court and filed his demurrer to the bill, and his motion to quash the writ of no exeat and bond. The court sustained the demurrer and motion, quashed the writ and bond, and decreed that the bill be dismissed; that the appellee go hence, and the complainant pay costs ; from which decree Gresham appealed to this court.

The writ of ne exeat was once a privileged writ of the crown; but for a great length of time it has been allowed, in fit cases,- for individual relief.

In cases where a debtor was about to permanently leave the country, and the complainant could show to the Chancellor that he had a clear equitable right to recover, and was without relief at law, a writ of ne exeat in equity, which was analogous to a writ at law to hold a debtor to bail, issued to restrain him from departing.

Judge Story, in his second volume of equity jurisprudence, section 1474, says: “ As to the nature of equitable demand, for which a ne exeat regno will be issued, it must be certain in its nature, and actually payable, and not contingent. It should also be for some debt or pecuniary demand. It will not lie, therefore, in a case where the demand is of a general unliquidated nature, or is in the nature of damages.”

Chancellor Walworth, 4 Paige, Ch. R., 271, says: “The writ of ne exeat is in the nature of equitable bail, and to entitle the complainant to such bail, there must be á presen 1 debt or duty — some existing right to relief,” &c.

Our statute has so far changed the rule as to allow the writ in cases where there are contracts or covenants to be performed, and the time for payment or performance has not arrived, if the complainant had entered into the agreement in good faith, and without any information of an intention on the part of the defendant to leave the State.

But there is no intimation of any intention on the part of our Legislature to extend- this extraordinary remedy to actions of tort — to’cases of unliquidated damages.

And, in view of the settled policy of our laws against imprisonment for debt, every application of this kind should be closely scrutinized and promptly rejected, where the complaint is not clearly within the spirit of the law. 13 Ga., 41; Tomlinson v. Harrison, 8 Ves., 33; Adams’ Equity, (side p.,) 360; Rhoades v. Cousins, 6 Randolph, 188; Maddox v. Tremain, 3 Johnson Ch., 75; Burnsydes v. Blyth, 11 B. Monroe, 12; Rusell v. Ashbey, 5 Ves., 96 and note; 10 Ves., 164; 4 Ves., 577; 19 Ves., 342.

The. circuit court did not err in sustaining defendant’s demurrer and motion,-and the decree of that court is affirmed with costs.