author: ENGLISH, C. J.:

text:
    Hoback v. Hoback et al.
    1. Homestead : Right of widow to, against heirs.

    A widow is entitled to homestead as well against heirs as against creditors of' her deceased husband. But she can not create a homestead on her husband’s lands after his death.
    2. Same : Right bai-red by deer'ee in partition, unless, cl'aiimed.

    When a widow is a party to a suit for partition among the heirs, and fails to. claim her homestead right, it is barred by the decree.
    APPEAL from Benton Circuit Court, in Chancery.
    Hon. J. M. PittmaN, Circuit Judge.
    - Gregg, for appellant.
   ENGLISH, C. J.:

This was a complaint in equity for partition of lands, filed1, in the Circuit Court of Benton county, September 1, 1876, by-William Hoback and Isaac N. Hoback, against John Hoback,, Mary E. Hawkins and her husband John- Hawkins, Margaret,. E. Hoback, Wesley D. Hoback, Nancy A. Hoback, and Mary Hoback.

The allegations of the complaint are in substance as follows :

That Robert V. Hoback died intestate, on the — day of -, 1864, leaving him surviving said Mafy Hoback, his widow, who is yet living, and the plaintiffs, and the other defendants named above, his children; and that after his death said Mary E. intermarried with said John Hawkins.

That said Robert Y. Hoback died seized and possessed of the following real estate, situate in the county of Benton : West half of northeast quarter, east half of northwest quarter, north half of southwest quarter, northwest quarter of southeast quarter, and the southwest quarter of northwest quarter of section 20, township 19 north, range 31 west, containing 320 acres.

That defendant, Mary Hoback, widow of said Robort Y., is residing on said lands, and entitled to dower therein, dower having never been assigned her.

That the estate of said Robert Y. is not indebted to any one in any amount, and said lands belong to plaintiffs and defendants equally, subject only to the dower interest of said widow.

That said real estate is not susceptible of partition in kind amongst and between said parties, without great loss and injury to each.

That defendants are residents of Benton county, and said Wesley D. and Nancy A. are minors, and reside with their mother, the said Mary.

Prayer that dower be assigned said widow, and that commissioners be appointed for that purpose, and that the remainder be sold at such time and on such terms as the court might think fit, and that the part assigned the widow as dower be sold subject to her life estate, and the proceeds divided, etc.

No process appears to have been issued to any of the defendants.

The first term of the court, after the filing of the complaint, commenced October 2, 1876.

On the 4th of October, defendant, Mary Hoback, filed an answer to the complaint in substance as follows :

Admits that she is the widow of Eobert Y. Hoback, who departed this life on November 21, 1864, seized and possessed of the lands described in the complaint.

That she is still a widow, having never married since the death of her said husband. That she now resides, and has for many years last past, resided upon and been in the occupancy of said real estate. That since the death of her said husband she has extended the farm and made valuable improvements thereon, and paid out about $870.82 taxes for the same.

That on the 16th day of September, 1876, she selected out of said real estate the east half of the northwest quarter and the southwest quarter of the northwest quarter, and the northeast quarter of the southwest quarter of section 20, etc., upon which she resides, and upon which is the residence of her said husband, containing 160 acres, as her homestead, and filed her claim of the same in the office of the Clerk of the Circuit Court of said county, which was by said Clerk duly entered of record in said office on the day and year last aforesaid.

That she owns no real estate in her own right. That two of the said heirs-at-law of Eobert Y. Hoback are still minors, living with and in her charge and custody as their mother.

She prays that her said homestead of 160 acres, as above described, be not subjected to the partition and sale as prayed for by complainants ; but that the same be decreed her homestead, and reserved from partition or sale under execution or other process of law.

The plaintiffs, on the 11th of October, demurred to so much of the answer of Mary Hoback as relates to her claim of 160 acres of the real estate mentioned in the complaint as a homestead, and assigned the following cause of demurrer:

“Because that portion of her answer which relates to right of homestead in the lands of her deceased husband does not state sufficient facts to entitle her to the right of homestead in said real estate against plaintiffs and the other defendants as heirs-at-law of said Robert Y. Hoback, deceased.”

The eourt sustained the demurrer, and on the same day (October 11, 1876), rendered the following decree :

“ The defendant, Mary Hoback, declining to make further answer, but electing to rest on the answer already filed, this cause came on to be heard upon the complaint of the plaintiffs, answer of defendant, Mary Hoback, the proof adduced, and agreement of parties, whereupon the court doth find that Robert Y. Hoback departed this life intestate, in the year 1864, leaving the defendant,, Mary Hoback, his widow, and the plaintiffs and defendants herein named, his children and heirs-at-law, him surviving. That said Robert Y. died seized and possessed, in fee simple, of the following described real estate, to wit: (Here the lands set out in the complaint are described). That said land is occupied by said widow, and that two of the defendants, who are minors, reside with her. That said estate is not indebted to any one. That said widow is entitled to dower in said real estate. And it is further agreed by and between the adult plaintiffs and defendants herein, that in consideration of said Mary waiving all claim for taxes paid on said lands and improvements erected, that they waive any claim to the personal property of which said Robert Y. died seized and possessed, to the said Mary Hoback.

“ It is therefore ordered, adjudged and decreed by the court, that dower in said estate be assigned to said widow, Mary Ho-back, consisting of one-third part thereof in value, including the mansion house, and that the remainder of said real estate Be partitioned between said plaintiffs and defendants, giving to •eacb of the seven (naming them) one-seventh part; and John W. Floyd, Guss Henderson and N. W. Holland are hereby appointed commissioners to make such partition, and to assign •dower to said widow, and that they report their action herein at the next term of the court. To which finding and ruling of the coui't, that defendant, Mary Hoback, was not entitled to hold 160 acres of said land as a homestead, she excepted, and prayed an appeal to the Supreme Court, which is granted.”

On what particular ground the court below sustained a demurrer to so much of appellant’s answer as set up a homestead night in the land, does not appear in the record, and appellees -are not represented here.

Nor do we see why the court below rendered a decree affecting the rights of the two minor defendants without causing them to be served with process, and represented by guardian, etc.

I. At the time of the death of appellant’s husband (November 21, 1864) the statute then in force provided that: •“Every free white citizen of this State, male or female, being .a householder, or the head of a family, shall be entitled to a homestead, exempt from sale or execution (except as hereafter .mentioned) not exceeding one hundred and sixty acres of land, ■or one town or city lot, being the residence of such householder or head of a family, with the appurtenances and improvements thereunto belonging.

‘ ‘ The preceeding section shall be deemed and construed to ■exempt such homestead, in the manner aforesaid, during the time it shall be occupied by the widow, or child or children of any deceased person who was, when living, entitled to the benefits of this act.” Gould’s Digest, chap. 68, secs. 29-30.

This provision for the benefit of the widow and minor children of the owner of the homestead, was carried, with some modifications, into the constitution of 1868 (Art. 12, secs. 4-5), and the constitution of 1874, Art, 9, secs. 5.

If the court below sustained the demurrer to the answer of appellant on the ground that the widow can take and hold the homestead of her deceased husband as against creditors only, and that when there are no creditors, as in this case, the heirs are entitled to put her upon her doWerfright, and have the homestead land partitioned, it was an error. Trotter et al v. Trotter et al, 31 Ark., 145.

But the widow cannot create a homestead right in the land of the husband after his death. He must have impressed the homestead character upon the land during his life, and she must succeed him in that right. Johnson v. Turner, adm’r., 29 Ark., 280.

To impress the homestead character upon the land, under the above statute, and transmit the homestead right to the widow, the husband must have been a free white citizen inhabitant or resident, (McKenzie v. Murphy, 24 Ark., 155) of the State, a householder or head of a family, and his residence, home, must have been upon the land at the time of his. death. Tumlinson v. Swinney, 22 Ark., 400; Williams v. Dorris, et al., 31 Ark., 468.

There was no statute at the time of the death of appellant’s husband requiring the claimant of a homestead to schedule the land claimed as a homestead to protect it from sale or execution. He could obtain protection by application to the court, from which the process issued. Grubbs v. Ellyson, 23 Ark., 287; Wassell v. Tunnah, 25 Ark., 101.

In this case the adult heirs sought to disregard the homstead. claim of appellant and have the lands partitioned, and she-had the right to interpose her homestead claim as a defense ; and had she failed to do so, her claim would have been barred, by the decree. Wright et al v. Dunning, 46 Ill., 272.

In the absence of any showing to the contrary, the presumption is, that appellant’s husband was a free white man, that being the general character of the land-owning population of the State at the time of his death.

It is not specifically alleged in the answer of appellant, as it should have heen, that appellant’s husband was a citizen of the State, and that his residence was upon the land which she claimed as his homestead at the time of his death, though these facts are inferable from the scope of the answer.

The court, instead of sustaining a demurrer to so much of her answer as set up a homestead claim upon the land, should have directed her solicitor to make its allegations more specific as to the facts indicated above. Bushey et al v. Reynolds et al, 31 Ark., 658; Ball et al v. Fulton Bounty, Ib. 379.

II. It was error in the court to decree partition of the land, etc., without causing the two minor defendants to be brought in by service of process, and represented by guardian. Gantt’s Digest, sec. 4493.

The decree must be reversed and the cause remanded with instructions to the court below to permit appellant to amend her answer so as to make its allegations more specific as. to her husband’s residence in the State and upon the land claimed by her as his wife at 'the time of his death, and to cause the two minor defendants to be brought in by process, and represented by guardian, and for such further proceedings as may be had in the cause according to law, and not inconsistent with this opinion.


source: Caselaw Access Project

author: ENGLISH, C. J. :

license: Public Domain

text:
    Rogers v. Cooper.
    Attachments : Landlord's affidavit amendable.

    A defective affidavit of a landlord, in attachment for rent, is amendable.
    APPEAL from White Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      W. R. Ooody, for appellant.

      J. W. House and B. D. Turner, contra.

   ENGLISH, C. J. :

On November 15, 1875, Thomas J. Eogers filed before a Justice of the Peace of Gray township, White county, the following note, executed to him by W. H. Cooper :

“$235.50. Searcy, Ark., January 23, 1875.

On or before the 15th day of October next, I promise to pay Thomas J. Eogers, or order, two hundred and thirty-five and 50-100 dollars, for rent for the Thomas Eogers place, on Little Eed river, for the year 1875.

W. H. Cooper.”

Eogers also made the following affidavit before the Justice :

“ The plaintiff, Thomas J. Eogers, states that the claim in this action against the defendant, W. H. Cooper, is for money due upon a promissory note executed by the defendant to the plaintiff for the rent of his farm on Little Eed river, for the year 1875, and for corn furnished the defendant by the plaintiff > and a judgment against the defendant before a Justice of the Peace, and that it is a just claim, and that he ought, as he believes, to recover thereon $235.50, and that said debt is justly due and remains wholly unpaid, and that unless attachment, issues there is reason to believe, and he does believe, that said debt will be lost or greatly delayed.”

Rogers also filed, the following bond : “ We undertake that the plaintiff, Thomas J. Rogers, shall pay to the defendant, W. H. Cooper, all damages, not to exceed five hundred dollars, which the said defendant may sustain by reason of this attachment, if the order therefor is wrongfully obtained.” Signed by Thomas J. Rogers and R. J. Rogers.

Whereupon the Justice issued a writ of attachment, directed to any Constable, etc., commanding him “to attach and safely keep all the crop of corn, cotton and other produce raised by the defendant, W. H. Cooper, on the farm of plaintiff, Thomas J. Rogers, situate on Little Red river, in township seven, etc., in the year 1875, or so much thereof as will satisfy the claim of plaintiff, etc., for $235.50, and $20 for costs, etc., and to summon the defendant,” etc.

The writ was made .returnable before the Justice on November 27, 1875.

The officer to whom the writ was delivered returned upon it that he had executed the attachment by attaching three bales of lint cotton, marked, etc., as the property of W. H. Cooper. That said cotton was found in the hands of J. W. Arnold, who executed bond and retained possession thereof, etc.

On the return day the cause was continued to December 20, 1875, on which day Arnold interpleaded for the cotton, and a demurrer was sustained to his iuterplea. The defendant, Cooper, moved to dissolve the attachment for want of a sufficient affidavit; whereupon the Justice permitted the plaintiff to amend the affidavit by inserting after the word “ unpaid ” the following: * ‘ and defendant had removed a part of the property from the premises without paying said rent.”

Cooper then filed an answer, in substance, as follows :

He denies that he is indebted to plaintiff in the sum of $235..50, and that the same is wholly unpaid. Admits that on January 23, 1875, he executed a promissory note to plaintiff for that sum, for the rent of his farm on Little Red river, and for corn furnished defendant, and a judgment in a Justice’s court in favor of Deener & Bro. against defendant, which plaintiff had purchased of them. That the sum of $150 embraced in said note was for the rent of said place, $37.50 for corn furnished defendant by the plaintiff, and the balance was for said judgment. But that under the contract for.rent of the farm plaintiff agreed to pay defendant for all work he might do for him, and for all improvements done by him on the place, which should come out of the rent. That, pursuant to said contract, defendant had done work for plaintiff on said place to the value of $151.25, for which an itemized account was filed, and which defendant' claimed as an offset, etc. He admits that he removed a part of the crop from said place without the consent of the plaintiff, but he states that he had a perfect right to do so, as he had more than paid him for said rent.

On the filing of this answer, by agreement of parties and order of the Justice, defendant’s set-off was referred to arbitrators, the award to be returned on February 3, 1876.

The arbitrators returned their award, allowing defendant $92.72 for labor and improvements, to be deducted from the rent note in suit, which sum was credited on the note.

Plaintiff then demurred to defendant’s answer, and the J ustice sustained the demurrer, and defendant failing to answer further, judgment was rendered against him and Arnold and R. S. Pitts, his surety in the bond for the attached cotton, for $145, plaintiff’s debt for rent, and upon failure of Arnold and Pitts to deliver the. attached cotton in satisfaction of the judgment, execution to be issued against them.

Cooper appealed to the Circuit Court.

In the Circuit Court the defendant filed a motion to quash and dismiss the attachment in the cause on the following grounds:

1. Because no affidavit was filed before the writ issued, as the law requires.

2. The affidavit shows that the indebtedness sued for was for corn furnished defendant by plaintiff, for a judgment against him, etc., and for rent, a character of indebtendess for which a specific attachment could not issue.

3. The writ does not correspond with the affidavit.

4. No bond was filed as required by law.

5. The court has no jurisdiction in this case.

The motion was argued, and submitted and sustained by the court, but before judgment was entered, “plaintiff moved the court to be allowed to amend his said affidavit and the grounds of attachment therein named,” which motion the court overruled, and rendered judgment discharging the attachment.

A personal judgment was then rendered against defendant for $145, as balance due upon the note sued on, and for costs.

Plaintiff excepted to the ruling of the court sustaining defendant’s motion to dismiss and discharge the attachment, and in overruling plaintiff’s motion to amend the affidavit for attachment, and obtained the allowance of an appeal by the Clerk of this court.

I. By statute a landlord has a lien upon the crop grown upon the demised premises in any one year for rent that accrues for that year, and the lien continues for six months after the rent becomes due. Gantt’s Dig., sec. 4098.

A landlord who has a lien on the crop for rent may bring suit before a Justice of the Peace, or in the Circuit Court, as the case may be, and have a writ of attachment for the recovery of the same, whether the rent be due or not, in the following cases. Ib., 4101.

First — When the tenant is about to remove the crop from the premises without paying the rent.

Second — When he has removed it, or any portion thereof, without the consent of the landlord.

Before such writ of attachment can issue, the landlord, his. agent or attorney, must make and file an affidavit of one of the above facts, that the amount claimed, which must' be therein stated, is or will be due for rent, etc., stating the time when the same became or will be due, and that he has a lien on such crop for such rent, etc. 26., 4102.

In this case the note sued on was due when the suit was commenced,'and on its face the whole sum promised tobe paid pui’ported to be for the rent of the plaintiffs farm for the year 1875.

But the plaintiff, in his affidavit for an attachment, stated, that the note was executed for the rent of his farm for the year 1875, and for coni furnished the defendant, and for a. judgment against him, but the affidavit does not state how much of the note was for rent.

The plaintiff had no lien on the defendant’s crop, under the above statute, for the price of the corn nor the amount of the judgment. So much of the note only as was for rent was a lien upon the crop, and the affidavit should have stated the amount.

Nor did the original affidavit state either of the grounds for attachment prescribed by the statute. It did not state that defendant was “about to remove the crop from tlie premises without paying the rent,” or that he had removed the crop, or a portion thereof from the premises, without the consent of the plaintiff.

When the defendant moved to dissolve the attachment before the justice for want of a sufficient affidavit, the plaintiff was permitted to amend the affidavit by inserting a clause as above stated, which did not help it much.

The affidavit, as amended, reads thus: “That said debt: ‘ ($285.50 the full amount of the note)’ is justly due and remains wholly unpaid, and defendant had removed a part of thz property from the promises without paying said rent,” etc.

If the justice wrote this amendment, he could not have had the statute before him. It was an attempt, perhaps, to cover the second ground for attachment prescribed by the statute. The amendment states “ that the defendant had removed a part of the property from the premises without paying said note,”. when it should have stated that the defendant had removed a portion of the crop from the premises without the consent of the plaintiff.

No attempt was made to amend the affidavit before the justice by stating what portion of the note was for rent.

With the affidavit thus defective, the cause went into the Circuit Court on appeal from the judgment of the justice. Should the Circuit Court have permitted the plaintiff to amend, the affidavit ?

The statute giving landlords the right to attach for rent, cited above, was enacted December 28, 1860, and contains no provision for amending an affidavit upon which such attachment is issued.

But the general statute of attachments passed, afterwards, contains this proviso :

“ The affidavit or ground of attachment may be amended so. as to embrace any grounds of attachment'that may exist up to and until the final judgment upon the same. If the amendment embrace grounds existing at the time of the commencement of said proceeding, and is sustained upon such grounds, the lien created by the suing out or levying of the original attachment shall be good,” etc. Gantt’s Digest, chap. 11, see, 394.

And section 459, same chapter, provides that: “The pro•visions of this chapter may be applied, so far as shall be proper, to regulate the proceedings in cases of attachments against specific property.”

And by section 4617: “Whenever any proceeding taken by a party fails to conform in any respect to the requirement ■of the law, the court may permit an amendment of such jproceedings, so as to make it conformable thereto.”

There can be no good reason why attaching creditors generally should be permitted to amend their faulty affidavits in furtherance of the substantial administration of justice, and -the same privilege be denied to landlords attaching their delinquent tenants.

It is objected by counsel for appellee that the record fails to show what amendment the appellant proposed to make to his affidavit. To this it may be replied, that it is manifest that the court denied to him the privilege of amending his affidavit at all.

The amendments that should have been made to make the .affidavit conform to the statute are apparent, as above shown.

Moreover, the requisite amendments might have been made upon facts appearing of record. The defendant admitted in his answer before the justice that $150 of the sum named in the note sued on was for rent. He also admitted that he had removed part of the crop from the demised premises without the consent of the plaintiff. He adds, however, that he had a perfect right to do so, as he had more than paid him for the rent in labor and improvements on the farm ; but this, by the award of the arbitrators, proved not to be true.

The court below erred in refusing to permit the appellant to amend the affidavit, and in discharging the attachment so far as its discharge was based upon defects in the affidavit.

II. As to the bond for attachment.

The statute also requires the plaintiff landlord, before an attachment is issued, “to file with the justice or clerk, as the case may be, a bond to the defendant, with sufficient security, in double the amount of the claim as sworn to, conditioned that he will prove his debt or demand and his lien in a trial at law, or that he will pay such damages as shall be adjudged against Mm. Gantt’s Digest, sec. 4102.

At the time this statute was passed it required a seal to make a bond, and though private seals have since then been abolished, lawyers will call such instruments bonds, as they are almost compelled to say “ejectment,” “replevin,” etc., regardless of the fact that the code makers have abrogated the common law classification of actions. It is difficult for innovators to stop the use of long used legal terms, founded on a classification as natural as that in any department of abstract or physical science.

The bond in tMs case is signed by the plaintiff and a surety, it is made to the defendant, and is in double the amount of the plaintiff’s claim as sworn to, but it is not conditioned as prescribed by the statute, and is therefore not a good statute bond (Edwards et al. v. Cooper, 28 Ark., 469,) though the plaintiff and Ms surety may be liable upon it as a common law obligation.

No objection was made to the bond before the justice of the peace, but if the court below had permitted the plaintiff to amend his affidavit, it might have required him to file a statute bond in good form for the protection of the defendant. True, the plaintiff did not offer to file another bond, but the offer if made, would have been useless, as the court would not permit Mm to amend his affidavit, and the rem feature of Ms case had to fall under this ruling.

The appellant does not complain, on tMs appeal, of the judgment in personam rendered in Ms favor.

So much of the judgment as discharges the attachment must be reversed, and the case remanded with instructions to the court below to permit appellant to amend his affidavit in the matters indicated, and that he be required to file a bond, conditioned as required by the statute, and for such other proceedings in the case as may be had in accordance with law.


text:
    Jackman v. Anderson
    Attachment : Judgment on Discharge of.

    Upon the discharge of an attachment the defendant should have judgment for the return of the attached property.
    APPEAL from Chicot Circuit Court.
    Hon. J. F. Sorrells, Circuit Judge.

      Reynolds for appellant.

      Rice <& Bishop, contra.

   ENGLISH, C. J.:

On January 4, 1876, Wm. P. Jackman sued John Anderson in the Cii’cuit Court of Chicot county, on an open account for rent of land, a mule, supplies, etc., amounting to $319.93, and obtained an attachment upon an affidavit that defendant was about to sell, convey or otherwise dispose of his property with the fraudulent intent to cheat, hinder or delay his creditors, and to deprive the plaintiff of his lien for rent. The writ was general against the goods and chattels, lands and tenements of defendant.

The sheriff returned upon the writ that he levied upon what he supposed to be eight or ten bales of lint cotton in the gin house of Carlton & Jackman.

At the return term the defendant filed a sworn denial of the truth of the plaintiff’s affidavit. The issue was submitted to a jury at the January term, 1877, who, upon the evidence adduced by the parties, returned a verdict in favor of the defendant, and assessed his damages at $20; then follows this entry:

“ It is therefore considered, ordered and adjudged that the sheriff return the property attached, or the proceeds thereof, to the defendant herein, and that the defendant go hence without day, and that he recover from the plaintiff, and John Neal and C. H. Carlton, sureties on the attachment bond, the sum of $20 besides his costs in this suit in this behalf expended ; to which order of the court in requiring the sheriff to return the property attached, or the proceeds thereof, to defendant, the plaintiff excepted, and prayed an appeal to the Supreme Court, which is granted.”

The only question presented on this appeal is whether the court erred in ordering the sheriff to restoi-e the propei’ty seized under the attachment to defendant, on the veidict of the jury that the attachment was wrongfully sued out, and upon the judgment of the court thereon discharging the attachment.

It necessarily follows that the property must be restored to the defendant upon such discharge of the attachment. Delano et al. v. Kennedy, 5 Ark., 459. The process in rem under which the property is seized into the custody of the sheriff being in effect abated or quashed by the judgment of the court dischai'ging the attachment, the sheriff has no longer any legal authority to hold the property. Gantt’s Digest, sec. 459; Acts of 1875, p. 7.

It seems from the above entry that the court on dissolving the attachment discharged the defendant personally from the action, but such we presume could not have been the intention of the court as the defendant had' put in an answer to the mei’its of the action which remained to be tided when the appeal was taken.

Affirmed.


author: ENGLISH, C. J.: Eaiíin, J.:

text:
    Portis v. Merrill.
    Contracts : Written, can not be varied by parol.

    Where a note promises to pay interest at five per cent per month after maturity, the interest can not be avoided by a plea in equity that it was an agreed penalty to stimulate prompt payment at maturity.;
    APPEAL from Jefferson Circuit Court.
    Hon. JohN A. Williams, Circuit Judge.

      Oarlton & McCain, for appellant.
    - Compton, for appellee.
   ENGLISH, C. J.:

Joseph Merrill sued James M. Portis, in the Circuit Court of Jefferson county, on the following note :

“ $475.79. On or before the 28th day of November next, value received, I promise to pay to the order of J. Merrill four hundred and seventy-five 79-100 dollars, with five per cent interest per month from due until paid. Witness my hand and seal, this 28th day of June, 1874.

J. M. Portis.

The defendant filed the following answer to the complaint :■

“ Comes the defendant and files this, his equitable answer to the complaint herein, and says : That he admits that he executed the note as set out in the complaint, but he says that said note was executed under the circumstances and for the consideration following — that is to say: On the 28th day of' June, 1874, the plaintiff held against the defendant a certain promissory note given by defendant to one James S. Evans, dated the — day of -, 187-, for the sum of $500, bearing 10 per cent interest per annum, and which interest was af-terwards increased to 2 1-2 per cent per month, which note had been indorsed by said Evans to the plaintiff herein, before said 28th day of June, 1874, and on which note was due, at the dato last aforesaid, the sum of $422.93, as accumulated interest, and by way of payment of such accumulated interest, and in order to compound the same, the plaintiff agreed with the defendant, to accept the defendant’s note for such accumulated interest,, payable at the end of five months, to wit: on the 28th day of November, 1874, with the understanding and agreement that interest at the rate of 2 1-2 per cent, per month should be calculated on said sum of $422.93, accumulated interest as aforesaid, and that the said interest, so calculated, should be inserted in said note as principal, and in pursuance of such agreement, interest at the rate of 2 1-2 per cent, per month was calculated on said sum of $422.93 from the said 28th day of June, the date of said note, until said 28th day of November, 1874,. the date of the maturity of said note, such interest, so calculated, amounting to the sum of $52.86 ; and the defendant thereupon, for the consideration aforesaid, and for no other or different consideration, executed to plaintiff the note in suit, and as a penalty to secure the payment of said sum of $422.93, and the said sum of $52.86 interest, so included in said note as aforesaid, it was stipulated in said note that the said note, should bear interest, after maturity, at the rate of five per cent, per month. This defendant is willing to pay, and here tenders to pay the said sum of $475.79, with six per cent, interest, thereon from the maturity of said note, and all costs of this suit; and defendant makes this equitable answer a counterclaim against the plaintiff, and asks to be relieved from the-payment of said penalty stipulated in said note at five per cent., interest per month, as unconscionable and contrary to equity,, and for other relief.”

The court sustained a demurrer to the answer, and defendant saying nothing further in bar of plaintiff’s demand, judgment was rendered against him for $475.79 debt, and $285.75-damages, being interest on the note from maturity to date of judgment (December 18, 1876), and the judgment was made to bear six per cent, interest. •

Defendant appealed.

The answer of appellant to the complaint is not in the nature of a plea of want of or failure of consideration of the note sued on, for it shows neither. Nor can it be sustained as a plea of usury, for at the date of the note the Constitution of 1868 was in force, which allowed the parties to contract for any rate of interest they pleased, and the plea of usury was not allowed.

The note, on its face, is plainly a contract for interest at five per cent, per month from its maturity, and the appellant could not set up a cotemporaneous verbal agreement that it was to be a penalty, and thereby vary the plain terms of the written contract.'

It was a hard bai'gain, and the creditor may have been over-exacting, but appellant must abide by the face of his written contract, as we held in Miller v. Kempner, 32 Ark., 573. We can not make new contracts for parties, or alter their plain meaning by construction.

If it be said that the five per cent, interest, after maturity, stipulated for in the face of the note, must be treated as a penalty intended to stimulate the maker to pay the note promptly at maturity, how could it have any such effect if the law be that he can only be required to pay the legal rate of interest after maturity as damages for breach of the contract? On the contrary, if the maker is legally obliged to pay the rate of interest stipulated form the face of the contract, he would be stimulated to pay the note at maturity, and stop the running of such interest.

A sane man has no claim upon a court of law or equity to relieve him from a hard bargain, when it is voluntarily entered into, and no fraud is practiced upon him. We have heretofore examined this subject fully, and we are not disposed to retrace our steps or reverse our conclusions.

Affirmed.

DISSENTING OPINION.

Eaiíin, J.:

This is a case of direct application, by cross-bill, to a court of equity for relief against a penalty. The note in suit was ■given for accumulated interest on a debt at the rate of 2 1-2 per cent, a mouth, calculated up to the maturity, and included in the sum total, and with interest upon the whole, after maturity, at the rate of five per cent, per month. There was no law, at that time, forbidding such a contract, and a court of law would have no option but to enforce it, nor should a court of equity refuse to do so at the suit of the creditor, unless the -equitable defense should be properly made, and in apt time. Under the Constitution of 1868, parties might lawfully agree upon any amount or rate per cent, of interest, unless so exorbitant or oppressive as to give rise to the presumption of oppression, or undue influence, or fraud. Equity then interposes upon grounds independent of statute or constitutional provisions as to the permissible rate per cent, in fair transactions. It is, moreover, the settled policy of courts of equity to relieve against penalties invoked upon themselves by parties to a contract ; and further, to discourage, and except in peculiar cases, refuse to enforce executory contracts for compounding interest in future. These principles are all based on the broad ground of duty on the part of the chancery courts to protect needy persons from such improvident contracts as should not be exacted of them by others whose situation naturally gives them .an undue influence.

Within a few years all usury laws in England have been repealed, and the state of the law in this respect is now, there, as it was here under our Constitution of 1868. The courts of' chancery here have nevertheless held that they were not prevented from setting aside extravagant and improvident bargains, with regard to interest (see cases cited in 2d edition of Bisp-ham’s Eq. Ju., sec. 222) ; nor has the right to contract for interest any bearing on the question of penalties.

What is a penalty, and what a contract for the use or forbearance of money, depends upon intention, to be deduced, from the terms of the contract and the circumstances of the-case. In this case the cross-complaint alleges that the agreement to pay five per cent, per month on the whole accumulated interest at 2 1-2 per cent, a month was, in truth, a penalty, and' so intended. Indeed it would seem so in the light of the present Constitution, which has since fixed ten per cent, per annum' as the highest permissible rate. It certainly was, in any view,, a contract in futuro for compounding interest.

I think, in all cases, agreements for increased interest after-maturity, or for exorbitant interest then to commence, especially when there is no reciprocal obligation on the part of the creditor to allow the debtor the use of the money at the' increased rate for a definite time, are penalties in their very nature and essence, at least prima facie. Thejr bear indubitable marks of intention to secure prompt payment to avoid, worse consequences. The debtor never calculates upon really paying them. He is too apt to be sanguine with regard to his resources and the chances of business, hopes to pay at maturity, and often is not in the mental condition to make cool calculations. He improviden'tly puts himself into a situation where disappointment as to his means is attended with the most shocking annoyances. This is more apt to occur where there-is no legal restriction upon conventional interest, and courts of equity, in such cases, should rather increase their vigilance than renounce their powers.

I think, in this case, the offer to pay the full amount of the ■note, with legal interest after maturity, was quite enough, and relief should have been granted. I think these views may be reconciled with the decisions in Badgett v. Jordan, 32 Ark., 154, and Miller v. Kempner, Ib., 573. The first was strictly :a case at law, in which it was contended that a judgment for the excessive interest was erroneous. Courts of law have, of course, no power to administer equitable relief. The last was a case in equity by Kempner to foreclose a mortgage given to ■secure, a note made to bear interest at the rate of ten per cent, per annum until maturity, and two per cent, per month after-wards till paid. After due service a decree was rendered upon default to appear and answer. Afterwards he moved to set the decree aside, which was refused. This court sustains the •action of the court below upon the ground that the motion was .addressed to the sound discretion of the court, and there was nothing to show that the court abused its discretion.

With these views I cannot assent to the opinion of the majority.


author: Eakin, J.:

text:
    Shinn v. Tucker.
    ¡Statute Limitations : Time, how computed.

    In computing time to ascertain whether an action is barred by limitations, the day on which the right of action accrued must be included, and the day of issuing the summons excluded.
    .APPEAL from Pope Circuit Court.
    Hon. W. W. Mansfield, Circuit Judge.

      W. C. Ford and Clark & Williams, for appellant,

      ■Granger & Coblentz, contra.

   Eakin, J.:

On November 27, 1875, Shinn sued Tucker before a justice of the peace upon three notes under seal, all bearing date-. January 1, 1861. They are all expressed to be for value received, and contain a promise to pay the respective sums of' each, generally, without specifying any time. In effect they are notes payable on demand. Each note has a credit endorsed: one March 28, 1864, one January 15, 1869, and. the other December 1, 1870.

The defendant pleaded payment, and the statute of limitations. Judgment was rendered in his favor, and plaintiff' appealed to the Circuit Court. There the defendant was. allowed to put in an amended plea without verification. The-amended answer repeated the pleas of payment and limitation,, to which plaintiff replied, as to each of the notes, a promise within ten years. There was no proof of payment adduced, upon trial. The plaintiff showed that the several endorsements of credit had been made before the statute bar had. attached. As to whether the particular sums, credited upon each note, had been paid by the defendant for the purpose of' being so applied, or had been so applied by his consent, the-proof was conflicting, and this court would not disturb the-verdict of the jury, so far as it implies that these payments did not form new points from which the statute would commence running. The jury found for defendant, upon which followed judgment, motion for new trial, bill of exceptions, and appeal.

The material question presented by the record is, was the-action brought within the period allowed by the statute of limitations, leaving the credits out of view. Upon this point the instructions of the court, viewed as a whole, were to the effect: That the right of action of plaintiff accrued on January 1, 1861, and would be barred at the end of ten years, unless there had been such part pajunent as would make a new point from which the statute would run; but that the statute did not run between May 6, 1861 and April 2, 1866, which intervening time was not to be computed, and that the jury, in computing the time of ten years, must include the day of the date of the writings, and exclude the day on which the summons issued.

The writings were payable immediately, and payment might have been demanded at once. They were not entitled to grace. There was no error in telling the jury that the day of their execution must be included in the estimate, accompanied with the direction that the day of the issue of the summons must be excluded. There has formerly been much labored discussion in the English and American courts, and much conflict of opinion as to the true method of computing time from one act or event to another. We are happily spai'ed from entering into it by our statute, which furnishes the following plain and concise rule for all cases. Sec. 5698 of Gantt’s Digest provides that “ when a certain number of days are required to intervene between two acts, the day of one only of the acts may be counted,” and the rule applies equally when a certain number of years is mentioned, as years may be resolved into a certain number of days, and uniformity of principle must be preserved. Applying that rule here, it was proper to advise the jury to include the day of the first act or event, the execution of the writing, and to exclude the day of the last event, to-wit: The issuance of the summons, and if they should find that the suit was not in ten years, to find for defendant.

And the same rule must be applied to the time to be excluded from the computation on account of the war, to-wit: From the act of secession on May 6, 1861, to the proclamation of the president on April 2, 1866, declaring the war, as to Arkansas, closed, making a period of four years, ten months and twenty-seven days, allowing for the thirty-one days in March.

This period, for the suspension of the statute, was definitely fixed by this court in the case of Hall v. Denchla, 28 Ark., 506. In that case no close calculation of time to a day was necessary, and the court inadvertently use this expression: “We find that the statute of limitations ceased to run between* May 6, 1861 and April 2, 1866, by reason of the civil war.”

This formula of expression was adopted by the Circuit Judge in the instruction, and literally construed by the jury may have induced them to exclude both days in the estimate of the time to be left out of the calculation, making a period of only four years, ten months and twenty-five days, when, by the statute, one or the other of the days should be included. The word ‘ ‘ from ’ ’ would have been more proper than the word “ between.”

With regard to all sealed instruments as these were, against which the statute had commenced running oh May 6,1861, and which were not already barred at the time of the adoption of the Constitution of 1874, the actual time of limitation was fourteen years, ten months and twenty-seven days. Including January 1, 1861, this period would expire at midnight on November, 27, 1875, but as this calculation is made exclusive of the day allowed for the issuance of the summons (inasmuch as the day when the writings were made is included) the summons would have been in time on the 28th. It was certainly within time on the 27th, in any view of the case.

Obviously, the jury were mistaken in their calculations. They could not have brought in a verdict for the defendant upon the proof, upon any other ground than the bar of the statute, which, as we have seen, had not attached.

Other errors were assigned, which it is not important to notice.

For the error in the verdict which was not only contrary to •evidence, but ths instructions of the court, the judgment must be reversed and the cause remanded with directions for a new trial.


author: EakiN, J.:

text:
    Myrick v. Jacks.
    1. Infants : Jurisdiction of coui-ts over person and property of.

    The general jurisdiction over the persons and property of minors belongs to the Chancery Court. Courts of probate have, by statute, limited powers over the estates of minors in the hands of administrators and guardians, but the statute is the limit of their powers, and their orders not authorized by the statute, are void.
    They have no authority to direct an investment of a minor’s funds in land.
    '2. FRAUD : Jurisdiction in equity.

    Wherever there is fraud, equity has jurisdiction, exclusive or concurrent, with law.
    - How proved.

    At law fraud must be shown and proved. In equity it suffices to show facts and circumstances from which it may be presumed.
    3. - Hot necessary to place party in statu quo.

    When courts cannot place parties wholly in statu quo. they are not thereby prer eluded from relieving against fraud. They may do so as nearly as possible, and make compensation.
    APPEAL from Phillips Circuit Court, in Chancery.
    Hon. J. N. Cykeet, Circuit Judge.

      B. Q. Brown, for appellant.

      -Rose, contra.

   EakiN, J.:

Complainant’s bill seeks to hold defendant, Jacks, responsible for moneys or securities received from her guardian during ber minority.

The bill charges that her mother died in 1853, leaving her «ole heiress to two valuable city lots in Louisville, Kentucky. That in 1865 she was induced by her father to apply to the-Phillips county Probate Court to have him appointed her guardian, which was done. That a few days afterwards her father, as guardian, applied to said court for authority to exchange said property for certain cit}r lots in Helena, in this. State, owned by Jacks, representing to the court that.he had made a contract with Jacks for such exchange in 1861, at which time the properties in Louisville and Helena were estimated to be of about equal value, about $9,000 each; that it had been agreed at the time between her father and Jacks, that, her father was to continue to pay taxes on and receive-the rents of the Helena property, and to allow Jacks therefor, on settlement, rent at the rate of seven per cent, on its valuation; that meanwhile the property in Louisville had. been sold by order of the Probate Court, there, and had brought a sum over its ’ estimated value in 1861, and that the-rents on the Helena property, by that time, had so augmented as that, added to the original estimate of value, it would nearly reach the sum for which the property in Louisville had sold,, to-wit, the sum of $12,101.25, leaving a small balance in the guardian’s hands for attorney’s fees, about which there is no complaint.

Upon this application the Probate Court of Phillips county directed the former contract to be consummated, and that Jacks, should convey to her father certain portions of the Helena property, estimated at 40 per cent, of the same on account of his interest in the Louisville property, as the husband of her mother, under the laws of Kentucky, and the balance to herself, and that her father, as her guardian, should convey the Louisville proper to Jacks. In accordance with which order Jacks conveyed, as directed, and receipted to her father for the proceeds of the Louisville property, which was in notes, to the-amount of $11,649.69.

Complainant alleges that Jacks perpetrated a fraud upon her-in this, that he grossly misrepresented the value of the Helena property, which, at the time of the contract with her father, in 18(51, was only worth $3,000, and at the time of the conveyance to her, not more than $3,500. That there was collusion upon his part with her father, by which the court was misled in making the order; that the large amount of interest charged was an after-thought- to bring up the value of the Helena property so as to absorb the sale value of that in Louisville, and that her interests were sacrificed. She afterwards married during her minority, and was induced bjr her father to recon-vey to Jacks two of the lots, in order, as she was advised, to facilitate a land trade in which her husband was interested, but. she did not understand the transaction. She knew nothing-about the condition of her affairs whilst she was a minor. Her father died without making any settlement, and she had only discovered the facts of the case and become aware of the fraud a short time before her bill was brought in 1875. She had the-utmost confidence in her father, and relied upon him implicitly, but he never revealed to her the condition of her affairs, further than to tell her that the lots in Helena were hers. Her guardian died wholly insolvent, and the sureties on his bond have either lost all their property or been discharged by the bankrupt law.

She prays that the order of the Probate Court be set aside, and that Jacks be decreed to repay the money he has thus received over and above the value of the lots conveyed to her through her guardian; and, to chat end, that an account be taken of such value. -She agrees to retain them or to reconvey,, and prays general relief.

Such, in short, are the material allegations upon which the-equity of the bill rests.

To this bill Jacks demurred, assigning nine causes. They ■are each argumentative, however, going to show want of equity, and, taken together, amount to a general demurrer under the 5th clause of sec. 4564, Gantt’s Dig. It was sustained by the court, and the bill dismissed. Complainant appealed.

The general jurisdiction over the persons and property of ^minors belongs to the Chancery Courts. It is a very high trust, involving the most delicate and important interests of a helpless class, which is peculiarly the subject of the jealous and watchful care of chancery, and which is peculiarly liable to ■injury from the greed of crafty men and the carelessness of ■relations. Courts of probate have, by the statute, been entrusted with some limited powers over the estates of minors in the hands of administrators and guardians, and within the scope of those statutory powers they are certainly entitled to all presumptions accorded to superior courts of record. But they had no such jurisdiction by common law, and beyond the limits .given they have none now. When they proceed to do a thing which, by proper proceedings and upon a proper case made, they •are authorized to do, it will be presumed they have acted correctly ; or if the proceedings have been irregular or the conditions of jurisdiction not strictly fulfilled, it is error to be corrected on appeal or certiorari. But if they undertake to make an order ■not authorized under any circumstances, although they may have jurisdiction over the same property for other purposes, it Is void.

Every day’s experience convinces us of the propriety of observing this rule and reserving for the more deliberate and intelligent action of the Chancery Courts all interference with the property of minors beyond the strict limits of the powers expressly conferred upon the Probate Courts by tire Legislature. .It devolves upon the law-making powers to determine how far ‘they may be safely trusted with such powers ; but a high public policy requires it of the superior courts to see that they do not-, transcend them.

It is scarcely credible that a court of chancery would have-made such an order as is complained of in this case upon so-slender a showing.

The objection is not that the Probate Court attempted to exercise jurisdiction over real property in another State. This is the language of the order. It seems to contemplate an exchange and mutual conveyances. But it is evident that the-court meant only to authorize the investments in Phillips county-lands of the minor’s money, the proceeds of the Louisville sales which had then already been made. The fatal objection is that the Probate Court bad no authority, under any statute, to direct such an investment. The order of the court was a nullity.

If the means by which Jacks got possession of this fund were fraudulent-, equity will follow it into his hands, and acting in personan, decree a repayment. The jurisdiction of equity over fraud is all-embracing. None of its protean shapes can be allowed to elude the searching investigations of a Chancellor. No human ingenuity can devise a plan for the protection of fraud. Positive acts of the Legislature cannot be used as covers for its perpetration. This jurisdiction is not confined to cases where a trust can be declared upon some specific thing, traced into defendant’s hands, and there remaining. A constructive trust is only one of the means used in the correction of fraud, and not the limit of the court’s machinery. It will correct fraud wherever found by the most available means applicable to the case, and this it may do even where the remedy is plain, simple, and adequate at law, although in such cases the jurisdiction is seldom invoked. Whenever there is fraud there is equity jurisdiction, exclusive or concurrent. In this case the remedy at law is not adequate. The bond is old and almost, if not quite, worthless, but the remedy would be cumulative, if good.

Fraud must be shown and proven at law. In equity it suffices to show facts and circumstances from which it may be presumed. In this case it is alleged, with a pardonable delicacy of language, concerning complainant’s father, that Jacks contriving to defraud her of a valuable estate in Kentucky fraudulently misrepresented the value of his Helena property; that it was not worth more than a third of the estimated value of the Kentucky property, and afterwards, when the Kentucky property was sold and found to bring about three thousand dollars more than either had been represented to be worth, the ■ expedient was adopted of an old pretended written contract, made by her father without any authority, by which he had agreed to pay seven per cent, on this estimated value in consideration of rents which it is doubtful whether he ever received, and which complainant alleges she believes he never did. The old written contract, upon which this attempt to equalize the consideration was based, was not produced before the Probate Court, or not exhibited with the petition, at least; notwithstanding the court was asked, upon that, to order away to Jacks about $5,000 of the minor’s fund, and, notwithstanding the strangeness of the provision, nor is the want of it accounted for in any way. Still, upon the suggestion of it, from all that appears, the court charged the infant this enormous amount over the value of the property, already triply estimated, and compelled her, or attempted to do so, to give Jacks the oenefit of her Louisville fund, amounting to more than $12,000, From these facts as they appear in the bill, if unanswered, the court might well presume fraud and compel restoration.

It is no objection that complainant cannot put Jacks entirely in statu quo on recision. The change in the condition of the property was brought about by persuasion to accomplish a transaction in which. Jacks was a party, and before the fraud was discovered, and by the action of complainant in a matter she did not understand.

When courts can not place parties wholly in statu quo, they are not thereby precluded from granting relief against fraud. They may proceed to do so as nearly as possible, and make compensation. It would disclose a very gross inadequacy in our system of remedial justice if, in this case, taking the bill as true, Jacks could continue to enjoy the fruits of a transaction by which, with full notice of her rights, he had acquired almost the whole estate of an infant for a consideration so grossly inadequate. He should answer the bill, and may, by leave of the court below, under sec. 4571, Gantt’s Dig., bring in all parties necessary to his protection with regard to the subject-matter of the litigation. The bill seems to concede the right of the father, under the laws of Kentucky, to forty per cent, of the proceeds of the Louisville sales. The subject-matter of the suit, in this view, is sixty per cent, of the fund which Jacks received from the guardian. It is not meant here to decide upon this point, nor is it necessary.

We think the Chancellor erred in sustaining the demurrer and dismissing the bill.

Let the decree be reversed and the cause be remanded, with instructions to the court below to overrule the demurrer, and for such proceedings as may be consistent with equity and this opinion.


author: Eakin, J. :

text:
    Wentworth et al. v. Clark et al.
    Married Womast: Ser deed void.

    The deed of a married woman not acknowledged according to the statute is. absolutely void and a nullity, and incapable of confirmation. (The deed in-2 this case was executed before the adoption of the Constitution of 1874.. —Rep.)
    APPEAL from Marion Circuit Court, in Chancery.
    Hon. J. W. PittmaN, Circuit Judge.

      Gregg for appellant.
   Eakin, J. :

Plaintiff (then Eliza G. Tucker) brought an action at law against Clark and others, to recover certain town lots in ' Buffalo, Marion county, showing her title by descent. The-complaint was filed in July, 1876.

Defendant made no defense at law, but filed a cross-complaint in equity, whereupon the cause was transferred to the equity docket. Some errors of practice in allowing this are-complained of, not material to notice.

The cross-bill, admitting that the title had been, in plaintiff,, as alleged, sets up a purchase of the lots by defendant from plaintiff and her, then, husband on May 2, 1870, for the sum of $395, paid to plaintiff; that she and her husband thereupon executed and delivered to him a deed of conveyance ; that he entered into possession, under the purchase, with plaintiff’s assent — has continued to hold, and with like knowledge and consent has made valuable and lasting improvements, worth $2,000. The deed under which defendant claimed was . offered as an exhibit, and asked to bo taken as a part of the answer.

Pending the suit plaintiff intermarried with Wentworth who was made a party. They excepted to the deed exhibited because it did not show that it had been executed and acknowledged by plaintiff as required by law, and asked that it might be suppressed.

The defendant filed an amended cross-complaint, setting up. the same conveyance by Tucker and plaintiff, then a married women, by which she intended to convey the property. That Tucker died about the 20th of March, 1872 ; that plaintiff' intermarried with Wentworth about the 15th of July, 1876 that during the intermediate time, while plaintiff was sole,, defendant continued in possession, making valuable improvements to the additional amount of $75, all with the knowledge and consent of plaintiff, and that whilst sole she demanded of defendant $50 as part and parcel of the purchase money for “real estate under said original contract,” and did many other acts recognizing said contract.

A demurrer was filed to the amended cross complaint, and also exceptions to the deed of conveyance set up and relied upon therein.

Both were overruled and plaintiff answered the cross-bill. She denies the execution of the deed by herself and her former husband, or any attempt on her part to execute the same, and that defendant ever paid the consideration. She admits that during her first coverture, and after defendant's possession, he put on improvements to the value of five or seven hundred dollars. Admits that he remained in possession during her widowhood, but denies that it is, or was, with her consent, or that he Inis made valuable improvements since her first husband’s death. She admits that she may have signed the paper, but denies that she did so intelligently ; denies that the $50 she demanded was for purchase money, but was due her on other accounts ; and denies, finally, that during her widowhood she acquiesced in defendant’s possession of the property, but saj^s that she had long been a resident of Alabama, where she remained until her first husband’s death, when she came to Arkansas to look after her property, and commenced proceedings against defendant in a reasonable time.

The deed exhibited in the cros.s complaint and relied upon by defendant, was signed by Tucker and his wife (plaintiff), and'acknowledged before a Justice of the Peace in Alabama. The form of his certificate expresses only, that she “ of her own free will signed and sealed the relinquishment of dower in the foregoing deed, for the purpose therein contained and set forth.”

The evidence, taken most strongly for defendant on all conflicting points, showed that Mrs. Tuckei’ — coming to Arkansas after her first husband’s death — began making enquiries concerning her property : that she lived a short time near the lots in question, then held by defendant, and at onetime demanded of him money as part of the purchase price, which he refused to pay ; that she acknowledged her signature to the bond was genuine, after she had claimed title to the lots, and made no objection to some slight repairs the defendant was making, amounting to about $75.

The Chancellor deemed the lots to be the property of defendant Clark, and confirmed his title; from which plaintiff appealed.

The exceptions taken to the deed set up and relied upon in the cross-bill and made an exhibit thereto, was in accordance with the new practice in land suits, prescribed by the act of March 5th, 1875.

In the year 1870 a married woman could not convey any interest in real property in any other mode than that prescribed by statute, nor, except in the case of separate property, make any contract whatever with regard thereto, either express or implied, which would in any way affect her title or give equities :against it.

The statute has been always construed with the utmost rigor, ■and those who deal with married women have been held, at their peril, to see to it that every requisite of the statute is observed. The power of conveyance is in derogation of the common law, and, construed with all rigor, too often leads to the •spoliation of a class, subject to all manner of subtile and indefinable influences upon the part of husbands, which are none the less irresistible because they may often elude the scrutiny •of the courts.

Her deed, if not in accordance with the statute, is not, like ■an infant’s, voidable. It is absolutely void and a nullity. McDaniel v. Grace et als., 15 Ark., 465; Elliot et als. v. Pearce, 20 Ark., 508; Stidham and wife v. Matthews et als., 29 Ark., 650; Wood and wife v. Terry et al., 30 Ark., 385.

In this last case it was also held that no estoppel can attach from her conduct, nor can she be bound by any executory contract not duly acknowledged.

The deed was, in this case, acknowledged before a Justice of the Peace in another State. There was no law authorizing that. The deed could not be used jin evidence to show title, or an executory contract; nor could it derive any validity from subsequent confirmation, in any manner, which would not, of itself, without the deed, give an equity to defendant. The exceptions to it should have been sustained.

After the death of complainant’s first husband, there is nothing to show such new contract and part performance as would entitle defendant to a deed.

The trifling repairs, amounting to $75, taking his own estimate, made upon property he was already occupying and holding adversely, would not be sufficient part performance to create such an equity. But it is not necessary to consider that. Ho did not take possession and improve under or by virtue of, or in pursuance of, any such new and independent parol contract.

The decree should have been for plaintiff, upon her complaint at law, and possession should have been awarded her with costs, and the cross bill in equity should have been, dismissed.

Let the decree be reversed, and a judgment be entered here-for the possession of the property and all costs, in favor of plaintiff Eliza Gr. Wentworth and her husband.


author: TURNER, S. J. :

text:
    City of Little Rock v. Barton et al.
    q. Brokers: Who are. Power of Municipal Corporations to tax.

    A dealer in real estate for others is a broker, and the City of Little Rock has. the power to require such to pay license for following the occupation within her limits.
    2. Property of citizens held suiject to police power.

    Every citizen holds his property subject to a proper exercise of police power-either by the Legislature directly or through public corporations to which the-Legislature may delegate it.
    APPEAL from Pulaslei Chancery Court.
    Hon. J. R. EakiN, Chancellor.

      Dodge & Johnson for appellant.

      Rose, contra.

   TURNER, S. J. :

The plaintiffs on behalf of themselves and others interested,, state that they reside in the city of Little Rock and severally carry on the business of Real Estate Agents in said city: that their business is to buy and sell lands for others ; to rent out real property, and to collect the rents on the same, and pay-taxes, and does not extend beyond these objects.

That on the 6th day of January, 1876, the defendant by resolution defining the terra “broker” declared that every person or firm who 1 raj's or sells scrip, bonds or exchange, pays taxes at a discount or profit, shall bo considered a broker, and shall pay one hundred dollars per annum, in currency, in advance, and that any person violating its provisions shall be fined in each and every instance twenty-five dollars, as will appear l^ reference to the resolution exhibited with and made part of the complaint.

That on the 26th day of December, 1876, the defendant passed an ordinance for the better regulation of licenses in the city of Little Rock for the year 1877, which provides, among other things, that it shall be unlawful for any person to exercise or pursue any of the following avocations without first having obtained a license therefor, from the proper city authorities, and having paid for the same in gold, silver or United States currency ; each money broker, land broker, tax broker, exchange broker or other brokers or bankers, one hundred and twenty-five dollars per year, in advance ; providing also penalties for carrying on either of said pursuits, as appears by a copy thereof exhibited with the complaint. The plaintiffs say they buy and sell lands and pay taxes for others for a commission or compensation, but they say they are not brokers in the legal sense of the word, and that the said tax, as attempted to be imposed on them, is wholly illegal; and yet, they say, that the defendant, by her ‘agents and officers, is endeavoring to make them pay said illegal tax by arrest and imprisonment, which they say is without any legal sanction whatever, and that plaintiffs believe that the defendant will proceed to enforce the payment’ of said taxes if not restrained from doing so by this court. Wherefore plaintiffs pray that the said defendant and her agents and officers may be enjoined and perpetually restrained from levying and collecting the said tax.

On the 11th January, 1877, the defendant filed a demurrer to the complaint, which demurrer was overruled. Whereupon the court granted a temporary injunction and restraining order-in conformity to the prayer of the complaint.

On the 26th day of June, 1877, the defendant filed her response to the complaint, admitting the passage by the city council of the city of Little Rock, of the ordinances and resolutions exhibited with the complaint, but alleging that under-section 12 of an act of incorporation, passed and approved March 9th, 1875, she has full power and authority to pass such an ordinance, and that the same is now in full force in pursuance of said authority.

Defendant denies that the sole business of the plaintiffs is-to buy and sell lands for others, to rent out real estate and to-collect the rents, and to pay taxes for others ; and defendant-charges the truth to be, that they are, each and every one of' them, in addition to, and in connection with the said real estate-business, either money brokers, scrip brokers, tax brokers, exchange brokers or bankers, under the provision of section 16; of said city ordinance above referred to, and that all of said parties buy and sell scrip, both city, State and county, as brokers, having offices for such purposes, and that they pay taxes-on lands at discount as land brokers, so advertised to the public ; that they sell lands on commission at certain fixed rates as land brokers, and that they so hold themselves out to the public.

Wherefore, defendant says that she ought not to be enjoined from enforcing the collection of said license tax by said ordinance provided for. Because, she says : the said parties are engaged in a privileged kind of business, which the defendant has, by the general and special laws of Arkansas, the right,, power and authority vested in her to tax and license, and that the same is a fixed and important source of her yearly revenues, by which she is enabled to take care of the property and the rights of the inhabitants thereof ; therefore prays that the temporary injunction heretofore issued may be dissolved, etc.; and plaintiff demurs to the complaint for the following reasons :

1st. That this court has no jurisdiction of the subject matter of the complaint.

2d. That the same does not set up facts sufficient to authorize the granting of the relief; and

3d. Because there is no equity in the complaint.

The depositions of a number of witnesses were taken and read on the hearing of the cause.

John Ingram, one of the plaintiffs, stated, that he was a real estate agent, carrying on business in the city of Little Rock at this time; has been engaged in that business since March, 1875 ; that his principal business was furnishing abstracts of title, looking up homestead lands, and keeps lands on sale ; has sold some town property, but not within the last two years. Has not been engaged in selling personal property for others. Has not been engaged in selling bonds, notes or other commercial securities. Has not been engaged in any brokerage business. Has real properly on sale. When parties apply for certain class of lands, witness takes the description and supplies them with it if he can find a piece to suit, charges a regular fee, but not a commission. It is part of his business to negotiate sales of lands for private individuals, in which he charges in accordance with the services rendered.

David Reeve, one of the plaintiffs, stated that he was doing business in the city of Little Rock, principally paying taxes for others, and also deals in scrip, rents property, collects rents, and offers to sell lands for others, but has sold none during the past year. Has been in the business about four years. The scrip that ho buys and sells is on his own account, or on account of his firm. He is of the firm of Reeve & McCabe. They have attempted to negotiate the sale of real estate in a few instances, for other parties, but have not made a single sale. They pay taxes to a considerable extent for others, pay the taxes at a discount from the face of the tax receipt. Think that 203 loans for other parties, based upon collateral security, have been arranged in their office, but that they make no charge for this. It is no part of their business to negotiate loans.

The advertisement of their business, published in the Little Rock Gazette, is as follows :

“ Real Estate and Tax-paying Agency. D. Reeve, M. D. “McCabe. Reeve & McCabe, Real Estate and Tax-paying •“agency, 106 West Markham street, Little Rock, Ark. Buy ■“ and sell scrip and bonds of all kinds ; pay taxes and licenses ■“ of all kinds at the lowest possible rates ; also, rent, lease or “ sell property on the most reasonable terms.”

The sign, at their door, is marked Real Estate Agents and Brokers. D. Reeve.

S. N. Marshall, one of the plaintiffs, stated that his business is principally insurance, also does something in real estate and paying taxes. In real estate he proposes to buy and sell •on commission. Doesn’t buy or sell for others any scrip or bond, or other securities ; pays taxes at a discount from the face of the receipt. Has been engaged in this business five or six years ; has never negotiated a loan, nor attempted to do so for others. In one or two cases where he was personally interested to make collections, he found out where the money could be loaned and it was done, and he made his collection out of it ; where these'loans were made ho received no commission.,

J. H. Haney, one of the plaintiffs, stated that his business was that of real estate agent. That includes principally payr-ing taxes, collecting rents and selling lands, and business in the land office in Little Rook. Buys scrips for the purpose of paying taxes. Pays taxes for others and charges a commission therefor. Does not hold himself out as a broker.

J. H. Barton, one of the plaintiffs, stated that his business was that of real estate agent. Buys and sells real estate in Little Rock and throughout tire State. When he sees an opportunity to buy real estate cheap he purchases to sell again. Pays taxes for others, which is part of his real estate business. Has been carrying on the business about eight years in the same maimer. In buying and selling real estate he does not buy for others. lias in his possession lists of lands for others which he endeavors to sell. Charges a commission for selling real estate. Agrees to pay taxes at a fixed sum less than the face of the receipt, the discount being controlled by the value of the scrips at the time. Purchases the scrips himself for the purpose of paying such taxes.

And this was all the evidence in the cause.

The demurrer to the complaint was overruled by the court and on the final hearing of the cause the injunction was made perpetual, and the defendant appealed to this court.

The jurisdiction of the court of chancery in this cause, we think, is unquestionable. Eor although there may have been a remedy at law, and wo think there was, the Legislature, by the Act of 1873 to amend the Code of Practice in civil cases, in express terms, confers the jurisdiction in question.

Section 29(> of that Act declares : “That the Judge of the Circuit Court for any county, may grant injunctions and restraining orders in all cases of illegal or unauthorized taxes and assessments by county, city, or other local tribunals, boards or ■office rs.

And this provision of the Act of 1873, is strongly fortified by Art. 1(5, Sec. 13 of the Constitution of 1874 which provides, “That any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exaction whatever.”

In order to carry out and make effective sec. 12 of the Act. of 1875, the City Council of the City of Little Rock, on the-26th of December 1876, passed an ordinance for the better-regulation of licenses in the City of Little Rock, which, among-other things, ordained that it shall be unlawful for any person to exercise or pursue any of the following avocations or business, to-wit: money broker, land broker, scrip broker, exchange broker or banker, without first having obtained a license-therefor from the proper city authorities and having paid for the same in gold, silver or United States currency $125 per year in advance ; and further provided that any person exercising any of the privileges for which a license is required without first obtaining the same, shall be fined in any sum from two to-twenty-five dollars for the first offense and double that amount for subsequent offenses.

See oi’dinance sec. 16 and 34.

These avocations and pursuits are not within the scope of' State taxation for State purposes, for in such cases the taxes, must be uniform and according to the value of the property taxed, but they are subjects of police regulation, and if licensed at all, it is done in the exercise of the police power, which is deemed necessary and proper for the government and well-being of all municipal corporations, and in such cases, these avocations and pursuits are licensed and not taxed as property.

What are called police powers relate mostly to the government of municipal corporations’

Of this nature is the authority to suppi-ess nuisances, preserve health, prevent fires, to regulate the use and storage of dangerous articles, to establish and control markets and the-like.

And it may here be observed ‘that every citizen holds his property subject to the proper exercise of this power either by the State Legislature directly, or by public corporations to. which the Legislature may delegate it; and although laws and regulations of this character may disturb the enjoyment of individual rights, they are not unconstitutional, though no provision is made for compensation for such disturbance. They do not appropriate private property for public use, but simply regulate the use and enjoyment of it by the owner. The citizen owns his property absolutely it is true ; it cannot be taken from him for any private use whatever without his consent* nor for any public use without compensation, but he owns it subject to this restriction ; that it must be so used as not to-injure others, and that the soverign authority may by police regulations so direct the use of it that it shall not prove pernicious to his neighbors or the citizens generally. Sec. 1, Dil. Mun. Corp., sec, 93, and marginal references.

The matters enumerated in section 12 of the Act of 1875,. including those enumerated in section 16 of the ordinance of' 26th December, 1876, are the propei subjects of police regulation, and as such, may be licensed under thejauthority of the-municipal government.

The authority of the Legislature to regulate the exercise of privileges or the following pursuits and occupations does not fall properly within its taxing powers, but within its police-powers. Pursuits that are detrimental may be prohibited, altogether, or licensed for a compensation to the public. So-persons desiring to exercise privileges or engage in callings really useful to society, may be required to obtain license, and pay a reasonable compensation therefor: Such as the keeping; •of ferries, draymen, hackmen, and even persons who furnish, moat and broad to communities. Cooloy on Con. Lim., 200.

The power of the corporation of Little Rock to license brokers and to require the payment of a fixed sum for the privilege of carrying on the business of broker, we think, is clearly granted by section 12 of the Act of March 9th, 1875, -and the authority for this grant may be found in section 23, article 11, of the Constitution of 1874, which provides that The State’s ancient right of eminent domain and of taxation is herein fully and expressly conceded, and the General Assembly may delegate the taxing power with the necessary restrictions to the State’s subordinate political and municipal corporations to the extent of providing for their existence, maintenance and well being.”

The plaintiffs stated that they resided in the city of Little Rock and severally carry on the business of real estate agents in said city.. That their business is to buy and sell lands for others, to rent out real property and to collect the rents and to pay taxes for others, and that their business does not extend beyond these objects.

The depositions read at the hearing fully sustain the allegations of the complaint, enlarging it is true, somewhat, the operations of the plaintiffs and being more precise in description, and in one instance, that of Reeve & McCabe, it is •shown that the sign of ‘•'■Real Estate, Agents and Brokers ” appears at the door of their office

What then and who is a broker in the legal acceptation of the term ?

■ Lord Ch. Baron Comyxs, of the Court of Exchequer, "in his Digest of- the laws of England, defines brokers to be “persons employed among merchants to make contracts .between them and fix the exchange for payment of wares sold -or bought.” See 5 Oomyns’ Dig. 78.

Burrill, in his law dictionary published about thirty years-, ago, describes a broker as “one who makes a bargain for-another and receives a commission for so doing.” Tindall,. C.J. J., Bing. 702, 706. An agent employed among merchants and others to make contrae! s between them in matters of trade, commerce or navigation, for a commission commonly called brokerage, Russrll on factors 3, 4. See also Story on Agency. A broker is not in general authorized to act or con-, tract in his own name, nor is he entrusted with the possession of what he is employed to sell, or empowered to obtain possession of what he is employed to purchase; but he acts merely as a middleman or negotiator between the parties and in those respects he is distinguished from a factor. 2 B. and Ald. 137, 143. Russell on Fact. 4. 2 Kent Com. 622.

“The earliest definitions of this term (broker) confine the employment of brokers to dealings between merchant and merchant. Thus by the Statute 1 Sec. 1 Oh. 21, brokers are described to bo persons employed by “Merchants English and Merchants strangers in contriving, making and concluding bargains and contracts between them, concerning their wares and merchandizes and moneys to be taken up by exchange between such merchants and merchants tradesmen.” Russell on Fact.

Those definitions, however appropriate at a period when merchandize and exchange brokers appear to have constituted the only classes of this description of agents, have been very properly regarded by modern writers as too limited to include the various classes of brokers recognized at the present day; although in a late case in England the Court of Exchequer-seemed disposed to abide by the ancient interpretation of the term.” Sec. 16, Meeson & Wellsby 174, See Burrill’s Law Dict. 229.

Bouvier says, that brokers are those who are engaged for others in the negotiation of contracts relative to property with the custody of which they have no ¿concern. Paley’s Agency, 13.

A broker is for some purposes treated as the agent of both parties ; but in the first place he is deemed the agent only of the person by whom he is originally employed, and does not become the agent of the other until the bargain or contract has been definitely settled as to the terms between the principals.” Payley’s Ag. Lloyd ed. 171 note p. 18 Met. (Mass.) 463.

Bill and Note Brokers negotiate the purchase and sale of bills of exchange and promissory notes.

Exchange Brokers negotiate bills of exchange drawn on foreign countries or on other places in this country.

Insurance Brokers procure insurance and negotiate between insurers and insured.

Merchandise Brokers negotiate the sale of merchandise without having possession or control of it as factors have. This is the original broker as defined by the earlier law writers ; now mentioned simply as a class of brokers.

Pawn Brokers lend money in small sums on the security of personal property.

Real Estate Brokers. Those who negotiate the sale or purchase of real property. They are a numerous class, and in addition to the above duty, sometimes procure loans on mortgage security, collect rents, and attend to the letting and leasing of houses and lands.

Ship Brokers negotiate the purchase and sale of ships and the business of freighting vessels. Like other brokers they receive a commission from the seller only.

Stock Brokers. These are employed to buy and sell shares of stocks in incorporate companies and the indebtedness of governments. Bouvier’s Law Diet., 224.

Webster defines a broker as :

1. One who transacts business for another ; an agent.

2. An agent employed to effect bargains and contracts as a middle man, or negotiate between other persons for a compensation commo.ily called brokerage. He takes no possession as broker of the subject-matter of the negotiation. He generally •contracts in the names of those who employ him, and not in his own.

Broker, simply so called, one who sells or appraises household furniture destrained for rent.

Bill Broker, ono who buys and sells notes and bills of exchange.

Bxchange Broker, one who buys and sells uncurrent money and deals in exchanges relating to money.

Bisurance Broker, one who is agent in procuring insurance on vessels or against fire.

Merchandise Broker, one who buys and sells goods; one who advances money at interest upon goods taken in pledge.

Beal Estate Broker, one who buys and sells lands and obtains loans, etc., upon mortgage.

Ship Broker, one who deals in buying and selling ships, procuring freight, etc.

Stock Broker, one who deals in stock of moneyed corporations and other securities. Cites McCulloch, Wharton, Simmons, New Am. Cyclo. See Webster’s Diet. Eng. Lang. p. 167.

We may thus see that the ancient definition of broker has been enlarged and extended greatly beyond its original limits.

Instead now of being confined, as in the time of Chief Baron Comyn, to “persons employed among merchants to make contracts between them and to fix the exchange for payment of •wares sold or bought,” it is extended to almost every branch of business, and this as a necessity growing out of the increasing exigencies of commercial business. In its modern and enlarged signification it embraces the buying and selling, and dealing in real as well as personal estate, and may as well, we think, include real estate agents as persons employed among merchants to make contracts between them and to fix the exchange for payment of wares sold or bought.

Looking at the distinctive character of a broker as a middleman and agent for the sale of property and the transaction of business for others, we fail to see any reason in principle why the dealer in real estate for others may not as legitimately be called a broker as a person employed to make bargains and contracts in matters of trade, commerce or navigation.

So we find that real estate brokers “or persons who sell real estate for others,” are often called simply “brokers.”

In the case of Pierce v. Thomas and others, 4 E. D. Smith’s N. Y. R., the plaintiff, a broker, sought to recover commissions fr'om the defendants for the sale of certain real estate, without showing an employment to sell, or such an adoption of his acts or acceptance of his services by the owner as is equivalent to an original employment. The court, by Wood-ruff, J., said: “To entitle a broker to recover commissions for effecting a sale of real estate it is indispensible that he should show that he was employed by the owner (or on his behalf) to make the sale. A ratification of his act, where original employment is wanting, may, in some circumstances, be equivalent to an original retainer, but only when there is a plain intent to ratify.

In the case of McGavock v. Wodlief, 20 How. U. S. Sup. Ct., 221, the court, in deciding that a broker who negotiates the sale of an estate is not entitled to his commission until he finds a purchaser in a situation and ready and willing to complete the purchase on the terms agreed upon between the broker and the vendor, uses the following language: “The- broker must complete the sale; that is, he must find a purchaser in a situation and ready and willing to complete the purchase on the terms agreed on before he is entitled to the commission. In this case the event speaks of the person employed to negotiate the sale for another simply as a “broker

In the case of Farnsworth v. Hemmer, 1 Allen (Mass.). 494, which was a suit by a real estate broker to recover commissions for his services in negotiating an exchange of land between the defendant and one Cooper. Here also the real estate broker is simply styled a 1 broker F

In the the case of Glentworth v. Luther, 21 Barb. 145, "which was an action by the plaintiff to recover his commission as a broker for negotiating the sale of a house and lot in the City of New York, Cowles, J., said: There can be no doubt as to the extent of the duties to be performed by one who as. broker is employed to sell real estate. In the nature of things he cau do nothing more than find a party who will be acceptable to the owner and ente]* into a contract of purchase with him ; unless the owner makes him more than a broker merely, by giving him a power of attorney to convey the property and then the employee would cease to be merely a broker, and become the attorney. The broker employed to sell real estate is in this case called simply a broker. See, also to the same effect, Doty vs. Miller, 43 Barber, 529. Middleton vs. Findla, 25 Cal. 76. Morgan vs. Mason, 4 E. D. Smith 638. Clapp vs. Hughes, 1 Phil. (Pa.) 382.

So we see that the term broker has long been indifferently applied to those who buy and sell real estate for others, and those middlemen who negotiate.and make contracts between merchants in the interest of commerce, trade and navigation.

At the time of the passage of the act of March 9th, 1875,. and long previously, the modern and enlarged meaning of the word broker, had been accepted and recognized by the courts, as a part of the land, including in this extended interpretation of the meaning of the word broker, not only what are called real estate agents or brokers, but every other description of broker, except perhaps pawnbrokers, who are strickly not brokers at all, not falling within any of the definitions of the term broker.

We are of the opinion that under the power conferred upon the corporation of Little Rock by Sec. 12 of the Act of 1875, it was competent for the corporation to license the plaintiffs as brokers and to require of them to pay respectively the sum mentioned in Sec. 16 of the ordinance of the City Council for the priveledge of pursuing their business as brokers.

Having arrived at this conclusion we are of opinion that there is error in the decree of the Chancellor and we do therefore reverse said decree and remand the cause, with instructions to the Chancellor to dissolve the injunction and restraining order herein, and dismiss the complaint.

Hon. J. R. Eakin. J., did not sit in this cause.


text:
    Fry, Collector v. Reynolds.
    1 County Warrants: Order for re-issue and cancellation-Mandamus against Collector.
    An order of the County Court calling in County Warrants for re-issue, which gives less than three months from its date to the time appointed for present- ing the warrants is invalid-and a scrip hodler is not obliged to appeal from it or quash it by certiorari, but may compel the County Collector by man- damus from the Circuit Court, to receive his scrip for County
    taxes. 2. Mandamus: Partics
    in. It is not the practice to make any person a defendant to a petition for man- damus but the officer whose conduct is complained
    of. APPEAL from Chicot Circuit

      Hon T. F. Sorrells, Circuit Judge.

      Valentine for appellant.

      Reynolds for appellee.
   ENGLISH, C. J.:

Ou the 21st day of July, 1875, the County Court of Chicot ■county made the following order :

“In the matter of calling in the outstanding indebtedness of Chicot county, Arkansas:

“Whereas, it is deemed expedient by the County Court of Chicot county to call in the outstanding warrants of said •county, in order to cancel, re-issue and classify the saino : It is therefore hereby ordered that all the warrants and outstanding scrip of Chicot county, of all kinds, character and description -whatsoever, issued prior to the 30th day of October, 1874, be and the same are hereby ordered to be called in for the purpose aforesaid: and it is further ordered that the holders of all outstanding warrants and other scrip of Chicot ■county issued prior to the said 30th day of October, 1874, •shall present the same to the County Court of Chicot county, in the town of Lake Village, Ark., on VIonday the 4th day of October, 1875, for the cancellation, re-issuance and classification of the same, and that the sheriff of Chicot county shall give notice, and make due publication of this order as by law he is required to do. And it is further ordered that all persons who shall hold any warrant of said county and neglect or refuse to present the same as required by this order, shall thereafter be forever debarred from deriving any benefit from their claims.”

On the 2Gth of July, 1875, the shei’iff made publication as directed by the order.

Daniel H. Reynolds, who was the holder of six county warrants, issued prior to the 30th of October, 1874, which had been presented to the County Treasurer for payment, and endorsed not paid for want of funds, and which had not been presented to the County Court, for cancellation, re-issuance,, etc., under the above order, being a property holder and taxpayer of the county, tendered said warrants on the 20th April, 1877, to Reuben M. Fry, collector of the county, in payment, of his county tax, and the collector refused to receive them on the ground that they were barred by the above order of¿the County Court, but admitting the warrants to be|otherwise genuine and valid.

On notice to the collector, Reynolds presented to the Circuit Court of Chicot county, at its July term 1877, a petition, alleging the above facts, aud praying that Fry, as such collector, be compelled, by mandamus, to receive said warrants (which were made exhibits) in payment of the county taxes,, etc., charged against his property, etc.

The Hon. F.' Downs, Judge of the County Court, filed a. motion to make the county a party to thejapplication for mandamus, stating as grounds therefor, that by an order of the County Court said warrants were declared to be baired aud null and void, and the collector directed not[.to receive them' in payment of any taxes, and the County Treasurer directed not to redeem them — “That said county believes that it has a-good and valid defense to said warrants, and that said cause-cannot be fully determined except by making said county a. party, and permitting it to make a defense.”

The court overruled the motion to make the county a party.

Fry, the collector, demurred to the petition for mandamus,, on the ground that it did not show that the petioner was without other adequate relief in the premises.

The court overruled the demurrer, and ordered a mandamus as prayed in the petition, and Fry appealed to this court.

The Statute empowering the County Court to make an order to call iu. outstanding warrants, etc., prescribes that the time fixed by the order for the presentation of such warrants, shall be at least three months from the date of such order. Gantt’s .Big. 8ec. 614.

The order made an exhibit to the petition, and copied, was ■entered by the County Court on the 21st of July, 1875,'and the holders of outstanding warrants were required to present ■.themto the County Court for cancellation, etc., on the 4th day ■ of October following, which wras less than three months from ' the date of the order.

The court had power under the statute to make such an ■order, and the warrants of appellee were not barred by his failure to present them at the time fixed by the order.

The order being invalid as to the warrants of appellee, he ■was not obliged to appeal from it, or apply to the Circuit Court to have it quashed on certiorari. His warrants not being barred by his failure to present them at the time fixed i by the order, or their validity in any way legally affected thereby, he had the right to tender them to appellant, as Collector, in payment of his county taxes, and on his refusal to ■receive them, he could be compelled to do so by mandamus. Woodruff v. Trapnall, 12 Ark. 640; Parsel v. Barnes & Bro. 25 Ib. 261; Graham v. Parham 32 Ib. 677; Lindsey v. Rottaken, Ib. 623; Loftin, collector, v. Watson, Ib. 415; McCracken v. Moody, M. S.

It is not the practice to make, any person a defendant to a petition for mandamus but the officer whose conduct is complained of. Big. Gh. 89.

The county was not a necessary party, nor does the motion •of the County Judge state any good reason for permitting it to become a party.

If the County Coui’t made an order directing the collector not to receive appellee’s warrants, and directing the Treasurer not to redeem them because of the failure of appellee to present them at the time fixed by the order above copied, as indicated in the motion, such order was invalid.

The general statement in the motion that the ‘■‘■.county believed, it had a good and valid defense to said warrants,” without stating what the defense was, amounted to nothing. If there was any defense other than that the warrants were barred by the failure of appellee to present them under the invalid order above, it should have been presented by the collector in answer to the petition. It was his duty to interpose such defense, if there was any. But he rested upon his demurrer,, and the judgment of the court below must be affirmed.