author: English, C. J.

text:
    Pearce vs. Foreman.
    1. Bankruptcy: Bill to enforce vendor's equitable lien not maintainable against a bankrupt.

    The title to the real estate of a bankrupt passes to his assignee, and a bill to enforce the vendor’s equitable lien cannot be maintained against the bankrupt.
    2. Vendor’s Lien: Defense of innocent purchaser for value.

    One who sets up this defense in a proceeding to enforce the vendor’s equitable lien should briefly state the contents of his deed, and show, independent of its recitals, the consideration, and that it was bona fide paid; and should positively deny notice before payment and delivery of the deed whether it- is charged or not, and where notice is specially charged, should deny all circumstances referred to from which it could be inferred.
    3. —Burden of pi'oof.

    Where the defense of innocent purchaser for value is set up affirmatively, and not in response to averments of the bill, the defendant must show by the proof an actual, and fully completed, purchase for value.

      4 — Bight of action where the note is transferred by delivery as collateral security.

    Where the holder of a note for the purchase money of land delivers it to another as collateral security, without assigning it, the former may maintain a bill to enforce the equitable lien against the land.
    APPEAL from Phillips Circuit Court.
    Hon. L. H. Mangum, Special Judge.
    Garland, for appellant.

      TJ. M. Rose, contra.

   English, C. J.

This was a bill to enforce a vendor’s lien, brought in the Phillips circuit court, by Thomas. Pearce against John J. Foreman, alleging in substance, that on the 17th of December, 1858, plaintiff sold to defendant the S. E. 1-4 of sec. 18, T. 2 N., R. 3 E., 160 acres, for $1,120, one ■third cash, and the balance in one and two years, for which notes were given. That at the time of the sale, plaintiff executed to defendant a deed for the land, which was duly acknowledged and recorded, and copy exhibited. That the note first maturing was paid. That in April, 1866, plaintiff brought suit on the second note, in his own name, for the use of Wm. D. Bice, and afterwards, in the same year, obtained judgment, on the law side of the Phillips circuit court, against defendant for $496.51, principal and interest due on the note, etc., which remained unpaid, and a transcript was made an exhibit. That the note was never assigned to Bice, but delivered as collateral security for a debt which was due to Bice from plaintiff; and that the note and judgment belonged to plaintiff. That since the judgment was obtained, defendant had been duly adj udged a bankrupt, under the provisions of the act of congress of March 2, 1867, and received his discharge. That no part of said judgment had been paid, and the same was a lien upon said tract of land. Prayer that the judgment be decreed to be a lien, and the land sold by a commissioner for satisfaction.

The deed exhibited with the bill recites the payment of the purchase money; and was filed for registration Dec. 23, 1859. Foreman answered, admitting the purchase of the land at the time and on the terms stated in the bill, and that the deed exhibited was a copy of the original, executed to him by plaintiff. Then states that on the-day of-, 1859, he (Foreman) sold to one J. 0. Boyd fifty acres of said tract of land, and executed his bond for title thereto, which, not being under his control, he was not able to produce. That said Boyd was a purchaser of said land for a valuable consideration, and without notice of any purchase money being due therefor from defendant. Further states, that on the 12th da3r of December, 1865, and before the rendition of said judgment, he sold and conveyed to E. H. Bartlett, of Phillips county, the remainder of said tract of land, being 110 acres, which would more fully appear by reference to exhibit A., made part of his answer. That he was not the owner, and had no interest in said tract of land at the rendition of said judgment. That said Bartlett was a purchaser of said land for a valuable consideration, and without notice as to any purchase money being due therefor from defendant.

After Foreman’s answer was filed, there is a record entry of 14th December, 1871, stating that the parties appeared, by their solicitors, and, on motion, leave was granted to make Edward H. Bartlett, and the unknown heirs of John C. Boyd deceased, defendants; and thereupon Bartlett entered his appearance, and a warning order was made for the unknown heirs of Boyd.

Bartlett answered. He stated that it was true, as would more fully appear by exhibit A. to Foreman’s answer, that he purchased said land therein mentioned, at the time and for the consideration mentioned, and makes said exhibit his own.

That he was a purchaser of said land for a valuable consideration, and without any notice of any incumbrance on the same, or that any of the purchase money was due or unpaid, to any party. Knew nothing of the judgment mentioned in the bill, and made no answer as to that.

Exhibit A. to Foreman’s answer, adopted by Bartlett as an exhibit to his answer, is a deed from Foreman and wife to Bartlett, for 1,180 acres of land, made up of a number of tracts, and among them 110 acres of the tract in controversy, described as the fractional S. E. 1-4 of sec. 18, etc. The deed recites a consideration of $15,000, as in hand paid by Bartlett to Foreman, and bears date 12 th December, 1865.

After Bartlett answered, the plaintiff, on leave, filed an amendment to his bill, alleging, in addition to the allegations made in the original complaint, that Foreman’s discharge in bankruptcy did not operate to release him from the payment of the unpaid purchase money of said land, because of a fraud perpetrated by him upon the rights of the plaintiff, in this, to wit: that in December, 1865, Foreman was still seized of said land, and plaintiff’s lien thereon for the unpaid purchase money was unimpaired, and said purchase thereby” amply secured; but said Foreman being at that time largely indebted, and in failing circumstances, and in part already insolvent, violated the good faith which the said plaintiff reposed in him in delivering him a deed to said land before the full payment. of the purchase money, and conveyed the .-said land to his brother-in-law, the said Bartlett, without' notice, as said Foreman avers; that the purchase money remained unpaid, intending, by said conveyance to deprive plaintiff of his lien on said land, and debar him from ever recovering the unpaid purchase money; wherefore, plaintiff further prays that judgment in personam be rendered against said Foreman for said unpaid purchase money, etc.

- An attorney, appointed to represent the unknown heirs of Boyd, reported to the court that he had made diligent inquiry and could learn of no heirs of Boyd, or other persons interested in the land, except those before the court. That he had no knowledge of the facts set forth in the complaint, but required strict and full proof the same.

■ The cause seems to have been submitted upon the above pleadings without evidence, and the court dismissed the bill for want of equity, and plaintiff appealed.

1. Had a demurrer been interposed to the original bill by Foreman, it may be that it should have been sustained. He was the.only person made defendant, and the bill averred that he had been adjudged a bankrupt under the act of congress of March 2, 1867, and received his discharge. If so, and he was the owner of the land against which appellant sought to enforce his alleged lien for purchase money, when adjudged a bankrupt, his title passed to his assignee, subject to the equitable lien of appellant for unpaid purchase money, and there remained no ground on which the bill could be maintained against Foreman. Bump., 107; Story’s Eq. Plead., secs. 1228, 1526.

Foreman did not demur to the bill, but answered, and in his answer disclosed the fact that before he was adjudged a bankrupt, he had sold fifty acres of the land to Boyd, and given him a bond for title, and the remainder to Bartlett, and made him a deed. If this be true, nothing passed to Foreman’s assignee in bankruptcy but the legal title to the fifty acres, subject to the equitable rights of Boyd or his representatives, and of appellant.

Whether the allegations of fraud made in the amendment to the bill against Foreman, and which he"did not answer, were sufficient to make him personally liable, notwithstanding his discharge, we need not decide.

2. On the disclosure in the answer of Foreman that he had sold fifty acres of the land to Boyd, there was an attempt to make his unknown heirs parties. Publication was ordered, without amendment of the bill or affidavit, but it does not appear to have been made. Gantt’s Dig., secs. 4528-9.

The statement in the answer of Foreman that he sold fifty acres of the land to Boyd, and gave him a bond for title, and the general averment that he was an innocent purchaser, without notice, would not be a good defense if pleaded by Boyd or his heirs, because notice at any time before the deed is executed is sufficient.

It was proper, however to make the legal representatives of Boyd parties.

3. But Bartlett was made a party, and answered the bill, setting up title to one hundred and ten acres of the land. He avers that he purchased the land of Foreman, at the time and for the consideration mentioned in the deed, made an exhibit to the answer of Foreman, and that he was a purchaser for a valuable consideration, without notice that any^of the purchase-money was due to appellant and unpaid.

This answer was too loose to make out the defense of an innocent purchaser.

To make out the defense of innocent purchaser for value, it-is necessary that the purchaser should, in his answer or plea, state the deed of purchase, the date, parties and contents briefly,, and that the vendor was seized in fee and in possession, and. should state the consideration, with a distinct averment that it was bona fide and truly paid, independent of the rental of the-deed; and should deny notice previous to, and down to the-time of paying the money and the delivery of the deed; and if notice is specially charged, should deny all circumstances-referred to from which notice can be inferred. The notice must be positively, and not evasively denied, whether it be or-be not charged by the bill. Boone v. Chiles, 10 Pet., 210; Ledbetter v. Walker, 31 Ala., 177; Wells v. Morrow, 38 id., 128; 2 Lead. Cas. Eq., Hare & Wall., 91; Byers & McDonald v. Fowler et al., 12 Ark., 286; Miller v. Fraley et al., 21 id., 35 ; Tuley et al. v. Ready et al., 27 id., 98.

Nor did Bartlett produce any evidence to sustain his answer, bad as it was. Where the defense of innocent purchaser is setup affirmatively, as in this case, and not in response to allegations of the bill, he must show an actual purchase for value fully completed, though he may not be bound to prove negatively that he had no notice át the time of the purchase. 2 Lead. Cas. Eq., Hare & Wall., 124, 125.

4. It is insisted for appellees that appellant showed no right, to maintain the bill against any of the parties. That the legal title to the debt was in Rice, for whose use appellant brought the suit at law on the note for the unpaid purchase money, and obtained judgment. There is nothing in this. The bill alleges that the note was not assigned to Rice, but delivered to him as collateral security for a debt due to him from appellant, and that the note and judgment belonged to appellant. Being the owner of the debt, he had the right to bring the bill to enforce the equitable lien upon the land, if there was any, as against parties claiming the land. Crawley v. Riggs et al., 24 Ark., 563.

As to appellee Bartlett, who failed to interpose a valid defense, the bill was improperly dismissed.

The decree dismissing the bill must be reversed, and the cause remanded for further proceedings.


source: Caselaw Access Project

license: Public Domain

text:
    Mayor, etc., of Helena vs. Thompson.
    Municipal Corporation: "When liable for damage resulting from an insufficient ditch, etc.

    Where a city left it to her engineer to determiné the capacity of a ditch and culvert required to carry off the water of a natural stream, which was turned from its natural channel by the raising of a street, and the ditch and culvert have not the capacity to pass off the water, whereby it flows back upon and damages the adjacent lots, the city is liable for the damage.
    APPEAL from Phillips Circuit Court.
    Hon. W. H. H. Clayton, Circuit Judge.

      John J. Horner, for appellant.

      TI. M. Rose, contra.

   English, C. J.

The complaint in this case alleged in substance, that the plaintiff, Arthur Thompson, was the owner of certain lots in the city of Helena, which are described, with the rights, privileges and improvements thereto belonging, and had owned, used and occupied said lots by himself and tenants for ten years. That on the — day of — 18 — the defendants (the mayor and council of the city of Helena) made an order to fill up and raise Columbia street from Eighter street down to and beyond Elm street, in said, city, and by their order and direction caused said Columbia street, for the distance aforesaid, to be filled and raised to a height of five feet above its former and natural level; and the said work Was done in a negligent and unskillful manner; and thereby obstructed and changed the natural course and flow of a certain small stream running near and through the said premises, known as Eighter Branch, which ever before afforded a sufficient outlet and drainage to carry off the water from said premises.

That by filling and raising said street in a negligent manner as aforesaid, and obstructing and hindering the natural course and flow of the said stream as aforesaid, the said premises became and ever since have been liable to deep overflow, to wit: to a depth of from one to five feet, and had been and were frequently inundated, by reason whereof said premises became and were almost valueless to.plaintiff.

That before the filling and raising of said Columbia street as aforesaid, said Eighter Branch had ever flown in an eastern course across said street, at or about its intersection with York street, and at or about its intersection with Elm street, which was the natural and accustomed course of said stream ; but the same, by the filling and raising of said street as aforesaid, was obstructed and forced to run in a southerly course into a new and difficult channel of insufficient size to carry off the water, in consequence 'of which it backed upon and ove«r flowed said premises.

That before tbe raising of said street as aforesaid, said premises were good, tenantable lots, of great value to plaintiff, and were exempt from overflow, with the exception of a small part thereof, upon which the water rose a few inches during very heavy rains. That plaintiff had petitioned the defendant to ascertain, assess and award him damages, etc., which was refused. Damages laid at $2,000.

The defendant answered, admitting that by an ordinance of the mayor and council, of February 7, 1871, exhibited, she caused to be graded Columbia street, in accordance with the provisions of said ordinance, and in making said grade, did cause said streets to be filled, raised from Righter street down to and beyond Elm street several feet above its former level, etc. Denies that said work was done in a negligent and unskillful manner, but avers that the same was done with care and skill, and in the manner provided in said ordinance. Admits that the channel of Righter Branch, prior to the grading of said street, was in an easterly direction at or about the intersection of Columbia street with York and Elm streets* and that under the ordinance providing for the grading of Columbia street, it was provided that the channel of said stream should be changed and carried down the west side of Columbia street; and averred that the same was done as provided in said ordinance, and with care and skill. Admits that said branch in very heavy rains overflows the lots adjacent thereto; could not say whether the lots of plaintiff were overflowed or not, but avers that they were subject to overflow before the grading of Columbia street, etc. Admits that plaintiff petitioned for assessment of damages, which was refused.

The plaintiff introduced evidence on the trial, conducing to prove that the raising of Columbia street stopped the flow of Righter Branch along its natural channel, and caused water to flow back on and damage his lots, because o£ the want of capacity of a ditch dug along the street, and a culvert constructed to pass off the water. The defendant introduced evidence conducing to prove that the grade of the street was made in accordance with the ordinance exhibited with the answer, and the ditch and culverts provided for by the ordinanee, constructed under the directions of an engineer employed by the city, and believed to be competent, etc.

The plaintiff asked eighteen instructions to the jury; the 1st, 8th, 10th, 11th, 12th, 16th, and 18th were given against the objections of defendant, and the others refused. All of the instructions moved by the defendant were given.

The jury rendered a verdict in favor of the plaintiff for $1,250 damages. A new trial was refused, and the defendant excepted and appealed.

The instructions given for appellee against the objection of appellant are as follow :

“1. If the jury believe from the evidence that the all egations made in the complaint are true, they will find for the plaintiff, and assess his damages at any sum not exceeding $2,000, in accordance with the proof.

“ 8. If they believe from the evidence that the grading of said Columbia street, as provided in said ordinance (No. 412), was done in a careless, unskillful or negligent manner, whereby the said lots and premises of the plaintiff were damaged, they will find for plaintiff, and assess his damages according to the proof.

“10. If the jury believe from the evidence that the provisions of said ordinance were executed by the defendant, her agents or servants, in an imperfect or unskillful manner, whereby the premises of plaintiff were damaged by overflow from said Righter Branch, they will find for plaintiff, and assess his damages in accordance with the proof.

' “ 11. If they believe from the evidence that said defendant failed to prescribe the capacity of the ditch or drain ordered to be opened as provided in said ordinance, but left the determination of its dimensions to her agents and servants, and the evidence shows the work was done imperfectly and unskillfully, the defendant is liable in damages for such unskillful execution of the work, and the jury will so find.

“ 12. The jury are instructed that municipal corporations are responsible for the mistakes or want of skill of a surveyor or engineer, when he acts for and under the directions of the corporation in- planning or making works or improvements ordered by the corporate authority.

“16. If the jury believe from the evidence that the city, in raising the grade of Columbia street, filled up the bed of Righter Branch, a natural drain for the lots mentioned in this suit, and failed to exercise her judgment in making suitable provisions to carry off the water so diverted by having the work done in an imperfect, negligent and unskillful manner, they must find for plaintiff and assess his damages as proved.

“ 18. That compliance with said ordinance (No. 412) is a question of fact, and if the jury believe from the testimony that the same was carried out imperfectly, negligently and unskillfully, the city is liable in damages.”

As respects municipal corporations proper, whether specially chartered or voluntarily organized under general acts of incorporation, it is, we think (says Judge Dillon) universally considered, even in the absence of a statute giving the action, that they are liable for acts of misfeasance positively injurious to individuals done by their authorized agents or officers in the course of the performance of corporate powers constitutionally conferred, or in the execution of corporate duties; and it is almost but not quite the uniform doctrine of the courts that they are also liable when the wrong resulting in an injury to others consists in a mere neglect or omission to perform an absolute and perfect (as distinguished from a discretionary quasi judicial or imperfect) corporate duty owing by the corporation to the plaintiff, or in performance of which he is specially interested. Dill. Mun. Corp.,p. 721-2, sec. 764. 778.

In considering the liability of municipal corporations for injuries to private property in consequence of being overflowed with water caused by improvements made or work done upon streets under their authority, it is important to distinguish between natural streams fbwing in channels between defined and actual banks, and surface water caused by rain or melting snow, for the law relating to them is very different, and the powers of the municipality much greater with respect to the latter than the former. Assuming the stream to be of the former character (a natural stream flowing in a channel between defined and actual banks as Righter Branch seems to have been), and that the municipality is without any legislative powers, changing what would otherwise be the legal rights of the parties, its authorities under the general power to grade and improve streets, or construct public improvements beneficial to it, cannot deprive others of their rights in the water course, or injure them by badly constructed and insufficient culverts or passage ways, obstructing the free flow of the water without being liable therefor. Dill. on Mun. Corp., sec. 797 and cases cited. The rule is different as to surface water. Id., 798; City of Little Rock v. Willis, 27 Ark., 572.

The ordinance exhibited with the answer of appellant, authorized the mayor to employ a competent engineer to lay off, estimate and establish the grades, ditches, culverts, etc., and the ditch along Cumberland street was to be extended and continued under the direction of the improvement committee,

It appears that the mayor and council of the city did not undertake to decide, determine and fix the capacity of the ditch and culvert required to conduct and carry off the water of Righter Branch when turned from its natural channel by the raising of Columbia street, but left that to be done by the engineer. As we have above indicated, the evidence conduced to prove that the ditch and culvert constructed under the directions of the engineer had not the capacity to pass off the water, and that it flowed back upon, and damaged the lots of the appellee; and the city was responsible for the unskillfulness of the engineer. Rochester White Lead Co. v. City of Rochester, 3 Comst., 466.

Whilst some of the instructions above copied may be subject to verbal criticism, yet taking them altogether they expressed the law substantially in accordance with established principles as above shown, and appear to have been warranted by the evidence.

The instructions given at the instance of the appellant, and those given for the appellee, left the matters of fact in issue fairly to the jury, and there was no want of evidence to> support their verdict in any material matter.

The judgment must be affirmed.


author: Walker, J.

text:
    Robinson vs. Kruse.
    1. Landlord: Has no right to the possession of the crop.

    The mere ownership of land confers no right to the possession and disposal of the crop raised on it by tenants. The right to rent must be asserted and perfected under the provisions of the law.
    2. Mortgage : Mortgagee of a wop may maintain trover for its convwsion ly the landlord.

    The mortgagee of a crop may, after the maturity of his rights under the mortgage, maintain trover against the owner of the land who takes possession of the crop and converts it for the rent.
    3. Former Recovery : In replevin no lar to trover.

    A recovery in replevin is no bar to a subsequent action of trover by the defendant in replevin.
    APPEAL from Phillips Circuit Court.
    Hon. J. H. Williams, Special Judge.

      E. Carlton, for appellant.

      Chas. E. Carlton, and Dodge & Johnson, contra.

   Walker, J.

Robinson, the owner of a plantation, rented it in the year 1870, to Greenlee, who sublet the land to Mrs. McMahon, who contracted with certain laborers to cultivate the land for one half the crop raised. Mrs. McMahon also contracted to furnish supplies to the laborers to be paid by them, .and did for a time furnish them with supplies, but finally failed to do so, and the plaintiff Kruse furnished supplies to the laborers, and took from them a mortgage upon their part •of the crop raised, with a clause of trust and power to take possession of and sell the crop, if the sums advanced for supplies was not paid. Twenty-seven bales of cotton were raised on the place. The laborers became apprehensive that the ■cotton would be removed, and had the whole crop attached •and taken off by the officer. The attachment suit was against Robinson. Mrs. McMahon set up claim to the cotton and prepared her interplea, which seems not to have been filed, and was possibly abandoned, because by an agreement made between the attorneys of Kruse and Mrs. McMahon and Robinson, the cotton was divided according to the contract between Mrs. McMahon and the laborers, who were the plaintiffs in the attachment suit. Fourteen bales of cotton were set apart for Mrs. McMahon, and thirteen for the laborers which, one of the witnesses deposed, was within one pound of an equal division. Mrs. McMahon took off her part of the cotton, and the thirteen bales set apart to the laborers were to remain .and await the final disposition of the suit, which was subsequently dismissed by the plaintiffs. Before it was dismissed, the laborers gave a bill of sale to Kruse for the cotton set apart to them, who took it into possession. Robinson replevied the cotton out of the possession of Kruse, and in the replevin suit, judgment was rendered in favor of Robinson, who sold the cotton and received the money for it.

Kruse brought an action of trover against Robinson for the cotton. Robinson answered and denied that the cotton was plaintiff’s, and claimed it as his under his claim as landlord. He also answered that he had recovered the cotton in an action of replevin, and set this up in bar of a second action.

The court sustained a demurrer to this second paragraph of the answer and upon the issue thus formed upon the first, the case was submitted to a jury, who found for the plaintiffs, upon which judgment was rendered and defendant appealed.'

Much has been said in argument by counsel as to the respective rights of the parties as landlord and as laborers to specific liens on the crops raked. But as in this case, the suit to enforce the laborers’ lien was dismissed, and as the landlord has failed to set up or assert his claim as such, the case must be determined between the parties upon their rights under the ■contract.

Under the contract with Mrs. McMahon, the laborers were to have one half the cotton, which was divided, and Mrs. McMahon got her part. That set apart to the laborers seems by agreement to have been held over to await the final determination of the attachment suit. "With this, Mrs. McMahon had nothing to do. She had failed to file her interplea and accepted a settlement, in which she received all to which she was entitled.

There is some conflict of evidence as to the claim of Robinson, but the weight of the evidence is, that on the day and at the time the cotton was divided, Robinson was present and disclaimed any interest whatever in the cotton; but be this as it may, he had by contract no claim whatever to the cotton,, and seems subsequently to have based his whole claim upon the fact that he was the owner of the land, which claim, if prosecuted within the time prescribed by statute, might have-secured to him a title' to the cotton for rents; but as this was not done, Robinson had no right whatever to take the cotton into possession and sell it. The mere fact that he was the-owner of the land on which the cotton was raised conferred upon him no such right. Like all others who have inchoate-rights, they must be asserted and perfected under the provision of the law.

It has been contended that as the bill of sale was given whilst the attachment suit was pending, Kruse could gain no-title under it. Concede this to be the case, and still the prior-right under the mortgage had matured, and Kruse had under it a title to the property, and by express provision, to take the cotton into his possession and to sell.

It is also urged that the recovery in the action of replevin is a bar to a recovery in this action. We cannot so consider it. It is true that both actions were for the same property, but there is no such identity of cause of action as to bring the case within the rule. Nothing appears to show whether the action was for the taking or the detention of the property, or whether by the state of the pleadings the title to the property or merely to the possession was put in issue. We think the demurrer to the second paragraph of the answer properly sustained.

The material questions at issue were the ownership of the cotton by the plaintiffs and its conversion by the defendant The proof upon both these points, as well as of the value of the cotton, was sufficient to warrant the verdict of the jury.

The instructions given were substantially correct, and that refused to be given at the instance of the defendant was, under the state of the case, properly refused.

Let the judgment be affirmed.


text:
    Wilson vs. Tebbetts.
    1. Principal and Surety: Effect of the discharge of one surety by opera, tion of law.

    The discharge of one of several sureties by the failure of the creditor to sue within thirty days after notice under the statute is personal to him, and will not affect the liability of his co-sureties.
    3. — Effect of indemnity on the rights of surety.

    Where the principal debtor, in order to indemnify his sureties against payment of the debt, executes a deed of trust on property sufficient in value for that purpose, none of the sureties, whether named in the deed or not, can require the creditor to sue on thirty days’ notice under the statute.
    APPEAL from Pulaslci Circuit Court.
    Hon. John Whytock, Circuit Judge.

      Clarh & Williams, for appellant.

      U. M. Base, contra.

   Walker, J.

Wilson loaned to Van Horn $3,000, the money of his ward, Wallace, and took Van Horn’s note for the payment, with Gregg, Tebbetts and nine others as sureties. The note was dated December 5, 1857, due one year after. Soon after the note had been executed, at the instance of the sureties and to indemnify them from loss by reason of their suretyship, Van Horn conveyed 'by deed of trust real estate ample in 'value to pay the débt, to a trustee, with power to sell the property after twenty days’ notice for cash, and to pay the debt, should Van Horn fail to pay the same when due. A short ■time after the note became due, and without sale under the deed of trust, Gregg, one of the sureties, gave Wilson notice to sue within thirty days. Wilson failed to bring suit as required by statute. No steps were taken by the sureties to have the property sold under the deed of trust for some eight years. In the meantime, the buildings on the lots, which constituted the chief value of the property, were destroyed by fire. The property, when sold, brought $300, which sum was . credited on the note.

Wilson brought suit against Tebbetts, who pleaded the discharge of Gregg in bar. The case was submitted to the court sitting as a jury upon the above agreed state of facts.

The plaintiff asked the court to declare the law applicable to the state of case to be:

1. That a notice to sue given by one of the joint sureties to the note sued on, and the discharge of such surety by reason of a failure to comply with such notice, does not discharge the other sureties to the note.

2. That where sureties to a note or bond procure a mortgage or deed of trust to be executed by the principal upon property ample in value to pay the debt, indemnifying such sureties against loss by reason of such suretyship they cannot, while such deed of trust remains in force, discharge themselves from their obligation as sureties by giving notice to the creditor to sue.

The court refused to declare such to be the law, and rendered judgment for the defendant, from which plaintiff appealed.

Prior to the statute, Gould’s Dig., ch. 157, mere delay or neglect on the part of the creditor to sue would not discharge the surety from liability to pay, even though by such delay the principal debtor should become insolvent. The appropriate remedy of the surety was in equity, where he might, by paying the debt, or under strong equitable grounds, become so far subrogated to the rights of the creditor as to take his recourse against the principal for his own protection.

The statute, ch. 157, sec. 1, provides that “any person bound as security for another in any bond, bill or note for the payment of money, or the delivery of property, may at any time after such action has accrued thereon, by notice in writing, require the person having such right of action forthwith to commence suit against the principal debtor and the other party liable. Sec. 2. If such suit is not commenced within thirty days after service of notice, etc., such surety shall be exonerated from liability to the person notified.”

The suit in this instance is at law, but whether at law or in equity, the rights of the sureties are equitable and are to be determined on equitable principles. Hempstead v. Watkins, 6 Ark., 317.

In all that regards the creditor, both the principal and the surety are primarily and equitably bound to fulfill the contract. But as between themselves, the whole duty of performance rests, in contemplation of equity, on the principal.

The office of the statute is to impose a duty on the creditor to come to the relief of the surety in case of apprehended danger of liability, by reason of the inability of the principal creditor to pay. It confers a privilege upon the surety to be thus released from his suretyship, and as a consequence of neglect of the creditor to sue, the loss of his remedy against such surety. We have repeatedly held that the surety who gives such notice is discharged from the payment of the debt, unless suit is brought within the time prescribed by the statute.

The question now to be considered is, Does the discharge of one of the sureties who gives the required notice, also discharge those who have not given notice ?

The counsel for Tebbetts contend that such is the effect of the discharge of one surety who has given notice, upon the liabilities of the co-sureties who failed to do so, and to sustain them in this position, have cited several adjudicated cases. That most strongly in point, and which would seem most fully to sustain them, is the case of Wright, Adm’r, v. Stockton, 5 Leigh, 153.

Under a statute of Virginia, substantially like our own, three out of four sureties gave notice to the creditor to sue ; suit was brought upon the bond and the three were discharged Suit was then brought against the estate of Wright, the surety who had not given notice.

When considering the case thus presented, Carr, J., said: “ In this case the creditor was required to sue by three of the sureties, and delayed to do so for an unreasonable time, in consequence of which dela}' the three sureties who joined in the requisition have been discharged by a judgment from all liability. It is contended that this does not discharge the defendant, because his intestate did not join in the requisition to sue. If we take the statute literally, it would seem to require that when there were more sureties than one, all shall join in the requisition, for the words are: ‘ Where any person or persons are the surety or sureties in a bond, etc., it shall be lawful for such surety or sureties to give notice, etc.’ Yet this construction would in a great measure defeat the remedy, as it would put it out of the power of one, where there are many sureties, to prevent the notice by refusing to join.

“ If we look at the reason and object of the law, it would seem that a notice to sue by a part of the sureties would be as effectual as one given by them all * * * Again, we know that there is a principle of the common law attaching to all joint obligations, by which a discharge of one obligor is a discharge of all.”

It is upon this construction of the statute and upon the, announcement of a common law principle with regard to joint obligations, which can have no application in this case, because we have a statute which makes all contracts joint and several, that the court in that ease held a notice by one surety who gave notice, to be a discharge of all.

With due respect for the conclusions which the court seemed to have reached, we think that neither the intent of the legislature nor the language of the statute sustains the court in its decision. Certainly it would not be a fair construction of a statute such as ours, which says; “ Any person bound as security, etc., may by notice require suit to be commenced,, etc., and that if suit is not brought, such security shall be exonerated.”

Thus we see the right is given to “ any surety to give notice to sue,” and if suit is not brought, it discharges the surety who gives it. By the first section the right to give such notice is given to any person bound as surety, and it clearly gives the right to give notice to one or more who may feel themselves insecure by reason of the failing circumstances of the principal debtor, whilst the right to be discharged is clearly limited to such surety as has given the notice. Thus considering this decision and the course of reasoning upon which it was reached, we can give it no controling influence in the consideratión of the case before us.

The People v. Buster, 11 Cal., 215, has also been cited by counsel for defendant as sustaining their position; and although the question in that case arose upon the effect of notice by one upon the liabilities of others who failed to give notice, the grounds upon which the court held that the discharge of one surety upon notice was also a discharge for his cosureties were, that the obligation was joint, not joint and several.

In the case of Letcher, Adm'r, v. Yantis, 3 Dana, 160, one surety sued another surety for the recovery of one-half of the sum which he as surety had been compelled to pay to the creditor. The intestate of defendant had given notice to sue-under the provisions of a statute much like our own. The surety who gave the notice was held to be discharged from contributing to the payment of money which the cosurety,' who gave no notice, had paid. This case but accords with our former decisions as to the discharge of the party giving the notice, and so far from being an authority in support of the defense, is fully in 'support of our construction of the statute in this case. Chief Justice Eobinson said: “If Letcher was exonerated from all liability to the obligee, we cannot perceive any reason for presuming that he was responsible to Yantis, who elected tó remain bound for the debt; ” and so we may with like ^propriety say, if Gregg is exonerated by reason of his notice to Wilson to sue, no good reason is perceived why Tebbetts, who had an equal right to give the notice that Gregg had, but failed to do so — elected to remain bound (for that is the legal effect of his act), should also be discharged.

We have examined with some care the other authorities referred to by. counsel, and find that they have no such application to the question at issue as to require particular notice.

Giving to the numerous authorities cited their full force, and that they clearly show that a change in the terms of the contract without the consent of the obligors is a discharge to all of them, still it is equally clear that this change or alteration must be effected by the act of the obligee or creditor, and not by mere operation of law; as for instance, where one of several obligors is discharged in bankruptcy, or where under the statute the creditor is, after notice, required to present his claim for allowance against an estate within a] given time and fails to do so ; in these and all like cases the discharge is said to be by operation of law.

Thus in the case of McBroom et al. v. The Governor et al., 6 Porter, 32, the facts were that McBroom executed a bond with security, to the state of Alabama, for the discharge of his official duties. McBroom died; administration was had upon his estate, and notice given to all persons who held claims against said estate to present them within a given time or they would be barred. The obligee failed to present the claim within the time prescribed by the statute. Suit was brought against the securities, and their defense was, that as the obligee had neglected to present the claim within the time prescribed by the statute, the right of action was barred by the statute of non-claim as to the principal, and because the creditor had by his neglect discharged the estate of the principal from liability, they, as sureties, were also discharged.

Q-olthwait, J., upon this state of case, said^: “ The general rule without doubt is, that the extinction of the liability of the principal debtor is also an extinction of the liability of the surety. But an exception obtains when the extinction is caused by operation of law. * * * In the case under consideration, no act is alleged to have been done by the creditor which has affected the subject matter of the contract, or which has changed the situation of the parties ; he is charged alone with having been passive, and with an omission by reason of which it is said this right is extinguished as to all the obligors. * * * If, in consequence of .the delay of the creditor to pursue his-remedy against the estate of the principal debtor, a loss has accrued, it is not perceived how this circumstance, of itself, should destroy the obligation of the surety any more than in any other case where loss is the consequence of delay of the creditor.”

In Routon's Adm'r v. Lacy, 17 Mo., 399, the facts were that Todd as principal, and Hall and Lacy as sureties, executed their note to Routon. Hall, one of the sureties, died, and the administrator of his estate served notice on Routon, the creditor, requiring him to bring suit under a statute similar in its provisions to our own. Routon failed to sue, and died. Todd, the principal, also died, and his estate proved to be insolvent. Lacy, the surviving surety, who failed to give notice to sue, was sued upon the note and pleaded the discharge of his co-surety Hall, as a discharge of himself also.

In regard to which,- Scott, J., who delivered the opinion of the court, said : “ The only question in the case which is attended with any difficulty is, whether one surety can avail himself of a notice given by his co-surety, or whether if the creditor, after a notice from one surety, neglects to sue as required by law, be will lose his recourse against all of the sureties where there are more than one. There may be eases where such a construction of the statute would be manifestly unjust. If the co-surety should be consulted, and not wishing to be sued, should refuse to join in the notice, he would scarcely be entitled to any benefit from it. On .the other hand, to maintain that the failure of the principal to sue when required could not be taken advantage of so as prevent his becoming liable for the entire debt, in cases where he had no notice, would operate to increase his responsibility and vary his undertaking without his knowledge or consent. * * * The surety must look after his principal. He knows that he is bound. He had a right to give the notice to sue; from his neglect to do so, the creditor may presume that he is content to remain bound. If the liability is not increased; if his contract is not affected to his prejudice by any act of the creditor, he has no cause to complain of the failure-to bring suit. "While the law will not permit the creditor to injure a surety by his conduct or neglect, yet his obligation will not be sorelaxed as to make it more a snare than the guaranty for the payment of a debt.”

As this question is for the first time brought before us for consideration, we have indulged in making unusually full extracts from the several decisions which havd been cited by the counsel on both sides, as well as others to which we have had access, and the result has led to the conclusion that, under a fair and just construction of our statute, any one or more of the sureties bound in a bond, bill or note with their principal, may at any time after the debt becomes due, either jointly or severally, give to the obligee or creditor notice, as prescribed in the 1st sec. of ch. 157, Gould’s Dig.; and that the discharge provided for in the 2d sec. of that chapter is only a release to the party or parties who give such notice, and that the court erred in refusing to give the first instruction asked by plaintiff.

The question presented in the second instruction or ruling of the court, asked by plaintiff and refused by the court, distinctly presents the question as to whether the surety who takes from his principal debtor money or property, whether by pledge, mortgage, or by deed of trust, sufficient in value to indemnify him against loss by reason of his suretyship, and whilst the property or estate so remains in his hands, can resort to the statute notice to compel the creditor to proceed against the principal debtor.

In order to a proper understanding of the’question, it must be kept in mind that the right to redress, as between the principal and surety, is strictly equitable, and is to be determined upon principles of equity, whether proceeded upon in a court of law or equity. The liability of a surety, although direct as between himself and creditor, is contingent as between himself and his principal; he is allowed to interpose and - hasten the collection of the debt only upon the ground that delay is hazardous to his rights. Although bound for its payment, it is not properly his debt, and where the principal debtor places money or conveys property of ample value to satisfy and pay the debt, there remains no equitable ground upon which a claim to hasten the collection rests.

From the time the property or money passes into the hands of the sureties, the relations between the sureties and debtor change, in so far that they stand in the attitude of principal debtors. We think that the following adjudicated cases fully sustain us in this conclusion.

In the case of Chillon & Price v. Robbins, Paynter, etc., 4 Ala., 223, the creditor gave to his principal debtor time for payment, but without the knowledge or consent of the sureties. The sureties had obtained a deed of trust on the property of their principal to secure them from loss by reason of their suretyship. Ormand, J., who delivered the opinion of the court, said: The taking by the sureties of a deed of trust from the principal debtor to secure them against liability, and ample for that purpose is, in effect, an appropriation of the effects of the principal to the payment of his debt, and they will not therefore be permitted to urge that they are not. responsible.” The case of Moore v. Paine, 12 Wend., 123, is even stronger. There the principal debtor was discharged with the consent of the creditor. But the sureties, being fully indemnified by the debtor, were held to be liable to the creditor. Nelson, J., said: “It is true that a release of one of two or more obligors to a bond operates as a discharge to all; but the rule is provisional, and a discharge under the insolvent law has necessarily no such effect. .* * * The generally acknowledged and familiar principle is,, that when the creditor deals with his debtor so as to alter the rights of the sureties, or in any way impair their legal remedies against the principal, the sureties are discharged. * * * But it is obvious that this principle has no application to this case. The sureties received from the debtor the whole amount to become due on the bond in question, and after that as between him and them, they were the principals and owed the debt. The discharge of Eine, the principal, could in no possible way interfere with their rights or liabilities, so long as they held in their hands a complete indemnity against the bond, and he is not accountable to them if they are obliged to pay.”

In the case before us, Van Horn’s sureties had taken a deed of trust on property amply sufficient to pay the debt with the power to sell in twenty days. Such was the state of case when Gregg gave notice to Wilson to sue in thirty days. The statute was not intended to be used to oppress the debtor; it was intended as a means of hastening the creditor in case the surety should be liable to loss by the insolvency of his principal. It appears from the evidence that this property remained for about eight years in the hands of the sureties, and near four years before it was rendered comparatively valueless by fire.

As a matter of public history we know that, for a part of that time, no sale could be effected on account of civil war.

If these sureties have equitable rights, they must arise out of their relations with Van Horn, and how far, if at all, after Van Horn had conveyed to them property of sufficient value to pay the debt, which they had permitted, to remain unsold for several years, and until after the most valuable part of it had been destroyed by fire, is a question not free from doubt. Be this as it may, there was certainly no such contingent liability on the part of the sureties to loss after the deed of trust had been executed, or at the time Gregg gave notice to sue, as to entitle them to a discharge from such liability under the provisions of the statute, and it is error in the court below to refuse to declare the law as asked in the 2d proposition of plaintiff. Erom the conclusions at which we have arrived, none of the sureties were discharged, nor could they, by notice to sue, properly ask for a discharge whilst they held the property of Van Horn sufficient in value to pay the debt, in their hands.

We have not overlooked the fact that Gregg’s name appears to have been omitted in the deed of trust, whether by accident in copying or otherwise, we have no means of ascertaining, according to the agreed state of facts upon which the case was submitted to the court below. It is stated that Van Horn made the deed of trust at the instance of his securities on the note of Wilson, for the indemnity of such sureties from loss, and the deed requires that the money for which the trust property should sell be paid in satisfaction of the debt, so that whether his name is omitted or not, the legal effect of the deed is as much a protection to him as to the other sureties, and as it is admitted that the property conveyed was of ample value to pay the whole debt, it must of necessity be an indemnity to all of them. If we had held Gregg to be discharged, it would have been proper for us to determine whether the securities who failed to give notice to sue, and were consequently not discharged, should be held responsible for the whole debt, or only for so much of it as they would have been bound to pay had none of the sureties been discharged ; but holding, as we do, that none of the sureties in this case were discharged, we will leave this question to be settled when it properly arises.

Let the judgment of the court below be reversed and the cause remanded.


author: Harrison, J.

text:
    Birnie et al. vs. Main.
    1. Statute cot Limitations : On a mortgage.

    To bar a proceeding to foreclose a mortgage, there must be an adverse holding for such a period as would bar an action of ejectment. The fact that the statute bar has attached to the debt secured by the mortgage will not aftect a proceeding to foreclose.
    2. — Adverse holding in ease of a mortgage.

    There must be an open and notorious denial of the mortgagee’s title, in order to constitute an adverse holding in favor of the mortgagor.
    3. — Decree on foreclosure where the debt is barred.

    In a proceeding to foreclose, a court of equity will render a decree in personam against the mortgagor for any part of the debt remaining undischarged by the sale, notwithstanding the remedy thereon is barred.
    4. Mortgage : Partial release by a prior mortgagee, effect of.

    If a mortgagee releases a part of the mortgaged premises, with actual! knowledge that a subsequent mortgage has been executed on another ! part, he thereby discharges the latter pro tanto.

    5. Notice : Record of a subsequent mortgage.

    The recording of a subsequent mortgage is not notice to a prior mort-j gagee as to rights vested under the prior mortgage.
    6. Usury.
    Plea of, not permissible while the act of 1868 was in force.
    7. Dower: Postponed to the vendor's claim for purchase money.

    The widow of the vendee is not entitled, as against the vendor proceeding for the purchase money, to dower in land purchased during coverture.
    APPEAL from Sebastian Circuit Court.
    Hon. J. H. Huckleberry, Circuit Judge.

      Walker, for appellant.

      Du Vail & Cravens, contra.

   Harrison, J.

On tbe 25tb of October, 1852, John Rogers sold and conveyed fo William M. Bennett and Joseph J. Walton, a lot of ground in the city of Port Smith, for the purchase money of which they gáve him jtheir three bonds, each for $1,000, 'payable at different times — the last, two years thereafter; and to secure their payment, they executed to him a mortgage on the lot, in which the wife of said Walton, Martha E. Walton, joined with her husband, but did not relinquish dower, ánd the same was duly acknowledged and recorded. Bennett and Walton went into possession and occupied the premises until the stores built thereon by them were, in the .month of September, 1860, destroyed by fire, since which time they have been unoccupied and vacant.

On the 19th of January, 1855, Rogers assigned the bond which fell due on the 25th of October, 1854, together with the mortgage, to John H. T. Main, the appellee.

On the 1st day of November, 1858, Bennett sold and conveyed his interest in the lot to Walton.

Walton, on the 28th of February, 1859, gave a mortgage on the west half of the lot to George S. Birnie, as security for a bond for- $5.000 payable on the 10th of February, 1860. Mrs. Walton joined also in this mortgage, and without relinquishing dower, and it was likewise duly acknowledged and recorded.

On the 10th of October, 1860, Walton gave Birnie another mortgage on the same half of the lot as a security for a note for $4.000, payable in two years. In this Mrs. Walton did not join, as in the other, but relinquished dower. It was also duly acknowledged and recorded. These debts due Birnie were reduced considerably by payments or credits which need not be particularly stated.

And on the 17th of October, 1860, Walton gave John Phelps a mortgage, in which his wife relinquished dower, on the same part of the lot to secure a note for $3,500, payable in two years, and which was also duly acknowledged and recorded.

"Walton, the 8th of July, 1859, sold and conveyed the east half of the lot to Bennett, and the appellee, on the 25th day of November, 1867, released the same from the first mortgage.

Walton died in 1861, intestate, and no administration was had upon his estate until after the bringing of the suit.

The appellee brought this suit, which was commenced on the 11th day of September, 1869, for a foreclosure of the first mortgage against the entire- lot, the bond held by him being the only one of those given for the purchase money remaining unpaid.

Bennett, Mrs. Walton the widow, and the heirs at law of Joseph J. Walton, Birnie, and Phelps, were made defendants.

After the suit was begun, William Y. Walton was appointed administrator of Joseph J. Walton, and was, upon his application, made a defendant.

The defendants, as defense to the plaintiff’s complaint, relied on the statute of limitations and the release by him of the east half of the lot; and two of them, Mrs. Walton and William Y. Walton, also one of the heirs, averred and set up as a defense to so much of Birnie’s counterclaim that the note for $4,000, secured by the mortgage of October 10, 1860, was given upon a usurious consideration.

The court decreed a foreclosure of all the mortgages against the west half of the lot, a sale thereof, and the payment of the mortgages in the order of their priority; and the payment by Bennett of any balance there might be of the plaintiff’s debt.

All the defendants except Bennett appealed.

That the remedy upon a bond, note, or simple contract for which a mortgage is given, is barred by the statute of limitations in no wise affects the right of the mortgagor to proceed in equity against the land mortgaged. To bar a suit for foreclosure, there must be an adverse possession for such length of time as would bar an action of ejectment.

In this case no adverse holding or possession was alleged; on the contrary, it was admitted that the premises had been unoccupied since September, 1860. And though they may very properly be considered as all the time in the possession of the plaintiff, as there was no open and notorious denial of the mortgagee’s title, their possession was his. Harris v. King, 16 Ark., 122; Whiteside v. Jackson, 1 Wend., 418 ; Jackson v. Walker, 7 Cow., 637 ; Lingan v. Henderson, 1 Bland, 236 ; Moreton v. Harrison, id., 491; Driver v. Hudspeth, 16 Ala., 348 ; Relfe v. Relfe, 34 id., 500; Hunt v. Hunt, 14 Pick., 374; Newman v. Chapman, 2 Rand., 93 ; 2 Wash. Real Prop., 158.

Nor will the statute, where the remedy on the debt is barred, preclude the court of equity in the suit for foreclosure from rendering a decree against the mortgagor for any remainder of the debt not discharged by the sale. In such case the decree in personam is but an incident to the decree of foreclosure; and when a court of equity once takes jurisdiction of a case, it will retain it for the purpose of complete relief. 1 Story Eq. Jur., 64 K.

As to the effect of the release, we find the doctrine to be that, when land is charged with a burden, the charge is as to every part equal, and one part ought not to bear more than its due proportion; but the right of a mortgagee or other incumbrancer to release a part from the charge is admitted, subject to the condition, however, that he does not thereby injure or impair the right of another. Therefore, if with the knowledge of a subsequent mortgage upon a part, he releases a different portion and throws an additional burthen on such part, he discharges pro tanto the part bound by the later mortgage. Every one is required so to deal with his own as to do no unnecessary injury to another. Cheesebrough v. Millard, 1 Johns. Ch. 409; Guion v. Knapp, 6 Paige, 35; Blair v. Ward, 2 Stock., 119; 2 Smith’s Lead. Cas., 272.

It is not shown or alleged that when the release was made, the plaintiff had notice of the other -mortgages. It is admitted that they were duly recorded ; but the authorities all agree that the recording of a subsequent mortgage is not notice to the prior mortgagee, and that a release by him of a part of the premises covered by his mortgage, but not by the other, will not have the effect to discharge the remaining parties of any part of the debt. Taylor's Ex'rs v. Maris, 5 Rawl., 51; Stuyvesant v. Hona, 1 Sandf. Ch., 419; Blair v. Ward, 2 Stock., 119 ; George v. Wood, Allen, 80 ; Howard Ins. Co. v. Halsey, 4 Seld., 271; James v. Brown, 11 Mich., 25; 2 Smith’s Lead. Cas., 273.

The effect of recording a mortgage or other conveyance is-not retrospective, or its object to affect rights already vested and secured, and a mortgagee, after having his deed recorded, is not required to search the record from time to-time to see whether other incumbrances have been put upon the land, with which he is no wise concerned.

The doctrine we have mentioned is one of equity and not of positive law ; and to bind the conscience of the mortgagee when dealing with his own property, he must have such notice] or information as would make the act, inconsequence thereof,] inequitable and unjust.

The supreme court of Michigan, in the case of James v. Brown, above referred to, speaking upon this subject, says: It is the duty of a subsequent mortgagee, if he intends to claim any rights through the first mortgage, or that may affect the rights of the mortgagee under it, to give the holder thereof notice of his mortgage, that the first mortgagee may act with his own understandingly. If he does not, and the first mortgagee does with his mortgage what is lawful for him to do, before the .second mortgage was given, without knowledge of its existence, the injury is the result of the second mortgagee’s negligence in not giving notice. 'While the law requires every man to deal with his own so as not to injure another, it imposes a greater obligation on the other, to take care of his own ■.property, than on a stranger to take care of it for him. And to make it the duty of the first mortgagee to inqure before he “acts, lest he may injure some one, would reverse this rule, and ;<make it his duty to do for the second mortgagee what the Hatter should do for himself.”

The charge of usury against Birnie’s second mortgage, though it seems to have been sustained by the evidence, was not available as a defense. When the suit was brought, and when as well, it was determined in the court below, the statute of 1868, which in words declared : “ No plea of usury nor defense founded upon any allegation of usury shall be sustained in any .court of this state,” was in force.

This statute, as held in Woodruff v. Scruggs, 27 Ark., 26, which decision we approve, does not impair the obligation of the contract, but affects only the remedy, which the legislature may at pleasure change, and is mandatory.

Mrs. Walton was in no manner bound by the act of joining with her husband in the execution of the first two mortgages; her covenants by reason of her coverture being void ; but the mortgage the plaintiff sought to foreclose, being for the purchase money of the lot, which was purchased during her coverture, she was not entitled to dower against him; sec. 2214, Gantt’s Digest; and having in the last two relinquished her dower, the foreclosure of them was likewise against that.


text:
    Taylor, Radford & Co. vs. Hathaway.
    1. Judgment: When the verdict fails to fix theamount of the recovery.

    Where, in a suit on an open account, the jury find a verdict generally for the plaintiff, without ascertaining the sum due, it is error to render a judgment thereon for the sum demanded.
    2. Liens: Of laborer for the erection of buildings.

    Section 4092 of Gantt’s Dig., construed in connection with other sections of the chapter, impliedly -gives laborers a limited lien on land for buildings erected thereon under contract.
    3. — Of laborer for clearing and cultivating land.

    A laborer who cultivates land, or clears and prepares the same for cultivation, is not entitled to a lien thereon for his wages.
    APPEAL from St. Francis Circuit Court.
    Hon. John W. Pox, Circuit Judge.

      B. C. Brown, for appellant.
    Howes, contra.

   English, C. J.

On the 2d -of April, 1872, Hathaway filed before a justice of the peace of St. Francis county, the following complaint: “ E. Hathaway, plaintiff, v. statement of .laborers’ lien, Wiley J. Cook, W. S. Taylor, W. L. Radford, and W. E. McGuire, defendants. The plaintiff, E. Hathaway, states that the defendant, Wiley J. Cook, is justly indebted to him, after all credits to which he is entitled are given him, in the sum of $450 for work and labor done and performed by said plaintiff for said defendant, in, about, and upon the farm now occupied by said Cook, near Forest city, county of St. Francis, etc., and known as the N. E. 1-4 of the S. W. 1-4 of sec. 84, T. 5. N., R. 8 E., in opening, preparing-for cultivation and cultivating said farm, and in erecting improvements thereon, and that said plaintiff has a lien upon said farm for the sum so due, and that said sum accrued within eight months past.

“ Plaintiff further states that he is informed and believes, that while said lien was in full force, said defendant, W. J. Cooh, sold said land to the defendants, Taylor, Badford, and McGuire, but that they never had actual possession of the property.” Prayer for judgment against Cook for $450, that the same be declared to be a lien upon said farm, and that upon his failure to. pay the same, said lands be ordered sold to satisfy the judgment, etc. The justice issued an attachment .against the land, with a summons clause for all of the defendants.

The constable returned upon the writ that he had taken possession of the land, and served Cook and Badford, but could not find Taylor and McGuire.

On the return day, April 11, 1872, the justice made the following entry:

“Having waited three hours for the defendant, W. J. Cook, •he came not, but made default. This cause is continued as to ■the other defendants to the 11th-day of May, 1872.”

On the 11th of May, Taylor, Badford and McGuire appeared, both parties announced themselves ready for trial, the cause was submitted to a jury who, after hearing the evidence, returned the following verdict: “We, the jury, find for the plaintiff. ”

On this verdict the justice entered judgment as follows:

“ It is therefore adjudged by the court that the plaintiff recover of the defendants $450 for his debt, and all the cost expended by him in this suit.”

The defendants appealed to the circuit court of St. Francis county, where the cause was finally tried by a jury in February, 1874, and the following verdict rendered: “We, the jury find for the plaintiff,” upon which the court rendered the following judgment:]

It is therefore ordered and adjudged by the court that the judgment for $450 heretofore obtained in this cause by plaintiff against Wiley J. Cook, before Thomas W. Yerzley, justice of the peace, be and is hereby declared to be a lien upon the land described in plaintiff’s statement of laborers’ lien, and that the same be sold for said debt and costs, etc., for which execution may issue.”

Taylor, Eadford & Co., filed motions for a new trial, and in arrest of judgment, which were overruled, and they took a bill of exceptions and appealed to this court.

1. The claim of Hathaway against Cook was an open account for labor, and the amount not ascertained by any written contract. On the appearance day, the magistrate entered a default against Cook, but did not proceed to ascertain the amount due from him to Hathaway.

On the trial day, the jury simply found a verdict for plaintiff, ascertaining no sum. Hpon such a verdict, it was an error to render judgment'against Cook for $450, and of course it was an error to include Taylor, Eadford & Co. in this judgment. They were merely claimants of the land, and were not charged in the complaint as being jointly liable with Cook to Hathaway.

But on the' appeal to the circuit court, the judgment was opened and the cause stood for trial, de novo. On the final trial, the jury found simply for the plaintiff, as did the magistrate’s jury, and the court rendered judgment condemning the lands to be sold to satisfy tbe magistrate’s judgment against Cook for $450, which had not only been erroneously rendered, but bad been opened by the appeal.

The court should have arrested the judgment on this verdict, and ordered a new trial.

2. On the trial the appellants asked the court to give the following instructions, with others, to the jury, which were refused :

“ 2. If the proof discloses the fact that plaintiff worked with. Cook as a common 'laborer, then he coüld only enforce his lien on the products of labor, and in no court would he have a right to resort to the land.

“ 3. That a lien only lies against the land for ditching and building levees, and this only when the party works under a special contract for that purpose with the owner of the land.

“ 5. Unless the jury find that the land sought tobe charged was cleared by, and was the product of plaintiff’s iabor, they must find for defendant.

“ 6. That under the law of this state, no lien exists upon land for clearing, improving, cultivating, building fences thereon, or for such like labor performed thereon.”

The evidence introduced on the trial conduced to prove that. Hathaway labored for Cook on the land in question from May I860 to March, 1870, and was paid for his work. That he continued to labor on the place without any contract as to the amount of wages to be paid him, from the 1st of March, 1870, to the 22d of October, 1871 (with the exception of July, August and September of the latter year), when he quit.

That after he left, he and Cook had a settlement, and it was agreed that Cook was indebted to him for his services $450. He seems to have been employed with other hands in deadening, clearing, fencing, hauling, plowing, building stables, etc., but just how long he labored at any particular kind of. work, or its value, does not appear. On their settlement, he and Cook seem to have lumped the whole at $450, making some estimate of the number of months he worked, and the value of his services per month.

Cook conveyed the land to appellants by deed bearing date March 4, and recorded November 4, 1871.

The laborers’ lien actof July 23, 1868 (Gantt’s Dig., p. 740), under which an attempt was made to assert a lien on land in this case, was before this court, in Dano v. M. O. & R. R. R. Co., 27 Ark., 564, and was partly construed.

The court held that the word “laborer,” as used in the act, must be understood in its ordinary sense, and as distinguished, from mechanic or artisan, as used in other lien acts.

That though the act is remedial, yet providing for a summary remedy, contrary to the course of the common law, it-must be strictly construed, and a laborer seeking to establish a. lien under it must bring himself strictly within its provisions.

That the first nine sections of the act have reference solely to moveable property, the products of labor.

That the tenth section (sec. 4087, Gantt’s Dig.) impliedly gives laborers a lien upon land reclaimed by ditching or building levees, but that a railroad bed is not embraced by the language employed in this section or other provisions of' the act.

The first section of the act is the only one that expressly gives a laborer a lien, and that gives it upon the production of: his labor. Looking at this section alone, the laborer could in no case have a lien upon land for work done upon it, for the-land, however much improved by his toil, could in no proper sense of the word be considered the “production” of his work or labor.

But looking at the whole act and endeavouring to give each; of its provisions some effect, the court no doubt properly held, that the 10th section contemplated a lien upon land for ditching or building a levee under contract with the owner..

So we think the 15th section (sec. 4092, Gantt’s Dig.),, taken in connection with expressions used in other sections,, impliedly gives to laborers a limited lien upon land for buildings erected on it by them under contract, etc. It provides-that: “ In selling buildings under the provisions of this act, a. reasonable amount of land will be sold with them, not to exceed two acres, surrounding the building.”

Part of the claim of appellee, as stated in his complaint, was for “ erecting improvements ” on the land.

The character of the improvements is not indicated otherwise than by the word “ erecting.”

The evidence shows that he labored some in building stables and, perhaps, other- farm houses on the land; but how much, and what was the value of such labor, neither the complaint nor the evidence shows.

If he had a lien for his labor upon any building, it was certainly not proven to be worth $450, nor to extend over the whole tract, yet the court condemned the entire tract of forty acres to satisfy his entire claim for labor.

Part of his claim was for “ cultivating said farm,” and the evidence shows that he plowed some. If he produced by his labor, corn, wheat, cotton, or other crops, he may have had a lien, under the statute, upon such products of his labor for his wages, but not upon the land.

The remainder of his claim was for labor in “ opening and preparing for cultivation ” said farm.

There was evidence that he was employed a portion of the time he worked for Cook, in deadening, clearing and fencing, but it would require a much more liberal construction of the act than we are warranted in giving it under the decision of this court above referred to, to hold that any of its provisions give the laborer a lien upon the land for such services. It might be just and wise for the legislature to give the laborer a lien for his wages on any one or more acres of land that he might clear, inclose and prepare for cultivation, under contract with the owner.

But be that as it may, it is the province of the courts to construe and administer the statutés as they find them, not to legislate.

Other instructions were moved by the appellants and refused by the court below; but it is not deemed material to notice them. Such as are copied above were, in substance, correct, and should have been given to the jury.

The judgment of the court below must be reversed, and the cause remanded with instructions to award a new trial, etc.


text:
    Spivey et al. vs. Platon, Adm’r.
    1. Evidence : Wife’s competency as a witness.

    After the husband’s death, the wife is competent to testify as to such matters, touching his business, as come under her observation during the husband’s life, and were not learned by communications from him.
    3.— When the source of information not disclosed.

    Where a witness testifies as to a fact without disclosing the source of his knowledge, the court will not exclude his testimony on the presumption that it is hearsay ; but it will attach less weight to it than it would if the means of information had been stated, or it had appeared to have been stated from personal knowledge.

      3. Pleading: Departure in.

    Where the plaintiff’s answer to a cross bill is in some respects modified, but asserts substantially the same proposition as the complaint, there is no departure in pleading.
    APPEAL from Monroe Circuit Court.
    Hon. W. H. H. Clayton, Circuit J udge.
    Hughes, for appellant.

      Tapp an Ss Horner and Palmer & Sanders, contra.

   English, C. J.

In October, 1869, Madaline P. Lindsey as administratrix of her deceased husband, Daniel P. Lindsey, filed a bill in the Monroe circuit court to enforce a lien for purchase money upon lands sold by her husband, while living, to Robert H. Pasley and John Spivey.

Before the final decree, Mrs. Lindsey’s letters were revoked by her marriage, and Emele Platon, who succeeded her in the administration, was substituted as plaintiff.

The original defendants to the bill were Pasley and Spivey, the purchasers of the lands, and the assignee in bankruptcy of Pasley. But in the answer and cross-bill of Pasley, he-alleged that he had repurchased his interest in the lands, at a. sale made by his assignee, and no further notice seems to have-been taken of the assignee. During the progress of the cause, the death of Pasley was suggested, and his administrators and heirs were made parties.

A personal decree was rendered against Spivey for part of the debt sought by the bill to be charged upon the lands, and a decree against the lands for the remainder of the debt, and they were directed to be sold by a- commissioner for the amount charged upon them.

Spivey appealed to this court, and by an order made here, Wm. W. Smith, administrator de bonis non of Pasley, was, on his motion, permitted to join in the appeal.

I. Whilst Mrs. Lindsey was plaintiff, her deposition was taken, a motion was made by the defendants below to suppress it, on the grounds that she, as administratrix of her deceased husband, was the plaintiff in the suit, and her deposition related exclusively to transactions had with, or statements made to, or by her intestate. The motion was overruled by the court.

A subsequent motion was filed to exclude her deposition on the grounds stated in the motion to suppress, and on the additional grounds that it related to communications • made to her by her husband, during the existence of the marriage relation "between them; and that a portion of the deposition was open to the objection of being hearsay, etc.

The record discloses no action of the court upon this motion. It was filed May 6, 1872, and the final decree was rendered ■January 27,1874. The decree recites that the cause came on to be heard “upon the complaint, answers, cross-complaint, and replies thereto, with the exhibits and the testimony.”

If any oral testimony was introduced on the hearing, it was not put upon the record. The deposition of Mrs. Lindsey is the only one in the transcript before us, and the court having overruled the motion to suppress it, no doubt treated her as a ■competent witness, and in making up its decree, gave effect to ■such portions of her testimony as were deemed relevant and ■competent to the matters in issue.

By the common law, Mrs. Lindsey, being the plaintiff in the suit, was an incompetent witness to give evidence in her own favor. Grimes, Adm’r, v. Booth, 19 Ark., 227.

But by the constitution of 1868, her incompetency by reason ■of her being a party to, or interested in the suit, was removed:

“In the courts of this state there shall be no exclusions-of ■any witness in civil actions because he is a party to, or is interested in the issues to be tried.” Art. VII, sec. 22.

Mrs: Lindsey was a competent witness, but whether, in her •deposition, she stated matters which she was incompetent to ■disclose, by reason of her former relation to her deceased husband, is another question.

The code provides that the following persons shall be incompetent to testify:

First: Persons convicted of capital offenses, perjury, etc.

Second: Infants under the age of ten years, etc.

Third: Persons of unsound mind, etc.

Fourth: “Husband and wife, for or against each other, or concerning any communication made by one to the other during the marriage, whether called ás a witness while that relation siib~ sisted or afterward." Gantt’s Dig., sec. 2488.

So much of this clause of the statute as we have copied in italics is but declaratory of a familar and well settled common law rule of evidence.

“Communications between husband and wife (says Mr. Grreenleaf) belong to the class of privileged communications, and are therefore protected independently of interest and identity, which precludes the parties from testifying for or against each other. The happiness of the married state requires that there should be the most unlimited confidence between husband and wife; and this confidence the law secures by providing that it shall be kept forever inviolable; that nothing shall be extracted from the bosom of the wife which was confided there by the husband. Therefore, after the parties are separated, whether it be by divorce or by death of the husband, the wife is still precluded from disclosing any conversations with him, though she may be admitted to testify to facts which came to her knowledge by means equally accessible to any person not standing in that relation.” 1 Grreenl. Ev., sec. 254.

Mrs. Lindsey’s deposition is in substance as follows:

That she knew that Lindsey, in his life time, sold lands to Pasley and Spivey, and also, at the same time, twelve slaves, for the sum of $28,000. The lands and slaves were valued separately, but it was the same transaction, and the aggregate price was the sum above stated. Of this sum, one-third was to be paid in cash, and the balance in one and two years.

The first, or cash payment, was to be made in. January, 1860. About the 5th of that month, Pasley and Spivey paid to Lindsey, $2,750, and he took back one of the negroes which he had sold to them at $1,800, and they, not being able to make the balance of the cash payment, executed their joint note to Mm, for $2,616, with ten per cent, interest from date. Eor the deferred payments, they executed their two notes for $7,666.66, payable to the order of said Lindsey, one and two years after date, respectively; and he executed and delivered to them a title bond, conditioned to make them a deed to said lands on payment of said notes. In regard to the time of the sale of the lands and the execution of the notes, she did not speak from her own. knowledge, but from information derived from the parties, and her recollection of the notes, having seen them, handled them, and calculated the interest on them frequently; and she states positively that the notes were for the amount above stated, and she knew the price of the lands and negroes was included in the notes.

That at the time of the sale, Lindsey was indebted to one Halloran for the lands and a portion of the negroes, in about the sum of $4,000, part of which Pasley paid off for Lindsey; and Lindsey also took back from Spivey and Pasley seven of the negroes, valued at $4,900. Pasley also paid one Beard about $1,500 for a negro woman and child. Lindsey also purchased goods of Spivey and Pasley, but amount not recollected. After these payments, there was a settlement between Lindsey and Spivey and Pasley, at which witness was present, and made the calculations. Credits were given them for all the amounts they had paid as above stated, and there was a balance .then found due from them to Lindsey on said three notes of $4,214.33, and in order to close the matter and fix definitely the amount, at the request of Pasley, Lindsey delivered up the original notes and took the note of Pasley and Spivey for said balance, which is the note sued on in this case, and represents the balance due on the lands and the four negroes retained by them, the other eight having been taken back as above stated. This settlement witness made herself, and delivered up the notes ; that is, she made all the calculations, and at the request of Lindsey, delivered up the notes to Pasley ■and Spivey. Afterward they paid $75 on the new note, which was credited February 8, 1866, and on March 26, 1866, they gave an order on H. P. Coolidge for about $500, which was credited on said note, and Lindsey included in the credit one-half of the interest which had accrued on the note [it bore ■date January 1, 1862], making the credit $1,498.17, which was all that had ever been paid on the note. After said payment, Pasley applied to Lindsey for a deed to half the land, stating he had paid out of his own means more than half the purchase money, and desired Lindsey to look to Spivey for -the balance, which he declined to do, as they were both bound to him for the money.

There appears to be nothing in this deposition falling within the description of such confidential communications from the husband to the wife, as by the common law, or the statute above quoted, the wife was forbidden to disclose as a witness, being, after the death of the husband, otherwise competent. McGuire v. Maloney, 1 B. Monr., 224.

The court below did not err in overruling the motion to suppress the deposition.

II. The part of, the deposition of Mrs. Lindsey which the counsel for appellants insist is open to the objection of being hearsay, is that part in which she states that “for the deferred payments (on the land and negroes), they (Pasley and Spivey) executed their two notes for $7,666.66, payable at the order of Lindsey, one and two years after date, respectively; and he executed and delivered to them a title bond, conditioned to make them a deed to said lands on the payment of said notes.”

The objection is, that as she does not state that she was present when the bond for title was executed, or that she ever saw it, the inference is that she had no personal knowledge of its condition, and must have made her statement on information derived from others. This may be true, but she states a fact, and if the opposing parties desired to have her state the source from, or means by which she derived her knowledge of the fact stated, they had an opportunity of doing so by cross-examination. Bub having neglected to cross-examine her, it would not be fair to exclude her statement of a fact altogether, because she does not disclose the source of her- knowledge of the fact stated. But of course the court, in making up its decree, will always attach more weight to the statement of a fact when it appears to have been within the personal knowledge of the witness or when the source or means of the knowledge is stated, than where the fact is merely stated, and it does not appear to have been within the personal knowledge of the witness, and the source or means of information is not disclosed ; and the court below must have acted on this rule in making up the decree in this case. Eor Mrs. Lindsey stated that the title bond was conditioned that her husband would make a deed to the lands, on payment of the two notes given for the deferred installments of the purchase money of the lands and the negroes. The bond had been stolen by a burglar from Pasley’s store, and was not produced. It does not appear that any other witness testified in the cause. If the court had given full credit to this statement of hers, it might well have charged on the lands the whole amount found to be due on the note in suit. But the court did not so decree. It found that the parties had made no appropriation of the payments, and appropriated them pro rata upon the slave debt and the land debt, and rendered-a personal decree against Spivey for the sum ascertained to be due on the slaves (not taken back), Pasley having been discharged in bankruptcy, and charged upon the lands the balance found to be due on them. And this appears to be a fair decree, and as favorable to appellants as the pleadings and evidence warranted.

III. There is a further question in relation to an alleged departure in pleading.

The original bill is brief and not accurate in its allegations. It. appears to have been drawn and sworn to by the solicitors-of Mrs. Lindsey, who had the note sued on for collection in her absence.

It says nothing of the sale of the negroes, but states the sale of the lands, leaving the date of the sale in blank, and avers that the note sued on was either one of the original notes executed for the lands by Pasley and Spivey or taken in renewal of the last of- said notes, the sole consideration for the note-sued on being said lands, etc.

The main purpose of the bill was to charge the debt as a lien upon the lands, and to obtain a decree condemning them to be sold to pay it.

Pasley and Spivey made their answers cross-bills, in which they affirmatively alleged that they purchased at the same time lands and negroes of Lindsay, and gave separate notes for the agreed price of each; that the land note was paid and the note sued on given in renewal of an unpaid balance of the slave note, which they insisted was a personal debt, constituting no lien on the lands, and prayed for title to the lands.

Mrs. Lindsey, who seems to have understood the facts of the case better than her solicitors did when they drafted the original bill, answered the cross-bill, admitting the sale of negroes and lands, denying that separate notes were taken for the agreed price of each, but stating the transaction substantially as she afterward-did in her deposition. There was a demurrer to her answer to the cross-bill on the ground of departure in pleading, which the court overruled.

The alleged departure is this, that in her bill she avers that the note sued on represents a'balance due on the lands, while in her answer to the cross-bill, she admits that the note sued on represents a balance due on the lands and negroes both.

This is true, but she also states in her answer that the condition of the bond for title was that the deed for the lands was to be made on payment of the notes given for the purchase money of both the lands and the slaves, so that by a different mode of stating it, she comes back substantially to the main proposition of the bill, that the note sued on was a lien upon the lands, and that they should be condemned to satisfy it.

In the common law system of pleading, a departure is said to be when a party quits or departs from the case or defense which he has first made, and has recourse to another. It occurs when the replication or rejoinder, etc., contains matter not pursuant to the declaration or plea, etc., and which does not support or fortify it. Chitty Plead., 644.

Mr. Newman says : “ The code requires that the new matter set up in reply shall not be inconsistent with the petition. It seems to have been supposed that this rule was adopted in analogy to a rule under the former practice, which authorized a demurrer when the replication, or any subsequent plea, was a departure from the original cause of action set out in the declaration. But our code allows no reply to new matter alleged in the answer unless it constitute a counterclaim or set-off. The reply must therefore refer only to the new cause of action set up by the defendant, and the rule cannot have been adopted in our code for the purpose of preventing a departure. It was no doubt adopted merely because the plaintiff in his reply should not be permitted to contradict the material allegations which he had previously made in his petition. Such inconsistency, it seems, therefore, is not a ground of demurrer, as was a departure in pleading formerly, but is a ground of objection to such a reply being filed, or, if it has been filed, it is good reason for a motion to strike out the inconsistent matter.” Newman Plead. and Pr., 685; Gantt’s Dig., sec. 4579-80.

Be the code practice as it may, we do not think that Mrs. Lindsey made any very serious or substantial departure in her pleadings in this case.

The decree must be affirmed, and the affirmance certified to the'court below, that the decree may be executed.