author: Engdish, C. J.

text:
    Countz vs. Markling.
    1. Certiorari. The record is conclusive, etc.

    On certiorari the record is conclusive as far as it extends.
    2. Husband and wire. Confession of judgment between.

    A judgment by confession, rendered against a husband in favor of the wife, is void, and will be quashed on certiorari.
    3. Dower. Relinquishment of.

    A wife can only relinquish dower by joining the husband in a deed to a third person. The relinquishment cannot be made directly to the husband.
    APPEAL from Pulaski Circuit Court.
    Hon. John Whytock, Circuit Judge.

      Rose, for appellant.

      J. M. Moore, contra.

   Engdish, C. J.

Fritz Countz presented .a petition to the Circuit Court of Pulaski county, stating that, on the 27th day of November, 1873, F. G. Markling, a justice of the peace of Owen township, in said county, without any notice of any kind to petitioner, and without his knowledge or consent, and without any summons being issued directed to him, entered up a judgment against him for $500 in favor of Charlotte Countz, who at the time and still was his wife, exhibiting a certified transcript, which is as follows:

“State oe Arkansas, County of Pulaski, Owen Township.
Charlotte Countz, plaintiff, v. F. Countz, defendant.
“This 27th day of November, 1873, personally appeared Charlotte Countz, and made complaint that F. Countz. is indebted to her in the sum of five hundred dollars for furniture, and stoves, and cooking utensils, etc. Then F. Countz appeared and stated that he will pay or is indebted to Mrs. C. Countz in the sum of five hundred dollars, if she, C. Countz, will give him, the> said F. Countz, a receipt in full and of dower and quit claim on his property, real estate and personal property; and that he will pay her one hundred dollars every year until he pays her five hundred dollars. F. Countz is to keep the furniture, etc.; Mrs. Countz is to have her clothing and bed clothing and sewing machine, and have them hauled to town. Then, after the above statements and by both parties, F. Countz personally appeared and confessed that he is indebted to Mrs. Charlotte Countz the sum of five hundred dollars for furniture, stoves and dishes.
“ Judgment by confession.
“It is, therefore, adjudged by the court that the plaintiff recover of the defendant five hundred dollars, with interest at ten per cent per annum until paid, and her costs herein expended.
“Done this 27th day of November, 1873.
“ F. J. Markling, J. P.”

The petitioner further alleged.that, on the 14th March, 1874, the justice issued an execution on the judgment, and a constable had levied on his property.

That said judgment was false; that he never appeared and confessed a judgment in favor of said Charlotte Countz for any amount whatever.

That said Charlotte had commenced proceedings against him in the Pulaski Chancery Court for divorce and alimony, being instigated thereto by said justice.

That said justice was an enemy of petitioner, and entered up said judgment without authority of law, and without notice to him, for the purpose of annoying and harrassing him.

That he did not know that said judgment had been entered up against him until after the time for appeal had expired, and that it was by no negligence or default on his part that an appeal was not taken.

That said judgment was void for want of jurisdiction of the subject matter in this, that said justice attempted to settle the question of dower and the title to land.

Prayer that the judgment be brought up on certiorari and quashed, and for restraining order against the constable, etc.

Markling entered his appearance and demurred to the petition. The court sustained the demurrer, refused the certiorari, and rendered judgment against petitioner for costs, and he appealed to this court.

I." If the magistrate entered the judgment against appellant without notice, and without appearance and confession, for the purpose of annoying him, as alleged in his petition, this might be grounds of relief in a court of chancery, but such allegations, when addressed to a court of law in a petition to have the judgment quashed on certiorari, cannot be considered. Redmond v. Anderson, 18 Ark., 450. The statute which authorizes the Circuit Court to issue writs of certiorari to officers, etc., or inferior tribunals to correct erroneous or void proceedings, declares that the records of such inferior judicial tribunals shall be conclusive as far as the same may extend. Gantt’s Digest, p. 320, secs. 1196-97.

, Here the magistrate’s entry shows that the appellant appeared and consented to the judgment, and this must be regarded as conclusive on application for certiorari. Such was the law before the passage of the statute. Hill v. Steele, 17 Ark., 440; Dicus v. Bright, 23 Ark., 108; McCoy v. Jackson County, 21 Ark., 476.

II. The counsel for appellee insists that the recitals which precede the judgment are mere surplusage, and, disregarding them, the judgment is regular and valid on its face. But if those recitals be disregarded and put out of view, nothing appears in the magistrate’s transcript but the judgment, no cause of action filed, no summons issued, and no appearance. A judgment rendered in such case by a justice of the peace, an inferior tribunal, with limited jurisdiction, would not be valid, and should be quashed on certiorari by a court having supervisory jurisdiction.

III. Taking the recitals and the judgment together, it is manifest that, upon an agreement made in the presence of the justice of the peace between the husband and wife, the husband consented for judgment to be entered against him in favor of the wife for $500. From the recitals it may be inferred that the parties had unhappily disagreed, and, perhaps, separated. The wife claimed of the husband $500 for furniture, stoves, etc. The husband agreed to pay her that sum in five equal installments, if she would give a receipt in full and a relinquishment of dower, quit claim, etc., in all his property, real and personal, she to retain her clothing, bedding and sewing machine, which were to be hauled to town. The magistrate, who seems to have considered himself invested with ample jurisdiction in the premises, put the agreement upon his record, and entered up judgment in favor of the wife against the husband; He seems to have favored the wife, however, for, instead of indicating in the judgment that the $500 was to be paid in annual installments, as proposed by the husband, he put the whole sum down as if to be paid at once, and made it bear ten per cent interest, and, in March following, issued an execution upon the judgment.

Treating the matter simply as a confession of judgment by the husband in favor of the wife, was the judgment valid?

By the common law the wife could not sue the husband at all in a court of law, on account of their legal unity and identity. Schouler’s Dom. Rel., 63; Story’s Eq. PL, sec. 61.

Marriage suspends or merges the legal existence of the woman, and during the coverture, she must perform everything under the wing and protection of the husband. Rogers v. Phillips and wife, 8 Ark., 366.

She could not sue a stranger without joining her husband, except when he had been banished, abjured the realm, or been transported for felony, etc. Story’s Eq. PL sec. 61; 1 Chitty . on Plead., 28.

It may be that if she sues a stranger in a court of law, and he neglects to plead her coverture, the judgment in her favor would be valid. So it may be that if a stranger confess a jndgment in her favor, the judgment would be valid, the confession of judgment being a release of erroi’s. But on what principle can the husband, in a court of law, confess a judgment in favor of the wife when, in the language of the text books, the effect of the marriage, at least in courts of law, is to deprive the wife of all separate legal existence, her husband and herself being in law but one person?” Chitty, 28. Is it not, in legal effect, the husband confessing a judgment against himself in his own favor? Is it the policy of the law that a sheriff or bailiff may disturb the domestic quiet and harmony by levying upon and selling the. goods or lands of the husband under an execution in favor of the wife ? The fact that they may have quarrelled and parted cannot change the general rule or policy of the law, until their legal unity and identity are terminated by divorce.

Judge Story says: “ A. femme covert, if her husband is banished, or has abjured the realm, or has been transported for felony, may, both at law and equity, maintain a suit in her own own name as a femme sole. But, except in these cases, and some other privileged cases of a kindred nature, a femme covert cannot at law, sue, except jointly with her husband; for she is deemed to be under the protection of her husband, and a suit respecting her rights or interests must be with the consent and co-operation of her husband. The rule in suits in equity is, in ordinary cases, the same as at law, and the husband must join in the suit. But there are exceptions in equity which are wholly unknown at law. Then, if a married woman (as sometimes happens) claims some rights in opposition to the rights claimed by her husband, and it becomes proper to vindicate her rights against those of her husband, at law she cannot maintain any suit against him. But in equity she may maintain a suit against him, and all others who may be proper or necessary parties. In such a suit she cannot act under the advice or protection of her husband, and, therefore, she is allowed to seek the protection of some other person, who acts as her next friend, and the bill is accordingly exhibited in her name by her next friend.” Eq. PL, sec. 61.

Our Legislature long ago made provision to secure to and protect the wife in the enjoyment of her separate property, and her right to sue her husband, in equity, by a next friend, in relation to her separate property has not been questioned.

Recent legislation has made rapid strides in extending the rights of the wife and limiting those of the husband.

She may bargain and sell her separate personal property, and carry on trade or business, and sue and be sued in relation thereto. Gantt’s Digest, sec. 4194.

Her husband must be joined with her in a suit, except in the following cases : First — She may be sued alone upon contracts made by her in respect to her sole and separate property, or in respect to any trade or business carried on by her under any statute of this State. Second — She may maintain an action in her own name for or on account of her sole or separate estate or property, or for damages against any person or body corporate for any injury to her person, character or property. Third— Where the action is between herself and her husband she may sue and be sued alone. Ib., sec. 4487.

Does all this so change the common law that she may sue her husband in a court of law ?

Mr. Newman says: “ The civil code provides that when a married woman is a part} her husband must be joined with her, except that where the action concerns her separate property she may sue alone, and when the action is between herself and her husband, she may sue or be sued alone. Where the wife claims some right in opposition to the rights claimed by her husband, she must, ex necessitate, sue alone. The cases, however, are few in which a wife can maintain an action against her husband, and this section confers no right of action which did not exist before the adoption of the code. It only changes slightly the form of procedure. Under the English practice the bill must have been exhibited in her name by her next friend, who was also named in the bill, in the same manner as in the case of an infant. But our code dispenses with the next friend, and permits her to sue in her own name, not only for alimony and divorce, but in all other cases where her rights are in opposition to those claimed by her husband. And where the action concerns her separate property, she may also sue a stranger in her own name without a next friend, and without making her husband a party.” Newman PL and Pr., 67.

If the wife cannot sue the husband at law, he cannot, on principle, confess a valid judgment in her favor in a court of law. It would be bad policy to allow the husband to confess judgment in favor of the wife. It might open a wide door for frauds against creditors of the husband.

Had the husband appealed in this case, if, indeed, he could have appealed from such a judgment, the appeal would have opened the judgment, and the cause would have stood for trial de novo. Would the Circuit Court have proceeded to try the case anew — a case between husband and wife in a court of law ? Surely not. The court would have simply dismissed the case.

If the furniture and stoves were, in fact, the separate property of the wife, and were so secured to her as to bar the marital rights of her husband, and if he has so offended against her as to give her legal cause for divorce, she should have filed a bill in chancery against him (which she could do in her own name under the code) for divorce and alimony, and for her separate property, and that court could have rendered her full and ample relief. If, on the contrary, her husband had not so offended against her, it was her duty to remain quietly with the furniture, the stoves and her husband at their common home. If part of the consideration for the five hundred dollars which the husband agreed to pay her was her agreement to relinquish dower in his estate, it was impossible for her to perform this agreement by executing to him the relinquishment, for the wife can only relinquish dower by joining the husband in a conveyance to some other person. Much less could the magistrate execute the agreement by making it a preamble to a judgment confessed by the husband in her favor.

We have read the opinions of Mr. Agnew, in Williams’ Appeal, 47 Penn. .State Reports, 307, and of Mr. Justice Simrall, in Simmons v. Thomas, 43 Miss. Rep., 36, cited by counsel for appellant.

In both cases there were judgments at law in favor of wives against their husbands, which came before the courts in collateral ■ proceedings, and the learned judges labored to maintain their validity in such proceedings.

This case, beside being dissimilar in other respects to the cases referred to, comes before us in a direct proceeding to quash the judgment for invalidity.

We are not disposed to go further than th'e Legislature has gone in removing the old landmarks of the common law relating to the mutual rights and disabilities of husband and wife.

The judgment must be reversed and the cause remanded, with instructions to the court below to overrule the demurrer to the petition and grant the writ of certiorari.


source: Caselaw Access Project

author: Walker, J.:

license: Public Domain

text:
    Cohn vs. Hager.
    1. Pleading: Time of objecting to the sufficiency of.

    Where a defendant files an answer and goes to trial on the issue formed without objecting to the legal sufficiency of the complaint, he cannot do so for the first time in this Court, even if the pleadings are techanieally insufficient.
    2. Lien: Of material man how asserted.

    The object of ch. 112 Gould’s Digest prescribing the manner of asserting the liens therein provided for, was to enable the party entitled to the lien to assert and fix the date thereof before suit, so as to give it priority over subsequent liens.
    3. Semble that the lien of the material man does not depend upon contract with the owner of the improvement, but grows out of the use" of the material furnished, and the attaehing-them to the freehold.

      APPEAL from Pulaslci Circuit Court.
    Hon. John Whytock, Circuit Judge.

      M. A. Cohn, for appellant.

      Farr, contra.

   Walker, J.:

Hager brought suit in the Pulaski Circuit Court, upon an account for materials and lumber furnished and used in building a dwelling house and out houses for Cohn, and asserted his claim to a lien upon lots eleven and twelve, in block ten, in the City of Little Rock; and the buildings erected thereon, for the value of the lumber furnished by him as a material man.

The defendant, 'in his answer, positively denied that the plaintiff sold, furnished or delivered to him, any lumber or materials to be used in erecting buildings for him. Denied that he was indebted to the plaintiff in any sum whatever, or that he promised to pay. plaintiff for any lumber or materials, claimed in plaintiff’s complaint to have been sold or delivered by plaintiff. But states that he and his wife contracted with W. Manson to build a house for his wife. That the house was to be completed and delivered according to a written contract, at his (Manson’s) sole expense, free from any incumbrance of laborer’s or mechanic’s lien, of his employees, or merchants, or lumber dealers.

That Manson was not his agent, and that if materials were furnished by plaintiff, they were furnished to Manson — and denies the existence of a lien upon the house.

To try this issue a jury was called, who after having heard the evidence and the instructions of the Court, found a verdict for the plaintiff; upon which judgment was rendered.

A motion for a new trial was filed by defendant, upon the ground that the verdict was excessive. That it was contrary to the evidence, and that the Court erred in giving instructions to the jury-

These are the material grounds for a new trial.

The evidence and the instructions are properly of record, by bill of exceptions.

It is contended for the defendant, that the plaintiff has failed to state in his complaint, a cause of action with such averments as entitle him to the benefit of a lien on the building, erected in part out of materials furnished by plaintiff, and on the lots of ground on which it was erected.

The statement or complaint consists of several paragraphs, in which there is set forth, an indebtedness upon an account of $312.63 for lumber and materials sold and delivered by plaintiff to defendant, as per account filed, showing the credits to which defendant is entitled, and that the balance due and unpaid is that above stated.

The 2nd paragraph is as- follows:

The plaintiff further states that the lumber and materials were used by the defendant in building and erecting a dwelling house on lots numbered eleven and twelve, in block numbered ten, in the City of Little Rock, Arkansas.

3rd. The plaintiff further states lhat he is a material man, and as such furnished said lumber and materials to the defendant, and that the defendant promised the plaintiff to pay him for the sáme. That plaintiff has by law a lien on the house and lots for payment of said debt.

The account was filed with the declaration, and was sworn to.

Now when we take the declaration and the account together, we find all the substantial statutory requisites to entitle the plaintiff to a lien, complied with. The debt — upon what account it accrued — that the lumber and material were used in erecting a dwelling on certain lots of lands, describing them; that plaintiff was a material man, and as such furnished lumber and materials • to defendant, for which defendant promised to pay, and that he has by law, a lien on the house and lots for the payment of his debt, all appear. These statements, with the account sworn to and filed, contain all the substantial facts necessary to entitle the plaintiff to judgment for his debt, and a lien on the building and lots on which it was erected, for its payment.

If the defendant had doubted the sufficiency of the pleading he should haye demux-red, and bx-ought the question of its legal sxxfficiency before the Court, but instead of this, he has treated them as sufficient in law to put him to answer, and having answered, and gone to trial upon the issue formed, even if the pleadings were techxiically insufficient, the question cannot for the fix-st time be raised in this Court.

We have carefully considered the provisions in Gould’s Digest chapter 112, which provide for filing an account, and having an abstract of it entered upon the judgment docket, and of the after proceedings thereon by scire facias.

The object and purpose of these provisions evidexxtly were in advance of suit, to enable the mechanic or other party entitled to a lien to assex-t it, and fix its date, so as to create a preference, from the time it is so entered upon the judgment docket, over subseqxxent liens, which becomes more apparent when we consider the 26th section in connection with other provisions of the statute. ’ «

This right of lien is secux-ed to the plaintiff under the provisions of the act approved 12th April, 1869, which is declared to be ixx amendment of the 1 sec., ch. 112 Gould’s Digest.

The act ixx express terms, gives to “all persons who shall furnish any materials for any building, edifice or tenement, whether under written or verbal contract, if unpaid for the same, an absolute lien on such building, edifice or tenement for such materials furnished.”

By reference to defendant’s answer it will be seen that he utterly denies ever having contracted with plaintiff for materials, with which to build, or having authorized any one to contract for him, or any promise to pay plaintiff for materials furnished. Indeed this may be considered his main ground of defence. Whether such was, or not the case, was a matter of fact to be determined by the jury from the evidence.

Without undertaking to say, in any case, whether it would or not be necessary to prove a contract between the owner of a building, and those who are employed to work upon, or to furnish materials out of which to build, there is not wanting authority for holding that the lien right does not grow out of the contract, but out of the use of the materials furnished; it is the putting them upon, and attaching them to the freehold that give the right of lien.

If in every instance it was required that mechanics, laborers, and those who furnish materials at the instance of the contractor, should also contract with the party having the building erected, the provisions made for the protection of all this most deserving class, would be comparatively worthless.

Houck, in his work on liens, says : '“Though material men are not mechanics, their rights are protected under the mechanics’ lien laws, and they have a lien for materials furnished, for in contemplation of law the materials are delivered on the credit of the building and real estate.” Sec. 3rd, page 106.

In the case of Hunter v. Blanchard, 18 Ill. 323. Caton, Ch. J., says: “It is then, not the contract which creates the lien under the statute, but it is the use of the material furnished upon the premises, the putting them up and attaching them to the freehold, which entitles the party furnishing the materials to a lien upon the premises to the extent of their value.” “It is immaterial,” says Houck, page 112, “in most of the states, whether the materials are charged to the owner or contractor. The lien attaches as we have already remarked to the house and the real estate, and even if materials are charged to the contractor this will not change the matter.”

In the case under consideration, Cohn contracted with Manson to erect for him a certain building; the building was to be completely finished, and the keys delivered to Cohn, free from all costs, charges, or liens for a certain sum of money.

The plaintiff furnished the lumber to Manson, charged it to him in his book, after some of the lumber had been delivered. It is in evidence that the plaintiff declined to deliver any more lumber unless Cohn should agree to become bound for its payment. That he sent to know what he should do, and received in reply that Cohn would be responsible. There is also the evidence of Manson, that , upon an occasion when he applied to Cohn for pay for erecting the building, Cohn refused, and said that he had plaintiff to pay for materials furnished. Cohn, who gave evidence in the case, positively denies this; denies that any such conversation ever took place. There is a palpable conflict between the evidence of the witnesses upon this point. The evidence of the witnesses whose testimony tends to prove an agreement on the part of Cohn to pay, or become bound for the lumber, is far from satisfactory, whilst that of Cohn is distinct and emphatic, that no agreement was ever made by him to become bound for the lumber furnished. But as there was evidence given to the jury upon this point, and as it was peculiarly their province to weigh the evidence, and to determine the credit to be given to the witnesses, under the repeated decisions of this Court, we must decline to set aside the judgment, and grant a new trial for this cause, even conceding it necessary, that proof of a promise to pay, by Cohn, was in this case necessary.

The Court below instructed the jury that, “if they found from the testimony that there was a contract, either express or implied, between the plaintiff and the defendant for the purchase of said lumber, and that the same was used in building and erecting the house of defendant, then they could find for the plaintiff, and might further find that he was entitled to a lien on said house, if they believed that the lumber was furnished by plaintiff as a material man, and of which contract defendant was privy.”

We can see no valid grounds of objection to these instructions. They are certainly as favorable to the defendant as was possible under the state of case.

The question as to whether or not Cohn contracted with the plaintiff for the lumber furnished, or agreed to pay him for it, or became responsible for it, was the only question of contest in the evidence; all of the other facts in issue were sufficiently proven.

Thus considering the questions presented, we think that the Court below did not err in refusing to grant to the defendant a new trial.

Eet the judgment be in all things affirmed.


author: Walker, J.

text:
    Edwards et al vs. Hall et al.
    1. Statutes Construed : When directory merely.

    A statute which provides that Commissioners to locate a County seat shall meet at a time and place provided for, that a majority shall constitute a quorum to do business, that “the Commissioners may adjourn to some other place or time, and may adjourn from day to day until the business before them may be completed,” is directory merely, and the Commissioners have the power to elect a chairman and empower him to fix the time of the next meeting.

      APPEAL from Prairie Circuit Court in Chancery.
    Hon. Jesse N. Cypejrt, Circuit Judge.

      Rose, for Appellants.

      Clark & Williams, contra.

   Opinion by

Walker, J.

L. D. Hall, Joseph B. Sanders, E. C. Clark, Richard Densdale, William D. Kerr, Joe H. Billinger and J. D. Upton vs. Asa O. Edwards, Charles B. Mills, Ham O. Williams and A. Boyd, D. N. White and J. G. McGown, Commissioners.

The plaintiffs, citizens and tax-payers of the County of Prairie, filed their complaint against defendant Edwards as County Judge, Charles B, Mills as Clerk, and Williams as Sheriff of said County, and the other defendants as Commissioners to locate the County seat of said County, for the purpose of enjoining them from removing their offices and the records of said County from Devalls Bluff, to Des Arc, the newly selected seat of justice for said county by the Commissioners. A temporary injunction was granted, in Chambers. When the cause came to be heard in the Circuit Court, the defendants demurred to the bill, two of the grounds of demurrer need only be noticed, which are, that the remedy of plaintiffs, if any, is at law, and that the facts set forth in the bill do not present a cause for equitable relief.

The Court overruled the demurrer and rendered a decree, that the defendants, and each of them, be perpetually enjoined from removing, or attempting to remove, the records, books, papers or furniture of the offices of Prairie County from Devalls Bluff; and that the Commissioners be restrained from exercising any power as such. From which decree the defendants appealed.

The sufficiency of the bill is the only question properly before us.

By an act of the Legislature, approved 28th May, 1874, provision was made for the selection of three Commissioners to locate the County Seat of Prairie County, and at the same time a vote to be taken for or against the removal of the County seat then located at Devalls Bluff. A majority of the votes cast were for removal, and defendants, White, Boyd and McGown, were elected Commissioners at an election provided to be held on the 30th June, 1874, for delegates to the convention. Upon the count of- the vote it was ascertained that a majority of the votes were in favor of removal. It was made the duty of the Clerk of the County Court to issue certificates of election to the Commissioners elected, and to fix a day for the Commissioners to meet at Devalls Bluff for the purpose of entering upon the discharge of their duties as such. It appears from the allegations in the bill, as well as a copy of the report of the Commissioners, that they all met, and after consultation, failed to make a location of the County seat, and appointed another place and time for meeting, at which they all three again met, but were unable to agree; they fixed another time and place for meeting, and thereafter, and, after several adjournments, the Commissioners met and elected defendant White, one of their number, chairman of the committee, and “adjourned to meet on a day, and at such time, as the chairman should appoint.” This proceeding was had in October, 1874. The chairman called a meeting of said Commisioners to meet at Hickory Plains, in said county, on the first Monday in February, 1875. On that day a majority of the Commissioners failed to attend, and White, the chairman, adjourned over to the 2d of February, and, for a like cause, until the 3d of February, 1875, at which time there was a majority of the Commissioners present, who then agreed to locate the County seat for said county at Des Arc, in said county, and made and filed their report, which was filed as required by the act passed for the purpose of making such location, and which it seems was the only act required of the Commissioners, to fix the location at the place selected by them, a majority of whom had power to act.

These are the affirmative acts of the parties, set forth in the bill, so far as relates to the Commissioners. As to the allegations against the other defendants, they are charged in the bill, as public officers, with an intent and purpose to remove the records of the county from Devalls Bluft to Des Arc, the place selected as a bounty seat by the Commissioners.

There are no direct charges of fraud against the defendants, nor are there any facts from which fraud may be presumed, unless it be the delay and repeated adjournments of the Commissioners, which may have arisen from an honest difference of opinion between the Commissioners. Each of them may have had a place in view, and have honestly believed it best for the interest of the county that his selection should be agreed to. Remarks have been indulged in by the draftsman of the bill, in effect, that one of the Commissioners had, during his canvass for election, committed himself to a particular location, and perhaps had not acted in good faith, but, whether true or false, it should have no weight in determining the questions at issue. It is unfortunately too often the case, that candidates for office, in electioneering for votes, make promises which they have not the power to fulfill, or, probably, which, at the time when made, they do not intend to perform. But, in all cases when Commissioners are qualified to act, and do act within the scope of the power conferred, their acts must be held valid. It may and sometimes is a misfortune to have dishonest or incompetent officers elected, but, until removed, whilst acting within the scope of their authority, their acts must be held as valid. The pleader seemed to have been conscious of. this, and has rested his case for equitable relief upon these grounds: First — That the new Constitution is in conflict with the act of 28th May, and that at the time location was made, there was no law in force under which they could act, and, for that reason, the location was void; and,

Second — that if the act was not repealed, the, Commissioners, by failing to make regular adjournments from time to time, had, before the time when they agreed upon a location, terminated their powers to act, and for that reason also the location was void.

Although we might dispose of this demurrer without proceeding to consider these questions, under the peculiar circumstances of the case, and, in deference to the expressed wish of counsel, we will proceed to consider, first, Was the act of May, 1874, repealed by the new Constitution, thereafter ordained and ratified ?

Article 13, section 3, of the Constitution of 1874, ordains that “no County seat shall be established or changed without the consent of a majority of the qualified voters of the county to be affected by such change, nor until the place at which it is proposed to establish, or change such County seat to, shall be fully designated.”

And in section 1, of the Schedule, it is provided that “all laws now in force, which are not in conflict or inconsistent with the Constitution, shall continue in force until amended or repealed by the General Assembly.”

It is very clear that if the act of 28th May, under which the Commissioners acted, is not in conflict with the provisions of the Constitution that it is in force, and when we come to look at that act, we find it in perfect harmony with the Constitution. The Constitution requires the question to be submitted to the voters of the county for their approval, the act does the same. The Constitution also requires that before the removal takes place, the place to which it is proposed to make the change shall be designated. This has been done, therefore there can be no conflict between the . Constitution and the act, and, as a consequence, the act is in force.

The second ground is, that the Commissioners, after their organization, which is admitted/to have been regular, by failure to make regular adjournments, failed to perpetuate their power as Commissioners, and made the location of the County seat at Des Arc, at and after the time,when their power to act had ceased.

The provisions of the act of the Legislature are: That “the Commissioners shall meet at the Court house, in said county, on the day fixed by the Clerk, a majority of them shall constitute a quorum to do business, and a majority of a quorum shall prevail in all questions, and be deemed the judgment of the Commissioners.” (The act then proceeds.) “The Commissioners may adjourn to some other place or time, and may adjourn from day to day until the business before them may be completed.”

The alleged departure by the Commissioners from the jirovisions of the act is, that they did not adjourn from day to day, but that the adjournment was for a longer time, and that the Commissioners had no power to elect a chairman, and to delegate to him the power to fix the time for the next meeting of the Commissioners, and that, when they did this, it was in effect to adjourn without day, and was, in fact, a termination of their powers as such.

The determination of this question involves a construction of the act, and the nature of the several duties to be performed whether mandatory or merely directory. In the construction of powers and duties conferred by statute, the terms “shall” and “may” are, when it is necessary to preserve the general intent of the statute, used as convertible terms, and as meaning the same thing, but, in the ordinary sense, the one is imperative and obligatory, the other potential or permissive. So, in the section quoted, the word “shall” appears in all that relates to the first meeting, the organization of the board, and, as to the number competent to do business, “the Commissioners shall - meet,” “a majority shall constitute a quorum,” and “a majority of the quorum shall prevail.” Whilst in regard to future meetings it says: “The Commissioners may adjourn to some other place or time, and may adjourn" from day to day, until the business before them is completed.”

Cooley, in his work on Constitutional limitations, page 74, says: “In respect to statutes, it has been long settled that particular provisions may be regarded as directory merely; by which is meant that they are to be considered as giving directions which ought to be followed, but not as so limiting the power in respect to which the directions are given, that it cannot be exercised without observing therm”

Lord Mansfield would have the question, whether the provisions of a statute are mandatory or not, depend upon whether that which was directed to be done was or was not of the essence of the thing required. In the case of The People v. Cook, 14 Barber, 290, the Supreme Court of New York laid down the rule as one settled by authority, that statutes, directing the mode of proceeding by public officers, are directory, and are not to be regarded as essential to the validity of the proceedings themselves, unless it be so declared in the statute. In the case of People v. Sehermerhorn, 19 Barber, 558, it is held that statutory requisitions are deemed directory when they relate to some immaterial matter of convenience rather than of substance.

Clark v. Crane, 5 Michigan 154, was a case where Commissioners were appointed to assess damages and report in forty days. The report-was made after the forty days had expired. In the opinion of the Court this question was to be decided by ascertaining whether any advantage would be lost, or right destroyed, or benefit sacrificed, either to the public, by holding the provision directory. Mr. Cooley, after a review of numerous adjudicated cases, at page 77, says: “These cases sufficiently indicate the rules so far as any of general application can be declared, which are to be made use of in determining whether the provision of a statute are mandatory or directory.” “Those which are not of the essence of the thing to be done, but which are given with a view to the proper, orderly and prompt conduct of the business and by a failure to obey which, the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and, if an act is performed but not within the time, or the precise mode indicated, it may still be sufficient, if that which is done accomplishes the substantial purpose of the statute.”

The application of this rule, which we think founded in reason and upon authority, when applied to the facts of the case before us, clearly makes all that part of the statute which provides for the meeting and adjournment of the Commissioners directory, not mandatory.

The acts of the Commissioners, whether by a quorum fixing time and place for meeting, or by the chairman empowered by the Commissioners to do the same, was in no wise of the essence of the act to be performed. It could be an act of no moment, either with the public or of individuals, whether the adjournment was from day to day, or after the lapse of several days, or was made by the chairman or a quorum of the board. The important act, the essence of the matter, was, did they meet at a time and place in the county, and did a quorum, when so met in deliberation, agree upon and locate the County seat. This was done and a full report filed, designating the place selected, showing what donations had been given, with recommendations as to public building — in fact every requirement of the statute was complied with. The report has been filed, and in view of the whole case as presented, we must hold that the County seat is, finder the statute, legally located at Des Arc, and that the Court improperly restrained the County Judge and officers of the Court from removing the public records of the county to that place.

It may be that the location is an injudicious one, such as a majority of the tax-payers and voters of the county do not approve. If such unfortunately should be the case, whilst it is to be regretted that injury (if any) is the result of the election of incompetent or dishonest Commissioners, their acts being in accordance with law, and the power conferred, must be submitted to. There is clearly no equity in the bill.

Let the decree be reversed, the injunction dissolved, and the case dismissed.


author: English, Ch. J.:

text:
    SIVERBURG vs. The STATE.
    1. Appeal: Time for filing transcript in criminal cases. Waiver, etc.

    This Court -will not take jurisdiction of an appeal in a criminal cause where the transcript is not filed within sixty days after the judgment; and an agreement of the Prosecuting Attorney who tried the case to waive the time will not he regarded.
    APPEAL from Randolph Circuit Court.
    Hon. L. L. Mack, Circuit Judge.

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

The appellant was indicted in the Circuit Court of Randolph County for gaming, tried, convicted, and final judgment rendered against him on the 25th of November, 1874.

He prayed an appeal to this Court, which was granted, and the Clerk directed to make out and certify a transcript, etc., as prescribed by law.

The transcript was not filed in the office of the Clerk of this Court until the 8th of February, 1875, more than sixty days after the judgment.

The statute regulating appeals in misdemeanors, provides that “the appeal shall be prayed during the term at which the judgment was rendered, and shall be granted upon the condition that the record is lodged in the Clerk’s office of the Supreme Court within sixty days after the judgment.” Gantt’s Digest, sec. 2139.

In Kentucky, under a like statute, the Court of Appeals held that when the transcript was not filed within sixty days after the judgment it could not take jurisdiction of the case. Commonwealth v. Adams, 16 B. Mon, 338; Ky. code practice, 658.

We have not overlooked an endorsement on the transcript purporting to be signed by the counsel for appellant, and the attorney who prosecuted for the State in the Court below, agreeing to waive the time of filing the transcript. This agreement bears date 18th January, 1875, and before the transcript was filed here.

The Clerk’s certificate of authentication attached to the transcript bears date 16th January, 1875, by which it appears that the transcript was made out in time to be sent up before the sixty days expired, and if he had omitted a number of pages made up of adjourning orders unnecessarily copied into the transcript, he might have finished it at an earlier day.

We know of no authority of the Prosecuting Attorney to dispense with the requirement of the statute. If the agreement had been signed by the Attorney General, whose duty it is to prosecute or defend for the State in cases brought into this Court by appeal or writ of error, we do not know nor is it necessary for us to decidej whether we would recognize his right to consent to the filing of a transcript out of time, in a criminal case.

Nor is it necessary to decide whether we would permit the appellant to file the transcript out of time on’ a sufficient showing that he was prevented by unavoidable casualties from filing it in time as in a civil case, no such showing having been made.

The appeal must be dismissed.


author: English, C. J.:

text:
    Dougan vs. State.
    1. Criminal Jurisdiction: Is local.

    Under the provisions oí the Constitution of 1S74, the Legislature cannot invest a court with jurisdiction of crimes committed beyond the limits of the county.
    ERROR to Arkansas Circuit Court.
    Hon. John A. Williams, Circuit Judge.

      P. C. Dooley, for plaintiff in error.
   English, C. J.:

William Dougan, the plaintiff in error, was indicted in the Circuit Court of Arkansas County, at the March term, 1875, for murdering Ahab Inman. The offense was charged to have been committed in Arkansas county.

The accused was tried on the plea of not guilty, and found guilty of murder in the first degree; motions in arrest of judgment and for a new trial, were made and overruled, and he was sentenced to be hung.

On the trial, the State proved that Dougan shot Inman, his father-in-law, about a hundred yards from the east bank of White river, in Monroe county, and dragged his body from the place where he fell, and threw it into the river; which at that point and for some distance above and below, divided the counties of Arkansas and Monroe.

The plaintiff in erroi’ excepted to rulings of the court in giving instructions moved for the State, and in refusing others asked for him, but these exceptions were not made grounds of the motion for a new trial, and the instructions need not be considered.

One of the grounds of the motion for a new trial was that the verdict was contrary to the evidence, etc.

The bill of exceptions sets out all the evidence, and it was clearly proven that the offense was not committed in Arkansas county, where the venue was laid in the indictment.

On the contrary, it was proven to have been committed in Monroe county, but not exceeding one hundred yards from the White river, which is, and was at the time of trial, as the court told the jury, the boundary line between the two counties, at the place where the crime was committed, and for some distance above and below.

(Act of Nov. 7, 1836, and Act of Dec. 25, 1840.)

There seems to have been no confusion or uncertainty about the line between the counties, at the place where Inman was killed, but being within half a mile of the line of Arkansas county, the court held the offense to be within its jurisdiction, and the jury accordingly found the aocused guilty as charged, etc.

The plaintiff in error was indicted and tried since the adoption of the Constitution of 1874. The 10th section of the Declaration of Rights plainly provides that: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the county in which the crime shall have been committed, etc.”

Here the proof shows that the crime was committed in Monroe county, and yet the accused was tried and convicted by a jury of Arkansas county.

Section 1648 of Gantt’s Digest, taken from the Devised Statutes, provides that: where the offense is committed on the boundary of two counties, or within half a mile of such boundary, or if it is uncertain where the boundary is, the ■ indictment may be found and a trial had in either county.”

And a later statute provides that: when a river is the boundary between two counties, the criminal jurisdiction of each shall embrace offenses committed on the l’iver or any island thereof.” Cr. Code, Sec. 17, Gantt’s Dig. Sec. 1653.

The former statute was before this court in the case of The State v. Rhoda, 23 Ark., 158, and the court said: Cases may occur in which the crime may be committed on the boundary line between two counties, etc. In such cases it would certainly be a narrow construction of the provision of the bill of rights,, in relation to venue, to hold that the offender would not be subject to indictment at all.”

In this case the crime was not committed on the boundary of' the two counties, nor does the evidence disclose any uncertainty as to where the boundary was, the White river being the boundary. If the Legislature can authorize a court to go a half mile over its territorial jurisdiction in cases, as fixed by the bill of' rights, it may authorize a departure for any greater-distance.

The judgment must be reversed and the cause remanded, with instructions’to the court below to grant the plaintiff in error a new trial, and for such other proceedings as may be in accordance, with law, and not inconsistent with this opinion.


author: Harrison, J.

text:
    Wright, Ex. vs. Walker, et al.
    1. New Party: When required to plead, to the merits.

    Where a person claiming an adverse interest in the subject matter of litigation, is permitted to become a party in order to bring his interest before the court, he should not be permitted to file a demurrer to the complaint.
    2. Lis Pendens: Taxp-wrehaser not affected by.

    A tax purchaser pendente lite is not bound by the proceedings and judgment.
    3. Attorney: Cannot purchase his client’s land at tax sale.

    The purchase by an attorney, at tax sale, of land in regard to which he has been retained, is inconsistent with his relation to his client, and void, notwithstanding there may have been no bad faith on his part.
    Statute of Limitations: Applicable to tax sales.

    The statute requiring suit lor the recovery of land sold at tax sale, to be brought within two years, only applies to suits for the recovery or possession of the land, and not to a proceeding to foreclose a mortgage. And where the tax title is impeached for the first time in a supplemental bill, the date of the filing of the original bill will be deemed the commencement of the suit.
    APPEAL from Chioot Circuit Court.
    Hon. Henry B. Morse, Circuit Judge. •

      Garland, for appellant.

      Carlton, contra.

   Harrison, J.

On the 20th of February,. 1866, Joshua M. Craig, as administrator, with the will annexed of Junius W. Craig, deceased, filed his bill of complaint in the Chicot Circuit Court, against Samuel R. Walker and Eliza Baker Walker, his wife, Clement L. Walker, Richard H. Stewart, and Joseph Simmonds, for a foreclosure of a mortgage on certain lands.

The bill states that the said Samuel R. Walker, on the 22d of December, 1866, executed to the said Junius W. Craig, a mortgage- on certain lands, 2400 acres in quantity, in the county of Chicot, to secure the payment of three promissory notes of that date for $6000 each, payable respectively, on the 16th day of June, 1857, 1858 and 1859, given for an unpaid part of the purchase money of the same lands, in which mortgage his wife, the said Eliza Baker Walker, relinquished dower, and the same was duly acknowledged and recorded.

That afterwards Samuel R. Walker executed a mortgage on the same lands to the said Richard H. Stewart, to secure an indebtedness to him, the amount of which is not stated; and the said Joseph Simmonds recovered a judgment against him, but in what court, for what sum, or the date thereof, is not stated, which was also a lien on the lands, and that on the 2d of November, 1865, and after the creation or accrual of these several liens, he sold and conveyed the lands to the said Clemeqt L. Walker, who, at the time of the commencement of the suit, was in the occupancy of them.

Samuel R. Walker and his wife, and Clement L. Walker answered the bill — and admitted all its allegations. They claimed, however, that when Samuel R. Walker purchased the lands from Craig, it was agreed between them, that if upon a survey of the lands it should be found that any part thereof lay in the bed of Lake Mason, or its continuation, Willow Lake, a deduction of ten dollars for every acre so situated, should be made from the purchase money, which agreement on the 11th of April, 1857, was reduced to writing, and signed and sealed, and also duly acknowledged by them; and they averred that many acres thereof do lay in the bed of said lakes, but that the contemplated survey had never been made, and the number ascertained.

Asá Clement L. Walker also claimed to have purchased the lands at sheriff's sale, on the 16th of April, 1866, under an execution upon Simmond's judgment, and to have received a deed for the same from the Sheriff.

There was no replication to the answers. •

Stewart and Simmonds making no defense, the bill was, at the October term, 1866, ordered to be taken as confessed by them.

No further proceedings, except to suggest the bankruptcy of ■Samuel E. Walker, and make his assignee E. E. Norton, a defendant, appears to have been had until the October term, 1869. when the letters of administration of Joshua M. Craig, having been revoked, and letters testamentary granted to Emma J. Wright, she was substituted for him as complainant, and the cause ordered to proceed in her name as executrix, and she filed ■a supplemental bill, and made Charles EL Carlton a defendant.

The supplemental bill alleges that the mortgaged lands were, in 1867, sold for taxes, and purchased by Carlton, who had since ■obtained a deed for them from the tax collector; was claiming them as his own, and proceeding to have his title confirmed by a decree of the court. That the sale was not made in conformity to law, and was illegal, having been made on a day other than that appointed for the sale of lands for taxes, and under an order made at a term of the County Court, not authorized by law; and that Carlton was, at the time he purchased them, the counsel and solicitor of record of complainant in the suit, having been retained and employed by Joshua M. Craig, to conduct and manage the same, and by whom it was brought and had hitherto been attended to and conducted; that the testator’s estate was insolvent, and that the tax deed held by Carlton was a cloud upon the title ■of the lands, and would prevent a sale of them for a full price, .and diminish the value of the-estate, and was therefore a hindrance and impediment to the relief sought by the original bill, and prays upon his being paid all moneys which may be lawfully due on account of his purchase, he be decreed to surrender the deed, and that such title as he may have should pass to and vest in the purchaser under the decree of foreclosure.

At the April term, 1870, Carlton answered the supplemental bill. EEe admitted the purchase of the land for taxes, the execution of the deed to him by the tax collector, and that he was proceedingto obtain a decree for tbe confirmation of tbe sale. He, however, denied that he purchased the lands for himself, or that he claimed them as his own. He admitted that, at the time he purchased them, he was the counsel and solicitor of the complainant, and had brought the suit, and had hitherto attended to and conducted the same; but said that he was also the counsel and solicitor of said Eichard H. Stewart, the junior mortgagee of the lands, and for whom he had also brought a suit for foreclosure ; that the complainant refused to pay the taxes on the lands and prevent the sale, or to redeem them after the sale, giving, as the reason therefor, that she had assigned the mortgage upon which the suit is brought to John A. "Whittaker, the executor of Horace E. Walworth, in satisfaction of a debt her testator’s estate owed the estate of said Walworth; that he purchased the lands for Stewart, and with money furnished by him for the purpose, to protect his interest as mortgagee, and that he held the title in trust for him. And he alleged that Stewart was then in possession of the lands, and had been for more than two years next before the filing of the supplemental bill, and that the complainant, her testator, or predecessor had not been seized or possessed of them within that time. To this answer replication was filed. At the same term John S. Whittaker, executor of Horace E. Walworth, claiming to be assignee of the notes and mortgage, and also to have purchased an undivided half interest in the land from Stewart, upon his application was made a party, and he thereupon filed a demurrer to the supplemental bill.

At the April term, 1873, the cause came on to be heard, and was dismissed by the court for the want of equity.

The demurrer of Whittaker, which does not appear to have been disposed of before the final hearing, should not have been permitted to be filed. Claiming to have an interest in the litigation, he was permitted to become a party that he might bring, such interest before the court, which he could do by cross-bill,, but in no other way.

If there had been no sale of the lands for taxes, no question could have been raised as to the plaintiff’s right to a decree of foreclosure, and we need only inquire whether it can be affected by it.

Ordinarily, he who purchases during the pendency of a suit is held bound by the decree that may be made against the person from whom he derived his title, and the purchase is treated as if it never had an existence, and it does not vary the rights of the parties in the litigation; but a sale for taxes stands upon a different footing.

The authority of the State to make such sale is paramount, to the right of the owner, and all others, and when made in accordance with law is conclusive against all persons.

But Carlton, the counsel and solicitor of the complainant in the suit, was, by his professional relations to her, forbidden to-purchase the lands, for it is a well settled principle that no one can be permitted to purchase an interest where he has. a duty to perform that is inconsistent with the character of purchaser. Smith, v. Thompson’s heirs, 7 B. Mon., 305; Howell’s heirs v. McCreery’s heirs, 7 Dana, 388 ; Hawley v. Cramer, 4 Cow., 717; Young v. Bank of Orleans, 9 Paige, 649; Howell v. Baker, 4 John Ch., 118; Cleavinger v. Reimar, 3 Watts & Serg, 486; Hull v. Hallett, 1 Cox, 134; Surget v. Byers, Hemp., 715.

No attorney,” says Lord Thurlow, in Hall v. Hallett, “ can be permitted to buy in things in a course of litigation of which litigation he has the management. This the policy of justice will not endure.”

And, in the case of Cleavinger v. Beimar, which was an action of ejectment, the court held a purchase of the premises after judgment for the plaintiff, but before the defendant was turned out of possession by the defendant’s attorney, enured to the benefit of the defendant.

Whilst the evidence shows that the complainant refused to pay the taxes and suffered the lands to be sold, and that Carlton bought them under circumstances which absolve him from all imputation of bad faith or intentional wrong, his purchase was, nevertheless, inconsistent with his relation to the complainant, and the creditors of her testator’s estate whom she represented, and for whom she was but a trustee, whose interests the suit was intended to subserve.

Apart from this consideration, it appears to be true, as alleged in the supplemental bill, that the sale was void because not made on the day fixed by law, and was not ordered to be made on the day it was, by a valid order of the County Court, as held in Chaplin v. Holmes, 27 Ark., 414.

It was proven, as alleged by Carlton in his answers, that Stewart, who, it has been seen, made no defense, had been, at the time the supplemental bill was filed, more than two years in possession of the lands, but the filing of the supplemental bill was not the commencement of a new suit, but a mere continuation and amendment of the original bill; and, if Stewart himself had offered such a defense it would have been inadmissible, not only on account of the invalidity of the title under which he entered, and his possession not being anterior to the commencement of the suit, but because it has no applicability, except in actions for the recovery of the land or the possession of it. Chaplin v. Holmes, 27 Ark., 414.

The decree of the court below is reversed and the cause remanded to it, with instructions to allow said Whittaker, if he wishes, to file a cross-bill, setting up his claims to the notes and mortgage, and to proceed according to law.


author: Harrison, J.:

text:
    Gerson vs. Slemons.
    1. Contbaot: A stranger-not liable for the failure of.

    Where two persons contract with reference to an event that is contingent upon the act of a stranger, the latter cannot be held liable for damages resulting from a iailure of the contract, though it may have grown out of his omission to perform the act upon which the contingency depended.
    2. Damasks: When too remote.

    A creditor who procures the debtor’s agent to pay him the money of his principal by promising to apply a part of it to certair indebtedness and to accept the draft of the debtor for the residue, and afterward refuses to accept the draft, but applies the money to other indebtedness of the principal, is not liable to the agent fbr loss of commissions and a debt which he would have secured by the performance of the promise to accept the draft. Such damage is too remote and speculative.
    3. Set oee:
    Unliquidated damages is not the subject of set off.
    4. Contbaot: Consideration.

    A promise will not be implied from the performance of that which the party was under a legal obligation to do, even though it may have been at the request of the party benefited.
    APPEAL from the Drew Circuit Court.
    Hon. John W. Williams, Circuit Judge.

      Dodge & Johnson, for Appellant.

      Garland, contra.

   Harrison, J.:

Ben. Gerson sued William E. Slemons before a Justice of the Peace on the following due bill:

“Memphis, Tens., March 18th, 1878.
“Due Ben. Gerson one hundred dollars, for money advanced
W. E. Slemons.”
Slemons filed the following set off:
'“ Ben. Gerson to W. F. Slemons, Dr.
1872, March 1.
For amount of loss of discount on C. L.
Burk’s draft...............................’........$ 45 00
Protest fees on same...................... .......... 25 00
Amount of loss on A. T. Hurley’s draft....... 60 00
Protest fees on same................................. 20 00
Amount of loss on J. A. Jackson’s draft...... 40 00
For amount paid Mrs. Belser..................... 75 00
Expenses to Memphis.............................. 75 00
And damages sustained by his failure to carry
out contract....................................... 150 00
-- $490 00

There was a trial by a jury, which returned a verdict in favor of Slemons for $390.

Gerson appealed to the Circuit Court, and upon the trial there the verdict was again in favor of Slemons and for the same amount. Gerson moved for a new trial, and, failing to get it, appealed to this- Court.

The grounds of the motion for a new trial were, the refusal of the Court to give certain instructions asked by him, and that the verdict was against both law and evidence.

The controversy was only in relation to the defendant’s setoff; .and the evidence was somewhat conflicting, but it will not be necessary, to a right understanding of the case, to state but little more than the evidence for the defendant, which was that of the ■defendant himself.

He testified that he and his partner, Atkinson, were in the winter of 1871 and 1872, indebted to the plaintiff, who, it otherwise appears, was a commission merchant in New Orleans, in the sum of $3,300 or thereabout, and that during that winter George Gerson, the agent of the plaintiff, visited Monticello, and it was there arranged and agreed between him, as the plaintiff’s agent, and the defendant and Atkinson, that Atkinson should place in plaintiffs hands certain notes he held on Mrs. Belser, in the aggregate $4,500, as collateral security for their debt, and when the notes should be paid, he should, after satisfying the debt, accept drafts for Atkinson for the remainder and to the further amount of $1,100, and, in accordance with that agreement, Atkinson delivered the notes to him.

Atkinson afterwards moved to Red River and wrote to defendant to look after his business, and authorized him to draw in his (Atkinson’s) name the draft plaintiff had agreed to accept for him, arid directed him to use the same in settlement of the debts which he (Atkinson) was owing C. L. Burk, A. T. Hurley, J. A. Jackson and others, and promised, if the parties would deduct ten per cent, from their demands, he would pay him that for his trouble. He also authorized him to receive the money from Mrs. Belser. That Mrs. Belser, having met with the misfortune of having her house burnt, was disinclined and hesitated to pay the notes, but, upon witness making a deduction of $75 from the amount, she gave him a check on Memphis for the balance.

At plaintiff’s request he went to Memphis to meet him for a settlement, but met George Gerson. He dispatched to plaintiff* at New Orleans to know if he would accept Atkinson’s draft to the amount that had been promised through his agent, and he replied that he would. He then paid to .George Gerson the money which he had drawn on Mrs. Belser’s check, less $100, he reserved to pay traveling expenses, and for that handed him the due bill sued on.

C. L. Burks, consenting to deduct ten per cent, from his account against Atkinson, and also the protest fees and damages on a draft that Atkinson had before given him in discharge of the same account, which had been protested and returned, he drew a draft in Atkinson’s name in his favor on the plaintiff for the sum so agreed on. He made similar settlements with A. T. Hurley, who also held a protested draft, and with J. A. Jackson. The plaintiff refused to accept or pay any of these drafts, and they were protested.

The first and second charges in the set off, he said, are for the deduction of ten per cent, which C. L. Burks made from Atkinson’s account, and the protest fees and damages in his former draft, relinquished by him.

The third and fourth for the similar deduction and relinquishment by A. T. Hurley, and the fifth for the like deduction made by J. A. Jackson, and that the sixth is for the deduction allowed on Mrs. Belser’s note.

He testified further that Atkinson was owing him $4,900, and when he authorized him to get the money from Mrs. Belser he left it optional with him to apply it towards the satisfaction of that debt, or to pay it ove»’ to the plaintiff and if plaintiff had not deceived him by his promise to accept Atkinson’s draft, he would not have paid it to him, but would have applied it to the other debts of Atkinson, and after the payment of them would have had about $1,100, to apply to his own, and that by plaintiff’s failure to accept Atkinson’s draft, according to agreement, he, defendant, was damaged two or three thousand dollars, but to bring the damages within the jurisdiction of the justice he had stated them in the set off at $150.

From the plaintiff’s evidence, which in that particular, was not contradicted, it appears that Atkinson had with the plaintiff also an individual account, and that the balance of the Mrs. Belser notes after paying Slemons & Atkinson’s indebtedness was applied to it, but was not sufficient to discharge it.

From the view we take of the evidence we do not deem it worth while to notice the instructions that were refused, except as to the charge for the defendant’s expenses to Memphis, no attempt was made to prove a contract, either express or implied, between the defendant and the plaintiff in regard to the matters in the set off account.

The plaintiff had no connection whatever with the agreement between Atkinson and the defendant, by which the defendant was to be paid the amount of the ten per cent, deductions he might obtain from Atkinson’s creditors, and though the payment was contingent upon the plaintiff paying the drafts, he evidently could not be held liable to the defendant for the amount of such deductions for failing to do so.

The charges for the protest fees, which the evidence shows were intended also to include the damages on the previous drafts, do not even have the promise of Atkinson to rest upon. The evidence does not show that he promised to pay the defendant those amounts. Why the plaintiff should pay the defendant the $75, which he as the agent of Atkinson deducted from Mrs. Belser’s notes is equally as difficult to conceive. Of the sum received from her $3,300 were applied to the discharge of the debt due the plaintiff by the defendant and Atkinson, and the remainder upon the individual debt of Atkinson. There could be no more reason for holding the plaintiff liable to pay or make good the deduction made to Mrs. Belser for prompt payment in order that Atkinson might not be delayed in getting the money, than for holding the creditor liable to his debtor for the interest or discount the latter may have paid the bank to procure the means of paying his debt. The deduction was not made for the plaintiff’s benefit but for Atkinson’s, nor did the defendant thereby suffer any loss or injury.

If the defendant had any privity with the plaintiff’s agreement to accept Atkinson’s draft, a question not necessary for us to determine, the damages he claims on account of plaintiffs failure to comply with it, are too remote and too purely speculative to be the foundation of an action or admit of compensation. Non remota sed próxima causa spectatu/r.

Mr. Greenleaf says: The damages to be recovered must always be the natural and proximate consequences of the act complained of. This rule is laid down in regard to special damages; but it applies to all damages. 2 Green, on Ev. 256-261; Sedg. on Dam. 65, 73, 76, 79; Blanchard v. Ely, 21 Wend., 342.

The last charge is obnoxious to another objection. Unliquidated damages cannot be the subject of a set off. Newm. Plead, and Prac. 584; Barb, on Set Off 25, 84; Woodruff v. Loflin, 4 Ark., 527.

Nor do we think the defendant entitled to recover anything on account of his visit to Memphis, although he went there in accordance with the request of the plaintiff, because it is manifest that he went there for the purpose of meeting the plaintiff to pay the debt he and Atkinson owed him, and to discharge their obligation to him. In doing so we cannot think ho did more than his plain duty, or conferred any benefit on the plaintiff for which he should make compensation.

The performance of that which a party is under a legal or moral obligation to do, is not such a consideration from which a promise may be implied. 1 Par. on Con., 437 ; Smith v. Bartholomew, 1 Met., 276; Callagan v. Hallet, 1 Caine, 104; Stick v. Myrick, 2 Camp., 317.

The plaintiff should have had a new trial, and for the error in refusing it the judgment of the Court below is reversed and the cause remanded to it, with instructions to grant the plaintiff a new trial.


text:
    Apperson & Co. vs. W. E. & C. L. Moore.
    Mobt&agi? : On property not in esse.

    Where a mortgage is executed on an implanted crop, a lien attaches, in equity, as soon as the subject of the mortgage comes into existence, and in a proceeding to foreclose, will be enforced against the mortgagor and those holding under him with record notice.
    APPEAL from Phillips Circuit Court.
    Hon. ~W. H. H. Clayton, Circuit Judge.

      Adams, for appellant.

      John J. Horner, contra.

   English, Ch. J.:

The material facts of this case are as follows:

Win. McLain, a tenant on the Higgins plantation in Phillips county, being indebted to Apperson & Co., merchants of Memphis, in about the sum of one thousand dollars for money and supplies previously furnished, and desiring to secure to them that sum, and to procure from them further advances, on the 1st of March, 1872, executed a deed of trust, by which he conveyed to James D. Quigley, as trustee, two mules, one gray mare, six head of cattle, one wagon, farming implements, gear, etc., then on the Higgins place, worked and cultivated by him (McLain) together with all the entire crop of cotton as raised and produced, planted or to be planted upon the above described plantation, being in Phillips county, about ten miles southwest from Helena, etc. To be void on condition that McLain should pay to Apperson & Co., on or before the 1st of December, 1872, his then indebtedness, and also for ‘ such future advances in money or supplies as they might make to him during the year, to enable him to raise a crop, etc. A power of sale was given to the trustee on default of payment, and it was provided in the deed that the crop of cotton, as fast as the same should be picked, ginned and pressed, should be shipped to Apperson & Co., as commission merchants, to be by them sold and the. proceeds applied to the payment of the debt secured by the trust; and on any attempt of McLain to divert the cotton from such shipment, etc., the trustee was empowered to take possession of the cotton, etc., and dispose of the same as provided in the deed.

The deed was acknowledged on the 27th, and filed for registration in the recorder’s office of Phillips county, on the 29th of March, 1872, and duly recorded.

After the execution of the deed, Apperson & Co. made advances to McLain of money and supplies, under its provisions, and among the advances made was $600 to Higgins for rent of the place, on which the crop was made, for 1872.

McLain made a crop, and on the 12th of January, 1873, sold four bales of the cotton made on the Higgins place, of the crop of 1872, intended to be covered by the trust deed, to W. E. & L. C. Moore, of Helena, who purchased them on the market.

The main object of the bill in this case, filed by Apperson & Co., was to enforce their lien upon the cotton or its proceeds, purchased by the Moores of McLain. On the final hearing, the court below decided that the deed of trust was not a lien on the cotton raised by McLain on the Higgins place during the year 1872, because the crop was not in esse at the time of the execution of the deed, etc., and dismissed the bill for want of equity.

Apperson & Co., appealed.

The decree recites that the cotton was planted after the execution of the trust deed, and' from its date, first of March, we suppose that to be true. It may be assumed, therefore, that the crop was not in existence when the deed was made. It was to be produced during the remainder of the year on the particular plantation described in the deed, which McLain occupied as a tenant.

Had this been an action at law, by Apperson & Co., or by the trustee in the deed, for four bales of cotton, or their value, the decision of the court below would have been correct; the action could not have been maintained. Because that which has no actual or potential existence is not the subject of a grant, nor can a man sell or mortgage a thing which he does not own.

The cases cited by the counsel for the appellees sustain the elementary principle. Thus Comstock v. Scales, 7 Wis., 159, was trover for grain mortgaged by a tenant about the time it was planted, and it was held that the mortgagee could not maintain the action, because the crop was not in being when the mortgage was executed.

So where logs on hand, and others to be afterwards cut or obtained were mortgaged, in actions for the logs the mortgages were held invalid as to the after-cut or acquired logs. Lingles v. Phelps, 20 Wis., 398; Mowry v. White, 21 Ib., 421; Cudworth v. Scott, 41 New Hampshire, 456, was trespass for taking hay, grain, etc. The mortgage under which the plaintiff claimed was executed after parts of the crops had been sown and were growing, and others were sown after its execution. Held, that plaintiff had no valid title to the hay, grain, etc., from the after-sown crops.

In Otis v. Sill, 8 Barb., 102, the mortgage was upon scythes, iron, steel and coal owned by the mortgagors, and also “all scythes, iron, steel and coal which might be purchased in lieu of the aforesaid property. Held, in trespass, that the mortgage was invalid as to property subsequently acquired. This case was subsequently reviewed in Seymour v. Canandaigua & Niagara Falls P. P. Co., 25 Barb., 286.

An apt illustration of the rule is furnished from the old books. Perkins (Tit. Grant’s, sec. 65) says : “ A man cannot grant or charge that which he hath not.” And in Grantham v. Hawley, Hob. Rep., 132, it is said by the court that “ a man cannot grant all the wool that shall grow upon his sheep that he shall buy hereafter, for these he hath neither actually nor potentially.

But Perkins says (Tit. Grant’s, see. 90) “ that if a man grants unto me all the wool of his sheep for seven years, then the grant is good.” By which is meant the wool of the sheep which the grantor at that time has, for the wool granted has a potential existence.” Otis v. Sill, 8 Barb., 111-12.

Such is, no doubt, the rule in courts of law, but it is otherwise in equity.

Judge Story, in Mitchell v. Winslow et al., 2 Story, 644, after-reviewing the English and American cases, and quoting with approval from the opinion of the Vice Chancellor, in Langton v. Horton, 1 Hare Rep., 549, says : It seems to me a clear result of all the authorities, that wherever the parties, by their contract, intend to create a positive lien or charge, either upon real or upon personal property, whether then owned by the assignor or contractor, or not, or if personal property, whether it is then in esse or not, it attaches in equity as a lien or charge upon the particular property as soon as the assignor or contractor acquires a title thereto, against the latter, and all persons asserting a claim thereto under him, either voluntarily, or with notice, or in bankruptcy.”

In Langton v. Horton, the mortgage security was the assignment on the ship Foxhound, then on her voyage to the South Seas, together with all and singular her masts, etc., and all oil and head matter, and other cargo, which might be caught or brought home _ on the said ship, on and, from her then present passage.” The cargo was levied'’on by a judgment creditor on the arrival of the ship at home. A bill was filed to have the mortgage declared a good and valid security for the money advanced, and that the complainants be entitled to the benefit of the security in preference to the judgment creditor, and the Vice Chancellor decreed accordingly.

The rule in effect, as declared by Judge Story, has been followed in the following cases, and many others: Pennoch et al. v. Coe, 23 Howard U. S., 117; Seymour v. Canandaigua & Niagara Falls R. R. Co., 25 Barb., 288; Sillers et al. v. Lester et al., 48 Miss., 524.

Butt v. Ellett, 19 Wallace, 544, was a case very much like the one before us, and the Supreme Court of the United States held that, although an instrument which, purports to mortgage a crop, the seed of which has not been sown, cannot at the time operate as a mortgage of the crop, yet when the seed of the crop intended to be mortgaged has been sown, and the crop grown, a lien attaches, and will be enforced in equity against a subsequent purchaser with notice. The lien was enforced against the proceeds of the cotton.

So in this case the equity rule must be applied. The lien of the appellants, under the trust deed attached to the crop intended to be mortgaged when the crop came into existence, and was superior to the title of appellees, who purchased the four bales of cotton of McLain. The deed of trust was upon the public records of the county long before they purchased the cotton, and they'were chargeable with notice.

The decree of the court below must be reversed, and a decree entered here against the appellees for $227.98, the value placed upon the cotton by the court below, with interest from 12th January, 1873, and for costs.


author: Walker, J. :

text:
    Ober, Attwater & Co. vs. Pendleton.
    1. Conveyance: Escrow.

    A deed to real estate deposited with a third person, to be delivered to the grantee on payment of notes executed by the grantees in consideration of the conveyance, operates as an escrow; and the conveyance thereof by the grantee, or sale under execution against him, prior to the delivery of the deed, is inoperative.
    2. Portion: Charge on land for payment of .

    Where a parent, in order to make provision for several children, executed a deed to real and personal property in favor of hi$ two sons, and deposited the same as an escrow to be delivered on payment by the grantees of certain notes executed by them to other children of the grantor for their portions, it was held that the' notes constituted a charge on the land, enforceable in equity,
    APPEAL from Arkansas Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      Garland, for appellant.

      Pindalls, contra.

   Walker, J. :

This is a suit in Chancery, brought in the Arkansas County Circuit Court, by a part of the children and heirs of Robert N. Douglass, against the other heirs of Douglass and those claiming under them, to subject certain lands owned by Robert N. Douglass in his life time, to the payment of certain notes executed by Alfred O. Douglass and William E. Douglass, two of the sons of Robert N. Douglass, to several of his other children.

The material allegations of the bill áre, that on the first day of January, 1857, Robert N. Douglass was the owner of about twelve thousand acres of land in Arkansas county, some 70 or 80 negroes, a number of mules, horses and farming utensils. That he was far advanced in life, and bad a large family of children living near him, that he had before that time made advances in land and otherwise to several of his children, leaving his wife Evaline, his son William F. and his daughters, Ellen, Rose and Emma, to be provided for; that he was indebted to the amount of $20,000.

That in order to make payment of this debt and to provide for his future support, aud to make provision for his son William F., and his daughters, he contracted with his sons, Alfred O. Douglass and William F. Douglass, to take the lands, negroes, mules, horses and farming utensils, which he then owned, for the •consideration that they should pay his debt of $20,000, leave him and his wife in possession of the mansion house, yard and house-servants, and that Alfred O. Douglass should execute to them his note for $10,000, due 25th Dec. 1859. To Ellen •$10,000, payable 25th Dec., 1860. To Rose $10,000, due 25th Dec., 1861, in consideration of which he was to have an undivided half of the land, negroes and other property.

That William F. Douglass should be entitled to $20,000 out •of his half of the property, as an advancement to him, and that he execute his note to Emma for $10,000, to be paid Dec. 25th, 1862. That each of the notes should bear 8 per cent, interest, payable annually.

That Robert N. Douglass for this consideration, executed to .said Alfred O. and William F. Douglass, a deed for said land, negroes and personal property, and delivered the same to his daughter ElleHsj to be held by her as an escrow, and upon full and final payment of all of said several sums, to be delivered to the grantees. That the notes have not beén paid, nor has the deed ever been delivered.

That Alfred O. and William F. Douglass, entered upon and took possession of the land, negroes and other property.

Robert N. Douglass died intestate in 1863.

That the equitable interest of Alfred O. Douglass in the land was sold at sheriff’s 'sale, and William F. Douglass became the purchaser, and now holds the same. . That thereafter William F. Douglass conveyed his interest in the land to Ober, Attwater & ■Co., to secure a debt due to them.

That before the sheriff’s sale of the interest of Alfred O. Douglass in the land, he had conveyed them in trust lo William F. Douglass, to secure an indebtedness to Frances Dye, now by marriage Frances Walker.

All of these are made parties to the siiit and brought before the court,

Defendants Ober, Attwater & Co: appeared and answered, and .also file a cross bill, in which they set up their claim as mortgagees, aver that the lands were of less value than the negroes and other property, and the lien in favor of complainants only exists to the interest of the value of the lands. Aver that Alfred ■and William were tenants in common. That William F. Douglass was entitled to one-half, and could only be charged to the ■extent of his liability to Emma, to whom he had executed his note, that most of this note had been paid. This brief statement of the ground of defense may suffice to a proper understanding of the case made by the bill, and of the defense set up, which, from the view which we take of the case, can in no event avail the defendants.

The case was set for hearing upon bill, answers, exhibits and ■depositions, as to part of the defendant’s, and by confession for want of answers as to others.

The Court below decreed in favor of complainants, declared a •■specifio lien upon the land for the payment of notes executed by Alfred O. and William F. Douglass to the several heirs as above contracted, ascertained the balance due on each note, and decreed payment, and that the claims of the defendants, after satisfaction of these notes, given as the consideration of the conveyance from Robert N. Douglass to Alfred O. and ¥m F., should be taken and held as a second lien upon the lands, upon any balance that might be after satisfaction of the first lien debts.

From this decree defendants have appealed.

'Without referring to the evidence at length, it may suffice to say that it fully and circumstantially sustains the allegations of the bill, and shows the amount paid on the notes.

The defense set up seems to be predicated upon the assumption that the deed from Robert N. Douglass to his sons,\ Alfred and William, was effective without delivery to them, to convey to them an estate in the land, but such is not the case. It was distinctly averred in the bill of complaint, and clearly proven by the depositions of both Alfred O. and William F. Douglass, who were the grantees, that the deed never was delivered to them or either of them, but was delivered by their father to his daughter' Ellen, to be held by her until the notes were fully paid, and then and not before to be delivered to the grantees. The witness, William F. Douglass, says: “At the same time of the execution of the notes, my father executed a deed for the land described in the bill, which was placed in the hands of Ellen Douglass, which was to be delivered to us after the payment of all of these notes,, which deed I do not remember to have ever seen until about the commencement of this suit, except at the time it was written and signed; the deed was never delivered to me nor to A. O. Douglass.”

Alfred O. Douglass, another witness, states: “That the deed was never delivered to us, I have never seen it” (referring to himself and William F. Douglass). This evidence stands uncontradicted, and shows that this deed was delivered as an escrow. Washburn, in his work on Real property, vol. 3, page 270, says: “If the delivery depends upon the performance of a condition it is an escrow, and, if to be delivered at a particular day it is not a present conveyance. It has no effect as a deed until the condition has been performed, and no estate passes until the second delivery.”

Kent says, vol. 4, page 454: “Until the condition is performed and the deed delivered over, the estate does not pass, but remains in the grantor.” Sustained by this authority and upon principle, we must’hold that William F. Douglass and Alfred O. Douglass, the grantees, acquired no legal title to the lands in controversy, and could, according to the terms of the delivery of the deed to Ellen Douglass, acquire none until after the payment of all of the notes, executed in payment of the consideration of the land; and, as a consequence, that the deed of mortgage executed by William F. Douglass to Ober, Attwater & Co. was inoperative ; and such also was the -effect of the sale made by the Sheriff of the interest of Alfred O. Douglass, and of his deed of trust to William F. Douglass, because at the time these conveyances and sales were made the legal title was still in Eobert N. Douglass, and must so remain until the performance of the conditions upon which the deed was to be delivered. After the payment of these notes and the delivery of the deed, vitality is given to the deed to communicate title to William F. and A. O. Douglass, the effect of which, in relation to their former conveyances, is not properly the subject of consideration in this case.

The decree is certainly as favorable to the defendants, under the state of the case, as is permissible.

Let the decree be in all things affirmed and remanded to the Court below, to be proceeded in its final execution.


text:
    Osborne et al. vs. Graham, ad., et al.
    1. Chancery Jurisdiction: To open a Settlement in the Probate Court for fraud.

    If an Administrator charges himself in settlement with the appraised value of the estate, while the sale bill returned by him shows that the amount for whieh the property sold exceeded its appraised value, or if he applies the money of the estate to the purchase of property in his own name and right, a Court of Chancery will open the settlement for fraud.
    2. Parties in Chancery: Sureties on an Administrator’s bond.

    In a proceeding in Chancery, to open the settlement of an Administrator for fraud, the sureties on his bond may be joined as defendants.
    3. Resujgtinq- Trust: Attaches to property bought with trust funds.

    Lands purchased by an Administrator in his own name with money belonging to the estate, are equitably the property of the estate.
    APPEAL from Saline Circuit Court.
    Hon. John Whytock, Circuit Judge.

      Garland & Cockrill for appellants.
   Walker, J.:

The complainants, children and heirs at law of Amaziah Orr, deceased, filed'their bill in Chancery, in the Saline Circuit Court, against Graham as administrator, and Sheppard and Collart sureties upon his administration bond. The defendants demurred to the bill for want of equity, and because the defendants Sheppard and Collart were improperly made parties. The Court sustained' the demurrer, and dismissed the bill; complainants appealed.

The sufficiency of the bill is the sole question for our consideration. The material allegations are, that intestate Orr died in Saline County, Arkansas, in the year 1866, leaving a wife and children, and personal property to the value of twenty-five hundred dollars; that defendant Graham was appointed adminstrator of his estate; that he executed bond in the usual form with his co-defendant’s securities, and took into his possession twenty-five hundred dollars worth of personal property, which he sold, and collected the money; that he falsely and fraudulently made and returned an inventory and sale bill, in which the true amount of the property sold, and money collected, was not given, and that in settlement he failed to' account for about one-half the amount of money and property received, and fraudulently converted it to his own use in the purchase of land for himself,-and for tlje support and maintenance of himself and family ; that as administrator he made several settlements with the Probate Court, in none of which he accounted for the sum so withheld and fraudulently appropriated; that he well knew at the time he filed said inventory and sale bill and made such settlements, that they were false; that the administration of said estate should long since have Been closed; that the estate was but little indebted, and that all or nearly all of the debts had been paid ; that as heirs at law they are entitled to the residue of said estate, but that the administrator has failed to have distribution ordered, or payments made to them; that he is insolvent and unable to pay, and that unless the property so purchased with the money of the estate, be applied to the payment of the sums due them; or unless the securities upon the administration bond be held accountable, they will loose the sums due them, with a prayer for appropriate relief. Copies of the bond, inventory, sale bill and settlements are filed as exhibits with the bill.

By demurring, the defendants admit the allegations to be true, and the question is do they entitle the complainants to equitable relief?

The general administration of the estate was a matter clearly and exclusively within the jurisdiction of the Probate Court, and • by statute it is provided, that an account current, when confirmed by the Probate Court, shall never thereafter be subject to investigation unless in a Court of Chancery upon an allegation of fraud in the settlement of such account, supported by the affidavit of the party making such allegations.

This exclusive jurisdiction of the Court of Probate over the estates of deceased persons, and the conclusiveness of its judgments except in cases of fraud, properly relates to cases in which there is no contest as to the title of the intestate’s or testator’s estate, because whenever other parties than those claiming title under the intestate or testator, set up an adverse claim, or an adverse interest in the estate sought to be administered upon, such adverse claim, interest or title, must be litigated and settled before some tribunal competent to hear and determine the same. Clark, admr., et al. v. Shelton, 16 Ark., 474.

The case of Ringgold v. Stone, 20 Ark., 526, is, in many respects, like the one now under consideration. In that case it was charged that Ringgold, as administrator, received a large amount of interest upon outstanding debts, with which he failed to charge himself upon settlement, and, after final settlement, a bill was filed by Stone and others against Ringgold, in which it was alleged that Ringgold fraudulently failed to charge .himself with the interest so collected. Upon the hearing of the case there was no proof of positive fraud, but the mere fact that the administrator in his trust capacity had collected notes which were due and drawing interest, without charging himself with the amount of interest, was held of itself evidence of fraud, for which the former settlements wei’e set aside and the account restated. In the case before us, the administrator charges himself on settlement with the appraised value of the estate, whilst the sale bill returned by him shows that the amount for which the property sold greatly exceeded its appraised value. The facts of the case must be presumed to have been within the knowledge of the administrator, and by suppressing them he was guilty of fraud.

Independent of this, there is another allegation which entitles the complainants to relief in equity. It is the charge that the money belonging to the estate was fraudulently applied to the purchase of land in his own name and individual right. These lands, thus purchased, were equitably the property of the estate, and an investigation of the facts, and an appropriate decree for relief were proper subjects, for chancery jurisdiction.

The question raised by demurrer, as to whether the securities should have been made parties to the suit, was raised in the case of Clark v. Shelton, 16 Ark., 474, in which it was held by this court that, in a suit against the administrator for a breach of trust and settlement and account,- the securities in the administration bond were proper parties. See also Moren et al. v. McCown et al., 23 Ark., 93.

In view of the whole case, we think the court below erred in sustaining the demurrer to the bill, and that its decision should be reversed and set aside, and the cause remanded for further proceedings therein.