author: Pindall, Sp. J.: Pindall, Sp. J.:

text:
    Brodie and King vs. Watkins and Wife.
    1. Conveyance: Statutory covenants.

    The words grant, bargain and sell in a deed of conveyance, when not limited by express words in the deed, must, under the statute, be construed as an express covenant against incumbrances done or suffered by the grantor.
    2. ---: Recoupment. Defenses to action for purchase money, etc.

    Where the grantees, in a deed containing covenants against incumbrances, permit the land to be sold under prior liens against the grantor, and procure a third party to buy it, for the purpose of strengthening their title, they will be permitted to recoup from the purchase money the amount expended in removing the incumbrance, but cannot set up title in the purchaser to defeat a recovery by the grantor of the residue of the purchase money.
    3. Payment: Option to pay in money or property.

    Where the vendee of real estate contracts to pay the purchase money in cash or by the delivery of cotton of a specified class at a designated place, as the payments become due, at his option, the right of election is not lost by the failure to deliver the cotton at the time and place where it is brought about by the conduct of the vendor.

      4. Abatement by death of a party pending appeal, etc.

    The death of a party to the appeal having been suggested subsequent to the decree of this court, ordered that further proceedings in execution of the decree, so far as affecting his interest, be suspended until the cause is revived against his legal representatives.
    APPEAL from Jefferson Circuit Court in Chancery.
    Hon. J. A. Williams, Circuit Judge.

      Compton, Parsons & Martin, for appellants.

      Goody & McPae and Met. L. Jones, contra.

   Pindall, Sp. J.:

This suit was commenced on the chancery side of the Jefferson Circuit Court, 16th August, 1872, by the appellees, against the appellants, George W. King and James K. Brodie, the object and general nature of which was to obtain judgment for the amount of three notes, for purchase money executed by appellants to appellees, and to enforce a vendor’s lien upon a plantation in Jefferson County, sold to the appellants by the appellees.

The deed conveying the land to defendants, and the notes executed by them are exhibited with the complaint.

The deed is dated 22d of February, 1870, and recites that in consideration of the sum of $10,000 then in hand paid to said Thomas Watkins, and upon the other considerations and conditions thereinafter written, the said Thomas Watkins and Margaret E. Watkins, his wife, had that day bargained and sold and by said deed did grant, bargain, sell, deliver and convey to George W. King and James K. Brodie, the lands described, and certain personal property, also described, contains covenants by the grantors to the grantees of seizen, right to convey, and general warranty, with relinquishment of dower by former grantor-

The deed proceeds to recite : ‘ That said conveyance is made upon the further consideration and condition, that the said King and Brodie are further indebted in the sum of $30,000 for said land and property, evidenced by three several promissory notes, each for the sum of $10,000 due respectively on the 1st days of March, 1871, 2 and 3, all bearing interest at the rate of ten per cent, per annum from 1st of March, 1870, each of which notes may, at the option of King and Brodie, be paid and fully discharged, by delivery to said grantors, or to their order, on the bank of the Arkansas river, ready for market, in good order and condition, 105 bales of cotton for each note, to average 500 pounds each, and to class one-third low middling, one-third good ordinary and one-third ordinary, according to New Orleans classification; or that said notes might be, at the option of said King and Brodie, discharged by paying $30,000 cash at any time before the 1st October, 1870, and it is provided that upon the payment of said notes said conveyance was to become absolute and unconditional, but upon failure to pay either of said notes in cash or cotton at maturity, Watkins might take possession of said land and stock and sell the same for the payment of the purchase money.

The three notes exhibited all bear even date with said deed, and for $10,000 each, with interest from 1st March, 1870, at ten per cent, per annum, due 1st March, 1871, 1872 and 1873, respectively, and each contains the provision that payment might be made by delivery of 105 bales of cotton in accordance with the stipulations in the deed, and the one first due contains an endorsement that it was to be credited, at its maturity, with $4,950, being the Archard note assigned to Watkins by King.

The defendants, King and Brodie, filed their joint answer to this complaint, 19th November, 1872, in which they set up two defenses to the suit.

The first defense is in the nature of a plea of failure of consideration for the notes sued on.

They say, that at the date of the contract and conveyance, there existed two encumbrances upon the title to the land. That one of the encumbrances was a decree of the Circuit Court of the United States, for the Eastern District of Arkansas, rendered in favor of Lou D. Caldweli, and against the plaintiffs, in May, 1868, which constituted a lien on 344 acres of the land, for purchase money due thereon by Watkins and wife; that in June, 1870, a supplemental decree was rendered in said cause, in favor of James H. Core, who had become the owner of said decree, directing a sale of said 344 acres, to pay a balance due on said decree of $3,000, and that on the 10th day of October, 1870, said land was sold under said decree by the marshal of said court, and purchased by one Peter R. Brodie, for the sum of $3,300, and the said lands were conveyed to him by deed.

That they notified plaintiffs of this sale before it took place, and demanded of them to pay off said decree, and protect defendants’ title. That plaintiffs wholly failed and refused to do so.

That the other'incumbrance on the title, was a judgment of the Circuit Court of Jefferson County, rendered in November, 1869, in favor of M. L. Bell, and against the plaintiffs and one James H. Core, which constituted a lien on all of said land, and that execution issued upon said judgment, and the said lands were sold to satisfy the same, on the 10th day of April, 1871, to said Peter R. Brodie, for $4,410, and said Brodie obtained a certificate of purchase therefor, but that defendants were not advised whether he ever received a deed or not, that plaintiffs had a year to redeem said land, and defendants urged them to do so, but that they wholly failed and neglected to redeem the same.

That the legal title to the whole of said lands, was now in the heirs of Peter R. Brodie, the said Peter R. having since died, wherefore, they say, plaintiffs’ warranty of title had wholly failed, and that the consideration for said notes had wholly failed. They charge plaintiffs are wholly insolvent, and if they should have to pay said money, it would be wholly lost.

For a second defense to said suit, the defendants say, that they had more than enough cotton of the quality described, on the bank of the river, at the maturity of said first and second notes, to pay the same, according to the stipulations of the deed, (the third note Avas not due at the time of the answer) and tendered it to the plaintiffs’ agent, and demanded that plaintiffs should remove said incumbrance. Plaintiffs refused to accept the cotton on these conditions. That they have always been ready and willing to pay said notes, according to the stipulations in the deed, if plaintiffs would remove the incumbrances. That cotton was not Avorth exceeding $60 per bale at the maturity of said notes, as an average price.

On December 9th, 1872, plaintiffs amended their original complaint and aver, that these incumbrances were well known to defendants at the time of the contract and conveyance, and that they promised by parol to discharge said Core decree, and deduct the amount from their indebtedness for the lands, that Brodie represented that he could, or had arranged to let Core have some land in satisfaction of said decree.

That Bell agreed, if plaintiff, Watkins, would pay $5,000 on his judgment, out of the cash payment, he would wait for the residue, about $4,000, until the maturity of the first note, that he accordingly paid him the $5,000, and deposited the note with him for defendants to pay to him at maturity, that all parties agreed.to this arrangement, that the residue on said note was amply sufficient to pay Bell’s judgment.

That defendants failed to pay or discharge said Core decree, and plaintiffs, in ignorance of their failure, and relying on their promise, did not do so, and 344 acres of the land were sold under said decree j that on the day of sale defendant, Brodie, promised to pay off said decree, but proposed to let the land sell, and buy .it in, to cut off an outstanding title; that plaintiffs agreed to this arrangement. But defendants failed to buy in the lands, but procured Peter R. Brodie to buy them in, in his own name, and charges that this was done for the purpose of defrauding plaintiffs ; that defendants failed to pay the first note at maturity, and the remaining lands were sold under Bell’s judgment, on 10th April, 1871, and by the procurement of defendants, were purchased by Peter R. Brodie, with like fraudulant purpose. That the land was purchased at both sales for defendants, with means furnished by them for that purpose, and that Peter R. Brodie well knew of the agreement, and that the lands were permitted to be sold for benefit of defendants, and to strengthen their title, and that the amount of the purchases was to be credited upon the indebtedness of his brother and King, to the plaintiffs.

That said Peter R. Brodie had departed this life, leaving a widow, Elizabeth Brodie, and one son, Peter R.; makes these parties defendants to the suit; prays that the title of Peter R. Brodie’s heirs be cancelled, and the title of defendants, King and James K. Brodie, be quieted; and for judgment against defendants for amount of said notes, less the sums for which said lands were sold, and for sale of the lands to satisfy the same after the third note became due.

Plaintiffs filed supplemental complaint, bringing that fact to the attention of the court, and further alleging that King and Brodie were still in possession of the lands, and praying for judgment on all the notes, and sale of lands, etc.

The infant heir of said Peter R. Brodie formally answered by guardian ad litem, invoking the protection of the court.

Elizabeth Brodie, widow of Peter R., answered, denying any knowledge of the facts, and stating that, after her qualification as administratrix of her husband, she found the marshal’s deed, the certificate of purchase at sheriff’s sale, and the receipt of M _L. Bell for the' amount of the purchase under his judgment, among the papers of her late husband; she further states that, upon inquiry, she learned that said lands had been leased by her intestate to J. K. Brodie, and she had since made no disposition of 'them, other than to collect some arrears of rent.

On November 20th, 1873, the defendants, King and Brodie, answered the amended and supplemental complaint. They positively deny that they ever agreed to pay the Core decree, or the Bell judgment, or to assume any liability therefor, and say that they had the right to pay said notes in cotton, and believed that the payment credited on the first note would about extinguish it when reduced to a cotton basis. They deny that the note was left with Bell for the purpose stated.

They aver that Watkins expressiy agreed to pay off the Core decree and the Bell judgment, and protect their title.

They deny that they ever promised to buy in the land for plaintiffs, or to advance the money therefor. On the contrary, they say Watkins was present at said sale under the decree, and tried to borrow the money to pay it offj but failed to dó so.

They deny that Peter R. Brodie purchased the land for them, but aver they believe he purchased for himself.

They again say they have always been ready and willing to pay said notes at the maturity thereof, in cotton, according to their stipulations, if the plaintiffs would remove the incumbrances, in accordance with their obligations. That they had, on the bank of the river, at the place designated, at the maturity of each of said notes, sufficient cotton, of the class specified, to pay the same, and that the average price of said cotton, for each of said three years, did not exceed $60 per bale. Defendants further say that they do not owe exceeding the value of the cotton at the respective dates, and this they offer to pay when the incumbrances are removed.

The depositions of various witnesses were taken, to sustain the allegations of the respective pleadings, and the testimony in the record is quite voluminous, and, to some extent, conflicting.

The cause was heard at the November term, 1874. The court decreed for the plaintiffs, and gave them a judgment for the amount of the several notes, and interest thereon, after deducting the credit of $4,950 endorsed on the first note, the $3,300 and the $4,410 paid at the marshal and sheriff's sale, and that the title of Peter E. Brodie, under such sales, inured to the benefit of defendants, and that the same should be cancelled, and decreed the lands to be sold to satisfy the same.

The defendants appealed to this court.

The questions which arise upon the first defense pleaded, are principally questions of fact.

The deed contains the words “grant, bargain and sell,” and the statutory meaning of these words is not limited by any express words in the deed, and, hence, the covenant must be construed as-an express covenant against incumbrances done or suffered from the grantors. Sec. 829, Gantt's Digest.

The decree and judgment existing at the time of the conveyance constituted an incumbrance upon the title of grantors, and their covenant was broken by the sale of the land under these incumbrances, unless the defendants, by a valid agreement, undertook to remove them.

After a careful examination of the allegations and evidence, we think that it is not.true, as alleged by plaintiffs, that defendants undertook to remove these iiicumbrances, either at the time of conveyance, or at any other time. It is not, therefore, necessary for us to consider what would be the effect of the parol agreement set up in the amended complaint.

We think that the evidence shows that, at the time of the sale and conveyance, it was known that Core would not take the amount of his decree in land, but was pressing for his money, and that Bell was solicitous to collect the amount of his judgment; and that defendants refused to become responsible for them, or to assume any obligations that would prejudice their right to pay for the land in cotton, at the price agreed upon, and refused to consummate the trade unless plaintiffs would arrange these incumbrances. That the plaintiff Watkins induced Bell to accept $5,000 of the cash payment, and wait twelve months for the balance, so that he could pay Core off with $3,000, as he either had used, or needed, the other $2,000 for some purpose of his own; and that he induced defendants to complete the trade by promising them to pay the Core decree, and to remove it from their title. That the balance of Bell’s judgment should be paid out of the cotton received on the first note, and that it was contemplated that a sale under that judgment should take place, to remove an outstanding title to one-half of the land, unless Watkins succeeded in getting up that title before the first note was diie.

The evidence shows Watkins failed to discharge the Core decree, as he had promised to do, and the land so bound by that decree was advertised for sale. That Watkins expected to get defendants to advance the money to pay off the decree, or to buy in the lands under it for his benefit, but failed to get from them a binding promise to do either.

The evidence shows that Peter R. Brodie contemplated purchasing these lands for himself and George Renton, with money to be advanced by Renton, and that he and Renton attended the sale with some such purpose; .but we think this design was abandoned, perhaps, because the interest of his brother and his neighbor,' King, would be sacrificed by such a course.

Peter R. Brodie bought in the lands in his own name, but they were paid for at the sale under the Core decree, with money raised on the draft of King and James K. Brodie, and not with money to be furnished by Renton, as was contemplated, although Renton was present and had the money to advance for Peter R. if he had purchased for himself.

We think it fairly deducible, from the evidence, that the purchase was made by Peter R. Brodie to protect the land from the outstanding title, as contemplated when King and Brodie purchased the land, and that this purchase was made for the benefit of King and James K. Brodie ; that the land was paid for with money raised by them, and that it was not the plesign of Peter R. Brodie and King, at that time, to hold the land adversely to Watkins’ title.

We think the conduct of the defendants on the day of the sale under the Core decree — their connection with Watkins, being grantees of his title, in possession under him and largely indebted to him for purchase money — makes it inequitable for them to hold the land adversely to the title of Watkins, and that they are only entitled to receive a credit upon their indebtedness by the amount of these incumbrances, and we think the legal effect of this sale impressed the same character on the sale and purchase under the Bell judgment, and the two purchases must be construed as parts of the same design. A sale under this last judgment, in certain contingencies, we have seen, was contemplated at the time of the conveyance for the purpose of strengthening defendant’s title.

The after conduct of the parties tends to strengthen this impression : The facts that King became interested with Peter R. Brodie, that James K. Brodie yielded possession to them without suit, without even inquiring whether his brother had obtained a deed under the Bell judgment, and that he leased, the lands from King and Peter R.

The tender of the cotton, and repeated offers of all the parties to carry out their original contract with Watkins upon the just terms that he would conform to his obligations; their declarations to several witnesses, all confirm the impression that these purchases were made to protect King and Brodie.

Upon the facts disclosed by the evidence, we think, there is no error in the decree of the Circuit Court treating the title of Peter R. Brodie’s heir, as the title of King and James K. Brodie, and in crediting King and Brodie with the amount paid for the lands at the two sales.

But the decree of the court is erroneous so far as it renders a judgment in money against the defendants without allowing them their option to pay in cotton according to their contract.

The defendants aver that they have always been ready and willing to pay in cotton, if the incumbrances were settled, and the proof is that they have had the cotton on hand at the maturity of each note, and claimed their right to pay in this way, and they have done nothing to forfeit this right.

It is insisted that defendants should have delivered the cotton on the day specified without reference to their reason, or excuse, for non-delivery, or they forfeited their option. If the conduct of plaintiffs was such as to preclude them from exercising this option, their privilege would not be forfeited, or if at any time of payment there was nothing due, defendants could not be expected to pay anything either in money or cotton.

The first note, due March 1st, 1871, contained an endorsement signed by Watkins, that it was to be credited at maturity with $4,950. This endorsement was never delivered to or accepted by defendants, is not introduced by them, or relied on by them, and is not signed by them; in no sense can it be considered conclusive upon them.

The evidence of King and Brodie, both, shows that the contract was that it was to be considered a payment in cotton, and if the price ruled lower they were to have the advantage of it, if higher they were to make good the deficiency.

Before tbe first note became due the defendants were forced by the bad faith of Watkins, to advance $3,300 to remove an incumbrance he had agreed to pay off, and they were entitled to interest on this sum from 10th October, 1870, to 1st March, 1871, making another credit of $3,377, and, with the credit endorsed, a total amount of $8,327. The value of the 105 bales of cotton due at that date was, according to one witness, $5,687.50, and, according to another witness, $5,731.25. They had the cotton and tendered it to plaintiff’s agent, and demanded of him to remove, or settle the incumbrance. Nothing was due to the plaintiffs, on the contrary a considerable over-payment would have been carried over to the maturity of the next note, and the reply of defendants to plaintiff’s demand for 27,750 pounds of cotton, that they would not turn over any more cotton until plaintiff complied with his obligations, was justified by the above figures.

Before the second note become due, defendants had been compelled to advance $4,410, to pay off the Bell judgment, and they were entitled to interest on this sum from 10th July, 1871, the time they paid it; the value of cotton at this time is not shown in the evidence, but the allegation is that it was worth no more than $60 per bale, as an average price of the grades required, or $6,300, a sum considerably less than the payments already made. If this allegation be true the plaintiff was not entitled to anything, at that date, either in money or cotton.

■ Before the last note was due this suit was commenced, and the matter was being litigated for the large sums claimed impropei’ly by the plaintiffs, the defendants clearly had the right to have the amount paid to redeem the incumbrances allowed to them, the wrongful act of plaintiffs in forcing them to advance so largely in money cannot prejudice their right to have the notes settled upon the cotton basis.

The plaintiffs are entitled to a judgment for the value of the cotton found due them on the notes, according to the above principles, and interest thereon at six per cent, per annum.

The decree of the court below will be reversed, at the cost of appellees.

But, inasmuch, as no proof was taken of the value of cotton on the 1st March, 1872 and 1873, and the estimate of the two witnesses differs as to the value in 1871, the cause will be submitted to the clerk of this court, who will, as a special master, be instructed to examine such witnesses as the parties may bring before him, as to the value of cotton ai the maturity of the several notes ; he will state an account between them, charging plaintiffs with the $4,950 credited on the first note, as of the maturity of that note, and the $3,300 and six per cent, interest to the same time, credit them with the value of cotton, of the various grades at that date, as he shall ascertain from the witnesses. He will allow defendants six per cent, interest on the. overplus until the first day of March, 1872, and, also, credit them by the $4,410 paid Bell, 10th July, 1871, and six per cent, interest on this sum, until the maturity of second note; he will credit this amount with value of the 105 bales due on that day, and if it still leaves an over-payment, the amount of such over-payment will be carried to the third note and bear six per cent, interest, until March 1, 1873, he will ascertain the value of the 105 bales of cotton at this date, deduct whatever amount may be due them on the over-payment of 1872, and charge them six per cent, interest from March 1, 1873, and report the account to this court.

A final decree for the enforcement of this amount, and a disposition of the title will be rendered upon the coming in of the report.

The report of the clerk, as Special Master, having been filed and approved, the following statement was made, and directions given by:

Pindall, Sp. J.:

The testimony taken by the Master, shows that at the maturity of the first note described in the pleadings, the vklue of the 105 bales of cotton, by which that note could be discharged, was 16,081.25.

The credit endorsed on that note, and the amount to which appellants were entitled, for money advanced, to buy the land under the Core decree, and the interest thereon to that date, amounted to $8,328.10, showing an over-payment of $2,246.85. This sum and interest thereon to the maturity of the second note, and the amount advanced to purchase under the Bell judgment, and interest thereon to the same time, amounted to $6,962.18. The evidence taken by the Master’, shows that the value of the 105 bales by which this note could be discharged, at the maturity of the note, was $9,537.50, deducting the amount of the credits from this sum, leaves a balance of $2,575.32 due on the second note. ■

The evidence shows that the value of the cotton, at the maturity of the third note, was $8,411.87, and appellees are entitled to a decree for the amount of these two sums, and six per cent, interest thereon.

The appellant, King, having died on the 5th day of May, 1877, the decree will be entered as of the 17th February, 1877, the day upon which the original opinion in the cause was delivered, and before the death of King.

The amount of the recovery will then be as follows:

Balance due upon second note, March 1, 1872,... $2,575.32

Int. to Feb. 17,1877, 4 years, 11 months, 16 days, 766.58

Am’t of third note, March 1, 1873,.................. 8,411.87

Int. to Feb. 17,1877, 3 years, 11 months, T6 days, 1,999.19

Amount to Feb. 17, 1877,.................$13,751.96

A decree will be rendered in favor of appellees, and against appellants for this amount, and the same be decreed a lien on the lands described in the complaint and proceedings.

The death of King having been suggested on the record, the suit has abated as to him. No order of sale will be made until his heirs and legal representatives are made parties.

The cause will be continued, with leave to revive against the administrator and heirs of King, when ascertained.

All the title and interest acquired by Peter R. Brodie at the sale under the Core decree, and the Bell judgment, is hereby divested out of the said Peter R. Brodie, Jr., and Elizabeth Brodie, the heir and widow of Peter R. Brodie, and vested in James K. Brodie, and the heirs and legal representatives of George W. King, and when the above amounts are-paid, all the right, title and interest of Thomas Watkins, and Margaret E. Watkins, his wife, or either of them, shall vest in the said James K. Brodie, and the heirs and representatives of George W. King, and their title to the land in controversy be quieted and confirmed.

The clerk of this court will be allowed a fee of $50 for his. services as master, to be taxed as costs in the case.

The costs of the suit, both here and in the court below, will be adjudged against Watkins and wife, and paid out of the proceeds of the decree.

The Hon. William M. Harrison, Associate Justice, did not sit in this case.


source: Caselaw Access Project

author: Walker, J.:

license: Public Domain

text:
    Jacks vs. Dyer et al.
    1. Bill of Exceptions.
    Where the evidence is not embodied in the bill of exceptions, but reference is made therein to the pages of the transcript upon which it is entered, it is sufficient, though the better practice is to embody it in the bill of exceptions.
    2. Ejectment; Evidence.
    In ejectment, proof of possession, under claim of title by the plaintiff’s ancestor, is sufficient to entitle plaintiff to recover, unless the defendant shows a better title.
    3. Dower; Transfer before assignment, evidence, etc.
    The widow cannot transfer her estate by dower in the land of her deceased husband before the same has been set apart to her; and a deed executed by her before assignment of dower, is not admissible in evidence to establish title in her vendee.
    4. Taxes: IAen for; Sale by ex-collector, etc.

    Under the provisions of sec. 105, Oh. 148, Gould’s Digest, the lien of the State and county for taxes was transferred to the collector, who should pay the same, with power to collect such taxes for three years after payment, notwithstanding the expiration of his term of office. By an act approved the 13th of March, 1867, the time was extended one year. It is questionable whether the Legislature had power to extend the time during which the officer could act, or the lien on the property charged with the taxes, so as further to encumber it.
    5. ----: Same.

    The power to sell under this act depended upou the pre-existing fact that the collector had settled with the State and county officers, and paid all the taxes due for the particular year for which the taxes were charged, within the time prescribed by law, and had settled the particular tax which he failed to collect; the remedy provided by the’statute must be strictly pursued.
    6. Tax deed: When void.

    Where a tax deed, under a sale of land for the non-payment of taxes for the years 1859, ’60 and 61, does not recite the assessment of the land for those years, but shows that the assessment was made and filed in 1867, the deed is void,* and cannot be cured by parol evidence. (For other irregularities which will vitiate the sale, see the opinion.)
    7. --: Power of cleric to make tax deed.

    The clerk had no power to execute a deed to land sold for non-payment of taxes, under the provisions of sec. 105, Oh.' 148, Gould’s Digest. The act authorizing him to execute tax deeds did not relate to that class of sales.

      8. --: Effect of purchase at tax sale by one claiming title.

    One who buys land at tax sale to which he claims title, does not thereby strengthen his title, but only removes the incumbrance created by the non-payment of taxes.
    9. Ejectment: Bents and profits.

    Upon a recovery in ejectment, the plaintiff is entitled to judgment for rents and profits during the time the defendant was in possession.
    10. ---: Improvements by defendant.

    A defendant in ejectment, who claims under a tax title, also under a conveyance from a third party, and who made improvements before the tax title accrued, cannot recover the value of his improvements from the plaintiff'.
    APPEAL from Phillips Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Tappan & Hornor, for appellant.

      Brown, contra.

   Walker, J.:

The appellees brought an action of ejectment in the Phillips Circuit Court, against James Summers, to recover possession of a lot of land in the city of Helena, and for damages for the use and occupation of the same. The case was submitted to a jury, who, upon the evidence and instructions of the court, found a verdict for the plaintiffs, from which the defendant appealed to this court.

The counsel for the appellees contend that the evidence upon which the case was determined in the court below is not brought before us by bill of exceptions. It is true that the evidence was ■ not (as it should have been) embodied in a bill of exceptions, but a reference is made to each page of the record upon which written and parol evidence was entered; it is quite probable that the counsel who prepared the bill of exceptions, as well as the judge who signed it, referred the clerk to the pages upon which the evidence was to be found, with instructions that it might be appropriately placed in the bill of exceptions; the judge certifies that it is all the evidence in the case; we find the references sufficient to enable us to ascertain what the evidence was before the jury, and will proceed to an investigation of the case upon its merits.

The plaintiffs claim title to the lot of land in controversy as heirs at law of Pleasant Dyer, deceased. After proving that the original plat of the city of Helena was neither in their possession nor under their control, they offered, and introduced in evidence, a certified copy of the plat of‘the town of Helena, from the recorder’s office of the county of Phillips, and, also, an unbroken chain of title, by deed, from the original proprietors of the town to Pleasant Dyer, their father, and that he resided upon the lot with his family, and died in the actual possession of it, and that plaintiffs were his sole children and heirs at law.

The first question to be considered is: was this sufficient evidence of legal title in the plaintiffs to entitle them to recover? Defendants contend that it is not, but that, in order to entitle plaintiffs to recover, it was necessary for them to show a chain of title from the Government of the United States to their ancestor.

It is very true, that in ejectment the plaintiff must show title in himself; and it is also true that, in some instances, it is found necessary, in contest for superior title, that the plaintiff should trace his title to the government, the source of title, but it by no means follows that in every instance a plaintiff in ejectment is required to make such proof, as, for instance, where the plaintiff and defendant claim to have derived title from the same source, it is not necessary for either party to trace title beyond that under which they claim ; nor is it necessary, when the plaintiffs assert title under an ancestor who died in possession of land in the first instance, to trace their title further. In such case, a presumption of title is raised in favor of the heir, which must prevail until rebutted by proof of superior title in the defendant. Adams’ Equity, 281; Carnall v. Wilson, 21 Ark., 62.

In the case under consideration, plaintiffs claim, as heirs of Pleasant Dyer, who died in possession of the lot in controversy, and it was not strictly necessary for them to have introduced evidence of a chain of title from the proprietors of the town to their ancestors; proof of such actual possession, under a claim and color of title, was sufficient to entitle the plaintiffs to recover until a better title was shown by defendants.

The title set up by defendants is derived from T. M. Jacks, who claimed to have purchased of the widow of Dyer, and also of a purchase of the lot, at tax sale, by Jacks.

As regards the quit-claim deed, from Striker and wife to Jacks, the wife being the widow of Dyer, the only interest which either of them could have, was the dower interest of the wife, which, never having been set apart to her as such, was not transferable. Carnall v. Wilson, 21 Ark., 62; Jackoway v. McGarrah, id., 347. The deed from Striker and wife was, therefore, properly excluded from the jury.

The defendant also offered to give in evidence, a deed executed for the purchase of the lot at tax sale, and at the same time offered to prove by parol, that the collector of taxes for the years 1859, 1860 and 1861 had paid the taxes on the lot for each of those years, but the court refused to admit such evidence, or the tax deed to be given in evidence.

The correctness of this decision presents the most material question to be determined.

From the recitals in the deed, it appears that the sale of the lot was made in December, 1868, by an ex-collector of taxes, for the taxes due for the years 1859, 1860, 1861, which taxes are claimed by the then collector to have been paid by him. The 105th section, Ch. 148, Gould’s Digest, provides that “ every collector who shall pay into the State and county treasury the full amount of State and county tax with which he may stand charged, on or before the time prescribed by law, shall have the same lien upon the property chargeable with taxes advanced by him, as the State or county would have if the taxes remain unpaid, and may proceed to collect the same for three years after such payment, in the same manner as other taxes are collectable, notwithstanding his term of office may have expired.”

As the sale, in this instance, was made in 1868, it necessarily follows that it was after the expiration of three years, and was made under an extension of the time for one year given under the act of March 13th, 1867. It might be a question of gi’ave consideration, whether the Legislature had power to extend the' term of .office, fixed by law, and under which the officer was commissioned and qualified to act, and whether, after the time given under the first act had expired, a subsequent Legislature could renew and extend it for a longer time.

In the case of Hogan v. Brashears, 13 Ark., 242, a sale of land was made by a sheriff after his term of office had expired ; it was held, that such sale was void.

In Twomly v. Kimbrough, 24 Ark., 459, the decision of the case of Hogan v. Brashears was approved; but it was, in the latter case, held, that where a sheriff, after making a levy, goes out of office, he may proceed to sell, although, his term of office had expired; and it is also questionable whether the lien which the State had upon the lot for the payment of the taxes assessed, and which was transferred by legislative enactment to the collector, could be extended by a subsequent act of the Legislature so as to further incumber the property assessed for taxation with such lien. The act which authorizes the collector to collect the taxes so paid, confers upon him the same power to collect which the State would have had, had the taxes remained unpaid; that is, as other taxes are collected by the State. In order to make á valid collection, the property must be regularly assessed, the assessment extended on the tax book, to which is attached a warrant issued by the clerk. Gould’s Digest, sec. 50.

Where the land belongs to a resident of the county (which was the case in this instance), sale is made under the provisions of sec. 107 Gantt’s Digest, Oh. 148; which provides, that each collector, on the failure of any resident of his county to pay the taxes with which he.may be charged on the tax book, if there is not personable property, shall levy on and sell the land or town lot charged with the payment of such tax, in the same manner as lands are levied upon and sold under execution ; the time of sale is the second Monday of March in each year, at the court house door of the county.”

Section 111 provides, that'such collector shall make a deed to the purchaser ; this statute was in force when the collector paid the taxes, as well as when the sale of the lot was made ; it was a special power conferred by statute for a particular purpose, and the right to exercise it depended upon the pre-existing facts, that he had settled with the State and county officers, and paid all the taxes due for that year, within the time prescribed by law; and that, in such settlement, he settled the particular tax which he failed to collect; he must do this in order to bring himself within the provisions of the act, and must strictly pursue the remedy in accordance with the power conferred. Blackwell, in his work on Tax Titles, p. 49, says : Where a statute creates a new power, and, at the same time, provides the means and mode of executing it, those to whom the power is entrusted can execute it only in the mode prescribed; but the question is, has such been the case in this instance ? It is recited in the deed that, on the 9th day of March, 1868, James A. Bush was assessor, and Bart W. Green was late sheriff and collector of taxes for Phillips County; that the lot 470, in Old Helena, in said county, was entered, listed and assessed for taxation in the name of Pleasant Dyer, a resident of said county, agreeably to the laws of the' State regulating the collection of taxes ; that on the fourth Monday of December, 1867, said late sheriff and collector made out and filed in the clerk’s office of the County Court an accurate list of all the lands and town lots in said county, owned by persons who resided therein, on which the taxes had not been paid, setting forth the owners’ names, and the description of the lands and town lots described in the tax book, with the amount of taxes due thereon for the years 1859, 1860, 1861, having paid the State and county tax assessed, in pursuance of said laws, amounting to the sum of $6.17, due on said lots for the years 1859, 1860, 1861, within the time prescribed by law, there being no personal property; therefore, Bart W. Green, late sheriff and collector for the county of Phillips, advertised said lots for sale, to be sold at auction on the 9th day of March, 1868, at the court house door, Helena, Arkansas, for the payment of said taxes, the names of the owner and the penalty due, and that the taxes remained unpaid, and that, as such sheriff and collector, on the 9th of March, 1868, he sold the lot at public sale; that it was purchased by Thomas M. Jacks for $7.92.

These are the substantial recitals in the deed, and in consideration of which, Samuel J. Clark, clerk of said county, granted, bargained and sold said lot to Thomas M. Jacks.

Admitting all the recitals in the deed to be prima facie evidence of the regularity of the proceedings, they fall far short of showing a valid sale.

Blackwell, p. 48, says, “As a matter of policy, tax sales should not be sustained, unless the laws are shown to be complied with;” on page 49, “that the power to sell, can only be executed in the mode prescribed, upon a rigid adherence to the directions and forms which the legislature has seen projjer to lay down for the government of its agents.” In the case of Hogan v. Brashears, 13 Ark., 242, the necessary recitals to uphold a tax deed, were fully discussed. Mr. Justice Scott, who delivered the opinion of the court, when considering this question, said: “ The party who sets up title, must furnish evidence necessary to sustain it, when, for this purpose, he relies upon a tax collector’s grant whose authority is not general, but limited, both in the mode, and scope of its exercise; to sustain its operative force as such, he must exhibit all of the substantial pre-requisites to his authority to make the grant.” In our subsequent decisions, this rule has been approved and adopted.

Keeping this rule in view, we find no recital in the deed under consideration showing that the lot sold was assessed in the years 1859, 1860, and 1861, for taxation; the recital is, that the assessment was made in 1867, and on the fourth Monday in December, of that year, was filed in the clerk’s office with other lands and lots for taxation. An assessment in 1867, conferred no power of sale of the lot, for the taxes assessed for 1859,1860 and 1861; it was the assessment made then, which created an obligation on the owner to pay.

Blackwell, p. 114, says: “That listing and valuation of the land for taxation, within the time, and in the manner required by law, is essential to the validity of the tax, one which cannot, under any circumstances, be dispensed with.”

Cooley on taxation, p. 253, says: “ Assessment is an indispensable proceeding in the establishment of any individual charge against either the person or property.” In the case of Gossett v. Kent, 19 Ark., p. 602, Mr. Justice English, when considering the effect of an assessment completed by the action of the County Court, held that it was in effect a judgment, and the warrant attached to the tax book, in its nature, an execution. It was this assessment which imposed an obligati m upon Dyer, to pay the taxes, and it was his liability to pay, which, alone, authorized the collector to advance the taxes for him; and because this recital was not made, the deed was utterly void.

In this particular case, it was a necessary pre-requisite to the right to collect the amount so advanced, to recite and prove, that the collector had fully settled and paid, all the State and county taxes due to the State and county, for the years 1859, 1860 and 1861, within the time prescribed for settlement in each of these years, and that in such settlement, he had advanced the taxes upon the lot of Dyer; because it was upon this condition alone that the lien, which the State held upon the lot, was continued in favor of the collector. These recitals become necessary, not under the general law in regard to the sale of land for taxes, but under the special power conferred upon the collector who had advanced taxes.

Upon comparing the recitals in the deed with the Statute, it will be found that they were not made under the 107, 108 and 111 sections of Gould’s Digest, which provides for the sale of resident tax payers land, but that it is almost a literal recital of of 115th section of Gould’s Digest, which relates alone to the collection of taxes on the lands of non-resident tax payers.

It was under this section, that the taxes due for the current year of 1867, and the preceding years were entered on the tax book for collection; such entry was not provided for under the provision for the sale of residents’ lands; it was not a strict compliance, indeed no compliance whatever with the law, authorizing the sale of lands of resident tax payers, and for this reason, also, the deed was fatally defective.

The recitals in the deed that the lot was sold, and a certificate for the purchase had been given to the purchaser, Jacks, are in conformity with section 124 Gould’s Digest, which relates to sales of non-residents’ lands alone. No day is given for redemption of residents’ lands sold for taxes. Under the provisions of the 111th section, the sheriff and collector was required to sell and make deed to the purchaser; it was a special power, and one which he alone could perform.

The clerk of the court who seems to have executed the deed, had no power to do so, he was not the successor in office to the ex-collector, all of the powers conferred upon the clerk were given under a subsequent statute, one which changed the time and manner of sale, and gave day for redemption to the owner of the land, in default of which, as clerk, upon the presentation of the purchase certificate he was authorized to execute a deed to the purchaser.

Without pursuing an investigation as to other irregularities in the deed, we feel satisfied that upon each of these grounds the deed was properly excluded from the jury, as evidence so fatally defective that if the parol evidence proposed to be introduced had been admitted, such defects would not have been cured.

The remaining questions arise upon the action of the court in regard to the improvements placed upon the lot by the defendant, and the rents and profits claimed by the plaintiffs.

According to the facts presented, the assessor was remiss in his duty in the assessment of this lot for the years 1859, 1860 and 1861.

The assessment appears to have been made in the name of Pleasant Dyer, when in fact he died in 1857, several years before such assessment. On the 6th day of May, 1861, the widow of Dyer, who, in the meantime, married Slinker, conveyed the lot to Jacks, who entered upon it, held and claimed it as his own until the 24th September, 1866, at which time he conveyed the lot by deed to defendant Summers, who entered and held it in 1867, when it was again assessed as the property of Dyer who had been dead for ten years. All the while from the purchase of Jacks in 1861, this lot was held by Jacks and Summers under bim, under the deed from Slinker and wife to Jacks, and not under a tax title; the purchase of the lot by Jacks at tax sale was made after his sale to Summers, and was evidently intended to quiet his previously acquired title. In point of fact when the taxes of 1861 became due and were paid by the collector, Jacks and not Dyer was properly chargeable with the taxes. He acquired title to the lot with the incumbrance of. all the taxes upon it, and, when bought in for taxes, did but remove such incumbrance.

It is well settled that one who redeems lands forfeited for the non-payment of taxes, acquires thereby no additional title to it, and so one who buys land at tax sale to which he claims title, which was incumbered with taxes, acquires no additional title, but only removes such incumbrance.

Such being the title under which defendants claim, the question is, did the court err in the instructions given to the jury ?

At the instance of the plaintiff the court .instructed the jury that if they should find from the evidence that the plaintiffs were entitled to the possession of the lot, they may find them entitled to the rents and profits, accruing from the possession of the same by defendant Summers.

This instruction was given; to the giving of which the defendants excepted. This was the only instruction bearing upon this question, and was properly given. It was shown by the evidence the length of time the lot was in the possession of Summers, and the value of the rents. The instructions asked by the defendants and refused by the court, relate to the proof necessary to entitle the plaintiff to recover, and were properly overruled, from the view which we have already taken, as to the necessary proof to entitle the plaintiffs to recover; the instructions were properly refused.

The defendant Summers claimed that after his purchase of the lot, he had made valuable improvements upon it, and offered to prove the value of such improvements; he was himself the witness by whom it was expected to make such proof, and by consent made a statement of what he proposed to prove, which was that the improvements were made in 1867 and 1868, and were worth $750. Such being the case the improvements were not made under a claim of the lot under a tax title, because the lot was not sold until December, 1868, nor was the tax deed made until the 13th day of November, 1871; the improvements were made under his claim of title under a deed from Jacks; if he sustained damage by reason of improvements upon land to which he had no title, he must seek his remedy (if he has any) upon his warranty of title by Jacks; the evidence was properly excluded.

Several other questions were raised during the trial, but as they were not made grounds in the motion for new trial, need not be considered.

Finding no error in the judgment and decision of the court below, the same is affirmed with costs.


author: PlNDALL, Sp. J.:

text:
    Trapnall, ex’r, etc., vs. Hill et al.
    1. Tenants in Common: Ejectment.

    Where one tenant in common ousts another, or does some act amounting to a total denial of his rights as co-tenant, the latter may maintain ejectment; and, under the statute, may recover his proportion of the rents and profits in the action.
    2.--: Account; Chancery Jurisdiction.

    In most matters of account, courts of equity exercise concurrent jurisdiction with courts of law. Upon a complaint in equity, by a tenant in common, alleging an ouster by his co-tenant, and praying an account of the rents and profits received by him, and possession of his share of the premises, the court will entertain jurisdiction.

      3. Account: Pleading, etc.

    To constitute an account cognizable in equity, there must be mutual items, creating a running account, or such complications as distinguish the transaction from a debt on one side, and a set-off on the other; and the complaint should show the particular character of the accounts, or the circumstances creating the necessity for equitable interposition.

      4. Demurrer:
    A demurrer to a complaint in equity, which is not filed in apt time, and not submitted until the cause is ready for a final decree, will not be considered, if the pleading and evidence in the entire cause show a case for equitable relief.
    5. Answer:
    The answer must contain a denial of each allegation the defendant intends to controvert, or that he has any knowledge or information thereof, sufficient to form a belief. Every material allegation not thus specifically controverted will be taken as true.
    6. Cross-Comrlaikt:
    A cross-complaint must relate to the matters embraced in the original complaint. Where it is filed as a mode of defense to the original complaint, it requires no equity to support it, but where it seeks affirmative relief, it must be based on matters of equitable cognizance.
    7. ---:
    A cross-complaint against a co-defendant, which seeks relief by way of damages for a breach of covenant, and presents no grounds of equitable cognizance will not be entertained.
    APPEAL from Pulaski Chancery Court.
    Pión. W. I. Warwick, Chancellor.

      Glark & Williamis, for appellant.

      Gallagher & Newton and Rose, contra.

   PlNDALL, Sp. J.:

The appellees, as heirs at law of John W. Cocke, deceased, filed their complaint in the Pulaski Chancery Court, 8th November, 1869, against Benjamin C. Trapnall and Joseph C. Schader, wherein they charge that on and prior to the 1st day of January, 1860, their ancestor, said John W. Cocke, and the late Frederick W. Trapnall, were seized in fee as tenants in common of some improved real estate in the city of Little Rock.

That, upon the death of said John W. Cocke, the title to the one undivided half of said property descended to and vested in them. That said Trapnall afterwards died, and the defendant, Benjamin C. Trapnall, as the heir at law of said Frederick, on the 1st day of January, 1864, unlawfully took possession of the whole of said property, collected the rents and profits thereof, and on the 1st day of May, 1864, wrongfully sold and conveyed the whole thereof to the defendant, Schader. That the said Schader thereupon entered and took possession of the whole thereof, and continued to hold and occupy the same, hitherto, and still retains it, and refused to account to them for their half of the rents and profits thereof.

That complainants had sued Schader, in ejectment, for the possession of their half of said property in the law court, which cause was still pending. They were advised it was doubtful whether they could recover anything more than the naked possession, without obtaining any account for their share of the rents or profits, either as against said Schader or Trapnall, and that their remedy at law was incomplete.

They pray an account may be taken of the amount due them by said Trapnall and said Schader, respectively, and that they be directed to pay the same over to the proper parties, for the possession of their half of the premises, and their costs, and for general relief.

The defendants were both personally summoned to answer:

On the 9th April, 1870, Schader filed his separate answer. He expressly admits some of the allegations in the bill to be true, and as to some of the most material, as, for instance, the title and seizin of Cocke, the heirship of the complainants, etc., he pleads that he does not know the facts as alleged to be true, and, therefore, does not admit them to be true, and asks that complainants may be required to prove the truth of these allegations ; and further answering, he proceeds to set up his purchase from Ben. C. Trapnall, acting for himself, as well as under power of attorney from his brothers George and William V. Trapnall, the last two being non-residents of the State, who, as the sole heirs of Frederick W. Trapnall, were in possession of the premises, and claimed title to the whole thereof; that he paid them therefor the sum of $900 in gold, which, he alleged at the time, was of the value of 173 cents to the dollar in currency; $400in silver, of the value of 155 cents to the dollar, and $1,390 in ■currency, and received from said Trapnall, acting as aforesaid, a deed to the whole of said property, with covenants of general warranty, and also a special covenant, stating that it was the intention of said deed to vest in said Schader a good and perfect title ; and obligating said grantors, if said deed shall fail of that effect, to make, or procure to be made, such further assurances as were necessary for that purpose, or, in default thereof, to reimburse him for all losses and damages he should sustain by reason of their failure to do so ; further answering, he proceeds to describe the condition of the improvements on the property when he purchased it; states he made considerable repairs on the building then standing, which he describes, and that he erected new store houses thereon, of a valuable and permanent character, which he also describes; that he paid the taxes for a number of years; states the amount, also; states the amount of rent he had received for the several years he had possession; he accompanies his answer with itemized statements, consisting of long accounts for cash paid for labor, lumber, material, and for expenses used in building; also statement of amount of rents received during the different years; in short, he presents accounts which were, to some extent, mutual, apparently complicated, and forming a connected transaction running through several years.

Further answering, he admitted he had been sued in ejectment for the undivided half interest in said property claimed by complainants ; that he immediately gave notice to said Benjamin C. Trapnall, the only one of the grantors residing in the State, and required him to defend the same; that Trapnall had entered his appearance, and filed a plea in bar of that action, and that he himself had filed a plea in bar of said suit, and that the same was then pending in said Circuit Court. Upon advice, he admits that the rights of all parties can be better determined in a Chancery Court than by said action at law.

He'then proceeds to plead the statute of limitations to complainants’ claim, and insists that it is stale. He submits, that if complainants recover against him the one half of said property, he should, under the covenants in his deed, and t® avoid circuity of action, recover, over against Trapnall, the value of such part and of all rents for which he is compelled to account to complainants.

He makes his answer a cross-bill against complainants and the Trapnalls, and requires them to answer the allegations, and in the event of a recovery against him in this suit, he prays a decree over against Ben. C. and George Trapnall for the full amount of such recovery — William V. Trapnall having died since his purchase.

Complainants answered this cross-bill on 8th March, 1871. They deny that the possession of said Frederick W. Trapnall was ever hostile to their title, or that there was ever such an adverse holding by any one as would start the statute of limitation, they join in the prayer for an account, and proffer to perform whatever decree may be rendered consistent with equity.

On 20th October, 1871, the defendant Ben. C. Trapnall filed his demurrer to the original bill, which seems to have slumbered until the 22d December, 1873, when it was taken up, argued, submitted to the court, and by the court overruled.

He seems never to have plead to the cross bill or noticed the same in any manner whatever.

Upon the coining in of the answer and cross bill of Schader, and, before the demurrer of Trapnall was filed, the cause was referred to a master, and with whom a special commissioner , was associated, to take an account of the cost and value of the repairs, the cost and value of the permanent improvements, the amount of taxes paid by Schader, whether the property could be so partitioned as to allot the improvements to Schader, the value and amount of one-half of the purchase money, and interest paid by Schader, an estimate of the entire loss to Schader, including attorney’s fees in the event he should lose one-half the property, the amount and value of the rents and profits since Schader purchased it, and also to take proof, etc.

They took testimony, and stated an account, and on the 15th of March, 1873, their report was filed, the matter was subsequently re-referred to the master and commissioner, to ascertain the then present value of the permanent improvements, also the difference between the value of currency, and of gold, and silver, at the time of Schader’s purchase; their second report was filed November 18th, 1873.

The defendant, Ben. C. Trapnall, on the 9th December, 1873, filed exceptions to the report of the master and special commissioner, upon two grounds:

First — Because the report estimated the value in legal tender currency, of the gold and silver coin he had received from Schader, and he insisted he had, by the law of Congress, the right to pay in legal tender currency, all debts he had not agreed to pay in coin, and all debts he had agreed to pay in coin he could pay in kind.

Second — He excepted to an allowance to Schader of $500 for counsel fees in estimating the losses he had sustained in defending the action at law and this suit.

On the 28th May, 1873, Probst & Hilb filed their petition in the cause, showing that on the 17th February, 1872, they purchased from said Schader his entire interest in the property, were entitled to become subrogated to his rights, adopted his pleadings and proceedings, and were, according to their prayer, made parties to this suit in his place and stead.

The final decree was rendered 11th December, 1873. The court found that Schader acquired no greater interest in said property than the one-half thereof by his purchase from Trapnall, and that the complainants in original cause were entitled to one-half of the rents and profits of said property from the time said Schader went into the possession, after deducting the amount of taxes and insurance paid thereon, and the value of the permanent improvements made by said Schader, and the interest on the cost thereof.

And said Probst & Hilb then offering to pay said one-half of said rents, and one-half of the original purchase money paid by Schader to Trapnall, to said heirs of said John W. Cocke, and receive an unencumbered title to the whole of said property, and said heirs assenting thereto — it was decreed that said Probst & Hilb pay to said heirs of Cocke, $450 in gold, $200 in silver, and $695 in legal currency, being the one-half of said original purchase money, and the further sum of $2,658.50, being the one-half of the rents due to said heirs, as above stated.

The court, in said decree, then made provision for the security and interest on said several sums until paid, and further decreed that upon full payment the title to said property should vest in said Probst & Hilb, subject only to the lien for those sums.

It was further decreed that said Benjamin C. Trapnall pay unto said Probst & Hilb, $450 in gold, $200 in silver, $1,468.37 in legal tender currency, being one-half of the purchase money received by him from Schader, and the interest thereon, and the further sum of $250 attorney’s fees paid by said Schader in this litigation, and that Trapnall pay all the costs.

After the above decree was rendered the defendant, Ben. C. Trapnall, died, and the present appellant, George Trapnall, qualified as his executor, lodged a transcript in this court, and obtained an appeal from said decree, and now insists as cause of reversal:

First — That the court erred in overruling the demurrer filed by his testator to the original complaint, and in taking jurisdiction of the cause.

Second — In rendering a judgment in favor of the original complainants on the facts.

Third, — Both as to the law and the facts, in taking jurisdiction of the case on the cross bill of Schader, and in rendering a decree against Trapnall.

Fourth — Investing title in Probst & Ililb, reserving a lien and ordering sale.

The demurrer which was overruled by the chancellor, was:

First — To the jurisdiction of the Chancery Court.

Second — To the sufficiency of the complaint.

First — It was insisted that complainant’s remedy was complete at law. That it was shown that they already had an action of ejectment pending, and they could have recovered their rents in that action, and, therefore, this court had no jurisdiction of the matter.

While it is true that they could have maintained ejectment' for their undivided half of the premises, and under our statute it would have been competent for the law court to give judgment for the value of the mesne profits, in the way of damages, (Gantt’s Digest, 2260), and might have had a writ of enquiry to assess the same (Digest, 2262), they would have to prove, on the trial, that the defendant actually ousted them, or had done some act amounting to a total denial of their rights as co-tenants (ib., 2259), and would have had to prove the amount of rents and profits, as they best could, at a nisi prius trial, and afterwards be driven to some equitable or statutory proceeding to obtain partition, and possession of their part in severalty, and, in case the premises were not susceptible of division, could have had no sale in that proceeding, while the mode of proceeding in the equity courts, was much more adequate than any relief they could obtain at law.

The principal object of this complaint was to obtain an account, and recovery of the mesne profits, and the prayer for possession of their undivided half interest was only ancillary to this purpose.

And for the purpose of taking an account, equity courts exercise concurrent jurisdiction with the law courts in most matters.

“The answer to this ground of demurrer is, that, although the plaintiff might have an action at law, he cannot have as complete relief there as in this court.” Jones v. Bullock, 2 Dev. Eq. Rt., 370. “ There is a great variety of cases where courts of equity have concurrent jurisdiction with courts of law, and such is the case in all matters of accounts.” Hawley v. Cramer, 4 Cowen, 727.

“The full concurrence of Jurisdiction by courts of equity for relief in all matters of account, whether there be a remedy at law or not, seems to have been largely insisted upon by Lord Erskine in the Corporation of Carlisle v. Wilson, 13 Vez., Summer’s note to the case. 'There is no doubt the remedy in equity is generally more complete and adequate.’

“It is no objection that the party has a remedy at law, unless it be shown that the legal remedy is plain, direct and complete.” Witter v. Arnett, 8 Ark., 60; see, also, 1 Story Equity Ju., 457; Adams’ Equity, 431n., and cases cited.

“Under this head (account) the jurisdiction of courts of equity, in regard to rents and profits, may by considered. A great variety of cases of this sort resolve themselves into matters of account, not only where they arise from priority of contract, but also when they arise from adverse claims. 1 Story Eq. Ju., 508; and when resorted to for the purpose of an account for mesne profits, will, in many cases, decree it, when the party has not established his right at law.” Ib., 509.

In the case of Nelson v. Allen & Harris, 1 Yerger, 360, the Tennessee court claimed that equity courts had concurrent jurisdiction with courts of law, in cases of account; and, in this case, Nelson, having recovered his ejectment at law, brought a bill in equity for an account of mesne profits; and in the case of Post v. Kimberly, 9 Johns, 493, it was held that, even admitting that the remedy was complete at- law, that in matters of account, chancery courts exercised a very broad jurisdiction ; their course of proceeding was considered peculiarly well calculated for the settlement of accounts, if they -are in any degree long and complicated. The objection to the jurisdiction ought not to be favorably received in the later stages of a cause. “Pleas to the jurisdiction of a-court ought to be interposed at the earliest opportunity. The party ought not to be suffered to wade through a tedious and expensive law suit, and at the last stages of the cause an objection to be made to the jurisdiction of the court.”

In reference to these decisions, it is well to bear in mind that a single transaction will not amount to an account; the items must be mutual, the account a running one, or present some complications to distinguish it from a debt on one side, and a .set-off on the other.

In the case at bar; the accounts run through several years; they rested more particularly within the knowledge of the defendants; they were minute to a certain extent, consisting of rents collected monthly, in varying amounts, and the defendant’s, accounts, also, which wrere very minute and complicated, consisting, in part, of expenses paid for temporary repairs, and in part for permanent improvements; the varying price of labor, cost of material, and fluctuating value of money, all had tobe considered, • and entered into the adjustment; numerous reasons existed why they could better be settled by the machinery of an equity court than by a jury. The incompetency of ordinary juries to calculate these charges, and to discriminate in the items, their habit of averaging things,-and to jump at conclusions, and the difficulty of correcting their mistakes, are within the observation of most lawyers.

The second ground of demurrer, was that the complaint did not state facts sufficient to constitute a cause of action.

The particular character of the accounts was not stated in the complaint. They were not shown to be mutual or difficult; the circumstances which subsequently appeared, and constituted the equitable jurisdiction, were not averred in the complaint.

The pleader should have shown the facts and circumstances constituting the difficulty, or inadequacy of legal relief, and the equitable jurisdiction, by particular statement, as well as by direct averment. And if the objection had been taken in apt time, the demurrer, upon this clause, should have been sustained, with leave to amend.

We must, however, look at the question in the light of the ease when the demurrer was presented. It was not filed until after the answer of Schader was in, and the accounts exhibited. It was not submitted'to the-court until the last stages of an expensive suit, and the cause ready for a final decree. Then the case did present an equitable one, and the complaint shown to contain a good cause of action, defectively stated, for the reasons expressed in Post v. Kimberly, cited above, and in Cockrell v. Warner, 14 Ark., 353. It should not have been sustained, at that stage of the case.

The demurrer also insists that the object of this suit was to try the title to land, and that the Court of Chancery is not the proper forum to litigate such a question, but the facts do not sustain the assumption.

The complaint alleges that the action at law was pending for that purpose, but that appellants were advised that their remedy for mesne profits was doubtful in that forum ; the suit prayed an account of the rents, and for a recovery of the same; this was the principal object; they did pray for the possession of the land, and this upon the ground that equity, having jurisdiction of the case to take the account, could give complete relief; but even if this branch of the prayer had been beyond the power of the court to grant, it would not have affected the jurisdiction on the question of an account. They alleged their title to the land, as the foundation of their right to rents, and it is material to note, that their title, or right to relief, was not traversed by either defendant, and when the accounts were exhibited, with Schader’s answer, they were of such a character that, we think, the case was one complainants had a right to have litigated in an equity court, and the court did not err in overruling the demurrer to the jurisdiction of the court.

Appellant further insists that the court erred in rendering a decree in favor of complainants in original cause on the facts, and insists that there was no evidence that John W. Cocke was ever seized of any interest in these lots, or that complainants are his heirs.

These questions were not put in issue, they’ were particularly and definitely charged in the original complaint, and never legally traversed. The law requires the plaintiff to state the facts and circumstances constituting his cause of action, with intelligent certainty, Gantt’s Digest, 4562, but he is not required to produce any proof until the facts alleged are traversed,

Trapnall’s demurrer did not traverse them, but it is claimed that Shader’s answer did.

He expressly admits many of the facts in the original complaint to be true, and, as to other allegations, those relating to Cocke’s seizin, the heirship of these complainants, he answers that he does not know these allegations to be true, and therefore does not admit them to be true, and asks that complainants may be required to make proof thereof.

This is not a sufficient denial to put plaintiffs upon their proof.

The answer must contain a denial of each allegation, 'the defendant intends to controvert, or that he has any knowledge or information thereof sufficient to form a belief, (Gantt’s Digest, 4569), and every material allegation not thus specifically controverted must for the purposes of the suit be taken as true. Ib. 4608; Note E, sec. 125, Myres Ky. Code; Corben v. Cone, 2 Met., 380; Bently v. Dorcas, 11 Ohio S., 409; Bomberger v. Turner, ib., 270; Newman P. and P., 516; 16 Ben. Monroe, 335; 18 ib., 82.

This traverse must be direct, an evasive denial, or one tendering an immaterial issue will be disregarded.

The issue he was required to make was not whether he knew these allegations to be true, or whether he was willing to admit them to be true, but whether they were in fact true; he must deny that the facts alleged in the complaint are true, or if he was without legal information on the subject, he could have traversed them in that form.

It might not have been a very hard matter for defendant to have informed himself whether it was true that John "VY. Cooke, at the time of his death, was the owner of one-half of the property, he occupied, or whether complainants were his heirs, and if in truth he possessed no legal information on the subject, he should, on his oath, plead that' he had no information thereof sufficient to form a belief, and complainants then would have been placed upon their proof.

We may suppose this rule was enacted to save the expense of litigation over notorious facts, to avoid the expense and delay of proving facts which defendants were not willing to controvert under oath.

From the comparative ease with which the truth of these allegations could have been ascertained from the common notoriety of the facts themselves, and especially from the frank, full and particular manner in which this defendant did plead the real facts he relied upon for his defense, we are inclined to think he did not intend to put these allegations in issue, but be this as it may, he has not done so in the manner required by law, and Trapnall, who now complains of the decree, did not attempt to do so. They stand confessed for the purposes of the suit, and very clearly authorize the relief granted by the decree to complainants in original cause, when taken in connection with the value of the rents and permanent improvements, as discovered by the answer of defendant Schader, and the evidence taken by the master and commissioner. So far as said decree grants to complainants an account of the rents and for the recovery thereof, and establishes their right to one-half of the property, it is abundantly sustained by the pleadings and evidence, and so far as it grants them a decree for the one-ha) f of the purchase money it was entered by consent in truth a contract in open court by parties competent to contract, and of which they do not complain.

The third point made by the appellant is, that the court erred both as to the law and the facts, in taking jurisdiction of Schader’s cross bill as against Trapnall, and in rendering a decree thereon.

His attitude towards this branch of the case is very much narrowed here by the important fact that his testator made no objections to the cross bill or the relief prayed thereon in the court below, and we have to consider how far he is bound by the pro confesso decree against him.

It would seem from sec. 4567 Gantt’s Digest: If no objection which might be made by demurrer is taken to a pleading, either by demurrer or answer, all objections are deemed waived, except only the objection to the jurisdiction of the court over the subject of the action, and that the complaint does not state facts sufficient to constitute a cause of action.

The first ground alone is insisted upon here: Did the court have jurisdiction to decree to Schader the damages he sustained by reason of the breach of warranty in Trapnall’s deed, on his cross complaint?

A cross bill is usually brought for one of two purposes: ,

First — To obtain a necessary discovery of facts in aid of the defense to the original bill, or to bring some matter pertinent to the defense before the court, which could not, under the rules of the court, be presented by answer or plea. In such cases it is a mere mode of defense to the original suit.

Second — It may be used to obtain full relief to all parties touching the matters in the original bill. Story’s Eq. PL, 389. For purposes of relief it is most commonly used where persons in opposing interests are co-defendants. Ib., 366.

This court has said: “ That against a co-defendant a cross bill is not a defense to the original bill, and thus it loses the most striking characteristic of a cross bill.” Hornor v. Hanks, 22 Ark., 572, and a cross bill, even by acquiescence of parties, may not have indefinite extent, for the books seem to imply that there is a want of power to make a decree upon matters unconnected with the original suit.” Ib., 592.

It should not introduce matters not embraced in the original bill, for as to such matters it is an original bill. Story’s Eq. PL, 401.

When a cross bill is brought against the plaintiff in the original bill as a mode of defense, it requires no equity to support it; in such cases it is treated as an auxilliary bill, for being drawn into the suit by the plaintiff on the original bill, the defendant may avail himself of the assistance of the court, without showing a ground of equity to support its jurisdiction, and may avail himself of any legal defense he may have. Equity will respect legal rights. Story Eq. Pl., 628; Daniel Eq. P. and P., 1549 n; Lambert v. Lambert, 52 Maine, 544.

“ But where a cross bill seeks relief, it is indispensable that it should be equitable relief, otherwise it will be demurrable, for to this extent it is not a pure cross bill, but it is in the nature of an original bill, seeking further aid of the court beyond the purposes of defense to the original bill, and under such circumstances it should be such as, in point of jurisdiction, the court is competent to administer.” 2 Daniel Ch. P. and P., 1549 n; Story Eq. Pl., 398 and 629; Cooper Eq. Pl., 86.

In Calverly v. Williams, 1 Vez. Jr., 210, one of the leading cases on the subject, the original bill was to procure a conveyance of seven acres of land, which plaintiff averred he had purchased of defendant, with other lands, and that these seven acres were omitted from the conveyance; the answer denied that the seven acres were included in the purchase, and, by cross bill, alleged that plaintiff had obtained possession under the purchase, and prayed to have the possession restored. Chancellor Thurlow found it was not the intention of the parties to include the seven acres in the purchase, and dismissed the bill. He also dismissed the cross bill, on the ground that defendant’s title was a legal one, and the subject of ejectment.

The cross bill must grow out of the matters in the original suit.

The subject matter in plaintiff’s original bill was to have an account of the rents of certain real estate, and to recover the possession of one-half of the property.

The subject matter of this cross bill was to recover the damages which one defendant sustained by reason of a breach of covenant, by his co-defendant.

It is not used as a defense to the original bill, for it is no defense to plaintiff’s right to the one-half of the rents, and to a partition and recovery of the property, that Schader bought the whole of the property from Trapnall, had a deed with full covenants, which were broken by the existence and prosecution of plaintiff’s claim.

This cross bill seeks relief from a co-defendant, and the relief it seeks is purely legal — damages for the breach of covenants— according to the foregoing principles. The court had no power to decree such relief in the absence of any of the special circumstances adverted to in Honor v. Hanks, 22 Ark., 591.

It is contended that the decree on the cross complaint may be sustained under our reformed pleadings.

But the adjudications under similar systems in Kentucky do not sustain the position.

If it can be sustained at all, it must be under section 4559, Gantt’s Digest, which provides. That a defendant may file a cross complaint against persons other than the plaintiff when such defendant has a cause of action against a co-defendant or a person not a party to the action, and affecting the subject matter of the action.

This section was not originally in the Kentucky Code, and before its adoption the court held: That under the Code of Practice no cross petition by a defendant was allowed. Saunders v. Saunders, 17 Ben. Monroe, 13; Crabtree v. Banks, 1 Metcalf, 484, and of course after the adoption of the Code, and before amendment, which was passed 16th December, 1857, it could not be sustained.

It only now remains to consider the effect of this amendment, which was adopted by our law, as section 108 of the Civil Code.

It has been several times construed by their court. In Crab-tree v. Banks, supra, the judgment creditor of an estate sued the devisees of the deceased, to whom she alleged assets had descended; to recover from them the amount of her judgment, she made the administrator a party defendant, but alleged that he had no assets of the estate to pay her judgment. The administrator made his answer a cross complaint against the devisees, his co-defendants, and prayed for a judgment against them for a balance due to him on his settlement. The judgment creditors and the administrator both recovered judgments against the devisees; on appeal the judgment in favor of the creditor was affirmed, but the judgment in favor of the administrator was reversed. It was held that this section only allowed a cross-petition when the defendant had a cause of action against his co-defendants, affecting the subject matter of the original action.

In Phillips v. Keeper, 2 Metcalf, 478, in construing this amendment: It was said that the cause of action set forth in the cross petition must be connected with the subject of the original action in the manner contemplated by the statute, for unless such a connection existed, a cross petition could not be maintained, but the party had to resort to a separate and independent action to recover damages for the injury complained of.

In Wells v. Boyd, 1 Duv., 367, one Preston sued Boyd on a note for $250. The defendant' filed an answer against the plaintiff Wells, alleging that the note was executed for the price of a jack, purchased by him of plaintiff, who was a' minor, and that Wells warranted by a covenant in writing that the jack was a good performer, and a sure foal getter, and alleged a breach of the covenant, and claimed damages. It was held that the subject matter of the action, was the right of plaintiff to collect from defendant $250 on the note, and that this right could not be “affected” by any right Boyd had secured to him by reason of Wells’ covenant.

Hill v. Golden, 16 Ben. Monroe, 555, was a partition for dower, by a widow, against a grantee from the husband of the doweress.

The grantee, by way of counter-claim against the widow, administrator and heirs of the grantor, claimed damages for the breach of warranty in his deed, and alleged assets descended.

The Supreme Court of Kentucky sustained a demurrer to the counter-claim, holding that the cause of action, damages for the breach of warranty, was not such a cause of action as is contemplated by the 126th section of the Code of Practice.

Mr. Newman, in his work on Pleading and Practice, page 612, et seq., treats this amendment to their Code (our 4559th section, Gantt’s Digest) as embracing, substantially, the same subject matter as was necessary for a cross petition, under the old system, and states that this cross petition, like the old cross bill, must relate exclusively to the subject matter of the original suit, and says there are cases in which cross petitions were sustained under the old practice, which would not, perhaps, now be considered as showing a sufficient connection with the original suit, (page 614,) but thinks it may be assumed, as a general rule, that whatever was a sufficient ground for a cross petition in equity under the former system, is now the subject of an equitable defense. Page 615.

It is material, perhaps, to remark that the cross petition to which he refers, was a statutory regulation, which, the courts held, was in the room of the old cross bills in equity with all their incidents.

Under the old system, a cross bill was confined to the matters in litigation in the original suit, and when it sought to bring before the court other distinct matters and rights, it was demurrable. Story Eq. Pl., 631.

And in defining the connection existing between the cross cause and the original cause, by the equity pleader, the words “touching,” “ related to,” “connected with” the subject matter, .are used.

In the statute defining cross complaints, the language is, “affecting the subject matter.”

We think these terms are all used synonymously, and that this statute must be construed as the old law was, that the difference in the language used does not indicate any change of the law in this respect, and-that the subject matter of this cross bill is not so connected with the subject matter of the original cause as to be the proper subject of a cross bill in that cause.

The decree between plaintiffs and the defendant, upon the original bill, is affirmed. The decree against Trapnall is reversed, and the cross bill dismissed, without prejudice to any right of action Schader or his grantees have on the covenants in the deed from Trapnall.

Hon. E. H. English, Chief Justice, did not sit in this cause.