text:
    Mayo & Jones vs. Cartwright, adm’r, et al.
    1. Acquiescence: Not implied by silence where there is constructive notice.

    One who holds duly recorded incumbrances on land, is not hound to give notice to a subsequent purchaser, without actual notice, who erects valuable improvements, the record being constructive notice, no presumption of acquiescence can arise from the silence of the incumbrancer.
    2. Limitations, Statute oe: In what cases not suspended during the war.

    While this court will adhere to the late rulings that the statute of limitations was suspended during the war, it will not apply the doctrine to the case of a mere personal trust which could have been executed by the trustee without the intervention of a court. And where the trustee, upon a trust to secure indebtedness, with a power of sale upon default, neglected for more than seven years, embracing the time of the war, to execute his trust, the statute was not suspended as against one in the adverse possession of land which was the subject of the trust.
    3. -: Effect of part payment on the rights of third persons.

    Part payment of a debt w-ill not arrest the statute of limitations as against a third person not in privity with the debtor or creditor.
    APPEAL from Monroe Circuit Court in Chancery.
    Hon. W. H. H. Clayton, Circuit Judge.

      Clark & Williams, for appellants.
    There can be no estoppel as to Jones. Boggs v. Mercer, 14 Cal., 279-366 ; Green v. Pettyman, 17 Cal., 401. There was on his part no negligence, n )r design to mislead. Brown v. .Wheeler, 17 Con., 345; Kinney v. Farnesworth, id., 345; Rangely v. Spring, 21 Me., 130; Cummings v. Webster, 43 id., 192; Preston v. Mann, 25 Con., 118; Whitenere v. Culver, 8 Minn., 133 ; Heath v. Derry Bank, 44 N. H., 174; 29 Ga., 312; Davidson v.
      Young, 38 111., 145; Wilson v. Custro, 31 Cal., 420; Anderson v. Lyons, 11 Allen (Mass.,) 349; Hazelton v. Butehelder, 44 N. H., 40; Lawrence v. Brown, 5 N. Y., (1 Seld.,) 394; Jewett v. Miller, 10 N. Y., (6 Seld.) 402; Byers v. Farwell, 9 Barb., N. Y., 615 ; Hawley v. Griswold, 42 id., 18; Garlingham v. Whit-well, 51 id., 208 ; Brubaker v. OJceson, 36 Pa. St., 519; Biller v. Brubaker, 52 id., 498; Barr ah v. Bryant, 56 id., 69; Williams v. Chandler, 25 Tex., 4; Hicks v. Crany, 17 Vt., 449; and the person claiming the estoppel must have changed his position by reason of the acts. Copeland v. Copeland, 28 Me., 525 ; Califf v. Hillhouse, 3 Minn., 311; Taylor v. Zepp, 14 Mo., 482; Martin v. Angelí, 7 Barb. (N. Y.,) 407; Otis v. Sill, 8' id., 102; Carpenter v. Stillwell, 12 id., 128; Commonwealth v. Moltz, 10 Pa. St., 527; Eldrod v. Hazlett, 33 id., 307; Shaw v. Beebe, 35 Vt., 205; Wooly v. Edson, id. 214.
    The security of Loftis’ debt was transferred to Jones, and he was subrogated. Kaufman v. Batesville Institute, 18 Wal., 151; Lead. C. in Eq., 400-417; Watts v. Kinney, 3 Leigh, 272; Lowndes v. Chrisholm, 2 Mc’s Ch. Rep., 455; Worthington v. Ferguson, 4 Har. & John’s, 522; Gregu/r v. Bengle, 5 ib., 234; Neimceweicz v. Gahn, 3 Paige, 614; Epps v. Randolph, 2 Cal., 125; Hatcher v. Hatcher, 1 Randolph, 53; Williams v. Washington, 3 Dev, Eq., 137.
    Debt not barred. The period of the war not counted. U. S. Statute at Large, p. 811, app.; Semmes v. Hartford Ins. Co., 13 Wal., 158; U. S. v. Wiley, 11 Wall., 508; Hanger v. Abbott, 6 Wall., 632; The Protector, 12 Wall., 70Ó; Hall v. Benkla, 28 Ark., 506.
    Payments revived the debts, Gould’s Digest ch. 106, sec. 23; Hunt v. Bridgemen, 2 Pickering, 581; Sigourney a. Bowry, 14 ib., 387; Lawrence Co. v. Bwnkle, 35 Mo., 375 Whitaker v. Rice, 9 Minn., 13; Trustees v. Hartfield, 5 Ark., 551; Burr v. Williams, 20 Ark., 189 ; Hicks v. Lusk, 19 Ark., 692; also 51 Mo., 31. Statute runs from date of payment provided in deed of trust Am. Bank v. Baker, 4 Met., 164. Mortgage not barred with note. Belknap v. Gleason, 11 Con., 160. See also Getehell v. Jewett¡ 4 Greenleaf, 350; Baker v, Morris, 10 Leigh, 284; McKinner v. Smith, 2 Greenleaf, 14; Nelson v. Carrington, 4 Mumf., 332; , Reardon v. Searcy, 1 Sitt., 653; Chapman v. Batle, 22 Maine, 191; Spear v. Newell, 13 Vt., 288 ; Rogers v. Rathhorn, Johns. C. R., 367; 2 Sto. E. Ju., sec. 1521, 1028; Bondv. Hopkins, 1 Sch. and Leif., 430-435; 2 Hilliard onMort, 4; Hughes v; Edwards, 9 Wheat, 467; White v. Ewer, 2 Vent., 340; Robinson v. Fife,3 Ohio (U. S.,) 551; Ch'ittenden v. Brainard, 2 Root, 485; Dick v. Batch, 8 Pet., 30; Davis v. Evans, 5 Iredell, 525 ; Giles v. Baremore, 5 Johns. C. R., 545.
    On limitations see further: Owings v. Norwood, 2 Har. & Johns., 96; Jaekson v. Delany, 11 Johns.,; 365 ; Jackson v. Hudson, 3 J. R., 375; Collins v. Terry, 7 Johns., 278; Jaekson vPrcdt, 10 Johns., 114; Jackson v. Slater, 5 Wendell, 295; Mppieion v. Edon, 8 Vermont, 241. Presumption of payment may be overcome by counter proof: Evans v. Huffman, 1 Halstead Ch. (N. J.), 354; Boyd v. Harris, 2 Md. Ch. 210; Robert v. Welch, 8 Ind. Eq., 287; Whitney v. French, 2 Vermont, 663; Chich v. Robins, 44 Maine, 104; Wright v. Eaves, 10 Rich. Eq. 582; Howard v. Hildreth, 18 N. H., 105; Hughes v. Blackwell, 6 Jones’ Eq. (N. C.), 73; Hicks v. Lusk, 19 Ark., 692.

      Hughes & Smith, for appellee.
    On the point of limitation cited: Gantt’s Digest, sec. 4113, applies in equity to deed of trust; Sullivan v. Hadley, 16 Ark., 145; Guthrie v. Field 21 Ark., 386; Hall v. Denakla, 28 Ark., 506, Begins to run January 1, 1857; Jettsr. Hempstead, 25 Ark., 462; Grey v. Givens, 26 Mo., 291; Trapnall v. Burton, 24 Ark., 389. Remedy against the land is barred, excluding time of the war,
      Met. JB. v. Gordon, 28 Ark., 115; 2 Brightly’s Dig. Laws, 295. The oases depend wholly on exclusion from the courts. j3ee Hangerv. Abbott, 6 Wall., 534; The Protector, 9ib., 687; Levyv. Stuart, 11 ib., 244, 493; Brown v. Hyatt, 15 ib.., 182.
    Payments after sale could not affect Cartwright. Broom’s Leg. Max., 917-18 and 926; 1 Greenl. Ev., sec. 109; note l,sec. 180; Gullett v. Lamberton, 6 Ark., 110; Finn v. Hem/pstead, 24 Ark., Ill; Prater v. Frazier, 11 Ark., 249; Steinbaehv. Stewart, 11 Wall, 566 ; Pearson v. Hern, 53 111., 144; Weinrieh v. Porter, 47 Mo., 363; Vaneev. Smith, 2 Heiskell, 344; Merrillv.Dawson, Hemp., 576-7. As to policy of the statute, see 1 Gr. Ev., secs. 15, 16 and 32; Angelí on Lim., 397-9; Conway v. Kinsworthy, 21 Ark., 9 ; Guthrie v. Field, ib., 379 ; Trapnall v. Bwrton, 24 Ark., 389.
    Mayo is estopped: Sto. Eq., secs. 384^-85; Shall v. Biscoe, 18 Ark., 142; Trapnall v Burton, 24 Ark., 399.
   Walker, J.:

This is a suit in chancery, brought in the Monroe Circuit Court by Cartwright against Mayo and Jones, to enjoin the sale of a tract of land, bought by Cartwright of George Washington, who had, before that time, conveyed the same in trust to Mayo, one of the defendants, to- secure the payment of certain notes, which Washington owed to one Loftus, and for the payment of which Mayo and Jones were bound as the securities of .Washington. The case was heard upon bills, answers, exhibits and depositions, upon consideration of which the court decreed that Mayo, the trustee, be perpetually enjoined from executing his trust, and for costs.

From this decree Mayo and Jones have appealed to this court.

The main ground for equitable relief set up in this bill was the uninterrupted adverse possession of the complainant for more than seven years, which, he sets up as a bar to the sale of the land by the trustee under the trust deed.

The defendants in their answer admit the purchase and possesion of the land by complainant, but deny that their right to enforce the trust is barred by limitation, upon the ground, amongst others, that the statute bar was suspended during the late war, and deducting that time, seven years had not elapsed between the time the adverse possession commenced and the time when the trustee attempted to enforce his trust.

After a careful consideration of the several allegations of complaint, the admissions of the answers, and the evidence, the facts of the case are that Washington and Baldwin, with Jones and Mayo as their security, on the-of October, 1850, executed to Loftus two notes under seal for $1500 each, one payable 1st February, 1853, the other payable 1st February, 1854. To secure the payment of these notes, Washington, the owner and occupant of a tract of land in Monroe county, Ark., on the 8th of April, 1856, executed a deed of trust to Mayo, one of his securities on the notes to Loftus, with power to sell tire land upon notice to satisfy the debts ; that the trust was accepted by Mayo, and the deed acknowledged and recorded in the recorder’s office of that county on the 10th April, 1856, two days after its execution ; that Washington continued in possession of the land, cultivated the same, and appropriated the rents and profits to his own use, up to the time of his sale of the land to Cartwright.

That Cai'twright, a non-resident of the State; made a verbal contract with Washington for the purchase of the land, under which Murrel, his son-in-law, as his agent, took possession in December, 1857. That Washington, for the consideration of $21,000, which was paid to him on the 1st of January, 1858, executed to Cartwright a deed with covenants of warranty of title, after which Cartwright’s possession was continuous and uninterrupted until the commencement of this suit, on the 17th. December, 1868 (except a temporary absence during part of the time of the late war). That during all of the time after he entered upon the lands, he cultivated the same, and received and appropriated the rents and profits to himself; that he paid the taxes on the land as his, and made notorious and valuable improvements on it, such as dealing, fencing, building and ditching ; that during all this time (except a temporary absence during the war) Mayo resided in the neighborhood of the land; that he did not apprise Cartwright of his title or claim as trustee, nor assert any claim or control over the lands, or the rents and profits, until the 31st of October, 1868, at which time he advertised the lands for sale.

Upon this state of case Cartwright contends, first, that he was an innocent purchaser for a valuable consideration, and that Mayo is estopped, by silence and acquiescence in the purchase, payment, occupancy and improvements upon the land, from setting up or asserting his claim as trustee; and, second, that Mayo is barred by lapse of time from asserting his claim to the land as trustee.

As regards the first position, we must hold that although there appears to have been no actual notice of the trust claim, and that Cartwright, a stranger in the country, finding "Washington in possession of the land, with evidence of title in himself, in good faith made the purchase, and paid his money in ignorance of the existence of the trust deed; still, as the deed was of record, he is chargeable with constructive notice, and Mayo was not bound to warn him of his title. It was the carelessness and neglect of Cartwright, in not examining the records to see whether there was or not an incumbrance upon his title, the consequences of which he must bear.

The second ground assumed for complaint, presents the only serious question to be determined.

The defendants insist that they are not barred by the statute from enforcing their claim under the trust deed: First — Because Cartwright has not had seven years’ peaceable, continuous, possession of the land, adverse to the rights of defendant. And Second — That by reason of several payments made upon the notes to secure the payment of which the deed was executed, the debts are not barred by limitation, and that whilst the debt remains due and unsatisfied, the right to enforce payment under the deed exists.

Under the first ground of defense, as to the seven years’ proposition, the statute is as follows:

Sec. 2, Gould’s Digest, ch. 106 : “No person or persons, or their heirs, shall sue, or maintain any action or suit, either in law or equity, for any lands, tenements or hereditaments, but within seven years next after his, her, or their right to commence, have, or maintain such suit, shall have come, fallen, or accrued; and that suits, either in law or equity, for the recovery of any lands, tenements or hereditaments, shall be had, and sued, within seven years next after title, or cause of action accrued, and at no time after said seven years shall have expired. Excepting minors, femmes covert, and persons non compos mentis.”

These are the only exceptions made by the statute, nor is there anything in the language of the statute, from which, by any fair construction, any other exceptions may be inferred.

Cartwright went into possession on the 1st of January, 1,858, under his purchase, and from that time until the 31st October, 1868, a period of ten years and ten months, continued in peaceable, adverse, uninterrupted possession.

To avoid the effect of this, the defendants claim that the statute bar did not run during the time between the proclamation of war by President Lincoln, on the 27th of April, 1861, and that of President Johnson at the close of the late war, on the 2d of

April, 1866, and that deducting this time from the ten years and ten months, the seven years had not expired on the 31st October, 1868. We have seen that the statute makes no.such exception, and in the case of Bennett v. Worthington, 24 Ark., 487, we held that when the statute made no excejDtion we could make none. But in a later decision of this court, Metropolitan Bank v. Gordon, the case of Bennett v. Worthington was overruled, upon the authority of Manger v. Abbott, 6 Wallace, 631; 11 Wallace, 244, 493; and 15 Wallace, 111. In none of these decisions is there a single authority cited to. sustain them. They are distinctly placed upon the ground that intercourse was prohibited between the belligerent States in time of civil war, and that as between belligerents, the international laws of war should prevail. In all of these cases, the suits, except that of United States v. Wiley, 508 ; and Levy v. Stewart, 244; were between the loyal States of the one party and the rebel States of the other, and fixed as the period of the statute bar, the dates of the proclamations, declaring war and that of its suspension. The ground iipon which the Supreme Court of the United States extended this suspension to suits between the citizens of the rebel States was based upon an act of Congress. ■ Since the decision of the case of the Metropolitan Banker. Gordon,, this court has applied the rule as held' in that case to several cases between the citizens of this State, limiting the period of the suspension, however, to the 6th May, 1861, the date of the secession ordinance, and the close of the war April 2d, 1866.

These decisions have been so long made and acquiesced in, that we do not feel at liberty to disturb them. Nor have we made this reference to them for that purpose, but to show the true grounds upon which they rest, and that they should not be relied upon as authority for making a like exception in favor of a trustee, with power to sell upon notice. The act to be performed was personal, neither the existence nor the intervention •of a court was necessary, to enable the trustee to execute his trust.

It is no doubt true that there was a time during the war, when it would have been an abuse of the trust to have exposed the property to sale, and perhaps hazardous to the trustee personally to have attempted to do so. If we should attempt to go this step further, and engraft upon the statute this, as an additional •exception to the operation of the statute, it may with equal propriety be extended to all other personal trusts.

Mayo, the trustee, had ample time, both before and after the ■war, to execute this trust. He could have done so at his pleasure, or if Jones, who seems also to have been interested in the execution of the trust, had desired that it should be executed, •he could have compelled Mayo to do so or to resign.

We have already gone as far, under the sanction of the decisions of the Supreme Court of the United States, as we feel authorized to go, and particularly when the circumstances which induced the courts to make this exception, do but partially, if at all, 'exist in this, case, and must hold that in this case the statute bar was not suspended by reason of the rebellion: and as no steps were taken by the trustee to assert his rights to the land for more than ten years, during all which time the complainant held continued, peaceable and adverse possession of the land, had made lasting and valuable improvements upon it, and cultivated it, and appropriated the profits of the cultivation to his ■own use, that the statute bar was complete.

It is further contended by counsel for defendants, that the debts that were secured to be paid by the deed of trust were not barred by limitation, because of several payments made by Washington upon them, up to and as late as the year 1862.

The proof very clearly shows this to have been the case, and by force of whieh a new point was fixed from which the statute began to run, and counsel are well sustained by authority in the position taken by them, in cases in which payments are made by the payor to the payee, as in case where a party indebted mortgages his estate to pay the debt, each payment so made as between them, is in effect an acknowledgement of the debt, and fixes a new point from which the statute bar commences; and a mortgage given to secure its payment survives with the debt. This is so as between debtor and creditor, because as between them there is privity of contract.

But no such privity existed between Cartwright and the payors of the debt. He held the land by purchase. These debts were between Washington, and Mayo and Jones, who had succeeded by payment to the rights of Loftus. Each payment made by Washington to them was a new acknowledgment of indebtedness, as to which Cartwright was not a party, and if by such acknowledgment the trust survived so as to prevent the statute-bar, then by the annual payment of the interest the debt would never be barred, and if the effect be such as contended for by counsel, no length of peaceable, adverse possession, would create-a bar in favor of Cartwright.

In the case of the New York Life Insurance and Trust Co. v. Covert, et al., 29 Barber, 435, it was held that presumption of payment is not like an actual payment, which satisfies the debt as to all debtors; it operates as a payment only in favor of the party-entitled to the benefit of the presumption. And further, that the presumption of the payment of a mortgage arising from the lapse of over twenty years from the time the mortgage money became due, will not be repelled by proof of a payment made by the mortgagor after he had sold and conveyed the mortgaged premises to another person, so far as the purchaser and those-claiming under him are concerned. And so in the case before us. No payment made by Washington, to his creditors, after he sold the land to Cartwright, can affect his rights, although as between Washington and his creditors it might prevent the statute bar of the debt.

1 Greenleaf, sec. 180, says: “The declarations or admissions must be made while the party making them had some interest in the matter; and they are receivable, only, in evidence so far as his own interests are concerned. * * * But an admission made after other persons have acquired separate rights in the subject matter, cannot be received to disparage their title, however it may affect that of the declarant himself.”

And so Washington’s admission of the existence of a debt, though binding as between himself and creditors, cannot be received to disparage the right of Cartwright.

Cartwright had nothing whatever to do with the trust deed, or the debt to be secured, he was no party to either, and we think it very clear that such payment in no wise affected his right of bar by lapse of time.

Holding, as we must, that the statute bar is complete, the decree of the court below must be in all things affirmed.


source: Caselaw Access Project

author: Walker, J.:

license: Public Domain

text:
    Galbreath, Stewart & Co. vs. Cook and Wife.
    1. Fraudulent Conveyance.
    A purchaser for an adequate and valuable consideration, without notice of a fraudulent intent on the part of the grantor, to place his property beyond the reach of his creditors, will be protected; but if he has notice of the fraudulent intent of the grantor, or if he purchase at a grossly iuade quate price, without notice, his title will not be protected against creditors.
    2. Statute oe Frauds. Marriage contract within.

    A marriage contract must be reduced to writing and acknowledged, under our statutes.

      3. Evidence. When inadmissible to vary the consideration expressed in a deed.

    The parties to a deed which is attacked by creditors for fraud, cannot show a consideration different from that expressed in the instrument
    APPEAL from Lincoln Circuit Court in chancery.
    Hon. Read Fletcher, Special Judge of the Circuit Court. Pindalls, attorneys for appellants.

      H. Qarlton, for appellees.
    Marriage was a good consideration for the deed. 2d Bl. Com., 297; (Co. Lit., 9 v.) Or will support and make valid an executed deed, which was voluntary or fraudulent. 1 John. Ch. Rep., 271-72; 1 Sid., 133; 1 East., 95, and cases cited; 1 Co. Lit., 9 v., sv/pra; 12 John. Rep., 536 ; 2 Kent's Com., 11th ed., p. 169, no. 2; Frazer y. Thompson, 1 Giff., p. 49; Campion v. Cotton, 17 Vesey, p. 263.
    Fraud is never presumed. Conway ex parte, 4 Ark., 302; Hempstead v. Johnson, 18 Ark., 124.
    There must be privity to the fraudulent design in grantee. Last case." Christian v. Greenwood, 23 Ark., 258; Mayniac v. Thompson, 7 Peters, 516- Embarrassment in the grantor no proof of fraud. Cox v. Fraley, 26 Ark., 20. Nor is the offer to convey to Watson, who was a creditor. Huff v. Roane, 22 Ark., 184; Williams v. Buzzard, 11 Ark., 718; Cooh v. Cooh, 12 Ark., 387; King v. Payne, 18 Ark., 589 ; Bplawn v. Martin, 17 Ark., 146; Lardenne v. Hardwiche, 9 Ark., 482; Hempstead v. Johnson, supra.

   Walker, J.:

The appellants filed their bill in equity, in the Lincoln county Circuit Court, to have set aside, and declared void, a deed executed by Cook, to Martha Buford, with whom he afterwards intermarried, which plaintiffs allege to have been executed by Cook in fraud of the rights of his creditors.

They allege that the lands conveyed comprise the whole of Cook’s estate subject to sale by execution; that he was largely indebted, and insolvent; that among other debts was one for $2,000 due to plaintiffs, and, upon which, before the deed had been executed, suit had been brought; that their suit was prosecuted to judgment, upon which execution was issued and placed in the hands of the proper officer for collection, who returned that the defendant had.no property .out of which to make their debt.

The evidence fully sustains all of these allegations, indeed none of them are seriously controverted.

Leaving the question as to whether the conveyance was made with intent to defraud plaintiffs, his creditors, that such was Cook’s intention in making the conveyance is clearly shown from the evidence.

But it is contended for the appellees that whatever may have been the intent of Cook, the grantor, unless it is shown from the evidence that Martha Buford, the grantee, purchased the land with a knowledge of such fraudulent intent, her right to the property conveyed should be sustained.

She denies in her answer all knowledge of the indebtedness of Cook, of his fraudulent intent, or of any participation with Cook in attempting to put his property out of reach of his creditors.

There is no evidence which tends to bring such knowledge and intent, home to her, unless the very inadequate consideration expressed in the deed, and the fact that at the time the deed was being prepared, Cook took out a $100 bill and told the draftsman, in the presence of the grantee, that that was the consideration which he had received for the land, arid which, so far as appears from the evidence, she did not deny, whilst in her answer she does not pretend that any money was paid, but states positively that the only consideration given for the land was a contract of marriage, a marriage settlement. These circumstances, if connected with others, might be sufficient to show that she was a participant in the fraud, but, standing alone, they are not sufficient to fix such knowledge and participation upon her, and we must hold her to be an innocent purchaser, that is, a purchaser without knowledge of the failing circumstances of Cook, or of his intent to defraud his creditors by putting his property beyond their reach.

This protection to innocent purchasers is extended to those who not only buy in good faith, but who also pay a fair price for the property, at least a price not grossly inadequate. The inadequacy is of itself evidence of a dishonest purpose, and such as to put the purchaser upon inquiry. The grounds upon which the purchaser is protected in the purchase, is, that he bought in good faith and paid his money for the property.

"When the creditor comes to demand that this property should be given up to satisfy his debt the purchaser may reply: If you take this property from me I will have a claim against the debtor equal in equity to your own, and, when equities are equal, the party having the legal title should retain the property. But with what show of equity could the purchaser of this land worth $7000, who only professes upon the face of the deed to have paid $100, not one dollar of which has been paid, confront the creditor who has a judgment for $2000 due ? Cexiainly none.

It may be considex’ed as settled in this court, that when a party purchases property and pays for it a fair px’ice, and without lmowledge of the failing circumstances of the debtor, or of his intent to defraud his expeditor’s, he will be protected in his purchase. Splawn v. Martin, 17 Ark., 152, and Christian v. Greenwood, 23 Ark., 266.

When considering the latter case, Mr. Justice Fairchild, who delivered the opinion of the court, said: If Christian bought the negroes of Hunley and paid the value of them, without notice of Hunley’s fraud, his equity as a purchaser is at least equal to that of the creditor to have his debt paid out of Hunley’s property, and the legal title derived from the purchase will prevail.”

But if the purchaser have notice of the fraud and deal with the vendor, and by so doing aid him. in the perpetration of a fraud upon his creditors, then, even if a full price is paid by him, he can assert no claim to equitable relief, and whilst such has been our uniform decisions in cases of this kind, all purchasers without notice or participancy in the fraud are not protected. Those who pay no consideration, or a grossly inadequate consideration, have no debt at all, or none of amount to compare with the equity of the creditor, should not be permitted to hold the property purchased, free from liability to satisfy the creditor’s debt. Ringgold v. Waggoner, 14 Ark., 72, and Leach v. Fowler, devisee, 22 Ark., 143.

In the latter case, the conveyance was made by Leach to his son, who was at the time a non-resident of the State, and had no notice of the fraudulent intent of his father. Elanagin, special judge, said: “ Where a father, immediately before judgment, conveys all of his property subject to execution to his minor son in his absence, and who does not appear to have the means to purchase, it is sufficient to put the grantee upon the proof that it was a purchase upon actual consideration and in good faith.”

Thus we see that in order to protect the purchaser in his property, it is not alone necessary that he should be an innocent purchaser, but that he should also have paid a consideration for the property. These combined protect him; if either is wanting he must fail.

In determining questions of this kind, we rarely find positive evidence of fraud, but arrive at conclusions from the numerous attendant circumstances which, if considered separately, would lead to no satisfactory conclusions, but, when taken together, lead us to clear and strong convictions of the intention of the actors.

We will first dispose of the case as presented by the deed.

Conceding Martha Buford, now Mrs. Cook, to be an innocent purchaser, shall we say that she was also a purchaser for a valuable consideration? was she in circumstances to purchase $7000 worth of land ? did she, in good faith, do so, or attempt to do so? did she, in fact, pay any consideration whatever.

From the evidence we learn that Martha Buford, who claims to have made this purchase, was* an orphan girl between eighteen and twenty years of age, residing with her step-father, Moore, in the neighborhood of her co-defendant, Cook, who had lately been connected with a mercantile firm in the sale of goods. What Miss Buford’s rank and position in society was is not disclosed by the evidence, nor whether she owned any property or other means.

Cook was the owner of a tract of 800 acres of land, 300 or 400 acres of which had been cultivated; with cotton gin and dwelling house. This property she professes to have bought, and, taking the consideration expressed in the deed as the price, she was to pay $100, which she does not pretend to have paid— indeed, says in her answer under oath that this was not the consideration for which the deed was executed. She is not shown to be able to pay this small sum, but if paid it would have been so grossly inadequate a sum with which to pay for 800 acres of land, worth $7000, that it would have given her no right to appropriate this large estate to her own use, to the exclusion of the rights of Cook’s creditors; but as, in fact, no payment whatever was made, she must fail upon this ground ?

Counsel for defendants seem to have conceded this, and contend that notwithstanding the consideration expressed in the deed, was $100 cash, that the deed in fact was executed in consideration of marriage, and the lands conveyed were intended as a marriage settlement upon Miss Martha Buford, with whom he had an engagement of marriage which was soon after consummated.

That a contract of marriage is a good consideration there can be no question, and at this point we are led to enquire whether there was in fact a contract of marriage between the parties.

Joslyn, who wrote the deed, says that Cook told him that the deed was executed in consideration of marriage and for a marriage settlement on Martha Buford. Cook several times so stated in witnesses’ presence. Witness, Moore, says Martha Buford, now Martha Cook, is my step-daughter; she married Cook the last of March, 1870. I have heard the deed executed by Cook to Martha spoken of between the .parties, and understood that the deed was intended as a marriage portion to Martha, and her children, if she had any. At the time of Martha’s marriage she was between eighteen and twenty years of age. I do not recollect whether I heard Cook speak of the deed before marriage or not. I heard Martha speak of it a few times shortly before her marriage. Martha only told me that Cook was going to make his land over to her, but she did not say whether she would have him without such settlement, or not, or whether this was a condition of accepting or not.

This is all of the evidence in relation to marriage or the consideration for marriage, and there is not one word with regard to any contract, or agreement of marriage between the parties; there is however, evidence that Cook told Joslyn that the deed was in consideration^ of marriage, and for a marriage settlement on Martha Buford. Witness Moore understood that the deed was intended as a marriage portion to Martha and her children. Martha said Cook was going to make his lands over to her, but she did not say whether she would have him without the settlement, or not, or whether this was a condition of her accepting or not. Marriage settlements, marriage portion, and to make over the lands to Martha, are the only significant terms used, and all of them in their proper connection means marriage settlement.

Marriage settlement, says Schouler in his work on marriage relations 262, is applied to matrimonial contracts, in inference to the property of one another, by means of which they change and control the general rule of the marriage estate. Here, no mutual contract is proven, either verbal or otherwise. In order to make a valid marriage settlement it must be reduced to writing, and acknowledged by the parties, and made matter of record. All contracts of marriage shall be made in writing, or, under our statute of frauds, Gantt’s Digest, sec. 2950, they are- void, and section 4163 provides that all marriage contracts, whereby any estate, real or personal, is intended to be secured or paid, shall be reduced to writing, and acknowleged by the parties. In the case before us, no attempt appears to have been made to comply with the statute, the deed was executed by Cook alone, and purports to convey to Martha Buford certain lands.

But the appellees’ counsel contend that they have shown by parol evidence that money was not the real consideration of the deed, but that it was in consideration of a marriage settlement, contracted between the parties, and as we have seen this marriage settlement must appear to have been reduced to writing and acknowledged by the parties, or it is void. It could of course (if void) form no valid consideration for the transfer of the land.

But should we consider this objection not well taken, which we feel confident is not the ease, the question arises, as to whether parol testimony can be introduced, on the part of the parties to the deed, to substitute another and different consideration than that expressed in the deed. The defendants contend that they have a right to do this, and upon examination of a great many cases we find some one or two that sustain them in their position. The most pointed of which is on an early Virginia decision reported in 2 Call., 125, Epps v. Randolph.

But so far as our researches have gone, we find the Weight of authority to be that whilst the party, who attacks the deed for fraud, may give parol evidence to show that the consideration is not such as is set forth in the deed, or that in fact no consideration was given, the rule does not extend to the parties to the deed. A leading case upon this subject is that of Butts v. Union Bank of Maryland, 1 Harris & Gill, 175.

The case was elaborately argued by the distinguished attorneys, Eeverdy Johnson, on the one side, and the late Chief Justice Taney on the other. Mr. Justice Stephen, who delivered the opinion of the court, said: “The question presented to this court for adjudication is simply this: Can marriage be given in ■ evidence as the consideration of a deed, which is expressed to be made for a money consideration. * * * The authorities upon this part of the law are. contrariant, and cannot be reconciled. There is, however, one great leading principle in the law of evidence relative to the subject, in affirmance of which they all concur. It is this, that no evidence is admissible which contradicts the deed.” And cites as authority 2 P. Wills, 203; 1 Vesey, 129 ; 1 John. E., 139; 3 John., 506 ; 7 John., 341. And adds, “That upon a careful examination of the authorities relative to the subject, it appears that the greatest extent to which they have gone has been to allow an additional consideration to be proved which is not repugnant to the one mentioned in the deed. But when a deed is impeached for fraud, the party to whom the fraud is imputed will not be permitted to prove any other consideration in support of the instrument. It is the consideration expressed in the deed impeached as fraudulent, which excludes the proof of any oilier consideration insupportof it, and not the circumstance that the party charged with the fraud has relied upon such consideration in his answer.”

In the case of Davidson v. Jones, 26 Miss., 63, it was held that a consideration different from that expressed upon the face of the deed, could not be set up or proved, for the reason, said the court, that it was for the protection of purchasers and creditors.

In the case of Gest v. Davis et al., 2 Hill Chancery Rep., it was held that, in cases of fraud or usury, the party who attacks the validity of the deed, may introduce parol evidence to show a different consideration from that expressed in the deed.

In 2 Phillips on Evidence, page 689, the admissibility of evidence to show a different consideration from that expressed in the deed, is fully considered. He says: “Although a party who impeaches a deed for fraud, may prove a different consideration, the party charged with the fraud ■ will not be allowed to prove any other consideration in support of the instrument.” As between the parties, and for the object of maintaining the character of the deed, as imported by its operative words, the consideration clause is conclusive.

If the execution of the deed is admitted, they shall not be -allowed to vary the uses, and purposes, therein expressed. Fraud in the execution, however, may be set up by a party, and as that issue raises the question of intention, as an independent fact, the consideration clause is, of course, open to inquiry. Id., note 503.

Without further reference to authorities we feel warranted in ■deciding that the validity of the deed in this case having been •attacked for fraud by the creditors of Cook, he and the grantee, parties to the deed, could not introduce parol evidence to show that the deed was executed in fact for another and different consideration from that expressed in the deed.

Having reached this conclusion, the case is in effect disposed of.

We have not overlooked the fact that there appears in the transcript a receipt for $1,500, given to Mrs. Cook, as the last payment for the land; this payment was made after Mrs. Cook’s marriage. Whether the money paid was hers or her husband’s does not appear, nor is there any evidence of her ability to pay; but, be this as it may, it can in no wise affect the conclusion we have reached.

It is not often that a clearer case of fraud is proven than that attempted by Cook in this case. He was a confessed bankrupt, who had filed his schedule in bankruptcy; he had offered to transfer his plantation (all the property he had) to two parties; both refused to accept it. He said he had offered the plaintiffs fifteen bales of cotton for their debt of $2,000, which they refused to accept, and that he intended to beat them out of it. He withdrew his suit in bankruptcy, procured his brother-in-law to write a deed at his own house, Miss Buford being present; had $100 inserted as the consideration; took out a one hundred dollar bill and said that he had received it as the consideration money for the land. Miss Buford being present, is not heard to deny this, and after this, both of them, in their answers, swear that the $100 mentioned in the deed was not the consideration for the purchase of the land. This deed was made to an orphan girl, who is not shown to have had any property whatever, or other means of purchase. There is no evidence of a marriage contract, verbal or otherwise, all things considered. It would seem that $7,000 worth of property was to be settled upon the lady, and thereby beat these creditors out of their debt, and the property, in effect, to be reclaimed by Cook by marriage with grantee, and enjoyed by him as fully as before this transfer.

Equity will not uphold such a transaction. The decree of the court below must be set aside, and a decree entered in arcordance with the prayer of the bill.


author: Harrison, J.:

text:
    McLain vs. Huffman.
    1. Wame: On a horse race void, etc.

    A wager on a horse race is illegal and void, and the winner cannot recover from the stakeholder more than his own deposit.
    2. Bailment: Inability of bailee before demand.

    No right of action accrues against a bailee before demand and a refusal to deliver the deposit, unless there has been a wrongful conversion, or some loss by gross negligence on his part.
    APPEAL from Clark Circuit Court.
    Hon. George A. Kingston, Circuit Judge.

      S. R. Cockrill for appellant.
    All gaming contracts are void. Gantt’s Digest, sec. 2987; 51 111., 473; 23 ib., 493; in re Chandler, Am. Law Register, May, 1874, p. 315; 3Bacon’s Abr., 343, Lit. gaming; Clayton v. Jennings, 2 Blk. Reps., 706; 2 Wils., 36; ib., 309; ib., 220; 41 111., 382 ; 2 Swan, Tenn., 146.
    Sec. 2986 merely restores the common law maxim, of leaving the parties alone, who are “ in pari delicto ” in turf racing. 20 Eng. Com. Law, 185. (*405); Smith contra, *169; 2 Parsons Cont., 139; Dunlap’s Paley’s Agency, 66; 23 Ark., 221; 26
    111., 404; 13 Ind., 178; ib., 344; 4 Mich., 329; 3 Dutch.-(N. Y.), 55; 5 Herning (Del.), 347; 19 Maine, 335 ; 18 Vt., 9 ; 15 Conn., 28; 16 Sergt. and Rawl., 147 ; .5 T. R., 405; 7 ib., 531; 2 Esp., 629 ; 4 Tannt., 474; 2 B. and T., 467.

      The courts have been reluctant to recognize wager contracts. Le Costa v. Jones, Cowp. 729 ; 4 Camp., 39, n.; 2 Mass., 1; 1 Bailey 486; 1 Stobbart, 82; 3 N. H., 152; 3 Penn., 468; 15 Conn., 28 ; 2 Vt., 144; 1 Nottand McC., 178 ; 52 N. H., 507. Plaintiff could not recover even his deposit, without disaffirming the contract. Harris v. Foster, 19 Ark., 356, et seq.; 3 Ark., 227; 35 Mo„ 418 ; 6.Wis., 468.
    A demand before suit was necessary. Story’s Bailments, secs. 107, 120; 10 Ind., 161; 8 Ark., 109 ; 13 ib., 28 ; 16 Minn., 299 ; 3 Pitts (Tenn.), 28. The stakeholder became responsible to McLelland after notice. 11 Ind., 447 ; ib. 59 ; 10 ib., 161; 15 B. Monroe, 634 ; 18 Tenn., 329 ; 2 Pars. (sup.).

    The race was not decided and the testimony fails.

      J. M. Moore fof appellee.
    Horse racing not illegal at common law. Smith on Cont., 256, etseq.; Fhansv. Cooley, 42 Eng. Com. Law Eep., 759; Mc-Flroy v. Carmichael, 6 Ga., 456. Here it is excepted from the gaming act.
    •Turf racing was not intended to be discouraged by law. Stith v. State, 13 Aik., 680; Martin-y. State, 15 ibid, 71; State v. Rorie, et al., 23 ibid, 726 ; 1 Morris (Iowa), 169; McElroy v. Cao •onichael, (sup.).
    The stakeholder was a bailee for winner — the wager being legal. 2 Parsons on Cont., 626, et seq. No demand was necessary. Ib., 628. The burden of proof was on defendant to show it was not a turf race. Nelson v. Waters, 18 Ark., 573.
   Harrison, J.:

Huffman and McLelland bet fifty dollars on a horse race, and put the money in the hands of McLain as stakeholder. The race was run, and Huffman claimed to be the winner, and demanded the money. McLelland was dissatisfied and notified McLain not to pay it over.

Huffman sued McLain before a justice of the peace for the $100 — amount of the bet — and recovered judgment. McLain appealed to the Circuit ■ Court. Upon trial in the Circuit Court the plaintiff again recovered judgment for $ 100, and the defendant then appealed to this court.

It was proven that when the plaintiff demanded the money the defendant offered to return him the fifty dollars he had put up, but he declined to receive that unless the other fifty were also given him, and evidence was given to prove that Huffman was the winner of the race, and that the same was a turf race.

In a proper case the court will judicially notice what is a turf race, but from the view we take in this it will not be necessary for us to decide whether the race in question was such or not.

An action might, by the eommoh law, be maintained for a wager which was not contrary to public policy, Unmoral, nor affected the interest, feelings or character of a third person. Chit, on Con., 438. But such actions were never favored by the courts, and regrets often expressed that they had ever been sanctioned. Ib., 440.

Story, in his work on contracts, says: u The courts have often reprehended these contracts, and seized upon every opportunity and every circumstance to invalidate them.” Story on Con., sec. 566. .

In Massachusetts, Maine, Vermont and Pennsylvania the courts without any statute declaring them void, refused to enforce them. Ball v. Gilbert, 12 Met., 397; Perkins v. Eaton, 3 Maine, 152; Lewis v. Littlefield, 15 ib., 233; Collamer v. Day, 2 Vermont, 144; Edgell v. McLaughlin, 6 Whar., 176.

And now in England, by an act of Parliament (8 and 9 Viet., c 109, sec. 18) all contracts or agreements by way of gaming or wagering, are made void.

In this State all such contracts are declared void by statute. Section 2987, Gantt’s Digest, says: “All judgments, conveyances, bonds, bills, notes, securities and contracts, where the consideration, or any part thereof, is money or property won at any game, or gambling device, or any bet or wager whatever, or for any money or property lent to be bet at any gaming or gambling device, or at any sport or pastime whatever, shall be void.”

In this suit the plaintiff seeks to recover the wager deposited by the loser with the stakeholder, upon the promise or agreement of the defendant to deliver the same to him if he should win. Now what is the consideration for the defendant’s promise ? Most clearly the bet between the plaintiff and McLelland, consummated upon the deposit of the stake in his hands. The' deposit and his agreement to deliver them to the one winning did not, of themselves, constitute the contract between him and the plaintiff, but the bet was a constituent and material part of the consideration for such agreement. But were it possible to distinguish the defendant’s agreement from the wager contract between the plaintiff and McLelland; yet growing out of and made in aid of such illegal contract, in contemplation of the act against gaming and betting, it was, according to a well established principle, void. Tatum v. Kelley, 25 Ark., 209 ; Pratt v. Adams, 7 Paige, 615; Lightfoot v. Tenant, 1 Bos. and Pull., 551'; Langton v. Hughes, Maude and Sel., 593.

But because money or property lost on a turf race is, by section 2786, excepted from the provisions of section 2984, by which an action is given to “ any person who shall lose any money or property at any game or gambling device, or any bet or wager whatever, to recover it back from the person winning the same, it is contended by appellee that a wager or bet on a turf race is not illegal. It does not follow as a necessary consequence, because the loser cannot sue to recover back the money or property which he has lost on such a race, the winner can maintain an action for the wager he has won.

The obvious design and purpose of the statute declaring all gaming and wagering contracts void, is the suppressing of the pernicious vice of gaining and betting, and as a remedial statute whose object is so consistent, not only with sound morality and the best interests of society, but in accord with the spirit of the age, it should be so construed as to reach the evil in all its forms. But such wagers are within the very language of the statute, as well as its most clear and evident meaning. The plaintiff was not, therefore, entitled to recover from the defendant the money put in his hands by McLelland.

That the plaintiff is entitled to receive back the money deposited by himself there can be no question, but having refused to accept it when tendered him by the defendant unless that deposited by McLelland, to which he had no right, was also paid over, the defendant was in no default, or liable to be sued therefor.' “No right of action accrues in any case against a bailee unless there has been some wrongful conversion, or some loss by gross negligence on his part, until after a demand made upon him, and a refusal by him to deliver the deposit.” Sto. on Bail., 107.

The court below should have given the defendant a new trial, •and its refusal to do so was an error for which its judgment must be reversed and the cause remanded to it, in order that a new trial may be had and the cause proceeded in according to law.


text:
    Thomas vs. The State.
    Maiioious Mischief: Killing of stock in one’s encloswre not indictable.

    One who kills stock, which is found trespassing in his enclosure, is not subject to indictment, although his fence may not be five feet high. Sections 1381 and 3185, Gantt’s Digest, construed.
    APPEAL from Baxter Circuit Court.
    Hon. William Byers, Circuit Judge.

      Rose, for appellant.
    Yerdict excessive, Gantt’s Digest, sec. 3192, unless malicious sec. 1381 does not govern.
    . Instructions that malice was implied was erroneous. State v. Wihox, 3 Yerger, 278; Hobson v. State, 44 Ala., 380; State v. Newby, 64 N. C,, 23; Hill v. State, id., 335; Wright y. State, 30 Ga., 325; Frazier, v. Brown, 12 Ohio, U. S., 294; U. S. v. Gideon, Irwin, 294; Northcott v. State, 43 Ala., 330; State v. Jachson, 12 Ind., 329; Comm. v. Walden, 3 Cush., 558; State v. Bobimson, 3 Dev. & Bat.’ 130; State v. Pierce, 7 Ala., 723; State v. Waters, 6 Jones N. C., 276. *

      S. P. Hughes, Attorney General, for appellee.
    Contended that the facts showed such malice as was contemplated by the act, for triple damages.
   Harrison, J.:

The appellant was convicted in the Baxter Circuit Court, for the malicious killing of a mare, the property of Permetta C. Herron, and fined twenty dollars, and adjudged to pay the owner two hundred and ten dollars damages, treble the value of the mare, found by the jury.

Having moved for a new trial, which was refused, he took a bill of exceptions and appealed.

The mare was found dead, having been shot, in the defendant’s woodland lot adjoining his wheatfield, and immediately by the fence separating the two.

The mare was breachy and bad to jump, and had been breaking into the defendant’s wheatfield, which fact was known to the owner. A horse’s track was in the field near where she was lying, and it appeared she might, after being shot, have jumped or fallen over the fence into the lot. The fences enclosing the lot and field were, in some places, not more than three and a half to four feet-high, and there was such a low place in the-fence between the lot and field, at the spot where the mare was found dead, and the fences were nowhere five feet high. The defendant admitted that he shot and killed the mare.

The court instructed the jury that an animal destroying grain growing in a field enclosed by a fence less than five feet high, would not, in law, be trespassing, and that if they found from the evidence that the defendant killed the mare, though in his enclosure, if the fence was not five feet high, they should find him guilty.

The statute, upon which this instruction was based, section 1381, Gantt’s Digest, expressly excepts from its penalties persons killing, maiming, or wounding animals trespassing in their own enclosures.

By section 3185, all fields and grounds kept for enclosures arc required to be enclosed with a sufficient fence, which fence must be at least five feet high. Sections 3186 and 3187.

It does not, however, necessarily follow, that there can be, in contemplation of law, no enclosure unless the fence is five feet high, and these latter sections have no relation whatever to that first mentioned, or to prosecutions under it.

That the Legislature intended only a civil remedy for injuries to stock breaking into enclosures not enclosed as required by the statute, we think is apparent, not only from the exception or proviso in section 1381, before referred to, but because of the fine imposed by sections 3182-3188, upon owners of land in cultivation, for not having the same enclosed in the manner prescribed, and as well that, upon conviction, the owner of the stock is adjudged treble damages whilst he can recover only double by liis action. *

“The act in the case of malicious mischief,” says Bishop, “must proceed from malice, and, according to the general doctrine, the malice must be against the owner of the property, and not against another person, or against the property itself, it not-being sufficient when a man kills an animal out of ill mind to it.” 2 Bish. Cr. Law, sec. 996; Com. v. Walden, 3 Cush., 558.

We do not undertake to say that reckless and wanton injury to an animal will not imply malice against its owner, or without ■other evidence be sufficient to sustain an indictment under the statute, but we think it clear that one who, under such provocation, kills or injures an animal trespassing in his inclosure, cannot be said to have done so maliciously, and is not guilty of the offense mentioned in the statute, or subject to an indictment therefor.

The instruction given the jury was, therefore, erroneous, and a new trial should have been given the defendant; the judgment of the court below is, therefore, reversed and the cause remanded to it with instructions to grant the defendant a new trial, and to proceed according to law.


author: English, Ch. J.:

text:
    Vance vs. City of Little Rock et al.
    1. Municipal Taxation. Subject to Legislative control.

    The Legislature has power to provide in what manner, and to what extent taxes shall be levied to support municipal corporations, and how their debts shall be paid, subject to constitutional limitations.
    2. --
    A municipal corporation has no inherent power to levy taxes. It can only levy such as are authorized by law.

      3. -. Constitutional restrictions upon.

    The provisions of the Constitution restricting the power of municipal corporations to levy taxes for general purposes, and to pay indebtedness existing at the time of its adoption, is valid and binding. But semble, that a power conferred to levy taxes in payment of indebtedness contracted prior to the adoption of the -Constitution could be repealed or limited by it.
    4. Ckbtiobabi. Iiow objection to return taken.

    The objection that the return to a writ of certiorari sets up matters de hors the record, ii valid under existing laws, should be raised by motion to strike, and will not be considered on demurrer.
    5. Municipal Taxation. Power of the Federal Courts over.

    The courts of the United States can impart no taxing power to a municipal corporation, and an attempt by them to compel by mandamus the levy of a tax not authorized by the laws of the State, would be an abuse of the writ.
    6. -. Excessive levy quashed on certiorari.

    The municipal authorities of the city of Little Bock levied a tax of five mills for general purposes, and ten mills to pay indebtedness of the city. Five mills of the latter levy was for judgments recovered in the Circuit Court of the United States, and was made in obedience to a peremptory writ of mandamus issued out of that Court. It was not shown that any of the indebtedness, for which the levy of ten mills was made, was created under circumstances that would conflict with the constitutional restriction on the municipal taxing power: Held, on certiorari to quash the levy, that the levy for general purposes was valid; that the levy of ten mills for indebtedness was excessive; that the levy of five mills under the mandate of the Federal Court exhausted the taxing power of the corporation, and would not be interfered with; that the residue of said levy should be quashed.
    APPEAL from the Pulaski Circuit Court.
    Hon. R. A. Howard, Spec. Circuit Judge.

      Dick Gantt for appellants.
    Circuit Court had jurisdiction. Gantt’s Digest, secs. 1198-99; Floyds. Gilbreath, 27 Ark., 675; Greedv/p v. Franklin County, ante; Murphy y. Harbison, 29 Ark., 340; Vaughn v. Bowie, ante; Dillon on Mun. Cor., 740, et seq.; Hilliard on Taxation, 451, secs. 21, and n; Cooley on Taxation, 530, et seqentia.

      • Court in certiorari cannot look beyond the record. Redmond v. Anderson, 18 Ark., 449 ; Jefferson County v. Hudson, 22 Ark., 595; Miller v. MeCollough, 21 W., 426 ; Dious v. Bright, 23 ib.,
    107; Counts v. Markling, ante; Cooley on Taxation, 535.
    As to power, Const, of 1874, art. 12, sec. 4; acts 1875, p. 223, sec. 4; Dillon on M. C., secs. 55, 107, and cases.
    The limit of taxing power in the city was not greater than it is when the contract was made on which the judgment was rendered which the mandamus was issued to pay. See Gantt’s Digest, secs., 3295 and 5062.
    Other authorities cited as applicable. Cooley on Taxation, 209, and cases 524, 526; Dillon on Mu. Cor., sec. 605, n 2, 610; Cooley’s Const. Dim., secs. 17, 8, 520, 285, 287; Supervisors v. United States, 18 Wall., 71; Rees v. City of Water ton, 19 ib., 120; id., 122; Ruseh v. Supervisors of Des Moines County, 1 Woolw. 313; High on Ex. Cy. Rem., 281 and note; Buts v. City of Muscatine, 8 Wall, 582; Riggs v. Johnson County, 6 Wall, 166; ■United States ex rel. v. Council of Keokuk, ib., 514 ; Kaufman & Co. v. Bari, 26 Ark., 24.

      Gallagher & Newton, Yonley & Whipple, for appellee.
    Cited, in support of the mandamus, Riggs v. Johnson County, 6 Wall, 166. Commented on Const, of 1874, art. 12, sec. 4; sec. 4, Rev. act of 1874-75, p. 223.
    Argued that the power to levy five mills for general indebtedness was independent of and over and above what it might be compelled to levy by mandamus, citing Hoffman v. City of Quincy, 4 Wall, 55; English v. Oliver (MSS.); Rees v. City of Wateeton, 19 Wall., 116; State v. Douglas, 33 N. J., 363.
    The taxes of two and three mills may be supported on independent grounds, viz., that of contract based on the act of Feb. 15, 1859, amending the charter of the city to raise funds to pay bonds issued to Memphis and Little Rock Railroad Company. See sec. .17, charter 1869.
    Other authorities. Burton v. Platt County, 2 Dillon, 4; Clark v. Davenport, 14 Iowa, 494; Butz v. Muscatine, 8 Wall., 580; United States v. Burlington, 2 Am, L. Reg. (U. S.), 394.
    In any event, only the excess over ten mills can be quashed. State v. Kingsland, 23 N. J., 823 ; King v. King, 2 T. R., 235 ; Lawton v. Commissioners, etc., 2 Caines, 182; 3 Green., 322; O’Kain v. Treat, 25 111., 557; People v. Nichols, 44 Gilman, 307; Cooley on Taxation, 296.
   English, Ch. J.:

On the 19th October, 1875, the Council of the City of Little Rock passed the following ordinance :

_ Ordinance No. 36. — An ordinance to levy taxes for the year 1875.

Be it ordained by the City Council of the City of Little Bock.— Section 1. That the following rates of taxation be levied for the year 1875. for the several purposes herein specified, to-wit:

For general purposes...............'.............Five mills.
For outstanding certificates issued to the
Memphis and Little Rock Railroad.......Three mills.
Bills payable for United States currency
borrowed........................................Two mills.
United States judgments........................Five mills.

Amounting in all to fifteen mills on the dollar'on the assessed valuation of the property, real and personal, subject to taxation by the city.

The ordinance was certified to the Clerk of the County Court of Pulaski county; the city rates, as fixed by it, carried on to the tax books for the year 1875, and the books delivered to the sheriff, for collection, etc.

Calvin B. Vance, an owner of lots and tax-payer of the city, applied to the Circuit Court of Pulaski county to remove the ordinance into that court by certiorari, and quash it, on the ground that the city had levied five mills in excess of the amount which it had the power to levy under the constitution and laws of the State; and also for a restraining order to the sheriff, etc.

The writ was awarded, the clerk of the city returned the ordinance, and the return was accompanied by the answer of the city, setting up matters de hors the record in support of the levy, etc.

The court, upon demurrer to the answer, etc., refused to quash the levy, or any part of it, and Vance appealed to this court.

The legislature has the power to create, modify, or abolish municipal corporations. It has also the power to provide in what manner, and to what extent, taxes shall be levied for their support, and how their debts shall be paid upon their dissolution, subject, of course, to constitutional limitations and restrictions. Layton v. New Orleans, 12 La., An. 516; 1 Dillon on Corp., sec. 36., etc.

The power of taxation is an attribute of sovereignty, and belongs to the State. A municipal corporation has no inherent power to levy taxes. It can only levy such taxes as it is authorized by law to levy, and a tax laid by it without authority of law is void. Blackwell, 8, 186, 523; Cooley on Taxation, 3, 33, 535; Heine v. Levee Commissioners, 19 Wallace, 660.

Section 4, article 12, of the present constitution (which went into force nearly a year before the tax ordinance in question was passed) provides that: “No municipal corporation shall be authorized to pass any laws contrary to the general laws of the State; nor to levy any tax on real or personal property to a greater extent, in one year, than five mills on the dollar of the assessed value of the same : Provided, That to pay indebtedness existing at the time of the adoption of this constitution, an additional tax of not more than five mills on the dollar, may be levied.”

This provision of the constitution is binding alike upon the legislature, the courts, and municipal corporations:

Section 4 of “An act to amend the revenue laws of the State,” approved March 5, 1875, (and before the tax ordinance in question was passed,) Acts of 1874 — 5, p. 223, provides that: “ The amount of taxes levied in any one year, by the constituted authorities of any city or town, shall not exceed the sum specified in this section, viz.: For all general city or town purposes, five mills on the dollar: for paying indebtedness existing at the time of the adoption of the present constitution of the State, not more than five mills on the dollar: Provided, The above limitations shall not be construed to prohibit assessments on property adjacent to local improvements made in any city or town, for the purpose of paying the costs thereof, and damages occasioned thereby.” (As to this proviso, see sec. 27, art. 19, Constitution.)

No valid objection can be made to the first item of the levy in question: “ For general purposes, five mills.” This is authorized by the constitution and the revenue act above quoted.

The three other items, amounting to ten mills, to pay debts, are plainly in excess, by five mills, of the taxing power of the city, as limited by the clause of the constitution above quoted, as well as by the section of the revenue act copied.

Possibly, however, the city may have a taxing powe»’ to pay some debts legally contracted by it before the adoption of the constitution, which was not, nor could be, repealed or limited by it, or subsequent revenue acts.

Thus, where a statute has authorized a municipal corporation to issue bonds, and to exercise the power of local taxation in order to pay them, and persons have bought and paid value for bonds issued accordingly, the power of taxation thus given is a contract within the meaning of the constitution of the United States, and cannot be withdrawn until the contract is satisfied.

The State and the corporation, in such a case, are equally bound. A subsequently passed statute which repeals or restricts the power of taxation so previously given, is, in so far as it aifects bonds bought and held under the circumstances mentioned, a nullity. It is the duty of the corporation to impose and collect the taxes in all respects as if the second statute had not been passed; and if it does not perform this duty, a mandamus will lie to compel it. Von Hoffman v. City of Quincy, 4 Wallace, 535; Riggs v. Johnson County, 6 Wallace, 166 ;Rees v. City of Watertown, 19 Wallace, 120.

For example, and by way of illustration of the above rules, by act of 5th February, 1859, the charter of the city of Little Rock was so amended, as to authorize and empower said city to subscribe for and take stock in her corporate name, in any of the railroads upon whose line of route or terminus said city is situated or connected, and to issue her bonds, and to levy and collect all necessary taxes to pay the interest or principal of the same, etc.

If any bonds were issued by the city under this act, and any of them are now outstanding and unpaid, it may be that the city has power to levy a tax to pay them, in addition to the power to levy five mills to pay other debts existing at the time of the adoption of the present constitution. But it does not appear that any part of the ten mills levied by the ordinance before us was levied to pay bonds issued under the act above referred to.

It is insisted by counsel for appellant that the answer of the appellee setting up matters de hors the face of the ordinance in support of the levy, should be disregarded. That the tax must be quashed or affirmed on the face of the record returned to the Circuit Court on certiorari. Such was the well-established rule. Jefferson County v. Hudson, 22 Ark., 595; Redmond v. Anderson, 18 ib., 449; Miller v. McCullough, 21. ib., 426; Dicus v. Bright, 23 ib., 107; Cooley on Taxation, 535.

But by a recent statute there has been an attempt to enlarge the office of the writ of certiorari issuing from the Circuits Courts. It provides that the Circuit Courts shall have power to issue writs of certiorari to any officer or board of officers, or any inferior tribunal, of their respective counties, to correct any erroneous or void proceedings, and to hear and determine the same,” etc.

That affidavits may be read on such applications, and evidence de hors the record may be introduced by either party oii the hearing. The record of any such inferior judicial tribunal shall be conclusive as far as the same may extend, but the acts of any executive officer, or board of such, shall only be prima facie evidence of their regularity,”' etc. Gantt's Digest, secs. 1196, 1197.

In what cases, and, to what extent, this statute enlarges the office of the writ of certiorari, or modifies the former practice, we have had no occasion heretofore to decide.

If the appellee had no right in this case, under the above statute, to file an answer setting up matters de hors the record, the appellant should have moved to strike it out, instead of demurring to it.

Without attempting to construe the statute in this case, we shall treat the facts set out in the answer, in support of the tax ordinance, as admitted by the demurrer, and give the appellee the benefit of them.

The second item in the levy made by the ordinance is : “For outstanding certificates issued to the Memphis and IAttle Rock Railroad, three mills.”

The answer avers in a general way that the city had authority to issue these certificates, and to levy a tax to pay them. When they were issued, or under what law, is not stated.

In Exhibit No. 2 to the answer is a statement of the assessed value of the personal and real property of the city, subject to taxation, for the year 1875, and the debts of the city, in which the following items appear:

Amount of Memphis and Little Rock Railroad certificates, due January 1st, 1876 :

Principal..............................$28,167 61
Interest................................ 11,411 56
Total....................$39,579 17

No doubt from the amount of interest put down as having* accrued upon these certificates to the, 1st of January, 1876, they were issued before the adoption of the present constitution, and perhaps after the passage of the general act of incorporation of 9th of April, 1869, wliich limited annual assessments for the payment of debts existing at the time of making the levy to five mills on the dollar. Gantt’s Digest, sec. 3295.

What these certificates were issued for, the city has not thought proper to disclose in her answer, nor is it pretended that they were issued under any special act authorizing the city to issue them, and to levy a tax to pay them, so that the power to tax became part of the contract. On the contrary, it was conceded by counsel for the city, in the argument, that these certificates stand on no higher footing than other general debts of the city existing at the time of the adoption of the present constitution; at least, that no facts were disclosed in this case to put them on a higher footing.

' The third item in the levy made by the ordinance, is: “ For bills payable for United States eurreney borrowed — two mills.”

The answer does not state, nor does the ordinance on its face show, when these “ bills payable ” were made by the city, or when or for what purpose the currency was borrowed, The answer as to the indebtedness for which the two mills levy was made is as indefinite as it is to the certificates just disposed of.

In Exhibit No. 2, to the answer, the following statement appears :

Amount due for bills payable, to-wit:
Due Dec. 3, 1875, Chas. Jacobs, Jr., ...$7,370 00 Due Ap. 18, 1876, Goodyear R. & Co., 2,571 52 Due March 20,1876,Miller&Penzel... 617 78
Due July 1, 1876, ¥m. Emery........... 550 00
Due Atag. 6, 1876, Silsby Mfg Co.,..... 404 83
--$11,514 13

The present constitution was proclaimed adopted October 30, 1874. There is nothing in the body of the answer, or in the exhibit, showing that any item of this indebtedness existed at the time of the adoption of the constitution.

The assessed value of the real and personal property of the city, subject to taxation for the year 1875, is stated in Exhibit No. 2 to be $6,658,530, and a levy of two mills to the dollar on that sum will produce the gross amount of $13,317.00, and perhaps a net sum sufficient to pay the total amount of the “ bills payable as footed up in the statement copied above.

It would, perhaps, have been better and safer for the city in making such a levy, to have shown on the face of the ordinance making the levy, that these bills payable ” were debts existing at the time of the adoption of the present constitution, in order that her authority to levy the two mills to pay them might be apparent. But it is remarkable, that though she availed herself of the advantage of an answer, in which she attempted to set up matters de hors the face of the ordinance, in support of the levy, she failed to show that all, or any of these debts in fact, existed at the time of the adoption of the constitution. Her schedule of the debts, as above copied, is as defective as the allegations of the answer, as to the time when these debts were contracted.

How far the courts may indulge in presumptions to uphold tax levies made by councils of municipal corporations, acting under delegated, and limited authority, we do not find it necessary to decide in this case.

The fourth and last item in the levy made by the ordinance-is “For United States judgments, jive mills.”

In relation to this item, the answer states that this five mills levy was made for the purpose of paying United States judgments against said city, one of which was in favor of the Peoples Insurance Company, amounting to over eight thousand dollars, and the other judgment of the United States Court, was as follows:

The answer then proceeds to set out facts in relation to the second judgment referred to, but says nothing further as to the first.

When, and on what the judgment in favor of the Peoples Insnrance Company was rendered, does not appear from the answer.

The material facts in relation to the other judgment, as disclosed by the answer, and exhibits, are as follows:

The answer alleges, in substance, that on the 10th day of April, 1874, John I. Bagley recovered a judgment in the Circuit Court of the United States for the Eastern District of Arkansas against the City of Little Rock for the sum of $41,422.90 debt, and $3,424.22 damages, with interest on debt and damages at ten per cent, per annum from the date of the judgment until paid.

That on the 19th of April, 1875, the-court awarded a peremptory mandamus in favor of the plaintiff in the judgment, to the City Council, commanding it to proceed, on the-day of October, 1875, etc., to levy a tax, payable only in United States currency, on all the taxable property in said city to be paid during the current fiscal year, sufficient to pay the sum $23,595.01, and costs, etc.

That said judgment was founded on a contract between the City and the assignors of Bagley, payable in United States currency, and that said Council was bound, outside of its ordinary powers of taxation, to levy a sufficient tax to pay the indebtedness that had acerued on the contract, and made the levy of five mills in obedience to the mandate of the Circuit Court of the United States, etc.

When and for what the contract between the City and Bagley’s assignors, on which the judgment was rendered, was made, is not disclosed in the body of the answer. If the City Council was bound and had the power to levy a sufficient tax, “outside” of its ordinary taxing power, to pay the whole debt, as alleged in the answer, it did not think proper to refer to the source of such “outside” taxing power, nor to indicate why it was that the Federal Court only commanded it to levy a part of Bagley’s judgment instead of the whole.

But the Council made a transcript- of the judgment and the order for the mandamus exhibits to the answer, and from them we are enabled to get some additional facts.

From the transcript of the judgment it appears that Bagley was the assignee of J. B. 'Walton & Co., to whom the City was indebted on the 8th of August, 1873, in the sum of $51,422.90, and after allowing the City a credit for $10,000 judgment was rendered, by her consent, in favor of Bagley for balance of debt and interest at ten per cent, from the 8th of August, 1873, making the sums above stated from the body of the answer.

What answer the City made to the alternative writ of mandamus does not appear.

From the order of the court awarding the peremptory mandamus, it appears that Bagley, the plaintiff in the judgment, demurred to the answer, and the court sustained the application for a peremptory writ “so far as relates to the sum of $23,595.01, being the sum of money collected by the said defendant from the owners of adjacent property to the improvement in the pleadings mentioned, under the special tax levied by said defendant for that purpose.”

It further appears from the recitals in the order for the peremptory writ, that J. B. Walton & Co., the assignors of Bagley, were contractors with the city for the building of a wooden pavement, commonly known as the Richardson pavement, on Markham street, in said city, and that the judgment in favor of Bagley (above stated) was rendered against the city for the amount due upon the contract, and that the City Council had levied a tax, under a provision of the charter of the city, upon the property adjacent to said improvement, and for the alleged purpose of paying the amount due for said pavement, and had collected from such adjacent property, or the owners thereof, by means of such levy, the said sum of $23,595.01, and had neglected and refused to pay the same over to Bagley.

No doubt the city made-the contract with J. B. Walton & Co. to pave Markham street, under a section of the general act of incorporation of 9th April, 1869, which provides that they (cities, etc.) shall have power to lay off, open, widen, straignten, extend, establish, to improve, and keep in order and repair, and to light, streets, alleys, etc., etc., and to assess and collect a charge on the owner or owners of any lot or land, or on lots or lands, through or by which a street, alley or public highway shall pass, for the purpose of defraying the expenses of constructing, improving, repairing or lighting such street, alley or public highway, to be in proportion, either to the feet front of lot or land abutting on such street, alley or highway, or to the value of such lot or land as assessed for taxation under the general law of the State, as such municipal corporation may, in each case, determine.” Gantt’s Digest, sec. 3228.

It appears that Bagley asked for a mandamus to compel the city to levy a tax to pay the whole amount of his judgment, but clearly the court did not, and could not order a levy to pay the judgment under the provision of the charter above copied, because the city had already levied such tax to pay the paving debt.

But it seems that the city had collected, by means of such special tax, the sum of $23,595.01, which she had failed to pay-over to Bagley on his judgment.

Ve can hardly suppose that the city had the sum so collected on hand and in her treasury at the time the mandamus to raise-the same amount by general tax was awarded, for if that had. been made to appear to the court, it is but reasonable to suppose that the court would have taken some proper step to compel the city to pay the money over, instead of ordering the city to collect the money again by a general levy.

We regret that the city has not thought proper to disclose in her answer in this case, fairly and fully, all the facts upon which the Federal Court ordered her, by mandamus, to collect again,, by a general tax, the sum which she had already collected by a special tax upon the property abutting the Markham street improvement.

We must suppose, however, in justice to the Federal Court, that it was made to appear to it that the sum so collected was not on hand, in the city treasury, but had been in some way administered or appropriated in the affairs of the city for the benefit of' the citizens and tax payers generally, otherwise the court would not have ordered the city, by mandamus, to make a general levy to reimburse the amount.

We do not see how the sum so collected, and appropriated to the general purposes of the city, could stand upon any higher-footing than a debt existing against the city at the time of the adoption of the present constitution.

The peremptory mandamus to compel the city to levy a general tax to pay the $23,595.01, was awarded on the 19th April,, 1875. Before then the present constitution had gone into force,, and the revenue act of March 5th, 1875, had been passed, by both of which the city was limited to a tax of five mills, in anyone year, to pay debts existing at the time of the adoption of the constitution.

There was no special tax act that could have entered into and formed part of the paving contract but the section of the general act of incorporation copied above, under which the city had made a levy before the mandamus was awarded.

The general act of incorporation, which was passed before the paving contract was made, limited the taxing power of the city to pay debts, to five mills annually, and the constitution did not abridge this power as to debts existing at the time of its adoption.

The Circuit Court of the United States has no taxing powers and of course could impart none to the city of Little Rock. It can exercise no taxing power except that which it derives from the Constitution and laws of the State. Grant that the City Council acted in bad faith in not paying over to Bagley the amount collected under the special paving tax, and in appropriating it to other purposes (if such was the case) that bad faith did not increase its taxing power, nor authorize the Federal Court to compel it to exercise a taxing power which it had not under the Constitution and laws of the State. Nor will we suppose that the Federal Court exercised any arbitrary power in the matter, or awarded a mandamus against the City' Council to compel it to levy a tax which it had not plainly the power, under the Constitution and laws of the State, to levy, and which it was not in duty bound to levy, for such would be an- abuse of the writ of mandamus.

In Supervisors v. United States, 18 Wallace, 77, Mr. Justice Strong, delivering the opinion of the Supreme Court of the United States, said: “It is very plain that a mandamus will not be awarded to compel county officers of a State to do any act which they are not authorized to do by the laws of the State from which they derive their powers. Such officers are the creatures of the statute law, brought into existence for public purposes, and having no authority beyond that conferred upon them by the author of their being. And it may be observed that the office of a writ of mandamus is not to create duties, but to compel the discharge of those already existing.”

The Supreme Court of the United States has in no case upheld the power of the Circuit Courts -to award a mandamus to municipal officers of a State to levy a tax to pay a judgment, unless there was a law of the State authorizing the levy of the tax.

Commissioners of Knox County v. Aspinwall, 24 How., 376; Hoffman v. City of Quincy, 4 Wallace, 535; City of Galena v. Amy, 5 ib., 705; Riggs v. Johnson County, 6 Wallace, 166; United States v. Council of Keokuk, ib., 514; Morgan v. Town Clerk, 7 Wallace, 612; Supervisors v. Rogers, ib., 175; Butz v. City of Muscatine, 8 Wallace, 578; Heine v. Levee Commissioners, 19 Wallace, 655; Rees v. City Watertown, ib., 107; Supervisors v. United States, 18 Wal., 71.

Judge Cooley says: The Federal courts have no general powers to issue the writ of mandamus to compel the performance of duties under the State tax laws. That belongs to the province of the State courts. It has, nevertheless, been held in many cases that they might issue the writ in order to compel municipalities to levy taxes for the satisfaction of judgments which have been rendered in such courts, and which the local authorities neglected or refused to provide for by taxation, though clothed by law with full authority so to do.” Cooley on Taxation, 522.

We regret that’the learned judges who awarded the mandamus in question did not leave a written opinion, showing under what statute they ordered the city to levy the tax to pay a part of Bagley’s judgment. We have been able .to find n© law under which the mandamus could have been awarded, except that authorizing the city to levy as much as five mills to pay debts existing at the time of the adoption of the present Constitution, and the counsel for the city, though interrogated during the oral argument, were able to refer us to no other.

When the city exercised its taxing power, under the five mills act, in obedience to the mandate of the Federal court, it exhausted that taxing power just to the same extent that it would have done had it exercised the power voluntarily and without the mandate. In the one case it does what is assumed to be its legal duty, under compulsion, and in the other it discharges the same legal duty, and exercises the same powers, of its own volition.

We do not appreciate the legal logic of the counsel for the city when they tell us that the City Council levied five mills to pay on the Federal judgment, because the Federal court ordered it to do so, and levied five more mills to pay other debts because it had the power by law to make the levy. We will not assume that the Federal court acted arbitrarily, and ordered the City Council to make a levy which the law did not authorize it to make.

The city levied, for the year 1875, five mills for general purposes, and, in effect, ten mills to pay debts, making fifteen mills, and amounting, upon the assessed value of the taxable property in the city, to the large sum of $99,877.95.

Though the fourth item of the levy is to pay United States judgments,” the answer claims that the five mills was levied under the mandate of the Federal court, awarded on Bagiev’s judgment, and the counsel for the city say that this levy will not yield a net sum larger than the amount ordered by the mandamus to be levied for Bagley. Five mills upon the assessed value of the taxable property of the eity (as stated in Exhibit No. 2 to the answer) will produce the gross sum of $33,292.65.

The amount ordered levied for Bagley is $23,595.01 and costs. Whether, after deducting the expense of collection, delinquencies, etc., there will be more than enough left to pay Bagley, we do not know.

The time limited by law for the payment of the taxes of 1875 will expire in a few days, and there is not time for the city to make a new levy if the whole levy were quashed.

The authority of the city to levy the fivé mills “ for general purposes ” is not questioned. The excess of the levy is in the items to pay debts, amounting to ten mills.

The city claims to have levied five mills in obedience to the mandate of the Federal court, and we have every disposition to respect that mandate, and will attempt to interpose no obstruction to its being obeyed by the City Council.

It follows that the two remaining items of the levy — the one for outstanding certificates issued to the Memphis and Little Rock Railroad, three mills,” and the other “ for bills payable for United States currency borrowed, two mills,” must be • quashed.

This gives to the Federal court’s judgment creditor, armed with the mandamus, the lion’s share of the levy of 1875, to pay debts of the city, and postpones other creditors whose claims may be fully as meritorious as the Richardson pavement debt, until the City Council can legally make another annual levy to pay debts existing at the time of the adoption of the present Constitution.

This may seem unjust, but we cannot help it. We cannot undertake to say that the Circuit Court of the United States had not jurisdiction to award the mandamus, nor that in exercising its jurisdiction it committed an error, for this court has no appellate jurisdiction over that court. The city had the right to appeal from its judgment awarding the mandamus to the Supreme Court of the United States, and failing to do this, no complaint it can make to us of the effect of the judgment awarding the writ can be made of any avail.

Perhaps if the city had shown in response to the alternative writ, that she owed other matured debts, existing at the time of the adoption of the Constitution, equally as meritorious as Bagley's ; that her power to pay such debts under the laws of the State was limited to five mills annually, and that she could not pay them all by one levy, the court having a discretionary power in the matter of awarding a mandamus, might have so modified its mandate as to leave her a margin within her taxing power to have levied for the benefit of other ‘creditors as well as Bagley, and to repeat the process from year to year until all were paid.

But, be this as it may, we cannot permit the taxpayers of the city to be burthened by a levy unwarranted by the Constitution and laws of the State.

The judgment of the Circuit Court must be reversed, and a judgment entered here, quashing the two items in the levy indicated above, and an order made to restrain the appellee, Rottaken, the sheriff, from collecting those two items, and the judgment certified to the court below.