text:
    Wiley vs. Flournoy and Rice.
    Assessment: Illegal alteration of. Injunction on.

    The clerk and County Judge had no authority, under the revenue act of 1871, to change the valuation of land, as returnedby the assessor, after the adjournment of the board of equalization; and where the assessment is so altered, the clerk will be enjoined from entering it on the tax books.
    APPEAL from Lincoln Circuit Court in Chancery.
    Plon. Read Fletcher, Special Judge.

      Cunningham for appellants.

      Pindalls, contra.

   Harrison, J.:

This was a suit in equity by T. C. Flournoy and Clay Rice against Alfred Wiley as clerk of Lincoln county, to enjoin him from entering on the tax books a false and fraudulent assessment of their lands and extending the taxes thereon.

The complaint alleged that the plaintiffs listed with the assessor in 1872 their lands, the tracts of which were severally appraised and assessed by him at their true value in money.

That the county board of equalization having met on the third Monday in September of said year, remained in session six days, and adjourned without making any change in the valuation of the tracts; that after the adjournment, the county judge and county clerk, having been so directed by the board, still proceeding in the matter of equalizing the valuation of the real property of the county, and whilst so engaged, at the residence of the county judge, privately and fraudulently erased the valuations returned by the assessor of a number of the tracts, which were specified in the complaint, and inserted in place thereof false valuations, much higher than the value of the tracts, by which the aggregate valuation of the tracts named, and of the plaintiffs’ real property, was raised and increased above that returned by the assessor $23,473, and those raised valuations they placed in the columns of valuations equalized by the board.

And it further alleged that the defendant was threatening and going to enter such fraudulent valuations on the tax book for 1873, and to extend and charge the taxes according to the same, on $23,473 more than the plaintiff’s lands were legally assessed at; and that if the plaintiffs did not pay the whole of the taxes so charged against the tracts according to such fraudulent valuation, the collector would sell the same for their payment, thereby clouding their title and giving rise to a multiplicity of suits.

The complaint was filed at the October term, 1873, and a temporary injunction granted. At the February term, 1874, the defendent appeared and filed a demurrer to the complaint for the want of equity. The court overruled the demurrer, and the defendant not answering further, rendered a decree perpetuating the injunction and against the defendant for costs. The defendant appealed.

If made in good faith, the action of the county judge and county clerk in charging the valuations of the appellee’s lands after the adjournment of the county board of equalization, was without a semblance of authority.

By section 65 of the revenue act of 1871, the county board of equalization composed of the assessor, county judge and county clerk, were required to meet at the clerk’s office, on the third Monday in September, in each year, and continue in session for six days. By section 66, the clerk, on the third Monday in September, 1872, and every second year thereafter, was to lay before them the returns of the real property made by the assessor, and they were required, after taking the oath prescribed by the act, immediately to proceed to equalize the value of the real property of the county, and section 67 made it the duty of the clerk, on or before the first day of October, 1872, and every second year thereafter, to transmit to the auditor an abstract of the aggregate value of the real property of each township as equalized by the board.'

The act expressly limited the session of the board to six days, and the legislature never contemplated as possible, a failure to complete the equalization within that time, or that a necessity could arise for a continuance beyond it.

The time and place for the meeting of the board and the duration of its session were definitely fixed, with the obvious intent of affording the tax payers an opportunity to complain of and have corrected any erroneous or unjust assessment of their property, either by the assessor or the board, which end would have been defeated, if they might have met at any other time or place, or continued longer in session. The nature of the duty to be performed, and the protection designed to those whose interests were to be affected by it, show that the designation of the time and place and length of session, was intended as a limitation on the power of the board.

A statute is never to be regarded as directory merely, or any of its provisions dispensed with, “when the act required, or the omission of it can by any possibility work advantage or injury, however slight, to anyone affected by it. In such case, it can never be omitted.” Mayhew v. Davis, 4 McLean, 213; Clark v. Crane, 5 Mich., 151; The People v. Sehermerhorn, 19 Barb., 558 : Black, on Tax Titles, 305-311; Cooley on Const. Lim., 74-78; Sedgw. on Stat. and Const. Law, 372.

But it was alleged, the alteration and raising of the valuations of the tracts was fraudulently done; and the truth of this charge the demurrer admits. Such alteration would therefore have been void, if made during the session of the board. Black, on Tax Titles, 466; Cleghorn v. Postlewait, 43 Ill., 428.

As, upon a sale of the lands by the collector, the illegality of the assessment would not necessarily appear upon the face of the deed, and the same would be a cloud upon the plaintiff’s title, and the sale would tend to deprive them of their property. The complaint, upon well established principles, and the authority of numerous decisions of this court, presented a clear case for the intervention of a court of equity; and the decree of the court below is accordingly affirmed.


source: Caselaw Access Project

author: English, Ch. J.:

license: Public Domain

text:
    Rogers, adm’r., vs. Brooks.
    1. Husband and wipe: Sale of the wife's land.

    A contract on the part of the husband to sell the wife’s land, though known and assented to by her, is not binding on her or her heirs. She can only-bind herself by executing a deed in the form prescribed by law.

      2. Judgment: As affected by pleadings, prayer, etc.

    "Where there is a prayer for specific, and also a prayer for general relief, the court may, if it refuse the specific relief, grant any other appropriate relief under the general prayer, but it cannot go outside of the case made by the pleadings, and grant relief as to matters improperly introduced in proof.
    3. Legal Holiday: Fourth of July is not.

    The fourth of July is not a legal holiday, and a deposition taken on that day is good.
    4. Husband and wipe: Control of rents derived from wife'sland,etc.

    Where the marital rights of the husband are not restricted, he may dispose of the rents of the wife’.s land during his life.
    CROSS APPEALS from Phillips Circuit Court in Chancery.
    Hon. W. H. H. Clayton, Circuit Judge.

      Garland & Cockrell, for Rogers.
    Error to allow Chamberlin to testify as to his impressions of conversations with Rogers, 13th Ark., 46.2, or to admit depositions taken against objections on the fourth of July. Swinnyv. Johnson, 18 Ark., 534, or Brooks’ statements of conversations or transactions with Rogers. Giles v. Wright, 26 Ark., 476; Am. Law. Rev. July, 1870, p. 656 (Howland will case).
    Court will disturb a decree on weight of testimony. Branch v. Mitchell, 24 Ark., 443.
    No part performance. 8 Ark., 272; 20 ib., 552.
    No ground for lien on the land purchased of Trader.

      Rose and Palmer & Sanders, for Brooks.
    There was a resulting trust in favor of Rogers & Brooks. Cook v. Bronaxigh, 13 Ark., 187; Cain v. Leslie, 15 id., 312; Shields v. Trammell, 19 id., 51; Fergusons. Williamson, 20 id., 272.
    Possession, sufficient part performance. Blakeney v. Ferguson, 8 Ark., 272; S. C., 20 id., 552, and making repairs andimprovements. Keatts v. Pector, 1 id., 391.
    Running the line, and holding accordingly was a good partition. Jackson v. Bructh, 2 Caines, 169; Jackson v. Harder, 4 Johns., 202; Jackson v. Vosburg, 9 id., 270; Ryerss v. Wheeler, 25 Wend., 434; Walker v. Bernard, 1 Carn & Nor. (N. C.), 82; Uanghabaugh v. Harrold, 1 Const. (S. C.), 701; Wildey v. Bonney, 31 Miss., 644; Natchez v. Vandenelde, id., 706.
   English, Ch. J.:

In January, 1872, Wm. H. Rogers, as administrator of the estate of Mary Rogers, deceased, brought ejectment in the Phillips Circuit Court against Samuel H. Brooks for the south half of section fourteen, and the south half of section fifteen (except ten acres off of the north side of the southeast quarter of said section fifteen), township one south, range four east, 630 acres.

Brooks filed an answer and an equitable counter claim, alleging, in substance:

That early in February, 1868, plaintiff (Rogers) purchased of Willis Long the lands described in the complaint, for the consideration of $6300, of which sum he paid $4300 about the 18th of February, 1868, axid the remaining $2000 was to be paid by taking up a mortgage for that sum, executed by said Willis Long to Arthur Slaughter, dated 22d January, 1866, which was a lien upon the lands; that plaintiff and his wife, Mary Rogers, took up the mortgage by executing their note to Slaughter for $2333.33, dated 18th February, 1868, payable 1st December, of the same year, and secured by deed of trust executed by them upon the lands to John J. Hornor. Copies of the deeds referred to are made exhibits.

That at the time of said purchase, plaintiff proposed to defendant to go in with him in the purchase of one-half the lands, and that the" place should be equitably divided between them (though no time was set for-such division). That in the division plaintiff was to have choice of parts, and the party getting the improvements, dwelling house, etc., was to pay their estimated value. To which proposition defendant agreed, and moved with his family into the dwelling house on the place, where he had ever since resided. That about three weeks after defendant moved on to said place, plaintiff came to him and remarked that matters and things were very uncertain, and there was no telling what might happen, and that he believed he would take the deed to said lands in his wife’s name, but- that as between plaintiff and defendant that would make no difference; the deed should be made at the proper time.

That at the time of the first payment defendant furnished plaintiff with $808.19 of the purchase money paid by him, and that the remainder, plaintiff told defendant, came from a place he (plaintiff) sold in New York.

v That it was a fraud on the part of plaintiff to take the title to said lands in the name of his wife.

That on the 1st of November, 1868, defendant paid plaintiff $2000, part of the purchase money for one-half of said lands, which was received by him as such, and a receipt given therefor, which is made an exhibit.

That in the year 1869, plaintiff and defendant became partners in the working of the said plantation, so purchased of Long, and the Pillow place, on the river some three miles below Helena, and continued working said places in partnership for the years 1869 and 1870, and that the partnership continued on the Long place for the year 1871. That during all of said time defendant-furnished the supplies, teams, farming implements, and necessaries for carrying on said plantations, under an agreement with plaintiff that he should be allowed for all over one-half of the same, as a payment of the balance due upon said lands in the final settlement between them, and that there was no time fixed for the payment of said balance due, plaintiff stating that he did not care how long it remained unpaid, provided defendant would pay ten per cent interest.

That in marketing the crop of 1869, plaintiff overdrew more than the sum of $1,500. That in July, 1870, defendant paid plaintiff, of his own money, $300. That in September, 1870, defendant paid plaintiff, of his own money, $430, and on 16th November, 1870, $350.

That defendant as partner with plaintiff paid $400 interest each year to Arthur Slaughter, on the note secured by deed of trust as above stated, for the years 1869 and 1870, out bf the partnership fund from the crops of those years. That he had paid all of the taxes due upon the lands purchased as aforesaid except those for the year 1871.

That there never had been a settlement between himself and plaintiff bf the partnership affairs, although he had often applied to plaintiff to settle, and plaintiff had always evaded a settlement because he was largely in arrears.

That some two years after the purchase, the place was surveyed by the county surveyor for the purpose of division, and a plat of the survey is made an exhibit.

That the plaintiff made choice of the north part, leaving the south part, with the improvements, dwelling-houses, etc., to defendant, and which south part was valued to defendant by plaintiff at $4,000.

That the sum of $4,000 had long since been fully paid off and discharged, as would fully appear from the payments above recited, and a settlement of the partnership accounts between plaintiff and defendant.

That said Mary Rogers, wife of plaintiff, never paid one dollar of the purchase money for said place, and that the fraud perpetrated by plaintiff in procuring said Willis Long to make title to her should not be allowed to deprive defendant of his rights in the premises.

That Mary Rogers left two minor children, Kate and Alfred, her heirs at law.'

That no written agreement was ever entered into between plaintiff and defendant in regard to said lands, nor had defendant any written evidence of title, etc.

That the division of the lands made by the surveyor, was agreed to and acquiesced in at the time by both plaintiff and defendant, and possession thereupon limited and narrowed accordingly.

That since the making of the survey defendant had not claimed any right or title to the lands north of the division line, except as a partner with plaintiff in the cultivation of the place up to the termination of the partnership, about the 1st of January, 1871, and since that'time he had not claimed or been in possession of any part of the lands north of the division line.

That since the making of the division, plaintiff had excused himself from making a deed to the defendant for the part allotted to lrim, by saying that he could not do so until the' deed of trust to Hornor was paid, until within a few months past, when he had claimed that defendant had no interest in said lands.

That defendant since he had been in possession of the premises had put about $1,300 worth of improvements upon dwelling-house, and had greatly improved the condition of the cleared land on the whole place, by building fences, opening ditches, clearing up briar patches, etc., all of which he had done because of his contract for the purchase of one-half of the place, and the agreement between the parties as to the particular land defendant should have.

Prayer that plaintiff and Kate and Alfred Rogers be required to answer, etc.; that the deed from Willis Long to Mary Rogers be declared to be a fraud upon the rights of defendant and void. That she be declared a trustee of the lands for her husband (the plaintiff) and the defendant. That an account be taken by the Master, of the partnership matters between plaintiff and defendant. That the payments made by defendant to plaintiff be applied to the payment of the purchase money for said half of said lands, and the balance found due upon the accounting aforesaid be applied to the payment of the residue. That a commissioner be appointed to make a deed to defendant for the south halves of the south halves of sections 14 and 15, in township 1 south, range 4 east. That defendant have judgment against plaintiff for the balance due him on said' accounting, to be paid out of the plaintiff’s half of said lands, and for other proper relief.

Exhibit A, to the answer, etc., is the deed from Willis Long' and wife to Mary Rogers for the land described in the complaint. It bears date 14th February, 1868, recites the payment of $6,300 in cash to Long by her as the consideration, and conveys the lands to her and her heirs and assigns forever. It was acknowledged on the day it bears date, and filed for registration in the office of the recorder of Phillips county, on the 28th February, 1868, and duly recorded.

Exhibit B, to the answer, is the mortgage made by Long upon the same lands, to Arthur Slaughter, to secure $2,000, with ten per cent, interest, bearing date 2d January, 1866, and referred to in the answer.

Exhibit C, to the answer, is the deed of trust made by Rogers and wife upon the same lands, to John J. Hornor, as trustee, to secure anote executed by them to Arthur Slaughter for $2,333.33, recited to be part of the purchase money of the lands. The note and trust deed bear date 18th February, 1868, and the former was payable 1st December following, and the latter was acknowledged on the 20th and registered 28th February, 1868.

Exhibit D, to the answer, is as follows: “Helena, Nov. 1st, 1868. Rec’d of Samuel H. Brooks two thousand dollars to apply on purchase money for farm. W. H. Rogers.”

Exhibit E, to the answer, is the surveyor’s plat showing a division of the lands between "VYm. H. Rogers and Brooks.

The plaintiff, as administrator of Mary Rogers, and guardian of her minor children, Kate and Alfred, filed replication to defendant’s answer, etc., in substance as follows:

He admits that about the 18th February, 1868, he purchased of Long the lands sued for, for $6,300, of which he paid $4,300 in cash, and the remaining $2,000 by taking up a mortgage for that sum executed by Long to Slaughter, which was a lien on the lands, and which he took up by the note of himself and wife to Slaughter, for $2,333.33, secured by the deed of trust to Hornor mentioned in the answer.

Admits that at the time he was negotiating for the purchase of the lands he proposed to defendant that he should purchase one-half of them, and that they should be equitably divided; that plaintiff should have choice for his wife (Mary Rogers), and that the party getting the dwelling house and improvements should pay their estimated value; but denies that defendant ever agreed thereto, or that he moved with his family on to the place with any such understanding. On the contrary, avers that at the time he made the proposition to defendant to purchase, defendant said he was unable to make the purchase, had not the means to pay for the same, but that if the plaintiff would purchase the lands, defendant would cultivate them during the year 1868, and pay as rent therefor, the taxes which should be assessed thereon for that year, and ten per cent, upon the cost of the lands; and urged the plaintiff to make the purchase and let him go on the lands, saying he did not know what to do; and that defendant in fact moved upon the lands as the tenant of Mary Rogers, and not otherwise.

Denies that some three weeks, or at any time after the purchase, he told defendant that he would take the deed for the lands in his wife’s name, but that it would make no difference as between him and defendant, or that he said anything of that purport to defendant. On the contrary, avers that he made the purchase in the name of .his wife, the deed was made to her before any payment was made on the lands, and that the deed was filed for record 28th February, 1868, the day on which he completed the payment for the lands by paying off a judgment in favor of W. H. Johnson & Co. against Long for $3550, as would appear by the receipt of Tappan & Hornor, attorneys for Johnson & Co., made an exhibit.

Denies that at the time he paid Long for the lands, defendant paid him $808.19, or any other sum, or that one dollar of defendant’s money went, either directly or indirectly, into the payment made to Long, or in paying off said judgment, or that plaintiff had in his possession or under his control any money belonging to defendant, until after said purchase was fully consummated, and the deed received, and after the lands had been rented to defendant for the year 1868, and he had gone into possession thereof.

That some weeks after the purchase had been made, and the lands rented to defendant, he did deposit with plaintiff about $800 for safe keeping, defendant believing it not to be prudent to keep that much money in the country, and the money so deposited with plaintiff was to be paid out by him on the order of of defendant; and plaintiff did pay out upon the direction of defendant the sum of $1129.75, and he denies that one cent of the deposit went into the purchase of the lands, etc.

He admits that he' did receive a portion of the money paid for the lands from a sale made by him of a place in New York, and may have so told defendant. Denies that the taking of the deed in the name of his wife, Mary Rogers, was a fraud upon defendant or any other person, not upon defendant certainly, because he had no rights in the premises.

States that about the first of May,' 1868, he told defendant he would sell him one-half of the lands when they were paid for,, if it was agreeable to all parties, and defendant then agreed for the first time that he would purchase if everything succeeded as he expected; but no money was paid, no note or memorandum in writing entered into; it was simply a verbal agreement entered into between plaintiff and defendant; and at that time defendant knew that the title to the lands was in Mrs. Rogers, the deed having been filed for record for six weeks previously.

Admits that about the 1st November, 1868, defendant paid him $2,000, and some months afterwards (no receipt having been given at the time) he gave defendant a receipt for said sum as a part of the purchase money for one-half of the lands, which receipt is made Exhibit D, to the answer.

States that in the year 1868, said plantation was cultivated by-defendant, and his brother, Thomas B. Brooks, and neither-plaintiff nor his wife had any interest in the cultivation ’ of the place.

Admits that in the year 1869, he and defendant were partners in working said plantation and the Pillow place, and continued-working said places for the years 1869 and 1870, and that on the Long place the partnership continued for the year 1871. But denies that during the time of the partnership, defendant furnished the supplies, teams, farming implements and necessaries for carrying on said plantations, under the agreement, as stated in the answer. Admits that he did furnish part of them, the balance being furnished out of the funds of plaintiff and the joint funds of plaintiff and defendant.

Admits that at the time he proposed to sell defendant part of the lands, he said to him that he was not particular about the time of payment, so long as defendant paid ten per cent, interest..

Denies that he ever did sell any part of the land, or that it was any more than an agreement to sell at some future time, if it should then be agreeable to both parties.

Denies that he overdrew of the proceeds of the crop of 1869 the sum of $1,500, or any other sum.

Denies that defendant paid him at the times stated in his answer, or at any other time, the several sums of money, or any, or either of them, or any part thereof, as stated.

Admits that he and defendant paid $400 each year to Slaughter, but avers that it was a part of the agreement in cultivating the said lands, that the interest to Slaughter and the taxes should be paid out of the joint funds. That the partnership was commenced with the year 1869, and' continued until January, 1872. That the proceeds of the plantation was used to purchase stock, farming tools, steam engine, etc., and defendant agreed to pay the taxes for the year 1870, out of his fees as treasurer, but failed to do so and plaintiff had to pay them, with the penalty of fifty per cent added.

Admits that there never has been a settlement of accounts between himself and' defendant, but denies that he refused or evaded a settlement, or that defendant ever applied to him for •one. On the contrary, he applied to defendant for a statement of accounts, in order that they might settle, and defendant neglected and refused to make it. This was in June or July, 1871, and when defendant refused to settle, plaintiff offered him $5,000 if he would surrender possession of the said plantation, crop, •etc., on the 1st of September, 1871, and leave all stock, etc., purchased with the partnership funds. His sole object in offering so large a sum was to avoid a lawsuit, not because it was due to the defendant.

Admits that said lands were surveyed by the county surveyor (Trunkey), and it was agreed that in the event the sale should be consummated, they were to be divided by defendant taking the south part, but denies that any valuation was placed .upon it.

States that he had, long prior to the purchase of said lands of Long, used a sum of money inherited by his wife from the estates of her father and mother. That the money which paid for said lands was realized from said source, and from the joint labor of himself and wife. That the taking of the deed in the name of the wife was no fraud upon any person, and certainly not upon defendant, who had no right or interest therein.

Admits that his wife left the two minor children, Kate and Alfred, her heirs at law, etc.

States that no written memorandum was entered into between himself and defendant in regard to the purchase of the lands, because no sale or purchase was made or agreed to be made.

Denies that he had acquiesced in the rights of the defendant to the possession of any portion of said lands, except as partner with himself in the cultivation thereof.

Denies that he has ever claimed title to any portion of said lands except in right of his wife.

Denies that he had ever excused himself from making a deed to defendant for any part of said lands, or that he ever agreed to make him a deed, etc. He refused to make any sale until the lands should be fully paid for, and then only upon condition it should be agreeable to all parties.

Denies that defendant had put $1,300 worth of improvements on the dwelling house. Admits it had been repaired, but avers that the plaintiff furnished the lumber, paint, oil and nails, to make such repairs. Denies that any repairs had been made on the fences, or ditches, other than such ordinary repairs as would be required of a tenant.

Avers that in all his transactions with defendant, plaintiff acted for himself alone, and that his wife refused absolutely to sell or agree to sell such lands, or any part thereof to defendant, and again denies that he ever sold any part of said lands to defendant, but says there was a talk about a sale at some future time, which was never agreed upon, and which his wife repudiated and would not consent to.

The cause was heard on the above pleadings, and depositions taken by the parties, and the court found the facts to be, and decreed as follows:

The court found that on the 14th February, 1868, Mary Rogers purchased of Long the lands described in the complaint, and that they were, on that day, conveyed to her by Long and wife. That the consideration was paid by plaintiff and wife, and that the lands were not held by the wife as trustee for defendant Brooks, he having paid no part of the purchase money, and having entered into possession as the tenant of Mrs. Rogers.

That in November’, 1868, defendant paid plaintiff $2,000, which was intended by defendant to be a part payment for one half of the lands, so purchased from Long, but that plaintiff appropriated the money to purchase a tract of 110 acres of land, from ¥m. H. Trader and wife.

That in the years 1869, 1870 and 1871, plaintiff and defendant were in possession of the lands in controversy as copartners,, and that the -interest upon the note to Slaughter, which was at part of the consideration paid to Long for the lands, and the taxes for 1869, were paid out of the partnership funds, and that the taxes for 1870, with the penalty added, were paid by plaintiff, and also the taxes for 1871 and 1872, one half 'of which should have been paid by defendant.

That defendant was chargeable with one half of the rent of said lands for the years 1872 and 1873. That the rent agreed to be paid was the taxes and the interest on the Slaughter debt,, being $400 per annum, and ten per cent, on $4,300, or $430 perannum. That the taxes amounted to $1,447.10, one half being-$723.55, and the one half the rent for said years 1872 and 1873, being, with taxes, $1,583.55.

That defendant put improvements on the dwelling house to the value of $1,300, of which sum plaintiff paid $360, leaving $940 paid by defendant.

That after deducting the value of the rents due from defendant, there was due to him from plaintiff, on account of improvements on dwelling house, and the amount paid to plaintiff in November, 1868, the sum of $1,356.45, which was a lien on said tract of land purchased by plaintiff of Trader and wife, being 110 acres.

That plaintiff, as administrator of Mary Rogers, was entitled to possession of the lands described in the complaint.

It was thereupon, decreed, that plaintiff, as such administrator, recover of defendant the said lands, etc., that the costs be mutually paid by plaintiff and defendant, and that a writ of possession issue, etc. To which decree defendant excepted and appealed.

The court further decreed that defendant recover of plaintiff (Wm. H. Rogers) said sum of $1,356.45, and that the same was a lien on the 110 acres of land so purchased of Trader'and wife, and unless said sum should be paid by a day named, the land should be sold by a commissioner, etc. To which decree, for $1,356.45, and declaring the same to be a lien on said tract of land, Rogers excepted and appealed to this court.

On the appeal of Brooks :

The answer of Brooks, was in the nature of a bill for specific performance against the administrator and heirs of Mrs. Rogers. He also claimed a personal decree against Rogers for an alleged amount overpaid upon oné-half of the lands.

The substance of so much of the answer as seeks specific performance is, that he entered into an agreement with Rogers to purchase the lands of Long, each to pay one half of the purchase money, and divide the lands between them. That he furnished Rogers part of the money at the time the lands were purchased of Long, and went into possession, etc. That Rogers, in fraud of the agreement, had the lands conveyed to his wife, but deluded him into making further payments, by promises that he should have a deed to one half of the lands. That a partition line was agreed upon between them, that he made improvements and overpaid for one half of the lands, and that Mrs. Rogers died, holding the legal title in trust, etc.

The reply of Rogers, as administrator of his wife and guardian of his heirs, denies, and puts in issue the material allegations of the answer, by which, Brooks seeks to be invested with the .legal title of the wife to one half the lands.

The cause having been transferred to the equity side of the court below, the court found, upon the evidence, against the claim of Brooks to one half of the lands, and decreed possession of the whole of rhe lands, without rents, to Rogers as the administrator of his wife.

The depositions of the parties were contradictory, of course, as their pleadings were.

Brooks claimed that he furnished Rogers about $800 to aid him in making the cash payment to Long, before the deed was made by Long to Mrs. Rogers. Rogers denies this, and says that the money was merely deposited with him for safe keeping, and afterwards paid out, and over paid, on the direction of Brooks. Rogers furnished an itemised accormt of the sums paid out by him. Brooks signed a written admission that Rogers had paid out for him one item of $303, in March, 1868, and another item of $90 in the following July. He and his brother both say in their depositions that Rogers was furnished with about $800 to help to pay for the lands, but they do not contradict the statement of Rogers that he paid out over that sum for Brooks.

Brooks avers and swears that he moved on to the lands under his agreement with Rogers to purchase one half of them.

Rogers denies this, and says that he went on to the lands as a tenant.

Willis Long, who seems to have been a disinterested witness, deposed that he sold the lands to Rogers, who paid to and for him the purchase money, and that he made the deed to Mrs. Rogers. That Brooks was a stranger to him, and he did not know Brooks in the transaction. That Brooks moved on tp the lands before he moved off. That he regarded him as the tenant or manager of Rogers. That he did not then claim any interest in the lands, but said that he expected at some time to buy a part of the lands of Rogers, but did not say there was any agreement or understanding between them about his buying a part of the lands. This was after the deed was made to Mrs. Rogers.

There can be no doubt from all the evidence that, at some time after the lands were conveyed to his wife, and as early at least as the 1st November, 1868, Rogers contracted with Brooks, verbally, to sell him one half of the lands, and induced him .to make the payment of $2000 of that date, and subsequent payments, by promising that a deed should be made to him. The evidence also conduces to prove that they had the lands surveyed and a dividing line run, and that the understanding between them was that Brooks was to have the south part of the lands.

But Rogers could not bind his wife or her heirs by a contract to convey the legal title to any part of' her lands.

It is probable, from the evidence, that Mrs. Rogers in her life time, knew of the contract between her husband and Brooks, and was satisfied with the division line which seems to have been agreed upon between them. But this did not entitle Brooks to enforce a specific performance of the contract as against her or her heirs. She could only bind herself, or her heirs, by a deed of conveyance, executed according to the forms prescribed by law, and this Brooks failed to obtain. Wood and wife v. Terry et al., ante., and cases cited.

The evidence fails to show that Brooks had fully paid Rogers for one-half of the lands, as alleged in his answer, but it does appear that he had paid a larger amount than was decreed to him by the court below, as we shall presently see.

On the appeal of Rogers :

It was proven that Rogers purchased with the $2000 paid him by Brooks November 1st, 1868, of Trader and wife, a tract of 110 acres of land adjoining the lands in controversy, and the court below charged as lien upon this outside tract, the sum of money found to be due from Rogers to Brooks, and decreed a sale of the land, etc.

There was nothing in the pleadings to warrant this decree. This outside tract was not the subject of litigation. It was not mentioned in the answer or reply.

“ Where there is a prayer for specific relief, and also a general prayer for relief, if the state of case as presented by the bill should not be sustained in evidence, or the court should, upon principles of equity, refuse the specific relief, it may, notwithstanding, give to the complainant, under the general prayer, any relief as warranted by the facts as set forth in his bill. But, although it may, from the proofs, be apparent that the complainant is entitled to other relief, yet, unless the bill is so framed as to put such facts at issue, the court will not decree such further relief, for it would be decreeing upon an issue not before the court, and to which the proofs could not properly apply, and would tend to surprise the defendant.” Cook v. Bronaugh, 13 Ark., 187.

Brooks took the depositions of himself and Thomas B. Brooks and Frank Turnkey, the surveyor, on the 4th of July, 1873, upon notice previously given. The counsel of Rogers was present ; protested against the taking of the depositions on that day ; declined to cross-examine the witnesses, and, ‘after the depositions were returned, filed a motion in court to suppress them. The court overruled the motion to suppress the depositions, but made an order for cross-examination by Rogers.

The fourth of July was unknown to the common law as a holliday, and though venerated by the Americans, as a memorable day in their political history, is, perhaps, but little reverenced by the English, from whom we obtained the common law.

It is a legal day (except when it happens to fall on Sunday) for the transaction of all business, unless otherwise provided by statute. »

Section 5, chapter 173, Gould’s Digest, prohibited the service of any writ, warrant or order, on the fourth of July, exeept in criminal cases, for breach of the peace, or where the defendant was about to leave the country, which had to be shown by affidavit. Ib., sec. 7.

In Swinney v. Johnson, 18 Ark., 534, the court held that the service of civil process on the fourth of July was bad, unless the return, showed that the affidavit required was made and delivered to the officer.

This case is cited by counsel for Rogers to show that the court below should have sustained the motion to suppress the depositions taken on the fourth of July.

But section 4833, Gantt’s Digest, (part of the civil code) provides, that “a summons, subpoena, notice or order of arrest of injunction, may be executed on any holiday, except Sunday,” etc.

We have no statute prohibiting the taking of depositions on the fourth of July, though it is not in- good taste for litigants to fix- upon that day for taking their depositions, unless required by some emergency.

The court below found from the evidence, that Rogers was indebted to Brooks in the sum of $1,356.45.

The pleadings are inaccurate and contradictory as to the ac~' counts between Rogers and Brooks. The depositions are also contradictory, and vague and uncertain as to dates, amounts, etc. The findings of the court below, as recited in the decree, are by no means clear.

The counsel for Rogers here attempted to get clear of the decree against him for the above sum, by insisting that three of the depositions of Brooks should have been suppressed by the court below, because taken on the fourth of July, and should be disregarded here; and the counsel for Brooks, have devoted their brief to his claim to one half of the lands, so that the counsel on neither side have aided us ih getting at what should be a just settlement of accounts between the parties.

We have referred the case to the clerk of this court, as a master, to take and state an account between the parties as best he could from the pleadings and evidence, and he has made the following report:

“That, assuming the statement of the court below, as to the several claims between the parties, to be correct, and in which he cannot, upon this record, perceive any serious error except in the omission to allow interest on the two thousand dollars paid by Brooks to Rogers on the 1st of November, 1868, he restates the account, upon the items found by the court, allowing such interest, as follows:

1868, Nov. 1, To amounts paid by Brooks
to Rogers......................................... $2,000 00
Int. to Jan., ’73, when rent for ’72 fell due.. 500 00
$2,500 00
Deduct rent for 1872, being one-half of $1,583.55 as found by the court............ 761 77
Carried forward,
$1,738 23
Brought forward, ................................. $1,738 23
Interest for one year to 1st January, ’74..... 106 29
$1,844 52
Deduct rent for 1873 the other one half of
$1,583 55......................................... 761 77
$1,082 75
Add improvements made by Brooks......... 940 00
$2,022 75”

Though Eogers could not contract away the title of his wife to any part of the lands, so as to bind her and her heirs, there being nothing in the deed from Long to her to exclude his marital rights, he could, as he did, dispose of the rents during her life time, and bind himself to pay for improvements, etc.

On the whole decree and upon both appeals:

So much of the decree of the court below as is in favor of Eogers as administrator of his wife, for possession of the lands in controversy, must be affirmed.

The remainder of the decree must be reversed, except as to costs in the court below, and a decree entered here in favor of Brooks against Eogers personally, for the sum of $2,022.75, as of the date of the decree below, and the costs of this court must be equally divided between the parties, including an allowance to the master.


text:
    Jones, by guardian, vs. Franklin.
    1. Ancient Wabranty: Stoperseded by personal covenants.

    The ancient common law warranty has been superseded by personal covenants, and never had any practical existence in this country.
    2. Covenant ON Warranty: Sow the heir affected by.

    The ancestor’s‘covenant of warranty will not operate as a bar to the title of the heir by way of rebutter, as to lands not descended to him from the warranting ancestor.

      3. Same.
    Assets descended to the heir, may be subjected.to the satisfaction of damages for the breach of the ancestor’s covenant of -warranty.
    APPEAL from Jefferson Circuit Court in Chancery.

      Bell and Wassell & Moore, for appellant.
    The important allegations of the bill are admitted and need not be proved. Pelham v. Floyd, 9 Ark., 530; Hardy v. Heard, 15 ib., 195. The averments of the answer made for avoidance should be. Stilwellv. Badgett, 22 Ark., 164; Hart v. TenEyoJc, 2 John. Chan., 88; Patton v. Ashley, 8 Ark., 297.
   English, Ch. J.:

Mary F. R. Jones, a minor, by her next friend, Marcus L. Bell, filed the bill in this case, on the chancery side of the Jefferson Circuit Court, against Solomon Franklin, 4th April, 1872.

The bill alleges, in substance:

That Stark Washington died in Jefferson county in the year 1839, leaving his widow, Catherine H. Washington, and three-children — Henry, Martha and Fannie.

That Stark Washington made a will, which was duly probated, etc., (and copy made an exhibit,) whereby he devised bis entire estate to his. said widow and children, share and share alike.

That among other lands owned by him at his death, was the south fractional half of the northwest quarter of section 14, township 6 south, range 8 west, containing seventy-nine and 76-100th acres.

That Catherine H. Washington, the widow, and Henry and Martha, two of the children, had long since sold their respective shares of said tract of land, and that by proper claim of title the defendant, Franklin, was in possession thereof, and entitled to three-quarters of said land.

That Fannie Washington, one of the children of Stark Washington, who was, under his will, entitled to one-fourth interest in said land, intermarried with Solon B. Jones, on the 6th June, 1854, being then aged seventeen years, and a minor, and died on the — day of-, 1855, being still a minor, leaving her, surviving her said husband, and the plaintiff, an infant, sole child and heir; and that Solon B. Jones died about December, 1861, without issue except plaintiff.

That said Fannie, plaintiff’s mother, never parted with her interest in said tract of land, and plaintiff, as her heir, was entitled, in her own right, to the estate of her mother therein, and that defendant was in possession thereof.

Prayer that plaintiff be decreed one undivided fourth of said land, that partition be made between plaintiff and defendant according to their respective rights, that an account be taken of the rents and profits, and one-fourth thereof be decreed to plaintiff, etc.

Stark Washington, in the first item of his will, directed the payment of his debts and funeral expenses as soon after his death as possible, out of any money he might die. possessed of, or that might first come into the hands of .his executrix from any portion of his estate, real or personal.

Item second is as follows :

“1 give and bequeath all' of my estate, real and personal, unto my wife and children, to be equally divided among them, and furthermore, wish that my estate may be kept together until such time as my executrix may think proper to give unto any of my children that may come of age, or get married, such portion as she in her opinion may think proper.”

Then follows a clause appointing his wife, Catherine H. Washington, his sole executrix. The will bears date 29th December, 1838.

The defendant, Franklin, answered in substance:

That Catherine H. Washington, widow of Stark Washington, and grandmother of plaintiff, and Henry Washington, one of the devisees in said will, on the 25th June, 1849, conveyed by a regular deed of conveyance, all of the land described in the bill to Green D. Atkins, in consideration of $3,000, in which deed they covenanted as follows: “ And we, the said parties of the first part/ do hereby covenant for ourselves, our heirs, executors, administrators and assigns, to and with the said party of the second part, his heirs and assigns, that we will warrant and defend the title of said premises in fee to the said second mentioned party, his heirs.and assigns, forever, against any and all persons whomsoever.”

The answer then proceeds to trace the title to the land by a chain of conveyances from Atkins, through a number of persons down to defendant, referring to the registration of the several deeds, in the chain on the books of the recorder of the county, etc.

Then avers that defendant is in possession, and the owner of all of the land described in the bill, by a regular chain of title from Green D. Atkins and Catherine H. Washington, as shown above.

Avers that plaintiff had received through her mother, Fannie, and immediately from the estate of Catherine H. Washington, assets sufficient to make good the covenants in said deed of conveyance to Atkins in the event they were broken.

That by virtue of the covenants in said deed from Catherine H. Washington to Green D. Atkins, and in consideration of the fact that plaintiff had, through her mother, and immediately, received from the estate of said Catherine H. Washington assets sufficient to make good the covenants in said deed of conveyance, she was rebutted from claiming any interest in, or setting up any title to any portion of the land described in the bill.

That under the will of Stark Washington, 'Catherine H. Washington, his wife (grandmother of plaintiff), inherited by desire an equal interest in said estate with the three surviving children, viz.: Henry, Martha and Fannie, the last named being the mother of plaintiff, and that said Catherine H. Washington was the sole executrix appointed in said will; and, as such, qualified according to law, and undertook the execution of said will ; and, as such executrix, she was authorized and directed to give off to said children or legatees such portion of said estate as she might think proper, when they became of age or married; and, in pursuance of said will, she, as such executrix, did give off to the other legatees, upon any of them arriving of age or marrying, such a portion as she thought best, and that in selling said land and executing the said deed of conveyance thereto to Green H. Atkins, she selected the land so conveyed as a part of her distributive share of said estate, as she had a right to do under the provisions of said will. That the land so selected and conveyed by her was but a small portion in value of her distributive share in said estate; and that said executrix and legatee, Catherine H. Washington, departed this life while the said estate of Stark Washington was still in process of administration, and before there had been any final distribution of saicjl estate among the legatees.

The parties signed and filed the following agreement of facts, to be considered in evidence on the hearing of the cause:

“That plaintiff (Mary F. R. Jones) inherited, as heir in the direct line from Catherine H. Washington, her grandmother, through her mother Fannie Jones, an undivided one third part of an undivided one fourth part of a plantation in Jefferson county, known as the Washington place, and afterwards known as the Jones place; that said plantation was the property of Stark Washington, and was devised as stated in the complaint of said plaintiff, and that said one undivided one third part of one fourth interest in said plantation is worth the sum of $2,000, and that the land mentioned in said complaint is not a part of said plantation, nor ever was part of said plantation.”

The court dismissed the bill for want of equity, and plaintiff appealed.

There are no recitals in the decree showing upon what the cause was heard. The entry states merely that the cause came on to be heard, and was argued by counsel, and dismissed for want of equity, at the costs of plaintiff.

There is nothing in the transcript but the bill, the will of Stark Washington made an exhibit thereunto, the answer, without exhibits, the agreed statement of facts, and decree.

The answer proposes to file as an exhibit a certified copy of the deed from Catherine H. Washington and Henry Washington to Green D. Atkins, for the tract of land which is the subject of controversy, and from which, the answer purports to copy the covenant of warranty relied on as a defense, but there is nothing in the transcript showing that the deed was ever filed, or produced at the hearing.

The affirmative allegations of the answer are not supported, except to the extent that the facts agreed on, and contained in the brief statement signed by the parties, may support them.

No brief has been filed for the appellee, and we are at a loss to determine on what grounds the court below dismissed the bill for want of equity.

The theory of the bill is that the tract of land which is the ■subject of the suit, was vested, in equal shares, by the will of Stark Washington, in his widow, Catherine H., and three children, Henry, Martha and Fannie, and that the appellant was entitled by descent to the share of her mother, Fannie, or one undivided fourth of the land, and that the appellee had acquired by purchase the other three fourths, and was in possession of the land; and the bill seeks partition, and an account of rents, etc.

Appellant does not claim one fourth of this tract by descent from her grandmother, but under the will of her grandfather, through her mother, one of the devisees.

It seems from the agreed facts, that beside the tract of land, which is the subject of the suit, Stark Washington owned a plantation of other lands, which vested by four equal shares, under his will, in his widow and three children, which remained undivided at the death of the widow, and that appellant inherited, through her mother, an undivided third of the undivided fourth of her grand mother in the plantation lands, which undivided third so inherited by appellant was of the value of $2,000.

Such seems to be the purport of the agreed facts.

Now suppose appellee produced at the hearing the deed from Catherine H. Washington to Green D. Atkins, containing the clause of warranty of title copied in his answer, the theory of the defense, so far as made out by the agreed facts, seem to be as foil )ws.

Catherine H. Washington conveyed the whole of the tract of land in controversy to Green D. Atkins, warranting the title-This covenant of warranty has followed the land by a. chain of conveyances into the hands of appellee. Appellant sues appellee, who holds the warranty of her grandmother, for one-fourth of this land, claiming title not from her grandmother, but through her mother, under her grandfather’s will.

But she has inherited from her grandmother, who made the covenant for title held by appellee, through her mother, an undivided share of other and different lands, therefore she is rebutted, or, estopped from recovering the land which she claims by her bill.

The ancient warranty was a covenant real, or one concerning the realty, whereby the grantor of an estate of freehold, and his-heirs were bound to warrant the title, and, either upon voucher, or by judgment in a writ of warrantia chartce, to yield other lands to the value of those from which there had been an eviction by a paramount title. The heir of the warrantor was bound only on condition that he had, as assets, other lands of equal value by descent. Lineal warranty, was when the héirs derived title to the land warranted, either from, or through the ancestor who made the warranty; and collateral warranty, was where the heir’s title was not derived from the warranting ancestor, and yet it barred the heir from claiming the land by any collateral title, upon the presumption that he might thereafter have assets by descent, from, or through the ancestor, and it imposed upon him the obligation of giving the warrantee other lands in case of eviction, provided he had assets. These collateral warranties wei’e deemed a great grievance, and, after successive efforts to be relieved from them, the statute of 4 Anne, C. 16, made void not only all warranties by any tenant for life, as against any person in reversion or remainder, but, as against the heir, all collateral warranties, by any ancestor who held no estate of inheritance in possession.

The remedy by the ancient warranty never had any practical existence in the United States, and personal covenants have superseded the old warranty, and they do not run with the land, but affect only the covenantor, and assets in the hands of his representatives after his death. The remedy is by an action of covenant against the grantor, or his real or personal representative, to recover a compensation in damages for the land lost upon eviction of title. 4 Kent Com., Marg. p. 469 and c; Logan v. Moulder, 1 Ark., 320.

In Sisson v. Seaburry, 1 Sumner, 63, Judge Story said: “That the covenant of warranty, though it 'is deemed a personal covenant in this country, and may not authorize a recovery over of the value from the heir, if he has assets, in a warrantia charlee, but only in an action of covenant; yet that does not prevent the covenant of warranty from operating as a bar to the title of the heir by way of rebutter, when it descends upon him from the warranting ancestor.”

Iii this case the land which is the subject of the action, did not desceñid to appellant from the warranting ancestor (Catherine H. Washington), but she claimed under the will of her grandfather, hence the covenant in the hands of appellee did not bar her title by way of rebutter.

The appellee may, by a proper suit, subject assets which have descended to appellant, and the other heirs, from Mrs. Washington, to satisfaction of damages for breach of her covenant of warranty, and perhaps might have obtained relief by a cross bill in this case, as the bill sought to evict him from a portion of the land, but so much of his answer as was supported by the agreed facts, did not make a good defense to the bill. Walker, ad., v. Byers, 14 Ark., 252; 18 ib., 118.

Thn bill, hpwever, was defective. The will of Stark Washington gave his estate to his wife, and three children by equal shares, but empowered his wife, as executrix, to keep'the estate together until such time as she might think proper to give to the children, as they came of age, or got married, such portion as she might think proper.

The bill indicates that Stark Washington left other lands besides the tract which is the subject of the suit, but does not state what disposition was made, of those lands, or exclude' the inference that appellant’s mother, might have been apportioned her full share of the estate, on her marriage, out of the other lands, etc. Nor does the bill show whether Mrs. Washington qualified as executrix, or whether she had made any partition of the estate, or was dead, or had ceased to be executrix, or renounced the control of the estate given her by the will.

Had the bill been demurred to, the court should have directed the solicitor of appellant to amend it, she being an infant, and to set out her claim to a portion of the particular land in controversy more fully.

The decree must be reversed, and the cause remanded, with directions to the court to permit the bill to be amended, and that appellee have leave to plead to the amended bill.


author: Walker, J.:

text:
    Mooney et al. vs. Cooledge et al.
    1. Injunction: Of trespass on land.

    A court of equity will enjoin the commission or continuance of a trespass-on land, where the injury is irreparable, or of such a character that the-damage cannot be estimated.
    2. Deed : Certainly requisite in an exception out of the thing granted.

    The same certainty of description is required in an exception out of a grant,, as in the grant itself; and where a deed excepted out of the conveyance one acre of the land, and there was nothing in the exception, or evidence,, to locate it upon any particular part of the tract, the exception was void for uncertainty, and the grantee took the entire tract.
    3. Estoppel: When recital in a deed will not create.

    A recital in a deed that a part of the land described had been conveyed to-' another, inserted for the purpose of excepting such part out of the grant, but void for uncertainty, will not operate as an estoppel against the-grantor, in a subsequent action to recover the land referred to in the recital.
    4. Adverse Possession:
    Adverse possession, to constitute a bar to the assertion of the legal title by the owner of the land, must be actual, visible, open and notorious; It is-not the particular use of land that is requisite, an adverse holding maybe established by any acts and declarations that show a visible, open and exclusive possession; If obe enters upon, sets apart, and asserts an exclusive right to, a plat of land as a family -burial ground, for a series of years-as deaths may occur in the family of himself or his friends, it will constitute an adversé holding; actual residence upon, or continuous occupancy in such a case is unnecessary, but where the possession is not under color of title, it will be coufined to such parts of the land as is covered with graves.
    APPEAL from Phillips Circuit Court in Chancery.'
    Hon. M. L. Stephenson, Circuit Judge.

      Rose and Palmer, for appellants.
    Estoppel is only coextensive with covenant. The mention of the acre reserved to Eerebee is only descriptive. Kinnear v. Lowell, 34 Me., 299; Flagg v. Flagg, 16 Gray, 175. Roane v. Wileut, id. 368; Strong, J. in Sunderland v. Struthers, 47 Penn. 411. Defendant had no interest in the recital, further than as descriptive. Wallis v. Truesdale, 6 Pick., 455 ; Hill v. Fpsley, 31 Penn. S. R. 331; Traum v. Heiffer, 31 Ala., 136: Brown, J. in Dezell v. Odell, 3 Hill, 220 and eases cited. Estoppel dcfes not extend to a collateral transaction. Merrifield v. Parrott, 11 Cush., 590; Collins v. Pillow, 26 Conn., 368; Pelletrean v. Jackson, 11 Wend., 110; S. C., 13 id. 189; Hayes v. Askew, 5 Jones, 63 ; Mg Comb v. Gilhey, 29 Miss., 146.
    On possession; Hicks v. Fluitt, 21 Ark., 463; Walker v. Towns, 23 id., 147. Good at least against tort feasers.

    Injunction the proper remedy. Beattey v. Kurtz, 2 Pet., 566.

      John J. Hornor, for appellees.
    No equity, because the bill states that appellees are in possession. Miller v. Neiman and wife, 27 Ark., 233.
    Complainants, are estopped. Herman on Estoppel, pp. 13, 251.
    No trust in Ferebee. 2 Wash, on Real Prop., 437,447.
    Complainants can claim no title on possession. Sharp v. Johnson, 22 Ark., 85; 3 Wash, on Real Prop., p. 114; Roe v. Campbell, 10 John, 477.
    Exception in the deed was void for uncertainty. Roe v. Porter, 3 Ark., 18; 3 Wash. Real Prop., p. 371.
   Walker, J.:

The plaintiffs, as heirs of Henry F. Mooney, deceased, filed their bill in the Phillips Circuit Court against Cooledge and others, owners of Evergreen Cemetery, to have their title quieted to one acre of land, and to enjoin the defendants from removing the bodies of the dead persons buried upon said acre of ground, and from making roads and thoroughfares on the same. The claim which the plaintiffs set up to this land is by descent, and by occupancy and adverse possession.

The defendants answered and denied the title and possession of plaintiffs, and set up title in one Fleetwood Hanks to said lands.

The case was heard upon bill, answer, exhibits an$l depositions, and a decree rendered in favor of defendants, from which plaintiffs have appealed.

The defendants contend that the plaintiffs, by their bill, show defendants to be in possession of the land in dispute, and claim to be the legal owners thereof, and if entitled to redress, they should seek it by an action at law, not in equity.

As a general proposition, the party who sues to remove a cloud upon his title should put himself in possession of the land. If out of possession and holding the legal title, he should sue in ejectment for possession, or in trespass for ordinary damages sustained. Birt there are exceptions to this rule, one of which is, that where the damages threatened, or being done, are irreparable, or where, from the nature of the injury, no just estimate of damages can be ascertained, the party receiving or threatened with such injury may, by a bill in chancery, restrain the act of trespass or violence threatened.

We think the facts stated in the bill bring the ease clearly within this exception.

The plaintiffs allege that this acre of land was, and for many years had been, the property of their ancestor, and had all the while been claimed and used as a family burial ground; that many of their near relatives and esteemed friends were buried there; that defendants, the owners of Evergeen Cemetery, have extended the cemetery upon this land, fenced it in, laid off part of the lands upon which their dead relatives and friends have been buried as an addition to said cemetery ; had given notice to them to remove the remains of their dead relatives and'friends, and were threatening to do so.

'• For such an injury as this there could be no standard by which to estimate the damages sustained. The extent of the injury to be inflicted must depend upon the sympathies and feelings of the parties injured, and their peculiar views as to the sacredness of the spot where the remains rest. Whilst it might be a matter of little moment to some, it might inflict an irreparable injury to others, which money could not compensate^ Under the state of case presented, we think that the suit was properly brought in a court of equity.

The plaintiffs claim title to this property as heirs of Henry F. Mooney, and they also claim that by a continued, uninterrupted, adverse possession for more than thirty years, they have acquired a valid title to the land.

We will first consider the validity of the title claimed by defendants.

It appears that Henry F. Mooney, under whom title is claimed, was, in the year 1835, the owner of a tract of one hundred and forty-seven acres of land near Helena, Arkansas, and, on that day, that he conveyed the same by deed to Milliner Hanks, Fleetwood Hanks and George W. Ferebee. The land sold is described in the deed as follows: Bounded on the east by the Mississippi river, on the north by a tract of land belonging to William Mooney, on the west by the public surveys, and on the south by a tract of land owned by [them the said M. Hanks, Fleetwood Hanks, and George W. Ferebee, being that part of a tract of land originally containing 640 acres, which Avas confirmed to, and patented in the name of, William H. Glass, which he, the said Henry F. Mooney inherited from his father, the late Daniel Mooney, deceased, and containing about 146 acres. The number of acres which fell to the share of said Henry F. Mooney being about 147 acres, and one acre of the same, to include the graveyard and burial ground, having been previously deeded to him,-the said George W. Ferebee, to be by him forever kept as a burial ground. The aforesaid number of about 146 acres remaining.”

This is the description given, and these the boundaries given of the tract sold, and upon a fair consideration of which, there can be no doubt but that Henry F. Mooney intended -to convey only 146 acres, leaving out one acre, which he says he had before that time conveyed to Ferrebee to be kept as a graveyard. It is but fair to infer, too, that a gráveyard spot had been selected, and that persons had already been buried in it, and, to this extent, the evidence is conclusive.

But there is nothing in the language of the reservation, nor in the evidence, to locate this acre of ground upon any particular part of the' 147 acre tract, and whilst the evidence most clearly shows that this burial ground was claimed by Henry F. Mooney as his, and was frequently used for that purpose, for the interment of members of his family, and by request also several friends, and perhaps, occasionally by strangers without his permission, there is nothing shown to give this spot a location upon the tract sold. It was not inclosed, no monuments, no boundary lines, in fact nothing to identify the spot so selected, except the graves dug, and the interments made upon it, with nothing whatever to indicate upon what part of the 147 acre survey it was situated.

The copy of a survey purporting to have been made by a surveyor and filed as an exhibit was of recent date, since Evergreen Cemetery was inclosed, and seems to commence on a line of the cemetery, has no established or known place of beginning, which had an existence when the spot was selected as a burial ground, and, so far as shown, was not made under an order of court, or upon notice to defendants, or other claimants of adjoining lands.

Under this state of facts the survey was not competent evidence for any purpose.

. The object of the descriptive part of a grant, says Washburn, is to define what the parties intended, the one to convey, the other to receive. Washburn on Real Property, vol. 3, p. 333.

That the grantor intended to except out of this grant, an acre of land, including his family burial ground, is clear enough. In order to effect this purpose, it was necessary to define its location, to identify it, so that it might be known upon what part of the tract this acre was to be taken.

In the case of Doe v. Porter, 3 Ark., 18, it was held by this court, that in all conveyances the grantor must describe the thing granted with sufficient certainty to ascertain its identity.

In the case of Hughes v. Streeter, 24 Ill., 647, the land was described as “a part of eighty acres containing seventy-four acres more or less.” This was held insufficient, was so indefinite that the land could not be located.

In the cast of Laflin v. Harrington et al., 16 Illinois, 304, “a deed for twelve acres of a tract of land described by metes and bounds, was held invalid for want of certainty in the description of the land intended to be conveyed.”

In the case of Shackelford v. Bailey, 35„ Illinois, 391, a deed for thirty-four acres out of a certain tract, was held to be void for uncertainty in the description of the land intended to be conveyed.

These examples may suffice to show the extent to which the courts have gone in their decisions under the rule which requires, of the parties contracting, to describe “what the one intended to convey and the other to receive.”

The same certainty is required in making the excption, as in the deed itself.

■ If the grantor wishes, says Mr. Washburn, to except anything out of what he may in general terms have granted, as an exception is the taking of something out of the thing granted, which would otherwise pass by the deed, it may be said in general terms that it ought to be stated and described as fully and accurately as if the grantee were the grantors of the thing excepted, and the grantor in the deed made the grantee by the exception.

The exception will be found to contain all the uncertainty found in either of the cases cited, and because of such uncertainty in locating the acre of land intended to be excepted, we must hold it void.

And thus there is left an acre of land within the limits of the general grant, which was never intended to be sold by the one party, nor bought by the other, nothing ever paid for it. To whom does this acre belong ? The exception being inoperative and void, did the qne acre remain the property of Mooney, or did it under the general grant pass with the balance of the tract to the grantees.

An exception, says Mr. Washburn, must be apart of the thing included in the grant, and to be taken in substance out of that, and differs in this respect from a reservation. But in case the exception is made in the granting part of the deed (which was the ease in this instance) it is not to be taken as an exception out of the thing granted, but as excluding of such part from the grant altogether.

The effect, says Mr. Washburn, page 370, in such a case, in respect to the thing excepted is, as if it never had been included in the deed. But as in this case, as we have seen, there was no valid exception, because no definite description was given of the tract to be excepted, and nothing by which it could be identified or made certain, the whole estate passed by the grant to the grantees. They got a legal title to one acre of the land which they never intended to purchase, and for which they paid nothing, an acre of land which they insist that plaintiff’s ancestor conveyed to George W. Eerrebee, and which plaintiffs are es-topped from 'denying by force of the recital of the fact in their deed.

As regards the question of estoppel, and whether it did ©r not exist, from the view which we have taken of the case, is not material, because, if we give to the recital its full effect, the fatal omission remains, the question is still unanswered as to where this acre of land lay.

But should this not be the case, and if we take the recital to refer to a valid deed, one which cured this defect, this, was at best but part of the description of the land intended to be conveyed. It was no part of covenant of sale, it was a limitation upon the quantity sold, not a covenant of title.

An estoppel is founded on the idea that a man shall n©t defeat his own act, or deny its validity to the prejudice of another. 3rd Washburn on real property, 68.

Even admissions of fact, to amount to an estoppel, must be made to influence the conduct or to derive a benefit to another, which it would be contrary to good morals afterwards to permit the party making them to deny. Id. 94.

Now when we apply these rules to the case under consideration, it will at once be seen, that this recital of a previous sale of one acre, was in no respect prejudicial to the rights of the grantees. It was not made to prejudice their rights to the property sold, or intended to be conveyed. It did not relate to the title of the grantor, nor to his covenants or warranty of title, nor could it in any way have influenced their conduct, in the purchase, whether the recitals of a previous sale were true or false, and notwithstanding they were made, the plaintiffs were not by any rule of good morals estopped from contradicting them. The truth is, that the defendants have been pressing this question of estoppel, for the purpose ©f fixing the title to the One acre of land, in dispute in Ferrebee, when in fact the legal title was in themselves.

Holding, as we must, that the exception was inoperative and that the acre of land in dispute passed under the general grant to defendants,' we are brought to consider, whether by a continued uninterrupted possession of the land adversely to defendants, plaintiffs have acquired a title to the property.

This is a question of fact, to be determined from the acts and declarations of those claiming title by possession, as well as those who claimed to hold the legal title.

Uninterrupted for the requisite period of time, the assertion of a right of exclusive ownership, followed by acts consistent with such claim, on the one side, and knowledge of this claim, an acquiescence in it or a failure to disturb or question such possession on the other, are all proper circumstances to be considered, in determining the validity of the claim thus asserted.

Plaintiffs in their bill assert, and the defendants deny the existence of such facts as are necessary to confer title by possession.

■ Plaintiffs in their amended bill aver that they can find no conveyance of the one acre tract to Ferrebee, and that in fact they believe that no such conveyance was ever made, and that Ferrebee never did at any time, set up or assert any claim to the acre of land, and that if in fact such deed was made, it was in trust.

This amendment in no respect bettered the plaintiffs’ case.

But in addition to this, they charge that their ancestor did not sell, nor did he intend to sell, this one acre of land, but desired to retain it as a family burial ground. That, for generations the remains of their ancestors, and friends had been buried there. That from the time of the purchase by Hanks and Ferrebee in 1835, from Henry F. Mooney, he continued to exercise ownership and control over said acre of ground, and to bury members of his family thereon, and frequently gave permission to other persons to bury their friends and relatives thereon. That from the date of his deed to Hanks and Ferrebee, until within about two years ago, no person claimed any ownership over said acre of land, or in any way sought to interfere with their ancestor in his life time, or plaintiffs, his heirs, since'his death, in its use or possession.

To these allegations defendants reply: That Henry F. Mooney, on the 9th of March, 1835, sold to Hanks & Ferrebee his entire interest in the tract, but it would seem that these general terms were only intended to extend to 146 acres, as in another part of the answer defendants insist that the one acre .tract was conveyed to Ferrebee, and that although no deed may be found of record, a deed for the land was executed. Defendants admit that before the execution of the deed in March, 1835, there was a burial ground on the land conveyed to Ferrebee, but that it was held and owned by Ferrebee, not Henry F. Mooney. They deny that Henry F. Mooney, after the sale to Hanks & Ferrebee, ever exercised any ownership or control over the acre of ground. That no particular acre was designated, but there was, and for many years before had been, a public burial ground on the land without reference to the ownership of it. They admit that part of Henry F. Mooney’s family were buried there, but deny that he gave permission to others to do so. That before the opening of Evergreen Cemetery, it was the custom of the country to use vacant private property for the burial of the dead, without permission. They charge that for years this acre of land was enclosed and held adversely to the claim of Mooney by William Russell and Benedict Knott, and others; deny that Mooney exercised control over this land, paid taxes on it, or did any act indicating ownership.

Thus it will be seen that whilst the fact that there was a burial ground, on which part of the Mooney family were buried, as well as others, at the time Mooney sold to Hanks and Ferrebee, they insist that at that time this acre of land in fact belonged to Ferrebee, and was his, and not Mooney’s property, and deny that Mooney or plaintiffs, ever after such sale, made any claim, or asserted any acts of ownership upon it, and thus the issue of title by possession is distinctly presented.

To sustain this issue the plaintiffs have taken the depositions of several witnesses, upon a careful consideration of which the following state of the case is made :

That this tract of land for many years had been owned by plaintiffs’ grandfather, Daniel Mooney, and afterwards, by descent, came to their father Henry Mooney. That at an early date this particular spot on said tract had been selected as a family burial ground, and called and known as the Mooney family burial ground. That before the sale to Hanks and Ferrebee it had been so known and used, and it appears, too, from the reservation of one acre of land which had not been conveyed or intended to be conveyed by Mooney to Ferrebee, it was intended to be perpetually kept for that purpose, and although the act was not sufficient, because of its uncertainty of a precise location, to except it from sale under the deed to Hanks and Ferrebee, it is not the less, for that cause, competent evidenóeto show the intention of Mooney to retain it for that purpose.

Mary Anderson, a daughter of Henry F. Mooney, says: She was born in Phillips county, and raised there. In 1850, went with her father to the burial of her deceased brother; whilst at the grave yard her father told her that all of her relatives were buried there, and that we would probably be buried there too, adding that my grandfather Mooney had selected that spot for the burial ground of the family. My father claimed this piece of ground, consisting of one acre, and it was used then as a burial ground, and so continued to be during my father’s life. Grandpa, Daniel Mooney, grandma, Nancy Mooney, Aunt Missouri Mooney, Uncle Stewart Mooney, Uncle William Mooney, Wm. McAdoo, Grandma Mooney’s second husband, John Russell, my father’s half brother, and all of the family of Davis Thompson were buried on this piece of ground. So I was informed by my father, and that Thompson’s family were buried there by his permission. I remember upon several occasions he refused to let persons be buried there. On one occasion I heard him refuse to let a Confederate soldier’s remains be buried upon that acre of land, the soldier’s name was Robertson, belonged to 21st' Texas cavalry; he died at father’s house January, 1863. Father then stated that it was his burial ground, and that if he permitted one soldier to be buried there., he would have to let everybody have the same right. I was at the burial ground on the 28th February, 1863, when our family were moving from Helena to the country. He told me that if he died before the war closed he wanted his remains buried there, and when on his death*bed, he requested that when the war closed, and everything became quiet, his remains be moved to that acre of land, and buried with the deceased members of his family. My opportunities to be informed were good, and I never heard of any one having, or claiming to have, any right to this acre of land, save my father. It has been always known and called Mooney’s grave yard. I never heard of the land being enclosed.

Arthur Thompson, a witness forty-six years of age, and thirty-two years a resident of Phillips county, deposed: My father moved to the place, north of Helena, of which Evergreen Cemetery is now part, in 1841, and lived there about thirteen years with his family. When we moved to the place there was a burial ground (now part of Evergreen Cemetery), known as the Mooney burial ground; and it was understood that one acre was reserved as a family burial ground. Mooney, in his lifetime, frequently talked to my father and to myself about this burial ground, and told us that we could use it as our family burial ground, and my father, mother, and several of my sisters and brothers have been buried there, and a number of Mooney’s family are buried there, besides a number of others, some without permission. I lived on the place for years. My opportunities to be informed were good. I do not know of any one having claimed particular control over it, except that Mooney claimed it as the Mooney family burial ground, by reservation, and authorized us to use it as our burial ground.

William Russell had this land sold under a mortgage, and afterwards sold it to B. J. Knott. I do not know that either of them ever claimed this acre in controversy.

Thomas H. Quarles deposed: I am forty-six years of age; lived in Phillips county since 1846; moved to what was called the Knott place, north of Helena, resided on that place until 1862 ; have resided in Helena since 1865. I am acquainted with the piece of land now inclosed in the Evergreen Cemetery, known as the Mooney family burial ground; have been acquainted with it since 1847, that being the year I moved on the Knott place. It was known to me, as well as the generality of old settlers at that time, to be the private burial ground of the Mooney family, and I have always believed and. understood it was the property of H. F. Mooney, and that he had reserved it for a family burial ground. Mooney always claimed and exercised ownership over it. I never knew or heard of any one being buried on the acre of ground in question without the permission of H. F. Mooney. When William Knott was buried there Mooney was asked for permission to bury him there, which was granted. The deceased members of Davis Thompson’s family were buried there, as well as quite a number of Mooney’s family. I never heard of any one else setting up claim to this land; was under the impression that Mooney owned four acres there.

My means of information were good. I was well acquainted with the acre of land, at one time being a partner in the ownership and cultivation of the original tract of land of which the one acre is a part, and which at one time was the property of Mooney. I never claimed or owned said acre of land. I always understood it to be the property of Mooney. B. J. Knott, William Mooney and myself were at one time the owners of the original tract of land deeded by H. F. Mooney to Hanks, et al., and at no time did either of us claim or pretend to own the acre of land reserved by H. F. Mooney for a family burial ground, it being claimed and owned by Mooney. I know that William Russell made a deed to B. J. Knott, et al., to the land, and I know Knott never claimed the Mooney burial ground, and I never heard of William Russell claiming it.

If B. J. Knott ever had any of the acre of land inclosed, it was a small portion on the east side of the acre. The fence run north and south near the graveyard, but I know that none of the graves of any of the Mooney or Thompson family were ever inclosed by B. J. Knott, but I heard Knott repeatedly say that he thought the fence inclosed a part of the reservation made by Mooney for a burial ground. I have heard Knott refuse persons the right to bury their deceased friends there, saying that it was Mooney’s property.

This is the testimony touching the possession and claim of exclusive ownership over the land in dispute, and as the claim to title thus acquired is an unusual one, we have given the evidence in detail.

Iii view of which, the question arises, as to whether the adverse possession is such as to confer title on plaintiffs.

The adverse possession, required to constitute a bar to the assertion of a legal title by the owner of the land, must be an actual, visible, notorious, distinct and hostile possession. 3d Washburn on Real Property, 122.

The whole doctrine of adverse possession rests upon the presumed acquiescence of the owner.

It is not pretended by plaintiffs that the graveyard was inclosed or cultivated, or that there was an occupancy of it by residing upon it. But the proof clearly shows that long before the sale of the land in 1835, Daniel Mooney, the grandfather of the plaintiffs, then the sole owner of the tract of which this graveyard was a part, selected this spot as a family burial ground, after which time he and many other members of his family were buried there.

This-tract of land passed by descent to his son Henry, who continued to claim and use it as a family burial ground, and with a view, as the acts of the party show, of more effectually setting it apart and dedicating it to that sole purpose, conveyed it to George W. Ferrebee, to be held by him for that purpose; after this, in 1835, when Henry F. Mooney sold the land, he expressly excepted out of the sale this tract, and although the exception was not effective for that purpose, it shows what the intention of all the contracting parties were, and from that day forward, during the life of Henry F. Mooney, by acts and declarations, he used and appropriated it to the purpose for which it was set apart and intended. He did this openly and exclusively, as his property, and his right to do so was not questioned by those who acquired title under Hanks and Ferrebee, but, on the contrary, was admitted to be his. Quarles, one of the joint owners of the .tract of which the acre claimed as a graveyard was a part, says, that neither Knott nor himself claimed the graveyard lot; that when Knott was applied to for permission to bury a deceased person-upon it, he refused permission to do so, saying that it was Mooney’s family burial ground, not his; after this, when Knott died, he was buried there by the permission of Mooney obtained for that purpose.

It is not the particular use made of the land, or whether built upon and used as a residence, or cleared and cultivated as a farm, but the exclusive use and adverse possession may be proven as well by other acts and declarations, which show a visible, open and exclusive possession and use of the land.

Shall we say that one who enters upon, sets apart and asserts . an exclusive right to a plot of land as a family burial ground, who, from year to year, for a series of years, as death in his family occurs, or when the members of a friend’s family die, buries , them on that spot, and erects monuments to mark the spot of interment, that these acts are less open, adverse and exclusive evidence of possession, because from the nature of the use, it is neither necessary nor agreeable for him actually to reside upon the spot of such interments? ¥e think not. Because, as we have remarked, it is the open, exclusive, continuous use and occupation, no matter how, which puts the real owner of the land upon his peril to assert his claim of title or lose the land. Washburn says: Neither actual occupation, cultivation nor residence is necessary, where the property is so situated as not to admit of any permanent, useful improvement, and the continued claim of the party has been evinced by public acts of ownership. * * * That much depends upon the nature of the situation of the property, and the use to which it can be applied, or to which the owner or occupant may choose to apply it.” 3 Washburn Real Prop., 134.

In thus holding, we think the evidence fully sustain us, and that the case comes fully within the spirit of the rule, most certainly within the equities of the case made.

If this occupancy had been held under color of title, the occupancy of any part of the tract for the required time would have conferred title to the limits of the grant under color of which the entry was made ; but in this case, the adverse jiossession can not be said to be under color of title to this acre of land. No deed giving limits or boundaries to this spot was ever made, and when an entry is made under such circumstances, the rule is that the possession reaches no further than there is an actual occupation by some defined, certain limits, indicated by an enclosure, or something of a like notorious character.

There can be no doubt but that it was the intent of Mooney to extend his claim of title to one acre, embracing the graves of his relatives and friends, but in fact his occupancy is only over the land covered with graves, made either by his ancestors and other relatives, or others by his direction and with his assent. To this extent there was both use and occupation, but, no further. And whilst this use and occupation is abundantly shown, there is not such evidence of the extent of the land within the limits of an acre, so actually used and appropriated, as to give to the plaintiffs the relief to which we think them entitled.

Being, as we must hold, entitled to relief, the court below should have directed the master, or have appointed a suitable commissioner, to hear proof, ascertain the extent of the ground occupied for burial purposes by the Mooney family, or of others with their permission, within the limits of one acre, to lay off the same by metes and bounds, in such convenient shape as may be found most convenient and appropriate, and, upon this report, to have rendered its decree quieting the title of plaintiffs to the lands, directing the fencing placed upon it to be removed, and perpetually enjoining the defendants from entering upon the land so ascertained and set apart, or removing the remains of the dead interred upon it.

Let the judgment and decree of the court bélow be reversed and set aside, the cause remanded, with instructions to cause the land, so used and occupied, to be identified and set apart, and a decree rendered in favor of plaintiffs in accordance with law, and not inconsistent with this opinion.


text:
    Fuller, guardian, vs. Fellows.
    I)kjbd : Patent ambiguity.

    A deed to re?.l estate must describe it with sufficient certainty to locate it; and when the section and subdivisions thereof are set out, and nothing more, it is a patent ambiguity and cannot be aided by parol evidence. Is or will such a reference to the homestead as may raise a presumption that the grantor resided on the land, aid the description.
    APPEAL from Ouachita Circuit Court in Chancery.
    Hon. James T. Elliott, Circuit Judge.

      Compton, Martin & Parsons, for appellant.
    The uncertainty in the description of lands in the trust deed of appellant is a latent one, and may be removed by parol proof. Hadip v. Noland, 6 Sm. & Mar., 294; Harris v. Doe, 4 Blackf., 369; Doe v. Jackson, 1 Sm. & Mar., 494; Turney v. Goodman, 1 Seam., 184; Middleton v. Perry, 2 Bay., 539; Haven v. Brown-, 7 Greenl., ,421; Wing v. Burgess, 1 Shep., Ill; Bradley v. Wash., Alex. & Georgetown Steam Packet Go., 13 Pet., 89; Chamberlain v. Letson, 2 South., 452; Glantonx. Anthony et at, 15 Ark., 543; at least its acknowledgment and record was sufficient to put Fellows upon notice. Beyannum v. Hyatt, 1 Sm. & Mar., Ch. Rep., 437; Green v. Bodley, id., 338; Green v; Slayter, 4 John., Ch. Rep., 39; Johnson v. Stagg, 2 John., 510; Pike v. 33 Wilcox v. 11
      Parhest v. Alexander, 1 Johns. Ch., 394; Merrieh v. Wcdlace, 19 111., 498.

      Cockrell, for appellee.
    The deed of trust for appellant is void for uncertainty. Bailey v. White, 4 N. H., 337; Jackson v. Woodruff, 1 Co wen, 285; Wilson v. Inloes, 6 Gill. (Md.) 121; 3 Ark., 57. The description must be sufficiently certain in the deed. 3 Wash. E. P., 344, 331; 4 Bac. Ab. “Grant” (H). 521; 4 Comyn Grant E. 14; Adams Eq. Ju., 25 and n ; 4 Crouise Dig., 206, sec. 29; 221, sec. 23; Holly v. Curtis, 3 How. (Miss.) 231; Kea v. Robeson, 5 Ind., (N. C.) Eq., 375; Neil v. Hughes, 10 Gill. & j., 7; 3 Pet., 96; 6 Pet., 345; 10 Pet., 329; 5 How. (U. S.) Eq. 26; 4 Mass., 205; 13 Johns., 102; Mussiek v. Sunderland, 6 Cal., 297; Montgomery v.. Johnson, MSS. Ark. Supreme Court.
    Parol evidence, therefore, not admissible. 1 Pick. (Mass.) 31; 3 How. (Miss.) 231 supra; 16 Mass., 86 ; Sugd. on Ven. 114, 115; 1 Green. Ev., sec. 297; 1 Sug. Ven. 181-3; 2 Hill E. E., 345-6; 3 Phil. Ev., 1366 ; 11 Mass., 29 ; 6 Pet., 345; especially after the trust deed to Barker. 3 Wash. E. P., 332; Prescott v. Hawhins 16 N. H., 122, 127; Grey v. Hernbech, 31 Mo., 400.
    See Bose’s Digest, 543 as to mortgages. Hannah v. Carrington, 18 Ark., 105.
   Walker, J.:

In this case there is a contest for certain lands in Ouachita county, Ark., between Fuller, as guardian, and Fellows.

Both parties claim to derive title from Lucius J. Greening, who appears to have been indebted to both of them.

To satisfy these debts, Greening, on the first day of February, 1867, executed a deed of trust to John Brown, for the benefit of' Fuller, with power of sale of the lands, describing them by subdivisions of certain sections, neither township, range, county nor State is given.

This deed was acknowledged and. made of record, after which, on the 2d day of October, 1867, Greening executed another deed of trust to George M. Barker for the benefit of Fellows, in which lands of the same local subdivisions were described, with township, range, county and State. This deed was also acknowledged and recorded.

After which, sales of the land were made by the trustees, under both deeds of trust, and the land purchased by both Fuller and Fellows, under their respective deeds of trust.

Fuller having first purchased, deeds were made by the trustees to Fuller for land sold under his deed, and to Fellows for those described and sold under his deed.

Fellows contends that although the deed executed to Brown for the benefit of Fuller was first executed, and recorded, that it was void for uncertainty in the description of the land.

On the other hand, Fuller admits that the description of the land was not sufficient to designate any particular tract of land. But that as there was in the deed to Brown, the trustee, an express reservation of the homestead of Greening from sale, that this reservation pointed to the particular tract with such certainty that it might be, by evidence, ascertained what particular subdivisions were intended to be conveyed.

Under the state of case presented we are of opinion that this could not be done. The description must be found in the deed with sufficient certainty to locate the land. Doe v. Porter, 3d Ark., 18; Mooney v. Cooledge, ante.

That there was no such certainty in the description given of the land intended to be conveyed, is evident. The deed de-' scribes certain parts of quarter sections, but altogether fails to give any description of township, range or county. This is a patent omission. Phillips says, “extrinsic evidence is admissible to identify the thing, as well as the person intended by the maker of' the instrument. That is, to enable the court to interpret his words, and to determine whether the description applies to the to the thing claimed.” 2 Phillips, p. 716.

There were no ambiguous terms in this deed, nothing to interpret, the terms were all plain, and the description perfect as far as it went. But it was patent, that a further description was necessary. And whilst parol evidence is admissible to explain what is meant by the use of terms, as for instance, if the • grant be of a tract called “black acre,” evidence is admissible to show what tract was intended to be conveyed by that description, but where there is a lack of description a neglect to describe, there is nothing which can be explained or made plain by parol evidence, such evidence, if admissible, would add to the description, but not explain that given in the deed.

The instruction to the trustee to reserve a homestead, may raise a presumption that the grantor resided upon the land, but nothing more, and we think it did not aid the description given, so as to make it more certain.

If this had been an action brought by Fuller against Greening to have the omission supplied, a different question as to the admissibility ©f parol evidence would arise. But in this case, it is a contest for title, between third parties, each claiming title under deeds of trust, required to be recorded.

The object of recording was to put upon record such description of the property, as to identify it, and give notice to all subsequent purchasers, what particular tract or parcel of land was encumbered. Recording this deed furnished no such evidence to Fellows. When he took his deed from Greening, he stood to all intents, an innocent purchaser without notice, and it cannot be, that Fuller should’ be permitted to introduce evidence, such as would identify'and make certain that which was n@t so at the time Fellows acquired title.

Let the decree of the court be in all things affirmed.