text:
    WELCH v. HICKS.
    Courts— When proceedings presumed regular. — Where -the record is silent, er it is not otherwise made to appear, the regularity of the proceedings of the court below will be presumed. ,

      Sales — When by order of court — Under the provisions of the Code, all sales, made by order of a court, should be on credit.
    Vendor’s Lien — To enforce, what petition should allege. — A petition, to declara a vendor’s lien arid sale, should allege a conveyance or tender of conveyance before suit brought.
    APPEAL PROM PRAIRIE CIRCUIT COURT.
    IIon. John Whytock, Circuit Judge.

      E. W. § E. Gantt, for Appellant.

      First. The affidavit hy the attorney to the hill is not within the purview of Section 603 of -Code.

      Second. The proof of publication fails to show who “ John* G. Price ” was, which was absolutely necessary. Saffold vs.. Saffold et al., *14 Ark., 408.

      Third. There .was no attorney, appointed by the court, to-defend for the appellant, as required by law. Code, sec. 603,, Sub. Div. First*

      Fourth. The court erred ’in decreeing a sale for cash. Code, Sec. 407.

      English § English, and JBronaugh $ England, for'Appellee.

      First. It is no valid objection to the hill, that it does not allege that appellee demanded the purchase money and tendered a deed before suit. Duncan vs. Clements, 17 Ark., 279; McDaniel vs. Chace, 15 Id., 488; Lewis vs. Davis, 21 Id. • Prewitt vs. Vaughan, 21 Id., 417.

      Second. The objection, that the affidavit is defective, comes too late. Code, Sec. 159; Gould’s Digest, Sec. 13, Chap. 28, and Sec. 1, Chap. 8; Saffold vs. Saffold et al., 14 Ark.

   Gregg, J.

The appellee sold the appellant certain lands in Prairie county, and received part payment and took a note for the remainder, and gave bond for title.

After tbe note fell due, be filed a bill to have bis vendor’s lien declared and tbe lands sold to pay tbe remainder of tbe purchase money.

The appellant made’default; a decree was rendered for.the .appellee, from which Welch appealed to this court, and he .assigns .as error that the bill was verified by the attorney’s .affidavit, and the publication of notice -by John G-. Price’s affidavit; that the court failed to appoint an attorney for the appellant, and rendered a decree of sale for cash in .hand.

To the first objection it is sufficient to say it comes too late in this court. Sec. 159, Civil Code.

If the court did not judicially know the journal made official by law, the record states that it appeared to the court "that the notice had been duly published; that would raise a sufficient presumption that that court had found the publication duly proved and defeat such objection here.; as a further '.answer, the Code does not prescribe the manner of- making proof of publication, and the law specifies in which it shall -he made, whiqh differs froih the former statute.

Where the record is silent, the presumption is that the -court below, or the clerk of that court, appointed for one constructively notified, and hence the third objection is valueless, unless the record affirmatively showed that no attorney was ¡appointed. Lastly it is urged that the court ordered the lands sold for cash, when they should have been sold on time. Under the head of “Judgments in general,” Sec. 405 of the Civil Code declares, “It shall not be necessary, in any action upon .a mortgage or lien, to enter an interlocutory judgment * * * but final judgment may be given in the first instance.” Sec. 406 declares; upon a foreclosure of.a mortgage, a sale shall be* «ordered. Sec. 407 declares, that “ Sales of personal property, made by order of court, shall be on a credit of three months; ¡sales of real property on a credit of not less than three nor .more than six months, or on installments equivalent to not more than four months credit; the whole to be .determined by the court,” etc. Sec. 408 declares, that “In an action on a mortgage or lien, the judgment may be rendered for the sale of the property and for the recovery of the debt against the defendant personally.” These provisions being enacted under the general head above stated, and Secs. 405 and 408 expressly embracing other liens as well as mortgages, and Sec. 407 declaring in general terms that sales of real property, made by order of court, shall •be on a credit, etc., we are of opinion the-legislature intended no exception to the rule, but that all sales, by order of court, should be on a credit. The petition, in this case, does not allege a conveyance or an offer to convey the land before suit brought, and the court are of opinion it falls within the ruling in the case of Wakefield vs. Johnson, Adm’r, 26 Ark., 506.

The decree of the court below is reversed, the cause remanded with directions to allow the plaintiff to amend his petition to show, an offer to convey before suit, and if he cannot so amend, that his petition be dismissed without prejudice.


source: Caselaw Access Project

author: Gregg, J.

license: Public Domain

text:
    UNDERWOOD v. SLEDGE.

      Judgments — When may he set .aside, etc. — A court has control over its orders or judgments during the term at which they are made, and, for sufficient cause, may modify or set them aside at that term, and when so set aside, the parties are remitted hack to such rights and remedies, the same as though no order had been made or judgment rendered in the first instance.
    APPEAL FROM PHILLIPS CIRCUIT COURT.
    Hon. John E. Bennett, Circuit Judge.

      Garland & Nash, for Appellant.
    1st. The County Court has control over its judgments during the whole of thegterm at which they áre rendered. 2 Ark., 66; 6 Id., 92; 10 IJ.,-241; 5 Id., 25; Code, page 176, Sec. 571.
    2d. Presumption in law is in favor of the finding of the County Court. 2-3 Ark., 14; lb. 208.
    3d. Section 13 of the law, (new Digest, p. 166) places the matter of appointing county attorneys with the County Court, and unless there is a plain abuse of this authority, there is no relief. 5 Ark., 309; 6 Id., 431; 10 Ici.,.442.
    4th. The matter complained of was subject to review by appeal, and therefore mandamus would not lie. 11 Ark., 605; Code, p. 25, Secs. 19-24; 25 Ark., 615, and cases cited.
    5th. • This is not a proceeding to .put in motion the discretion of a ministerial officer, as was Marburg vs. Madison, 1 Crunch, 134; but it was one to review and control the exercise of a discretion in the court below, and this cannot be done by mandamus. Moses on Mand., 15 ; 25 Ark., sup.

      Palmer & Sanders, for Appellee.
    Appellee relies upon the case of Marburg vs. Madison, 1 Cranch, 137, where the right of an appointee to his office is fully discussed, to sustain his claim.
   Gregg, J.

It appears, from the record, that on the 28th of November, 1870, a majority of the County Court of Phillips county passed an order to appoint an attorney for that county, and electedthe appellee, who was a member of the court, to fill the office and fixed his salary at fifteen hundred dollars per annum; that the appellee was present and active, voted to have such attorney elected and for the salary of the amount stated; did not vote for himself to fill the office, but no,one else was put in nomination; that the appellant refused to vote for him and entered a protest.

Two days after, and during the same term, that court made and entered of record an order, “ That the order made, on the previous day of the present term, appointing a county attorney and fixing his salary, be and the same is rescinded; and for naught held as though no action had been taken therein.”

And, on the first of December, and during the same term, the appellee appeared in the County Court and moved the court to grant him a certificate of election as such county attorney; the court overruled his motion and declared their approval of the last order, vacating the one by which an attorney’s salary was created and under which the appellee was elected. The appellee then presented his. petition to the Circuit Court for a mandamus to compel the County Court to grant him such certificate.

The appellant, as presiding judge of the County Court, appeared in the Circuit Court and filed his answer to the petition, setting up the facts as stated, which were, in subbtance, the same as the allegations in the petition, to which response the appellee interposed a general demurrer, and the court sustained the demurrer and ordered that a peremptory mandamus issue, and that the county of Phillips pay all costs, from which judgment and order Underwood appealed to this court.

It is well'settled, in this State, that a court has control over its orders and judgments during the term at which they are made, and, for sufficient cause, may modify or set them aside. Ashley vs. Hyde & Goodrich, 6 Ark., 100; Ashley vs. May, 5 Ark., 408, and other cases; Civil Code, sec. 571, ¶. 176.

The question presented is, whether the appellee, by the order and election, had a vested right.

It'is certainly good'policy in the law to allow courts an hour’s reflection ; time to revise hasty action, correct mistakes and review such error as they may have fallen into for want of sufficient consideration, and to this end they have, during their respective terms, to make up their records and fully «consider the propriety of their judgments, and to review and correct any mistakes, errors, or indiscretions into which they may have fallen during the term, and when such revision is had, the action of the court and the record stands precisely as if no such former mistake or erroneous judgment had ever been given or entered.

In an action of debt, the judgment of a court of competent jurisdiction is a determination of the party’s right; it vests in him the property of the judgment, and authorizes him to enforce a payment of the amount; yet, if during the term, the court, for sufficient cause or even without cause, sees fit to set aside such judgment, its benefits are lost to him in whose favor it was rendered.

The presumption must be indulged in, that judges, sworn administrators of the law, will deliberate and ultimately determine according to the very right in causes.

In .the case at bar, without attempting to discover the undefined extent of a vested right in an office, we may well com elude the appellee had nothing better than the judgment of a court of competent jurisdiction, creating an office, fixing its salary and appointing him to fill the same, and we. see ho. principle of law that gives him any more sacred fight, in that $1500 00 salary, than any litigant would have in a $1500 00 judgment for his debt, and no reason why the'court, in the exercise of its best judgment and sound discretion, might not set aside and vacate any such order or judgment; and when an order or judgment of a court is set aside, at the' same term of the court at which it was rendered, ■ the whole suit or matter stands precisely as if no such consideration had been had or entered of record, and all parties interested are remitted back to such rights and remedies as they had before the making of the orders or judgments so vacated. It, therefore, follows that the application of the appellee for a certificate of his appointment, as county attorney, being made, without authority of law, and after the order first aforesaid had been vacated and set aside, should have been refused.

The judgment is reversed and the cause remanded with directions to overrule the demurrer and dismiss the appellee’s . petition.


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    HUGHES, Adm’r v. PIKE.
    Aclams obtained á decree in chancery for the payment of money, or in default thereof, for the sale of lands.’ Afterwards, without payment, on supposed equitable grounds, by agreement with the judgment debtor and by consent of the Probate Court, an order was made in the Probate Court directing the administrator to enter satisfaction of the decree on the chancery record, and releasing him, as such administrator from responsibility for the amount of the decree. On application of administrator de bonis non, to enforce the decree; Held, That the Probate Court had no authority to make such order, and the administrator was accountable for the amount of the decree.
    APPEAL ER0M MONROE CIRCUIT COURT.
    Hon. John E. Bennett, Circuit. Judge.

      J. J3. Palmer, for appellant.
    It is well settled that “ an agreement without consideration is utterly void.” Story on Contracts, Sec. 427; Chiity on Contracts, 26, 27; Parsom on Contracts, 853; lb. noteb. c. to page 355; Hill vs-. Roderick, 4 Watts £ Serg. 221; Railroad vs. Brinkerhoff. 21, 139 Wend.; Underwood vs. Mulligan, 10 Ark., 254; Bomeford vs. Crimes, 17 Ark., 567; 19 Ark., 67.

      A fact which, has been directly tried and decided by a court of competent jurisdiction, cannot be contested again between the same parties, in the same or any other court. Hopkins vs. Lee, 6 Wheaton, 109; Voorhees vs. Bank JJ. 8., 10 Peters, 449.
    How does appellee make himself a party to the order- of the Probate Court, so as to bring himself within the rule, or reason of the rule? There were no facts to he tried, there was hut one party, and there was no one bound by the decision of the court. There was no ires judicata.

    The doctrine of estoppel does not apply to this case. Steph. , PI. 238; Go. Liti., 352, a; 3 Blk., Com.:, 303; 1 Serg. &¡ B. 444.

      English, Gantt English, for Appellee.

      First. The validity of the contract having béen submitted to the court for arbitration, its award was binding. Coffin vs. Cotton, 4 Pick, 454 ; Bean vs.~ Farman, 6 Pick, 269 ; Ailing vs. Monson, 2 Conn., 692.

      Second. The Probate Court had jurisdiction of the subject matter submitted, and its decision was in the nature of a final judgment and valid; and if erroneous, the error could not be corrected in a collateral proceeding, hut only by appeal. 8turcly and wife vs. Jacoway, 19 Ark., 514; Fleming vs. Johnson et al., 26 Ark., 421.

      Third. A waiver or compromise of litigation is a good consideration for a contract. 1 Pars. Contr., p. 140-44.
   Gregg, J.

It appears of record, that at the September term, . 1867, an administratrix of the estate of William Harviek, obtained a decree for the payment of six hundred dollars and. the foreclosure of a mortgage, on certain real estate, made to-secure the payment of the writing obligatory for that sum.

' The decree was very irregular; it is in form final, yet it requires a further report to be made, and it fails to describe the lands ordered sold, etc., hut sufficient appears to show the determination of the court.

At the November term, 1870, the appellant, as administrator de bonis non of said estate, appeared and filed his application to have the decree enforced, showing that it was in no way satisfied, etc. ' The appellee was notified, and he appeared and resisted the enforcement, of the decree, and showed that in 1868 lie told the appellant that if he did not abandon said decree and have it satisfied, he would have him enjoined from enforcing it, and that appellant said he would satisfy the decree if the Probate Court would authorize him so to do, and relieve him from liability; that his “object was simply to discharge his duty in the premises.”

That the appellant, in person, went before the Probate Court and represented that the decree had not been paid off, and that the new Constitution of Arkansas prohibited the ■collection of notes, judgments or decrees, wherein the consideration was the sale of slave property, and asked for an ■order directing what to do. And, by consent of the court, in Ms own handwriting, entered up an order directing himself to enter satisfaction of said decree on the chancery record of the county, and releasing him from all responsibility, as'-such administrator, for the amount of the decree.

The matter being thus presented to the court, the chancellor refused the application, and adjudged that the appellant was barred from further proceeding’ on said decree, and that he pay costs. From which, the administrator has appealed to this court.

The question now is, whether the action of the appellant, as such administrator, and of the Probate Court, amounted to a satisfaction of the decree, or estopped the administrator from further claim thereto?

It is clear there was no defense, in law, sufficient to deprive the heirs of Harvick of their right to the amount of this decree, and it is quite clear from the record, that the administrator was not faithfully discharging his trust. It was far from-his duty to be petitioning the Probate Court in a manner that amounted to about the same as asking that the decree be released to the appellee. And if this sum had been lost to the estate, when he was sanctioning and conniving at such, proceedings, he certainly ought to have been held personally liable therefor. But we are of opinion that his promise to-enter satisfaction of the decree, even under-the sanction of an order of the Probate Court, was no satisfaction. Had he improperly procured such order, and released the decree, he would have been liable to the estate; if the court had made such order without his procurement, it would have been without authority of law, and he was not bound to obey it. It would, in fact, have been his duty to disobey'it, and it was and is his duty to be vigilant in collecting and taking care of the estate, and not to barely perform such duties as the law forced him to do, as his own language intimates. This proceeding, therefore, was not a satisfaction of the decree, nor was the Probate Court, as contended for, an arbitrator between, the parties.

No award was made and no judgment sought of any competent court. The appearance before the Probate Court was ex parte, and to ascertain if that court would order the administrator to satisfy a decree in chancery, by which both appellee and appellant were to be discharged from responsibility at the cost of the estate. . While it is clear that the administrator had no right to give away or thus waste the assets of the estate, it is equally true that the . Probate Court had no authority to require him to do so; and certainly no power to adjudicate upon the validity of the decree in chancery, and any promise the administratdf may have made to cancel that decree, was not only wanting in consideration, but was without authority in law to bind him, and in violation of his duty as such trustee. A mere offer to perform, what another may consider just between disputants, is. no sufficient consideration, in law, to compel an individual to abide such findings much clearer is it insufficient to compel a trustee to misapply. or waste the' cestui que trust’s estate.

In the case of Underwood■ vs. Milligan, this court said: “As Marshall had no power, as administrator, to enlarge the liability of his intestate, or bind the assets in his hands by any agreement of his, the proof of this agreement did, not establish the account sought to be recovered of Milligan, as administrator de bonis non,” etc., 10 Ark., 256.

We are of the opinion that the decree was not satisfied; that there was no judgment vacating it; that Hughes’ promise, as administrator, to satisfy the decree, was without consideration, contrary to his duty and void; that he, as such administrator, should be charged with the amount of the decree; that the Chancery Court erred in overruling the application to have said decree enforced. Its order and decree is therefore reversed, and the cause remanded, with directions to refer the matter to a master, and ascertain the amount due upon the original decree in favor of said estate, and order the same paid by a day certain, and in default thereof, that the lands referred to, in the decree, be sold to satisfy such demand. ■


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    COOKSEY v. McCRERY.
    Cohvedebate Money'- — Not a valid payment. — The payment in confederate money is not a valid discharge or payment of a debt or obligation. (Thompson vs. Mankin, 26 Ark., 586, and Yinsant vs. Knox, paye 266. App>rovcd.)

    APPEAL EROil DALLAS CIRCUIT COURT.
    Hon. E. J. Searle, Circuit Judge.

      English, Gantt $■ English, for Appellant.

      Gallagher, Newton &¡ Hempstead, for Appellee.
   Gregg, J.

The appellee brought bis suit to the March term, 1868, of the Hallas Circuit Court, upon a bond, executed by the appellant to Benjamin E. Williamson, on the 27th of June, 1867, for the sum of $400, conditioned, that whereas said Williamson had purchased certain Internal Improvement Lands from the State, and executed his note in the sum of $200 therefor, and that the said Cooksey should well and truly pay off said note and safely indemnify said Williamson from any damage or loss, and transferred to him the certificate of purchase.

And he alleged, as a breach, that the said appellant did not indemnify and save the said Williamson from damage, but neglected and failed to pay off said note when the samé became due and payable, or thereafter, but that on the 20th day of February, 1863, said Williamson died, and afterwards letters of administration were granted N. A. Williamson and J. D. Bellah, and that in November, 1863, said note was presented to them as such administrators, and they paid off the same, and that thereafter their letters of administration were revoked and letters’de bonis non granted to appellee, and that he, as such administrator, had sustained damages to the ’amount of $400.

At the April term, 1870, the appellant appeared and filed four pleas. The first, that the plaintiff had not been damaged. The second, that the appellant was ready and willing to pay off and discharge said writing obligatory when the same became due, but the same was then in the hands of the officers of the government of the State of Arkansas, then in 'rebellion against the government of the United States, and that, while said writing obligatory, in said bond referred to, was in the hands of said officers, then in rebellion, said plaintiff paid off the same to them. The third, that on the'18th of November, 1863, the plaintiff paid off said writing obligatory, to the officers of the State, then in rebellion, in confederate money, Arkansas war bonds or Arkansas treasury notes, which money had been issued and put in circulation to carry on war against the United States; and thus said writing came into the hands of said plaintiff, contrary to public policy. The fourth, a general averment of payment in confederate money, to officers engaged in rebellion, etc.

- The pleas were all duly sworn to. At the September term, 187Q, the court sustained a demurrer to all the pleas, and the appellant declining to plead further, a jury was empaneled and assessed the appellee’s damages at three hundred and fifty-nine dollars, whereupon the court rendered judgment for the penalty of the bond and ordered execution for the amount of damages so assessed, from which ruling and judgment this appeal is prosecuted.

The first plea seems to be but a general issue. The appellee alleged, that by reason of the appellant’s failing to comply with the conditions in his bond, he was damaged in the sum of four hundred dollars; the plea avers that the appellee had not, at any time since the making of the bond and conditions therein, been in any manner damnified by reason of any matter or thing in said condition mentioned. This appears to us . a traverse of the breach alleged, and we see no sufficient reason why the demurrer should have been sustained to this plea.

The second plea avers that the writing obligatory was not paid to any one entitled to collect the same, but was paid tO' pretended officers of the State, then engaged in rebellion. The handing of money over to persons not authorized to receive it, is certainly no valid payment of a debt.

The third and fourth pleas aver that the payment made was in confederate notes, or Arkansas war bonds or treasury notes, issued in aid of the rebellion against the United States.

Under the decisions of this court, these pleas, if true, necessarily defeated the appellee’s right of recovery. Latham vs. Clark, 25 Ark., 574; Jordan vs. Walker, 26 Ark., 1; Penn vs. Tollison, 26 Ark., 545; Booker vs. Robins Page, Ib. 660, and other eases.

The record further shows that N. A. Williamson and J. H.. Bellah, who, it is alleged, made the payment, were not legally authorized to do so ; Thompson v. Mankin, 26 Ark., 586; Vinsant vs. Knox, decided at present term; and hence, if paid by them, it was of their own choice and not binding upon the appellant, and for that reason the appellee’s demurrer should have been held to reach back and defeat his declaration.

For these reasons the judgment must lie reversed and the cause remanded to be proceeded in according to law and not inconsistent with this opinion.

Bearle, <T.,-being disqualified, did not sit in this case.

Hon. B. R. Harrington, Special Supreme Judge. '


author: Bennett, J.

text:
    TINER, Adm’r. v. CHRISTIAN, Adm’x.

      Administration — When attorney's fees allowed. — To entitle an administrator to charge his intestate's estate with attorney’s fees, the fees should accrue in . obedience to the order or sanction of the Prohate Court.

      Judgments — What grounds of reversal. — When the Circuit Court, on appeal, fails to pass upon a point wliich should have been decided, yet, when the decision, if.made, would have boon adverse to the appellant and not prejudicial to his rights, such failure cannot he considered as a good ground for reversal.
    Probate Courts — Have no cognizance of vendors lien and partnership. — ■ Probate Codrts have no jurisdiction to enforce a vendor’s lien or adjudicate and settle partnership claims.

      Dower — Not allowed in proceeds of lands sold, etc. — The widow is not entitled to dower in the proceeds of the sale of lands, whereof her husband died shined, made by the administrator, under order of the Probate Court, but slio must look to the specific estate.

      Administration — Misapplication of effects, etc. — The misapplication by an administrator of the effects of an estate, in distribution, will be rectified by the court, and such misapplication will not have the effect to deprive him of the commissions allowed, by law, for such sums of money as were lawfully expended in the settling of such estate.
    APPEAL PROM ASIILEY CIRCUIT COURT.
    Hon. Henry B. Morse, Circuit Judge.

      W. D. Moore and English, Gantt § English, for Appellant.*

      First. The court below erred in not allowing attorney’s fees as legitimate costs of administration ; See Secs. 194-5-6, Chap. 4, Gould’s Dig. That the court should have considered the question of attorney’s fees; See Sec. 201, Chap. 4, Gould’s Dig. As to*the matter of bill of exceptions : See Dempsy vs. Fenno, 16 Ark., 491.

      Second. That the widow was entitled to dower in the lands, under Sec. 1, Chap. 60, Gould’s Dig., and she could “ follow-it wherever it might he found, and subject it to her lien.” FLUI ad’r., vs. Mitchell, 5 Ark., 608. The mere conversion did not bar or destroy her right, 'previously vested, which was a charge upon the’lands. Menifee vs. Menifee, 8 Ark., 9;
      Bob vs. Powers, 19. Ark., 440. She is entitled to dower in the personalty, regardless of the solvency of thé estate; James vs. Marcus, 18 Ark., 422 ; and if personally/ sold, to one-third ►of the proceeds, ubi supra. Why should not same rule apply where lands are sold ? Pose’s Big., p. 291-2. As to the question of vendor’s lien, the court properly refused to consider it. Adams on Bq. p. 126.

      Third. As to the right of' the administratrix to commissions, «etc., See Secs. 122-3, and Chap. 4, Gould’s Big.,- and even if •the effects of the estate had been misapplied, tlie creditors had ■their Remedy; See Secs. 146-7-8, Ghap. 4 and 127, Gould’s Big.

      ■ Watkins Pose, for Appellee.
    The memorandum filed showing the rulings of the judge, not being embraced in a bill of exceptions, is no part of the .record. Saioyers v. Bathrop, 9 Ark., 68; Berry vs. Singer, 10 1 d. 489 , Byrd vs. Brown, 5 Id., 710; Gox vs. Garvin, 6 Id. 431..
    The widow has no dower in lands not paid for. Thorn vs. Ingram 25 Ark., 52. The sale by the administrator could not .affect the widow’s dower in the lands in specie, and she could have no claim on the money. Neither has a widow any dow•er in partnership property; certainly not before .the partnership debts are paid. Sumner vs. Hampton 8 Ohio, 358.
   Bennett, J.

Mary K. Christian, as administratrix of •Joseph D. Christian, deceased, surviving partner of Christian & Norris, filed in the Circuit Court of Ashley county, at its ■September term, 1869, her petition against Benjamin Tiner, .as“administrator of A. J. Buffington. The facts, a^ stated in the said petition, were agreed to by the attorneys, which were substantially as follows:

“That Tiner, as administrator of Buffington, under an order of the Court of Probate, of Ashley county, sold certain lands belonging to the estate of said Buffington, in Ashley •county, for $700 00 which sale was reported for confirmal ■tion. <.

That said Christian, as administratrix, as'aforesaid, prayed said Probate' Court to order said Tiner, administrator, to appropriate said $700 00, first, to the payment of the legitimate costs of administration, not including, as legitimate, any charges for attorney’s fees, -and the balance to the payment, so far as it would go, of a demand due the petitioner,, as administratrix of said Joseph D. Christián, against the-estate of said A. J. Buffington, of the- fodrth class, amounting to the sum of fifty-two hundred ($5200) dollars. That in proof of said petition for said order, it was proven that the claim was due for a part of the purchase money for the interest of said A. J. Buffington in the lands sold by Tiner, as administrator, aforesaid; that said interest in said lands was sold by Joseph D. Christian to said Buffington, for the purpose of forming a partnership, etc.; that said interest in said lands was held by said Buffington, ás a partner, and for partnership purposes; that Edna C. Buffington, the wife of said A. J., was the administratrix of said A. J. Buffington prior to said Tiner; that she had paid, in full, all the debts and demands probated against said estate, of the fourth class, except the demand dúe the petioner, on which" she had paid nothing, etc. That the said Probate Court made the order in accordance with the prayer of said petition ; that, at a subse* quent day of said court, Tiner moved to set aside said order as to the exclusion of attorney’s fees as legitimate costs, etc., that the coui’t overruled the motion, to which Tiner excepted and prayed an appeal to the Circuit Court, which was granted ; that afterwards, said Tiner, on a. day of the same termqof said Probate Court, moved the court to set aside the order to appropriate the balánce of said $700 to said debt, due said Christian, as administratrix, and for cause shown. That by the last account current of said Edna C. Buffington, confirmed by the Court of Probate, the sum of about $600 was due her as commissions, as administratrix of said A. J. Buffington, and that said Edna C. Buffington was entitled to dower in said $700, as the widow of A. J.; that the Probate Court sustainedthe motion of said Tiner, and set aside its previous ■order, to which Christian, administratrix, excepted and prayed an appeal to the Circuit Court, which was granted.

The court house at Hamburg, Ashley county, having been' burned, sometime previous, all the original papers in the .above cause were destroyed.”

The above was agreed, by all the parties, should be taken .as the substance of the proceedings and-evidence in the cause, upon which papers it was submitted to the Circuit Court, •and on motion the cause reinstated. Hpon the hearing, the court found in favor of Christian, and ordered Tiner to pay over to her the $700, after deducting the legitimate costs of administration, without deciding, directly as to whether attorney’s fees for services rendered the estate were legitimate costs or not. Tiner excepted and appealed to this court.

From the above agreed statement of the pleading and facts, the following points were raised for the consideration of the Circuit Court:

First. Are attorney’s fees legitimate costs of administra-, tion, and should the Circuit Court have considered this question, in reviewing the proceedings of the Probate Court, when presented in the record?

Second. Have Probate Courts jurisdiction in matters relating to a vendor’s lien, or to the settlement of partnership debts or property, so as to determine the right of a widow to dower in the property said to bé encumbered by the lien, or- . said to be partnership property ?

Third. Was Edna C. Buffingtonj the widow oí A. J. Buffington, entitled to dower in the $700, the proceeds of the ;sale of certain lands owned by said Buffington, and of which he died seized ?

Fourth. Was the administratrix of the estate of A. J. Buffington entitled to commissions on the administration of said estate, if she had misapplied the effects of the same ?

As to whether attorney’s fees are legitimate costs of administration, Sections 194-5-6, Chap. 4, Gould’s Digest, say: “Where it shall become necessary, in the opinion of the Probate Court, for any executor or administrator to employ am attorney to prosecute any suit brought by or against such-, executor or administrator, the attorney so employed shall re- - eeive as a compensation for his services eight per centum, etc.”

“ The same compensation may be allowed for defending-suits when, in the opinion of the court, the employment of an-attorney may be indispensably necessary to do justice to the-estate.”

“Such attorney's fees shall be paid as expenses of administration; but no attorney’s fees shall be allowed any executor- or administrator unless for the prosecuting or defending a suit under, the direction of the court.”

Thus it will be seen, attorneys may be employed to prosecute or defend suits brought by or against executors and administrators, but no allowance of fees shall be made, unless-for the prosecuting and defending suits under the direction of the court. The record, in the case before us, does not disclose what amount of attorney’s fees were asked to be-allowed, or for what the services were rendered, or that they-were ordered or sanctioned by the Probate Court. But, on the contrary, the record shows that the prayer of the petitioner in the Probate Court was, “ that Tiner appropriate said $7^00',.. first, to the payment of the legitimate costs of the administration, not including as legitimate costs any charge for attorney’s-fees,” etc., and that said court entered up an order in accordance with the prayer of the petition.

While the record is somewhat vague, yet the conclusion is;, inevitable that the attorney’s fees were not made in obedience-to any sanction of the Probate Court, and no administrator - would have been justified in charging the estate with them.. It is true the Circuit Court should have decided explicitly' upon this point, as well as all others involved in the case yet, not having done so — unless we go upon the general presumption that such was the case, and that presumption is-very strong outside of the opinion of the judge filed in the ease, which is no part of the record — when the decision, if made at all, would have been adverse to the appellant, and not prejudicing any of his rights, cannot be considered as good ground for reversal.

As to the’ question of vendor’s lien, claimed by Christian,■ the court very properly refused to consider it. A vendor’s lien is only an imperfect one, recognizable and cnforcible only in a court of equity. Adams on Equity, sec. 126. The same may be said as to the land sold being partnership property, and held for partnership purposes.

The record does not show that there wore any former debts ■outstanding against the firm of Christian & Buffington, or any other firm of which Buffiirigton had been a partner. The creditors of a firm have a proper tribunal wherein to adjudicate their claims; it cannot be done before the Probate Court. There was nothing to prevent the widow asserting her right to dower by reason of partnership debts. 'Was Edna C. Buffington, the widow of A. I. Buffington, entitled to dower in the $700, the proceeds of sale of certain lands owned by said Buffington, and of which he died seized? We think not.

In the case of Hill's admr's. vs. Mitchell et al., 5 Ark., 608, the court say: “The widow lias dower for life of one-third of the real estate owned by her husband at any time during coverture, whether unsold at his death, or sold or alienated by him without her consent in legal form; and also for life, of one-third of all slaves possessed by him at his death absolutely. * * * * Her dower in each is carved out of the specific estate of which he was possessed; and if she has been deprived of it, she can follow it wherever it may be .found, and subject it to her lieu, unless by her own laches she has abandoned or waived her right. But she has no dower in the choses in action of the husband, though she has in his money or cash in hand.” Again, in the case of James vs. Marmis et al., 18 Ark., 422, the court say, in the language of the statute: “ That the widow is entitled to dower in all personal property (except dioses in action) of which the husband dies seized and possessed, regardless of the solvency of the estate .or demand of creditors.” A different rule as to “dioses in action,” however,'prevails at present, by direct legislative enactment: Act February 21,1859. Had the money been in the hands of the administrator as a part of the effects of the estate of Buffington, at'the time of his death, there could have been no doubt of her right to dower. But it having been created by the sale of land belonging to the estate, after the death of Buffington, the widow must look to the specific estate from which it was derived, viz: the land sold, for her dower right. The appellants, say, “if the administrator had sold personal property without alloting to the widow dower therein, she would have been entitled to' one-third of the proceeds of the sale,” and then ask the question, “why should not the same rule apply in case of lands?” and then say, “there is no reason why it should not.” "We think there is a very great reason why it should not.

Our statutes, and the ruling of this court, have said the widow shall, be endowed absolutely of one-third of all personal estate owned by her husband at his death, and shall only be entitled to dower, during life, of one-third of his real estate. In one case she holds absolutely, in the other,- only a life interest. If the doctrine of the appellants were true, a widow would, only be obliged to have the administrator to convert the' real estate into cash, by order of the court, and assign her one-third of it, and she become the absolute owner of it, thereby .defeating the object-of the law and defrauding heirs, etc.

To the right of the administratrix to commissions, even if she had misapplied the effects of the estate, we have no doubt. Yet it was the duty- of the Probate Court to have reviewed her account current, and rectified all errors of misapplication, etc., and if she had paid one creditor to the exclusion of another, the-court should have made a pro rata distributton according to law. The administratrix was only entitled to credit berself with such sums of money as were lawfully expended in settling such estate, and her commissions as allowed by law. See Sections 120, 122, Chaffer IV, Gould's Digest.

The record and agreed statement of facts, as presented, are so vague and indefinite as to make it very hard to arrive at the exact points upon which either the Probate or Circuit Court ruled, but the final judgment being that the $700, being the money arising from the sale of lands of the estate, should be paid to Christian, “after deducting the legitimate costs of administration,” was not in accordance with law; it should have been that “it should have been applied to the payment of the debts of the estate.” And if all claims had been paid that had been allowed in the various classes, as provided in the statute, except those in the fourth class, those demands should be paid in proportion to their amounts, which apportionments should have been made by the Probate Court, if there had not been enough assets to have paid all.

The judgment of. the court below is reversed, and the cause remanded with instructions to proceed with the case in accordance with law, and not inconsistent with this opinion..


author: Harrison, J.

text:
    CHEEK v. BERRY, as Adm’r, etc.

      Appeals — When taken before adoption of Code. — Where an appeal was taken before adoption of the Code of Practice, the provisions of the Code, in relation to bringing appeals into this court, do not apply; the law in force at the time of granting the appeal will govern.
    APPEAL FROM CRITTENDEN CIRCUIT COURT.
    Hon. J. M. Hanks, Circuit Judge.

      O. P. Lyles, for Appellant.

      U. M. 'lióse, for Appellee.
   Harrison, J.

Tlie appeal in this case was taken at the May term, 1868, of the Circuit Court of Crittenden county, and a recognizance entered into for a stay of execution; but no transcript of the record and proceedings in the court below was filed in this court until the 24th day of January, 1871, and the appellee has filed a motion to dismiss the appeal because the transcript was not filed within the time prescribed by law.

The appeal having been taken before the.adoption of the Code of Civil Practice, its provisions in relation to the manner of bringing appeals into this court, have no application to the case; it must be governed by the law then in force. Sedgwick Statute Law, 188, 202; Couch vs. McKee, 6 Ark., 484.

The law in force, at the time the appeal was taken, required all appeals taken thirty days before the first day of the next term of this court, to be returnable to such term; and those taken loss than thirty days to the second term thereafter, and that the transcript of the record and proceedings should be filed, at least, ten days before the commencement of the term. Section 28, 24, Chapter 134, Gould’s Digest.

This court then did not acquire jurisdiction of the appeal, by the^filing of the transcript, after the time prescribed, and the only order we can make in the case is to direct it to be stricken from the docket. Clay, adm’r. vs. Notrebe, exr’s., 11 Ark., 631.

If tlie appellee wishes to have the benefit of his decree, now suspended by the recognizance, he must produce to us, in pursuance of the statute, a certificate from the clerk of the court below, of the taking of the appeal and giving of the recognizance, and move that it be affirmed.

The motion is overruled.


text:
    BOURLAND et al. v. NIXON.
    Pin a 8 — Pendency of another suit, etc. — Plea of tlie pendency of another suit, ÍH a tribunal haying concurrent jurisdiction, must distinctly ayer that the same parties and the same subject matter are before it, otherwise the plea is demurrable.
    APPEAL EROM FRANKLIN CIRCUIT COURT.
    Hon. William N. Mat, Circuit Judge. .

      Garland § Nash, for Appellants.

      First. Appellee had full and complete remedy by execution', after order of payment and refusal to pay. Gould’s Digest, Chapter 4, Sections'143-47.

      Second. The whole matter was pending in another court, the Chancery, which takes jurisdiction for all purposes, and the court first taking jurisdiction retains it; therefore the sci. fa. should have been dismissed. 5 Ark., 424; 21 Id. 367;, 10 Peters, 400; 25 111., 107; 24 Howard (TI. S.) 450; 3 Wall, 334.

      Third. All the pleas in the court below, not being disposed of, the case must be reversed. 6 Ark., 447; White vs. Reagan, 25 Ark., 622.

      Clark § Williams, for Appellee.

      First. As to the question raised by the 8th plea, whether a note given or a j udgment upon a note given for a negro slave can be recovered. See Jacoioay vs.’Denton, 25 Ark., 625.

      Second. "We submit that all the other pleas are too plainly frivolous and destitute of any shadow of defense, to require notice; and there being no error in the record and proceedings, the judgment should be affirmed. Gould’s Dig., Chap. 4, Sec. '201; Chap. 40, Secs. 27, 28; Dempsey vs. Fenno, 16 Ark., •491. '
   Bennett, J.

Nixon, who had' a claim, proved in due form before the Probate Court, against the estate of John M. Davis, deceased, got an order of payment against the. administrator.. But payment was not made when demanded. An execution was issued against the administrator which was returned ‘“not satisfied.” A sci.fa. then issued against the administrator and his securities, to show cause why they should not be made to pay the claim. •

The securities appeared and filed what purported to be twelve pleas. All except the 2d, 6th, 8th, and 11th, were of so frivolous a character, as to demand no consideration from this or any other court. The 2d plea, that no demand for payment of money was made before execution was issued, was not sustained by the evidence introduced before the court sitting as a jury. The 6th plea, that of payment, was not attempted to be sustained on trial. The 8th, that the consideration of the note, upon which judgment was rendered, was a negro slave, if tru'e, could not avoid the claim, as a negro has been held to be a good consideration for a contract. Jacoway vs. Denton, 25 Ark., 625.

The only plea having even the semblance of merit, was the 11th, stating there was another suit pending for the same subject matter in the Chancery Court.

While we may admit that the court, first obtaining jurisdiction of the cause, should have the right to decide every Issue arising in the progress of'the cause, at the same time it Is confined in its operations to the parties before the court, or who may, if' they wish to, do so, eome before the court ancl have a hearing on the issue so to be decided. But it is not true that a court having obtained jurisdiction of a subject matter of a suit, thereby excludes all other courts from the right to adjudicate the subject matter, when other persons are-parties to it — or upon other matters having a close connection with them before the court. In examining into the exclusive-character of the jurisdiction of such cases, we must have regard to thé nature of the remedies, the character of the relief sought, and the identity of the parties in the different suits. The limitations to this rule, if we may call it one, must be much stronger and must be applicable under many more varying circumstances, when persons, not parties to the first, are prosecuting their own interests in other courts. Buck vs. Colbuth, 3 Wall., 344.

A person pleading the pendency of another suit, in another tribunal having concurrent jurisdiction, must distinctly aver that the same parties and the same subject matter is before it, otherwise the plea would he bad. The plea filed in the cause, now under consideration, did not do this, therefore there was no error in sustaining the demurrer.

No error appearing in the record .or judgment of the court, it is in all things affirmed with costs.


text:
    RECTOR et al. v. DU VAL et al.
    Possessory Title — Determined by weight of evidence. — -Where, under the pleadings, possession of land is the matter in issue, and each party claims the benefit of limitation upon a possessory title, the rights of the parties will- be determined by the evidence.
    APPEAL FROM PULASKI CHANCERY COURT.
    Hon. T. D. W. Yonley, Chancellor.

      Gallagher & Newton and J. M. Smith, for Appellants.
    That the deed from Field to-Rapley, and mortgage from Rapley to the Bank was not intended, and did not pass the title out of Field — and for construction of these deeds. See Guthrie vs. Field, 21 Ark. Rep., 385, and Trapnall et al. vs. Benton et al., 24 Ark., 389, and this last case is applicable to the present one throughout. That possession gave Field title, and limitation would bar Rapley and his heirs as to deed of 1837. See Hinton vs. Fox, 3 Litt.-, 380; Hanie vs. Hall, 5 Hemp., 290; 6 J. J. Marsh, 536; Hide vs. Hide, 1 B. Mon., 177; Trapnall et al. vs. Benton et al., 24 Ark., 384, et seq. That the recitals in the mortgage deed concluded Rapley and all claiming under him, and that he is estopped thereby. See Sayles vs. Smith, 12 Wend., 58; 12 Rl. R., 357; Bush vs. Marshall, 6 Hump., 284; Jerry vs. Bank of Orleans, 9 Page C. R., 649. That the deed of 1837 was not to Rapley in trust. See Clogett vs. Hall, 9 Gill J., 80; Dickerson vs. Dickerson, 2 Minn., 279; Steen vs. Steen, 5 John. Ch. cases, and Gould’s Dig., Statute of Frauds, Sec. 12.
    2d. That the Borden deed did not affect the lands in controversy, is defective and void, and the onus of showing regularity is on the party claiming thereunder. See Lafferty vs. Cowen, 3 Sneed, (Tenn.) 221-231; Hobart vs. Frisbee, 5 Cowen, 592; 'Clemens vs. Runnells, 34 Miss., 579.
    That the court of equity, in this case, on bill for partition and general relief, or even for partition alone, has full power to settle the rights of all the parties. See Trapnall et al. vs. Benton 'et al., 24 Ark., 401; Ashley et al. -vs. Rector et al., 20 Ark., 359 ; Blakeny et al. vs. Ferguson et al., 20 Ark., 547; Drennen, Adrrir, et al. vs. Walker et al., 21 Ark., 539.

      JJ. M. Rose and Clark $ Williams, for Appellees.
    Though the recital of consideration in a deed may be explained by parol testimony, yet this cannot be done for the purpose of defeating the conveyance'. Vaugine 'vs. Taylor, 18 Ark., 65. , •
    And no parol condition, reservation or defeasance can be proved to defeat the grant. Rogers vs. Sebastian County, 21 Ark., 440.
    As to possession by Field after conveyance, unless the possession was clearly show.n to be hostile, he would be held to occupy in right of his vendee, and the statute of limitation would not run. Jackson vs. Thomas,*16 J. R., 292; Floyd vs. Mintsey, 7 Rich, 181.
    As to cutting of wood on the land, the possession of the father was the possession of the son,'and cannot be disturbed ■so that it shall enure to himself. Danley vs. Rector, 10 Ark., 211; Dodd vs. MeCraw, 8 Id., 83; Prater vs. Frazier, 11 Id., 249; Rector vs. Danley, 14 Id., 304.
    To defeat the deed of 1837, it ás shown that Field after-wards mortgaged the same lands with much other property, real and personal, to Rapley and Johnson, and Rapley.and Rector. But this proves nothing, since the acceptance of these mortgages would not divest the title of Rapley as by estoppel. This is well settled. Harding vs. Springer, 2 Shipley 407; Ham vs. Ham, Id., 351; Housatonic Bank v. Martin, 1 Mete. (Mass.) 294; Parker vs. Locks and Canals, 3 Id. 91. A grantee may show that his grantor had no title. That is done every day. Gaunt vs. Wainman, 3 Bing., N. C. 69; Small vs. Proctor, 15 Mass., 499; Averillvs. Wilson, 4 Barb. 10; Sparrow vs. Kingman, 1 N. Y., 242; Gardner vs. Green, 5 R. 1.104. If the mistake in the deed of Borden was mutual, the deed was not void. Hill vs. Bush, 19 Ark., 522; Bf/ers vs. Fowler, 14 Id. .86; but if void, it would still bo admissible to explain the bolding, and make good a title by limitation. Gofer vs.. Brooks, 20 Ark., 542. Any claim by Field was clearly barred by Sections 1, 2 and 5, Chapter 10(1, Gould's Digest.

   Gregg, J.

The minor heirs of Jane E. Rector, by their guardian, Henry M. Rector, brought their bill of complaint, in the Pulaski Chancery Court, against DuVal and wife, and others, who, with themselves, are alleged to be'heirs at law of William Field, deceased, and prayed a decree settling the rights of the parties, and for partition of the north part of the east half of the south east quarter of section ten, and the north part of the south-west fractional quarter of section eleven, in township one north, of-range twelve west, and certain lots in the city of Little Rock, of which, it is alleged, Field died seized and possessed.

The complainants do. not set out the title of Field. The defendants admit the ownership of the city lots, as charged in the bill, and that, in 1837, Field was seized in fee of the lands described; but they charge that on the 25th of August, of that year, he and his.wife Mildred, by deed absolute, conveyed said lands to Charles Rapley, who. took possession of the same, and that, thereafter, they remained in his possession until 1848, when they were levied upon' and sold to satisfy certain judgments and executions against said Field and Rapley; that, upon such sale, the lands were bought in by F. W. Trapnall, and at his written request, by Borden, the sheriff, deeded to said Rapley, in trust for the use of Ann B.. Rapley (trustee’s wife), DuVal and wife, in right of-the wife, and Ben. Johnson Field, with power in the trustee to make division; and that pai-tition was agreed, upon and made by said Rapley, DuVal and William Field, the father of Ben. J. Field, who was then a'minor living with his father., and that from the year 1848, the said trustee and beneficiaries held and controlcd said lands; that, by a clerical misprision, said lands were misdescribed in said trust deed; that William Field had control of and cut wood on his minor son’s share up to within a few years of his death, which took place in 18(31.

The complainants admitted the execution, in due form, of the deed-of August 25,1837; but they alleged that that deed was made without consideration, other than as security for Kapley to mortgage the lands to the Keal Estate Bank,upon which he could borrow money, and that the title and possession were to be and remain in Maj, Wm. Field for all purposes, except so far as the same might be affected by such mortgage ; that said Field did remain in possession thereof, (except about twenty or thirty acres, alleged to have been afterwards sold to Kap-lcy), and that in 1843 and 1844, Field mortgaged the same, and did other acts of ownership up to or near the time of his death, and that complainants knew nothing of said sheriff’s deed until since the war.

The substance of the proof was to the following effect:

Brown testified that he knew the land; heard it stated in the family that Maj. Field had given some of that land to-Ann B. Kapley, some to Ben. J. Field, and some to .Judith Ellen DuVal; that Mrs. Kapley and her husband were in possession of their part in 1841, but the other was, 'at that time, in Maj. William Field’s possession; he claimed it and cut wood off of it; afterwards, DuVal got wood off of part of it; none of it was ever fenced except part of Kapley’s, etc.

Danley says that in 1848, and since, he saw William Field’s slaves getting wood on the lands.

Scott testified .lie had resided here twenty-nine years; -was formerly a slave of William Field ;’ that he knew when the defendant, DuVal, was married; that Field claimed that land, and that about a year after DuVal’s marriage,-ho and Wm.. Field, and his son Ben. Johnson Field, went on the land and measured off some on the south side for Mrs. Kapley, and then divided the balance of the land by running a lino north and south, through the.center of the tract, and DuVal got the north-west part of the tract, and Ben. J. Field the northeast part, and Mrs. Rapley the south part; that, after that time, DuVal had possession and got wood off of his part, and Map Field got wood, up to 1860, off of Ben. J. Field’s part; Ben. was then a minor living with his father. The witness and Ben. J. Field run the same lines over again in 1861; there were no improvements only on Raplcy’s part, etc. •

James Martin testified that ho was the administrator of Charles Raplcy’s estate ; he is a surveyor, he knew the lands, gave a description of them, etc.

Ilenry M. Rector testified that he was son-in-law of Maj. Field, and knew the lands in 1838, and that Field then owned them. lie was often over the lands with Maj. Field, up to 1858; that about 1837 Field gave or sold Rapley some lands in the bottom adjoining these, and he thinks about eight or ten years subsequently, Rapley wanted to build, and he understood from the parties, Field sold Rapley some off of the south end of the tracts herein described, which was thereafter in Rapley’s possession up to 1863 ; that he always understood the lands to be in Maj. Field’s possession. But it was often spoken in the family that he designed to give some portion of thesedands to DuVal and wife, a portion to Ben Field and a portion to Mrs. Rapley, but witness never knew what portion, when or how it was to be given. That DuVal frequently said a portion of it was his; Ben Field and Mrs. Rapley also claimed a portion. That Maj. Field always spoke of these lands as his, and he saw Field’s hands getting wood east of the center of ffche tract. Rector further stated, with some detail, the real and personal property by Field given to his different children, and showed that the complainants and their mother had received less than some others; that the estate of Field, at the date of his death, was not worth very many thousand dollars and that, in his opinion, the lands in controversy, in 1848, were worth from five to seven thousand dollars, and .that now they are worth from twenty-five to thirty thousand dollars.

Ben. T. DuVal testified that Rapley lived on his lands as early as 1842; that he did not positively know who had the ■other lands in possession up to 1848, hut that soon after the making of the deed from Borden, as sheriff’, the south part was by Rapley, Maj. Field and witness, set apart to Mrs. Rapley; the north-west part to witness and wife, and the north-east part to Ben. J. Field. No measurement was then made, and no one, to his knowledge, made any claim or exercised any acts of ownership over it from 1851 to 1865. That he had wood cut off of his part, and all that time paid taxes, intended for, and to go on that land, and that Maj. Field paid no taxes thereon after 1848, but there was a mistake in the ■description on the tax books, as on the Borden deed, until 1862; that after 1848, Maj. Field exorcised no acts of owner.-ship over the north:west part, claimed by DuVal; that he won't with DuVal on the land and pointed out a site for him to build when he had spoken of building, and also pointed out where the line -would run, dividing Ben. Field’s lands from DuVal’s; that Maj. Field and Rapley both considered that these same lands wore conveyed in trust by the Borden •deed, and that in 1862, Rapley, as such trustee, conveyed to DuVal and wife the part claimed by them, and that all Du-Val’s claim and acts of ownership -were under the Borden ■deed of trust and the agreement made in 1848, made between those then interested, in accordance with, what was understood to be the Borden deed; that so long as the Major was able to ■do any business, Bon. J. Field was a minor, living with him, and the Major had control of his lands.

Ben. J. Field testifies that he lived with his father; that after 1848, the father forbid his hands cutting wood on the lands claimed by DuVal, said that belonged to DuVal, etc., .and in 1863, Rapley offered to deed witness his part, and said he held his lands in trust, etc.; none of the lands were improved, only a part of Rapley’s.

Thomas C. Reek testified that in 1861, Rapley pointed out his north-west corner and said he wanted to give yitness’ wife, who was Raploy’s daughter, some land.near there ; this was on the south and joining what, in the families of Field and. Rapley, was known as DuVal’s land, etc.

Mrs. Aim P>. Rapley testified that she was the. daughter of 'William Field, who died in November 1861. Upon marriage,, her father set apart to each daughter a portion of land and a slave, or the value of one, and in 1847, when her sister Ellen, married DuVal, the lands herein claimed were intended to he divided; twenty acres, near the Rapley house, to he witness’ and the remainder to be equally divided between her brother Den. and sister Ellen, after witness’ share was taken off; the west half was to be Ellen’s, and the east half Ren’s. After' the division of the lands, lier father exercised no control over them, only to haul wood off of Ren’s and some off of hers, and during that time Ren was a minor, and lived with the father,., and was under his control; that she heard the father one time-suggest to Ellen that she had better .use her wagon, team and-servant to haul wood off of her lands, if for no other purposeth an to get pocket money, and when Mr. Allis wanted a right of way for a plank road across that land, he referred him to Mr.. DuVal as the owner.

Mr. Rapley held these lands in trust for the parties named,, and after we were separated in the war, he expressed regret that the deeds had not been made to them respectively. lie was then in bad health and wished the matter settled,, aud after we removed to Camden, he and wife made a deed to- DuVal, and she understood that deed to convey the west half of the land referred to, as liaving been designated for him and Ellen. The ownership of these lands was frequently discussed in the family of Maj. Field, and was never controverted; never heard of any objection until at Camden. Air. Rapley said Governor Rector would object, but that he would carry out the trust; that her father’s agreement for this division was after DuVal’s marriage, and that witness’ twenty acres were set apart some time after that. That she does npt know of any survey being made when the lands were divided between, herself, brother Ben, and sister Ellen; she was never present at any survey, but she walked over the lines dividing and bounding the different tracts with the father many times.

Upon this proof, the court found that William Field did not die seized of the lands in controversy; that there was •therefore no equity in the original bill and decreed the same be dismissed and the complainants pay costs, from which .the complainants appealed to this court.

William Field’s title to the lands in controversy and his-conveyance of them to Bapley in 1837, is not questioned; and from the evidence, there seems to be but little doubt, for ■sometime after this, Field was assuming to own and control ■most of those lands, at least such of them as were not in .Bapley’s possession.

The deed made by Borden, as sheriff, in 1848, to Bapley as •trustee, seems not to be'controverted, only by the complainants, through their guardian denying any knowledge of it; but as the lands in controversy are not properly described •therein, the.burden is thrown upon the defendants, if necessary for them to maintain title under that deed.

The possession of the land i's a matter in issue under the •pleadings, and each party claims the benefit of limitation upon a possessory title.

It being admitted that Major William Field, in 1837, was •seized and possessed of all these lands, it is then shown by •deed that ho conveyed them to Charles Bapley; here ends the possession ■ by deed. With this proof alone the complainants could not hope to recover, but to sustain their case Nhey enter upon a wider field, and attempt to show, by parol, that Major Field executed that deed'as a security merely, and that he continued the owner and in possession of the land. They show that Bapley mortgaged the land, and produced •unwritten proof that conduced to show that Field held possession of the lands. But the ground of establishing title by parol evidence was readily occupied by the defendants, and ’¡while the complainants proved by some -witnesses that Field claimed the lands and cut wood thereon, they showed that the-lands were principally uninclosed and wild, and that so much as was inclosed was held adversely by Rapley, and the defendants proved by a greater number of witnesses, and by those most intimate with Major Field and family that, subsequent to 1848, he did not claim the lands as his own, and to say the least of the evidence, it tended to show that by his connivance and consent, if not procurement, these lands were-deeded to Rapley in trust for his wife, DuVal and Ben Field, with a mistake in description. Leaving this deed out off view, if it was competent for the plaintiffs to si ow seizen in Field by parol, it was equally competent for the defendants-to rebut that showing by like proof, which they certainly did.

To show that the title was not in Rapley, under the deed of 1837, the plaintiffs refer to the fact that though the executions, under which the sale and deed of 1848 were made, were,, in part, against both'Rapley and Field, that deed only transferred Field’s interest in the lands. If this is worth anything-as an argument, it proves too much, because the deed of 1848 does not convey the- lands, as described in the deed from Field to Rapley, or in this suit, and if the plaintiffs admit .that it was a conveyance of the same land, but a mistake in description, that at once defeats 'their claim.

Rapley’s long possession is conceded; but if ho took no title-under the deed of 1837, under the plaintiffs’ assumption Rapley had no title under the deed of 1848. Then as to those lands not in actual possession, he only claimed them, cut wood, etc., and the'proof showed as much on DuVal’s claim, and iff this give title to Rapley by adverse holding and limitation, if just as effectually secured DuVal in the part he claimed. What is admitted for the one is proved for the other.

Now, if it be conceded that the defendants did not sufficiently show a levy, sale and conveyance of these lands in 1848, there is still no written evidence of title in William Field, and the weight of parol evidence is certainly against seizen in him, at the time of his death.

And the complainants cannot ask to admit unwritten evidence to defeat the conveyance made by Field, without also admitting like evidence to defeat a subsequent title claimed to be in him, and the weight of such evidence herein is easily seen.

.Brown, Scott, Ben. Field, DuVal and Mrs. Rapley, all testify that it ivas known and understood in the family, that these lands, in 1848, passed to Rapley, DuVal and Ben. Field; that Rapley and DuVal exercised certain acts of 'possession and ownership over their respective shares, and while Major Field obtained firewood off some of the lands, there is no act of his shown inconsistent with the claim of his mjnor son, Ben., and Governor Rector seems to be tlio only near relation of Major Field’s family who did not know of the division of the tract between the parties claiming, and the parties who did claim title; yet he knew that DuVal claimed some land, and that it was often talked of in the family that the three were to have some portions of the lands, but he was not advised that the lands had been given, marked out or conveyed.

It has been more than twenty years, as testified to, since DuVal assumed ownership and paid taxes for his share. The testimony of the family, and. the servants of the family, is strong to show that Major Field, for some reason, (and wc must suppose it was one satisfactory to himself) attempted to have the title of those lands settled in the defendants, as members of his family, and, it is sufficient to say, that the proof of title in them is much more conclusive than that going to show title in Major Field at the time of his death.

We, therefore, find no error in the decree of the Chancery Court, and the same is in all tilings affirmed.


author: Searle, J.

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    SMITH v. CHILDRESS.

      ^Evidencio — .Discretion of court in admission of. — Whether or not to permit the recall of a witness, and what length after his first examination, and whether testimony is cumulative or not, are matters within the sound discretion of the court, and this court will not interfere with the exercise of that discretion, unless its oxcrciso has been clearly to the prejudice of the party.
    Parol Testimony — When admissible.- — -Parol testimony is admissible to show for what purpose, as for collection, a note was assigned, hut not to vary the effect of the assignment.

      Instructions — When presumption in favor of. — Where an instruction has boon asked and refused, and the record states the instruction was given in a modified form, hut how modified is not sot forth, it will bo presumed that as modified it embodied the law.
    APPEAL PROM, IN DEPENDEN CE CIRCUIT COURT.
    Hon. Elisha Baxter, Circuit Judge.

      U. M. Hose, for Appellant. .
    The first instruction asked for by the plaintiff ivas precisely the law (sec Tr., ¶. 60), and should have been given. Dickinson vs-Burr, 15 Ark.., 372; Taylor vs. (Joolidge, 17 Id., 457.
    yl. 11. Garland, for Appellee.

      First. The matter of permitting a witness to be' recalled is within the sound discretion of the court, and will not be interfered with unless it clearly appears that discretion was abused. 1 Greenlf. Fv., 467, 21 Ark., 559.

      Second. The whole case was one of fact for the jury, and being tAviee disposed of against the appellants, and on an instruction given by the court, this court will not disturb that finding'. Bose Dig.,p. 559 {new* Trial), sec. 45,18 Ark., 298; lb., 396; lb., 45319 Id., 117; lb., 559 ; 21 Id., 306.
   Searle, J.

Henry C. Smith brought his action before a justice of the peace, in tlic county of Independence, against Robert A. Childress, on a note given by the latter to CarraThe ¿Logan and ITcndsen, and by them assigned to Smith. fendant pleaded a set-off, and judgment was rendered in Ids favor for $17 33, from which the plaintiff appealed to the Independence Circuit Court. The cause was tried de novo in, said Circuit Court, and judgment again rendered for defend-, ant. The plaintiff asked for a new trial, which was refused, upon which he appealed to this court.

1st. It is alleged, as the first ground upon which the motion for a new trial is based, that the court erred in refusing to permit the plaintiff, who had once been examined and cross-examined in the case, to be re-called for the purpose of a re-examination. It may be laid down as a general rule, that it rests in the discretion of the court before whom a trial is had, whether or not to permit the re-examination of a witness after the lapse of some time since his former or first examination, or after other witnesses have been examined, and this court will no.t interfere with the exercise of such discretion, unless its exercise has been- clearly to the prejudice of the opposite party. People vs. Mather, 4 Wend., 229; Burr & Co. vs. Daugherty, 21 Ark., 561. What the witness proposed to testify to, in his re-examination, is set forth in the second. A careful examination thereof, in relation to the issues being tried, convinces us that it was quite immaterial. ' Its refusal, therefore, was not in prejudice of tlie plaintiff’s rights, and was no sufficient ground for a new trial.

2d. It is set forth, as the second ground of the motion for a new trial, that the court erred in 'refusing to permit a witness-other than the plaintiff, to testify to certain facts which the plaintiff himself had testified to.

It appears that, upon the note sued on, a written assignment had been endorsed in words and figures as follows: “For value received, I assign the within note to W. P. Byers. — II. C. Smith.” And that this endorsement had been erased, or an attempt had been made to erase it. The plaintiff had testified, on the trial, that ho assigned and delivered the note to Byers without a consideration and for the purpose of collection, merely; that he was, during all the time the note was in the possession of.Byers, tlie beneficial owner thereof; that Byers, failing to make the collection thereupon, returned it to him, and'that he (plaintiff) made the erasure of the endorsement. Now the plaintiff proposed to introduce another witness to testify to the same facts. Upon the objection of the defendant, the court refused to permit this further testimony.

~We cannot presume that this refusal was upon the ground that the testimony was inadmissible, for the testimony of the plaintiff, relating to the same facts, had been received. If the refusal was upon the ground of inadmissibility, the court erred, for, these facts, or testimony in relation thereto was admissible, not to vary the effect of the assignment, but as testimony to prove that the plaintiff' had neyer parted with his beneficial interest in the note, by the assignment, and his right to sue thereupon, when the note came back to his possession. The refusal to permit the witness to' testify to these facts, more likely, was upon the ground that such testimony was mere cumulative and therefore unnecessary. Now, though great latitude is allowed to the discretion of courts trying-cases, in the introduction and examination of witnesses, yet the exercise of their discretion should never be to the prejudice of the parties. This clearly appearing, the court will interfere with and correct-it. If the further testimony, offered were merely cumulative and nothing more, the court might not have improperly exercised its discretion in refusing it. But it must be observed that the plaintiff alone had testified to these facts, and being a party in interest, his evidence could not have that weight with a jury that the evidence of a disinterested witness would have. The further testimony offered, as to the same facts, though cumulative in character, was not only proper; but may have, been quite necessary to corroborate what the plaintiff had testified to. Its rejection, therefore, was quite cleai’ly prejudicial to tb e plaintiff’s rights, was erroneous, and sufficient ground for a new trial.

3d. The third ground, of the motion for a new trial, is the refusal of the court to give the instruction to the jury asked by the plaintiff. The instruction asked to be given is as follows : “ If the jury find from the evidence that the plaintiff, before the commencement of this suit, assigned and delivered the writing obligatory sued upon to "William P. Byers, his agent, for the purpose of collection, and that afterwards, and before the commencement of this suit, the said William P. Byers re-delivered the said writing obligatory to tlie plaintiff] in such ease, the plaintiff could sue in his own name] striking out the endorsement, or showing that the endorsement was merely for collection.” This instruction ivas undoubtedly the law and should have been given. Dickinson vs. Burr, 15 Ark., 374; Taylor vs. Cooliclge, Id. 437. Tlie record states that the instruction was given in a modified form. But how modified is not set forth. It must bo presumed that, as modified, it embodied the law; and the exception taken to the refusal of the court to give it in its original form, can be of no avail to the plaintiff here.

4th. The court, upon its own motion, gave the following instruction: “ If the jury find, from the evidence, that the note sued on was assigned to William P. Byers or any other person, by the plaintiff] you will find for the defendant, unless you also find from the evidence that such assignment was made merely for the purpose of collection. A written assignment, when found to be ambiguous or uncertain, may be explained by parol evidence, but it cannot be changed or varied. The erasure of an assignment does not change the legal effect thereof.” To the giving of this the plaintiff excepted and made it the last ground of his motion for a new tidal. This instruction is, indeed, obscure and ambiguous, and was well calculated to mystify the minds of the jury and mislead them. Taking the whole together, we ourselves are unable to glean any certain meaning from it. The effect of it may have been to cause the jury to exclude from their consideration the note sued upon altogether. The giving of it, therefore, was clearly erroneous.

For the errors indicated, the judgment of the court below is reversed and the cause remanded with instructions to try the same anew and in a manner not inconsistent with this opinion.


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    WITHERSPOON & GILLIAM v. NICKELS, Sheriff, etc.
    A. owned a steam saw mill on the land of B. After assessment to A. for taxes, A. sold the mill to O. On bill by C. to enjoin the collection of the tax, on the ground that the mill was a fixture and assessed with the land — Held, That the mill was not a fixture, but if assessed with the land, and riot as the personal property of A., the plaintiff’s remedy, for any injury he might suffer from the sale, was in law and not by injunction.
    APPEAL PROM HOT .SPRING CIRCUIT GOURT.
    IIon. John Whytock, Circuit Judge.

      J. L. Witherspoon, for Appellants.

      First. This is not an excessive valuation, which could be corrected by the board of equalization; but even if the board had the power, this court would interfere to prevent “an irreparable injury.” Section 294 of Code. A sale for taxes, illegally assessed, will be restrained by injunction. Burnett vs. Cincinnati, 3 Ohio R., 78.

      Second. That it was the intention of the Legislature to make mills taxable, and sold as real, property. See Revenue Act of 1869, Sections 2, 61,118, 119, from which it appears the assessment was illegal and erroneous.

      A. II Q-arland, for Appellee.

      First. The general proposition is beyond question that 'the collection of taxes cannot be enjoined. 23 Arle., 138; 6 Pickering, 98; 3 Mass. 309; 6 Id. 44; 11 Id., 365; 4 Johnson’s Ch’y,
      354; 6 Id., 28; 4 Barb. (Sup. Ct.) 9; 9 Paige, 378; 26 Wendell, 130. If the court interferes at all, it will only bo to prevent a multiplicity of suits, but not whore one party sues alone for liis own taxes, and that too, when he has had his day, in court, to correct the assessment. 18 Ark., 380; 28 Ark., Sup.; 23 TFis., 549; 27 Georyla, 354.

      Second. The mill here alluded to is not real estate, it is no part of the realty; it. ivas not a fixture, and therefore it was taxable independently of the land on which it was situated. llensly vs. Brodie, 16 Ark., 511, and eases cited; Hull rs. Alexander, 26 Iowa, 569.
   Harrison, J.

The appellants sought to enjoin the appellee, who was sheriff and ex-qfficio collector of taxes of Hot Spring-county, from selling a steam saw and grist mill, levied on for the taxes for the year 1870.

The mill was situated upon the land of Yalentine .Brown, and was attached to the soil, but it belonged, when the assessment was'made, to Charles Trickett, from whom the appellants "afterwards purchased it, and was afterwards assessed as his personal property. The appellants claimed that the milt was a fixture, and as such, its value was included in the assessment of the land. Though a structure such as this, apparently possesses the stability and permanency pertaining to real estate, it is not necessarily a fixture, and part of the realty;- for as the court remarked in Fuller vs. Taylor, 39 Maine, 522, “there can be no doubt that one m ay own a building-standing on the land of another, with his consent;” and in that case, it was'decided that a dwelling house erected on the land of another, with the previous knowledge and consent of the owner of the land, remains the personal property of the builder. And in Ashmem vs. Williams, 8 Pick, 402, it was held that a town house, erected on land of the town, under a contract with the builder, that the town should occupy pai-t of it at a certain rent, and should have the right to purchase the house at an appraised value, was the personal property of the builder. Curtis vs. Hoyt, 19 Conn, 154; Russell vs. Richards, 10 Maine, 429; Hilburne vs. Brown, 12 Id., 162; Hensly vs. Brodie, 16 Ark., 511; Hill on Fixtures 18; Green. Cruise’s Digest, 43.

The appellants’ assumption that the mill was a fixture, is, inconsistent with and repugnant to their ownership of it. If a fixture, it necessarily belonged to the owner of the land, as a part of it; and it may be laid down as a self-evident proposition, admitting of no exception, that the title to the land cannot be in one person, and that to the fixture in another.

But if the mill had been assessed with the land, and not as the personal property of Trickett, and no taxes were due upon it, a * court of law would afford the appellants an adequate remedy for any injury they might suffer by the sale of it, and equity has no authority to interfere, by injunction, to prevent it. , t

Decree affirmed.


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    HERNDON v. GOFF et al.
    Forcible Entry and Detainer. — Under Section 497 of the Code of Practice on traverse of the verdict of a jury, on appeal to the Circuit Court — Held, That the jury in their verdict could not pass upon the question of misjoinder of parties or upon the constitutionality of the law.
    APPEAL PROM ARKANSAS CIRCUIT COURT.'
    IIon. Henry B. Morse, Circuit Judge.

      A. H. Garland, for Appellant.

      Bindalls, for Appellees.
   Gregg, J.

This is a suit of forcible entry and detainer, brought, by the appellees against the appellant, before a justice-of the peace under Section 497 of the Civil Code of Practice.

The appellants plead the general issue, a trial was had before a jury, a verdict and judgment rendered in favor of the appellees.

The finding was traversed, and an appeal taken to the Circuit Court, wherein another jury trial was had with like result. The appellant then moved for a new trial, which motion was overruled; he filed his bill of exceptions and appealed to this court.

Two grounds -were assigned for a new trial':

First. That the jury found for the plaintiffs contrary to the law and the evidence.

Second. That the court erred in refusing instructions asked for by the defendant.

The evidence was sufiicient to sustain the verdict.

The first instruction asked by the defendant was: “If the jury believe -from the evidence that there are improper parties to this suit they will find for the defendant.”

His fourth instruction was, that “ An action of forcible entry and detainer can in no sense of the word be matter of contract, and any law giving magistrates jurisdiction of said action, is unconstitutional and void, and if the jury find from the evidence that this suit was brought before a justice of the peace, they will find for the defendant.”

Ilis sixth instruction -was, that “ The pro of" must correspond with the allegations made in the complaint, and if the jury believe from the evidence that the relationship of landlord and tenant does not exist between the plaintiffs or any one of said plaintiffs and the defendant, they will find for the defendant.”

All other instructions asked for by defendant were given, and we are of opinion that the court did not err in refusing the three above quoted.

Whether or not the parties to the suit were misjoined, was not a fact to be found by the jury upon the issue before them. And if there was some improper party plaiphiff, as the appellant seemed to urge by his sixth instruction, it should have been determined at a different time and in a different manner, and not by a response from the jury upon the traverse before them.

If the appellant had desired to test the constitutionality of the law, ho should have plead to the jurisdiction of the court or moved in arrest of its judgment.

These being the only grounds assigned for a new trial, the court did not err in overruling the motion.


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    LEE v. BLACK et al.
    Appbals— When no final judgment, etc. — "Whore the record shows no Anal judgment or decree, in the court below, the appeal will be dismissed.
    APPEAL PROM INDEPENDENCE CIRCUIT'COURT.
    Hon. Elisha Baxter, Circuit Judge.

      Montgomenj Warwick a tul Whipple, for Appellant.U. M. Hose, for Appellees.
   Harrison, J.

This was an action of trespass, for assault and battery and false imprisonment, by James Lee against Thomas Black, Jesse Hinkle, George W. Gray, Roland Landers, Rutledge Smith, Joseph Walker, Bailey Brooks, Nicholas Mosicr, Elisha Arnold and Hartwell Walker. ' All the defendants, except Elisha Arnold and Hartwell Walker, appeared and pleaded jointly the general issue., and also the statute of limitations. .

The plaintiff filed three replications to the latter plea, to each of which a demurrer was sustained, and judgment was; rendered thereon against him. The plaintiff then took an interlocutory judgment, by default, against Elisha Arnold and Hartwell Walker, with an order for an inquiry of damages at the next term, and at the same term (November term, 1867) appealed to this court.

The appeal was prematurely taken; there was no final judgment to appeal from. Sec. 80, Ch. 133, Gould’s Digest, says: “ Where there are several defendants in a suit, and some of them appear and plead, and others make default, the cause may proceed against the others, but'only one final judgment shall be given in the action.” See Bailey vs. Ralph, 4 Ark., 591; Bevins vs. McElroy, 11 Id., 23. As no appeal will lie to this court except from a final judgment or decree, the appeal must be dismissed.


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    TURNER v. THE STATE.

      Suits — Cannot be brought against the State. — Under Sec. 45, Art. V, State Cons’i, before suits can. be brought against the State, the General Assembly must direct by law in what manner and in what courts suit may be brought.
    APPEAL EROM PULASKI CIRCUIT COURT.
    Hon. John Whytock, Circuit Judge.

      E. W. & D. Gantt, for Appellant.

      Montgomery, Attorney General, for Appellee.
   Searle, J.

Benton Turner broúght his action against the State of Arkansas, in the Pulaski Circuit Court, for services rendered as detective, etc., in the employ of Powell Clayton, as Governor of the State of Arkansas.

The defendant demurred to the complaint; the demurrer was sustained'and the plaintiff appealed to this court.

It is entirely unnecessary for us to notice tlie questions raised by tlie demurrer, among which the chief one is, as to whether the plaintiff could recover against the State for such services as he alleges in his complaint, as we are of opinion that the court below had no jurisdiction to try the case.

It is provided, in the Constitution of the State, that, “ The General Assembly shall direct by law, in what manner and in what courts suits may bo brought by and against the State;” See Sec. 45, Art. V, Constitution. Comment upon this section is unnecessary to show that before suits can be brought against the State, the General Assembly must first provide by law the manner and the courts for bringing of the same. To meet the requirements of this provision,-'the General Assembly of 1869, attempted to enact into law the chapter of the so-called “ chapters of the Digest,” entitled “ How suits may -be brought against the State.” This chapter, together with many others of the so-called “ chapters of the Digest,” was declared by this court to be invalid, the same not having been passed in accordance with those rules and solemnities required by the law and the Constitution of the State ; See Vinsant vs. Knox, decided at the-present term.

This action, having been brought under this chapter, was improperly brought, gave the court no jurisdiction and should have been dismissed. '

The cause is remanded to the court below with instructions there to dismiss the same for the want of jurisdiction.


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    RUSSELL v. UMPHLET.

      Administrator — Ad litem — Not bound by decree. — An administrator ad litem, not being obligated by bond or affidavit, is without authority of law to bind any one in interest, and no decree can be properly made against him.

      Dower — Mode of relinquishment. — To relinquish the wife’s dower, the conveyance must bo of her own free will; she must understand the nature and effect of the deed, and in the absence of her husband, openly confess to an officer authorized by, law to take the acknowledgement, that the conveyance is without undue influence and for the purposes specified.
    APPEAL FROM CONWAY CIRCUIT COURT.
    Non. "W". N. May, Circuit Judge.

      T. D. W. Yonlcy, for Appellant. '

      Wassell § Moore, for Appellee.
    The appellee having only a dower interest, the form of the mortgage is defective. There is no relinquishment of doioer ■clause in the mortgage, and the acknowledgement is fatally defective as to appellant. Gould’s Dig., -Ch 37, Sec. 21.
    The mortgage was not entitled to he recorded; See Section 22 ; nor to be offered in evidence; See Sec. 26, Gould’s Dig.

   Gregg, J.

On the 13th of January, 1868, the appellee and Lewis B. TJmphlet, who was then her husband, hut since has died, signed and delivered to Barnes & Brother a deed of •mortgage on block 18, in the town of Lewisburg, to secure the payment of two writings obligatory for $1147 and interest on that sum.

The writings and mortgage were duly transferred by'assignment to the appellant, and ho brought this suit against appellee, Barnes & Brother, and O. Conlee, who is alleged to be in the possession of the premises, for foreclosure, etc.

The bill, after alleging the execution of the obligations and mortgage deed, alleges the death of Lewis B.; that he died without heirs, leaving the appellee, his widow; that in said mortgage deed she did not formally relinquish dower, but virtually and in effect slie did do so, and that she had often admitted such fact; that as such widow, she was exercising ownership over the premises and collecting rents therefrom, and that the amounts so secured was wholly unpaid, and that no administration had been had on Lewis B. Umphlet’s estate.

' The appellee answered that she and her husband signed the deed of mortgage, but that she signed it in the. presence of her husband and only under his coercion and undue influence, and did not relinquish her right of dower or of homestead in the premises, and that she was entitled to hold the same in right of dower and homestead. That the said Lewis B., did die without heirs, and that she is his widow; that he died seized of no other real estate, except the premises in controversy, which she is using as a homestead, and that she has no other homestead; but she makes no response to the charge of renting to O. Conlee.

A general replication was entered to the answer.

The court assumed to appoint W. S. Hanna, an administrator, ad litem; such appointee was obligated, by neither bond or affidavit; he was without authority of law to bind any one in interest, and no decree could properly be made against him, and hence his appointment was, at least, useless.

Barnes & Brother and O. Conlee made default and a decred pro confesso was taken against them.

A witness to the deed, and the justice, who took the acknowledgment, gave their depositions, testifying that they went -to the house of Umphlet; that in the presence of each other Umphlet and wife signed the deed; he acknowledged it, and, while he was still in the room, the justice asked the appellee, “ If she signed the mortgage of her own free will and accord,” and she responded, “ I have signed it.”

In the justice’s certificate of acknowledgment, he states that the appellee and her husband acknowledged that they had executed the deed for the purposes therein mentioned, but does not state that she was examined separate from her husband or that she declared that she had executed the deed, ■of her own free will and without undue influence, or any other words to that effect.

Upon this proof and the pleadings, the court found for the appellant $1463 50 against the administrator ad litem and Barnes & Brother, and that the deed of mortgage created a lien upon the block described, but subject to a right of dower .and homestead in the appellee, and decreed that said sum be paid by a day named, and in default thereof, that said block be sold subject to such homestead and dower rights; that the possession be retained by tlie appellee, and if she abandons ■such possession, that one-lialf of the rents and profits be paid to her as dower.

The decree herein is rendered against Rucien J. Barnes and David TI. Barnes for the $1463 50, when the suit was brought against Rucien J. and Casius M. Barnes, and the record does not show that any process was ever issued against or served upon any one of the Barnes’, nor did eithpr of them ever enter an appearance in that court. It need hardly be stated, that the court below should have obtained jurisdiction of these parties before rendering a decree affecting their interest.

It is well understood that allegations in the bill, which are admitted in the answer, need no proof, and it is equally well settled that where the answer admits facts stated in the bill, and makes other allegations to avoid a recovery, such new matter must be proved by the defendant or admitted by the complainant, to the same extent that the plaintiff must prove original allegations denied by the defendant.

There are several modes in which a man’s lands may be alienated, but that the widow may be protected against the sole acts of an improvident husband, the law prescribes the mode in which a feme covert must convey; such conveyance must be of her own free will; she must understand the nature and effect of the deed, and in the absence of her husband, openly confess to an officer of the law that the conveyance is without undue influence, and for the purposes specified.

Iii tliis case, it appears that the wife ivas neither out of sight or hearing of her husband, and an acknowledgment, even if formally made, while thus exposed to his influence, would not have been binding; but no such acknowledgment is shown by the certificate, and if we take the testimony of the subscribing witness, it is further from appearing; hence, there was-no relinquishment of any of her rights.

As this deed of mortgage ivas executed by Lewis B. Umphlet before the adoption of the present Constitution, her rights must be determined by the law as it then existed, and the facts as they are made to appear to the court.

That Lewis B. Umphlet was her husband; that he owned the premises; that he made the mortgage; that she did not relinquish any of her rights, and that he died without issue, leaving her surviving, appear by admission or proof. But that she is still the widow of Lewis B.; that she is occupying the premises as a homestead, and that she is entitled to dower, or not otherwise endowed, are material facts not alleged in the 'bill and piit in issue by the replication to her answer,, and there is no proof in the record before us to support what seems to be the finding of the court.

If she is in possession and use of the premises as a dwelling house and appurtenances, she is clearly entitled to hold the same until dower is assigned her out of Lewis B. Umphlet’s estate. And if there is no administrator and no heir claiming the estate, who can assent to or make an assignment of dower, one, holding a lien against the real estate, might go-into a court of equity, and upon proper allegations and proofs,, that court would determine the rights of all concerned, and decree accordingly. Story Fq’y. Pleadings, Sections 175, 196; Fitzgerald vs. Beebe, 7 Ark., 319.

The decree is reversed and the cause remanded with directions .to allow the.parties to amend their pleadings, if they desire so to do, and to take testimony and, upon a re-hearing,, to decree according to law and not inconsistent with this opinion.