text:
    Howell vs. Rye et al.
    1. Evidence : Oral, admissible to correct date of contract.

    Parol evidence is admissible to prove that a deed was executed on a different day from its date, without any violation of the rule that parol evidence is inadmissible to vary or contradict the terms of a written instrument.
    2. Deed : Uncertainty in description of land.

    "When a deed does not mention the township and range in which the land is situated, and no boundaries, natural or artificial objects, or other means for identifying the land, are given, the deed, on its face, is bad for uncertainty ; and the grantor may make a new deed correcting the mistake and omission, which would be good between them.
    3. Same : Exceptions to, how determined.

    In considering exceptions to deeds exhibited in pleading, as evidence of title, the court can look only to the face of the deeds themselves.
    4. Pleading : Complaint in ejectment: Sufficiency, how determined.

    In considering the sufficiency of a complaint in ejectment, on demurrer, the court can look only to its allegations, and not to the deeds exhibited with it.
    APPEAL from Pope Circuit Court.
    Hon. Thomas W. Pound, Circuit Judge.

      Pose, Granger, for appellees.
   English, C. J.

On the twenty-seventh of February, 1878, Turner Howell commenced an action of unlawful detainer in the circuit court of Pope, county against John C. Rye. There were two counts in the complaint, the first alleging, in substance, that plaintiff was the owner and entitled to the possession of the following described premises, situated in Pope county, to-wit: The south part of the south half of section 28, in township 9, north range 20 west, containing 150 acres; about 60 acres of which were inclosed and prepared for cultivation; and that in January, 1877, he leased, by parol, the inclosed land to defendant for that year, and that he unlawfully detained possession thereof after the expiration *of his term, etc.

The second count alleged, in substance, that plaintiff, being the owner and entitled to immediate possession, of the above described premises, defendant, on the first of January, 1878, obtained peaceable possession thereof, by permission of plaintiff, to take fire-wood therefrom, and pasture the stalk land, and unlawfully held over after the expiration of his right to such possession, etc.

Under the writ issued upon the filing of the complaint, plaintiff having executed bond as required by the statute, the sheriff put him in possession of the premises.

At the return.term, March, 1878, J. A. McDowell and W. E. Snood, under the firm name of J. A. McDowell & Co., and G-. Drabelle and J. Y. Gardner, under the firm name of Drabelle & Gardner, claiming an interest in the land, yvere, upon their application, made defendants, and joined with defendant Rye in an answer.

The answer, in substance, denied that plaintiff was the owner of the land and rented it to Rye, and averred that Rye rented the land for the year 1877 of one B. A. Howell, and that the land was sold under special executions against him in favor of McDowell & Co. and Drabelle & Gardner, on the fourteenth of July of that year, and purchased by them, and that they obtained certificates of purchase from the officer who made the sale, and afterwards, on the first of February, 1878, rented the land to defendant Rye, for that year, who went into possession of it as their tenant, etc.

The plaintiff demurred to the answer on the ground, .in substance, that it denied his title to the land, and set up adverse title, which could not be adjudicated io the action of unlawful detainer; and the court sustained the demurrer.

Thereupon the parties entered into an agreement of record, in substance as follows:

¿L. That the cause be continued until the next term.

2. That defendant Rye be restoi’ed to possession of the land as tenant of defendants J. A. McDowell & Co., and Drabelle & Gardner.

3. That defendants waived all damages they may have sustained in consequence of having been dispossessed of the land by the sheriff at the instance of plaintiff in the suit, and that he be released from all liability on his bond.

4. That plaintiff, in lieu of his complaint in unlawful detainer, file in the clerk’s office within twenty days after the adjournment of the court a complaint in ejectment.

5. That accrued costs, and the rents of the land, abide the result of the action in ejectment.

6. That defendants waive notice of the filing of the complaint in ejectment, and answer thereto at the next term.

Under this agreement the cause was continued; and plaintiff filed, in substitution of the original complaint, a complaint in ejectment, which, as afterwards amended, made, in substance, the following averments:

That plaintiff is seized in fee. and entitled to the immediate possession of the following described land, lying in Pope county, etc., to-wit, the south part of the south .half of section 28 in township 9 north, range 20 west, containing in the aggregate 150 acres.

That on the nineteenth day of December, 1874, he bought the above-described land absolutely and unconditionally from B. A. Howell and wife Lou. J. Howell, and was put In possession thereof, paying them therefor the sum of twenty-five hundred dollars, good and lawful 'money of the United States, for which they executed to him their deed to said land, conveying to him title in fee simple under the following description, to-wit: The following lands lying in the county of Pope and state of Arkansas, to wit: All of the south half of section 28 that I now own, containing 150 acres, more or less.”

That said B. A. Howell was lawfully seized, held, occupied and possessed said land, under a deed from "W. E. Jamison and wife Prances 'J. Jamison, containing a like description thereof, as will more fully appear from a certified copy of said deed, herewith filed, marked exhibit “ 0.”

That said deed (from B. A. Howell and wife to plaintiff) was actually executed to plaintiff1 on the nineteenth day of December, 1874, but by mistake the date of said deed was erroneously written December 20, 1874; all of which will more fully appear from a certified copy of said deed ; also, their supplemental deed to said land executed to plaintiff at his instance and request on the eighteenth day of December, 1877, marked exhibits “A” and “B,” herewith filed and asked to be made part of this complaint.

That on the first day of January, 1878, plaintiff was lawfully seized and possessed of the above-described land, as owner in fee simple, and being so possessed thereof, after-wards, on the second day of January, 1878, defendant John C. Rye, without the consent and against the will of the plaintiff, unlawfully entered into said premises, and ousted plaintiff of the possession thereof, and unlawfully withholds the same, etc., etc.

That defendants J. A. McDowell, W. E. Snood, T. Drabelle and J. Y. Gardner, as plaintiff is informed, claim to be owners in fee of said land, and defendant Rye claims to hold under them as their tenant, but plaintiff denies that they have any claim or ownership thereto.

Wherefore plaintiff prays judgment for possession of said premises, and for damages, etc., etc.

The deed from Jamison and wife to B. A. Howell, made exhibit “C” to the complaint, bears date thirtieth of January, 1874, was acknowledged on the same day, and filed in the recorder’s office of Pope county, fourth of November, 1874, and recorded. In it the land is described thus:

“ Know all men, etc., that we, William E. Jamison and Frances J. Jamison, his wife, for and in consideration of the sum of $2,500, to me in hand paid by B. A. Howell, do hereby grant, bargain and sell, unto said B. A. Howell and to his heirs and assigns forever, the following lands, lying in the county of Pope, and state of Arkansas, to wit: All the south half of section 28 that I now own, except forty feet square on College Hill, covering the graves of J. R. Jamison and J. H. Jamison, containing 150 acres more or less. Also all of blocks C and D, as shown by plat of West Dover, as recorded in clerk’s office in Pope county,” etc. Then follow the habendum clause, and l’elinquishment of dower by the wife, etc.

The deed from B. A. Howell and wife to plaintiff', made exhibit “A” to the complaint, follows :

“ Know all men by these presents, that we, B. A. Howell.and Lou. J. Howell his wife,, for and in consideration of the sum of two thousand and five hundred dollars, ($2,500,) to me in hand paid by Turner Howell, do hereby graut, bargain and sell, unto the said Turner Howell, and unto his heirs and assigns forever, the following lands lying in the county of Pope and state of Arkansas, to wit: All the south half of section 28 that I now own, containing 150 acres, more or less; to have and to hold,” etc. Then follow the usual habendum clause, covenant of warranty, and relinquishment of dower by the wife, etc. The deed and acknowledgment are both-dated the twentieth day of December, 1874, and the deed was filed in the recorder’s office of Pope county, on the twenty-first of the same December, and recorded.

The supplemental deed from B. A. Howell and wife, made exhibit “B” to the complaint, follows:

“ To all whom it may concern: Whereas, on the nineteenth day of December, 1874, B. A. Howell executed and delivered to the grantee, Turner Howell, a warranty deed in fee simple to the lands hereinafter mentioned and described, for the sum of $2,500, which sum of money was paid by said Turner Howell to said B. A. Howell and wife, eta., before the execution and delivery by them, to him, of said warranty deed, on the said nineteenth day of December, 1874. And. whereas, the date of the execution of the aforesaid deed, on the nineteenth day of December, 1874, was, by mistake in the draftsman who drafted the said deed, written the twentieth day of December, 1874, instead of the nineteenth day, the true date of the execution thereof. And, whereas, said deed, executed by mistake, as aforesaid, bears an erroneous date in reference to the day of its execution, to-wit: the twentieth day, when it should be dated and bear date of the nineteenth day of the month and year afore-aid. And, whereas, it does not appear upon the face of said deed the township and range in which said lands are situated. And, whereas, the said Turner Howell has requested the said B. A. Howell and Lou. J. Howell, his wife, to execnte to him another deed to said lands, with a correction of the date of the execution of the said former deed, and more particularly describing said lands than in said former deed:

“Now, therefore, know ye, that we, B. A. Howell and Lou. J. Howell,wife of said B. A. Howell, for and in consideration of the sum of $2,500, being the consideration mentioned in a former deed, executed by us to Turner Howell, on the nineteenth day of December, 1874, but, by mistake, dated the twentieth day of said month and year, to the lands hereinafter mentioned and described, and which consideration money was paid cash in hand to us, by Turner Howell, previous to and before we executed to him said former deed on the said nineteenth day of December, 1874, to which former deed this deed has reference and is intended to correct and reform, and to take •effect from the true date thereof, we do hereby grant, bargain and sell unto the said Turner Howell, his heirs and assigns forever, the following described lands, lying in the •county of Pope and state of Arkansas, to-wit: the south part of the south, half of section 28, in' township 9 north, range 20 west, containing, in the aggregate, 150 acres, to have and to hold,” etc.

Then follow the usual habendum, warranty of title, relinquishment of dower, etc.

This deed bears date and was acknowledged, etc., on the eighteenth of December, 1877.

The defendants filed an answer to the complaint, and in their answer made exceptions to the original and supplemental deeds executed by B. A. Howell and wife to plaintiff, and exhibited as evidence with the complaint. The court sustained the exceptions, and thereupon defendants demurred to the complaint; the court sustained the demurrer; the plaintiff rested; judgment was rendered for defendants, and plaintiff appealed.

I. The exceptions made in the answer of defendants to the deeds of the plaintiff are as follows:

“Defendants, further answering, except to the deeds relied upon as evidence, marked exhibits £A’ and ‘ B,’ and attached to the complaint of plaintiff, for the following reasons, to-wit:

i. EvI_

terrecí written

2. Deed:

taintyn°Tñ. o?íanSÍ1011

“ 1. Because said deed, exhibit £A,’ passes no legal title whatever, and evidence which would tend to show an equitable title, can not be admitted in ejectment.

“ 2. Because such a deed as this is shown on its face to be, even though acknowledged and recorded, would not even be notice to the world.

££ 3. Because exhibit£ B5 shows on its face that it was executed long after the said B. A. Howell had lost all his right, title and interest in said lands, by sale under judgment by attachment, in favor of the real defendants herein against him, and that said B. A. Howell bad mo interest whatever in said lands, and could convey none; and no power save a court of chancery could reform the deed, exhibit £A,’ which is sought to be done by exhibit £ B,5 ” etc.

The twentieth of December, 1874, the day on which the first deed from B. A. Howell to plaintiff' bears date, was Sunday, but the complaint alleges that it was, in fact, executed on the nineteenth, and this allegation might have been proven on the trial without any violation of the rule that parol evidence is inadmissible to contradict or vary the terms of a written instrument. 1 Greenleaf Ev., sec. 285.

The lands attempted to be conveyed by the deed were not otherwise described or identified than as follows: “The following lands lying in the county of Pope, and state of Arkansas, to-wit: all the south half of section- 28 that I now own, containing 150 acres, more or less.”

The township and range are not mentioned, and no boundaries, natural or artificial object, or other means of identifyibg the lands intended to be conveyed, are given, and it may be conceded that the deed on its face was bad for uncertaintyunder our registration law. Fuller, guardian, v. Fellows, 30 Ark., 657; Cooper v. White, ib., 513; Mooney et al. v. Colledge et al., ib., 640; Doe v. Porter, 3 Ark., 18.

But by tbe supplemental deed of the eighteenth of December, 1877, the mistake in the date of the first deed was corrected, and omissions in the description of the land supplied. The complaint alleges that plaintiff purchased the land of B. A. Howell, on the nineteenth of December, 1874, paid him'therefor $2,500 in cash, and was put in possession of the laud. If these allegations be true, a court of equity would have compelled B. A. Howell to make plaintiff' a deed properly describing the land, etc. Allen v. McGaughey et al., 31 Ark., 252.

In making the supplemental deed to correct the mistake and omissions in the first deed, B. A. Howell did just what a court of equity would have compelled him to do on the allegations of the complaint, and as between him and plaintiff' the supplemental deed was valid. Williams et al. v. McIlroy, 34 Ark., 534.

It does not appear upon the face of the supplemental deed that B. A. Howell had been divested of his legal title to the land by sale under judgment by attachment before the deed was executed, as stated in defendant’s exceptions to this deed.

The deed upon its face was valid, and1 competent to be read in evidence on the trial to show title in plaintiff'; and whether it was valid on its face or not, was the question to be considered -by the court in ruling upon the exceptions takeiji to it. Jacks v. Chaffin et al., 34 Ark., 534.

It is true that it is affirmatively alleged in the answer of defendants, that McDowell & Co. and Drabelle & Gardner obtained judgments in attachment suits against B. A. Howell at the May term of the Pope circuit court, 1877, and that the land was sold, under special executions issued on the judgments, on the fourteenth of July, 1877, and purchased by the plaintiffs in the executions, who received certificates of purchase therefor from the officer making the sale; but the defendants would have to prove these allegations on the trial, and they could not be taken as true by the court, or noticed in considering the exceptions to plaintiff’s deed.

Whether these allegations, if proven on the trial, would defeat the plaintiff’s supplemental deed, is not a question before us on this appeal.

The court erred in sustaining the exceptions to the supplemental deed.

II. The complaint on its face contained substantially all the requisite allegations to make a good cause of action in ejectment. See. 2258 Gantt’s Digest.

The court in considering the demurrer to the complaint, could only look at its allegations, and see if they made a good catase of action, and could not look at the deeds exhibited with the complaint, which were disclosed as the documentary evidence 'which plaintiff’ proposed to use on the trial, for the information of defendants. Act of March 5, 1875 — Acts of 1875, p. 229, as construed in Jacks v. Chaffin et al., supra.

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


source: Caselaw Access Project

author: English, C. J.

license: Public Domain

text:
    Scott et al. vs. Ward, Trustee, et al.
    Married WOman : Her power to convey or mortgage her realty.

    The statute does not limit a married woman’s power to convey her real estate, to any particular purpose or consideration. She need not acknowledge a consideration. She may mortgage it for her husband’s debts, or sell it and pay his debts with the proceeds, or set him up in business.
    APPEAL from Cranford Circuit Court in Chancery.
    Hon. J. H. Rogers, Circuit Judge.

      DuVal ft Cravens, for appellants.

      U. M. Rose, contra.

   English, C. J.

This was a bill filed in the circuit court-of Crawford county to enjoin the sale of real estate by a. trustee in a deed of trust.

In the bill, exhibits and answer, upon which the case was heard, there was no disagreement between the parties as to the material facts, which may be briefly stated:

J. Neal & Co., a mercantile firm of 'Van Burén, composed of Neal and Charles G-. Scott, being largely indebted and unable to meet its liabilities, by an arrangement between the parties, Henry C. Robards, the son-in-law of Scott, became his successor in the firm, and assumed its debts at fifty cents on the dollar, for which he executed his notes to-the several creditors of the firm, bearing date June. 1, •1874.

To secure the payment of the notes, Charles Q-. Scott and wife, Caroline L. Scott, Henry C. Robards and wife, Johanna P. Robards, executed a deed of trust, with power of sale, to Augustus. J. Ward, as trustee, conveying lands- and lots which, were the separate property of Mrs. Scott and her daughter, Mrs. Robards, which deed of trust was dated on the first, and duly acknowledged in accordance with the statute of the thirteenth of June, 1874.

1. Married Woman:

Her power to convey or mortgage her realty.

After the execution of the deed, Mrs. Robards died, leaving an infant child, Charles Robards.

Henry 0. Robards failing to pay the notes secured by the trust-deed at maturity, Ward, the trustee, advertised the lands and lots for sale under the power contained in the deed, and the bill for injunction was filed by Mrs. Scott and her infant grand-child, Charles Robards, making the trustee, the beneficiaries, etc., defendants.

The bill assumed that the deed of trust was invalid as a conveyance by Mrs. Scott and Mrs. Robards, both married women, to secure the notes executed by Henry C. Robards.

On the hearing, the court dismissed the bill, and complainants appealed to this court.

Counsel for appellants cite Stillwell and wife v. Adams, 29 Ark., 346; Davidson v. Lanier, 51 Ala., 318, and Lippincott v. Mitchell, 94 U. S. (4 Otto), 767, to sustain the proposition that a married woman can not mortgage her separate estate to secure a debt contracted by her husband.

The case of Davidson v. Lanier followed Wilkinson v. Cheatham, 45 Ala., 337, and in both cases the wife attempted to mortgage her statutory separate estate to secure a debt of her husband, and the court held that the statute limited her power over her estate, and disabled her to make the mortgage.

Lippincott v. Mitchell was an Alabama case, and the supreme court of the United States followed the decisions of that state made upon its statutes.

By our statute, a married woman may convey her real estate, or any part thereof, by joining ber husband in a deed, acknowledged in tbe prescribed form. Wood and Wife v. Terry et al., 30 Ark., 391.

The statute does not limit her power of conveyance to any particular purpose or consideration.

Sbe need not acknowledge a consideration, for that may go to tbe husband. Little, Trustee, v. Dodge, Guardian, 32 Ark., 459.

If it please ber, sbe may sell her land and pay tbe debts of ber husband with the proceeds, or set him up in business.

"Why, then, may sbe not convey it by mortgage, or deed of trust, to secure tbe payment of bis debts, if sbe chooses so to do ?

In Stillwell and Wife v. Adams, 29 Ark., 346, supra, tbe mortgages were held invalid because not. acknowledged in the form prescribed by tbe statute.

This court has in no case held that a married woman could not execute a valid mortgage of ber estate to secure tbe debts of her husband, and thousands of such mortgages have been taken in tbe state.

Mr. Jones, in bis work on Mortgages, see. 113, vol. 1, says: “ A married woman may make a valid mortgage of ber separate property to secure tbe payment of the debt of her husband, or of any other person, etc. Any consideration which would be sufficient to support tbe obligation, if made by any one else, as, for instance, the granting of tbe original loan, or á subsequent extension of the time of payment of tbe debt, is sufficient to support tbe undertaking. Whatever conflict there may be in the authorities as to tbe ability of a wife to charge herself personally for any debts not contracted for her own benefit, there is a general unanimity in bolding that a mortgage upon her property may be enforced against that.whether made for her benefit or not.”

See, also, 1 Bishop on Married Women, sec. 604.

The decree must be affirmed.


text:
    Merritt vs. Robinson.
    1. Bescission oe Coktkact: For fraud of vendor.

    "When a vendor is guilty of fraudulent misrepresentation or concealment as to the essential inducement to. a contract, the vendee may, on discovery of the fraud, rescind the contract. Fraud in all cases gives the defrauded party the right utterly to reject the contract; but the vendee must offer to rescind in a reasonable time after discovering the fraud.
    2. Fkaud: Selling mortgaged, property.

    If a vendor sell goods which he knows, to he mortgaged, without giving information thereof to the purchaser, the sale would be fraudulent. The suppression of the truth is equivalent to a falsehood, when the vendor is under obligation to disclose the truth.
    3. Same : Perfecting title by fraudulent vendor.

    Fraud avoids a contract ab initio, and the party committing it can take no advantage of it, nor acquire any rights or interest by means of it. If, therefore, the vendor of mortgaged goods, knowing of the mortgage, conceal it from the vendee, the vendee may, on discovering the fraud, treat the contract as void, and rescind it by returning or offering to return the property and demanding that given in exchange for it; and the vendor can not defeat his right to rescind by afterward procuring a release of the property from the mortgage.

      A. Stjyiiay Coktbact : Offer to rescind on Sunday, void.

    Ain offer to rescind a contract on Sunday is void.
    APPEAL from Lincoln-Circuit Court.
    IJon.-J. A. "Williams, Circuit Judge.

      Pierce, for appellant.
    Cunningham, contra.

   English, C. J.

In September, 1877, J. W. Robinson brought replevin against James Merritt, before a justice of the peace of Lincoln county, for an iron-gray mule, two years old.

The defendant bonded the mule, and retained-possession of it; there was a trial, verdict and judgment in favor of plaintiff, and defendant appealed to the circuit court.

In the circuit court, the case was submitted to the court, sitting as a jury, and the court found as follows:

“ Upon the facts and law in the case, the court, sitting as a jury, finds that the plaintiff is entitled to the possession of the property mentioned in the order of delivery, that the value thereof is $40, and that he have nothing for his damages. John A. Williams, Judge.”

Judgment was accordingly rendered against defendant, and II. A. Pierce and Thomas J. Dutter, his sureties in the appeal bond, for the mule if to be had, and, if not, for $40, its value as fixed by the court, and for costs.

The defendant moved for a new trial, which was refused by the court, and he took a bill of exceptions and appealed to this court.

On trial, Robinson, the plaintiff, testified in substance as follows:

“ I am the owner of the mule claimed in this action. It is my property, and is worth $40, etc. I swapped the mule to defendant for a blue pony; gave the mule into his possession freely and gave him a good title, all the title I had, and I owned and have raised the mule. I have the horse now defendant traded me for the mule. No one is claiming the horse, and no one has ever claimed it from me. I have worked the horse since this suit was brought, and have conditionally sold him. When I traded with defendant I asked him if there was any mortgage or lien on the horse, and I think he said there was no mortgage, that .the title was clear. I am quite certain he said there was no mortgage on the horse. I found out afterwards that H. A. Pierce had a mortgage recorded on the horse, and when I found this out I sent Mr. Harrison with the pony to defendant, and told him to bring back the mule, but he did not get him, and I then brought this suit. Gave Harrison no written authority; sent him on Sunday morning; and this was the only offer I made to return the pony to defendant before bringing suit.”

J. H. Harrison, witness for plaintiff, testified in substance as follows:

“ I took the pony from plaintiff to defendant in last August (1877) and told him I had brought back the pony and come after the mule. He said he did not trade that way, that when he made a trade he made it to stick. I told him Mr. Robinson had found out that there was a mortgage on the pony, and defendant said he had given the old man a good title to the horse, and would see that he had no trouble ; that he would go and see Pierce, and be down next day and fix things all right. I did not tell him I was the agent of Robinson. I had no written authority, and went at no other time than the ¡Sunday mentioned.”

Plaintiff then introduced a mortgage executed by defendant to H. A. Pierce, twelfth of July, 1877, upon a blue pony, three cows and calves, and a heifer, to secure a note for $50, due first of November following, given by defendant to Pierce for the pony, -which mortgage appears to have been duly acknowledged and filed for registration in the recorder’s office of Lincoln county, the thirteenth of J uly, 1877.

Defendant Merritt testified in substance as follows :

“ Some time last summer (187'T) I traded a horse pony to plaintiff for the mule in controversy. When we traded he asked me if there was any mortgage or lien on the pony, and I replied that I would give him a good title to the horse, that he should have no trouble with the title. I do not think I told him there was no mortgage on the horse. I considered that I was giving him a good title, for I had agreed with Mr. Pierce, the mortgagee, that I might trade the pony, and he had permitted me to trade him if I got a good opportunity. I made this agreement with Mr. Pierce the same day, find a short time afcer making the mortgage, and knew I was giving plaintiff a good title. I never knew that Harrison was agent for plaintiff, or had any authority to act for him. Harrison came to me on Sunday with the pony and wanted the mule, and I refused to let him have him. Plaintiff has never offered to return the pony to me, nor did he ever demand the mule of me, nor has any one done so, so far as I know, who was acting for him.”

H. A. Pierce, witness for defendant, testified, in substance, as follows:

“In July, 1877. I sold the pony to defendant, and took a mortgage on him and other property to secure payment. Plalf an hour after the mortgage was executed, I gave defendant permission to sell or trade the pony, if he had a good chance and would supply the place of the pony with any other property he might trade for. I had confidence in his judgment as a trader and was willing for him to exchange the pony for other property. After he traded with plaintiff, and before the issuance of the alias summons in this case, I had /released all claim to defendant, and he had given me a' mortgage on the mule in controversy, which was filed in the clerk’s office at that time, and I so informed plaintiff; and that I had given permission to defendant to trade, and that I had no claim on the pony he had received.”

Defendant also introduced a mortgage executed by him to Pierce, bearing date September 25, 1877, by which, in consideration of. the release of’the-pony from the first mortgage, he conveyed to Pierce the mule to secure the payment of the note given for the pony. This instrument appears to have been acknowledged on the first, and filed in the recorder’s office on the fifth of October, 1877.

Plaintiff moved the following declarations of law, which the court made, against the Objection of defendant:

1. If defendant mortgaged property to Pierce, and afterwards traded the same property to plaintiff for the mule sued for in this action, and plaintiff was ignorant of the mortgage at the time of the exchange, this was a fraud upon plaintiff, and defendant acquired no property in the mule.

2. A contract in writing can not be varied by a cotemporaneous parol agreement, and if the contract was changed by parol, it must, to be valid, have been changed after the making .of the written contract at a timé so remote as to form no part of the res gestee, and defendant must show this.

“3 In order to change the written contract to make it conform to the parol agreement, the defendant must prove that everything had been done on his part which had been agreed to be done before the contract is changed to conform to the parol agreement.

“ 4. If plaintiff asked defendant, if there was any mortgage lien on the property traded to plaintiff by def'enddant, and defendant answered there was nothing to interfere with the title of the plaintiff, and there was at that time a valid mortgage on said property, this was a fraud perpetrated upon plaintiff by defendant which invalidates the trade, and gave the defendant no title to the property.”

Defendant asked the court to make eight declarations of law, of which the court refused the first, third, fourth, sixth, seventh and eighth.

The declarations, as asked, follow:

“1. Before plaintiff can recover in this action, he must prove that the consideration for which he parted with his property has failed, in whole or in part. Overruled.

“ 2. This being an action to recover personal property, upon a rescission of a contract of sale or barter, before the plaintiff can recover, he must prove that he offered to return the property to his vendor, and place him in the same position he was before the sale, and, unless this is proven, the verdict should be for defendant. Made.

<£ S. If the defendant was authorized by Pierce, the mortgagee, to trade the horse, and Pierce ratified and consented to the trade with plaintiff, plaintiff can not recover. Overruled.

4. Before plaintiff' can recover in this action, he must show that there is an outstanding claim against the property received by him, of superior title to that given him by defendant, and that his right and title to said property is threatened by such title. Overruled.

5. If plaintiff claims to have made an offer of return of the property by an agent acting for him, he must show that such agent was authorized to act in the matter, and that a knowledge of such agency was brought to the notice of defendant at the time such offer was made. Made.

t£ 6. An offer made on Sunday to return the property was illegal and void, and is not such as would bind defendant. Overruled.

1. Rescinding} Contract:

Sor fraud of vendor.

2. Fraud:

Selling mortgaged property.

“ 7. If plaintiff received, all he bargained for from defendant, holds the same now, and.no one has claimed or does claim an interest in what he received, he can not recover in this action. Overruled.

“ 8. If plaintiff asked defendant if there was a mortgage on the horse, and defendant informed him that he would see that he should not have any trouble with his title to the property, it was no fraud, and plaintiff can not complain of his action, even if there was a mortgage filed of record.” Overruled.

The grounds of the motion for a new trial were:

That the court erred in making the first, second and third declarations of law moved for plaintiff.

And in refusing to make the first, third, fourth, sixth, seventh and eighth declaration of law asked for defendant.

And that the finding of the court was contrary to law and the evidence.

I.' Where the vendor is guilty of fraudulent misrepresentation, or concealment as to tbe essential -inducement to the contract, the vendee .'would, on discovery thereof, have a right to rescind the contract, although no special agreement were contained therein authorizing him to rescind ; for fraud, in all cases, gives the party defrauded a right utterly to reject the contract. Story on Sales, sec. 420; Hilliard on Sales, p. 326; Strayhorn v. Giles, 22 Ark., 521.

But if the vendee elect to rescind the contract, on discovering the fraud, he must offer to do so within a reasonable time, lb.

If a vendor sells goods which he knows to be mortgaged, without giving information thereof to the purchaser, the sale would be considered as fraudulent. (Story on Sales, sec. 181; Arnott v. Biscoe, 2 Vesey, 95.) Appellant should have made known to appellee, when he swapped him the pony for the mule, that the pony was under mortgage to Pierce. Pair, honest dealing required this. The suppression of the truth is equivalent to falsehood, when the vendor is under obligation, as he was in this case, to disclose the truth. Hilliard on Sales, p. 326.

3-__. ing'tfu?by vendor.

If appellant had frankly told appellee at the time of the swap, that the pony was mortgaged to Pierce, as he should have done, but that he had permission from Piei’ce to trade the pony, and appellee had thought proper to make the exchange of animals after being so informed, then there would have been no fraud in the transaction on the part of appellant.

The first and third declarations of law made by the court below, on behalf of the plaintiff, were substantially correct. The second was abstract. There was no attempt to vary th§ terms of the written contract between appellant and Pierce by a cotemporaneous parol agreement, but there was proof that after the mortgage had been executed Pierce gave appellant permission to trade the pony covered by the mortgage. If this had been made known to appellee at the time of the swap, he might not have been willing to take the risk of enforcirg the agreement between appellant and Pierce. If Pierce had been present when the swap was made, and consented to it, he might have been estopped from afterwards setting up title to the pony, under the mortgage, as against appellee. His subsequent ratification of the swap, and release of the pony from the mortgage, perfected the title of appellee, but we shall presently see whether that defeated his right to rescind, on discovery of the fraud, or his cause of action.

II. The writ of replevin (order of delivery as it is called in the Code) was issued on the twenty-fourth day of September, 1877, and on the same day the constable seized the mule, and appellant Executed a bond to retain possession of it. On the return day, appellant moved to quash the summons, on the ground that it had 'not been served on him, and the justice of the peace ordered an alias summons, which-appears to have been issued on the fourth of October, 1877, and returned served.

In the meantime, on the twenty-fifth of September, appellant procured Pierce to release the pony from the mortgage and take a mortgage upon the mule.

Appellant could not defeat appellee’s right of action for the mule by procuring the pony to be released from the mortgage after the commencement of the suit.

Moreover, fraud avoids a contract ab initio, and the party committing it can take no advantage of it and acquire no-right or interest by means thereof. Strayhorn v. Giles, 22 Ark., 517.

If, therefore, appellant perpetrated a fraud on appellee by concealing, or failing to make known to him, the fact that the pony was under a mortgage when the swap was-made, appellee had the right, on discovering the fraud, to treat the contract as void, and to rescind it by returning, or offering to return, the pony, and demanding his mule, and appellant could not defeat his right to rescind by after-wards procuring the release of the pony from the mortgage.

The court did not, therefore, err in refusing to make the first, third, fourth, seventh and eighth declarations of law moved for appellant.

But the court erred in refusing to make the sixth declaration of law moved for appellant.

Sunday is not a business day, and appellee having made-no other offer to return the pony to appellant and take-back his mule, than that made on Sunday, the offer was-illegal, null and void. (Tucker v. West et al., 29 Ark., 387.) And appellee could not maintain replevin for the mule until he made a valid'off'er to return the pony.

Eor this error appellant was entitled to a new trial.

Reversed.


text:
    Barlow vs. Lowder.
    1. Damages: Presumed from violation of right.

    Some damages are always presumed to follow from the violation of any right; and therefore the law will in such cases award nominal damages if none greater be proved.
    2. Same : Exemplary.

    In all cases of malicious injuries and trespasses accompanied with personal insult, or oppressive and cruel conduct, juries are told to give what are called exemplary damages, although the personal injury, measured by a pecuniary standard, may be but small.

      3. Same : Prospective.

    In all cases of serious personal injuries, the jury should take into consideration, in assessing the damages, the probable future injury that will result to the plaintiff from the act of violence perpetrated by the defendant, so as to embrace all the injurious consequences of the wrongful act, unknown as well as known, future as well as past.
    4. Same : Proof of, to what confined.

    In the proof of damages both parties must be confined to the principal transactions complained of and the attendant circumstances and natural results.
    5. Same : B.odily suffering, an element of.

    In trespass for personal injuries to the plaintiff, bodily suffering is an element of damages.
    APPEAL from Pope Circuit Court.
    Hon. ~W. W. Mansfield, Circuit Judge.

      Fletcher, for appellant.

      fromXitright!s 0
   English, C. J.

This was an action .of trespass met armis. brought in the circuit court of Pope county, by William R. Lowder against R. A. Barlow; the complaint alleging in substance, that on the eleventh day of November, 1877,. the defendant unlawfully assaulted, beat, bruised and cut plaintiff with á stick and "a knife, laying plaintiff’s damages at $1,000.

The answer was treated as putting in issue the allegations of the complaint, and there was a trial by jury, and verdict and judgment in favor of -plaintiff for $180 damages.

Defendant moved for a new trial, on the grounds that the verdict was not sustained by the evidence ; that it was contrary to the instructions of the court; and that the court erred in giving six instructions moved for plaintiff.

The motion was overruled, and defendant took a bill of exceptions and appealed.

The court gave all the instructions asked for appellant; there was evidence to warrant a verdict upon the facts for appellee, the jury being the judges of the weight of evidence, and it was not made ground of the motion for a new trial that the damages awarded were excessive.

The first instruction given for appellee follows:

“ If the jury find from the evidence that the defendant did unlawfully assault, strike, bruise or cut the plaintiff, with a stick or knife, or both, "they will infer that the plaintiff was thereby damaged unless the defendant prove to the contrary.”

It is doubtless true that some damages are always sumed to follow from the violation of any right, and therefore the law will in such cases award nominal damages, if none greater be proved. (2 Greenleaf Evidence, sec. 254.) But we do not see why the above instruction should have been deemed, necessary or appropriate in this case, where there was evidence conducing to prove that appellee, from being struck on the head with a large stick and cut in the side with a knife by appellant, suffered pain, was disabled for several weeks, lost valuable time, etc.

2.--.-Exemplaw.

Second instruction for appellee :

“If the jury believe from the evidence that there was malice existing on the part of the defendant towards the plaintiff which caused him to commit the assault upon the plaintiff, they will find for the plaintiff' exemplary or vindictive damages.”

Iu actions of tort, the damages are left very much to the 0 J discretion and judgment of the jury; and in all eases of malicious injuries and trespasses accompanied by personal insult, or oppressive and cruel conduct, juries are told to give what are called exemplary damages, although the actual personal injury, measured by a pecuniary standard, may be but small. Addison on Torts (3d ed., by Wolferstan), p. 992; Clark et al. v. Bales, 15 Ark., 452; Sedgwick on Damages (6th ed.), p. 554, etc.

• It would have been better, in view of the province of the jury, to use the words may find, instead of “will find,” as used in the instruction.

Third instruction for appellee:

“ If the jury find for the plaintiff, it will be their duty to consider whether or not the plaintiff is likely to suffer in the future from the effects of the wound received at the hands of defendant, or Frank Woodworth; and if they find in the affirmative, it will be their duty to assess a sum equivalent to the injuries and suffering, as they find from the evidence, which he is likely to suffer in the future, for the plaintiff.”

3.-: Prospective*

4. -: what confined.

In all cases of serious assault the jury should take into . . consiaeratioxi, in assessing damages, the probable future injury that will result to the plaintiff- from the act of violence perpetrated by the defendant; for the damages, when given, are taken to embrace all the injurious consequences of the wrongful act, unknown as well as known, which may arise thereafter, as well as those which have arisen, so that the right of action is satisfied by one recovery. Addison on Torts (supra ed.), p. 586.

There was evidence conducing to prove that when appellant struck appellee with a large stick on the head, the latter clinched him and threw him to the ground, and as they went down, appellant cut appellee in the side with a knife, and called on his step-son, Erank Woodworth, to knock appellee off, and that Woodworth beat him with a stick.

The instruction was right upon the evidence.

Fourth instruction for appellee:

“ In the consideration of this cause, all the evidence of aggravation which occurred for any time longer than a few days prior to the eleventh day of November, 1877, must be excluded by the jury; the jury can, and. must, consider only the evidence connected with the difficulty which occurred on November 11,1877.”

On the same subject, the court gave the following instruction for appellant:

“If the jury find, from the testimony, that the defendant had ''his stock abused by the plaintiff- a few days before the difficulty occurred, and that abuse was made outside of the inclosure of the plaintiff, this is a matter that may go in mitigation of any damages found for the plaintiff”

In the proof of damages, both parties must be confined to the principal transaction complained of, and to its x •* x 1 tendant circumstances and natural results, for these alone are put in issue. 2 Greenleaf Evidence, sec. 268.

5-_. suffering1.13"

Fifth instruction for appellee:

“ If the jury find for the plaintiff, they are allowed greater latitude in assessing damages than they would be in case of contract; they will have a right, if they see proper, on a fair consideration of the evidence, to assess damages under all the different classes of damages, to-wit:

First — Compensatory damages; those allowed as a compensation for the injuries actually received.

Second — General damages; those which necessarily and by implication of law result from the act complained of.

' “ Third — Exemplary damages; those allowed as a punishment for torts committed with fraud, actual malice, or deliberate violence or oppression.

Fourth — Prospective damages; those which continue to exist, or may exist in the future, caused by the act complained of.

’ “Or any one or more of the classes; to add the different sums together, and to find the full amount for the plaintiff.”

To the first and second propositions of this instruction, no particular objections are made, and none appear; and we have above ruled upon the third and fourth propositions. They are all text-book principles, and taken, in substance, from Addison on Torts.

Sixth instruction for appellee:

“If the jury believe, from the evidence, that the plaintiff did suffer bodily pain from the wounds received, it is their duty to assess the damages for the suffering, if they find for plaintiff, as the same may arise from the evidence.”

In trespass for personal injuries to plaintiff, bodily suffering is an element of damages. Greenleaf Evidence, sec. 267.

TJpon the whole record the judgment must be affirmed.


author: Harrison, J.

text:
    Draper vs. Mackey.
    1. Injunction:. Nuisance: Obstructing public road.

    The obstruction, of a public road leading to one’s ferry is a public nuisance, and an injury to him; and he has the right to an injunction against the continuance of the puisance, and to have it removed.
    2. Public Boad : Right of land-owner to obstruct: Compensation.

    The owner of land through which a public road has been laid out, has no right to obstruct it, though no compensation has been made to him. He should have resisted the application for it in the county court, or resorted to proper means to have it vacated; and the facts that the land through which the road was made, including one of the ferry landings, belonged to him, that no compensation had been made to him, and that the owner of the ferry had afterwards changed the location of the ferry, and cut a road from it through the defendant’s land to the new public road,-did not constitute any defense or counter-claim to the suit for injunction to remove the obstruction.
    APPEAL from Clark Circuit Court in Chancery.
    Hon. A. B. Stuart, Circuit Judge.
    'Doby, for appellant.
    Coleman, contra.

   Harrison, J.

This was a suit in equity by James W. Mackey against Laura Draper, to enjoin the defendant from obstructing a public road leading to the plaintiff’s ferry, and to require her to remove, a fence she had built across the road.

The complaint, which was filed on the twenty-fifth day of October, 1878, was in substance, that the road, which is from the lower end of the Johnston field to the Oamden and Princeton road, near the Draper place, and crosses the Ouachita river at the Draper place, was laid out and opened as a public road in pursuance of an order of the county court, made at the Januaiy term, 1877; that the court, at the same term, granted to the plaintiff’ the privilege of keeping a public ferry on the river where the road crosses the same, and a license w;as, and had been since, regularly granted him; and the defendant, in 1878, by written notices.put up in three public places in the vicinity, declared her intention of closing the road; and she had, thereafter, in the month of October, actually built a fence across it, thereby stopping the travel on the road, to the injury and detriment of the plaintiff.

Certified copies of the orders of the county court, in relation to the laying out and opening of the road and the establishing of the ferry, were filed as exhibits with the complaint.

The defendant, in her answer, denied none of the allegations of the complaint, but averred that the proceedings of the county court in the matter of the road were not in conformity with the provisions of the statute, but in what particular or respect was n.ot stated; that the landing of the ferry on the east side of the river, and the land through which the road runs from the river on that side to the intersection with the Oamden and Princeton road, belonged to the estate of James Draper, deceased, of which she was administratrix, and no compensation had been made therefor ; and that the plaintiff' had moved the landing of his ferry to another place on the land, about one hundred yards from the crossing of the road, from which to the public roacl he had opéned a new road, and through the land of said estate.

And she made her answer,a counter-claim, and prayed that the road laid out and established by the county court be vacated.

The cause was heard upon the complaint, exhibits and answer, and the court enjoined the defendant from obstructing or closing the road, and ordered the removal of the fence built across it, and dismissed her counter-claim. The defendant appealed.

The pleadings are very vague and defective, but a cause of action is set forth in the complaint.

The obstruction of the public road.leading to the plaintiff’s ferry was a public nuisance and an injury to him specially; and his right to an injunction against the continuance of such nuisance is unquestionable. 2 Sto. Eq. Jur., sec. 924, (a); High on Inj., secs. 521, 522.

And an injunction to remove a nuisance may be granted. Bisp. Eq., sec. 400.

If the defendant had been opposed to opening the road -through the land, she should have resisted the application for it in the county court, or, if aggrieved by it, may resort to proper means to have it vacated ; but she certainly has not now, though no compensation has been made, the right to obstruct it.

The fact that the plaintiff had changed the landing and opened a new road from it, of which there was no proof, if a cause of action against him, was no defense to this suit, nor did it and the other matters alleged in the answer constitute a ground of counter-claim against the plaintiff.

The decree is affirmed.


text:
    Wycough vs. Ford and Reed.
    Practice in Supreme Court : Bill of exceptions: Evidence on motion in circuit court.

    When the evidence adduced upon the hearing of a motion in the circuit court is not preserved by bill of exceptions, the ruling of the court will be sustained' if the facts stated in the motion will warrant it.
    APPEAL from Independence Circuit Court.
    --, Circuit Judge.

      Bose, for appellant.
   Harrison, J.

This was an action of ejectment by M* A. Wycough against William Ford and Isaac N. Reed, for a tract of eighty acres of land.

The defendant, Reed, filed a motion to dismiss the action, setting forth that the land had been purchased at a sale for the non-payment of taxes, in 1866, by William A. Binns, under whom he, through several conveyances claimed that valuable improvements had been made upon it since and he, and those under whom he claimed, had regularly paid the taxes; and that the plaintiff had not, before the commencement of his action, filed'in the office of the clerk of the court an affidavit that he had tendered to said. Binns, his agent or legal representative, the amount of taxes and costs paid on account thereof, with interest an the same at the rate of 100 per centum upon the-amount first paid therefor, and 25 per centum per annum upon all costs and taxes paid upon the land thereafter from the time said costs and taxes were paid, and the full value of all improvements of whatever kind and description made thereon, and that the same had been refused.

The court sustained the motion and dismissed the action at the cost of the plaintiff.

The plaintiff appealed.

Without taking’a bill of exceptions and bringing the evidence produced upon the hearing of the motion, upon the record, the plaintiff, it seems, asked that an exception to the ruling of the court be noted upon the record; the evidence is not, therefore, before us, and we must presume that it was sufficient to sustain the motion.

It is only when the grounds of objection fully and necessarily appear in the entry, that an exception may be taken simply by noting the same upon the record; as in the case of au exception to the ruling of the court upon a motion to change the proceedings from law to equity, or from equity to law, and transfer the action to the proper docket, or upon amotion to make a pleading more specific and certain ; and it is very seldom that an exception so taken will dispense with a bill of exceptions, or answer any purpose ■whatever.

The motion was in accordance with, sections 2267 and 2268 Gantt’s Digest, and the facts set forth, if proven or admitted, are, as has several times been held, sufficient cause for a dismissal of the action. Graig v. Flanagin, 21 Ark., 319; Pope v. Macon, 28 Ark., 644; Haney v. Cole, 28 Ark., 299; Spain v. Johnson, 31 Ark., 315.

The judgment is affirmed.


text:
    Barnett vs. The State.
    1. Summons: Service of.

    The return of service of a summons hy leaving a copy with the defendant’s wife, must show" that she was over fifteen years of age.

      2. Marriage : Lawful age for.

    By statute a female may marry at fourteen years of age; but the marriage of a female at the age of twelve years, in a state where the common law rule prevails, would be recognized as valid here.
    3. Appeal to Supreme Court: On judgment by default.

    A judgment by default in the circuit court, where there has been no valid service of summons upon the defendant, may be appealed to the supreme court, without any motion to correct it in the circuit court.
    1. Summons: Service of.
    ERROR to Bradley Circuit Court.
    Hon. T. E. Sorrells, Circuit Judge.

      Met. L. Jones, for plaintiff in error.

      Attorney General, contra.

   English, C. J.

It appears from the transcript returned with the writ of error in this case, that at the September term, 1878, of the circuit court of Bradley county, Samuel Young, who had given a bail-bond, with John R. Barnett as surety, for his appearance at that term of the court, to answer a charge of grand larceny, failed to appear; a forfeiture was entered and a summons ordered for Barnett to appear at the next term and show cause, etc. A summons was accordingly issued, and return served, and at the March term, 1879, Barnett making default, final judgment was entered against him for the amount of ¿the penalty of the bail-bond, and he afterwards brought error.

I. The summons issued upon the forfeiture appears to be in good form; the return made upon it by the sheriff is as follows : “ I have, this, twenty-eighth day of January, Á. D. 1879, duly served the within, by leaving a true copy of the above summons at the residence and with the wife of the said J. R. Barnett, as herein commanded.

‘*C. C. Gunnaway, Sheriff.

“ By C. C. Robertson, D. S.”

2. Marriage:

Lawful age for.*

A summons upon the forfeiture of a bail-bond must be executed as in civil actions. Gantt’s Digest, sec. 1743.

In such actions the service must be, first, by delivering •to defendant a copy of the summons; or, second, if he refuses to receive it, by offering a copy thereof to him; or third, by leaving a copy of such summons at the usual place o£ abode of the defendant, with some person who is a member of his family, over the age of fifteen years. Gantt’s Digest, sec. 4514.

" The above return was an attempt to show a service of the summons under the third of the statute modes. If the words, uat the residence,” used in the return, may be treated as equivalent to the words, “ at the usual place of abode,” employed in the statute, the return fails to show that the wife, with whom a copy of the writ was left, was over fifteen years of age. It can not be legally assumed that because she was a wife she was over that age. By our statute a female may become a wife at the age of fourteen years (Gantt’s Digest, sec. 4172); and the marriage of a female at twelve years of age, occurring in a state where the common law rule prevails, would be recognized by our courts as valid, on the removal of the parties into this state. Reeves’ Dom. Rel., 200.

In Bruce et al. v. Arrington, 22 Ark., 362, the return stated that a copy of the writ was left with defendant’s wife, a member of his family, over the age of fourteen years, and, on error, the return was held bad and the judgment was reversed, because it did not state that the person with whom the copy of the writ was left was over fifteen years of age.

This decision may seem rigid, but statutes providing for a constructive service of writs of summons have received a strict construction in a series of decisions of this court. See Rose’s Digest, pp. 848, 51.

3. Appeal to Supreme -Court:

From judgment by default. Motion to correct in circuit court.

II. The judgment was on default, and plaintiff made no motion to set it aside before he brought error.

“A judgment or final order shall not be reversed for an error which can be corrected on motion in the inferior courts, until such motion has been made there and overruled.” Gantt’s Digest, sec. 1100.

This is a copy of section 903 of the civil code of Kentucky, and the court of appeals of that state has reversed a number of cases, in which judgments were rendered on default, where there was no valid service of process, and where motions were not made in the inferior pourts to set asidfe the judgments before appeal.

See Ruby v. Grace, 2 DuVall, 540; Long & Co. v. Montgomery, 6 Bush., 394; Hale v. Commonwealth, 8 Bush, 378. And we have followed the Kentucky practice. Files v. Robinson & Co., 30 Ark., 487; Cairo and F. R. R. Co. v. Trout, 32 Ark., 18; Martin et al. v Goodwin Co., 34 Ark., 682.

"We can not assume, upon the record before us in this case, that plaintiff in error was served with process, and he did not appear to the action. He may have had no knowledge of the judgment until after the expiration of the term of the court at which it was rendered.

It is unreasonable to apply .the provision of the Code above copied, in cases where the defendant is not served with process. If actually served with process, though the writ or return be defective, he should move to quash, or to set aside the judgment, if rendered on default, before appealing or bringing error, as heretofore held in the cases above cited.

Where there is service of process, or appearance, and jurisdiction of the subject-matter, tbe above provision of the Code should be applied in the practice here, as construed in Badgett v. Jordan, 32 Ark., 154.

Reversed, and on the remanding of the cause for further proceedings, plaintiff must be regarded as in court by reason of his having brought error.


author: Eakin, J.

text:
    Hickman et al. vs. Kempner.
    1. Tax Deeds : Only prima facie evidence: Mistakes in, correctable.

    Recitals in a tax-deed are only prima facie evidence that all necessary steps were taken; and may be corrected in equity for fraud or mistake, or denied and shown to be false.
    2. Same: Recital of time of receiving tax-books, how contradicted.

    The recital in a fax-deed, of the date of the collector’s receipt of the tax-hooks, may be contradicted by his receipt to the clerk for them, showing a different date.
    3. Tax Sales : Premature filing of delinquent list avoids.

    The filing of the delinquent list in the county clerk's office before the'expiration of the time allowed for the payment bf taxes, is premature,and avoids the sale.
    4. Same : Payment on one tract and receipt for another.

    Where the owner intends to pay the taxes on one tract, and so informs the collector, and pays him the proper amount, and the collector by mistake, gives a receipt for a different tract, and the one actually paid on is returned delinquent and sold for the taxes, the owner may show the actual payment against the purchaser at tax sale.
    5. Same : Recital in deed, of wrong name of owner does not vitiate.

    The false recital in a tax-deed that the land was assessed in the name of an unknown owner does not vitiate the sale.
    6. Same : Owner seeking to avoid in equity, must pay lawful taxes.

    Where an owner comes into equity to avoid an illegal sale of his land for taxes, he must tender the taxes actually due, and interest, but not the penalty and cost.

      APPEAL from Saline Circuit Court in Chancery.
    ITon. Jabez M. Smith, Circuit Judge.
    Hose, for appellant.

      Me Galium, contra.

   Eakin, J.

Kempner, claiming under a tax title, sued the tenant of appellants, in ejectment, to recover the lands described. The tenant disclaimed, and appellants, being the real claimants, were allowed to defend. They filed an equitable answer, upon which the cause was transferred to the equity docket, where both parties amended their pleadings. Kempner sought to have corrected an error in the recitals of the clerk’s deed; and appellants, claiming to have paid the taxes upon the lands, and also that the proceedings under which the sale- was made were illegal, sought to have the tax-deed canceled. *

The pleadings and exhibits reveal the following facts:

The lands in 1868 were the property of appellants — the Frerets. They were assessed for that year in the name of “Freret & Bros.,” together with other lands in the same section, and extended by the clerk upon the tax-books; which were placed in the collector’s hands.

The agent of appellants, in paying their taxes, took a receipt from the collector for an amount sufficient to cover the taxes due on this tract, but in specifying the lands upon which taxes were paid, this particular tract was omitted and another tract in the same section inserted, which appellants did not own. It does not appear, however, that this was a clerical error of the collector; or that it may not have been an error in the agent himself in designating the lands upon which he desired to pay. The lands were returned by the collector on the seventh of June, 1869, as delinquent, and a penalty of twenty-five per cent, imposed. Eor the taxes and this penalty the lands were advertised,, and sold on the second of August, when the vendors of Kempner became the purchasers and in due time received a deed from the clerk. It recites that the assessor filed his assessment of lands and town lots in the clerk’s office; that the clerk delivered the tax-books of the county for 1868, with the taxes extended, to the collector, with a warrant for collection, on the first day of February, 1869 ; that the lands in question were assessed in the name of unknown owners ; that the taxes had not been paid; that the collector had returned the tract as delinquent, on the seventh day of June, 1869 ; that it had been duly advertised to be sold on the second day of August, 1869, for the taxes and fifty per cent, penalty with costs; that the land was then sold to the purchasers for sixty-four dollars ; and that the time for redemption had expired.

Tax

incorrect-able.

The-cause was heard upon pleadings and'exhibits without other, proof. The Chancellor found specially that the recital in the clerk’s deed of the penalty of fifty per cent, was an error; that the land was actually sold for twenty-five per cent, penalty; and that the complainants ought to recover.

Without notice of the other issues, he decreed that the deed might be reformed in this respect; that complainants should recover the lands and have a wi’it of possession. Defendants appealed.

An inspection of the exhibits satisfies us that the cellor was correct in finding the recital of “ fifty per cent.” to have been a mistake. It was proper to correct it, upon this point there is no error. Recitals in deeds can not be made conclusive, save as estoppels. In equity they may be corrected, on one hand for fraud or mistake; or may, on the other, be denied and shown to be false.

The deed of the clerk is only prima facie evidence that all necessary steps were taken. C. & F. R. R. Co. v. Parks, 32 Ark., 131.

Defendants allege in their' answer: That the tax-books were placed in the collector’s hands on the nineteenth day of April, 1869, and contend, therefore, that the return of the lands as delinquent on the seventh of June, 1869, was premature; that no penalty attached at that time; and that the subsequent sale for'taxes, penalty and costs, was unauthorized and void. The allegation is sustained by a certified transcript of the collector’s receipt, the date of the filing. Was the return of the land, as delinquent, prematurely made; and, if so, does it avoid the sale ?

The act of February'19, 1869, “ to aid in assessing and collecting taxes for the year 1868,” which act has been several times considered by this court, as well as by the cotemporaneous practice of collectors and clerks, as applying in its general directions to all counties and as materially changingthe policy of the act of July 23, 1868, provided, by section 8, “ that the collector, immediately after receiving the tax-books, should give notice and attend at public places in each township, to receive taxes, at certain times, not to exceed sixty days from the time of receiving the books.”

Section 10 provided that the taxes on all property should be paid within sixty days, or be deemed delinquent, and that a penalty of twenty-five per cent, should be added, to constitute and remain a lien upon the land.

Section 11 allowed the owner of delinquent lands to pay taxes on the same with the accrued penalty, at any time before sale.

2.--:

Recital of time of receiving tax: books, how contradicted.

3. Tax Sales:

Premature filing of deli n q u e n t list avoids.

L--r

Payment on one tract and receipt ior another.

Section 12 provi ded that the collector should make out, and return, a delinquent list of lands within ten days after said period of sixty days, and by section 14 it was made the duty of the clerk, immediately after said return, to. advertise said lands for three weeks, to be sold for the taxes, penalty and costs, on the Monday next succeeding the expiration of the three weeks’ notice.

The collector’s receipt for the tax-books was required to be filed in the clerk’s office, and a duplicate was required to be sent to the auditor. (See see-. 6.) There is exhibited with the answer a certified transcript of the receipt, dated nineteenth of April, 1869, and indorsed by the clerk, “filed April 19, 1869.” This is evidence of more weight than the recital in the deed to the effect that the tax-books were placed in the collector’s hands on the first day of February, 1869, and must in this case, on the pleadings and evidence before us, be taken as fixing the true date. The return was therefore premature by eleven days. It affected the rights of the owners materially, inasmuch as after the return a penalty attached, or was supposed to have done so. The collector, after their return as' delinquent, could not receive the taxes without the penalty. If this return had any effect it was detrimental, and unauthorized, and therefore void. If it was a nullity, as we think, it gave the clerk no authority to advertise and sell the lands. No other-return is shown after the expiration of the sixty days.

¥e do not think it well proven that defendants’ agent meant to pay the taxes on this particular tract, although he probably had it in view to pay taxes on all defendants’ lands which they did not wish to abandon. If he had intended to pay the taxes on this special tract, and had so advised the collector, and given him the proper amount, and the collector had by mistake given him a receipt with the wrong description, the defendants might show the actual payment against a purchaser at tax sale. But the proof on this point fails in certainty. Men sometimes intentionally leave tracts out in paying, and at other times intentionally pay on tracts they do not own. It is not sufficient, against a receipt specifying particular lands, to say that the defendant did not own some of the lands included, and meant to pay only on what he owned, and that he did own other tracts which were assessed in his name. It is the duty of the tax-payer, himself, to appropriate in some manner the money paid, to the particular lands he wishes clear. If he had done that, and inadvertently taken a mistaken receipt, he might complain. Nor is it any substantial objection to the clerk’s deed that it falsely recites that the land was assessed in the name of unknown owners. This did not prejudice defendants, as the sale would, if otherwise correct, have been good, whether assessed in the name of the true owner or as unknown.

in deedUof cíame0 not vitiate,

6' Owner avoid in iSwfui tax-

Inasmuch, however, as the sale was void on account of the premature return of the delinquent list, the Chancellor erred in his decree, so'far as he.grants relief to complainant. The defendants do not offer to pay the actual taxes, and their cross-complaint should have been also dismissed; of they should have been required to amend and make ten-^er the same, with interest, but without penalties or costs of sale.

Let the decree be reversed, and the cause be remanded for such other and further proceedings as to the Chancellor shall seem meet and consistent with this opinion.


text:
    Whittaker, Ex’r, vs. Wright, Ex’x.
    1. Administrator: Power to sell notes due estate in settlement of debts.

    An executor or administrator has no power to sell, assign or dispose of, a note due the testator’s or intestate’s estate, in payment of one creditor, before it is ascertained upon settlement how much is due him, and in exclusion of others; and such sale and transfer vests no title in the transferee.
    2. Same : Must pay taxes on property mortgaged to intestate: Ch'editoi's may pay.

    It is the duty of an executor or administrator to pay the taxes on property mortgaged to the estate, when the mortgagor neglects to pay them; and if he omits to do so, or there is no representative of the estate, a creditor of the estate may pay them, to protect his interest, and be reimbursed out of the proceeds of the sale upon foreclosure of the mortgage.
    3. Executrix: Marriage or norwresidenae abates her suits.

    When an executrix marries or becomes non-resident her powers cease; and her suits can not be further prosecuted until an administrator with ' the will annexed is appointed.
    APPEAL from Chicot Circuit Court.
    Hon. Theodorick F. Sorrells, Circuit Judge.
    Carlton, Wilshire, for appellant.

      Reynolds, for appellee.
   Harrison, J.

This case has been in this court before. See Wright, ex., v. Walker et al., 30 Ark., 44.

The bill was filed on the twentieth of February, 1866, by Joshua M. Craig, administrator with the will annexed ot Junius "W. Craig, against Samuel R. Walker, his wife Eliza Baker "Walker, Clement L. Walker, Richard H. Stuart and Joseph Simmonds, for foreclosure of a mortgage upon 2,400 acres of land, executed to the plaintiff’s testator, on the twenty-second of December, 1856, by the said Samuel R. "Walker, in which his wife joined and relinquished dower, to secure the payment of three promissory notes, for $6,000 each, payable respectively on the sixteenth days of June, 1857, 1858 and 1859.

Samuel R. Walker, the bill alleged, afterwards executed a mortgage on the lands to said Stuart, and on the second of November, 1865, he sold and conveyed them to said Clement L. Walker, who had entered and was then in possession and occupancy of them; and it was further alleged, that the defendant Simmonds, before the sale to Clement L. Walker, recovered a judgment against Samuel R. Walker, which was also a lien on the lands.

Samuel R. Walker, his wife, and Clement L. Walker, answered the bill, but as it is not necessarj'' to an understanding of the case before us; a statement of their answer is omitted.

The letters of administration of Joshua M. Craig were afterwards revoked, and letters testamentary granted to Emma J. Wright, who was, at the October term, 1869, substituted for him as complainant, and she filed a supplemental bill and made Charles H. Carlton a defendant.

The substance of .the supplemental bill was, that the lands were sold in 1867 for taxes and purchased by Carlton, and he obtained a deed for them from the tax collector, and was proceeding to have his title confirmed by a decree of court; that the sale was not made on the day appointed by law for tax sales — but on a different day in pursuance of an order of the county court, which order was made at a term not authorized by law ; and that Carlton was, at the time of his purchase, the counsel and solicitor of the complainant in the suit; that the deed was a cloud upon the title and a hindrance and impediment to the relief sought by the bill; and, offering to refund the money Carlton paid in the purchase, prayed that it should be set aside and canceled.

At the April term, 1870, Carlton answered the supplemental bill. He admitted his purchase of the lands for taxes; the execution of the deed to him by the tax collector, and that he was proceeding to obtain a decree for the confirmation of sale. He also admitted that he was, at the time he purchased, the counsel and solicitor of the complainant ; but he averred that he purchased the lands not for himself, but for the defendant, Stuart, the junior mortgagee; whose counsel and solicitor he also was, and for whom he had brought a suit for foreclosure of his mortgage, and with money furnished by Stuart to protect his interest in the lands, the complainant refusing to pay the taxes herself, giving as a reason for such refusal, that she had assigned the notes and mortgage to John A. Whittaker, executor of Horace E. Walworth, in payment and satisfaction of a debt her testator’s estate owed said Walworth’s estate; and that Stuart was in possession of the lands, and had been for more than two years next before the filing of the supplemental bill, and the complainant, her testator or her predecessor, had not been seized or possessed of them within that time.

At the same term, John A. Whittaker, executor of Horace E. Walworth, claiming to be the owner and holder of the notes and mortgages, and also to have purchased an undivided half interest in the lands from Stuart, was, upon his application, made a party, and he filed a demurrer to the supplemental bill.

At the April term, 1873, without any disposition having been made of Whittaker’s demurrer, upon the pleadings between the other parties, the cause was heard, and the bill was dismissed for want of equity.

The complainant appealed.

Carlton’s purchase of the lands at tax-sale-was, upon the hearing of the appeal, held invalid, and the decree was reversed and the cause remanded, with leave to Whittaker to file a cross-bill.

Upon the return of the cause to the court below, the demurrer of Whittaker was withdrawn, and he filed an answer which he made a cross-bill.

He admitted all the allegations of the original bill, and adopted Carlton’s answer to the supplemental bill. ■ •

He averred that the complainant had married and removed from the state, and so had ceased to be executrix ; and that she had previously, on the fifteenth day of December, 1867, entered into an agreement in writing with certain of the principal creditors of the estate, that the whole assets of the estate should be placed in the hands of a receiver, and to retire' from the administration ; in accordance with which agreement, and upon her application, a receiver was appointed, and he had taken possession and charge of the same, and her connection with the estate, and authority in respect to it, had from that time ceased.

The complainant, he averred, while she was executrix, in the latter part of 1867, sold andtransferred to him the notes and mortgage in payment and satisfaction of a debt of about an equal amount with the notes which the estate of Craig owed the estate of Walworth; that the notes and mortgages were, when this arrangement was made, in the ■ hands of the complainant’s solicitors, who were his attorneys also, and had charge of the claim against Craig’s estate; and it was the understanding that they should thereafter hold them as his property; and the suit should be prosecuted, for Ms benefit; and that, considering tbe debt of Craig’s estate to Mm paid, he had taken no further steps towards its collection. He also claimed to have purchased from Stuart an undivided half interest in the lands, and averred that he had since regularly paid the taxes on them.

4. Administrator:

Power to sell notes of estate to settle debts

Must pay taxes on pr o p e r t y mortgaged to estate, "When creditors may pay.

And he prayed for a foreclosure of the mortgage in Ms own favor and behalf; or, if that might not be done, for a decree for the taxes he had paid, and that the same be declared a lien on the lands, and that they be sold to satisfy the same.

The complainant filed a motion to strike out so much of the answer as did not relate to the sale and transfer of the notes and mortgage, and a demurrer to .the cross-bill, as not stating facts sufficient to constitute a cause of action.

The court sustained both the motion and the demurrer, and upon final hearing, decreed a foreclosure of the mortgage as prayed in the original bill.

Whittaker appealed.

It was decided by this court in Payne, Huntington & Co. v. Flournoy, 29 Ark., 500, that an executor or administrator has no power to sell, assign or dispose of a note or debt due the testator or intestate’s estate in payment of one creditor before it is, upon settlement, ascertained how much is due him, and in exclusion of others. The property in the notes and mortgage did not, therefore, pass to Whittaker by the agreement to transfer them to him in satisfaction of the debt to Walworth’s estate.

But if the mortgagor or owner of the lands neglected to pay the taxes, it was clearly the duty of the executrix to pay them, and if she omitted to do so, or if, as was alleged, theve was no representative of the estate, any creditor might have paid them to protect his interest, for the mortgage was a trust for the creditors and legatees, or devisees; and the amount so paid for its preservation, he would be entitled to have refunded him, upon the foreclosure, out of the proceeds of the sale. 2 Sto. Eq. Jur., secs. 1234, 1239; Summers and Wife v. Howard, 33 Ark., 490; West and Wife v. Waddill, ib., 575.

3. Amuras-

Marriage or non-resibites11 he? smts.

If, however, the appellant has been in possession of the lands and received the rents and profits of them, he would not be entitled to have the taxes refunded, or not more than they may have exceeded the rents and profits, for he has been already reimbursed.

But it does not appear in the record that he has been in possession of any part of the lands, but, on the contrary, Stuart was alleged, in Carlton’s answer, which the appellant adopted as part of his own, to be in possession.

We, therefore, think the court erred in sustaining the demurrer to the appellant’s cross-bill.

It also erred in striking out of his answer the averment that the complainant had married and removed from the state, and so had ceased to be executrix. Neither a married woman nor a non-resident of the state

can be an executrix or administrator. Gantt’s Digest, secs. 9, 17, 35.

If the averment was true, the complainant had no authority to further prosecute the suit, and though the assets of the estate were in the hands of a receiver, as alleged, there was no representative of the estate who might prosecute it; and it could not be further prosecuted, until an administrator, with the will annexed, was appointed.

The decree is reversed, and the cause remanded, that an administrator, with the will annexed of Junius W. Craig, may be appointed, if the complainant has ceased to be executrix-, and for further proceedings.