author: Whytock, Special Sup. J.

text:
    KILLIAN et al. v. BADGETT et al.
    Contracts— What protif of incompetency of parties necessary to set aside.— Where a deed or contract is regularly made, the competency and - capacity of the parties to contract aré presumed, and a Court of Chancery will not set aside or .rescind such contract, unless the proof shows imposition, fraud or undue influence, with weakness of mind in the making or procuring of such deed or contract.
    APPEAL EROM PULASKI CHANCERY COURT.
    Hon. T. D. W. Yonley, Chancellor.

      Watkins $ Fose and M. L. Rice, for Appellant.
    The bill charges that Killian obtained the conveyance from his wife by taking advantage of the weakness of her mind, occasioned by excessive use of morphine, and ill-health.
    The answer directly denies this, and is good, unless contradicted by two witnesses, or one with strong corroborating circumstances. Burr vs. Burton, 18 Ark., 214; Spence vs. Dodd, 19 Id. 166.
    Old age, failing health, and failure to recollect or understand certain transactions, will not alone be sufficient to prove-incapacity to make a will. Clarke vs. Davis, IRedfield, 249. Evidence of habits of intemperance and occasional fits of wildness, though indicating an impaired mind, xlo not establish a want of testamentary capacity. Fulke vs. Adam, Id. 454. "Whoever alleges want of mental capacity in another must prove it. Delafield vs. Parish, 25 N. T., (11 Smith,) 9 yin re Coffman, 12 Iowa, 491. Undue influence must be proved, and cannot be inferred from the mere relationship of the parties. Wright vs. Howe, 7 Jones, Law,- N. C., 412. When a testator had some insane delusions, but had mind enough to know and appreciate the character and effect of the dispositions of his will, it was held to be valid. Dunham’s Appeal, 27 Conn., 192 ; Van Pelt vs. Van Pelt, 30 Barb., 134. A person not competent to transact the ordinary business of life may yet make-a will. Stubbs vs. Houston, 33 Ala., 555.

      Garland § Nash, for Appellees.
    Imbecility or mental weakness must constitute an ingredient, and a most material ingredient, in examining whether an instrument be invalid by reason of fraud or imposition, or undue influence. Hill on Trustees, s. 154 ; 1 Story’s Eg. J., See. 235, 238; Wheelan vs. Wheelan, 3 Comen R., 537 ; Dent vs. Bennett, 7 Simons R., 539 ; S. 0., 4 Mylne $ Craig, 269; Tout-side vs. Sherwood, 1 Brown Ck. R., 558 ; Brice vs. Brice, 5 Barb., S. G. R:, 533; Birdsong vs. Birdsong, 2 Head, (Tenn) 289.
   Whytock, Special Sup. J.

This is an appeal from a decree of the Pulaski Chancery Court, rendered on the 29th day of July, 1868. The suit was commenced by the appellees, Badgett and wife, for the purpose of cancelling a deed in trust, executed by Milus A. Killian and Elizabeth Killian, his wife, to defendant, William B. Badgett, as trustee. The deed bears date the 28th day of May, 1861. The complaint charged that it was procured from Mrs. Killian by the-fraud and misrepresentations of the defendant, Milus A. Killian, her husband.

The Chancery Court decreed that the title to the lands described, that is to say, lots one, two and eleven, as designated in Governor Pope’s survey and sub-division of the one thousand acre grant, made by the United States, to the State of Arkansas, for the purpose of building a court house and jail, and the south-west quarter of the north-west quarter, and the north-west quarter of the south-west quarter of section twelve; all iii township one, north of the base line, of range twelve, west of* the fifth principal meridian, situate in the county of Pulaski, just below the city of Little Rock, and containing, by estimate one hundred and ninety-eight acres, more or less, to be in the complainant, Lucetta S. Badgett, as the child and only heir at law of the said Elizabeth Killian, deceased. It appears that Mrs. Badgett was the daughter of Mrs. Killian by a former husband. The Chancery Court further decreed that the title to the lauds be quieted.' The administratrix and lioir at law of defendant, Milus A. Killian, appealed from the decree.

The complaint charges that, by the deed in question, these lands were conveyed, as stated, through the fraudulent representations and undue influence of defendant, Milus A. Killian; that Mrs. Killian owned the property in her own right, and that the deed thus obtained from her, contained the following conditions : “To William B. Badgett, in trust, nevertheless, that the said Milus A. Killian, and the said Elizabeth, his wife, for and during the term of their natural lives, respectively, without impeachment of, .or any manner of waste, should have,- hold, use and enjoy the same, and receive and enjoy the rents and profits thereof; and upon trust also, that the said William B. Badgett, upon the written request of the said Milus A. Killian, and the said Elizabeth; his wife, or the survivor of them, might, at any time, and should, upon such request, mortgage or sell the said tract of-land or any part or parcels of land, or any-.part or parts or portions thereof; and that the said Milus A. Killian, and the said Elizabeth, his wife, or the survivor of them, should receive the entire consideration arising from such mortgage or sale, and that the said William B. Badgett, or any trustee that might be appointed, should have full power to make valid titles, in such cases, and if no such disposition should be made of such tracts of land and premises, then, at the expiration of the said life estates, the remainder should descend to the heirs of the said Elizabeth.” .

The separate answer of Milus A. Killian, admits these terms of the deed.

It is further charged, in the complaint, that at the time of the execution of this deed, Mrs. Killian was upwards of sixty-throe years of age; that she was infirm of mind and body; that she had been, during the fifteen years previous, addicted to the constant and excessive use of opium in some of its forms; and that she was, from the weakness or imbecility of her understanding, superinduced by the use of opium, incapable of executing the said deed, or of knowing its full purport. It is also charged that her husband, said Milus A. Killian, took advantage »of the weakness of understanding, used undue influence to procure the execution of the deed by her, and misrepresented to her its legal effect.

The defendant, Milus A. Killian, in his answer denies'these charges, but admits that Mrs. Killian used morphine inordinately and habitually. He alleges that the deed was prepared according to Mrs. Killian’s express wishes.

.The transcript is voluminous, and the depositions submitted are numerous, and some of them of great length.

It will be seen, from the foregoing statement of the case, that the question presented,to the court, turns mainly upon the determination of the fact as to the condition of Mrs. Killian’s mind at the time she executed the deed.

We have carefully examined the transcript, and repeatedly read and compared the various depositions. Mrs. Killian, at the time she made the deed, was about fifty-three or fifty-four years of age. Blie had pomplainod considerably of her health, which is proved not to have been very good for several years before this time, but it also appears that she generally attended to or supervised her household duties. She died in July, 1862. The witness, whose testimony is greatly relied on by the complainants, to establish the charge of imbecility of mind, is William B.. Badgett. He was the eldest son of the complainants, and at the time of-the execution of the deed, was twenty-five or twenty-six years of age. He thinks that his grandmother displayed much mental imbecility iu her fondness 'for a pet lap dog, and seems to think that the delight she manifested in -being out of doors in the springtime, at" work in her garden, was a sign of weakness. He states that she purchased a great deal of morphine, and would sometimes talk in a childish manner.. He fails to specify any other alleged foolish acts qft her part; but other statements in his deposition, indicate that she conversed with him very sensibly about the property, and her personal affairs. Mrs. Killian, evidently was quite fond of him, talked to him frequently about the disposition of her property, and he apparently regarded himself really and directly entitled to her estate, after her decease. Perhaps the mind of the witness was somewhat tinctured with an impression of disappointment that this hope was not realized.

The next witness, for complainants, is Didimus Lewis, a young man, -who testifies that he was twenty-three years of age; that he was quite intimately acquainted with Mrs. Killian, during the last three or four years of her life, and had conversations with her of a general character. He says her health was often bad; that she used large quantities of morphine, but that she attended to her hpusehold affairs, superintended the selling of eggs, vegetables, etc., and with the exception of taking morphine, conducted herself like any other woman. She spoke to him about her property, and seemed anxious that it should go to 'William Badgett, or to her grandchildren. This witness further declares that he “never saw her do anything which showed a want of common capacity.”

John Peyton, another witness for complainant, testifies that he lived with Dr. Killian’s family during the year 1861; that, Mrs. Killian complained of her health; that she took morphine, but he did not know how'much; that she “was a smart woman when she was at herself.” , The depositions of the witnesses, Kingston and John and Mrs. Reynolds, on the part of the complainants, are of like general purport, excepting that they state that they had known Mrs. Killian for a longer period.

These are all the depositions submitted on the part of the complainants, except those of the two physicians who were called upon to give their opinion as to the effects produced upon a person by the excessive and inordinate use of morphine. It is apparent that their opinions were given on an assumed state of facts, or as it was to them, a hypothetical case. They agree that morphine taken excessively would impair the faculties, but that generally it would depend much on the fact as to whether the person was accustomed to its use, and the quantity taken, etc.

The depositions of the following named witnesses are presented on behalf of the defendants:

Mary Clark testifies that she lived with Mrs. Killian for seven years, and was living there when Mrs. Killian died; that she had very good general health, but had, at one time, a bad spell of erysipelas; that she attended to her household duties very regularly, and also to selling articles for market; that witness never saw anything in her that led witness to suppose her mind was affected; that Mrs. Killian took morphine at regular times; that witness had fixed up doses for her; that witness herself, and some of the negroes on the place, often used morphine; that she repeatedly expressed a wish to have Hr. Killian and herself have a living out of her property, and that she appeared, to witness, to be a “smart woman.”

The next witness, Hr. Peyton, testifies that he was the family physician of Mrs. Killian for many years; that she was a “sensible, practical business woman;” that he never saw her suffering from the effects of morphine, except that it sometimes produced costiveness; that she sometimes suffered from chills, but that she seemed to he in better health just previous to the year 1861 than before that time; witness never heard, in her lifetime, that she was not of sound mind; never had such a thought himself. He did not consider her a robust woman.

Nancy Havis testifies that she had been acquainted with Mrs. Killian for sixteen years, and saw her often; that complainants did not visit Mrs. Killian much. In other respects this witness states substantially the same facts as the two preceding witnesses.

Nr. James L. Moore testified that he was acquainted with Mrs. Killian; had been since 1858; had staid at her house, and seen her often; never saw a want of capacity; that, in business matters, she was “sharper than most women,” and although she was not a woman of education, she seemed to have read some and conversed very well about what she had read. This witness agrees in substance with the last witness as to her health and her moderate use of morphine.

The next witness, Mr. Pope, testifies that he was the Justice of the Peace who took Mrs. Killian’s acknowledgment to the deed in controversy; that he had been acquainted with all the parties for many years; that the deed was left in his custody a day or two before he had time to visit Mrs. Killian to take her acknowledgment; that when he visited her for that purpose, she appeared lively and cheerful and pleased to see him; that he handed her the deed and told her his business; that he remarked to her that he supposed she was acquainted with the contents; that she answered that she was; and that being examined apart from her husband, she said she executed it willingly and without compulsion or undue influence of her husband; that witness always thought her “a woman of a remarkably shrewd, intelligent mind,” and that, at the time mentioned, he was at the house altogether for half an hour.

The witness, Mary Scroggins, testifies that she had known Mrs. Killian for about three years before her de'ath; had lived near the Killians, and had visited Mrs. Killian neai’ly every day and sometimes oftener; had talked to her about her affairs and about Justice Pope’s visit; had talked with her about the deed; that she stated that she now had it fixed; had often heard her say that she never intended that com-' plainants should have her property; that witness had written letters for Mrs. Killian; had done her sewing and cutting for her; and that her use of morphine did not seem to affect her judgment.

Amanda Robbins, -another witness, testifies that she had lived a neighbor to Mrs. Killian for three or four years just before her death; that she was a woman of good sense; that her health was not very good.

The deposition of Rev. N. P. Ratcliff shows that he had been acquainted with Mrs. Killian since 1833 and until 1862, and had always considered her sound'in-mind.

Mary Jaynes, another witness, testifies that she knew Mrs. Killian; that she never heard it intimated that she was of unsound mind; that she used morphine habitually, but she saw no bad effects from the use of it; that she was an intelligent, though uneducated woman, and a close calculator; that she spoke to witness about the deed and expressed herself satisfied with the disposition she had made of the property.

James A. Henry, a witness, testifies that he has been acquainted with Mrs. Killian since 1849, and was to the time of her death; that he Vised to sell her goods frequently, and never knew or heard that she was of unsound mind; that she sometimes complained of her health.

Dr. R. F. Jaynes testifies that he never heard Mrs. Killian’s state of mind questioned before her death. The rest of this witness’ evidence is substantially like that of Dr. Moore.

It further appears, in the evidence, that Mrs. Killian and her husband lived pleasantly together.

We consider these facts, as they are presented to us in the case, and decide that the charge of fraud, imbecility and undue influence, sot forth in the complaint, are not sustained. We think the evidence decisively establishes the fact that Mrs. Killian, at the time she executed the deed in question, was neither of imbecile mind, nor, so far as can be discovered here, was any imposition or fraud practiced upon her by her husband. The proof shows that she was a sensible woman, watchful of her interests and knew what she had done. That while it is true she used morphine, she does not seem to have done so to excess, or so as to affect her mind. The witnesses who were her daily companions and had been acquainted with her for a long period, amongst whom was her family physician, never made the discovery that she was of unsound mind, but, on the contrary, they, with great unanimity, "describe her as “a smart managing woman.”

Counsel for complainants have asserted in their arguments in the case, that they willingly rest it on the authority of Birdsong vs. Birdsong, 2 Head. Tenn., 289; Better vs. Jones, 22 Ark., 92, and Kelly’s heirs vs. McGuire, 15 Ark., 555. "What was the state of facts presented in those cases? In Birdsong vs. Birdsong, it was proven that, the brother of the defendant, and who was the complainant in the case, was of very ordinary capacity and easily overreached even when sober, and the court said that the proof shotvod him to have been poor, degraded and destitute. It also appeared that the defendant had practiced a gross imposition upon his debauched brother in procuring the deed described in that case. In commenting on the general principle, however, the court in that case remarked, “that contracts will not be avoided .unless it appears that undue advantage has been taken by one party of the conditions of the other,” through weakness of mind or feebleness of character. %

The case of Better vs. Jones was brought for the purpose of setting aside a contract, about which the court said there existed “a permanent misunderstanding.” That Jones, the plaintiff, was proven to be a credulous man, liable to be led away by those in whom lie confided, and that he had, for some time previous, been subject to great depression of spirits and distress of mind from unhappy domestic relatipns, to such an extent that induced the generality of his neighbors to .suppose him to be impaired in mind. That Heller, the other party, had practiced a misrepresentation or imposition upon him, aud had also failed to comply with his own undertakings in the contract. It further appeared that Jones, by the deed in that case, had conveyed all his property, involving the rights of several children. The court placed much stress upon the fact that, by the contract entered into by Jones, the children were to be torn from their home and their only parent, and committed to the care of one who might have no feeling for them, and whose interest was to have them refuse to live with him, that he might be free from an onerous part of the agreement. The court then comments as follows: “But it does not follow that a court, of chancery will rescind a contract because it would not be enforced. There must be imposition, fraud, or undue influence, with weakness of mind, to call into exercise the power of cancelling the acts and contracts of b.eings who are supposed to take care of themselves, or suffer from their folly. But for such a contract (as that one) to stand, the defendant should show a compliance with his undertaking.”

In the case of Kdkfs heirs vs. McGuire, the court says: “ The conveyance was made by'G-reenberry Kelly to James Kelly, his nephew, in consideration of love and natural affection, and purported to convey, without any reservation, all the real and personal property in Arkansas or elsewhere, which had descended to the donor, or to which he was entitled as the representative of his grandson. The donor, at the time of this transaction, had passed the period usually allotted to human existence. lie was in the last stage of second childhood, with his physical energies wasted and his mental powers decayed. A century had passed over his head and still he lived, as he had been living for the last twenty-five years, the recepient of the public bounty; and long before the execution of the deed, his memory was so impaired as to render him unconscious of events, and he appears to have been as ignorant of what was going on in the world, as if he had not existed at all. lie was undoubtedly a very infirm and feeble old man, usually in bed; had been afflicted with general palsy for at le'ast twenty-five years; was partially deaf; had been an intemperate man and would become intoxicated whenever opportunity offered; was never known to have property or to transact business or to make contracts, and was incapable of managing or taking care of it.” The court describes James Kelly, the nephew’ and donee, who had procured the deed from this imbecile centenarian, as a ‘shrewd trader, who had amassed a large fortune in trafficking in the southern States, and as a person who seemed not to have been over scrupulous in exercising his influence for the benefit of himself over the donor, and to have kept an eagle eye on the property, until he acquired it by the deed in question.”

While we approve the principles established in these cases, they present, as we have intimated, a widely different state of facts from the one before us. Blanchard et al. vs. Nestle, 3 Denio 37.

Holding, as wc do, the deed in question was a valid one, the complaint in this case, must be dismissed.


source: Caselaw Access Project

author: McClure, C. J.

license: Public Domain

text:
    STATE v. McDIARMID.
    Quo Warranto — State not required to show demand, ete. — In a proceeding by quo warranto, at the instance of the State, the State is not bound to show a demand for the office, nor to establish any fact, save such as are tendered by a replication, or put in issue by a rejoinder or other plea.
    ISSUE in — Between ¿whom. — -The issue, in quo warranto,. is not between the parties who may be contending for an office, but between the State and tbe party holding or in possession.
    Constitutional Law — Legislature may create ofiee of Recorder, etc. — The Constitution, of 1808, does not define or enjoin the duties to be performed by the county clerks, and it was competent for the legislature under Sec. 19, Art. VII, to define, add to or take from the duties of the county clerk, and the act, approved, March 16, 1811, “to provide for clerks of Circuit Courts in certain counties, and define their duties,” is not unconstitutional.
    QUO WARRANTO.

      Montgomery, Attorney General, Warwick, WUs/dre $ (Joblentz and Garland $■ Nash, for Plaintiff.
    We submit it was competent for the legislature to repeal the act of July 9, 1868, which made the county clerks of the several counties, ex-officio recorders thereof, and confer the duties*of recorder upon another officer.

      The office of recorder is not an office created by the Constitution. ' See Sec. I, Chap. 142, Gould’s Dig. The Constitution of 1836 is silent as to the office of recorder — it was created by act of legislature. Under the Constitution of 1836, the office of circuit clerk was a constitutional office, and the act of February 12, 1838, created the office of recorder and conferred its duties upon the circuit clerks, while the present Constitution makes the county clerk’s a constitutional office,, and by the act of July 9, 1868, the duties of the office of recorder was conferred on the several county clerks. Hence,, we hold that it was competent for the legislature by the act of March 16,1871, to relieve the county clerks of the duties of recorder.
    See, 1 Scam., 111. Hep., 537; 1 Selden, 285,289, 291; 3 N. Y., 285 ; 4 Ind., 342 ; 7 Ind., 327 ; 1 Ark., 537-8 ; 7 Cola., 223-9 ; lb. 341, 502 ; 1 Kansas, 27; 5 Kansas, 304; 1 Mill, 81'; 14 Barb., 397; also, Cooly on Const. Linn, 87,168 and note 4; lb,. 172 and 3; 275 to 278 and note.

    The doctrine of vested right in office, as against the State, is not recognized in this country. See 9 Ark., 287 ; 1 Selden, 285; 24 Ark., 1; 10 Row., (U. S.) 402.

      Benjamin ¿¡' Barnes, Gantt and T. D. W. YonUy, for Respondent.
    We submit, to oust a county clerk of his right to be recorder by operation of the provisions of the act relied' on by the plaintiff, the following questions of fact must be made to appear to the satisfaction of the court:

      First, That the county contains 15,000 inhabitants or upwards.

      Second, That the Governor has appointed and commissioned a circuit clerk for such county.

      Third, That the appointee has qualified by giving bond and taking the oath required by law.

      Fourth, That the appointee has the qualification necessary to render eligible to .the office of circuit clerk.

      Fifth, That the appointee has made application to the county clerk for the books and papers belonging to the recorder’s office.
   McClure, C. J.

At the instance of the Attorney General, a writ of quo warranto was issued against George "W. McDiarmid, commanding him to show by what authority he assumed to exercise the rights, powers and duties of recorder of Pulaski county.

Tho defendant, McDiarmid, filed a response to the writ, setting np that he is of lawful age; that he is a qualified elector, and that on the 14th of March, 1868, Ire was duly elected clerk of Pulaski county, Arkansas; that he was commissioned as such clerk by the then Governor of Arkansas; that he took tho oath of office before an officer authorized by law to administer the same; that he executed a bond as required by law, and that the same was duly approved as required by law; that the duties of the office of recorder aro part and parcel of the duties of tho county clerk,, and that his term of office has not yet expired.

To this response* the Attorney General filed a replication, and a demurrer. The replication admits, substantially, all- of the allegations of the response,' and sets np that the defendant, McDiarmid, held the .office of recorder of said county, merely, ex-officio, and that the General Assembly, by an Act approved March 16th, 1871, entitled, “an Act to provide for Clerks of tho Circuit Courts iii certain counties, and to defino their duties,” transferred the duties of the office of recorder, in counties having a population of fifteen thousand and upwards, from the clerk of tho county of Pulaski, and conferred the same on the clerk of the circuit court of Pulaski county; which office was created by the Act last named. That the county of Pulaski has over fifteen thousand inhabitants, and that one James V. Fitch, was by the Governor, on the 17th day of March, 1871* duly appointed clerk of the Circuit Court of said county, and that said Fitch had duly qualified aud entered upon the discharge of the duties of said office. That on the 20th of March, 1871, said Fitch made demand of said MeDiarmid for the records, books, papers, documents and property of every description in his possession, belonging to the said office of recorder, and that said MeDiarmid still refuses to comply with said demand; that the defendant yet usurps and continues to usurp the office of recorder of said county of Pulaski, and that by reason of the Act refered to, the term of office of said defendant, as recorder, has expired, etc.

The demurrer of the plaintiff was as follows : “Because the said defendant attempts to justify, and does not show a continuous state of facts, such as entitles him to the possession of said franchise of recorder, etc., at the time of the issuance of the writ.”

The defendant filed a demurrer to the replication, setting up “that the Act of the General Assembly of the State of Arkansas is repugnant to the Constitution of said State, and is, on that account utterly null and void.” The defendant ¡also filed a rejoinder to the replication, setting up “that said James V. Fitch, did not, at anj time before the commencement of this suit, make application to said defendant to turn •over* to him the books, papers, documents, and property in his possession, as clerk of said county,” etc.

To this rejoinder the plaintiff demurred, for the following causes:

First, Because the matters and things therein set forth are not sufficient to preclude the State of Arkansas from having ¡and obtaining judgment.

Second, The law doe's not require the State to show a ■démand for the office.

We will take up the questions raised in this' case in their ■order. In a proceeding by quo warranto, the State is not hound to show a demand for the office, nor to establish any fact, save such as are tendered by the replication, and put in issue by a rejoinder or otlior plea. This disposes of the second demurrer.

Now to the next, which is, that “the rejoinder does not set forth matter and things sufficient to preclude the State.” The rejoinder simply sets up that Eitch “did not, at any time-before the commencement of this suit, demand the books, papers, etc., in the defendant’s possession, pertaining to said' office of clerk of said Pulaski county.” There is no allegation in the replication that Eitch demanded the books, papers, etc., of the defendant, pertaining to the office of the clerk of said county. The allegation is, that “Fitch demanded the books, papers, etc., of the defendant, belonging to the offico(not of clerk) but of recorder of said county. The rejoinder, as will be seen, is not responsive to any issue, tendered by the replication; but if it was, the issue raised, or attempted to be raised, could avail the defendant nothingj because the issue here is not between Eitch and McDiarmid, but between the State and McDiannid. The State is requiring him to show by what authority he exercises the rights and duties of the office of Necorder of Pulaski county; this, and this alone, is the issue tendered by the State, and it is the issue that must be responded to, for we have already said that the State is not bound to show anything save such facts as are tendered by the replication, and put in issue by the rejoinder and other plea.

"We have now seen that no fact alleged in the replication is-put in issue, and it stands confessed, so far as the facts are concerned. This brings us down to the defendant’s demurrer, which asserts that the Act 'of the General Assembly, creating the office of circuit clerk, in counties having over fifteen thousand inhabitants, and giving to such clerk the duties of the office of recorder, is unconstitutional and void.

Section 19, of Article VII, of the Constitution of this State, declares that “a county clerk shall be elected by the qualified electors in each organized county, in this State, for the term of four years, and shall perform such duties and receive such foes as are now or may hereafter be prescribed by law.” The Constitution, as will be observed, does not attempt to define' any of the duties to be performed by the clerk, nor does it enjoin any duties upon him. It simply declares that he shall “perform such duties as may be prescribed by law.” Under the Constitution of 1836, the qualified electors elected a circuit clerk for each county. This provision of the Constitution left the county and probate courts, without a clerk, and the legislature provided that the circuit clerk should be, ex-officio, clerk of both the county and probate courts. By an Act of February, 1838, the legislature created the office of recorder, and the language of the second section is, that “the clerk of the circuit court, until otherwise provided by law, shall be, ex-officio, recorder in each county, etc.” From, the time of the adoption of the Constitution of 1836, until it was replaced by another, no person seems to have doubted the power of the General Assembly to add to the duties of the office of circuit clei’k; at least we find nothing in the'Reports upon that subject.

"We have seen that the Constitution, of 1868, prescribed no duties whatever upon the clerk therein provided for; he was to perform such duties as -wore then, or might thereafter be prescribed by law. There was nothing in the Constitution indicating whether he was to be clerk of the county court, the probate court, or the circuit court, nor was the clerk, thus elected, entitled to exercise any duties whatever. The legislature, at its first session, perceiving this fact, by an Act, duly passed for that purpose, on the 9th of July, 1868, declared that the clerks, elected under the Constitution, should, by virtue of their office, be clerks of the county, the probate and the circuit courts, and the. recorder of the county.

"We have norv traced the right of the clerk to these different offices, and we find that they are confered by legislative enactment We have also seen that the laws, in existence at the time of his election, did not authorize him to exercise the duties of the office of recorder, because the law declared that the clerk of the Circuit Court should be, ex-officio, recorder “. and we have, also shown that the defendant was not evenr ex-officio clerk of the Circuit Court.

The office of clerk, as fixed by the Constitution, is an office’ which the legislature cannot absolutely abolish; but the duties to be performed, and the fees to be paid, is a thing wholly within the control of the legislature. We have seen that, under the Constitution of 1836, the legislature added to the-•duties of the. office of circuit clerk, the additional duties of that of clerk of the County Court and Probate Court, and those of recorder of the county. There is no .provision of the Constitution, that we are aware of, that inhibits the legislatura from adding to, or taking from, the duties of an office. . In. the absence of any such provision, the legislature is the sole judge of the power and authority which shall vest in officers.of this class. There is no such thing as a vested right in an ■ officer to discharge a certain specific duty, unless it be the-executive of the State. The Constitution enjoins it upon the. executive to see that the laws are faithfully executed, and it-is not competent for the legislature to provide another officer to pei'form that duty; but this is not true of any other executive or ministerial officer. The sheriffs of the different,, counties are collectors of the revenue; this privilege of collection may be taken away from that officer and conferred on the county treasurer or surveyor. The clerk makes out. the tax books, but this privilege may be taken from him and given to the county assessor or the coroner, if the legislature-so enacts. If these things maybe done, why is it that the duty the legislature enjoined on-the clerk of the county, of' .recording deeds, may not be transferred to some other officer ? The truth of the matter is, that the legislature has the same, right to regulate the duties to be performed by the clerk of the county, that it has to' regulate his fees. We have no. doubt about the constitutionality of the law, however much we may differ as to the policy of separating the offices. There is nothing in the response which shows any right in the defendant to exercise the duties of the office of recorder; it is therefore ordered that a judgment of ouster be entered against the defendant.


author: Gregg, J.

text:
    CARROLL v. BOYD et al.
    Ooiwederatis Courts — Action of, void. — All the proceedings of the courts of this State, acting under confederate authority, or during the rebellion, are void.
    APPEAL EROM ASHLEY CIRCUIT COURT.
    Hon. Henry JR. Morse, Circuit Judge.

      Garland Nash, for Appellant.
   Gregg, J.

F. A. Boyd recovered a judgment against John Carroll, before a justice of the peace, on the 26th day of September, 1861, and on the 9th day of July, 1866, he filed a transcript thereof in the office of the clerk of the Circuit Court. An execution having been issued by the justice, and returned unsatisfied for the want of goods or chattels belonging to the defendant on which to levy, the clerk issued an execution to the sheriff, and the land of Carroll was levied upon and sold. At the return term, Carroll filed a motion to set aside and vacate the sale, and quash the execution; of which motion, the plaintiff and the purchaser had notice.

The court overruled the motion, and Carroll appealed. The decision in the cases of Penn v. Tollison, 26. Ark., 515, and Thompson v. Mankin, 26. Ark., 586, holding all proceedings, during the rebellion, of courts in the insurrectionary parts of the State, void, are decisive of this case. The judgment of the Circuit Court is therefore reversed, with instructions to set aside the sale and quash the'execution.


author: Harrison, J.-

text:
    Neis v. Gillen.

      REPLEVIN' — -What plea of non-detinc.t puts in issue. — In replevin, the plea of non detinet puts in issue the plaintiff’s title to the property, as well as the wrong-fill detention by the defendant and, to entitle the plaintiff to recover he must prove both his title and the detention.

      Same — Judgment, when for defendant onplea of non detinet. — Where the plaintiff' fails to prove title and detention of property on trial, the defendant will not ’ he entitled to a judgment for return of property or damages on the plea of non detinet, unless he plead rvith the general issue or give notice of matter which, if properly pleaded by avowry or cognizance, would be a bar to the action.
    APPEAL If ROM SEBASTIAN CIRCUIT COURT. -
    Hon. William Glass, Special Circuit Judge.

      English, Gantt S¡- English, few Appellant.
    TIlc proof shows -that the partnership was a special one, and. in such case, one having the right of possession may maintain replevin, though the general title to the property may not he in him. Prater et al. v. Frazier and -irife, 6. Eng., 249; Cox et al. v. Morrow, 34. Ark., 603.
    In this view of the case, the court below erred in refusing to give the second, third and fifth instructions moved for appellant. Boynton v. Page., 33. Wend., 425.
    But on the supposition that the parties were full partners, the court should have instructed the jury to find as in case of non-suit. Bailey v. Stark, 1. Eng., 191; Allen v. Dams, 18. Ark,, 28; State v. Roper, 8..Ark., 491; Hill v. Rucker, 14. Ark., 706. The court erred in instructing the jury that they could not find, the facts specially for the court to declare the law, but must bring in a general verdict. See Sec. 39, Chap. 48, Goidd’s Dig.,' p. 645; Secs. 353, 359, 360, Code of Practice. If the amount found was not for the value of the cattle, hut for damages to the defendant for being deprived of tbo possession of them, it was unwarranted bylaw, grossly excessive, and without any evidence whatever to sustain it. Roland v. Leech, 10. Ark., (5. Eng.) 504.

      B. T. Du-Val and U. M. Bose, for Appellee.
    The case turned on the question as to whether appellant and appellee were partners as to the cattle replevied. As to this, the evidence was very conflicting and this court will not attempt to weigh it. Bose’s Dig., 559, Sec. 45.
    That one partner cannot sue another at law is a familiar principle. Allen vs. Davis,. 13 Ark., 28; Houston vs. Brown, 23 Id., 333; Collycr Part. Sec. 264, et seq.

    Taking the instructions all together, the case was fairly submitted to the jury, and their verdict- should not be set aside. Burton vs. Merrick, 21 Ark., 357.
    The jury, in finding for the defendant, were bound to give a verdict for the value of the property. Gould’s Dig., Ch. 145, Sec. 88; Civil Code, Sec. 362.
    The judgment, on the whole record, being right, should be affirmed. Davis vs. Gibson, 2 Ark., 115; Payne vs. Burton, 10 Ark., 54; Swccptzer vs. Gaines, 19 Hr/r., 96 ; Williams vs. Millen, 21 lb., 470; Civil Code, Sec. 870.,
   Harrison, J.-

This was an action of replevin”for fifty-six head of cattle, founded on the wrongful detention of the same, commenced before the adoption of the Code of Practice. The defendant pleaded non detinet and the jury found the issue thereon for the defendant and assessed his damages at the sum of $1473 12, and the defendant electing, as the record says, to waive a return of the property, judgment was rendered in his favor for the damages assessed. The plaintiff appealed.

The only point in controversy, on the trial, appears by the evidence, preserved by the plaintiff’s bill of exceptions, to have been, whether the defendant was a partner of the plaintiff, and as such, a joint owner with him of the 'property replevied, and no evidence whatever was offered of a demand, or of any other fact tending to prove a wrongful detention of the same; no valid objection-can therefore be urged against the verdict, so far as it was responsive to the issue.

• The question, however, arises, whether the defendant was, upon his plea, entitled to a judgment for the damages assessed by the jury.

Although the plea, according to See. 34, Ch. 145, Gould’s 'Digest, put in issue the plaintiff’s property in, as well as the defendant’s wrongful detention of the cattle, and to maintain his action the plaintiff was required to prove both his title and the detention by defendant; yet, a failure to prove his title, was not inconsistent with a want of title in the defendant, and a verdict in favor of the latter was not decisive of a right of property in him, for no question as to his title was involved in the issue.

The question here presented arose in Brown vs. Stanford, 22 Ark., 76, and the court in that case say: “Under the 44i/t Section of Chap. 145, of Gould’s Digest, the Circuit Court, in rendering judgment for the defendants, upon the verdict, ■also directed a judgment of the return of the negro to the defendants, as a necessary consequence of any judgment in their favor upon final trial; and the question, now before us, is, whether a return of property should be awarded to one, fromlwhose possession it never was taken, to one whose own proof shows that he never claimed the property, and whose successful defense of the action depends upon the fact of his not being liable to any suit about the property. The statute cited is very broad, but it never could have been its intention to have given to a stranger property that he had been illegally sued for; to have punished the owner of property, with its forfeiture, because, by accident, by carelessness, or by real design, he had brought suit for property out of his possession, against one who is prpven never to have been in possession."

This reasoning of the court seems to be conclusive, but the statute itself is the best answer to the question; for, by attending to the distinction we have pointed out in respect to the title of the party the plea puts in issue, and on examination of section 35, of the same chapter, it will clearly appear that a defendant is never entitled to a judgment of return, or for damages for the detention of the property, upon a plea of non detinet. It is as follows: “"With the plea, denying the taking or detention of the property claimed, the defendant may give notice of 'any matters which if properly pleaded by avowry, cognizance, or plea, would be a bar to the action, and which if the goods had been replevied, would entitle him to a return thereof; and he may give such matters in evidence, on the trial, in the same manner and -with the same effect, as if the same had been so pleaded.” Language, we think, could scarcely be plainer, and it is clear, beyond all doubt, that if the defendant wishes to have the goods replevied, restored to him, he must by avowry, cognizance, or plea, set up and show such matters as entitle him to a return, or else give notice thereof, with the general issue, and that he cannot have a return merely because the plaintiff fails to prove the taking of the g'oods, or his title to them, and the detention thereof* as the case may be.

The damages assessed by the jury were most likely intended to be the value of the cattle, and not merely compensation for the plaintiff's detention of them, for they amount to the full value proven, and would be grossly excessive if for the detention only. But damages for detention are but an incident to the right of return, and there cannot be a judgment for damages where there can be none for a-return. Whitwell vs. Wells, 24 Pick., 25.

The judgment of the court below must, therefore, be reversed, and the cause remanded to it, with instructions to enter judgment 'for the defendant upon the verdict of the jury, except for the damages assessed by them, in accordance with law and consistent -with this opinion.


author: Searlb, J.

text:
    WHITE v. PRIGMORE.
    APPEAL EROM JEEEERSON CIRCUIT COURT.
    IIon. Henry E. Morse, Circuit Judge..

      Watkins § Rose, for Appellant.

      A. II. Garland, for Appellee.
   Searlb, J.

This is an action' brought under Section ¿22, Civil Code of Practice, by the appellee against the appellant, in Jefferson Circuit Court, to try the title to the office of clerk of the Circuit Court of Jefferson county.

The cause came on for trial at the May term, 1871, of said court; judgment for appellee, and appeal by the appellant to this court. The questions raised in this case are virtually the same as those raised in the case of the State of Arkansas vs. McDiarmid, decided at the present term, and the decision in that case, is conclusive of this.

Let the judgment of the court below be affirmed with costs.


author: Searle, J.

text:
    WHITE v. PRIGMORE.
    APPEAL PROM JEEEERSON CIRCUIT COURT.
    Hon. Henry B. Morse, Circuit, Judge.

      Watkins § Jose, for Appellant.

      A. H. Garland,, for Appellee.
   Searle, J.

Tlie appellee filed his petition, in the Jefferson Circuit Court, alleging that h.e had been appointed circuit clerk of Jefferson county, and ex-officio recorder of said county, and that the appellant, the former clerk, etc., refused to turn over to him the books, papers, etc., of said office of recorder as required by law, and praying for a writ of mandamus, etc. At the May term, 1871, the court issued a peremptory mandamus, and appellant appealed to this court.

The questions presented, in this case, are virtually the same as those raised in the case of Fitch vs. McDiarmid, 26 Ark., 482. That decision is therefore conclusive of this case.

The mandamus having been peremptorily awarded by the court below, the judgment in relation thereto is reversed and the cause remanded to that court, with instructions to dismiss the petition.


author: W. I. Warwick, Special J.

text:
    SHELTON v. LEWIS et al.

      Guardians — Right of wards to lands purchased with their money. — Where a guardian uses the money of his ward in the purchase of lands, the ward is entitled to the .results of .the purchase, whether the guardian purchased for himself or his ward, and whether he use the money merely as agent, and not as guardian.

      Same — What proof necessary, etc. — The proof must be full, clear and conclusive, and, in such case, the person entitled to the money, may, at his election, charge the trustee, guardian or agent personally, or follow the money into the land and claim the purchase as made in trust for ‘ him, and such trust may be established by parol evidence.
    Right or wards — As against subsequent bona fide' debtors. — The right of wards, to property purchased with their money, may be sustained against a conveyance in trust to secure bona fide debtors, notwithstanding such trustee and cestui que trust, were ignorant of then existing equity at the time of the conveyance.
    APPEAL J’’ROM CRITTENDEN CIRCUIT COURT.

      O. P. .Lyles, for' Appellant.
    The question in this ease is, as to the rights of prior and subsequent incumbrancers to have satisfaction out of the land, according to their priorities.
    The rule of law which governs this question is laid down in the following authorities : 2 Story’s JEq. Juris. See. 837; Berry vs. Mat. Ins. Co., 2 John. C. JR., 607, 611; JHJaines vs. Beach, 3 John. Ch. JR., 461-467; JDcws vs. Cornish, 20 Ark., 332 ; Biscoe vs. Tucker, 14 Ark., 515 ; Hannah vs. Carrington, 18 Ark., 86; Clark vs. Carroll, 18 Ark., 209.
    However numerous the encumbrances created on the land, in the nature of mortgages, they leave still in the mortgagor the ultimate equity of redemption, by which he may disencumber the mortgaged premisos, and re-vést himself with the legal estate. See Brown vs. Morrison, 5 Ark., 223 ; Biscoe vs. Tucker, 14 Ark., 521. .
    In the eye of a court of equity the mortgagor, until a decree of foreclosure, continues the real owner of the estate. The equity of redemption is considered to be the real, and benefi

      cial estate, tantamount to the fee' at law. 4 Kent, 159, 160.
    The mortgagor, so long as he has an equity of redemption, has an estate which he may convey in mortgage 'by successive deeds, which will take precedence, according to their order in time, provided the subsequent mortgagee-had notice of the prior ones. 1 Washburne on Seal P., page 546, sec. 6 ; Coote on Mortgages, 34.
    The Lewis heirs being then the mortgagees in place of Hopkins, and holding, as such, the legal title as security for the purchase money they have paid, and Asa Shelton occupying the shoes of Duncan holding the equitable interest in the land, it must be sold to pay the Lewis heirs their debt, and Mr. Shelton takes the residue of the proceeds as the second encumbrancer, by virtue of his deed of trust.
    The Lewis heirs having been in possession of the premises, at an agreed amount of rent, must account for the rents as mortgagees, because they cannot make a profit to themselves. 2 Story’s Eg. Juris., Secs'. 1016 and 1016 a; 4 Kent, 166, 168 ; 2 John. CLP. 30.

      Watkins $ Pose and B. C. Brown, for Appellees.
    It is only because a mortgagee is considered as a purchaser, sub modo, that he ever receives protection. Erisbee vs. Thayer, 25 Wend., 399 ; Jones vs. Powles, 3 My. K, 581; Joyce vs. He Moleyns, 2 J. § L., 374; Siter, Price Co., vs. McClanahanj 2 Grattan, 280, 301. Willoghby vs. Willoghby, 1 Tenn. B., 763, 767.
    That his trust being taken as a mere security for a preexisting debt — he is not entitled to protection against the equities of complainants is definitely settled. Notes to Barret vs. Norsworthy, 2 Eg.. Lead. Cases, 104; 105, 106 ; Griffin vs. Marguardt, 17 N. T., 28; Van Hewsen vs. Padcliff, lb., 580 Cook vs. Cook, 3 Head., 719 ; Brown vs. Vanlier, 7 Humph, 239; Pettigrew vs. Turner, 6 Humph., 440. To the last case, on account of its close analogy to this, we ask special attention.
    But Shelton was not a purchaser. He was a mere volunteer, taking a mortgage for a pre-existing debt. As such, he stood in the same position as ’.Duncan, the mortgagor; he only had a lien on such interest as he had, and no more. All the authorities show this. Dickerson v. Tillinghasi, 4. Paige, 215; Donaldson v. Bank, 1. Du.. Cluj., 103; Bowen v. Adams, 1. S. anil Mar., 45; Powell v. Jeffries, 4. Scam., 387; Willis v. Henderson, lb., 18 ; Metropolitan Bank v. Godfrey., 23. III., 579; Glineki v. Zawadski, 8. 'Flor., 405; Baze v. Arper, 6. Min., 220. The doctrine of purchaser for a valuable consideration without notice does not apply between equities. Pinson v. Ivey, 1. Ten/., 296; Pillow v. Shannon, 8. lb., 508; Craig v. Leiper, lb., 193.
   W. I. Warwick, Special J.

In this case there appears to have been a multitude of original and cross bills, answers, exceptions, etc., and much testimony, and inasmuch as we concur in the findings of the court below, we give them here as statements of this case, viz :

“Complainants, Edward B. Lewis, Phoebe and Eliza E. Lewis are, and were at the commencement of this suit, the sole remaining heirs at law of Jacob A. Lewis, deceased; that as such they and their late brother, Pearce A. Lewis, and their late sister, inherited a considerable estate, in money and slaves, from their said father and their grandfather Lewis; that the said Jacob A. Lewis, at the time of his death, left also surviving him, his widow, Mary B. Lewis, who after-wards intermarried with one Bryant Duncan, and soon after died, leaving all of the said children of the sai¿l Jacob A. infants, under the age of twenty-one years; that Bryant Duncan became and was by the proper court of Probate of Russell county, Alabama, where they then resided, appointed guardian of and for all of said children of said Jacob A., and continued so to be and to account as such with said court up to, and in the month of March, when he made a final settlement with said court, having in his hands as such guardian of said heirs of the said Jacob A. Lewis, near twenty-five thousand dollars and a number of slaves; that in the early part of the year Í859, the said heirs being yet infants, the said Bryant Duncan removed with them and their property to Crittenden county, Arkansas, and there continued to -reside' with them until the time of his death ;■ that prior to the commencement of this suit, the said Pearce A. and Mary L. Lewis departed this life, being tiren infants, not having been married or leaving any issue, and subsequent to the death of their said mother, Mary B.; that on the 27th day of November, A. D. 1858, the said Bryant Duncan purchased from John W. Hopkins the following described lands, lying and being situate in the county of Crittenden, to-wit: etc., etc. * * '* * * for the sum and price of twelve thousand dollars, payable, one third on the first day of January, 1859, and one third in twelve months, and one third in twenty-four months from the day of said sale; that the purchase of said lands was made by said Duncan for the said heirs of the said Jacob A. Lewis; that said Duncan took the bond for title to said lands, to be made by said Hopkins, upon payment of the purchase money, to himself; that said Duncan paid to said Hopkins the first .payment for said lands, of four thousand dollars; that after-wards, Coleman Boyd, and Tandy II. Trice became, by assignment, the owners of the two notes of said Duncan, given for the other payments of the purchase money of said lands, to whom the said Duncan also paid, as part of the purchase money, the further sum of $3,326 60; that said sum, so paid by said Duncan, of the purchase money for said lands, amounting together to the sum of $7,376 44, was with and out of the moneys of the said heirs of the said Jacob 'A. Lewis; that said Bryant Duncan, after the notes so given by said Duncan to said Hopkins, for so much of the purchase money of said lands, had come, by assignment, to said Boyd and Trice, and further to secure the payment thereof, to-wit: on the 7th day of March, 1860, the said Duncan, by his deed of that date, duly acknowledged, purported to convey to William C. Trice, all of said lands, in trust for the said purpose; that the said Coleman Boyd & Co., on the first day of September, 1865, and to the November term of this court, 1865, filed their bill of complaint against Edward B. Lewis, as the administrator of the estate of Bryant Duncan, deceased, and the unknown heir’s of the said Duncan, to enforce a vendor’s lien upon said lands, accruing to them as the assignees of said two notes; that said Duncan, on or about the 4th day of February, 1864, departed this life intestate, and the said Edward B. Lewis became his administrator by appointment; that in said suit, so instituted by said Boyd & Co., said Edward B., Phoebe L.. and Eliza F. Lewis, were admitted as parties, defendants, and therein filed their cross bill against said Boyd & Co., John W. Hopkins, and the heirs at law of said Duncan, setting up their claim to said lands, upon the ground that so far as paid for, had been paid for, by said Duncan, with their means and money and, in fact, been purchased for them, and praying that they be permitted to pay the residue of said purchase money and interest, actually due upon said lands, and the said John W. Hopkins required to make deed to them for the same, and that all claims of the heirs of said Duncan be divested out of them and vested in said complainants in said cross bill,; that James Tappan was appointed administrator of the estate of said Duncan, in and for the purposes of said principal and cross suits; that in said suit, upon the original bill, it was by this court decreed that the said complainants in said cross bill, should pay to said Boyd & Co. the residue of said purchase money, and interest thereon, amounting to the sum of eight thousand five hundred and forty-dollars; that upon the payment outlie same, they should -be and were subrogated to all their rights and benefit of lien for said purchase money, of and upon said lands, then held by said Boyd & Co.; that said complainants in said cross bill, did actually pay to said Boyd & Co., the said sum of $8,540 00; that upon said cross bill, it was decreed, by the court, that all or any right, title or claim of the heirs at law of the said Bryant Duncan, in and to said lands, be and the same were thereby divested out of them and vested in complainants, Edward B., Phoebe L. and Eliza E. Lewis; and it was further thereby, by the court, decreed that the said John ~W. .Hopkins should make conveyance of said lands to complainants; that afterwards, on the 8th day of December, 1866, the said John W. Hopkins, and his wife Elizabeth Hopkins, by their deed of that date, duly executed and afterwards recorded, did convey the said lands, by proper and appropriate-description, to the said Edward B., Phoebe L. and Eliza E. Lewis. And the -court doth further find that the said Bryant Duncan, being then and theretofore indebted to the said defendant, Asa Shelton, by promissory note, of date April the 7th, 1861, in the sum of eight thousand seven hundred and twenty-six dollars, and sixty-four cents, on the 10th day of April, 1861, by his deed of that date, commonly called a deed of trust, and afterwards duly acknowledged and recorded, purported to convey a part of the same lands to the defendant Paul Jones, in trust, to secure the payment of the said sum so due to the said Shelton, was contracted and due by the said Duncan prior to the execution of said trust deed to said Jones, and the said deed was executed to secure the payment of the same, and that said debt has not been paid in whole or in part.”

The foregoing are the conclusions of fact, which the court below found, and which, on review, we find 'to be substantially correct.

Thereupon the court belpw rendered the following decree, viz: “It is therefore ordered, adjudged and decreed, by the court, that the said deed of trust, of date the 10th day of April, 1861, executed by the said Bryant Duncan, to the defendant, Paul Jones, to secure the said debt due to Asa Shelton, by said Duncan, purporting to convey the said lands hereinbefore recited, be and the same is hereby cancelled and annulled, and shall be forever held for naught, and the said Paul Jones and Asa Shelton, and all and every their heirs, assigns, agents or attorneys are, and every of them perpetually restrained, enjoined, and inhibited from, in any way, executing, or attempting to execute the provisions of said deed against said complainants, their heirs or assigns.” Erom this decree Asa Shelton appealed.

• If the facts are correctly found, by the court below, the principles of law, applicable to them, are too well settled to require any discussion. It is objected by the appellant, that the certificate or authentication to the transcript .of the proceedings had, in the Probate Court of Russell county, Alabama, is not in due form, in that it does not conform to the act of Congress of 29th May, 1790. The certificate is signed by “T. L. Appleby, Judge of Probate,” and authenticated by the seal of his office, and after reciting that the transcript is a true, correct and perfect transcript of all the records, recites that he is the Judge of said Probate Court, duly commissioned and qualified; that I am ex-officio clerk of said court, and the keeper of the records and seal thereof; that said court is a court of record, and this attestation is in due form.” According to the rule laid down in Gatlin vs. Underhill, 4 McLean, 199, we deem it sufficiently authenticated. This-transcript shows that Duncan had been appointed guardian of the appellees, and that on his last settlement with that court, a large amount of money was in his hands, as such guardian. It is established by other testimony that, at the time of the marriage betunen Duncan and the mother of the appellees, and when appointed their guardian, he (Duncan) was a man of no property whatever, and insolvent. It is equally well settled by testimony that, when Duncan removed to Arkansas, he had no property or money,, save such as remained of the estate of his. said wards, and that he brought to Arkansas the identical negroes that belonged to the estate of Jacob A. Lewis. Erom the record, there can be no doubt- that whatever of money was paid by Duncan on the lands, was paid out of money belonging to-his wards. There is much proof of statements made by Duncan, in his lifetime, that he bought the lands for his-wards, but, in our view, 'if he used the money, they are- • equally entitled to the results of the purchase, whether he purchased for himself of them, and this would be true, .if he had their money merely as agent, and not guardian. The rule is, that where one holds money of another, in any fiduciary character, and invests it in the purchase of land, taking the conveyance to himself, the person entitled to the money, may, at his election, charge the trustee personally, or follow the money into the land and claim the purchase as made in trust for him, and he may establish such trust by parol evidence. Dyer vs. Dyer, 1 Eq. Lead. Cases, 277. The proof, in such case, must be full, clear and conclusive, and such we deem it to be in this case. Duncan, when he purchased, obtained only an equitable title, viz: bond for title; and this, together with the possession of the premises, he held in trust for his wards, the-appellees, and the purchase money not all being paid, they had an absolute right, on establishing their equity, to pay the residue and procure the legal title; for payment of part of the purchase money will create a trust to the extent of that payment. Bottsford vs. Durr, 2 Johnson’s Ch. 405, 400; Bank vs. Sweazey, 35 Maine, 81; Pierce vs. Pierce, 7 B. Monroe, 433; 1 Eq. Lead. Cases, 276.

It is insisted, in behalf of appellants, that the deed of trust by Duncan to Jones, to secure the indebtedness due Shelton, was made without notice to either Jones or Shelton, of the equities of the appellees, and hence, they are entitled to relief. It must he borne in mind that Duncan himself had only an equitable title, and of this Jones and Shelton were bound to take notice, and hence, he could only convey an equity to Jones and Shelton, which equity was subsequent to that of the appellees. There is no principle better settled, in courts -of equity, than, that where both parties claim by an equitable title, the one who is prior in time, is deemed the better in right. Byers vs. McDonald, 12 Ark., 285; 7 Cr., 18; 18 T. R., 532; 7 Wh., 46. The purchaser of an equitable title holds it subject to the equities' upon it in the hands of'the vendor, and .has no better standing in a court of equity. 12 Ark., 285; 7 Cr., 48; 7 Peters, 271; Sugden, 722; 10 Pet., 212; 10 How., 185; 2 Eq. Lead. Cases, 72, 73.

In the case of Petigrew vs. Turner, 6 Humph., R. 440, and re-affirmed in Brown vs. Vanlier, 7 Humph., 239, the court held, “that the right of wards to property purchased with their money, might he sustained against a conveyance intrust, to secure bona fide debtors, notwithstanding such trustee and cestui que trust were ignorant of their existing equity;, at the time of the conveyance.” It is conceded, by appellants;, that “this is not a case in which the question of bona fide purchaser, for a valuable consideration without notice arises on this record,” and insists that it is solely a question as to the-rights of prior and subsequent incumbrancres to have satisfaction, out of the land, according to their privities.

In this connection, appellants insist that,-at the time appellees procured the deed -and legal title from Hopkins, they had notice of the equities of appellant, and that they cannot now avail themselves of the legal title against Shelton, and that Shelton stands before the court as second incumbrancer; that they hold the legal title in trust for Shelton, and that they have only a first lien for the residue of the purchase money paid out by them.

We do not so understand the law. It is true, that by decree of the court below, the Lewis heirs were directed to pay the residue of the purchase money to Boyd & Co., and weresubrogated to the lien of Boyd & Co., and in this, we do not concede the decree correct, for the Lewis heirs, having the-prior equity, and the result of the purchase from Hopkins by Duncan, being for their benefit, when they paid the residue-of the purchase money, they could not be subrogated to any lien, because they, by that judgment, extinguished the lien for the purchase money of the' land, on their own property. Suppose Duncan had, in his lifetime, paid the entire purchase-money of the lands, out of the means of his wards, it could not be contended that yhen they obtained the legal title, in support of their pr-ior equity, they or the land were bound to> discharge subsequent equities. To hold that because they themselves paid the residue of the purchase money, they hold the legal title, in favor of subsequent equities, would place them in a worse condition than if they had paid nothing. ¥e understand the rule to be, that as between prior and subsequent equities to land, where either obtain the legal title, if the legal title be good, equity, which follows the law will not interpose to take it away from him, unless there is something unjust or unconscientious in his mode of obtaining it.'

In 2cL Equity Leading Gases, 73, it is said to be “plain that the favor shown by equity to purchasers for value, only extends to those who acquire á legal title to the thing purchased, or who buy under the belief that they are acquiring the legal title, and that the purchaser of an equity, who knows or has the means of knowing the nature of his purchase, must submit to the general rule under which the title of a vendee is measured, and limited to that of the vendor.” Roane vs. Chiles, 10 Peters, 177; Wailes vs. Cooper, 21 Miss., 208; Kramer vs. Arthurs, 7 Barr., 165.

So, ¿in this case, Shelton and Jones had ample means of ascertaining the title of Duncan, for an examination of the records of Crittenden county, at the time of the execution of the deed of trust, from Duncan to Jones, for Shelton’s benefit, would have disclosed the character of Duncan’s title, and that, at best, he could convey only the equity of an equity. That it was inconvenient for appellant to make such examination is no sufficient excuse, and he must suffer the penalty for his want of diligence.

Quoting again from 2d Equity, Leading Cases, 72, “the purchaser of an equitable estate or interest must stand or fall, in equity, by the estate of the seller, and can not rely upon bona fides, and the expenditure of money as a ground for protection against a prior' or better right or equity. His con-conscience may be clear, but he is presumed to have bought with full knowledge of the rule, which throws the risk of a purchase on the purchaser, and must submit to the consequencos of his ill fortune, or want of due care and diligence.” 16 Georgia, 196; Richardson’s Equity, 155; 7 Cranch, 48; 14 Illinois, 15.

Finding no substantial error in the record of the' court below, the decree, of that court, is in all things affirmed.


author: Harrison, J.

text:
    HEELER AND PETTUS v. GIST.
    Swamp, and Overflowed Lands — Title in fee, in whom vested. — The foe, in swamp and overflowed lands of the State, remains in the State until the execution of a deed by the Governor, when it passes, and the deed is conclusive evidence, in a court of law, of the title of the holder.
    APPEAL FROM SEBASTIAN CIRCUIT COURT. •
    Hon. E. I). Ham, Circuit Judge.

      Garland & Nash, for Appellants.
    The rule that once obtained requiring a party, having a mere equity in land, to resort to a court of equity to attack a deed or patent, has been changed, and the case can be heard in aTaw court. Trulock vs. Taylor, 26 Ark., 54.

      Benjamin T. Du Val, for Appellee.
   Harrison, J.

This ivas an action by Andrew I. F. Gist, against Join) Heeler, to which ~W. ~W. Pettus was, on his application, made a co-defendant, to recover the possession of the east half of the north-east quarter ot section thirty, in township five, range thirty west. The answer of the defendants was a general denial' of the matters alleged in the complaint. The court, sitting as a jury, found: That the defendant «Pettus, on the 81st day'of December, 1857, attempted to enter the tract of land, in controversy, which was a portion of the swamp and overflowed lands of the State, at the State Land Office, at Clarksville, but through mistake, applied for and entered the east half of the south-east quarter of the section, and that he afterwards, on the 1st day of September, 1860, [made application to the Land Agent to change the entry, in accordance with his intention when the entry was made, and the agent made an alteration in his certificate, by erasing the word “south,” and writing, in lieu of. it, the word “north,” so as to describe the land in controversy, and also made the following indorsement upon it:

“Corrected so as to agree with the plats and office records.

L. O. Howell, State Land Agent.

Clarksville District, Sept. 12, 1860.”

The plaintiff, on the 20th day of January, 1868, entered at the same office, the north-east quarter -of the said qu'arter section, the north half of the same tract. And on the 4th day of February, 1869, the south-east quarter of the quarter section, the south half thereof, at the office of the Commissioner of State Lands, and afterwards received, from the Governor, deeds dated respectively, the 4th and the 19th day of February, 1869, for both parcels; and that the defendants, at the commencement of the suit, wore in possession of the land.

- The deeds from the Governor conveyed the fee in the laud, which until then, remained in the State, and are conclusive evidence, in a court of law, of the plaintiff’s title.

If Pettus has an equitable right to the land,- concerning which we express no opinion, a court of equity is the proper and only forum, in which to assert it. Campbell vs. Garven, 5 Ark., 485; Bacon vs. Tate, 22 Ark.; Masters vs. Eastis, 3d Port, 368; Bagnell vs. Broderick, 2 Peters, 436; Patterson vs. Winn, 11 Wheat, 380; Jackson vs. Lawton, 10 John 23.

There is no error, therefore, in the judgment of the court below, and the decree is affirmed.