author: Compton, ,1.

text:
    Atkins, admx., v. Rison, assignee.

    As a general rule, time is not deemed, in equity, to be of the essence of the contract — as where a party sells and conveys land and by the deed reserves a lien upon the land, to be enforced within a specified time, for the unpaid purchase money.
    But if time be considered as of the essence of the contract, the party in default will be relieved in equity, where he shows sufficient excuse for nonperformance, as that he was prevented from performance in consequence of civil war until after the time for performance had elapsed.

      Appeal from Jefferson Circuit Court in Chancery.

    Hon. William M. Harrison, Circuit Judge.
    English and McCracken, for appellant.
    The appellant having shown just and reasonable excuses, arising from unavoidable circumstances and casualties, for not filing her bill to enforce the vendor’s lien, within the period limited by the deed, is not barred in a court of equity. 8 Lead. Cases in Equity, Hare $ Wal., top page, 174-5, et seq.; Taylor v. Longxoorth, 14 'Peters P., 174-5; 13 Condensed {Curtis), 416; 3 Lead. Gases in Equity, Hare Wal., 78, and cases cited; ib., 81, and cases cited; Benedict v. Lynch, 1 J. Ch. P., 370, and cases cited; Lloyd v. Cottell, 4 Pro-, 569; Adams’ Equity, p. {in brackets) 89, and cases cited; Taylor on Jjandlord and Tenant, see. 496.

    Watkins & Rose, for appellee.
    The express contract in regard to the lien excludes all idea of, and is a waiver of, an implied lien. Brown v. Gilman, 4 Wheat, 356; Phillips v. Bander son, 1 8m. $ Mar., Chy. Pep., J/S3.

    That time is of the essence of the contract here is plain; and, where the intention of the parties to a contract to make the time of performance essential, clearly appears, equity will not relieve against a failure to perform at the day. 2 JEdw., Ghy., 78. Time may be made the essence of the contract by express stipulation of the parties. See Parsons mi Con., 542,544, note s; 4 Pallas, 345; 4 Pende, 37.

    The circumstances, as set up in this case, do not suspend the running of the statute of limitations. Bennett v. Worthington, 24 Ark., 433. There is no more ground for the interference of a court of equity in this case than where the consequences of a contract are unfavorable to a party, The unexpected change of market values might as well absolve one from the terms of a contract as the occurrence of an unexpected civil war. Time may be made the essence of the contract by introducing conditional words into the bargain. Broom’s Legal Maxims, 541.

   Compton, ,1.

This was a bill to enforce a vendor’s lien. The material facts disclosed by the bill and amendment, and not denied by the answer, are the following:

Henry Atkins sold, and by deed bearing date the 7th of May, 1859, conveyed, to Robert W. Johnson 420 acres of land, with the appurtenances, situate in Jefferson county, for the sxim of $16,800, to be paid at the time recited in the deed. After the usual form of conveyance, with covenants of general warranty, the deed contains, among other reservations, the following, to wit: “ A reservation of a lien upon said lands (to be enforced within six years from the date hereof, or stand for nought thereafter) to secure the said purchase money ($16,800), which is to be paid by the said R. ~W. Johnson, his heirs or assigns, after the following manner, to wit: On the 1st of January, 1860, four thousand eight hundred dollars; 2d, on the 1st of January, 1861, four thousand dollars, to hear six per cent, interest from the 1st of January, 1860; and 3d, on the 1st of January, 1862, four thousand dollars, to hear like interest of six per cent, from same time, January 1st, 1860; and 4th, on the 1st January, 1863, four thousand dollars, to bear like interest of six per cent, per annum from the same period of time, January 1st, 1860 — this being the fourth and last installment of purchase money aforesaid.” Johnson executed to Atkins four promissory notes for the purchase money, dated, falling due, .and for the several sums, as mentioned in the deed. On the 30th of April, 1862, and before the maturity of the last' note, Atkins died, and letters of administration on his estate were granted to his widow, the complainant. In consequence of the occupation of Pine Bluff, the county site of Jefferson county, by the United States military forces, during the late civil war, from September, 1863, until hostilities ceased, the complainant was prevented from taking steps to enforce the lien reserved for the purchase money, until after the time limited for its enforcement had elapsed.

The greater part of the purchase money remaining due and unpaid, the complainant filed her bill, and process was issued, returnable to the first term of the circuit court held after the close of the war. On the final hearing, the court below was of opinion that the lion was lost, and dismissed the bill for want of equity.

The counsel for the appellant admit that more than six years elapsed from the date of the deed to the time of the filing of the bill; but they insist that the pleadings and public history of the period show such unavoidable excuse for the delay as to prevent, in a court of equity, the defeat of the lien of the vendor, by the mere lapse of the period within which it was to be enforced.

As a general rule, time is not deemed, in equity, to be of the essence of the contract, unless the parties have expressly so treated it, or it necessarily results from the nature and circumstances of the contract; 2 Story’s Eq., sec. 776; and, even in cases where it clearly appears to have been the intention of the parties to make time of the essence of the contract, equity will relieve the party in default from a forfeiture, if he shows a sufficient excuse for non-performance at the time specified. Benedict v. Lynch, 1 John., ch. 370; Smith v. Brown, 5 Gillm., 309; Potter v. Tuttle, 22 Con., 512; Wells v. Smith, 2 Edw., ch. 84.

That time is of the essence of the contract, in this case, is a proposition which, wo think, can not ho maintained upon principle, or by authority. Tt. must be admitted that if, in addition to the limitation as to the enforcement of the lien, there was also a provision in the contract to the effect that, if Johnson should fail to make the last payment on the day specified, he should forfeit all the previous payments, and re-convey to Atkins, time would not, on a bill by Johnson for relief against the forfeiture, be considered as of the essence of the contract.; for, as will he seen, it has been expressly so decided, in a similar case. Why, then, should time he considered essential in a suit by Atkins for like relief? In the ease put for illustration, would it not be as inequitable to visit Atkins with the loss of his lien — -the only means perhaps of realizing the purchase money — as it would to impose upon Johnson the loss of his land, after having paid all except the last installment of the purchase money? The remedy, if it exists at all, should ho mutual and reciprocal, as well for the one party as for the other. In Egerton v. Peckham, 11 Paige, Ch. R., 352, the owner of a lot of land agreed to sell it for $300 — one-third to be paid, down, and the residue in one and two years; the agreement contained a clause that, if purchaser should make default in either of the payments, the vendor should be discharged from; the contract; that the purchaser should forfeit previous payments, and should deliver up peaceable possession of the premises. The vendee went into possession, made improvements, and paid the first two installments of the purchase money at the time specified; and then assigned his contract to the complainant, who took possession of the premises, but did not make the last payment at the day appointed, though he tendered the-money a few days afterwards, and demanded a conveyance, which the vendor refused to make, and insisted on the forfeiture. Held: that time was not of the essence of the contract,. and that the complainant was entitled to a specific performance. And, in Dumond v. Sharts, 2 Paige, 182, an exchange of farms having been made, and the one party having paid the other at a stipulated rate per acre for the estimated difference in quantity between the two farms, the parties executed a writing, by ■which it was agreed that if, upon a subsequent survey of the farms, any error should be discovered as to the number of acres, such error should be corrected, provided the correction teas made on or before the first of April then next ensuing. The farms were subsequently surveyed, and an error discovered, but the survey was not made until after the time limited for the correction of the error had expired.. On bill filed to obtain payment of the difference between the estimated quantity of land in the respective farms and the actual quantity as ascertained by the survey, the Chancellor held that the time mentioned in the written agreement was. not of the essence of the contract, and that the complainant was entitled to recover. The same principle was decided in Jones v. Robins, 29 Maine, 351. These ; cases would seem to be decisive of the question. But another ground may be assumed, which strengthens the conclusion that time can not be regarded as essential in the case before us. The question as to the materiality of time, in equity, has most frequently arisen in cases for specific performance of contracts for the sale of real estate. Here, however, the only object of the contract was to secure payment of the purchase money, not to convey the land — for that was done by the deed. The contract was the same, in effect, as if Johnson, after having received the deed from Atkins, had executed a mortgage back to secure the purchase money. The transaction between the parties may, therefore, be regarded as analogous to a mortgage, whore a court of equity, looking at the substance of things, will relieve the party in default as to time, no matter what the stipulations may be. This view was pressed upon the court, arguendo, in Wells v. Smith, supra; and the Vice Chancellor said, in response: “Why did not the parties put the transaction in the form of a conveyance of the title and legal estate, and of a mortgage back, by executing tlie proper instruments for the purpose, provided they intended it should have such an effect ? Now, this they have not done; but, on the contrary, have left the whole to rest in covenant. The title did not pass; and I am not at liberty to suppose the parties intended it should have passed, or that any effect was to be given to the contract beyond the plain import of its terms, or inconsistent'with the rules of law. The great difficulty, however, in giving to the transaction the effect of a mortgage, and regarding the parties as mortgagee and mortgagor, is, that no legal title or estate has ever vested in the complainant; for, as before remarked, the contract amounted to an agreement to convey, and that, too, upon a condition, and not a conveyance.” It will be perceived that the controlling reason assigned by the Vice Chancellor to prove the unsoundness of the argument in that ease, makes it sound in this; for here, as has been seen, the .transaction was not merely an agreement to convey, resting alone in covenant, but, on the contrary, the title and legal estate passed to Johnson.

But, even if the contract wore such as that time could be considered as an essential ingredient of it, still, according to the authorities first above cited, the appellant would be entitled to the relief she seeks; because the excuse shown for failing to enforce the lien before the time limited for its enforcement had passed, is ample, being an accident beyond her control, and one which a court of equity will recognize. Hatchett v. Pattle, 6 Mad., ch. 4; 1 Story's Eq., sec. 93.

Let the decree bo reversed, and the cause remanded, with instructions to the court below to ascertain what amount of purchase money remains unpaid, and to enter such decree and make all such orders as may be necessary to the enforcement of the lien for the residue of the purchase money. ■


source: Caselaw Access Project

author: Clendenin, J.

license: Public Domain

text:
    Eaton & Betterton v. Pennywit.
    In a suit by attachment to subject the property of non-resident debtors to the payment of their debts, the courts have jurisdiction over the property, within the State, sought to be subjected to such debts, though it bo a steamboat; the action being in personam, and not in rem, against the boat.
    Where a non-resident defendant, not served with process to appear, appears by attorney, he is bound by the judgment; but in a suit upon such judgment in a sister State, he may successfully defend by showing- that the attorney who entered an appearance for him had no authority to do so.
    Where in a suit by attachment on property alleged to belong to several nonresidents, upon one of whom there was no personal service of process, but aii attorney appeared and contested the case in the name of the defendants; Held: there is a strong- prima facie presumption that such defendant did appear by attorney, which is not rebutted by piroof that he did not reside nor was present in the State during the pendency of the proceedings in court.

      Appeal from Pulaski Circuit Court.

    Hon. Liberty Bartlett, Circuit Judge.
    Watkins & Nose, for appellants.
    Although personal service was had on only one of the defendants, yet all through the record the showing is, that the defendants appeared, by their attorneys, and defended the suit. The only evidence offered by the defendant is, that he was not in Louisiana, so that personal service could be had upon him; but, as he appeared by attorney, the court had as complete jurisdiction over him as if he had been served with notice. The judgment ivas conclusive upon him in Louisiana, and must be so considered here. 11-Ark., 162; 22 Ark., 889. The record, shows the appearance of defendant, and the statement is conclusive upon him. 11 Ark., 868; 2 McLean R., 511; 1 Peters, (J, C., 155. The suit was a personal action, though a steamboat was attached, and not a libel against the boat, as in The Trevor v. Wallace, 4 Wallace, 555. ■

    Garland & Nash, for appellee.
    To bind the defendant in this ease there must be a positive showing that he was served with process, or that he waived that by entering his appearance. 20 Ark.,-12; 16 Ark., £6; 13 Ark., 35. The service by publication bound the property attached, but had no extra territorial folee. Westlake Int. Law, 228 {note z.); Story Conf. of Latos, sec. 5£9; Amer. Lato Reg. for Nov., 1866, p. 1, et. seq. The entry in the record that the defendants came by attorney, meant only those who had given the bond, or, having been served with process, were legally bound to appear, and not to this defendant, who was a nonresident. Murphy v. Williams, 1 Ark., 376; Kimball v. Merrick, 20 Ark., 12. The court had no jurisdiction; this being a suit attaching a steamboat, which the court could not do. The Hinev. Trevor, £ Wallace {U. S.) Rep., 555. -
   Clendenin, J.

The appellants instituted their action, in debt,, based upon the transcript of a judgment rendered in the fourth district court of New Orleans, in the State of Louisiana; sei’vice was had, the defendant appeared and filed two pleas: 1st, nul tielrecord ; and 2d, a special plea, setting up, in substance, “ that at the time when the suit or motion in which the judgment in the declaration in this behalf mentioned was enumerated, and from thence up to and until, and at the time when the said recovery in the said declaration stated was i’endered, as aforesaid, said defendant was a citizen of the State of Arkansas, and resided and was domiciled therein, and was not a resident or citizen of the State of Louisiana, and said defendant was not served with process in said suit, and had no notice whatever of the pendency of the same; and said defendant never appeared to said suit, either in person or by attorney, and no one duly authorized entered his appearance to such suit.” To these pleas issues were regularly made up, and the case submitted to the court, sitting as a jury, who, upon the trial, rejected the transcript of the judgment offered as evidence by the plaintiffs, heard the testimony offered by the defendant, and declared the law as moved for by the defendant, and found upon the issues for the defendant. To which finding of the court and judgment, the plaintiffs excepted, and having incorporated the transcript of the judgment, offered in evidence,1 the testimony heard by the court, and the declarations of law, in their bill of exceptions, which was signed and sealed, they have appealed to this court.

To arrive at a correct understanding of the questions presented in this case, it will be necessary to1 refer to, and give a brief statement of, the cause, originally instituted in Louisiana, which resulted in the judgment there, upon which the ease' now before us originated in this State.

It appears, from the transcript of the record of the fourth district court of New Orleans, that on the 3d day of January, 1862, the appellants, Eaton & Betterton, commenced their action by attachment against Levi Chapman, Ed. C. Carter, ~W. M. Ensign and (the appellee) P. Pennywit, upon a promissory note, for a sum certain; that the writ of attachment was levied upon a steamboat, the Thirty-fifth Parallel, averred in the petition to be the property,of the defendants. Personal service was had on one of the defendants, Levi Chapman, and publication made as to the other defendants, all of the defendants being averred in the petition to be non-residents. After the seizure of the boat and the service upon Chapman, he executed a bond, with security, which was accepted by the sheriff, and the property1 attached released. On the 15th of January, 1862, 'a default was entered against all of the defendants, and oh the same day, the record entry is : “ On motion of Durant & Homer, of counsel for defendants, and on filing their answer, it is ordered that the default entered herein be set aside;” and on the same day is the following entry: “ Now come the defendants, by their attorneys, and deny all and singular the allegations in plaintiffs’ petition contained; wherefore they pray for judgment in their favor for costs, and all further general and equitable relief. Signed, Durant & Homer, attorneys for defendants.” On the 15th January, 1868, the entry is : “ On motion ■of Durant & Homer, of counsel for defendants, it is ordered that this cause be continued indefinitely.” No further entry is made until January 12,1864, when we find the following: ■“ This case came up for trial this day. John Henderson, attorney for plaintiffs, Durant & Homer, attorneys for defendants. Plaintiffs offer in evidence the note sued on and annexed to petition. The evidence adduced in ’this case, having satisfied the court of the justice of plaintiffs’ claim, it is therefore ordered, adjudged and decreed that the plaintiffs, Eaton & Betterton, do have and recover from the defendants in suit, Levi Chapman, Ed. C. Carter, W. M. Ensign and P. Penny-wit, in salido, the sum of six thousand seven hundred and ninety-five dollars and seventy-one cents, with 8 per cent, interest from date of note until paid.”

The consideration of this case must turn upon two principal inquiries: 1st. Had the fourth district court of New Orleans jurisdiction of the person or property of the defendant ? 2d. Did the defendant have such notice as would bind him personally, or did he waive such notice by his appearance ?

The record of the proceedings in Louisiana affirmatively shows that Pennywit, as well as the other defendants in that court, were non-residents, and that Pennywit was not personally served with notice; therefore the court did not have jurisdiction of his person at the commencement of the action, or at the time of the levy of the attachment.

We think there can be no question'that the court in Louisiana, in a personal action, such as this was, instituted in the ■courts of that State, did have jurisdiction over any property of the defendant found there ; and the fact that the property so found was a steamboat, would not in any manner change the rule. It was not a proceeding, in rem against the boat by her name, but was a proceeding in personam, to subject the property of the defendants to the payment of their debts. The proceedings in the case in Louisiana, do not come within the law as held by the Supreme Court of the United States, in the case of The Steamboat Hine v. Trevor, 4 Wallace, 555, as contended for by the counsel of the appellee. In the case referred to, the facts were, that a collision occurred between the steamboats Hiñe and Sunshine, on the Mississippi river, in which the Sunshine was injured. Some time afterwards, the owners of the Sunshine caused the Iline to be seized, while she was in the jurisdiction of the State of Iowa, in a proceeding under the laws of that State, to 'subject her to sale in satisfaction of the damages sustained by their vessel. The cause was tried in the State courts, upon a plea to the jurisdiction; and being decided against the Hine, it was carried to the Supreme .Court of the United States, where it was held, in substance, that State statutes which attempt to confer on State courts a remedy for marine torts, or marine contracts, by proceedings strictly in rem, ai’e void ; because they are in conflict with the act of Congress. The court, upon the point we are considering, say: “It is said that the statute of Iowa may be fairly construed as coming within the clause of the 9th section of the act of 1789, £ which saves to suitors in all cases, the right of a common law remedy, where the common law is competent to give it.’ But the remedy pursued in the Iowa courts, in the case before us, is in no sense a common law remedy. It is a remedy partaking in all the essential features of* an admiralty proceeding in rem. The statute provides that the vessel may be sued, and made defendant, without any proceeding against the owners, or even mentioning their names. That a writ may be issued, and the vessel seized, on filing a petition similar, in substance, to a libel. . That after a notice in the nature of a monition, the vessel may be condemned, and an order made for her sale, if the liability is established for which she is sued.” “ Such,” say the court, “is the general character of the steamboat laws of the western States.”

“ While the proceeding differs thus from a common law remedy, it is also essentially different from what are, in the west, called suits by attachment, and in some of the older States foreign attachments. In these cases there is a suit against a personal defendant by name, and because of inability to serve process on him, on account of non-residence, or for some other reason mentioned in the various statutes allowing attachments to issue, the suit is commenced by a writ directing the proper officer to attach sufficient property of the defendant to answer any judgment which may be rendered against him. This proceeding may be had against an owner or part owner of a vessel, and his interest thus subjected to sale in a common law court of the State.”

“Such actions may, also, be maintained in personam, against a defendant in the common law courts, as the common law gives; all in consistence with the grant"' of admiralty powers in the 9th section of the judiciary act.”

Holding then, as we do, that the fourth district court of New Orleans had jurisdiction of the property of the defendants, and having that jurisdiction could legally proceed to judgment, and having done so, that judgment is valid and binding, so far as the property of the defendant is within the jurisdiction of the court. Having thus disposed of this question, we come to the consideration of the second point of inquiry, which is: The defendant not having had personal service of notice, has he, by his voluntary appearance, waived such notice? or whether the appearance of attorneys, as is shown by the record in this case was made, would bind him personally for the amount of that judgment, in a suit based upon that judgment, instituted in the courts of this State ?

The distinct point made bjr the plea is, that the defendant, Pennywit, did not have notice of the pendency of the suit in Louisiana, and never appeared to said suit, either in person or by attorney, or by any one duly authorized to enter his appearance.

In the case of Barkman v. Hopkins, 11 Ark., 157, this court held that a judgment rendered in Louisiana against a citizen, of Arkansas, without notice, or voluntary appearance to the action, is void, and can not be enforced in the courts of this-State. The court also held that a plea, substantially the same as the one filed in this ease, was a good plea, and offered a good defense to a suit upon a transcript of a judgment from the State of Louisiana, similar, in some respects, to the one we have under consideration^ In that case, the facts averred by the plea were admitted by the demurrer. In this, they are contradicted by the replication and issue; and we must therefore refer to the record, to see whether the plea is sustained by it, or the evidence offered in its support.

The record of the fourth district court of New Orleans, offered in evidence, shows, affirmatively, that after the writ of attachment was levied upon the property of the defendants, and a personal service had upon one of the defendants, Carter, a judgment by default was entered; that the judgment by default was set aside on motion of the defendants, made by their attorneys; that their answer was filed, the case continued indefinitely, and the case set for trial, tried, and the judgment rendered. At every step of the case, during a period of some years, we find it - persistently contested and defended by attorneys, whose names appear on the record, and are signed to the pleadings. These proceedings, we think, raise a strong prima facie presumption,-that the defendant did appear by attorneys and defend the case. How has that presumption been rebutted? We find, in the bill of exceptions, the evidence of Charles Gr. Scott, who testified “that said defendant, from the first day of July, 1861, to the first day of July, 1864, was a citizen of the State of Arkansas, and was a resident therein, and during that time was not in the State of Louisiana which, the record shows, was all the evidence in the cause. Was this evidence sufficient to maintain the averments of the plea ? We think not. The material averment of the plea, was, that the defendant never appeared to the suit, either in person or by attorney, and that no one duly authorized entered his appearances to such suit. Yet the record shows that there was an appearance, by attorneys, and continued until the final judgment.

It was not, as in the case of Kimball, et al., v. Merrick, 20 Ark., 12, the recital of the clerk that “ the defendant appeared,” and where the record afterwards showed that a judgment by default was rendered; and which this court held was not a sufficient record of appearance to give the court jurisdiction of the person of Merrick; but it is as full and complete an appearance of the defendant, by attorneys, as any one we can imagine, under the system of practice which permits attorneys to appear for their clients, without filing any warrant of attorney.

Under the common law, the rule was, as held in 1 Salkeld, 86, that a party injured, or who complained of the unauthorized appe'arance of an attorney, had recourse alone upon the attorney, and could not contradict the record of such appearance; and this rule, slightly modified, was adopted in New York in an early .case. 6 Johnson, 296. But the rule, particularly in regard to a suit upon a judgment from a sister State, is different, and it is now settled, that the j udgment debtor may successfully defend, by showing that he was not served with process or notice, and that the attorney who entered an appearance for him had no authority to do so. See 11 Howard U. S. R., 165; 5 Wendell, 148; 24 Texas, 551, as ruling and well considered cases on this point, and also the case of Barkman v. Hopkins, et al., supra. And this defense, the defendant in this ease set up by his plea'; but in our own opinion, he has wholly failed to prove it; and, therefore, the circuit court erred in finding the issue on the record plea for him.

The court also erred in rejecting the certified transcript of the record of the judgment rendered by the fourth district court of New Orleans. The Constitution of the. United States declares that full faith and credit shall be given, in each State, to the acts, records and judicial proceedings of every other State. Art. 4, sec. 1, Cons. U. S.; and by the act of Congress of May 26, 1790, it is declared “ and the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every court within the United States, as they have by law or usage in the courts of the State from whence the said records are or shall be taken.”

Upon inspection of the transcript offered in evidence in the circuit court, we find it properly authenticated; and having decided that the fourth district court of New Orleans had acquired, by the appearance of the defendant, by attorneys, prima fade jurisdiction of the person of the,defendant, the transcript of the record should have been admitted in evidence. And for these errors, this cause must be reversed, and remanded to the circuit court.


author: Walker, G. J.

text:
    Haskill, ad., v. Sevier, ad., et al.

    The warranty on a sale of slaves in 1860, that they were slaves for life, is not broken by the Constitution of the State, since adopted, emancipating them, so as to relieve the purchaser from paying the purchase money on the plea of failure of consideration.
    The facts that a mortgage was written, signed and filed by the mortgagee in the recorder’s office, for record, and afterwards found in the mortgagee’s possession, is sufficient evidence of delivery.
    A mortgage, which has not been acknowledged as prescribed by the statute, though irregularly recorded, creates no lien on the mortgaged property, as against creditors and subsequent purchasers, but is good as between the parties; and, on breach of the condition of payment, may be enforced against the mortgagee, and, on his death, against his administrator, in preference to his general creditors.

      Appeal from Arkansas Circuit Court in Chancery.

    Hon. William M. Harrison, Circuit Judge.
    Clark, Williams & Martin and Bell &-Carleton, for appellants.
    The mortgage, though unregistered, in pursuance of the statute, was good and valid between the parties. Maine v. Alexander, et al., 9 Ark., 112; 1 Hilliard on Mort., 663; 3 Bland, 126; 11 Ala., 691; 1 Dallas, 430; 4 Kent {3d ed.), 150; 2 Story’s JEq. Jur., 1020,1026. An unregistered mortgage is good at law, and can be enforced in equity against all general creditors, and all who have not acquired a specific lien on, or entered in the mortgaged property. 2 Verm. Bep., 564; 1 Deere Williams, 277; 6 B. Mon., 606; 22 Ala., 190.

    An administrator takes the estate of his intestate subject to the liabilities of his intestate, and can set up no defense that his intestate could not. 2 Story Bep., 555,492; 4 Dev. B., 512; 2 Hill on Mort., 376.

    The subsequent emancipation of the slaves has no legal connection with or bearing upon the question, whether the negroes were in fact slaves for life; for it was only in case the warranty was true that they were slaves for life, that they could be emancipated. It is clear that at the tiihe of the sale they were slaves for life, and, if emancipated by the subsequent action of the Government, the warranty was not broken. •
    Watkins & Rose and Garland & Nash, for appellees.
    As between the parties here — the administrator, heirs and creditors of the mortgagor — the conveyance, which is the foundation of the bill, is of no validity, whatever might have been its force between the parties, the mortgagor and mortgagee. It is of no validity, because it is not acknowledged as the statute requires; and, therefore, it created no lien in favor of the mortgagee. Goidd’s Dig., p. 799; sec. 1. A deed not properly acknowledged is of no effect. 9 Ark., 112; 20 Ark., 190. That the mortgagor deposited the deed ini the recorder’s office, can give it no additional validity, is clear.
    In this case there was a total failure of consideration. The failure of consideration may not have been the fault of the creditor, surely it was not the fault of the mortgagor; and they, therefore, stand in the same position. The vendee, who was not in default, obtained nothing by his purchase ; the vendor obtained payment to the full value of any permanent interest he conveyed, and equity will not enforce payment for a consideration that has entirely failed without fault of the purchaser, and entirely from thfe action of the Government
   Walker, G. J.

Langdon C. Haskill, as the administrator of the estate of Augustus M. Smith, deceased, filed his bill, in the circuit court of Arkansas county, against the heirs and administrator of the estate of John A. Jordan, deceased, and set forth therein, substantially, the following facts : That Augustus M. Smith, on the 8th day of March, 1860, sold to John A. Jordan, eighty-five negro slaves; for the price and consideration of eighty thousand dollars, and executed to him a bill of sale for said negroes, in which he warranted that he had a good title to them; that they were sound in mind and body, and were slaves for life. Jordan paid to Smith twenty thousand dollars at the time of the purchase, and executed to Smith four several writings obligatory, by which he promised to pay him fifteen thousand dollars on the 8th of March, 1861, and a like sum on the same day in the years 1862-’63-’64; and, for the purpose of securing the payment of such writings obligatory, the said Jordan, on the 15th day of March, 1860, executed to Smith his deed of mortgage upon certain lands then owned by Jordan, situate in the county of Arkansas, which deed was filed by the clerk of said county, on the 22d of October, 1860, for record, and was by him recorded, but, as appears, without the acknowledgment of Jordan; that the writing obligatory first due was paid by Jordan in his life-time, leaving the other three obligations unpaid; that Jordan departed this life on the 15th of September, 1861; and that, subsequently, defendant, Sevier, was appointed administrator of his estate; that Augustus M. Smith having also departed this life, the complainant, Haskill, was appointed administrator of his estate. The writings obligatory remaining unpaid were duly authenticated by Haskill, and presented to the administrator of Jordan’s estate for allowance, which was refused, and the complainant filed his bill to foreclose said mortgage, and to subject the lands therein described, to sale, for the payment of such debt.

The defendant, Sevier, in his answer, insists that he stands in the relation of trustee for the heirs, and the several creditors of Jordan; that the deed of mortgage, although executed by Jordan, was never acknowledged by hinq without which it was irregular to enter it of record, and that it created no lien whatever on the estate of Jordan; that if in other respects the claims of Smith are valid, which is- denied, they stand upon the same footing with the claims of the other creditors of Jordan. He insists that the slaves (the consideration for which the writings obligatory were given) were not slaves for life, as they were warranted to be by Smith, but were thereafter, by an amendment of the Constitution of the State of Arkansas, emancipated and set free, and were no longer slaves; by reason whereof the consideration for such writings obligatory had wholly failed.

John C. and Benjamin Nicks, of New Orleans, creditors of Jordan, were, by consent of parties, permitted to intervene and assert their claims as such creditors; and thereupon, they set forth the same, denying that Smith acquired any lien by force of his mortgage against Jordan’s estate. -

By an agreement entered of record between the several parties, the facts set foi'th in the complainant’s bill aind in the defendant’s answers are admitted to be true, and it is also admitted that the deed of mortgage is in the hand writing of Jordan, and was by him delivered to the clerk and recorder of the proper county, on the 22d day of October, 1860, for record.

Upon this state of facts, the case was submitted to the court below, for final hearing; upon consideration of which, a decree was rendered dismissing complainant’s bill and for costs, from which he has appealed.

The defendants rely mainly upon two grounds of defense; the first of which is, that, as the writings obligatory were executed for the payment of the purchase money for slaves, which were warranted by Smith to be slaves for life, which have since been emancipated by force of the Constitution and laws of this State, ordained and enacted since the date of the sale and warranty, the consideration for which the writings obligatory were given has failed, wherefore the administrator of Smith should not be permitted to enforce the payment thereof.

If this was a contract for the purchase and delivery of slaves — an executory and not an executed contract — the argument of the learned counsel might have controlling influence in our decision; but the contract between Smith and Jordan is an executed contract. The sale of the salves was an absolute sale, under which they passed into the possession of Jordan. It is true that Smith warranted the negroes to be slaves for life, and at the time of the warranty, that they were such is unquestionable. Smith’s warranty related to the then existing not the future condition of the slaves, to which it could have had no reference; so, the warranty, that the negroes were sound in mind and body, was simply that such was their conditon at the time of the warranty, not that they might not thereafter become insane or diseased. The warranty could not .have been intended to extend as against the power and authority of the Government -to emancipate them in the future, because to such power he must of necessity submit, whether rightfully exercised or not. It is a principle that lies at the foundation of civil government, that private interests and rights must yield to public necessity or convenience, and when the sovereign will has been exercised, as in this case it was, whether justly or not, the citizen must of necessity submit. It might as well be contended that it was a breach of warranty of title and quiet possession where the lands thus conveyed had been condemned and appropriated to public use; yet, we apprehend, no one would contend that, for the exercise of this sovereign will, there would arise a breach of warrantyand, if not, for like reasons, no subsequent exercise of the sovereign power of the State could affect the warranty given by Smith in this case. It was not a false warranty, when made, because the negroes were then slaves for life. Such we have held to be the law in Dorris v. Grace, 24 Ark., 326. The authorities to which counsel have referred, have reference to executory contracts alone — such, for instance, as if Smith had covenanted to sell and deliver to Jordan negro slaves by a certain day, but, before the day fixed for delivery, should the slaves be emancipated, whereby they cease to be property, and no longer subject to the control of Smith, he would be discharged from the performance of his contract. Thus it is said by M. Hilliard, in his American Jurisprudence, page 103: “If one contract to do an act which is possible and legal at the time, but which, before breach, becomes impossible by the act of God, or illegal by an ordinance of the State, even though such ordinance is unconstitutional, the obligation is discharged.” So, in Brewster v. Kitchen, 1 Ld. Raym., 321, “ Where a man covenants not to do a thing, which it was lawful for him to do, and an act of Parliament comes after and compels him to do it, then the act repeals the covenant.” And so, also, in Hudley v. Clark, 8 Durn. & East., 265, where a ship-owner undertook to carry the plaintiffs’ goods from Liverpool to Leghorn, and thereafter, and before the ship sailed, an embargo was imposed, which forbid the ship from sailing, this principle was fully recognized by Lord Kenyon. These cases clearly show the class of contracts to which this rule applies, and the extent to which it goes, and most clearly that , they have no application to executed contracts, such as the one now before us.

We are not unmindful of the hardship and ruinous loss which have very often arisen out of circumstances connected with the late war, by which individuals, in consequence of acts not their own, have been made to suffer, but can not, on account of such hardship, depart from well established principles of law; to do so Avould open a wide and disastrous field of litigation.

If the Avarranty of servitude be held to be broken because of the Government act of emancipation, then every such warranty of servitude of a slave thus emancipated must, for a like reason, be held to be broken, and a right of action for such breach would exist from the date of emancipation, although made fifty years ago, for time can not affect the principle ; nor can the fact as to whether the purchase money was or was not paid. Fortunately for the country, the law sustains no such doctrine. Ve must, therefore, hold that the sale of the slaves made by Smith to Jordan was a valid sale ; and, for aught that appears in this case, his title to the slaves was perfect; that his warranty was not a false warranty; that the consideration was just what the parties contracted for, and that Jordan took them subject to all the casualties by which, by the act of God or the sovereign power of the State, his title might be affected, and must, as all other purchasers do under like circumstances, bear the loss which subsequently arises, however sudden, complete or detrimental to his interests.

The next question to be considered is, did Smith acquire by his mortgage a lien upon the real estate of Jordan therein described ? The deed is in the usual form, written by Jordan, signed by him with his proper signature, and delivered by him to the clerk and recorder of the proper county, to be recorded, and was recorded, and subsequently found in the possession of Smith. These facts, in the absence of evidence to the contrary, are sufficient evidence of a delivery of the deed. Carnall v. Duval, 22 Ark., 126; Miller v. Physic, 24 Ark., 244. But, as the deed was not acknowledged, it was irregularly put upon the record. Section 1, chap. 117, Dig., page 799, provides that mortgages shall be acknowledged before some person authorized by law to take the acknowledgment of deeds, and if, for land, shall be recorded in the county or counties in which the lands lie. The second section provides that every mortgage, whether for real or personal property, shall be a lien upon the mortgaged property from the time the same is filed in the recorder’s office for record, and not before; which filing shall be notice to all persons of the existence of such mortgage. As a prerequisite to the admission of the mortgage to record, it should have been acknowledged before some competent officer, and as this appears not to have been done, it created 'no valid lien upon the mortgaged property, as against creditors and subsequent purchasers, no matter whether they had actual notice of such prior mortgage or not. Maine v. Alexander, 9 Ark., 112; Blagg v. Hunter, 15 Ark., 246; Jacoway v. Gault & Loop, 20 Ark., 190; but as between the parties themselves, whether recorded or not, it was a valid instrument. Thus, in Maine v. Alexander, it was said “ that although the mortgage was not acknowledged by the party who made it, yet it was a matter of which he could never take advantage; and that, as between the parties themselves, the lien became fixed and complete by the mere execution and delivery of the instrument.”

Such being the case, the extent of its efficacy to secure to the mortgagee a lien upon the property of the mortgagor, under the peculiar circumstances of this case, is the main question to be decided.

Holding the mortgage, although not regularly recorded, to be valid, as between Jordan and Smith, its effect in equity was to furnish a security for the payment of the debt due from Jordan to Smith. Kennedy v. McCown, 18 Ark., 170; and after a breach of the conditions of the mortgage, by non-payment of the debt, it became a legal title, so as to enable him to oust the mortgagor by an action of ejectment. McLean v. Cassiday, 18 Ark., 34; Gilchrist v. Patterson, id., 579. In Fitzgerald v. Beebe, 7 Ark., 319, it was held that the mortgagee has three remedies, either of which he may pursue until his debt is satisfied. He. may bring an action of debt on the bond, or get possession of the rents and profits of the land mortgaged by an action of ejectment, or he may foreclose the equity of redemption, and sell the land to pay his debt. In Massachusetts, it was held that a mortgage, although a pledge at first, becomes an absolute interest, unless redeemed at the time limited for the payment of the money. Parsons v. Wells, 17 Mass., 421. Approving these decisions, we must hold that, in equity, Smith had a security for his debt, which, after a breach of the condition of the mortgage for non-payment, matured into a legal title, such as would entitle him to recover possession of the mortgaged property, by an action of ejectment, or to foreclose and sell by a proceeding in chancery. And such being the rights of Smith against Jordan, for satisfaction out of the mortgaged property, which, as appears, remained, at the time of Jordan’s death, free from all other incumbrances, and consequently-passed, at Jordan’s death, to his heirs and legal representatives, with no other incumbrance except Smith’s, the effect of which, after Jordan’s death, presents the point of greatest difficulty. It is insisted, on the part of Jordan’s administrator, in behalf of the creditors, and by the creditors themselves, who have been permitted to become parties herein, that although Smith might, at any time during the life of Jordan, after breach for non-payment, have foreclosed the mortgage, and subjected the mortgaged property to the payment of his,debt, still, as this was not done, the mortgaged estate came to the hands of the administrator of Jordan’s estate, as trustee, for the benefit of his creditors, free from all prior lien or incumbrance in favor of Smith over the other cx*editors of Joidan; and upon this point sevex'al authorities have' been cited, by counsel on both sides, and, after a careful examination of them, we are of opinion that, upon the death of Jordan, the mortgaged estate passed ixxto the hands of his administrator, chax’ged with the incumbrance placed 'upon it by Smith’s mortgage, as fully axid to the same extent as it existed at the time of Jordan’s death. Smith certainly, at that time, held a valid coxxtract for the security of his debt, upon which he was entitled to a decree agaixxst Jordan, for the sale of the mortgaged premises, at any time after a breach for non-payment, or he might, by axx action of ejectment, have taken possession of the property. These were-the legal rights of Smith, uxxder a valid contx’act, and surely it can not be said that Jordan’s death in any manner affected the-validity of the morgaged contract. If valid before his death, it was equally valid after-wards. Smith lost no legal right by the death of Jordan, axxd xxo greater estate survived to his heirs and administrator thaxx Jordan then possessed, but they took it subject to all such rights as previously existed. Thi§ question-was fully discussed in Fletcher v. Maury, 2 Story, 555. In that case, Fletcher, Alexander & Co., filed their bill against' George Maury, as assignee of the joint estate and effects of Jaihes Need & Co., in which complainants claimed that they had acquired a lien on certain goods -whilst the property of Need & Co., and which came to the hands of the assignee. Judge Story, who delivered the opinion of the court, said: “Now, before proceeding to the points more directly in judgment, it is proper to remark, that it is a perfectly well settled principle in equity, that the assignee in bankruptcy takes the property and the rights of the bankrupt, in the same plight and condition, and with all the equities attached thereto, in the same manner as the bankrupt himself held' them. I recollect at present but one exception to the doctrine, and that is in the case of fraud.” And in Wisener v. McLean, id., 493, it was held that the assignee of a bankrupt, except in cases of fraud, stands in no better situation than the bankrupt did to the parties. In Baile v. Greenwood, 7 Wheat., 56, Chief Justice Marshall quoted Milford v. Milford, 9 Vesey, jr., in which it was held that the assignments-, from the commissioner in bankruptcy, like every other assignment, passed his rights precisely in the same plight and condition as he possessed them, and said: “Were it, then, completely settled that the vendor retains his lion against the assignees of a bankrupt, it would not follow that he retains it against creditors holding under a bona fide conveyance from the vendee.” From which we may infer that the rule, which denies that the trustee takes the property subject to all its incumbrances created before the trust, is limited to liens created by bona fide conveyances, and others of like efficiency. So that we may concede all that is held by this distinguished judge, without affecting the equitable lien in’ this case; and as this decision is not, upon, other grounds, reconcilable with the opinion delivered by the same judge in the case of The Bank of Alexandria v. Hulbut, 1 Dal., 37, nor with the ease of Fletcher v. Maury, and Warren v. McLean, in which the opinions were delivered by Judge Story, who was on the bench, anda member' of‘the court, when The Bank of Alexandria v. Hulbut was decided, we will not hold that case as an authority against these later decisions.

Admit that the administrator of Jordan stands in the relation of trustee towards the creditors of Jordan, still none of them except the complainant claims a lien under any conveyance whatever; they were merely general creditors, and had not placed themselves in a condition to contest with Smith his right to prior satisfaction out of the lands mortgaged, and therefore the parties stand before us thus: Smith has a valid and existing equitable lien on a part of Jordan’s real'estate, which, upon breach for non-payment, matured into a legal right to immediate possession; independent of this as creditor, his was an equal equity with the other creditors of Jordan, and is therefore clearly entitled to the benefit of the rule, “ that, where equities are equal in other respects, the law shall prevail,” and “ he that hath only a title in equity shall not prevail against law and equity/” Coote on Mortgages, 403; that he who is first in time, who has laid hold on the estate and incumbered it with the payment of his own claim, even though imperfect in law, these 'superadded to his equal equity in other respects, make his the superior equity, and entitle Mm to satisfaction out of the particular estate thus incumbered. In according to the more vigilant creditor the benefit of his contract thus fairly made, we invade no right of the other creditors, any of whom might, by a like means, have secured to themselves a like security, which, if properly recorded, would have been supei’ior to the complainant’s lien, irrespective of the date of the contract, or might, by suit and judgment, have reached the same end ; but, having failed to do this, they must not be permitted to contest with, the -complainant his superior claim to1 satisfaction out of the real estate mortgaged for that purpose.

Having thus disposed of the several questions of law presented for our consideration, it follows that the court below erred in rendering a decree against the complainant dismissing his bill, and for this error the decree must be reversed and set aside, and the cause remanded to the court below, with instructions to render a decree in favor of the complainant in accordance with the-prayer of his bill, with a provision therein that if upon sale of the lands mortgaged, or such tract thereof as may be necessary for the payment of the debt, interest and cost, th.ere should be more money received from such sale than is sufficient for that purpose, that such excess shall be paid to the administrator of Jordan’s estate, to be by him accounted for as assets thereof; but that if, after the sale of the mortgaged property, there remains a portion of complainant’s debt unpaid, such balance shall be certified to'the probate court, and there classed as of the class to which it would have been enti-' tied, if allowed by the administrator of Jordan when presented for allowance, and paid according to its class, with the other general creditors of said estate; and that the appellee pay the costs in this court as well as in the court below.


author: Compton, J.

text:
    Hyde, et al., v. Pinkard, surv.

    It is error to render a final decree on default of appearance at the return term.

      Appeal from Desha Circuit Court in Chancery.

    Hon. William M. Harrison, Circuit Judge..
    English & Wilsiiire, for appellants. •
    Garland & Nash, for appellee.
   Compton, J.

The defendants in the court below procured an order of this court, at December term-, 1866, grafting them an appeal in this cause.

The bill was filed to enforce a vendor’s lien. The defendants having been served with process of subpoena thirty days before the return thereof, failed to appear; and a final decree was entered against them, at. the return term. This was error. According to section 19, of chapter 28, Gould’s Digest, the decree should have been interlocutory,.not final. See Gordon v. Church, 11 Ark., 118, where sections 19, 20 and 21 of this chapter of the Digest, in reference to interlocutory and final decrees, are remarked upon and construed.

Let the decree be reversed and the cause remanded, with leave to the defendants to enter their appearance in the court below and to make such defense as they may choose.


text:
    Murry v. Meredith.
    By pleading over and proceeding to trial on issues of fact, after demurrer to the declaration overruled, the defendant waives the ground of demurrer, where the defect is cured by verdict.
    In an action for breach of warranty of the soundness of an animal, a general allegation of unsoundness is sufficient.
    Where the .admissions of a party are given in evidence, he is entitled to have all the declarations made by him at the same time taken-together.
    The measure of damages, on a breach of warranty of soundness of personal property, is the difference between the actual value of the article and what would be the value if it had been sound, together with reasonable expenses incurred in consequence of the unsoundness.

      Appeal from Greene Circuit Court.

    Hon. L, L. Mack, Circuit Judge.
    Katclieee'and English, for appellant.
    The breach that the animal was not sound, as far as he knew, was too vague and indefinite. It should have alleged some particular unsoundness, and the knowledge of the appellant of the unsoundness. 1 Chitty Plead., Jfi8,,et seq. The demurrer should therefore have been sustained.
    The court clearly erred in refusing to -permit the witness to state all that the appellant stated at the time when his admissions were given in evidence by the appellee; and in its ruling as to the measure of damages.
    Watkins & Rose, for appellee.
    The true rule as to damages is the actual loss and injury sustained by the party ready and willing to perform. Walworth v. Pool, 9 Ark.; Wheat v. Dotson, 12 Ark., 704; see, also, on the measure of damages Sedgwick on Dam., 244-

    The testimony attempted to be elicited from the witness, on cross-examination, was not connected with the matters stated in his direct examination, and -was properly excluded. 1 Greenl. JEh., § 445; Austin v. State, 14 Ark., 563.

   Compton, J.

This was an action of assumpsit by Meredith against Murry' for breach of a contract warranting a mare to be sound.

The substance of the contract, as alleged in the declaration, is, that the plaintiff exchanged with the defendant a horse for a mare, and that the defendant warranted the mare to be sound, as far as he knew. The breach assigned is as follows: “Yet the said defendant, contriving and fraudulently intending to injure and defraud said plaintiff, not regarding his said promise and undertaking, but thereby craftily and subtly deceived the ■said plaintiff* in this, to wit: the said mare, at the time of the making the said promise and undertaking of said defendant, as aforesaid, was not sound, as far as he, the said defendant, knew — whereby, and by means of said unsoundness, the said mare was of no use or value to the said plaintiff at, &c.; and whereby, also, the said plaintiff hath been put to great charges and expense in and about keeping, feeding and taking care of said mare,” &c. A demurrer to the declaration was overruled, and the case was submitted to a jury on the general issue, who^ found for the plaintiff, and judgment was rendered accordingly. Whereupon, the defendant moved for a new trial and in arrest of judgment; which motions were overruled, and he appealed.

By pleading over and proceeding to a trial of the issue of fact, after the demurrer to the declaration was overruled, the-defendant abandoned the ground of the demurrer, and can not now revive the question then decided, unless the alleged defect in the declaration is such as was not cured by the verdict. Martin v. Royster, 8 Ark., 74. It is insisted for the appellant that the breach of the contract, as stated in the declaration, was too vague and indefinite — that it should have alleged some particular unsoundness, and the knowledge of the appellant of such unsoundness. We do not so understand the law. The general allegation was sufficient — it is unusual and unnecessary in such cases to allege the particulars of the unsoundness. In the case'before us, the warranty was a qualified one, and the allegation that the mai’e was not sound, as far as the appellant knew, was equivalent to saying that the animal was not sound, and that the defendant had knowledge of the unsoundness. The most favorable view for the appellant that could be taken of the objection would be that the declaration discloses a cause of action defectively stated. But if this were so — and we think it is not — the defect was cured by the verdict. Sevier v. Holliday, 2 Ark., 571.

At the trial, the plaintiff introduced a witness by whom certain admissions of the defendant in regard to the exchange of the animals, were proven, and the defendant proposed, on cross-examination, to ask the witness to state all that was said by the defendant on the subject, at that time, which the court refused to permit. This was erroneous. The defendant was clearly entitled to have all the declarations he made at one and the same time taken together.

The coui’t refused to instruct the jury, on motion of the defendant, that the measure of damages was the difference between the value of the mare if sound and its actual value, with reasonable expenses, &c.; but instructed them that, if they should find for the plaintiff, the measure of damages would be the difference between the value of the horse and the actual value of the mare at the time of the exchange, with the expense of keeping and feeding the mare. In this there was error. The correct rule, as laid down by this court in a case like this (Tatum v. Mohr, 21 Ark., 349), is, that the measure of the plaintiff’s damages was the difference between what the mare would have been worth at the time of the exchange, if it had been sound, as it was warranted to be, and its actual value in the unsound condition, together with reasonable expenses necessarily incurred by the plaintiff' in consequence of such unsoundness.

The rule as to remarks made in commendation of an article? is well settled by Mr. Parsons, in his work on contracts, vol. 1, page 462. He says: “ As mere silence implies no warranty, neither do remarks which should be construed as simple praise or commendation; but any distinct assertion or affirmation of quality made by the owner, during a negotiation for the sale of a chattel, which it may he supposed was intended to cause the sale, and was operative in causing it, will be regarded either as implying or as constituting a warranty. If such affirmation were made in good faith, it is still a warranty; and if made with a knowledge of its falsity, it is a warranty, and it is also a fraud.” The court, then, did- not err in refusing the third instruction moved by the defendant; because, without qualification, in accordance with the rule, as above stated, it was well calculated to mislead the jury.

No objection has been taken to other, instructions* which were given by the court.

For the error indicated the judgment willbe reversed, and the cause remanded for further proceedings.


text:
    Tate, et al., v. McClure.
    Where land is rented upon a condition to make certain repairs, and the occupant fails to perform the condition, the owner may consider the contract as .rescinded, and sue for use and occupation.

      Appeal from Clark' Circuit Court

    Hon. E. J. Searle, Circuit Judge.
    Elanagin, for appellants.
    Witherspoon, for appellee.
   Clendenin, J.

This was an action of assumpsit for the use and occupation of land. The defendant plead non-assumpsit and set-off., upon which issues being made up, the case was tried by a jury, and a verdict was rendered for the plaintiff of fifty dollars, for which judgment was rendered. The defendants moved for a new trial, and, their motion being overruled, they excepted to the opinion of the court, and having incorporated the instructions given and refused, and the evidence, in the bill of exceptions, they have appealed to this court.

The evidence in the case, as we find it- in the bill of exceptions, tended to show that there was a contract for the renting of the land, the rent to be paid in repairs on the place ; that the land was cultivated by the defendant; that the repairs were not made, and the value of the rent.

The evidence that Smith, one of the defendants, joined in the contract, is not of a very certain or definite character ; but there is some evidence tending so to prove, and from which the jury might fairly infer such to be the fact; and under the uniform ruling of this court, that where there is not a total want of evidence to support the verdict,- this court will not interfere to disturb the verdict, we must hold that a motion for a new trial, in that respect, was properly overruled.

The instructions given, on the motion of the plaintiff, to which the defendants except, is: “If the jury believe, from the evidence, that the defendants, Tate and Smith, agreed to make certain repairs on the place for the rent, and neglected to do so, in whole or in part, the contract was forfeited, and the plaintiff is entitled to what the rent of the land is worth.”

And the instructions asked by the defendants, which the court refused to give, and to which the defendants except, are:

1. “If the jury believe, from the evidence, that the defendants -were, by special contract, to compensate the plaintiff' for the use of the land in any other way than''by the payment of money, the jury must find for the defendants.”

2. “ If the jury believe, from the evidence, that the land occupied was held under a contract for the year, and that the contract was made by one of the defendants only, then the jury must find for the defendants.”

"We can see no objection to the instruction given by the court at the instance of the plaintiff, or refusing the first instruction asked by the defendant.

In the view we take, that the jury'miglit infer from the testimony that the contract of Tate and Smith to repair the place for the use of the land, and that they cultivated the land but neglected to make the repairs, the plaintiffs might well treat the contract as rescinded, and recover, for the use and occupation, in assumpsit. This court, in the case of Miller v. Thompson, ad., &c., 22 Ark., 258, held, in substance, that a refusal or neglect by one party to perform his part of a contract, justifies the other in treating it as rescinded, and authorizes liim'to sue in general indebitatus assumpsit. See, also, Jackson v. Jones, 22 Ark., 158, where the same principle was held.

The objection to the defendant’s second instruction is removed by the third instruction given by the court, on motion of the defendants. The instruction given is: “ The plaintiff can not recover in this case, unless he prove a joint liability, and, unless the jury find such a liability, they must find for the ' defendants.” Griving this instruction, as the court did, left the inquiry open for the jury to determine the liability under the contract, and their finding we are not at liberty to disturb. .

IJpon the whole record we are satisfied that the judgment is correct, and it is affirmed.


text:
    Faust, assignee, v. Burgevin, et al.

    A bond given by one of several partners, on dissolution, to the retiring partner, conditioned to pay the debts of the firm and save him harmless, is not merely a bond of indemnity, but is broken by a failure to pay the debts due or to become due within a reasonable time; and a right of action accrues upon it.

      Appeal from Pulaski Circuit Court.

    Hon. Liberty Bartlett, Circuit Judge.
    "Watkins & Bose, for appellant.
    The bond sued on was a bond of indemnity, but it was something more; and the question submitted is, whether upon this covenant Brugman could sue before .he had himself paid the debts of the late firm, or some part of them. The literal import of the covenant is to pay the debts due within a reasonable time, and those not due, as they fall due ; and when it is broken, a right of action accrues. The question of the measure of damages does not arise. See Churchill v. Hunt, 3 Denio, 324; Thomas v. Allen, 1 Hill, N. Y, 146; Deiois v. Crockett, 3 Bibb 196; Bryan v.. Bufort, 7 J. J. M., 336; Pope v. Davidson, 5 J, J. M., 400; Parson on Con., 46%, citing 9 M. Sp W., 667; Robin

      ■son v. Robinson, 29 Eng. Law § Eq., 212; Ex parte Negus, 7 Wend., 499; Lethbridge v. Mytton, 2 B. Ad., 772; Carter v. Adamson, 21 Ark., 287.

    Garland & Nash, for the appellees.'
    This action is on a bond for indemnity and nothing more. Hough, Larrikin, et al., v. Perkins, 2 Hoio. (Miss.), 724; Douglass o. Clark, 14 John., 177; 1 Saunders, 117, n. 1; Taliaferro v. Broion, 11 Ala., 762. No canse of action can arise on the bond till the plaintiff is damnified, and he is not damnified till he has paid something. Collinge v. Haywood, E. C. R., 36, 223; 9 A. $ E. 633; Reynolds v. Doyle, E. C. R., 396, 638; 1 Man. <f Gr., 753; Sedg. on Dam. (3d ed.) '311, 321; Thomas v. Allen, 1 Hill, 145; Rockfeller v. Donnelly, 8 Goto., 623; Jeffries v. Johnson, 1 Zabrinski, 73; 18 Ohio, 47.

   Clendenin, J.

This was an action of ejectment instituted in the circuit court upon the following instrument:

“ Know all men by these presents, that we, Edmund Burgevin, as principal, and John T. Trigg and Henry M. Rector, as securities, are held and firmly bound unto Peter Brugman in the sum of twenty thousand dollars, well and truly to be paid, we hind ourselves, our heirs, executors and administrators, and each of them, firmly by these presents: as witness our hands and seals, this 29th day of August, 1§60. *

“ Conditioned that whfereas the said Burgevin & Brugman have heretofore been partners in the mercantile business in the city of Little Rock, Arkansas, under the name of Burgevin & Co., and whereas said partnership has been dissolved this day, upon terms agreed upon by the parties, one of which is that said Burgevin shall pay off and discharge all the debts now due or to become due by said partnership, of every name, nature and description, and hold the said Brugman entirely harmless in respect thereof. Now, if the said Burgevin shall pay off and discharge all such partnership debts now due or to become due, and hold the said Brugman entirely harmless in respect of said debts, then the above bond to be void, otherwise to remain in full force and effect.

“Signed, EDMOND BURGEVIN, [seal.]

“JOHN T. TRIGG-, [seal.]

“HENRY M. RECTOR, [seal.]”

The breach of the declaration was, that certain creditors of the firm of Burgevin & Co. had sued and recovered judgment against the plaintiff, for a debt due by said partnership, and that the defendant Burgevin “ did not pay off and discharge said partnership debts and hold the said plaintiff entirely harmless in respect to the sameand that the said plaintiff and Burgevin, at the time of the execution of the bond, owed a large amount of debts, which they had contracted as partners, and that Burgevin had not paid off and discharged the said debts. Burgevin and Rector, the defendants, who were sued, filed their demurrer to the declaration, which. was sustained, and final judgment being rendered in favor of -the defendants, the plaintiff excepted and appealed.

The several causes assigned for demurrer, are, in substance, that the plaintiff had failed in his declaration to show any breaches of the conditions of the bond sued on, or any cause of action in the plaintiffs.

’"We do not consider the bond sued on in this ease as a mere bond of indemnity, it is something more, it is a bond to pay as well as to hold harmless. There are two distinct stipulations in the bond: the first, “ that Burgevin shall pay off and discharge such partnership debts now due orto become due;”'and second, “ to hold the plaintiff harmless in respect to said debts.’’ This was the contract of the defendants, and we' can not place the parties in any other condition than they place themselves by their contract. If Burgevin failed to pay the debts that were due or to become due, according to the averments of the declaration, we think the covenant was broken and a right of action accrued to the plaintiff.

In a case similar to the one we are considering, the Supreme Court of New York say: “As one of these debts was over due, and had not been paid when the suit was commenced, the condition of the bond was broken, and a good right of action shown.” 3 Denio, 324. And this court, in the case of Carter v. Adamson, 21 Ark., 287, upon a question and a bond like the one before us, say: “ There being no time fixed in the covenant for the payment of the debts, it may be supposed that it was the intention of the parties that such of them as were due at the date of the contract should be paid immediately, and that such of them as were not then due should be paid at maturity. According to the current of adjudications, pn the failure of Adamson & Higgins to pay such of the firm debts as were due at the date of the covenant within a reasonable time thereafter,- or on their failure to pay such of. them as were not then due within a reasonable time after maturity, the stipulation in the covenant for the payment of the debts was broken, a cause of action accrued to Carter.”*

In this view of the law, the judgment of the circuit court must be reversed, and the case remanded to that court, with directions to overrule the demurrer, and permit the defendants to plead.


author: Walker, C. J.

text:
    Willis v. Halliburton, ad.

    A xjlea of failure of consideration of tlie note sued on, alleging- that it was given for slaves to which the plaintiff had no title? should aver that they were recovered by title paramount; and the allegation that the slaves were freed by the Constitution and laws, so that the suit for their recovery could not be consummated, is no excuse for want of such averment.
    The defendant pleaded that the note sued on was given for the i>urchase of slaves which the plaintiff falsely and fraudulently rei>resented that he was the owner of, and that after the fraud was discovered, the slaves were emancipated by force of the Constitution, whereby he could not return them. Held, that the excuse for not returning them is insufficient; that the slaves were his property when emancipated, and he must bear the loss.

      Appeal from Arkansas Circuit Court.

    Hon. William M. Harrison, Circuit Judge.
    Clark, Williams & Martin, for appellant.
    We submit that the excuse set up in the first plea for a failure to progress with the adverse suit is sufficient, and the proof of disturbance by adverse suit without eviction, together with proof of absolute want of title, as is set up in the plea, is a good defense, where the failure grew out of the fact that the property was destroyed and lost, so that a suit could not be concluded.
    The second plea is unquestionably good. It set up a clear case of fraud, and the excuse for not returning the property is sufficient. See Story on Sales, sec. 1$0, notes 1, 2; ib., sec. 456. The excuse for not returning or tendering a return of the property is sufficient, where prevented by act of God or by law. Haralson v. Walker, et al.,28 Ark., J7J.
    Garland & Nash, for appellee.
    There is no breach of warranty of title till vendee is evicted or loses the property by title paramount. 8 Parsons on Con., 224-7; 1 ib., 281, a. Freeing negroes by war, or public law, is not a breach of warranty as to title by vendor. 24 Ark., 326,864; Meigs Pep.,26. Yendee should offer to return the property, or show excuse. 28 Ark., 619; 2 Kent, 480.

   Walker, C. J.

Halliburton, as the administrator of the estate of Joseph Hough, deceased, brought his action of debt upon a writing obligatory executed by Willis to Hough for $6,000.

The defendant filed three pleas:

First. That the consideration for which the writing obligatory was‘given, has wholly failed in this, that it was given for negro slaves, which were, by bill of sale, warranted to he slaves for life ; that the warranty was false and fraudulent in this, that Hough, at the time of the sale, had no title whatever to the slaves; that suit was commenced against defendant for the recovery of the slaves, but before it was consummated the slaves were emancipated by the laws and Constitution of Arkansas, so that the suit could not be determined; the negroes are beyond the defendant’s control, and the consideration has failed, and this he offers to verify.

The second plea sets up that Hough falsely and fraudulently represented to defendant, that he, the said Hough, was the owner of the slaves, and that relying upon such representation, in consideration of the title and ownership of the slaves which Hough falsely and fraudulently pretended to give, and for no other consideration, and relying upon which the defend-' ant executed and delivered the writing in suit, which representations of title and ownership were false and fraudulent, and that after such fraud was discovered, defendant was not able to return said slaves, because they were emancipated by force of the Constitution, whereby defendant has been damaged to an amount exceeding the amount of the writing sued on, and the interest thereon, to wit: twenty thousand dollars, out of which defendant offers to set off the debt of plaintiff, and verifies.

The third plea sets up that the writing declared on was given in consideration of slaves which were warranted to be such for life, but that the negroes were not slaves for life, and were thereafter freed and emancipated by force of the Constitution of the State of Arkansas, Avhereby the Avarranty has become and is falsified and broken, and the defendant damaged in a sum equal to that sued for, out of which he offers to recoup the debt and damages of the plaintiff.

To these pleas the plaintiff demurred; the demurrer Avas sustained, and the defendant having declined to plead further, final judgment was rendered against him, from which judgment he has appealed.

The questions of law presented for. our consideration arise upon the sufficiency of these pleas. The first plea is defective in this: that.it contains no averment of the recovery of the slaves by one holding a superior title. Villard v. Abbott & Johnson, 19 John. Rep., 77; Hinson v. Dunn, 5 Ark., 395; Sumner v. Gray, 4 Ark., 471. The excuse set up in the plea that the adverse claimant to the property had been prevented by the emancipation of the slaves from prosecuting his suit to judgment is not sufficient.

The second plea is based upon an alleged fraud on the part of the vendor, and the excuse set up in the . plea for not having returned the slaves, or offered to return them, is insufficient. Slaves were the defendant’s property at the time they were emancipated, and he must bear the loss occasioned by their emancipation.

The third plea presents substantially the -same question as that decided in Dorris v. Grace, 24 Ark., 326, and upon the authority of that ease, must be held insufficient.

The demurrer to the pleas was, therefore, properly sustained.

Judgment affirmed.


text:
    Atkins, adx., et al., v. Busby, ad.

    B. executed a bond of conveyance of real estate and slaves, reciting that he had bargained and sold'the same to A., conditioned to deliver possession at a future day on payment of a part of the purchase money, and to make, execute and deliver a good and sufficient deed of conveyance on payment of the residue ; the part payment was made and possession delivered; before the payment of the residue of the purchase money, slaves were emancipated by the Government. Held, that the contract was an executory, not an executed contract; that the legal title to the property did not pass to the vendee; that as the slaves were manumitted by the act of the Government, before the consummation of the contract and conveyance of the property, the consideration had failed to the extent of the value of the slaves.
    Chancery will not decree the rescisión of a contract, where no such issue, is made, and where substantial justice may be done on the issues presented.

      Appeal from Jefferson Circuit Court in Equity.

    Hon. William M. Harrison, Circuit Judge.'
    W atkins & Rose, for appellants.
    The contract in this case was an agreement of sale, not a sale consummated. No title passed — the stipulations being that the title was to pass at a future time,- on the performance of certain conditions by each party, which conditions appellants have been and are ready to perform on their part, but the appellee is unable to perform the condition on his part. The title to the property was to remain in the vendor until payment; and had not passed to the vendee at the time of the emancipation of the slaves; and, as he can not convey such title as he contracted to convey, the consideration has clearly failed to the extent of their value. 1 Parsons on Con., JJff, 485,448, and, cases cited in note 99, p. 449; Meed v. Upton, 10 Pick., 533; 17 Verm., 176; 9 W II., 398; McBride v. Mitchell, Gro. Bee., part 1,165.

    Failure of consideration affects the right to recover pro tanto. 3 Bibb, 108; 1 Parsons on Con., 887. A total inability of one party to comply with his part of a contract should absolve the other party from a compliance. 1 A. K. Marsh., 177; 4 Moot, 464; 3 Brock., 185; 5 J. J. Marsh., 185.

   Walker, C. J.

J esse Busby, as the administrator of the estate of Wilson W. Busby, deceased, filed his hill of complaint against the administratrix and heirs at law of James H. Atkins, deceased, to enforce a vendor’s lien for the purchase money of certain lands covenanted to be conveyed, under the following instrument, to wit:

“ Know all men by these presents, that I, Wilson W. Busby, of Jefferson county, State of Arkansas, am held and firmly bound unto James H. Atkins, of the county and State aforesaid, in the sum of forty thousand dollars, for the payment whereof well and truly to be made, I bind myself, my heirs, executors and administrators firmly by these presents. Signed and sealed at the county and State aforesaid, on the 2d day of April, 1859.

“The condition of the above obligation is such, that whereas the above bound Wilson W. Busby, in the consideration of thirty-five thousand one hundred dollars, to be paid. to him by the said James H. Atkins, as follows, to wit: the sum of eight thousand seven hundred and seventy-five dollars on the first day of January, A. I). 1860, and the like sum on the 1st day of January, 1861, and the like sum on the 1st day .of January, 1862, and the residue or like sum on the 1st day of January, 1863, with interest on said several instruments at the rate of ten per cent, per annum, from the 1st day of January, 1860, until paid; to secure the payment óf which said purchase money, and the interest as aforesaid, said James H. Atkins has this day executed and delivered to the said Wilson W. Busby his four several promissory notes of even date herewith, each for the sum of eight thousand seven hundred and seventy-five dollars, payable with interest respectively as aforesaid, reference being thereto had will more fully appear, has granted, bargained and sold unto the said James H. Atkins the following described real estate, slaves and personalty [describing the property]. Now, therefore, if the above hound Wilson W. Busby shall, upon and after the full payment of thirty-five thousand one hundred dollars, purchase money, with the interest thereon, as aforesaid, to him, by the said James H, Atkins, according to the tenor and effect of the four promissory notes aforesaid, make, execute and deliver to the said James TI. Atkins a good and sufficient deed of conveyance in fee simple, with the usual covenants of general warranty, of all and singular the lands, negro slaves and jDroperty aforesaid, and if the above bound Wilson W. Busby shall, on and after the payment of the first installment of the purchase money aforesaid, to wit: the sum of eight thousand seven hundred and seventy-five dollars on the 1st'day of January, 1860, to him, by the said James H. Atkins, the possession of the lands, negro slaves and personalty aforesaid; the soundness of the negro named Sarah, embraced in the above list, is not to be warranted by the said Wilson W. Busby, but in the event of the death of any of the negro slaves, before the time for the delivery thereof, without the fault or negligence of 'the said Busby or his agent $ said Busby is not to be held responsible for such negro or negroes as may die,, or lose the value of the same in the trade; then the above obligation shall be and become null and void, otherwise remain in full force and virtue.”

The defendants insist that this is a contract to sell, not a sale, under which, although possession was, at a given day, to be delivered, the title to the property was reserved by Busby in himself until it was paid for, and that since the making of the agreement to purchase, the slaves, which constituted a large part of the consideration for which the notes were given, have been emancipated, whereby it has, by the act of the Government, become impossible for Busby or his representatives to comply with his contract, so far as relates to the slaves; and therefore the consideration for which the notes were given has to that extent failed.

In the case of Haskill, ad., v. Sevier, ad., decided at the pres-ent term of the court, we had occasion to examine this question, so far as relates to the effect of the emancipation act upon the validity of an executed contract for the sale of slaves, and held, that such executed contract was not affected by the subsequent Government act of emancipation.. The question in this case is, as to the effect of the emancipation act on executory contracts which remained unexecuted at the time that the emancipation act took effect.

The first question to be determined is, was the contract in this case an executed <?r an executory contract ? Did Busby, in fact, sell the lands and negroes to Atkins, or did he covenant to sell upon the happening of a named contingency? We confess that this question is not altogether free from doubt, but taking the whole contract together, in view of its several stipulations, we are led to believe that it was not the intention of the parties to make an absolute sale of the property, but that Busby intended to retain the title to it in himself until the pui’chase money was paid. The contract was made in April, 1859; the first payment was to be made on the first day of January thereafter, and it was only upon condition that such payment was made, that Busby agreed to deliver the property.' Now Ave think it very clear that if Atkins had failed to make the first payment at the time stipulated, that Busby, who then retained not only the title but the possession of the property? Avas under no obligations whatever to deliver the property. The covenant to deliver the negroes at that time, and upon that contingency, was a distinct covenant from that to convey, which was not to be made until all of the purchase money was paid. The delivery, then, was an act under a special covenant for possession and use, and not an act in affirmance of a sale, the effect of which would be to vest in Atkins a title to the property. The parties certainly had a right, by express, stipulation, to explain and qualify the effect of such delivery of possession, which we think they have done in this instance. If it had been understood or intended that the sale was absolute and complete at the time when made, no stipulation would have been made with regard to the slave Sarah, that she was not to be warranted sound. It Avas doubtless understood between the parties, that the soundness of the other slaves was to be warranted, and in fear that it might be claimed by Atkins, at the time of sale, that they were all to be Avarranted sound, this exception Avas made. It is true that the terms, “ granted, bargained and sold,” if disconnected from other stipulations, would import an absolute sale; but, when taken in connection with other stipulations, and the express covenant that when all of the purchase money Avas paid Busby would convey the property, both land and negroes, by deed of warranty of title, it is probable that such Avas not the intention of the parties, but that Busby in- . tended to hold the title to the property i-n himself until the last payment was made. And, thus considered, we must h old it a contract to convey, one in which the title was not to pass until the happening of a contingency therein expressed; and, when such is the ease, it is well settled that the title to the property does not pass until the stipulations are complied with.

Parsons, in his work on Contracts, page 449, says: “ But where the right to receive payment before delivery is waived by the seller, and immediate possession given to the purchaser, and yet by express agreement the title is to remain in the seller until the payment of the price on a fixed day, such payment is strictly a condition precedent, and, until performance, the right of property is not vested in the purchaser. And generally, wherever in a contract of sale it is stated that some precise fact is to be done by either party, this may amount to a condition, though not so expressed.” In Read v. Upton, 10 Pick., 522, a covenant was entered into, by which Read agreed to sell Fowler a brick-pressing machine for the sum of two hundred dollars, to be paid on the delivery of the machine, and that in the mean time Fowler should have the use of the machine until the time of payment, and Fowler executed to Read his note for two hundred dollars, payable on a day therein mentioned, Shaw, C. J., who delivered the opinion of the court, said: This contract is an executory and not an executed contract of sale. It was obviously the intent of the parties that the property should remain in the vendor, and there is no rule of law to prevent the intention from being carried into effect; but as the act contemplated was never performed, no property passed, and the machine remained the property of the plaintiff.” See, also, Martin v. Mathoit, 14 Serg. & R., 214; Rose v. Story, 1 Barr, 190. So, in the case before us, there was a delivery of the negroes before the time fixed for payment of the entire purchase money, and the execution of the conveyance for them, but such delivery was clearly a delivery for use, just as the brick machine -was delivered, under a separate covenant, which the parties most clearly had the right to make, or even where not made in express terms, may often be inferred from the various stipulations of the contract, and the order in which they are to be performed, and, being thus made, the title to the slaves in this case remained in Busby, the use and possession of them in Atkins, at the time they were, by the provisions of the Constitution, emancipated.

Two of the notes remaining unpaid, Busby?s administrator has brought this suit, in which he claims a vendor’s lien on the land so contracted, and asks that the land may be sold to satisfy these notes. Atkins having also died, his administratrix answers that she is willing and ready to pay the balance of the purchase money, but that it is out of the power of Busby’s representatives to make title to the slaves, as he-contracted lo do, and such being the case, and because the slaves, by the act of the Government, have been discharged from further service, we must hold that the consideration for which the notes were given has failed, to the extent of the value of the slaves, and as they were proven to have been worth, at the time the contract was made, sixteen thousand dollars, in equity and good conscience Atkins’ administratrix is entitled to a credit upon the notes remaining unpaid, to that amount, with a corresponding abatement of interest upon the debt remaining due at the time the negroes were emancipated, to wit: The time when the present State Constitution was ratified, the said sum of sixteen thousand dollars to be entered a credit as of that date, and applied first to the payment of the interest then due, and the balance to the payment of the principal, as far as it may extend ¿ after which, whatever sum may remain still due upon said notes, and due from Atkins’ administratrix to Busby’s administrator, should he decreed to the complainant, and for the payment of which they are entitled to a vendor’s lien.

Counsel have argued that Atkins’ administratrix'and heirs are entitled to a rescisión of the contract, and to have the money paid upon it restored to them; but this question is clearly beyond the scope of the issue formed between the parties. The defendants might have raised this question by cross-bill, and if, in view of the whole case, we felt satisfied that the equitable rights of the parties required-it, we might remand' the case, with leave to amend; but, from the facts of the case before us, we think that substantial justice may be done under the present issue; and it may be remarked that contracts are rarely rescinded, where, as in this case, there was but a partial failure of consideration without fraud, and where the parties can not be restored to the condition in which they were before the contract was made; and we will, therefore, direct that the decree in this case be set aside and reversed, and the cause be remanded to the court below, and that a decree be made in accordance with the opinion herein expressed, and in other respects according to the prayer of the complainant’s bill for the sale of the lands so contracted to Atkins, or so much thereof as may be necessary to satisfy and pay the residue of such debt, together -with interest and cost of suit in the court below, and that the appellee pay the costs in this court.


text:
    Smith v. Houston.
    A verdict in replevin, that the plaintiff is entitled to the property, is not responsive to issue upon the pleas of non-cepit and property in defendant; and no valid judgment can he rendered upon it.
    Where a plaintiff in replevin fails to prove any amount of damages he has sustained, he is entitled to nominal damages only.

      Appeal from Craighead Circuit Court.

    Hon. Ewing Y. Mitchell, Special Judge.
    Ratcliffe, and English & Wilshire, for appellant.
   Compton, J.

This is an action of replevin in cepit, determined in the Craighead circuit court.

The defendant pleaded, 1st, non-cepit; and 2d, property in himself; to which pleas issues were made up — all in short on the record — and submitted to a jury, who returned the following verdict: “"We, the jury, find that plaintiff is entitled to special property in the mare and colt, by virtue of his writ of replevin in former suit, and assess his damages at $85.” Upon this verdictjudgment was rendered for the damages assessed, with costs, and a writ was awarded by which the property in controversy was to be delivered to the plaintiff, the same not having been replevied at the commencement of the suit. The defendant moved in arrest of judgment and for a new trial; which motions were overruled, and he appealed to this court.

The objection that the verdict is not responsive to the issues, is well taken. If the verdict had been general, it would have been sufficient, upon the principle decided in Wilson v. Bushnell, 1 Ark., 465, that a general verdict is good on two issues, where the finding necessarily shows that the subject-matter of both issues was determined by the verdict. But here, the finding is special, and responsive to a part only of the matters in issue — that is to say, it determines that there was property in the plaintiff, but is silent as to whether or not it was tortiously taken from him by the defendant; both of these were material matters in issue, and both should have been passed upon by the jury; for the rule of law is, that where the verdict varies from the issue in a substantial matter, or finds only a part of that which is in issue, no valid judgment can be rendered, upon it. Patterson v. The United States, 2 Whea., 221.

The finding of the jury as to damages, is not warranted by the testimony. There is no evidence in the record tending to show what amount of damage the plaintiff sustained by reason of the detention of the property. In the ábsence of such evidence, the plaintiff is entitled to nominal damages only.

According to the view we have taken, the court erred in overruling the motion in arrest, as also the motion for a new trial. The judgment must, therefore, be reversed, and the cause remanded for further proceedings.


text:
    Phelps & Jones v. Patterson.
    The right of an attorney to sue for services does not accrue until the termination of the suit in which he was employed, unless the relation of client and attorney is sooner ended — and so the statute of limitation does not commence running against him until then.

      Appeal from Jackson Circuit Court.

    Hon. L. L. Mack, Circuit Judge.
    Stillwell & Wassell, for appellants.
    Watkins & Bose, contra.
   Compton, J.

This was an action of assumpsit for professional services, commenced by Patterson against Phelps & J ones, on the 2-3d of February, 1867.

The defendants pleaded non-assumpsit-and the statute of limitations; to which pleas issues were regularly made up and submitted to a jury, who found for the plaintiff; and thereupon the defendants moved for a new trial, which was denied, and they appealed.

The evidence discloses the following facts: The suit in which the professional services were rendered was brought by Patterson, as attorney for Phelps & Jones, in May, 1861. In the month of July or August, next following, the suit was compromised and settled by the parties, without any participation by Patterson in the settlement. Soon thereafter an agent of Phelps & Jones — they being non-residents — applied to Patterson and instructed him to dismiss the suit, which he did not do until October, 1865. Why the suit was not dismissed at an earlier day is not shown, nor does it appear that any provision was made for payment of the attorney’s fee, or the cost.

It is insisted for the • appellants that Patterson’s claim— which was an open account — was barred by the limitation act of three years; because, as is contended, the statute commenced running at the time of the compromise and settlement, in 1861. The court thinks differently. The right of an attorney to sue for services does not accrue until the termination of the suit in which he was employed, unless the relation of client and attorney is sooner ended; Nichols v. Wilson, 11 M. & W. Excheq. Rep., 106; Fenno v. English, 22 Ark., 170; and in this case, we are clearly of opinion that the suit did not terminate until it was dismissed. The statute, therefore, did not commence running until October, 1865; and consequently the claim was not barred. As before remarked, the evidence does not show why Patterson did not dismiss the suit at an earlier period; but, if he was eveng uilty of negligence in this respect, it is-not easy to perceive how it could affect the question here presented.

It follows that the court did not err in refusing to give the instructions moved by the appellants; nor is there any error in those given by the court, of which the appellants can complain.

Judgment affirmed.