text:
    Pike et al. vs. Douglass & Co.
    Principals : What acts of, amount to a ratification, eta.

    If one purchase goods for another without authority, and the person for whom they are purchased receive them and use or sell them on his own account, after being informed that they were purchased for him, this is an implied ratification of the act oí the person making the purchase in his name; and if he merely inform the seller that the purchase was unauthorized, this is not sufficient, hut he should restore the goods to the seller or pay for them if he convert them to his own purposes.
    Same : When Haile as pm'tners, etc.

    Where one, without authority, purchases goods for persons about to enter into partnership, and in their name and on their credit as partners, and they receive the goods and dispose of them for their own purposes, after being informed that the goods were so purchased, -whether they be partners, in fact, or not, they are liable as partners, to the seller for the value of the goods.
    Practice: Judgment affirmed though some error appear.

    Where several instructions are given, though there be error in some, yet, if the judgment upon the whole record is right, it will be affirmed.
    APPEAL from Monroe Circuit Court.
    Hon. M. L. Stephenson, Circuit Judge.

      A. H. Garland, for appellant.

      Rose & Green, for appellee.
   English, Sp. J.

Hugh Douglass & Co. sued Pike & Walter, in the Monroe circuit court, on an account for goods, wares and merchandise. The defendants answered severally, denying the indebtedness alleged against them. There was a verdict for the plaintiffs, motion for a new trial overruled, bill of exceptions, and appeal by the defendants.

The grounds of the motion for a new trial were:

1. That the verdict of the jury was not sustained by sufficient evidence.

2. That the verdict was contrary to law.

8. That the court erred in giving the instructions marked two and three asked by the plaintiffs.

4. The court erred in refusing to give the instructions marked two, three and five asked by the defendants.

On the trial the appellees introduced evidence conducing to prove that they were wholesale merchants of Nashville, Tennessee. That about the 80th of September,. 1870, Swape, a merchant of Clarendon, Arkansas, known to appellees to be a reliable man, came to their house in Nashville and represented to them that he was authorized to purchase a bill of goods for Pike & Walker, of Clarendon, and that they were responsible and punctual men. On these representations, appellees sold the goods sued on, amounting to $797,45, on sixty days time, charged them to Pike & Walker, shipped them to them, forwarded bill of lading and invoice made out in their names; and that they received the goods, and disposed of them in a store kept by them at Clarendon.

The testimony of Swape conduces to prove that he was authorized by Pike & Walker to purchase the goods for them.

Pike attempted to prove that he had agreed to take Walker as a partner on condition that he would furnish an amount of goods equal in value to the stock that he, Pike, had on hand, and that the goods were purchased on Walker’s account and not on his; and that, on ascertaining that Swape had purchased the goods in the name of Pike & Walker, he repudiated the purchase and advised appellees of his want of authority.

Walker attempted to shift the liability on to Youngblood, who was. indebted to him, and was to pay him in money or goods.

Taking all the evidence together, it was conflicting; and whilst the liability of Walker was, we think, clearly enough made out, the liability of Pike was not so clearly established. But the jury found a verdict against both of them, and the court below refused to grant a new trial, and if it may be thought that the preponderance of evidence is not in favor of the verdict, there is certainly no want of evidence to sustain it.

The appellees moved the court to give the jury nine instructions— some of which were given and some refused. The appellants moved for six instructions, some cf which were given and others refused. And the court of its own motion, gave four instructions, which -were not objected to on either side.

The second instruction, given at the instance of the appellees, and of which the appellants complain, is as follows: “2. If the jury believe from the evidence that the goods in question were purchased, in the names of the defendants, by a person unauthorized, but, after the purchase, were received by them, and used and disposed of as their own, after a knowledge that they had been purchased in their names, this much will render them responsible for their price and value, and the jury will find for the plaintiffs.”

There were two leading questions before the jury upon all the evidence : Eirst, whether Pike & Walker authorized Swape to purchase the goods for them; and second, whether if they did not authorize him to purchase the goods for them, as their agent, they impliedly ratified the purchase by receiving the goods, and using or disposing of them for their own purposes, after being informed that the goods were purchased of the appellees in their names, and upon their credit.

The instruction copied above relates to this second question, and expresses the law substantially correct. If one purchase goods for another without authority, and the person for whom they are purchased receives them and uses or sells them on his own account, after being informed that they were purchased for him, this is an implied ratification of the act of the person making the purchase in his name. Story on Agency, 253. And if, on receiving the goods, and being informed that they were purchased in his name, he merely informs the seller that the purchase was unauthorized, this is not enough, but he should restore the goods to the seller, or pay for them if he converts them to his own purposes. This is but honest and fair conduct.

The third instruction given at the instance of the appellees, of which the appellants complain, is as follows: “ 3. If the jury believe from the evidence that the defendants were undertaking business together at the time the goods in question were purchased in their names by an agent, or when they came to their hands and were used by them, this fact will constitute them copartners as to outside parties, even though they may not in point of fact have been partners as between themselves.” This instruction, taken by itself, is objectionable. A partnership may extend to all the business of the parties, or to a single branch thereof, or to a single adventure, or even to a single thing. Story on Part., 81.

If the appellants being about to enter into partnership, authorize Swape to purchase goods for them, and he accordingly purchased them of the appellees, they would be liable to them as partners for the value of the goods, whether, as between themselves, they had perfected their partnership agreement or not. And so, if Swape purchased the goods for them and in their names as partners, and they received them, and disposed of them for their own purposes, after being informed that they were so purchased, they were liable to the appellees for the value of the goods, as partners. But the use of the goods, without a knowledge that they had been purchased in their names and upon their credit, would not be a ratification of an unauthorized purchase.

If this bad been the only instruction given to the jury, it might have misled them, but taken in connection with others in which the same principle was more fully and accurately expressed, and the case coming up on the refusal of the court below to grant a new trial, on the whole record, the judgment should not be reversed for inaccurate or defective expressions in a single instruction. Sweeptzer v. Gaines et al., 19 Ark., 96.

The second instruction moved by the appellants, and refused by the court, is as follows: “ 2. If the jury believe from the evidence that the defendants, or either of them, had contracted with Swape & Youngblood, or either of them, to furnish them goods in payment of an antecedent debt, due by Youngblood to the defendants, or either of them, and that the defendants received the goods for the purchase price, of which this action is brought, through the said Swape & Youngblood, without full knowledge of the fact that they had been purchased on their credit, and that plaintiffs looked to them for payment, the subsequent use of the goods by the defendants did not amount to a ratification of the purchase of the goods on their account.”

This instruction was doubtless refused because it was not warranted by the evidence.

There was no evidence conducing to prove that the goods were received by the appellants through Swape & Youngblood, or in payment of antecedent debts. Swape purchased the goods in the names and upon the credit of appellants, and they were shipped to them by appellees, and received by them. There was proof that Youngblood was indebted to Walker, and, after the goods were received, Walker delivered up to him one of his notes on his agreement to pay appellees for the goods, but there was no proof that appellees were privy or assented to this arrangement between Walker and Youngblood.

The third instruction asked for appellants, and refused by the court, was as follows : “ 3. If the jury find for the defendants in this cause that neither of the defendants in person, or through an authorized agent, purchased the goods of the plaintiffs, and that within a reasonable time after the defendants were informed that the plaintiffs looked to them for payment, they disowned the authority of the party who purchased the goods on their credit, the subsequent use of the goods by the defendants did not amount to a ratification of a purchase of them upon their account.” This instruction is neither good law nor good morals.

When the appellants knew that the goods were purchased by Swape in their names and on their credit, it was not enough for them to inform the appellees that they disowned his authority, but they should, as above indicated, have offered to restore the goods; but failing in this, and using the goods, they were legally and morally bound to pay for them.

The fifth instruction asked for appellants, and refused by the court, is as follows : “ 5. To be binding on the principal, a ratification of the unauthorized acts of an agent, one pretending to act as agent, who is not such in fact, the ratification must be deliberately made, with a full knowledge of all the material facts and circumstances.”

Judge Story, in his work on agency, sec. 239, treating of the ratification by principals of unauthorized acts of agents, uses this language: “ Where the principal, upon a full knowledge of all the circumstances of the case, deliberately ratifies the acts, doings or omissions of his agent, he will be bound thereby as fully to all intents and purposes, as if he had originally given him direct authority in the premises, to the extent which such acts, doings or omissions reach.” And in Lyon v. Tams & Co., 6 Eng., 205, Mr. Justice Scott said: “ The authorities all agree, that although ratification may be implied as well as express, nevertheless, there can be no ratification binding upon the principal, which was not made with a full knowledge of all the material circumstances of the case. Hence the rule that implied ratification extends only to such acts of the agent as were known to the agent at the time.’ See also Reyburn v. Graves, id., 378. Again, Judge Story, treating of implied ratification (Agency, sec. 253), says: Slight circumstances and small matters will sometimes suffice to raise the presumption of a ratification. * * * '' Thus, for example, if an agent who is employed to purchase goods at a limited price, should exceed that limit, and the principal, after full knowledge of the facts, should receive them on his own account, without objection, it would be presumed, that he intended to ratify the transaction. And a fortiori, if the principal should not only receive, but should sell them on his own account. The same conclusion would arise under similar circumstances, if the agent had no authority whatsoever to make any purchase.” And this was, in substance, what the court below told the jury, in some of the instructions given — that the use of the goods by the appellants, after knowledge that they had been purchased in their names, and on their credit, was an implied ratification of the purchase, etc.

There was no proof in this case that appellants had expressly ratified the act of Swape in purchasing the goods in their names, etc., either deliberately or hastily, and we suppose the court below refused this instruction because it seemed to imply that there must be an express, deliberate ratification, etc. It did not follow that because it was drawn very much in the language used by Judge Story, that it was applicable to this case.

We think upon the whole record of the case, that the court below did not err in overruling the motion for a new trial, and the judgment must be affirmed.

Stephenson, J., being disqualified, did not sit in this case.


source: Caselaw Access Project

author: Stephenson, J.

license: Public Domain

text:
    Carlton vs. Buckner et al.
    Open Accounts : Action on, when ban'red by taking note.

    A note given and accepted in discharge of an open account will bajan action on the account; and when a note is taken subsequent to the existence of an account, the presumption of law is, the outstanding account is settled by the note; but this is merely a presumption, and may be rebutted by proof.
    Vendob’s Lien: When assignee subrogated to rights of, eta.

    Where the vendor conveys land b} deed, taking the note of the vendeefor the purchase money, a mere assignment of the note does not transfer to the assignee the benefit of the vendor’s lien upon the land for the payment of the purchase money; but where the assignment is made as collateral security for the notes of the vendor, such peculiar equitable circumstances exist that, in such case, the assignee, holding the lien as well for the benefit of the assignor as-for himself, is subrogated to all his equities.
    APPEAL from Chicot Circuit Court.

      Bell & Carlton, for appellant.

      Garland & Nash, for appellees.
   Stephenson, J.

Daniel H. Sessions sold to Bicbard B-Sessions a plantation in Cbicot county, known as the “ Luna place,” for the sum of $62,552, to be paid in five annual installments ; to secure the payment of which, Bichard B. Sessions gave to Daniel EL Sessions, drafts upon and accepted by himself, the first of which fell due January 1, 1859. Daniel EL, bjr deed of even date with the first acceptance, conveyed the land to Bichard B. Sessions. E'his conveyance is in the usual form of a warranty deed, except that the grantor reserved to himself, in express terms, a vendor’s lien for the purchase money. In 1868. Daniel EL Sessions assigned the last two acceptances (the others having been paid) to the appellees, as collaterals, to secure them for supplies furnished him in his planting business. There was due upon these, at the date of the assignment, of principal the sum of $23,062.64. As an additional security, appellees took from Sessions his note for $16,000, secured by a mortgage on his interest in another plantation in Chicot county, known as the “Lake place,” and it was understood between them that the total amount of advances should not exceed $16,000. In the spring of 1868, Sessions’ account with appellees received a credit of $11,417.44 for cotton shipped them; and in June of that year, the account being made up, Sessions was found to be indebted to the appellees in the sum of $8,738.80, to recover which this suit was instituted on the chancery side of the circuit court.

Appellees rely for the equity of their case on their right to foreclose the lien specially reserved in the deed of Daniel H, Sessions to Richard R. Sessions, which passed to them by the assignment. Appellees charge, in their bill, that at some time prior to the bringing of their suit, Richard R. Sessions conveyed the land sought to be subjected to the payment of their debt to one John W. Gibson, who conveyed the same to Daniel H. Sessions, in trust, for Mary P. Sessions, wife of Richard R. Sessions — said Mary P. Sessions is now in possession. They also charge that the law firm of Bell & Carlton set up some kind of claim to the land, and pray that all parties making claim to the premises be made to disclose the same; that he have a decree for his debt; that the same may be declared a lien on the “Luna plantation ” and for general relief.

Upon failure to answer, the bill was taken as confessed as to all the defendants except Carlton, who denied the allegations of the bill generally, and by way of disclosing his own claim to the land, exhibits a sheriff’s deed, made him by the sheriff of Chicot county as purchaser under execution sale, upon a judgment in favor of one Smith, against Richard R. Sessions, in the Chicot circuit court, rendered June 26, 1866. Carlton, also, made his answer a general demurrer to the bill.

The cause went to the hearing upon the bill, demurrer and answer of Carlton and the depositions of appellees’ witnesses.

The chancellor found that there was due on the acceptances of Sessions, in the hands of the appellees, the sum of $35,-051.99 ; that of this amount, appellees were entitled, by their transactions with Daniel EL Sessions, to $10,020.49; that appellees, as assignees of the acceptances of Bichard B. Sessions, were subrogated to the right of Daniel EL Sessions to enforce his lien, and decreed payment of principal and interest due — ■ appellees’ account against Daniel EL Sessions to them and the balance to Daniel EL Sessions, with decree for sale on default of payment, etc. The settlement of the question raised by Carlton’s demurrer will dispose of this case; for if the appellees are'properly in court, the proof abundantly supports their bill. And there is nothing in the answer of Carlton and the exhibits thereto, which discloses any superior or equal rights to the appellees, if any they have under their bill.

It is contended by the appellant Carlton, that the note for $16,000, executed by Daniel II. Sessions, was an extinguishment of his prior indebtedness, and that appellees must look to this note for the payment of the debt, and as the note was not due when suit was brought, the bill is demurrable. It is true that a note given and accepted in discharge of an open account, bars an action on the account; and when a note is taken subsequent to the existence of an account, the presumption of law is, that the outstanding account is settled by the note; but it is a presumption merely, and may be rebutted by proof. It is a question of intention. Costar v. Davies, 3 Eng., 217; Weaver v. Caldwell's Ex'r, 4 id., 343.

Let us examine the testimony as to the intention of the parties. Henry S. Buckner swears that Daniel H. Sessions, in December, 1866, or January, 1867, made an arrangement with Buclcner & Co. for his advances and supplies, and placed in their hands the two collaterals (here sued on) as security ; and, as additional security, agreed to give his note for sixteen thousand dollars, and secure the same by mortgage on “ Old Lake place,” and were to advance him a sum, the total amount of which, including that already owed, should not exceed the proceeds of the $16,000 note. “We took the mortgage to secure advances to be made to him, in addition to the two collateral notes.” This, with the fact that the notes were allowed to remain in the hands of the appellees, shows very clearly to our minds that the $16,000 note was not given and accepted as a settlement of the account, but merely to secure its payment. The fact that the appellees stipulated that the amount of the advances should not exceed the proceeds of the $16,000 note does not, in our opinion, affect this concluclusion. They had an undoubted right to measure the amount of their advances with the security taken, and this is all they seem to have intended. It is contended by counsel that appellees should have exhausted the security on “ Old Lake place ” before going on the notes sued on, thereby imperiling Carlton’s rights under his sheriff’s deed. With that question, under the state of pleadings in the case, we have nothing to do. He could have presented that question to the court below, but he has contented himself to rely upon a denial of Sessions’ indebtedness and to the questions of law raised by his demurrer, and this court cannot go outside of the pleadings in the case.

There is another question raised by Carlton’s demurrer which the court find it necessary to decide. Are the appellees subrogated to the rights of the vendor Sessions to his lien? In Crawley v. Riggs et al., 24 Ark., 563, it was held, that where the vendor conveys land by deed, taking the note of the vendee for the purchase money, a mere assignment of the note does not transfer to the assignee the benefit of the vendor’s lien upon the land for the payment of the purchase money- — the lien of the vendor being personal to him and not assignable, unless under some peculiar equitable circumstances. But the peculiar equitable circumstances under which the vendor’s lien follows the notes in the hands of an assignee do exist where the assignment is made as collateral security for the notes of the vendor. The assignee, in such case, holding the lien as well for the benefit of the assignor as for himself, is ■ subrogated to all his equities.

The case at bar comes fairly within this rule. The enforcement by the appellees of payment of these notes inures, it is true, to their benefit, but not more than to the assignor Daniel H. Sessions. And the rule seems to be well settled, that when there exists peculiar equitable circumstances, the right of the assignee to the vendor’s lien passes with the assignment. In Hallock v. Smith, 3 Barb., 272, Mr. Justice Strong says: “If the note or bond for the purchase money is assigned or transferred to a third person for his benefit, the security (the vendor’s lien) is gone forever. The reason is, there is no peculiar equity in favor of third persons. But that does not apply where, as in this case, the transfer is only for the purpose of paying the debt of the vendor, so far as it may be available, and is, therefore, for his benefit: there the equity continues.” This court, in Shall v. Biscoe et al., 18 Ark., 142, cites the case of Hallock v. Smith, and clearly marks the distinction between the latter and the cause there decided, which was the assignment of a like note in the ordinary course of trade. Nor does this conflict with Sheppard v. Thomas, 26 Ark., 617, and Jones v. Doss et al., decided at this term. In both the latter cases the court, so far as it might affect this question, only considered the effect of the special reservation of a lien in the deed, upon the rights of an assignee who takes the paper in the ordinary course of business.

The decree of the court below is, in all things, affirmed, with costs.

McLure, Ch. J., dissenting.


author: Bennett, J.

text:
    Pace vs. Rust.
    Decree oe Foreclosure : When not necessary to revive, to make sale under, etc.

    Where an execution and decree of foreclosure are put in the hands of proper officers to be executed during the lifetime of the plaintiff, and the plaintiff dies before the execution is completed, it is not necessary to revive the action and bring in the heirs or legal representatives of the deceased plaintiff as parties.
    APPEAL from Pulaski Chancery Court.
    Hon. T. D. W. Yonley, Chancellor.
    A. H. Garland, for appellant.

      Gallagher & Newton, for appellee.
   Bennett, J.

On bill filed and proceedings had in the Puluski chancery court, to enforce a lien on certain lands lying in that county, for the payment of a certain sum of money, the court ordered the lands to be sold by D. P. Hpham, a •special commissioner. The sale to be for cash to the amount named in the decree, and should the lands bring more than that sum, the surplus to be on a credit of one year. The commissioner was required to bring the cash payment and the obligations of the purchaser for the credit payments into court, and the deed of the commissioner was not to be delivered to the purchaser until approved by the court.

On the coming in of the commissioner’s report, the defend* ants, to the bill, Nannie Rust and heirs of Albert Rust, deceased, upon which the decree was rendered, filed several exceptions to the confirmation of the report. The court decided that the first exception was well taken, and ordered the sale to be set aside. James E. Pace, the purchaser at the sale, objected to the order of the court setting the sale aside, which was overruled and he appealed.

The exceptions filed were as follows :

First That -when the sale of said lands took place, and the same were sold by said commissioner, the said John A. Winston, the original complainant in the bill, was dead, having died sometime in the month of November or December previous, and said decree had never been revived in the name of any legal representative of said Winston, and the sale under said decree was void..

Second. That said D.- P. Upham, on the day of sale, stated that he should require payment in cash to the amount of the debt, interest, costs, etc., and that he was authorized to declare a bid for said lands of $10,000. Whereupon, one Pace bid fifty dollars more, and said Nannie B. Rust, by her counsel, forbid said sale, for she avers that more than 800 acres of said lands are cleared and first class Arkansas bottom lands, and .the amount bid, did not amount to one-half of their value.

Third. That, under the pleadings in this cause, the plaintiffs, in the original complaint, had no right to a decree for a sale of the lands.

Fourth. That she believed, upon a resale of these lands, they would bring double the amount of this sale.

Fifth. That, if the sale was had, it would effect the complete destruction of her rights as the widow of Albert Rust, and that by ordering a resale, her rights would be protected, whilst the rights of the creditors and distributees in the estate, jcould not be jeopardized.

The judgment of the court, setting aside the commissioner’s sale, is as follows: “ The court being sufficiently advised what decision to render upon the first exception of said Nannie B. Rust to the report of the sale of the lands in controversy herein by D. P. Upham. commissioner of this court appointed for that purpose, and which after argument of counsel was submitted to the court and taken under advisement, doth find that the sale of said lands having been made after the death of said John A. Winston, the plaintiff, in the original complaint, and without any revivor in favor of his heirs-at-law, or other legal representatives, is null and void and should be set aside. It is therefore ordered and adjudged that the pretended sale of the lands in controversy * * * * made by said D. P. Upham * * * be and the same is hereby annulled and set aside, and his report thereof unconfirmed and rejected.”

Exceptions to a commissioner’s report partake of the nature of special demurrers. The record before us does not show what disposition was made of the exceptions filed, except the first, and, in the absence of any proof, we are left to the presumption that all but the first were overruled by the chancellor.

The action of the court below upon that exception raises "but a single proposition of law, viz: Does the death of a plaintiff, in a suit to foreclose a mortgage, after a regular judgment of foreclosure is entered, affect the power of the commissioner, appointed to carry into effect the decree, in going on and making a sale of the lands mentioned in pursuance of the decree or judgment and executing a deed to the purchaser; or is it necessary in such cases to revive the action and bring in the representatives of the deceased plaintiff as parties ?

In the case before us, the decree was put in the hands of the commissioner to be executed, in the life time of the plaintiff, and while it was in process of being executed, he died. Had the j udgment been rendered at common law, with a fieri facias in the sheriff’s hands at the time of the death of the plaintiff, it would have been perfectly lawful for him to proceed to execute the writ against the personal or real property of the defendant, notwithstanding the death. No scire facias or other revivor would have been necessary.

A decree in chancery, in most respects, resembles a fi. fa. upon a common law judgment. The object is to collect the money found due to the plaintiff by the judgment. The fi. fa. directs it to be made out of the defendant’s property generally, and the decree in foreclosure, out of the specific property mortgaged.

Where an execution and decree of foreclosure are put into the hands of proper officers to be executed, during the lifetime of the plaintiff, and he dies before the execution is completed, no reason can be assigned why there should be a revivor in one case more than in the other. In both cases the money, when collected, may be paid to the personal representatives if there be any, and if not, then it may be paid into court. In both, the judgments are final, and the final process in' execution of both is in the hands of the proper officer in the lifetime of the plaintiff. Erwin's Lessee v. Dundas et al., 4 How., 59; Arnett v. Arnett et al., 14 Ark., 57; Whiting et al. v. Bank of the U. S., 13 Pet, 7; Lynde v. O'Donnell, 21 How. Pr., 34-38.

The chancellor was in error in setting the sale aside, because there was no revivor of the suit after the death of Winston, the complainant. The final decree was rendered in his lifetime, and his right fully determined. Nothing was left but to execute the decree and collect the money due upon it, which, by its own terms, was to be paid into court, and could be turned over to such persons as could establish a claim to it.

Erom tbe record presented to us, we find that a new sale has been ordered. The first one having been declared valid, another sale is unnecessary. Therefore, the cause is remanded, with instructions to set aside the record order of sale, to overrule the exceptions to the commissioner's report and confirm it, and cause him to make a deed to the purchaser at the sale, upon his compliance with the terms of the decree, and that said deed be approved according to law.


author: Searle, J.

text:
      Wood et al. vs. Boyd.
    Trust Deed: Sale under, by assignee in banJm'uptey.

    In ejectment by B. against W. & K., it appeared that S. had executed his deed of trust to Ragland Bro. & Co., to secure the payment of certain notes, empowering them, their agent, attorney or assignee, on default, to sell. S. subsequently made warranty deed, with relinquishment of dower, to the property in question, to W., who took and held possession. On the bankruptcy of Ragland Bro. & Oo., their assignee sold the property and B. became the purchaser: Held, 1. That the assignee in bankruptcy had the legal right to sell the property under the power in the deed of trust, without resort to a court of chancery. 3. That, notwithstanding the property was in the possession of W., claiming it adversely at the time of the assignee’s sale, the legal title vested in the purchaser, so as to enable him to maintain his action in his own name. 3. That a deed will not be void for uncertainty, as to the grantee, if the grantee be so described that he may be made certain or discovered by proof aliunde.

    Practice : In trial of fact by the court, what should, be stated in writing.

    In trials of fact by the court, the facts should be found and stated in writing, and such statement should be separate from the conclusions of law declared, and the record on appeal ordinarily should show the facts and conclusions of law so stated and declared, where the same are excepted to.
    APPEAL from Ashley Circuit Court,

      Hon. Henry B. Morse, Circuit Judge.

      J. W. Van Gilder, for appellants.
    English, Gantt & English, for appellee.
   Searle, J.

This was an action in the nature of ejectment, brought by Boyd against Wood and Kirkpatrick, for the possession of certain real property, situated in Ashley county. The defendants appeared and answered, admitting possession in themselves, denying title in plaintiff, and asserting title in defendant Wood. By consent of parties the court tried the issues sitting as a jury- — found for the plaintiff, and entered judgment accordingly, from which the defendants, saving sundry exceptions to the rulings of the court, appealed. The following is the substance of the evidence, pro and con., introduced on the trial, as appears from the record.

The appellee, in order to establish his title to the property in controversy, introduced a deed of trust from one William H. Scott to Eagland Bro. & Co., of the property, which was duly executed, acknowledged and filed for record on the 4th day of June, 1867. This deed of trust was intended to secure the payment of certain notes which Eagland Bro. & Co. held against Scott, and contained a power of sale empowering them, or their agent, attorney or assignee, on the maturity of the last note due, in default of the payment of the notes, or any part of them, at that time, to sell the property and apply the proceeds of the sale to the payment of the same, the balance of the proceeds, if any remained after the payment of the notes, to go to the grantor in the trust deed.

The appellee next introduced a deed of conveyance of the property executed to the appellee on the 22d day of July, 1869, by J. W. Westcott, as assignee in bankruptcy of the copartnership estate and effects of E. E. Eagland, William B. Eagland and J. D. Mickle, known by their firm name and style of Eagland Bro. & Co.

It further appears by an agreed statement of facts between the parties incorporated in the record, that Westcott was the assignee, in bankruptcy, of the firm of Ragland Bro. & Co., and that an assignment of their partnership and individual estates had been made to him prior to the assignee’s sale and the making of the assignee’s deed to the appellee; and that William EL Scott died on the 12th day of May, 1868.

The appellants, in order to establish the title in appellant Wood, introduced a warranty deed of the property executed by Wiliam EL Scott, his wife Janette A., joining in the conveyance, in relinquishment of her right of dower, to appellant Wood, which was filed for record on the 17th day of August, 1867.

The court declared the following propositions of law as being the law of the case :

“ 1. The assignee in bankruptcy had the legal right to sell the property, under the power in the deed of trust from William EL Scott, without resort to a court of equity.
“2. The deed of Scott, with relinquishments of his wife’s right to dower, conveyed no interest to Wood in the property, but only barred her right of dower at her husband’s death.
“ 3. Notwithstanding the property was in the possession of Wood claiming it adversely at the time of the assignee’s sale, the legal title vested in the purchaser, so as to enable him to maintain his action in his own name.”

To the declarations of these propositions of law the appellants excepted, and these exceptions were the only ones taken to the rulings of the court in the trial of the cause.

The finding upon the facts by the court does not appear in the record of this case.

In trials of fact by the court, the facts should be found and stated in writing. Sec. 11, art. 7, Const. And such statement should be separate from the conclusions of law dedared. Sec. 364, Code Civil Practice. And the record on. appeal ordinarily should show the facts and conclusions of law so stated and declared where the same are excepted to.

But notwithstanding this deficiency of the 'record in this case, we shall be able to dispose of it on its merits, as the only exceptions taken were to the declared propositions of law and as the evidence so clearly presents the facts. And in disposing of it, we will assume that these legal propositions purport to be conclusions of law, from the facts so plainly presented by the evidence.

As the appellants admitted that they were in the possession, the only allegations that were incumbent upon the appellee to establish were his title and right of entry. The first and third propositions of law will be considered together, as they both relate to the same matters.

And first, as to the conveyance by trust deed to Ragland Bro. & Co.

It is insisted by appellants that this conveyance was void for uncertainty as to the grantees.

It is a requisite of a good deed conveying real property, that it should contain the name of the grantee, the object of the name being to distinguish the person or persons named from all others. But it is a principle well settled and of universal application in real estate conveyancing as expressed in the maxim, " id cerium est quod cerium reddi potest,” and from this principle the rule has been deduced by the courts that a deed will not be void for uncertainty as to the grantee, if the grantee be so described that he may be made certain or discovered by proof aliunde. 3 Washb. on Real Prop., 236-241; Broom’s Leg. Max., 481-483.

The trust deed was made to Ragland Bro. & Co. This is indeed an imperfect description of the parties, grantees, and not one of them can be definitely ascertained from the deed alone. But tbe grantees are designated as an association of persons, and tbe association is identified by the family name of one of the parties and by the mention of his brother as an associate; and we think that this description under the above mentioned rule was sufficient to enable the court to complete the description of the association by proof other than the deed, and make certain the persons intended as the grantees. Certainly there could be no difficulty in discovering who Rag-land of this association was by the simple ascertainment of his Christian name ; nor who his brother was, by ascertaining his name, he being one of the firm, nor who the party was, designated as company, by ascertaining his name, for whoever he was, the association included him and he is to that extent described.

We know that this is carrying the rule to its utmost extent, but we think not to an unreasonable extent. We are aware, too, that the authorities are conflicting upon this question, and that Gossett v. Kent, 19 Ark., 607, and some other cases, do not support the above conclusion. We will not pretend, therefore, that the question is entirely free from doubt, but the justice in this case is clearly in favor of giving validity to the trust deed, and we do not think that law ought to be separated from justice, where it is, at most, doubtful.

Ragland Bro. & Co. became bankrupts; Westcott was appointed their assignee, and an assignment was made to him of all the estate of the bankrupts.

Westcott, as assignee in bankruptcy of the partnerships and individual estate and effects of R. R. Ragland, William D. Ragland and J. D. Mickle, known by their firm name and style of Ragland Bro. & Co., sold and conveyed by deed under and by virtue of the power contained in the trust deed, the property in question, to the appellee. Now no objection was made, on the trial, to the introduction of this assignee’s deed in evidence of the conveyance to the appellee. If B. B. Bagland, William B. Bagland and J. D. Mickle were not the parties known as Bagland Bro. & Oo., or by their firm name of Bagland Bro. & Oo., and therefore not the grantees in the trust deed, the appellants should have objected to the assignee’s deed as evidence, and the court would have excluded or disregarded it as inadmissible; or at least the court would have given the appellee the opportunity of introducing further, aliunde, proof that those parties were the identical parties known as Bagland Bro. & Oo., and therefore the grantees in the trust deed. No objection having been made to the assignee’s deed as evidence, it must be taken to be proof of what it purports to be; that is, of a conveyance of the property in controversy, by Westcott as assignee in bankruptcy of B. B. Bagland, William B. Bagland and J. D. Mickle, known by their firm name of Bagland Bro. & Oo., to the appellee ; and taken in connection with the trust deed, it sufficiently identifies the grantees therein. Consequently the trust deed was not void for uncertainty as to the grantees.

Upon the execution of the trust deed to Bagland Bro. & Co., Scott was divested of all his right and title to the property, with the exception of the right to redeem any time before the sale under the power contained in the trust deed, and the right of possession until his default in the payment of the debt; and after default and sale, the right, only, to the residue of the proceeds of the sale after the payment of the debt The deed from Scott to appellant Wood conveyed no more to him than Scott’s rights and interests.

The assignment in bankruptcy vested the legal title in the assignee; and after the default in the payment of the debt, he clearly had the right to sell under the power in the trust deed; and his sale and deed, in evidence thereof, conveyed the legal estate to appellee. He has, therefore, the legal right to possession, and this action was his proper remedy. This being the case, the propositions of law under consideration were properly declared.

We will now consider the second proposition of law declared by the court.

Scott’s wife did not join in the execution of the trust deed in relinquishment of her right of dower, but joined in the execution of the warranty deed to appellant Wood, in relinquishment of her right of dower, and after the date of this latter deed, and before the institution of this suit, Scott died. It is contended by appellants that this relinquishment of right of dower vested in appellant Wood, an estate in one-third of the property during the life of the widow. It is unnecessary to determine what interest, if any, accrued to Wood by the relinquishment of the right of dower. We may, however, safely assume that he could not possibly have a greater interest than the widow, had she not relinquished her right of dower. Before the death of her husband, a widow has merely a right of dower, a right prospective and contingent. Upon the death -of her husband, it is no longer prospective and contingent, but present and fixed; and yet no dower estate vests, no title accrues until the legal assignment of dower. Carnall v. Wilson, 21 Ark., 62; Jacoway v. McGarrah, id., 347.

At most, Wood had no such estate or title by virtue of this relinquishment of the right of dower as would enable him, in this case, to defeat to that extent the title of the appellee.

The second proposition of law, now under consideration, is clearly erroneous so far as it declares that The deed of Scott, with relinquishment of his wife’s right of dower, conveyed no interest to Wood in the property;” for, as above shown, this deed conveyed to Wood all Scott’s rights, and his rights were a right to redeem, to possession until default in the payment of the debt secured by the trust deed, and to the residue, if any remained, of tbe proceeds of tbe sale of the property, in the event of its sale, after the payment of the debt.

As to whether this proposition of law is erroneous where it declares that such sale by Scott to Wood, with relinquishment of his wife’s right of dower, “only barred her right of dower at her husband’s death,” we think it unnecessary to determine here. "We are of opinion, however, that the declaring of this second proposition of law was in no'manner prejudicial to appellants’ rights, as the finding and judgment of the court below were according to the law and evidence.

Finding no error in the judgment, the same is affirmed.


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    Doswell vs. Adler et al.
    Debtors : Preference of creditors by.

    A debtor, in failing circumstances, may prefer one creditor to another, if his act of preference is not prompted by an intention to defraud such other creditor, and a deed absolute in terms, made by the debtor to such preferred creditor, would not invalidate it as a mortgage, if intended by the parties so-to be; such a circumstance, of itself, being no evidence of fraud.
    Lien by Contract : When pcwcmnount to judgment lien.

    A lien by contract, upon real property, prior in time to the judgment, is paramount to tbe judgment lien, though the judgment creditor ha,ve no notice or knowledge of such prior lien by contract, and a purchaser at execution sale, under such judgment with notice, actual or constructive, acquires no greater interest than the judgment debtor had.
    APPEAL from Jackson Circuit Court.
    Hon. Elisha Baxter. Circuit Judge.
    Gallagher, Newton & Hempstead, for appellant.

      U. M. Rose, for appellees.
   Searle, J.

This is a complaint in equity brought to the November term, 1871, of the Jackson circuit court, and alleges substantially as follows: That one David Gr. Hart, being seized in fee of certain real property situated in the town of Jacksonport, conveyed the same to Page M. Patterson and Thomas Beckwith, on the 20th day of February, 1868, by warranty deed, which deed was filed for record on the 26th day of April, 1869, 8£ o’clock A. M., but, in fact, the intentention of the parties was that said deed should operate only as a mortgage for the purpose of securing a debt due from the grantor to the grantee; that Hart was in failing circumstances, and that, by his said conveyance, a preference was intended in favor of said grantees and against his other creditors; that Hart, being indebted to Tapps, Kennedy & Co., and Anderson, Campbell & Co., confessed judgment in favor of each of said firms, on the 29th day of February, 1868; that executions issued upon such judgments, by virtue of which said property was sold at sheriff’s sale on the 26th day of April, 1869, for the sum of nine dollars, the appellant being the purchaser, and receiving a deed therefor; that Patterson and Beckwith conveyed the same property by warranty deed to the appellee Nathan Adler, on the 28th of February, 1870, at which time he had notice of appellant’s claim, and took possession thereof, and that Patterson and Beckwith never had possession of the property, etc.; and the prayer was that the deed from Hart to Patterson and Beckwith be declared to be merely a mortgage subject to the prior judgment liens of the firms of Tapps, Kennedy & Co. and Anderson, Campbell & Co., and the deed from Patterson and Beckwith to Nathan Adler be declared to be merely an assignment of the mortgage ; for a decree for rents and profits, as also for the possession of the property, and that the appellant’s title be quieted against the appellees, etc.

The appellees demurred, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the court decreed in favor of the appellees, from which the appellant, standing upon his complaint, appealed to this court.

The complaint avers that the deed from Hart to Patterson and Beckwith was designed by the parties to secure the payment of the debt of the former to the latter, and, though absolute in its terms, was intended merely to be a mortgage in its effect. This allegation, as well as the other material allegations of the complaint, must be taken to be true in our determination of this case upon the demurrer. We must assume, then, that in the conveyance of Hart to Patterson and Beckwith, the former was a mortgagor, the latter mortgagees; and that the conveyance of the latter to appellee Nathan Adler transferred nothing more to him than their interest — • imported nothing more than an assignment of their conditional title.

We presume it will not be disputed that Hart had a right to prefer Patterson and Beckwith to his other creditors by the execution of his mortgage to them, if his act of preference was not prompted by an intention to defraud such other creditors. But there is no allegation of fraud or facts from which fraud may be inferred. The complaint simply avers that Hart was insolvent, and, being indebted to the grantees, executed the conveyance to them to secure the debt. It is true the deed was by conveyance absolute in its terms. But this would not invalidate it as a mortage; for such a circumstance of ifself is no evidence of fraud. Conway ex parte, 4 Ark., 302; Ringo v. Biscoe, 13 id., 563; Hempstead v. Johnson, 18 id., 123; Carnall v. Duval, 22 id., 139; Gaffery v. Signiago, 1 Dill. C. C., 158. Moreover, the complaint does not ask that the conveyance b.e declared void for fraud or for any other reason. It admits that it is good as a mortgage, and only asks that it be declared subordinate to the title of the appellant obtained by the execution sale.

The main object that the appellant, in bringing his action seems to have had, was to have the mortgage declared subordinate to his title. Eor this chiefly his complaint was framed. Hence the vital question in the case is, as to what rights he acquired by his purchase at the sheriffs sale, and the demurrer reaches this question. The mortgage was executed on the 20th day of February, 1868. The judgments by confession were rendered on the 29th day of February, 1868. It is well shown in Byers et al. v. Engles, 16 Ark., 543, that a lien by contract upon real property, prior in time to the judgment, is paramount to the judgment lien, though the judgment creditor have no notice or knowledge of such prior lien by contract. The appellant’s title therefore cannot be superior to that of the appellee by virtue of the judgment liens of Tapps & Co. and Anderson & Co. If superior, it must be by virtue of his purchase at sheriff’s sale. But he purchased at such sale on the 26th of April, 1869, and we presume between the hours of 9 A. M. and 3 P. M., and the mortgage was filed at half past 8 o’ clock A. M., on the same day. He then had, at least, constructive notice of the existence of the mortgage when he made the purchase, and, we are inclined to presume, actual notice, from the fact that he paid but nine dollars for the prop erty, worth six or seven thousand dollars. Having such notice, he purchased no greater interest than the judgment debtor had, and took his title subject to the incumbrance of the mortgage. See Byers et al v. Engles, cited above, and the authorities therein collated.

The appellant prays for the possession of the property. There are no allegations in the complaint that go to the support of such prayer.

In a mortgage purporting to be such in its terms, the mortgagee is entitled to the possession after condition broken. In this case the mortgagees were entitled to possession from the date of their deed; because it was a present and absolute conveyance for a debt then due, and all the mortgagor could claim would be the right to redeem by showing that the deed was intended merely as a security.

The appellant prays for the rents and profits from the date of his purchase at the sheriff’s sale. This he has not shown himself entitled to from his averments. The mortgagees, Patterson and Beckwith, and the appellees who hold from them, having the right of possession under the deed or mortgage, were entitled to the rents and profits. The appellant prays that his title be quieted, etc. This could not be decreed to him from his own showing, for he not only admits that he is out of possession, but by the averments of his complaint shows that he is not entitled thereto. Apperson v. Ford, 23 Ark., 746.

The appellant seems to have been confused in his ideas as to his rights, and entirely mistaken in his remedy. He asks for the quieting of his title, and for the possession at the same time, and yet he does not aver facts that would justify either. He asks that the conveyance, which he alleges was intended by the parties to be a mortgage, be declared to be subordinate to his title, and yet he avers facts that show that he purchased the property subject to the mortgage lien. He asks for the possession, and for the rents and profits, and yet he does not propose to pay the debt which has been made to incumber the property by the mortgage. The conveyance being regarded as a mortgage to secure the payment of the debt due from Hart to Patterson and Beckwith, and paramount to appellant’s title, and the appellee, Nathan Adler, being regarded as rightly in possession of the premises, and entitled to the rents and profits to satisfy such indebtedness, we think the appellant’s remedy was simply to redeem. He should, therefore, in his complaint, have prayed for an account of the amount of the debt which the mortgage was given to secure; also, an account of the rents and profits from the date of the conveyance of the property to Patterson and Beckwith, and an ascertainment of the balance due by the deduction of the latter from the former, and he should have, in his complaint, offered to pay, in open court the balance, with interest thus found to be due. Such offer, we think, was indispensable, for without it, he did not lay the foundation for a decree to redeem, and his complaint was without equity.

For the above reasons the demurrer was well taken, and the decree properly rendered.


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    Flournoy et al vs. Payne, Administrator.
    •Certiorari: Practice on, etc.

    Tlie writ of certiorari is not a writ of right, but will be granted or denied, in the discretion of the court, according to the circumstances of each particular case as justice may require, and whenever it plainly appears that such discretion has been improperly exercised, the court, on the motion of either party, or on its own motion, will quash the writ, notwithstanding a return has been made and the merits of the case gone into.
    Same : What errors corrected on.

    Errors in assumption of jurisdiction are properly correctable on certioorari, but where errors arise in conclusions of law in deciding a case upon its merits, they can only be corrected on appeal, unless the party is prevented from appealing by unavoidable circumstances.
    APPEAL from Desha Circuit Court.
    Hon. John E. Bennett, Circuit Judge.

      Garland & Nash, for appellants.

      Watkins & Hose, for appellee.
   Searle, J.

At the spring term 1868 of the Desha probate court, John B. Payne, jr., as administrator of the estate of Sally C. Flournoy, deceased, presented for allowance and classification a claim against the estate of D. J. Flournoy, deceased, notice having been given to Robert C. Flournoy, as executor of the last will and testament of the said D. J. Flournoy, deceased, that said claim would be presented, etc. The claim was allowed and classified. Over two years afterward, 'Robert C. Flournoy and others interested in the estate petitioned the Desha circuit court for a writ of certiorari to be issued to the clerk of the probate court to certify to the ciróuit court the proceedings and judgment of the probate court in relation to the presentation and allowance of said claim, etc. The writ was allowed, return made thereto with the transcript of the record of said proceedings ; cause heard by the circuit court, and judgment of the probate court affirmed, from which the petitioners appealed to this court.

The appellants in their petition for the writ of certiorari alleged substantially, that the probate court erroneously allowed said claim upon a certain decree as evidence thereof, obtained by the appellee against Robert O. Flournoy, as executor, etc., in the Fayette circuit court of Kentucky; that, as to three of the petitioners, namely, Elizabeth Stevenson, Mary Stone and Letitia Hume, they were residents of the state of Kentucky, and had no notice that said claim would be presented, and therefore have no opportunity of appealing from the judgment, allowing and classifying said claim, and that as to the said Robert G. Flournoy, although he was served with notice that the said claim would be presented for probate and allowance, it was in the city of Louisville, Kentucky, where he was then living and that his engagements were such that he could not on such short notice then go to the state of Arkansas to attend said court, and therefore he had no opportunity of appealing from the said judgment, etc. The petitioners further state “ that long before the said notice was given to the said Robert C. Flournoy, and before the probate and allowance of said claim, he, Flournoy, had become a nonresident of the state of Arkansas and ceased to be executor of said will of D. J. Flournoy, as by such nonresidence his letters testatmentary have been forfeited by the express statute of said state.”

The petition is subscribed and sworn to by R. Hutchison, one of petitioner’s attorneys, who states in his affidavit that he believes the statements in the petition to be true. The transcript of the record of the probate court, certified to the circuit court in obedience to the writ, discloses the following facts: That the claim complained of in the petition was allowed and classified as evidence by the decree;of the Fayette circuit court of Kentucky, and that Robert C. Flournoy, at and before that time, was executor of the last will and testament of D. J, Flournoy, deceased.

Did the circuit court err in affirming the judgment of the probate court in allowance of said claim ?

To determine this question, 'it is not necessary to ascertain or decide whether or not the probate court erred in the allowance of the claim; for we think the circuit court had no proper jurisdiction in this case over its proceedings, er at least improperly entertained jurisdiction thereof for final determination upon its merits. It seems to be well settled that if the court becomes satisfied, at any stage of the proceedings, that the writ of certiorari ought not to have been issued, it may be quashed on motion of the parties; or the court, on its own motion, may quash it; for otherwise it might be forced to proceed in a cause where it had no jurisdiction, merely because neither party saw fit to make a motion of the kind. The writ of certiorari is not a writ of right, but will be granted or denied in the discretion of the court, according to the circumstances of each particular case as justice may require. Hence, whenever it plainly appears that such discretion has been improperly exercised, the court will retrace its steps by quashing the writ, notwithstanding a return has been made and the merits of the cause gone into. We apprehend that cases brought into a court by such writs are not far different in this respect from ordinary cases; and in ordinary cases the court will, on its own motion, dismiss at any stage of the proceedings upon discovering a want of jurisdiction. Randle v. Williams, 18 Ark., 380. In this case it is doubtful whether the circuit court properly exercised its jurisdiction, in the first instance; in granting the writ, upon the showing made by the petitioner. But, granting that the writ was properly issued in the first instance, the return thereto with the transcript of the record of the proceedings of the probate court clearly show, we think, that the circuit court had no such jurisdiction of the case as to justify it in determining the same by an affirmance of the judgment or a quashal of the proceedings of the probate court. From the record of the probate court, it appears that Eobert C. Flournoy was, at the time the claim was allowed, executor of the will of D. J. Flournoy, deceased, and, as such, had charge of the deceased’s estate; at least, he was so recognized in the proceedings of that court. And this solemn recognition of a, court from which he derived his power to act by letters testamentary, and to which he was responsible, must be taken as not controverted and disproved by the mere statement, under belief, of an attorney in the case, who possibly had no means of knowing the facts in the premises further than what the probate court records disclosed. It is true that the petition states, by way of argument to prove that he was not at that time executor, that Robert C. Flournoy, at the time notice was served upon him that the claim would be presented for allowance, was a nonresident of the state, and “ that, by such nonresidence, his letters testamentary had been forfeited by the express statute of that state.”

Such nonresidence we apprehend, if true, did not, of itself, occasion a forfeiture of his letters testamentary under the statute ; it merely gave the probate court good reason for the removal of the executor. That the executor was served with notice of the contemplated presentation of the claim for probate was not controverted — was admitted. That court then clearly had jurisdiction of the party, who, under the will of his testator and by letters testamentary, represented the estate and the parties interested therein, and also of the subject matter, the claim in question. Consequently if it erred, it was not ia its assumption of jurisdiction ; it was merely in its conclusions of law in deciding the case on its merit3. Errors of this kind can be corrected only by appeal. Hill v. State. 17 Ark, 44. Unless the parties are prevented from appealing by circumstances over which they have no control. Denton v. Boyd, 21 Ark., 264. The appellants, however, attempted to excuse their failure to appeal by alleging unavoidable circumstances which prevented them. These allegations, in this respect, were wholly unsupported. The petition, as above remarked, was sworn to by an attorney, on “ belief,” without any showing that he had the least knowledge of the facts stated. But taking the statement of the petition to be true, the excuse for not appealing is insufficient. The petition alleges that Robert C. Flournoy’s “ engagements were such ” that he could not be present when the claim was probated. The nature of his “engagements” is not shown. This certainly was no sufficient excuse. Wyatt v. Burr, 25 Ark., 476. It does not appear that his personal presence was necessary ; he might have engaged an attorney or agent to attend in his place.

As to the other petitioners, they were represented by the executor at the time this claim was presented for allowance and were not entitled tobe parties in the adjudication thereof. They can, therefore, plead the negligence of the executor neither as an excuse for their failure to appeal, nor as in any manner giving them' rights in a proceeding of this character.

The appellant, Robert C. Flournoy; not having shown circumstances sufficient to excuse him from his neglect to appeal, his only remedy was by appeal, and the circuit court had not the jurisdiction to determine the case upon certiorari.

The judgment of the court below is reversed, and the cause is remanded with instructions thereto to quash the writ.


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    Hecht vs. Hecht.
    Appeals : When will lie from order or judgment allowing alimony, etc.

    In suits for divorce, the allowance of alimony, attorney’s fees and costs, pendente lite, is discretionary with the court trying the case, and will be interfered with by this court only upon the clearest proof that there has been a palpable abuse of that discretion; and where such abuse affects the substantial rights of a party, he may-have redress by appeal to this court.
    APPEAL from Randolph Circuit Court.
    Hon. Elisha Baxter, Circuit Judge.
    A. H. Garland and T. J. Ratcliffe, for appellant.

      Rose & Green, for appellee.
   Stephenson, J.

The appellant'brought his complaint in the Randolph circuit court to the April, term, 1872, for divoree. At tbe same term tbe appellee answered tbe bill and •filed a motion, in the nature of a petition for alimony and attorney’s fees, pendente lite. To this motion the appellant filed a response, and upon the issues, made by the motion and response, the court proceeded to a hearing. Several witnesses were examined on both sides, and the court ordered that appellant pay to appellee’s attorneys the sum of five hundred dollars, as follows: Two hundred and fifty dollars within sixty days from the rendition of the order, and two hundred and fifty dollars at the final determination of the suit. Also the sum of two hundred and fifty dollars within sixty days, to be paid into court for the use of the defendant to pay costs of suit. Eor the first and last of these sums execution was ordered to issue. To all the rulings, orders and decrees of the court, appellant excepted, and after moving for a new hearing, which motion was overruled, he appealed.

It is contended by appellee that, inasmuch as the original suit between the parties is still pending in the circuit court, no appeal will lie until a final decree has been rendered.

Sec. 4, art. 7 of the constitution, provides that “final judgments in the inferior courts may be brought by writ of error or by appeal into the supreme court, in such manner as may be prescribed by law.”

It is not necessary for us, in the determination of this case, to construe this and sec. 15 of the same article.

The order or judgment of the court is not, strictly speaking, an interlocutory one. While it may be true that a petition for alimony and attorneys’ fees could not be brought as a separate arid independent suit, yet it is also true that such an application and order for an allowance, pendente lite, especially such a one as is made in this case is, so far as it affects the rights of this appellant in its consequences, wholly independent of his suit for divorce. This is a definitive judgment, from which the appellant can have no relief by the final decree, even though it should appear that injustice had been done him. By. due process on the execution, the money will have been collected and paid over to the parties in whose favor it is awarded, and its recovery will have passed beyond the power of the court. It is true that the allowance of alimony and other necessary costs is discretionary with the court trying the case, and will be interfered with by this court only upon the clearest proof that there has been a palpable abuse of that discretion. Yet, when there has been such abuse which affects the substantial rights of a party, we are of opinion that he can have redress by appeal to this court. Code of Civil Practice, sec. 15; 6 Abbott, N. S., 193; Tucker v. Yell, 25 Ark., 420.

In the case at bar the court made no allowance to the wife. The order only extends to the fees of attorneys, and the allowance for costs. We will confine ourselves to the testimony as to these items alone. The witnesses, who were the lawyers in the case, differ in their estimate of the value of the services of appellee’s counsel as much apparently as they do as to merits of their respective sides of the case, and the court values these services higher than both combined.

The witness for the appellee values his services at three or four hundred dollars, while the witness for appellant believes one hundred dollars a fair fee. The court, however, allows the sum of five hundred dollars attorneys’ fee and two hundred and fifty dollars for costs of court.

We can find nothing whatever in the testimony to warrant this last allowance, and we think the allowance to attorneys was not warranted by the testimony. The allowance of a reasonable and liberal sum for both purposes would have been proper and necessary to the protection of the appellee, who should have every proper facility given her by the court for a full defense, which the court, in the exercise of its discretion, could have fixed without the testimony of witnesses. Yet, in the face of the testimony before us, we think the court erred as to the amounts allowed.

The case is reversed and the cause remanded with directions to the court to allow such compensation as may be necessary to a full and fair defense.


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    Danley vs. Crawl et al.
    Attorneys : When cannot delegate authority to colled.

    Where a claim is placed, in Hae hands of an attorney for collection merely, and it does not appear that he is employed generally to act for the party, he is a special agent for that particular purpose, and without authority to do so, cannot delegate his power to collect to a third person, so as to hind his principal.
    APPEAL from Pulaski Chancery Court.
    Hon. T. D. W. Yonlby, Chancellor.

      Wassell & Moore and Clark & Williams, for appellant.

      A. H. Garland, for appellee.
   Stephenson, J.

On the first day of October, 1859, the appellees Crawl and J. W. Ward, executed a mortgage to appellant on certain lots in the city of Little Rock, to secure the payment of a note for $860.12, which was loaned them to complete the payment of the purchase money.

Subsequently, Ward paid one half of the purchase money and interest, and Danley released the mortgage as to him, clearing the title to lots 7, 8 and 9, block 141, and holding the unpaid balance of the note against Crawl, and the mortgage against the remainder of the lots. Crawl failed to pay the note when due, and Danley brought suit to foreclose. This suit was brought to the June term, 1861, of the Pulaski chancery court, by the law firm of Pope & Newton, attorneys for Danley. After the filing of the bill, Pope & Newton left Little Bock and placed the case in the hands of Pleasant Jordan, who, as is agreed by the parties to this suit, took charge of the case, without the knowledge or consent of Danley. In 1862, while the suit was still pending, Jordan received from Crawl the amount of principal and interest due on the note in Confederate money, and gave him a receipt in full and an order to the clerk to dismiss the suit, which was accordingly done. All this, it is agreed, was done without Danley’s knowledge •or consent.

On the 24th of November, 1864, the records of Pulaski being absent from the county, Crawl sold the lots to Orville Jennings, and gave him a deed therefor, receiving a part of the purchase money. Before paying the remainder of the money, which was nearly or quite sufficient to satisfy the claim of Danley, he was informed by witness Wassell of the existence of the Danley claim, but disregarded it and expressed himself as fully capable of resisting any claim which be, Danley. had an account of the Jordan receipt. On the 5th of July, 1866, Jennings contracted the lots to E. T. Yaughan for $5,000, payable in installments, and on the day following, satisfaction of the claim of Danley was entered of record by the clerk. On the 6th day of August, 1866, Danley again brought suit to foreclose his mortgage, and making-all the parties connected with these various transactions defendants. The cause went to hearing upon the bill and answer thereto, cross-bill of Yaughan, and cross-bill of the administrator of Jennings, deceased, and the cross-bill of his widow, exhibits, depositions, etc. The court dismissed the crossbill of Vaughan for want of equity; gave judgment against Crawl for the amount of the note and interest, but found, that Jennings was an innocent purchaser for value, without notice of the lien of Danley, and he and his grantee took the lots discharged of the lien. Danley appealed. We will consider but one question raised by the transcript, the disposal of which renders it necessary to consider the others discussed by counsel. In the agreed statement of facts, it is admitted that Pope and Newton instituted suit for Danley to forcelose the mortgage, and that subsequently they placed the case in the hands of Jordan without the knowledge or consent of their client, who received from Crawl in satisfaction of the note and mortgage confederate money. Danley, in his answer to the crossbill of Jennings, administrator, denies that he ever recognized Jordan as his attorney, or that he ever received the confederate money or any part of it for his debt, and avers that Jordan’s entire connection with the case was without his knowledge or consent, and there is no proof to sustain the allegations in the crossbill. This state of testimony is conclusive óf the case. Pope and Newton themselves could have made the settlement and received the confederate money, and such acquittance would have, if ratified by his principal, discharged Crawl from liability on the note and mortgage, but they could not delegate their authority to another without the consent of the principal, so as to bind him. It is true the principal could have ratified the act of the sub-agent, if upon information as to his actions, he had seen proper. Yet he was at liberty to repudiate the action of such agent and look to the debtor for his pay. This state of case arises out of the particular relation in which the parties stand toward each other. The firm of Pope and Newton were the agents of Danley ; their agency was not a general one, but was confined, so far as we know from this record (and if it were different the appellee should have shown it), to the single transaction under consideration here. This being the case it was the duty of this appellee to have informed himself of Jordan’s right to collect the money and' satisfy the mortgage, for it is well settled that where a party deals with a special agent, it is his duty to ascertain the scope of the agent’s authority, and if he neglects to do so and goes beyond it, he must suffer the consequences. Smith’s Merc. Law, 3d ed., p. 173; Story’s Ag., secs. 12, 15, 388, 389, 137. An attorney in whose hands a claim is placed for collection merely, and it does not appear that he is employed generally to act for the party, certainly comes within the above rule, and without authority to do so, cannot delegate his power to collect to a third person. Kelley & Co. v. Norris, 10 Ark, 18.

Danley, as we have said, could have ratified the action of Jordan, if he had chosen to do so, but he was not bound by his action unless such ratification was made to appear, or such length of time had elapsed as that a ratification would be presumed. As is shown by the proof, the country was in a state of war, and Danley was not in such a situation toward Jordan as that his assent will be presumed. On the contrary, he seems soon after the close of the war to have instituted his suit, which very conclusively signifies his intention not to be bound by Jordan’s action. Jennings could, if he had seen proper, have protected himself from loss by withholding sufficient of the purchase money to indemnify himself against loss, for he was notified by Wassell of the existence of the mortgage, but did not choose to do so. Neither can Yaughan be heard to say that he is an innocent purchaser without notice, for it was not until after his purchase that the satisfaction was entered of record in pursuance of the Jordan receipt and order, and it would appear from the nature of his payments to Jennings that he is amply secure as to the Danley debt.

If our view of the law is correct, the payment of the Confederate money or the payment to him of any kind of money, was not binding upon the appellant, and the sale of the property to Jennings, and the subsequent sale to Yaughan, was and is subject to Danley’s mortgage. The decree of the court is reversed, and the cause remanded with directions to enter a decree in conformity to this opinion.


author: Gregg, J.

text:
    Carroll vs. The State.
    Cabbying Concealed Weapons: What not defense to.

    On indictment for carrying a concealed weapon, it is not a good or sufficient excuse or defense, under the statute, for the defendant to show that he was on his own premises when he so carried such weapon, nor will it constitute any excuse for so wearing a weapon, to show that the accused was in fear or even danger of being attacked.
    APPEAL from Ashley Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      John Carroll, for appellant.

      J. R. Montgomery, Attorney General, for appellee.
   Gregg, J.

At the October term, 1871, the appellant was indicted in the Ashley circuit court for carrying a concealed weapon.

After the return of the indictment into court, there appears in the transcript what purports to be an order of court, referring the indictment to R. S. Curry, a justice of the peace, for hearing and final determination, followed by what purports to be a trial, conviction and judgment before the justice of the peace, and an appeal back to the circuit court. This whole proceeding, tlius had outside of the circuit court, was, certainly, without authority of law. But no exception was taken thereto, and the appellant appeared to the indictment in the circuit court, and at the April term, 1872, a trial was had by a jury, the appellant found, guilty, and a fine of twenty-five dollars assessed against him, for which judgment was recovered. He moved for a new trial; his motion was overruled; he excepted, and appealed to this court.

The bill of exceptions recites that the state, to maintain the issue on her part, proved by Hugh Gillick and Eliza Gfilliclc, that they rented appellant’s house in 1871, and that about the 6th of August of that year, the defendant had a pistol in-the breast pocket of his coat, and took it away with him when he left the house.

The appellant then offered to prove by F. A. Boyd that, shortly before the first of that August, he had told him of certain threats that had been made against him ; but, upon objection, the court refused to allow Boyd to so testify, to which the appellant excepted. The court gave two instructions for the state, to which no objection was, or could properly have been made. The appellant then moved the court to charge the jury, First. “If, from the evidence adduced, the jury believe that the defendant was in his own house at the time he is charged with having a pistol in his pocket, and that he did have said pistol in his pocket, they will find the defendant not guilty.”

Second. “If, frpm the evidence adduced, the jury believe that the defendant had reason to believe, and did believe that he was in danger, at any unknown moment, of receiving great bodily violence, or that his life was in danger, they will find the defendant not guilty.” Both of which the court overruled, to which the appellant excepted.

The last instruction was entirely abstract. It was not law under any state of facts. The other instruction was not sustained by the evidence, except in so far as the witness said he had the pistol in his pocket before he left the house, and that constituted no defense. There is no provision in the statute excusing a party when carrying a pistol concealed as a weapon on his own premises, nor would it constitute any excuse for so wearing a weapon, to show that the accused was in fear or even in danger of being attacked.

As held by this court in the case of Buzzard v. The State, 4 Ark., 18, a constitutional right to bear arms in defense of person and property does not prohibit the legislature from making such police regulations as may be necessary for the good of society, as to the manner in which such arms shall be borne. Neither natural nor constitutional right authorizes a citizen to use his own property or bear his own arms in such way as to injure the property or endanger the life of his fellow citizen, and these regulations must be left to the wisdom of the legislature, so long as their discretion is kept within reasonable bounds. And it is not unreasonable for the legislature to enact that deadly weapons shall not be worn concealed, that those associating with the bearer may guard against injury by accident or otherwise.

The record does not show sufficient evidence in every particular, but the bill of exceptions does not show that all the evidence is copied in the record, hence the presumption is in favor of the finding. Upon the whole record we find no error to the prejudice of the defendant, and the judgment of the Ashley circuit court is affirmed.