text:
    Blackburn vs. Randolph.
    1. TRANSCRIPT FOR SUPREME COURT. Original Papers. Practice.

    The practice of sending up with the transcript original papers file! in the cause ia the court below, is disapproved; and the clerk directed to make a transcript of the same, and return the originals to the clerk of the Inferior Court.

      2. REFORMATION OF Deed. Privity.

    Where a mistake in the description of land occurs in a series of conveyances, under such circumstances as would entitle any one of the vendees to a reformation as against his immediate vendor, the equity will work back through all, and entitle the last vendee to a reformation against the original vendor.
    3.-. Statute of Frauds.

    The statute of frauds does not interfere with the power of Courts of Equity to reform deeds or other instruments in which the parties intended to comply witli the statute and were prevented' by fraud, accident or mistake.
    4.-. Judgment Lien. Priority.

    The equity of the vendee for the correction of a deed, is not displaced by the lien of a subsequent judgment, or execution issued thereunder.
    APPEAL for Desha Circuit Court in Chancery.
    Hon.-, Circuit Judge.
   EakiN, J.:

Appellants claiming to be the owners of a certain plantation in Desha County, through a series of conveyances from a pur-chaseruuder a deed of trust, filed this bill against D. W. Randolph, as surviving partner, etc. ; who as a judgment creditor of the original grantor in the trust deed, had caused an execution to be levied on a certain tract of land included in the plantation, and was about to sell the same. The object of the bill was to enjoin the sale and quiet complainant’s title, on the ground that by mistake the parcel levied upon had been omitted out of the description of the lands in the trust deed, and that the mistake had been inadvertently carried through all the successive conveyances down to that to complainants. All necessary parties have been made defendants.

It is necessary to state somewhat in detail, so much of the case made by the bill and an amendment, as will render the application of the principles herein announced intelligible.

The plantation was sold and conveyed by George J. Graddy to Henry J. Johnson, in December, 1856. It was described as containing in all, 973 acres, and the numbers of the different subdivisions were given according to the United States surveys. Amongst others a portion described as the “ South-East Quarter and North-East Fractional Quarter of Section 20, (South of Deep Bayou) 7 South of Range, 1 East, 193 Acres.”

On the 31st of October, 1865, said H. J. Johnson, in pursuance of a previous general agreement with regard thereto, executed a deed of trust of said body of lands, (or what was meant to be such) to Samuel Tate, to secure a large sum of money to be paid to certain levee contractors. Said deed of trust included all the lands purchased from George J. Graddy, except that “South-East Quarter and North-East Quarter of Section 20” was by mistake described as the North-East Quarter fractional, Section 20, 193 acres.

The debt remained unpaid, and on the 25th of March, 1868, said trustee having sold the lands in pursuance of the deed, conveyed them to Bartlett, and Johnson delivered possession. On the preceding day, Bartlett conveyed the same lands to C. R. Sheppard, describing them as the lands conveyed to him by said Tate as tiustee. Both deeds were filed for record oil the same day. Soon afterwards, Sheppard sold an undivided half of the lands to complainant, S. S. Buck, and still later the other undivided half to her husband, W. A.- Buck, since deceased, but who in his life time sold his interest to complainant Drake, who afterwards sold to Winfrey.

It is alleged that throughout all these conveyances, the descriptions of the lands were taken from the deed of trust, and the ei'ror each time repeated, without having been noticed by any of the parties. That each grantor intended to convey the plantation by the true numbers, as it laid in a body, and was purchased from Graddy. That bona fide and valuable consideration was paid with each purchase, and that throughout, possession of the whole plantation was given to the successive purchasers, and attended their several ownerships.

Meanwhile, on the 27th day of November, 1867, defendant Randolph, as surviving partner of J. J. Michie &Co., recovered judgment in the Desha Circuit Court against defendant, Johnson, for a large sum of money, and on the 2nd day of March, 1872, execution issued thereon, which was levied by defendant Edington, as sheriff, upon said South-East Quarter of Section 20. The land was advertised for sale, and it was this sale which the bill sought to enjoin. Winfrey was made one of the defendants to compel him to accept the title to the lands by the reformed descriptions, so that complainant Drake might be saved harmless on his warranty.

It further appears from the bill and exhibits not controverted that on the 21st day of January, 1868, said Johnson was duly declared a bankrupt by the District Court of the Eastern District of Arkansas, and obtained his discharge on the 12th of November following. From his schedule filed in the proceedings, it appears that the lands were reported as described in the trust deed to Tate. There was also a statement of the in-cumbrances upon them with the remark that it was impossible to pay them off. No action with regard to the lands seems to have been taken by the assignee.

It is further shown in the amended complaint, that on the 17th day of February, 1866, said Henry J. Johnson, executed to W. Henry Graddy, another mortgage of the same lands describing them as “the premises upon which Johnson now resides, being the plantation purchased by me in or about the year 1856, of and from George J. Graddy, now deceased, lying and being situate in Desha County.”

This mortgage was made subject to the trust deed of Tate, and was properly acknowledged and recorded. In 1867, said mortgagee filed a bill against Johnson and others, to foreclose this mortgage, and assert its priority over the trust deed to Tute. It set up the sale by Tate as trustee to Bartlett, and the subsequent sales to Sheppard, and from him to W. A. and Sallie S. Buck, all of whom were made parties.

At the Fall Term, 1869, a decree was rendered in said cause,, confirming the title to said lands in Buck and wife, under said purchases.

An interlocutory injunction issued on the filing of the bill in this cause.

Randolph in his separate answer, substantially denies that it was the intention of said Henry J. Johnson, to include the South-East Quarter of Section 20, in the trust deed to Tate, or that it was included in any of the subsequent conveyances.

He further sets up and charges by way of defense, that said Johnson did not, in fact, make default in the payment of the amount secured by the trust deed to Tate, but paid it off, and combined with Bartlett, to defraud his creditors, and procured an assignment of said trust deed to be made to Bartlett for that purpose, who on his part procured the sale to be made under it by Tate, and executed the deed to Sheppard in pursuance of the fraudulent design. He protests that he is not bound by the decree in the former case, in which title was confirmed in Buck and wife, inasmuch as he was not made a party thereto.

At the April Term, 1872, Henry Johnson was allowed to file as an answer, a claim of said South-East Quarter, of Section 20 as a homestead.

Upon the hearing of the causes on the 12th of September, 1876, it was decreed that “ the court doth find for the defendants and dissolve the injunction heretofore granted herein; and remits the respective parties to their rights at law.” Damages, on account of the injunction, were, on motion of defendant Randolph, assessed at $500, the same to be accounted for as part of the interest due, etc.

Complainants appealed, and an order was made of record “ that appellants have leave to use in the transcript for the Supreme Court, the original depositions and pleadings and exhibits, on file in this cause, and that the record entries only need be certified, and leave is further given to withdraw the record in this case of W. H. Graddy v. H. J. Johnson, and others referred to in complainant’s amended complaint, and that they may be used as part of said transcript.”.

In accordance with this agreement the clerk has sent up, attached to the transci’ipt, the original papers filed in the former cause.

In passing, this court uses the occasion to express its disapprobation of the practice of sending up with the transcript any original papers filed below.

It was doubtless done in this case to save expense to litigants ; but it amounts to a spoliation of the records of the Circuit Court, which may thereby be lost; and, in any case, thej' are transferred from the proper depositories, where they should always remain for inspection. Where proceedings in another cause, in the same court, are pleaded ; the judge may well exercise some discretion in the matter of requiring or excusing the filing of transcripts, inasmuch as its own records are always before it, and need only to be read. But, if not required at the hearing, there should always, in case of appeal in chancery, be an order to file with the other papers in the cause, certified transcripts of such records and proceedings, in other causes, as were used upon the hearing of the cause appealed ; so that a complete transcript may be made for this court, without removal of any of the original papers from the proper files. In cases at law, the same end may generally be attained by bill of exceptions. The clerk of this court will be directed at the cost of appellant to make and file with the papers in this cause a transcript of the papers filed in the case of W. Henry Graddy v. Henry J. Johnson, as he finds them attached to the transcripts of this cause; and to return the originals to the Clerk of the Circuit Court of Desha County, to be restored to the files of his court.

First, as to parties : it is contended that there is no ‘privity between complainants and Johnson, and that, in such case, courts of equity will not interfere to reform a deed, executed by mistake. They claim as the last grantees in a series of conveyances, beginning with Johnson, passing through the trustee, and resting with themselves. If, in either one of these conveyances, the deed of trust, that from Tate or Bart lett, or Sheppard, or Buck, or Drake, there was not a mutual mistake, whereby each party, vendor and vendee, actually supposed the particular piece of ground was described, when in fact it was not, the equity of complainants would, of course, fail.

But it is obvious that, where the same mistake has each time repeated itself, occurring between the vendor and vendee upon each transfer, under such circumstances as to entitle any one of the vendees to a reformation as against his immediate vendor, the equity will work back through all, and entitle the last vendee to a reformation against the original grantor.

"What is meant when the cases say that the mistake will only be corrected between the original parties and those claiming under them in privity, is, in effect, that the court will not interfere in favor of subsequent purchasers who were simply ignorant of the former mistake and may be presumed to have intended to take by the description used, nor against subsequent purchasers by the true description for valuable consideration, without notice of the former mistake. That the remedy is strictly confined to privies is well shown in the case of Steward and wife v. Pettigrew, 28 Ark., 372, a case which carries the principle of reformation to its rational and most beneficial extent. There the court interfered in favor of a purchaser at execution sale, and reformed a mistake in the advertisement and the Sheriff’s deed, against a subsequent purchaser at execution sale upon a different judgment against the same defendant, whose levy, advertisement and deed described the land truly, and who knew of the former mistake. Here was a total want of privity, and the court proceeded upon the 3 broad ground that au honest mistake in a deed should be corrected against any one who discovers it, and without superior equity seeks to obtain an advantage from it.

It is too well settled, that the statute of frauds does not interfere, in any respect, with the power of courts of equity to reform deeds or other instruments, in which the parties intended to comply with the requirements of the statute, and failed through accident, mistake, or fraud.

The mistake in this case, is palpable. The parcel in question, the southeast quarter of section 20, lies in the middle of a compact body, and makes a very essential part of the plantation. It is not conceivable that any prudent man would be willing to purchase the balance of the lands without it, for the purpose of using them as one plantation. The mistake is one apt to happen. A great majority of intelligent men and excellent lawyers lack the faculty of mapping out in their minds, lands described by the government surveys. In ringing the changes upon the- cardinal points of the compass, fractions, sections, township and ranges, more care is necessary to avoid mistakes, than is usually taken. The true description in the original deed from Grraddy, giving the quantity, 193 acres, evidently meant it as an approximation. The trust deed describes it as “the N. E. fr. sec. 20 — 193 acres,” instead of “the southeast quarter and the N. E. fr. quarter of sec. No. 20, South of Deep Bayou, containing 193 acres.” If the grantor had meant to reserve the southeast quarter he would not certainly have endangered the title by giving a quantity to cover the whole of his purchase from Graddy. He declared after-wards that he meant to reserve nothing, at a time when such a -declaration was against his interests. He does not say now, in simply putting in his claim for a homestead, that he meant to reserve it then. He abandoned possession in favor of the purchasers under the trust deed, when the sale was made. When the trust deed was executed, the agent for the benefi--oiaries (and one of them), Flournoy, supposed that the description covered the whole plantation, and would not otherwise have accepted it. The same mistake ran through each successive sale, and possession attended each, of thq-whole plantation. Being thus palpable, it must be corrected, unless •defendant Randolph has superior equities.

He claims only by virtue of a judgment obtained in 1867, and which ceased to be a lien in 1870, long before the levy of his execution. He is not a purchaser at all; for valuable consideration or otherwise. Whether or not his lien would be prolonged in a contest between himself and Johnson’s assignee in bankruptcy we are not called upon to decide. The assignee sets up no claim, and the bankruptcy cannot of itself prolong the lien given by the laws of the State. Even if the lien existed, the equity for correction would be prior in time; and, as this court has repeatedly held, it would not be displaced by the judgment lien, or an execution levied under it.

An objection has been made to the acknowledgment of the . deed of trust to Tate. It omits to state that it was made for the “consideration” therein contained, but does use the word “purposes.” This acknowledgment would perhaps be considered defective if it were necessary to rule upon that point, as the consideration is certainly material. But the deed of trust, and the sale under it, and all subsequent conveyances, down to complainant’s were good between the parties, and would have transmitted the legal title but for the mistake repeated in each transaction. Considering that as done, which the pax-ties intended should be done, these conveyances give complainant’s standing ground in equity, as owners, to protect their rights against any not having superior equity. Moreover, the whole legal and equitable title to this plantation by its ti-ue description, as against HeniyJ. Johnson, has been vested in complainant Sallie Buck, and her husband, by virtue of the decree in the case of Wm. Henry Graddy v. Johnson, ren-dei*ed 28th October, 1869. This decree inures to vest the legal title in complainants, as against all persons bound by the decree, and does that wholly independently of the trust deed to Tate, .and without the necessity of reforming it. The defendant Randolph as surviving partner, was indeed no party to that suit, and is not bound by it, so far as he had rights, ox-equities, to be effected. But his utmost l-ight at the time was to enforce his judgment lien, then existing against any estate or interest remaining in Henry J. Johnson after satisfaction of the mortgage to Wm. Henry Graddy. Failing to do that, all his rights vanished with the expiration of his judgment lien, and left the title in complainants unaffected thereby. His judgment, as a personal debt, is lost by the dischax-ge of Johnson in bankruptcy.

Having neither a lien remaining, at, the time the execution was levied, nor any rights against the dischai-ged bankrupt under the personal judgment, to support the execution, he is not iix coxxdition to question the good faith and fairness of the sale to Bartlett from the trustee, Tate. If he were, the most we could say of that transaction, upon a careful examination of the evidence, would be that the circumstances are suspicious, but not incompatible with good faith. The fraud is not proven, and if it wero-it would not affect the title of complainants. There is no charge, nor scintilla of proof that they participated therein, or had any intimation of it.- The proof is abundant that they are innocent purchasers for full value.

It appears from the record that, pending the suit, complainant S. S. Buck intermarried with E. S. Blackburn, who was made a party and afterwards died. The result of which was only to change the name of S. S. Buck to S. S. Blackburn.

The Chancellor erred in refusing the relief prayed, and dismissing the bill. The decree must be reversed, and a decree will be entered here vesting in complainant Sallie S. Blackburn and defendant J. T. Winfrey all the legal and equitable title in and to said plantation, that was in Henry J. Johnson at the time of the execution of the deed of trust to said Tate ; and perpetually restraining defendants Randolph and the Sheriff of Desha County from preceding any further to sell said “southeast quarter of section 20” by virtue of said judgment or any execution or levy based thereon; and that said Randolph pay the costs in this court and the court below, save the costs of making a transcript of the original papers sent up with the record, all of which must be paid by the appellants.


source: Caselaw Access Project

author: English, Ch. J.: English, Ch. J.:

license: Public Domain

text:
    State of Arkansas vs. Gill.
    1. CRIMINAL Law — In jeopardy. lies judicata.

    Where an indictment is quashed on demurrer, the defendant is not in jeopardy under it, and may be prosecuted under a second indictment for the same offense. To make a judgment sustaining a demurrer to an indictment a bar to further prosecution for the same offense, matter must appear on the face of the indictment, which, in its character, is a legal defense or bar to a further prosecution for the same offense.
    It is an essential requisite of a conclusive judgment that it he upon the merits.
    2. Criminal Pleading: Statute Limitations.

    An indictment is not demurrable because it shows that the offense was committed back of the period bar of the statute of limitations. Matter to avoid the bar may be proven without being- averred ; and the bar is available to the defendant under the plea of not guilty.

      APPEAL from Hempstead Circuit Court.
    Hon.-, Circuit Judge.

      Henderson, Attorney General, for appellant.
   English, Ch. J.:

The material facts of this case, as they appear in the transcript, are as follows:

On the'5th of January, 1878, John Gill was indicted in the Circuit Court of Hempstead County, for forging an order, the indictment alleging the offense to have been committed on the 5th day of April, 1874.

The defendant demurred to the indictment on the ground that it appeared from its face that the offense was barred by the statute of limitation ; the court sustained the demurrer and discharged the defendant from further prosecution for the offense.

Afterwards, on the 15th of January, 1878, the defendant was again indicted in the same court for the same offense, the indictment alleging, to avoid the bar, that the defendant was a fugitive from justice from the 1st day of January, 1875, until the 1st day of September, 1877.

At the July Term, 1878, the defendant filed a motion to be dischai’ged from further prosecution on this indictment: “ Because, he says, at the last term of this court a demurrer was sustained t<j the indictment (in which he was charged with the same offense as in the present indictment), because said indictment contained matter upon its face which was a bar to the action,” etc.

The court sustained the motion, and discharged the defendant.

The State took a bill of exceptions showing that upon the hearing of the motion, the first indictment, the demurrer to it, and the judgment of the court sustaining the demurrer and discharging defendant (which are set out), were produced and read; and appealed to this court.

Whether the court below erred in sustaining the demurrer to the first indictment or not, is not a question now before this court, no appeal having been taken from its judgment in that case.

As to the materiality of the allegations of the time of an •offense in an indictment, see Scoggins v. State, 32 Ark., 215. “No person, for the same offense, shall be twice put in jeopardy of life or liberty, but if, in any criminal prosecution, the jury be divided in opinion, the court before which the trial shall be had, may, in its discretion, discharge the jury, and commit or bail the accused for trial, at the same or the next term of said court.” Declaration of Rights (1874), sec. 8.

The appellee was not in jeopardy on the first indictment; he was never put on trial under it: the indictment was quashed on demurrer, and this, if formally pleaded, was no bar to the second indictment. Cooley’s Con. Lim., 325; State v. Clark, 32 Ark., 231; Johnson v. State, 29 Ark., 31.

Judgment reversed and cause remanded, with instructions to the court below to require appellee to plead to the second indictment, etc.

ON MOTION FOB RECONSIDERATION.

English, Ch. J.:

In the motion for reconsideration, the counsel for appellee invite the particular attention of the court to section 1841 Gantt’s Digest. Though we did not notice the section in the opinion, it had not been overlooked in considering the question decided. We did not notice it in the opinion because we thought that whatever might be its true meaning, it had no application to the facts of this case.

The section follows:

“If the demurrer is sustained because the indictment contains matter which is a legal defence or bar to the indictment, the judgment shall be final, and the defendant discharged from any further prosecution for the offense.”

This section was copied from the Kentucky Criminal Code, section 169.

Commonwealth v. Anthony, 2 Metcalf, 399, is the only Kentucky decision we have found on this section. There it was held that a judgment sustaining a demurrer to an indictment on the ground of misjoinder of offenses, was no bar to a future prosecution.

In Walls v. State, 32 Ark., 565, Walls was indicted in the Circuit Court of Jackson County for bigamy, and the indictment alleged the bigamous marriage to have occurred in Woodruff County. A demurrer to the indictment was overruled, and the defendant tried and convicted. On appeal to this court, the judgment was reversed, and the case remanded with instructions to the court below to hold the defendant to answer an indictment in Woodruff County, the proper venue for the offense.

Now suppose the court had sustained the demurrer to the indictment; instead of overruling it, and entered judgment discharging the defendant from further prosecution. Surely such judgment would have been no bar, under the above statute, to a new indictment, in Woodruff County, for the same bigamous marriage. And why? Because the matter of defense appearing on the face of the indictment was not, in its nature, matter in bar, or a legal defense to any indictment for the offense charged, but matter in abatement only of that particular indictment.

So we take it, that to make a judgment sustaining a demurrer to an indictment a bar to any further prosecution for the same offense, matter must appear on the face of the indictment which, in its character, is a legal defense or bar to a prosecution for the offense.

In this case the prosecution was for forgery, which is a felony, not punishable by death, and the limitation is three years. Gantt’s Digest, section 1664.

The first indictment was found 5th of January, 1878, and it alleged that the offense was committed 5th of April, 1874, which was more than three years before the finding of the indictment.

If the allegation of the time of the offense was material— if the State could not prove on the trial that the offense was committed at a later day, and within the period of the bar, or was not at liberty to prove any matter in avoidance of the bar— then the indictment contained matter which was a legal defense or bar to the prosecution, and the judgment sustaining the demurrer to it was a bar to any further prosecution for the offense, under the above statute.

But “ the statement in the indictment as to the time at which the offense was committed is not material, further than as a statement that it was committed before the time of finding the indictment, except when the time is a material ingredient of the offense.” Gantt’s Digest, section 1787.

Under the first indictment the State could have proven, therefore, that the offense was committed on any day before the finding of the indictment. The allegation of the time of the offense was not otherwise material.

Moreover, the State would have been at liberty to prove, on a trial, by way of avoiding the bar, that the accused had fled from justice and been out of the State, or that a previous indictment had been pending against him, which had been •quashed, set aside, or reversed, etc. Gantt’s Digest, sections 1666-7.

The defendant is not obliged to plead limitation, but the bar is available under the plea of not guilty — nor need the indictment aver matter to avoid the bar, but it may be proven on the trial.

It follows that the court sustained a demurrer to an indictment good on its face, and an erroneous judgment quashing a valid indictment on demurrer, or on motion to quash, can be no bar to a subsequent indictment for the same offense, because the accused was not put in jeopardy on the indictment quashed.

Nor for the same reason, as a general rule, is a judgment quashing a bad indictment on demurrer, or motion, a bar to another indictment for the same offense. But the statute in question makes an exception, and that is, when the demurrer is sustained because the indictment contains matter -which is a legal defense or bar to the indictment. The Statute is anomalous, and it is difficult to imagine an instance in which a criminal pleader might draw an indictment that would come within its meaning.

It is true, as remarked in the first opinion, that the judgment of the court below quashing the first indictment, on demurrer, is- not before us on appeal, but it was, in effect, pleaded in this case as a bar to a second indictment — in other words, as a former judgment of acquittal — and in all cases where the accused pleads a former acquittal, or conviction, or before in jeopardy, the court must look at the judgment-pleaded, and the facts of record on which it is based, to determine whether it is a valid bar.

It is also true, as submitted by the learned counsel for appellant, that an erroneous judgment is conclusive between parties and privies, until reversed ( Wells on res adjudícala, p. 4), but it is likewise true, that it is air essential requisite of a conclusive judgment, that it should go to the merits, and hence must not be based merely upon technical defects in the pleadings (lb. p. 8), or matter which merely abates the suit.

The following remarks of Mr. Wells on the conclusiveness of judgments rendered on demurrers in civil suits, are appropriate :

“If judgment is rendered for the defendant on demurrer to the declaration, or to material pleading in chief, the plaintiff can never after maintain against the same defendant, or his privies, any similar or concurrent action for the same cause, upon the same grounds as were disclosed in the first declaration ; for the reason that the judgment upon such a demurrer determines the merits of the cause, and a final judgment deciding the right must put an end to the dispute, else the litigation would be endless.

“ But it is equally settled that if the plaintiff fails on demurrer in the first action, from the omission of an essential allegation in his declaration, which is fully supplied in the second suit, the judgment in the first suit is no bar to the second, although the respective actions were instituted to enforce the same right, for tile reason that the merits of the cause as disclosed in the second declaration, were not heard and decided in the first action.” Wells on res ad., p. 371.

In this case, in the first indictment, the time of the offense was alleged back of the period of the bar, and nothing being-averred to avoid the bar, his Honor, the Circuit Judge, deemed the omission fatal, sustained a demurrer to the indictment, and discharged the accused from further prosecution. The attorney for the State did not think proper to appeal from the judgment, he could not amend the indictment, as a plaintiff may amend a declaration in a civil suit, and he chose to draft, and have preferred by the Grand Jury, the second indictment, in which matter was alleged to avoid the bar, and thereby the omission which the court held to be fatal in the first indictment was supplied in the second.

By the rule laid down by Mr. Wells, as above, the judgment on demurrer to the first indictment was not a bar lo the second indictment.

Where a judgment is not in law an immunity against a further prosecution, it cannot be made such by the mere form of entering it.

The motion for reconsideration is overruled.


author: English, Ch. J. :

text:
    State of Arkansas vs. Jeffrey et al.
    1. Gaming : Indictment.

    Where an indictment is based upon section 1564, Gantt’s Digest, it should allege the name of the game, if known, or if unknown to the grand Jurors it sho^d so allege.
    2.-: On the sabbath.

    An indictment for card playing on the sabbath need not allege the game played, the offense being the desecration of the sabbath by playing cards.
    APPEAL from Izard Circuit Court,
    Hon. Wm. Byers, Circuit Judge.

      Henderson, Attorney General, for appellant.
   English, Ch. J. :

The appellees were indicted in the Circuit Court of Izard County for gaming, as follows :

“The Grand Juty of Izard County, etc., etc., accuse Dempsey Jeffrey, Willard Hanks, William Green and William Smith of the crime of betting at cards, committed as follows, to-wit:

The said Dempsey Jeffiey, the said Willard Hanks, the said William Green and the said William Smith, on the 10th day of November, 1877, in the county and state aforesaid, (named in the caption,') unlawfully did bet two pipes of the value of fifty cents each, and two pairs of suspenderst of the value of one dollar each, at a certain game of hazard and skill then and there played with cards, against the peace and dignity of the State,” etc.

The court sustained a demurrer to the indictment, and the State appealed.

The objection taken to the indictment is that it does not allege the name of the game of cards at which appellees bet, or that the game had no name, or that its name was to the grand jurors unknown.

If the State meant to accuse the appellees of betting at some game of cards, the indictment must have been drawn under section 1564 of Gantt’s Digest, page 374, which follows:

“If any person shall be guilty of betting any money, or any valuable thing, on any game of brag, bluff, pocre, seven-up, three-up, twenty-one, vingtun, thirteen cards, the odd trick, forty-five, whist, or at any other game at cards known by any name now known to the laws, or with any other or new name, or without any name, he shall, on conviction, be fined in any sum not less than $10 nor more than $25.”

This is the 8th section of the gaming act as contained in the Eevised Statutes, page 274, and in English’s Digest, page 367, and in Gould’s Digest, page 371, and which has been repeatedly construed by this court.

It has been the practice under this statute, and we think the better practice, to allege hi the indictment, the name of the game of cards at which the accused is charged with betting, or if the name is unknown to the grand jurors, so to allege, or if uncertain, to insert several counts to meet the uncertainty. James Barkman v. The State, 13 Ark., 705; Orr v. State, 18 Ark., 540; State v. Grider, Ib. 298.

In an indictment for card playing on the sabbath, it is not necessary to allege the name of the game played, or betting, the gravamen of the offense being the desecration of the day by engaging in card playing. Stockton v. State, 18 Ark., 186; State v. Grace, 21 Ark., 227; State v. Anderson, 30 Ark., 134.

But the gravamen of an offense under the above statute, is the betting at some game of cards, and the name of the game bet upon is regarded as material to a reasonably certain description of the offense.

It is uncertain whether the indictment in this case, from the language used, was drafted under the 8th section of the gaming act (section 1564 G-antt’s Digest) or under the act of 22d January, 1855, which is included in sections 1565 and 1566 of the Digest.

In Orr v. The State, 18 Ark., 544, this court, commenting upon the two statutes, said :

“The first section of the gaming act relates exclusively to what are known as banking games, etc., and the 8th section provides for the punishment of betting on games at cards only. And hence it was held by this court in Norton v. State, 15 Ark., 71, that it is no offense to bet upon & raffle; and in State v. Hawkins, Ib. 259, that betting at rondo was not an offense within the provisions of either section of the gaming act.

“The act of January 22, 1855, which was passed after these decisions, is as follows :

“Sec. 1. If any person shall be guilty of betting any money, or any valuable thing, on any game ol hazard or skill, he shall, on conviction, be fined as prescribed in section 8, article 3, chapter 51, title Criminal Law, of the Digest (English’s) of the statutes of Arkansas.

“ Sec. 2. In prosecuting under the preceding section, it is sufficient for the indictment to charge that the defendant bet money, or other valuable thing, on a game of hazard or skill, without stating with whom the game was played.

‘ ‘ The 8th section of the gaming act embracing nothing but betting on games played with cards, it was manifestly the intention of the first section of the act of January, 1855, to enlarge the prohibition against betting, and to extend the penalty of the 8th section of the gaming act to betting on any game of hazard or skill, except the banking games, etc., embraced by the first section of the gaming act.

‘ ‘ When a person is indicted for betting at any game of cards embraced by the provisions of the 8th section, it is sufficient for the indictment to charge the betting on a game of cards called poker, seven-up, etc., naming the game of cards, if it has any, etc. But it is not necessary to charge that the particular game of cards named is a game of hazard or skill.

‘ ‘ But when a person is indicted for betting on a game not embraced within the 8th section, but embraced by the 1st section of the act of 22d January, 1855, it is necessary, it would seem, to charge the game bet upon to be one of hazard or skill, as provided by the 2d section of the act last referred to.”

In the indictment now before us, the appellees are charged with betting “ at a certain game of hazard and skill then and there played with cards.” Treating the words '■‘hazard, and skill” as surplusage (Orr v. State, ubi. sup.) nothing is left but a general charge of betting at a game played with cards, which is not named.

In an indictment for betting at a game of hazard or skill, under the act of 22d January, 1855, it would be better to allege the name of the game.

Games played with cards, or games of hazard or skill gotten up by other contrivances for the purpose of betting, are rarely without names by which they are known or designated, and if a game has no name, or its name is unknown to the grand jurors, the indictment may so allege.

We are not disposed to encourage needless looseness or uncertainty in indictments.

The judgment of the court below must be affirmed.


author: ENGLISH, Ch. J. :

text:
    State of Arkansas vs. Moser.
    -^'uiCTMENTS Statutory; what sufficient.

    As a general rule, it is sufficient for indictments for statutory misdemeanors to follow the language of the statute.
    2. 8m,ih: For abusive or profane language, etc.

    Whether profane language used toward or about another in his presence, is calculated to arouse to anger or produce a breach of the peace, would depend upon the relations of the parties, the circumstances under which it was used, the manner of the speaker, etc., which are questions to be left to a iury.
    APPEAL from Izgrd Circuit Court.
    Hon. William Byees, Circuit Judge.

      Henderson, Attorney General, for appellant.
   ENGLISH, Ch. J. :

The appellee was indicted in the Circuit Court of Izard County under the act commonly known as the “Peace and Tranquility Act,” the indictment charging in substance as follows :

“ The Grand Jury of Izard County, etc. etc., accuse Robert Moser of the crime of using profane and abusive language, calculated to cause a breach of the peace, committed as follows, to-wit: The said Robert Moser, on the 20th day of September, 1877, in the county, etc., aforesaid, unlawfully and violently did make use of profane and abusive language toward and about and in the presence and hearing of one W. T. Moser, then and there being, by then and there saying to the said W. T. Moser, go to hell, God damn you, which language was then and there calculated to arouse to anger the said W. T. Moser, and then and there cause a breach of peace; against the peace and dignity of the State,” etc.

The court sustained a general demurrer to the indictment, and the State appealed.

The act provides:

If any person shall make use of any profane, violent, abusive or insulting language toward or about another person, in Ms presence or hearing, which language, in its common application, is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault; every such person shall be deemed guilty of a breach of the peace, and upon conviction thereof, shall be punished by fine, etc. Sec. 1512, Gantt’s Digest.

What particular objection was taken to the indictment in the court below, does not appear, the demurrer being general, and the appellee not represented by counsel here.

The indictment follows the language of the statute, which as a general rule, is sufficient in indictments for misdemeanors under statutes.

The language alleged to have been used by appellee was certainly profane, and whether it was calculated to arouse the anger of the person to whom it was addressed, and provoke a breach of the peace as alleged, would depend upon the relations of the parties, the circumstances under which the language was used, the manner of the speaker, etc., which would be questions for a jury upon the trial.

We can see no valid objection to the indictment.

Judgment reversed and cause remanded with instructions to the court below to require the defendant to answer the indictment.


author: ENGLISH, Ch. J.:

text:
    McCustian vs. Ramey, adm’r.
    1. Limitation —Statute of : When it begins to run against an estate.

    The statute does not begin to run against an estate until the appointment of an administrator.
    2. Payment : To heirs no discharge of liability to administrator.

    One who holds the money of an estate, cannot discharge his liability to the administrator by payment to heirs.

      3. Administrator: Liability to stranger for funds administered by mistake.

    An executor or administrator receiving money by mistake as assets of his decedent’s estate, will not be excused from his liability to refund the same on the ground that the money has been applied by him in the course of administration. '
    APPEAL from Washington Circuit Court.
    Hon. J. M. PittmaN, Circuit Judge.

      J. I). Wallcer, for appellant.
   ENGLISH, Ch. J.:

Benjamin Ramey, administrator de bonis non of the estate of Aaron Mills, deceased, commenced this suit against William R. McCustian, in the Circuit Court of Washington County, on the 23d of December, 1875.

The complaint alleged, in substancie, that about the 16th of July, 1865, the defendant had and received $1400, due and belonging to the estate of Aaron Mills, deceased; and that on the 6th day of March, 1875, letters of administration de bonis non of said estate, were granted to the plaintiff by the Probate Court of Washington County; and no part of said sum had been paid, etc.

The defendant answered, denying that he was indebted to the plaintiff, or that he had received said sum of money, or any part of it, as alleged; and alleging that the plaintiff’s cause of action did not accrue within three years next before the commencement of the suit.

The cause was submitted to a jury on the 15th of May, 1876, and vei’dict and judgment in favor of plaintiff for $1141.85, motion for new trial overruled, bill of exceptions, and appeal by defendant.

There was evidence upon the trial conducing to show, that Seth Mills, the first administrator of Aaron Mills, deceased, loaned money belonging to the estate of his intestate to George Lewis, Jr., and took a note and mortgage upon land, to secure the loan.

That Seth Mills died in February, 1864, and appellant, McCustian, became his administrator, and the note and mortgage came into his hands.

It is probable that the note and mortgage were taken by Seth Mills, payable to himself personally, and not as administrator of Aaron Mills ; but the appellant married the widow of Seth Mills, and there can be but little doubt, from the evidence, but that he was informed that the note and mortgage in fact belonged t.o the estate of Aaron Mills.

The appellee proved by the admissions of appellant to several witnesses, that the mortgage debt belonged to‘the estate of Aaron Mills, and that he had in his hands other claims belonging to the same estate.

Appellee was permitted to read in evidence from record E, p. 388, of the Probate Court of Washington County, the following entry:

“Estate of Seth Mills, deceased. Upon the application of Win. McCustian, administrator of said estate, and it appearing that he has in his possession the sum of $933.60, being the principal and interest of a mortgage debt on George Lewis, and that said debt belongs to the heirs of Aaron Mills, deceased. It is ordered by the court that said administrator be allowed to pay to the heirs of said Aaron Mills, their distributive shares of said amount, and be credited with the same as administrator of Seth Mills, to the extent of the charge against him as such administrator.”

Appellee also read in evidence from the same record, p. 672, the following entry:

“In the matter of the estate of Seth Mills, deceased: Comes on this day, William R. McCustian, as administrator of the estate of Seth Mills, deceased, and shows to the court that a decree bas been rendered on the 14th February, 1867, in the Circuit Court of Washington County, in Chancery, in his favor against George Lewis, Jr. ; that a large amount of said decree has been paid off and satisfied, and the mortgage premises, in said decree mentioned, sold, and that there is still a balance due on said decree; that said George Lewis has no property, as far as he is able to ascertain, subject to execution ; and asks . the court to permit and allow him to compromise said claim and demand against said George Lewis, Jr. It is therefore ordered by the court that the said William R. McCustian, as administrator of the estate of said Seth Mills, deceased, be and he is hereby authorized to compromise said claim with the said George Lewis, Jr., and to receive the sum of one hundred and seventy-five dollars in full satisfaction of thfe balance due on said decree.”

The appellee testified that about six months before the trial, and' just before the commencement of the suit, he demanded of appellant the money claimed in the complaint, and he said he did not have it.

Appellant testified for himself that he collected the amount due on the Lewis mortgage, as administrator of Seth Mills, and paid it out in good faith in due course of administration, bp.1ip.ving it to belong to Seth Mills’ estate. He denied telling any one that the money belonged to the estate of Aaron Mills, or his heirs. That he knew nothing about the probate record entry read in evidence by appellee, or upon whose motion it was made. That all the money he received upon the mortgage was collected in 1871.

It was admitted that he was discharged from his administration of the éstate of Seth Mills, 4th September, 1878.

He stated in general terms, that as administrator of Seth Mills, he had collected and duly administered the money collected upon the Lewis mortgage, but to whom he paid it, or what particular disposition he made of it, he did not state.

It appears from the testimony of B. J. Johnson, a witness for appellee, that there were seven heirs of Aaron Mills, and that appellant had paid the shares of all but two of them. No payment appears to have been made by him to appellee as administrator de bonis non of Aaron Mills.

The court gave the following instructions to the jury, on behalf of appellee, appellant objecting to them severally :

First — ‘ ‘ If you find from the evidence that the defendant collected money from George Lewis, or any one else, that he knew was going to the estate of Aaron Mills, you will find for the plaintiff, unless you find that he has paid the same to the administrator of said Mills, or that plaintiff’s right of action accrued more than three years before bringing this suit.

¡Second — “If you find from the evidence, that after the death of Aaron Mills, Seth Mills administered upon his estate, and that after the death of said Seth Mills, the defendant collected money that he knew to be going to or belonging to the estate of Aaron Mills, the statute of limitations would not commence running in favor of defendant until letters of administration de bonis non were granted upon the estate of Aaron Mills.

Third — “I charge you, that if you find from the evidence, that the defendant collected or received any money belonging to the estate of Aaron Mills, deceased, after the death of Seth Milis, either as the administrator of the estate of said Seth Mills, or in his individual capacity, knowing the same to belong to the estate of Aaron Mills, no payment made by him to any other person than the executor or administrator of the estate of Aaron Mills, deceased, would be legitimate, and protect him in an action said executor or administrator, and if you find the defendant did receive such money, you will find for the plaintiff the amount so received, with interest thereon from demand, at the rate of G per cent, per annum.”

The appellant moved ten instructions, of which the court gave the first, fifth, sixth and ninth, and refused the second, third, fourth, seventh, eighth and tenth.

Those refused are as follows ;

Second — “ That though the jury may find from the evidence that defendant received money belonging to the estate of Aaron Mills, deceased, the statute of limitation would commence running against said estate from the time the defendant received the same, whether there had been an administrator appointed on the estate of Aaron Mills, or not, unless defendant held the same as a trustee of an express trust.

Third — “If the jury find from the evidence that the defendant, either individually, or as administrator of the estate of Seth Mills, deceased, for three years before the commencement of this suit, held the peaceable, continuing and adverse possession of the money in controversy, they should find for the defendant.

Fourth — ‘ ‘ If it be shown in evidence by defendant that he held possession of the money in controversy for three years next before the commencement of this suit, the presumption would be that he held it adversely, and it would devolve on the plaintiff to show that he did not hold it adversely.

Seventh — “If the jury should find from the evidence, that Seth Mills was the administrator of Aaron Mills, deceased, and as such had money in his hands belonging to the estate of Aaron Mills, and loaned the same to George Lewis, and took a note and mortgage to himself individually, andthereafterthe same came to the hands of defendant, as administrator of Seth Miils, deceased ; and that in due course of administration the same was collected by defendant as such administrator, and by him treated and paid out as assets belonging to the estate of Seth Mills, in the course of such administration, they should not find against defendant for the same.

Eighth — “If the jury believe from the evidence that defendant, as the administrator of Seth Mills, collected and held in his possession money belonging to the estate of Aaron Mills, and that he paid out the same as assets of Seth Mills’ estate, and was duly discharged from said administration, he cannot be individually held responsible for such money in this suit.

Tenth — “That upon all the facts proved in this cause, and admitting all to be proved, which the evidences conduce to prove, the plaintiff is not entitled to a recovery in this cause.”

I. No doubt, from the evidence, appellant received the money in controversy more than three years before the commencement of this suit, but appellee had no* right of action until he was appointed administrator de bonis non of Aaron Mills, and his right of action could not be barred by limitation before it accrued. At the time appellant received the money, there was no administrator of the estate of Aaron Mills, to which (the jury found from the evidence) the money belonged, and the statute of limitation did not commence running until an administrator was appointed. Brown, adm’r, v. Merrick et al., 16 Ark., 614; Angel on Limitation, page 55; Murray v. East India Co., 5 Barn, and Ald. R., 204; 18. Ala., 381; 10 Yerger, 383; 39 Mo., 301.

II. The heirs of Aaron Mills could not sue appellant for the money because they had no direct legal cause of action against him ; nor could he legally discharge himself from liability to the administrator, when appointed, by paying the money to the heirs. After the claims of creditors are paid by the administrator, the heirs get the remainder of personal assets by distribution through the Probate Court, as provided by the statute. Lemon’s heirs v. Rector, 15 Ark., 437; Pryor v. Rayburne, 16 Ib., 671; Anthony v. Peay, 18 Ib., 24; Aikins v. Guice, 21 Ib., 164; Jacks v. Adair, 30 Ark., 625; Collins et al. v. Warner, adm’r, 32 Ib., 91.

The court did not err in giving the three instructions moved for appellee, nor in refusing the second, third and fourth asked for appellant.

III. “An executor receiving money by mistake from a supposed debtor of the testator, will not be excused from his liability to refund the same, upon the ground that the money has been applied by him in the course of administration.

“ The executor and brother of a mortgagee received, after the mortgagor’s death, £700, supposed to be due on the mortgage. Afterwards, it appeared, by a copy of an account under the mortgagee’s own hand, that a part of the money had been paid by tlfe mortgagor in his life time. To a bill brought to be relieved against this overpayment, the defendant, the executor of the mortgagee, answered and insisted that before any notice of the plaintiff’s demand on account of this overpayment, the defendant, as executor of the mortgagee, had paid away the £700 in his testator’s debts. Nevertheless, it was determined that the money overpaid' should be paid back by the executor, and he be at liberty to sue such creditors as through mistake he had paid, to make them refund. It was said by Co week, Chancellor, that though this might be a hard case, yet if the plaintiff had a right to be repaid his money, which he had overpaid on the mortgage, the right could not be overthrown by the defendant, the executor, applying the money in any manner he should think ht, any more than if an executor at law should recover a debt, and pay his testator’s debts with it, and afterward this judgment recovered-by the executor is reversed in error, the executor must restore the money to the plaintiff in error, and his having paid it away in his testator’s debts, will not excuse him from paying it back. So, in the same manner, if there was a decree, for the executor to be paid a sum of money by the defendant, and the executor having received the money, pays it away in debts, and then the defendant, against whom the executor had recovered the decree, brings an appeal and reverses the deeree, the plaintiff in the appeal shall be restored to the money. It would be otherwise if the defendant had delayed' the appeal, and willingly stood by whilst the executor paid away this money to the testator’s creditors ; for this would be drawing the executor into a snare; but nothing of that kind appeared in that case. And it was, moreover, considered that, though the payment of the money by the executor, among the testator’s creditors, was an accident which fell hard upon him, yet it was impossible for the plaintiff to make them parties.” 2 Lomax on Executors (2nd edition), p. 465—6; Pooley et al. v. Ray, 1 Peere Williams, 355 ; Hircy v. Dinwood, 2 Vesey, Jr., p. 92-3; Pickering v. Lord Stamford, Ib. 582.

“And if an administrator sell a ■ chattel which was in the intestate’s possession at his death, he will be personally liable in trover to one who was in truth the owner, for the value of the chattel, notwithstanding the administrator applied the proceeds of the sale of the chattel to the payment of the intestate’s debts in due course of administration, and had no notice of the right of the true owner.” 2 Lomax on Executors, (2 Ed.) page 466. Newsom v. Newsom, 1 Leigh, 86.

The facts in this case are stronger against appellant than in the cases cited. Here the evidence conduces to prove that he was informed that the money collected by him on the mortgage belonged to the estate of Aaron Mills, and yet he attempts to defeat this suit for the money by his administrator, by stating that he collected it as administrator of Seth Mills, and disposed of it in due course of administration. This if true was not a good defense to the suit. In the case last above cited, where the intestate died in possession of a chattel, which came to the hands of his administrator, who in good faith sold it, and administered the money. Justice Carr, said :

' “ The right of the owner to sue for his property, can never depend upon such circumstances as these. The administrator when he sells property as belonging to his intestate, acts at his peril, if he sells my' property he must answer to me for it,, however he may have thought himself bound by law to sell, and however fairly he may have applied the proceeds to the-debts of his intestate.”

It follows that the court below did not err in refusing the seventh, eighth and tenth instructions moved for appellant.

Whether there are any unpaid creditors of the estate of Aaron Mills or not, is not made to appear in the case before us. If not, his heirs will be entitled to have the money collected in this suit distributed among them, after payment of the expenses of administration. If in fact appellant has paid the shares of five of them as stated by the witness, Johnson, it would not be equitable for the appellee to pay them again out of the money recovered of appellant in this suit, but their shares should, by subrogation, be distributed to appellant.

But this being a suit at law by the administrator of Aaron Mills against appellant for money collected by him belonging to that estate, it is no defense, as we have seen, that he paid to some of the heirs their shares, they having no legal right to collect it of him, and the right of action being in the administrator of Aaron Mills.

Judgment affirmed.


author: HakrisoN, J. :

text:
    Ferguson vs. Peden.
    1. Title. Possession, evidence of:

    Where one dies in actual possession of land, it is prima, facie evidence that he ■was seized in fee.
    2. Acknowledgment of Deeds. Official character of Clerics of another State need not be attested by Judge of Court.

      The certificate of the clerk of a court of record oí another State to the acknowledgment of the execution of a deed, is admissible as eyidence without attestation of his official character by the judge of the court.
    3. EVIDENCE- Amendment of Deed by evidence on trial.

    A deed cannot be corrected by parol evidence on the trial, and then offered as evidence of title to the land in controversy.
    4 Limitation. Adverse possession. Color of Title.

    A deed or color of title is not necessary to maintain the statute bar to the extent of the actual adverse occupancy.
    APPEAL from Washington Circuit- Court.
    Hon. S. W. Peel, Special Judge.

      J. D. Walker, for Appellant.
   HakrisoN, J. :

This was an action by Samuel J. Peden against James H. Ferguson, for the recovery of the South-West quarter of the hi orth-West quarter of section thirty, in township sixteen, North, of range thirty-three, West.

The complainant alleged that William C. Posten, died intestate, seized of the land, sometime prior to the year 1870, leaving William S. Posten, John J. Posten and Jane Pai'ks, who had since intermarried with Thomas McAdams, his children, his heirs at law. That John J. Posten, and Jane McAdams and her husband, on the 29th day of October 1874, sold and conveyed their interests in the land to the plaintiff; and William S. Posten, on the 15th day of November 1874, sold and conveyed to him his interest in it; and that the defendant unlaAvfully withheld from him the possession thereof, to his damage,, etc.

The defendant, in his answer, denied that the plaintiff had title to the land; and, as to six acres thereof particularly described, asserted and set up title in himself; alleging that Jane McAdams, and her husband Thomas McAdams, on the 12th day of November 1866, sold and conveyed the tract mentioned in the complaint to James C. C. Patten, who, on said day, entered into possession thereof, and enclosed with a substantial fence the said six acres; and the same had been, so enclosed from that time until the commencement of the suit.

And he denied that he was m possession of the other part of the tract, or withheld the same from the plaintiff.

The jur^ returned the following verdict: We the jury find the issues for the plaintiff; that the land mentioned in the complaint belongs to him, and he is entitled to the possession of the same, and that the defendant unlawfully withholds the possession of the parcel of six acres, and we assess no damages.

The defendant moved for a new trial, which was refused.

The judgment, as entered, was that the plaintiff recover the land mentioned in the complaint, and his costs, etc.

The defendant appealed.

Upon the trial, the plaintiff was permitted to prove, to which the defendant excepted, that William C. Posten was, and had been for four or five years, in possession of the six acres at the time of his death; which occurred in 1857 ; claiming it as his own, and exercising ownership over it.

As the plaintiff deduced his title-from William C. Posten, the evidence was clearly admissible and proper. Proof that he died in possession of the land was prima facie evidence that he was seized in fee. Carnall v. Wilson, 21 Ark., 62; Jacks v. Dyer, et al., 31 Ark., 334.

The defendant excepted also to his reading to the jury, after he had proven that the heirs of said Posten were his before mentioned children, the deeds from William S. Posten, and Jane McAdams and her husband; because thé acknowledgments of the grantors having been made, the one before the clerk of the District Court of McLennan County, and the other before the clerk of the District Court of Bosque County, in the State of Texas, the certificates of which were under the clerk’s official seal; his official character was .not attested by the presiding judge of the county.

No such attestation was required. The statute, sec. 842, Gantt’s Digest, is explicit and plain, and is as follows :

“In cases of acknowledgment or proof of deeds of conveyances of real estate taken within the United States or Ter ■ ritories thereof, when taken before any court or officer having a seal of office, such deed or conveyance shall be attested under such seal of office, and if such officer have no seal of office, then under the official signature of such officer.”

Nothing is said of any further attestation.

The plaintiff also read the deed from John J. Posten, and it was proven that said John J. Posten was, at the time of the trial, which was on the 27th day of April 1877, only about twenty-four years of age.

The defendant produced a deed from Jane McAdams and her husband, to James C. C. Patten, executed on the 12th day of November 1866, for an adjacent tract of land; and offered to prove, by parol evidence, that it was the intention of the grantors to sell and include in the deed the six acres ; and then to read it to the jury: and the refusal of the court to allow such proof, and the deed to be read, was the ground of another exception by the defendant, and of the motion for a new trial.

If such a mistake had happened, a court of equity might, no doubt, have relieved against it, if no right of an innocent purchaser, or other equity, had intervened; but a court of law. possesses no such power. The deed was very properly rejected.

The defendant introduced James C. C. Patten, who testified that he purchased the parcel of six acres from Jane McAdams and her husband, on the 12th day of November 1866, and immediately took possession and enclosed it with a good, substantial rail fence, and cultivated the same until the 14th day of February 1871; when he sold and conveyed it to A. S. Vande-venter, and delivered him possession.

He then read the deeds from Patten to Vandeventer; from Vandeventer to Trent, and from Trent to the defendant; and it was proven, that the six acres had been enclosed with a substantial fence, and cultivated from the time of Patten’s entry,- and that the defendant, and those under whom he claimed, had been notoriously, and with the knowledge of the plaintiff, in peaceable, adverse possession of the same, under a claim of light, continuously, from that time to the commencement of the suit.

The plaintiff, it was conceded, was, and had been ever since his purchase, in possession of the remainder of the tract.

The court instructed the jury, against the defendant’s objection, that the time Patten was in possession of the land, should not be computed with the time of the possession of the defendant, and the other persons under whom he claimed ; unless they found that he held under some written color of title.

This instruction was erroneous, and should not have been given.

In the case of Mooney et al. v. Cooledge et al., 30 Ark., 656, the court, after remarking that if the occupancy in that case had been held under color of title, the occupancy of any part of the tract, for the required time would have conferred title to the limits of the grant, under color of which the entry was made, say: “But, in this case, the adverse possession cannot be said to be under color of title to this acre of land. No deed giving limits or boundaries to this spot was ever made ; and when an entry is made, under such circumstances, the rule is that the possession reaches no further than there is an actual occupation by some defined certain limits, indicated by an enclosure, or something of a like notorious character.” 3 Wash. on Real Prop., 135-150 ; Willard on Real Estate, 355 ; Tyler on Eject, and Ad. Pos., 863; Humbert v. Trinity Church, 24 Wend., 604.

Justice Co wen, in delivering the opinion of the court in Humbert v. Trinity Church, said: “So long as a man is in possession of land, claiming title, however wrongfully, and with whatever degree of knowledge that he has no right, so long the real owner is out of possession, in a constructive as well as an actual sense. It is of the nature of the statute of limitation, when applied to civil actions, in effect, to mature a wrong into a right, by cutting off the remedy. To warrant its application in ejectment, the books require color of title, by deed or other documental semblance of right in the defendant, only when the defense is founded on a constructive adverse possession. But neither a deed nor any equivalent muniment is necessary, where the possession is indicated by actual occupation, and any other evidence of an adverse claim exists. The muniment is but one circumstance by which to make out an adverse possession.”

No notice seems to have been taken of the infancy of John J. Posten, during a part of the time of the adverse possession. Until he arrived of age, the statute of limitation did not commence running against him; and it was not a bar to the plaintiff’s right of recovery of the undivided share purchased of him.

The judgment should not have been entered for the whole tract; but, inasmuch as the defendant set up no claim to an}r more than the six acres, it was not an error to his prejudice, or one of which he might complain.

Because of the error above shown, the motion for a new trial should have been sustained ; the judgment is therefore reversed, and the cause remanded that a new trial may be had.


author: EakiN, J.:

text:
    Honnett vs. Honnett.
    DURESS. Marriage.

    If one .having seduced a woman, marries her through fear of the natural and probable consequences of his crime, it would not, in the absence of force or threats of bodily harm at the time, be such duress as would avoid the marriage.
    APPEAL from Jefferson Circuit Court in Chancery.
    Hon. J. A. Williams, Circuit Judge.

      II. Carlton and Read Fletcher for appellant.

      Red and N. T. White, Contra,

   EakiN, J.:

This bill was filed on the 17th of April, 1876, by complainant against her alleged husband, setting up their marriage on the 6th day of the same month, and that afterwards he had treated her continuously with open insult, contempt, unmerited reproach and studied neglect. That he had publicly proclaimed her a prostitute, and used concerning her, other vile epithets, and that her condition had been rendered intolerable. Prayer for divorce, alimony and general relief. There was also a separate petition for an order to restrain the defendant from selling or disposing of his property to defeat alimony, to which petition he responded on the 20th of the same month, denying the marriage, and also his intention to dispose of his property.

Complainant followed her bill on the 9th of May, 1876, with a motion in open court for attorney’s fees, and alimony pendente lite.

On the 11th of May, defendant filed his answer and cross bill, setting up in substance that by conspiracy and threats, he had been forced to undergo the marriage ceremony, against his own free will, and praying that the marriage might be annulled.

The complainant answered the cross bill on the 12th, denying all conspiracy, force or fraud, and stating that the defendant after having seduced her under promise of marriage, had married her at the urgent request of friends, as a reparation of the evil. On the 10th of June, the court below ordered defendant to pay her $100 as attorney’s fees, and the sum of thirty dollars per month for maintenance, pendente lite.

A voluminous mass of testimony was taken, upon which the cause was heard. The chancellor found that the defendant had never of his own free will, consented to the marriage on the 6th of April; that his apparent consent had been procured by force and threats of violence to his person, such as to put him in fear of his life or great bodily harm; that he never recognized her as his wife, and that the marriage was void. It was so decreed, and the motion for alimony and attorney’s fees denied.

Complainant appealed, and an order was made in this court, on the 6th of February, for a further allowance; pending the appeal.

Without detailing the mass of testimony appearing in the transcript, this court finds upon a careful review of the same, the following substantial facts : That the complainant was a young woman of good character and social position. That defendant began paying her the usual attentions incident to courtship whilst she was quite a girl, about fifteen or sixteen years of age; that he persisted in them for a course of years so as to monopolize her society, gained her love and confidence, and under promise of marriage violated her chastity. Early in the year 1876, she became enciente from this connection. It became known to her relatives during the absence of defendant on a trip to New Orleans.

They considered her ruined and abandoned by defendant, and despaired of his return. She however clung to her confidence, and continually asserted that he intended to return, and do her the only justice which remained in his power.

Meanwhile great excitement prevailed amongst the friends of the families, most of whom seem to be Israelites. Defendant returned on the 6th of April, and went peaceably and unmolested from the steamboat to his place of business. He was there called upon by numbers of his friends, who reproached him with his conduct, and by arguments, expostulations, and by threats of a grave character urged him to an immediate marriage. He requested time to make up his mind, but was told that the matter would not admit of delay. The only direct threat emanated from the brother in law of complainant, who remarked if he did not marry complainant, he would never marry another woman. He explains the threat in his deposition to mean, that he would follow him up and disgrace him wherever he went, even if he went to Germany, and that he had been offered money for the purpose. There is some evidence also that he was told that if he did not marry the woman he would be lynched, not by parties present, but by others in the community.

During this pressure and these expostulations, defendant was much moved. He shed teai's and trembled, and seemed sorely perplexed. He was appealed to by the portraits of his parents which hung in the room to act honorably in this matter, marry the complainant, and make all things right. He was assured that they might still live happy and respected. He was very reluctant to consent, but yielding to these influences, whether from fear or from remorse, finally did so ; to the great satisfaction' of all concerned. He went with a friend to the clerk’s office to procure his own license, and several hours afterwards came with a friend to the house of complainant’s brother in law, where she resided and where the ceremony was duly performed. He remained but a short time afterwards, and left; since that time he has refused to lire with her or even visit her, and to justify himself, announced on divers occasions and to different persons, that she was unchaste, and had been guilty of intercourse with other men. Of this he does not offer one scintilla of proof, or ground of suspicion, beyond his own declaration. The character of the lady saAre as to this matter, is established by the most conclusive testimony.

Afterwards, being put upon trial, by some association of which he was a member, for his conduct towards the lady; he announced that he had made her his Avife, and that it was no longer the business of the members to enquire into his private affairs. It seems that ho was acquitted on these grounds.

Taking the Avhole testimony, it is impossible for this court to determine the true motives that actuated the defendant in consenting to the marriage. He was certainly under no fear' of bodily harm from those around him, who were urging him to it. They offered none and allowed him to go to and fro without hindrance. He might, possibly, have been in general fear of the consequences of his act, from the natural impulses of resentment on the part of her relations, as he Avell might be; and may have failed in the courage necessary to meet the consequences. He may have feared the frowns of his people, and loss of caste and confidence, or the withdrawal of their aid. He may have been actuated by genuine emotions of remorse induced by the appeal to his parents. Certainly the influences, Avhatever they Avere, were irresistible. He consented with the greatest reluctance.

Meanwhile, the complainant took no part in any of the proceedings, nor does she seem to have been aAvare of them, although she, doubtless, kneAv ner friends were urging the marriage. She remained passive and trusting until defendant came to the house, and led her from her sick room to be married. His refusal to remain with her, caused great distress to herself and her friends, and this, with the reasons assigned, caused the filing of her bill.

It is difficult to speak with calmness and patience of the conduct of the defendant throughout this affair, towards the helpless victim of his selfish passions. In marrying her he did what he ought to have done, and we prefer, in case of doubt, to attribute his action to the better motives of remorse and a sense of justice. His highest motive would have been to save, in some degree, the character of the confiding woman whom he had ruined — to relieve the shame and anguish of her condition, to give her his name, and his child a legitimate father ; and to win back the confidence and friendship of his people.

But if his motives were lower, and he feared the' natural and probable consequences of a treachery and a crime, and married to escape them ; it would not be such duress as would avoid the marriage in the absence of any force, or direct threat of bodily harm at the time the act was done. It would be shocking to allow one to escape the probable and natural consequences of such an outrage, by a marriage, and then having obtained security, to immolate his victim by repudiation of his act. She, at least, was no party to any fraud or duress.

The Chancellor, we think, erred in his findings from the-evidence.

Had there been actual duress, it was a tort, which defendant could waive; and we find him afterwards, when under no other duress than fear of expulsion from an association, owning his marriage as a voluntary act, and claiming immunity under it.

Tbe equity of complainant for a divorce on her part, must rest upon the ground of such indignities to her person as rendered her condition intolerable.

After the decision of this court in the case of Rose v. Rose, 9 Ark., 507, we cannot hesitate to declare, that without any fault of hers, to abandon his wife on the day of marriage, with declarations indicating a fixed and unalterable determination never to live with her or treat her as a wife, and to add to this insult, the deeper injury of traducing her character, without the shadow of proof, was an indignity calculated to crush to earth any woman of ordinary sensibilities.

We think the Chancellor erred also in denying her the relief prayed in her bill, both as to divorce and alimony.

Reverse the decree, and remand the cause with instructions to dismiss the cross bill, and grant a divorce to complainant, with suitable alimony and attorney’s fees, to be ascertained by reference to a Master, or in any other mode the Chancellor may deem most fitting in accordance with equity practice.