author: Mr. Justice Eaxrohild

text:
    State use Higginbotham’s ad. vs. Watts et al.
    If; is a rule, in the construction of statutes, that an existing statute shall not be repealed, by a subsequent enactment, unless the repeal be expressed in words of revocation, or unless there is such a manifest repugnance between the statutes that both cannot be in force: and also, that all statutes upon the same subject matter shall be so construed that all shall continue in force, if that construction is possible.
    There is no such repugnance between the 'Uh section, of chapter 120, Rev. Btat., [sec. 8, eh. 6, Gould’s Dig.] and the act of 18th December, 1840, subsequently passed, as to require the court to hold, under the principles govexming the construction of statutes, that the foi'mer was repealed by the latter.
    The court conclude, with much hesitation that, notwithstanding the execution of a special administration bond in each estate taken by the public administrator’, the “ sheriff and his seeux-ities shall be responsible on his official bond, for misconduct in dischai-ging his duties as public administrator.”
    The office of public administrator continues with the person to whom it was committed, unfess a I’egular administrator be appointed, and the responsibility of the secui’ities in the bond existing when thb possession of the estate was taken, continues until the public administrator shall be dischai’ged, whether he be reelected and give a new bond, or another pei’son be elected sheriff.
    The authoi’ity of the Probate Court to make an oi’der requiring the sheriff to take charge of the estate of a deceased person, is not to be questioned: nor need such order state the reason that moved the court to make it.
    If the bi’each in a declaration upon the official bond of the sheriff, as public administrator, chai'ge that he did not deliver bonds, choses in action and assets, belonging to the estate, and in his hand, to his successor-, it is sufficiexxt — ;sueh successor is not an administrator de bonis non.

      Appeal from Dallas Circuit Court.

    Hon. John C. Murray, Circuit Judge.
    Hutchinson for appellant.
    Gallagher, for appellee.
   Mr. Justice Eaxrohild

delivered the opinion of the Court.

At the January term, 1852, of the Probate Court of Dallas county, Hillory M. Bouldin, sheriff of the county, was ordered by the court to take possession of the goods and effects of Sanford Higginbotham, dec’d, and as public administrator to administer the estate with the will annexed. In accordance therewith Bouldin proceeded with the administration of the estate, which amounted, according to the averment of the declaration, to nearly sixteen thousand dollars, until at the January term, 1855, his authority to act was annulled by the Probate Court. At the same time Bouldin was found to be in arrear to the estate in a sum which he was ordered to pay to his successor in the administration, and for his failure to comply with the order, this suit was brought against two of his securities upon the official bond that was in force when, under the direction of the court, he began the administration of the estate. This bond was given in October, 1850, and was a common sheriff’s official bond to secure the performance of the duties of the office by Bouldin for two years, or for the term of office as prescribed by law.

On the 15th of January, 1852, Bouldin executed a bond for the faithful performance of the administration of the estate, according to the will annexed of the deceased, and according to law, which bond was given under the 3d section, of chap. 6, of English's Digest, and the third plea of the defendants raises the question, that the acceptance of this bond by the court superseded all subsequent recourse upon the bond sued on, the ordinary bond given by Bouldin, for the proper exercise of his duties as sheriff of Dallas county.

The arguments upon both sides of the question strongly commend themselves to our consideration. The point is an important one, and can be decided only upon view of the course of legislation upon the subject, and of the legal inferences that should be drawn from the legislation.

By the first code of our state law it was enacted as follows:

“ Sec. 7. Every sheriff and his securities, shall be responsible, “ on his official bond, for misconduct in discharging his duties of “ public administrator.”
“ Seo. 8. "When any estate shall amount to three thousand dol- “ lars and upwards, the Probate Court shall require the public “ administrator to give security as in other cases of administra- “ tion. Rev. 8tat. 649.”

The law; stood thus only till the next session of the General Assembly, when the act of 18th December, 1840, repealed the eigthth section above quoted, and enacted that when any property should come into the hands of a public administrator, he should enter into such bond and security as should by the existing law be required in ordinary administrations. Acts of 3d session, 39.. From this repealing act it is to be noticed that the attention of the General Assembly was specially directed to ch. 120, of the Rev. Statutes, that the 8th section was repealed by express enactment, that the 7th section was not mentioned, and was thus left in full force unless it was repealed by implication.

It is a cardinal principal of statutory construction that an existing statute shall not be repealed by a subsequent enactment, unless the repeal be expressed in words of revocation, or unless there is such a manifest repugnance between the statutes that both cannot be in force. Sedgwick on Statutory and Constitutional Lam, 121, 123, 126 ; Smith’s Comm. S. 760; Hamilton vs. Buxton, 1 Eng. 27.

To make a shapely system out of the two sections of the Revised Statutes, it would seem fair to infer the intention of the legislature to have been that the public administration of estates less in value than three thousand dollars, should be secured by the official bond of the sheriff, while the particular bond required in all other cases should be the security for the administration of the estate in which it was given. Whence it would also follow, since the act of 1840, that the public administration of every estate would be secured by its individual bond. This would conform to the rule of construction that discourages the liability of a security to be extended beyond its terms.

And an additional reason for this construction is afforded by the causes and occasions of each of the two bonds of Eouldin under consideration; one relating to his election to the office of sheriff and providing for the performance of its common ministerial duties, being only for ten thousand dollars, less, than the assets of the estate of Higginbotham, and covering many matters, all of which are entirely distinct from the administration of art estate; while the other bond was given because Bouldin had been directed by the Probate Court to take control of an estate to save it from being wasted or' purloined, is confined solely to the protection of the estate, is for a sum with securities deemed sufficient by the Probate Court, under .whose direction it was taken and by whose judgment it was approved. '

If it was a question of feeling or of fitness, courts, with individuals, might sympathise with the defence which would restrict the liabilities of the securities of the first bond to its literal fulfillment. Or, if this were a proceeding in equity, the case might be considered, as between the two bonds, whether the second bond should be enforced with this, or whether it should not constitute the primary fund for the satisfaction of the present cause of action. But in this suit we can only pronounce upon the legal liability of the defendants as securities to the official bond of Bouldin; and with the view we take of our statutes, we cannot sustain the third plea- without holding that the act of 1840 was an implied repeal of the 7th section above quoted, which is included in English’s and Gould’s Digests as sec. 8, of chcup. 6, of both books, each continuing as part of the law of the state. This we cannot hold, as the law seems to us to be well settled against favoring a repeal of a statute by implication, nor could we do so independent of this principle, for the act of 1840 is no more a repeal of the 7th section mentioned, than the section immediately following was an abrogation of it as to all estates that amount to three thousand dollars; One construction would follow the other, which would oppose another sound rule of construction, that all statutes upon the same subject matter shall be so construed as that all shall continue in force if that construction be possible. Sedgwick, ub. supra 247 ; Smith's Com. s. s. 644, 647, 757; Kelly vs. McGuire, 15 Ark. 583; Wilson vs. Biscoe, 6 Eng. 47; McFarland vs. The State Bank, 4 Ark. 416.

When several remedies are provided, they are to accumulate and exist together, not destroy each other. ■ /

Wethereforecdnclu.de, but with much hesitation, thatv notwithstanding the execution of a special administration bond in each estate taken by the public administrator, the “ sheriff and his securities shall be responsible on his official bond, for misconduct in discharging his duties of public administrator.”

The securities must be taken to have acted with a view of their responsibilities as imposed by the letter of this law, as well as by the conditions written in the bond, and if entitled to commiseration for a more extensive responsibility than they imagined, they, perhaps, can have it in circles prone to the exercise of sympathy, but that is not to be expected in a court of law.

"We fully realize the hardship of the condition of the defendants, as compared with the concurrent or primary liability of the makers of the public administration bond, but whatever relief awaits them, must be sought in another tribunal.

As the replication to the second plea is undoubtedly bad, we shall consider it and the demurrer to it as simply a demurrer to the plea. •

The plea is, that in the election of August, 1852, Bouldin was elected sheriff; that in October, 1852, he gave a new bond, ánd it thence infers that the second official bond released the parties to the first bond from any responsibility for the acts of Bouldin as public administrator, after the execution of the second bond.

To relieve the case from complication, let the instance be put of another person than Bouldin, having been the successor of his first term of office; would the sheriff that was a stranger to Bouldin’s administration be accountable for anything done in the administration? The question carries with it its own answer, but it also refutes the conclusion of the plea. If Bouldin’s second official bond should take the place of the first, it would be because his administration was attached to his second term of office, and the same result would have happened if any other person than Bouldin had been elected sheriff in 1852. "We do not think that a public administration once begun, is an appendage to the sheriff’s office, but that the sheriff who undertakes the administration may complete it, unless letters testamentary, or of administration be regularly granted upon the estate. This provision for the close of the public administration seems to exclude the idea of its transfer with the office of sheriff, and we hold that Bouldin continued to be the public administrator of Higginbotham’s estate till he was removed, in October, 1855, after his second sheriff’s term had expired, and that his first official bond remained as a security for his administration till four years from his misconduct as public administrator, and that the misconduct for which the defendants were responsible, was his noncompliance with the order of the probate court, made at its October term, 1855, directing him to pay the balance found against him to his successor in the administration.

The same positions, both as to the continuance of the office of public administrator with the person to whom, as sheriff, it was committed, and as to the responsibility of the bond existing when the possession of the estate was taken, are fully sustained by cases that have arisen upon a similar statute in virginia. Dabney vs. Smith, 5 Leigh 19; Douglass vs. Stump, ib. 395, 398 ; Tyler vs. Nelson, 14 Gratt. 221.

These cases liken the condition of the public administrator to that of a sheriff, whose term of office has expired, but who completes his unfinished business, and for whose proper discharge his securities are responsible. This rule of practice has become statute law of this state. Sec. 65, ch. 67, Eng. Dig.

And in Kentucky, where the statute, in certain cases, authorised the county court to commit an estate to the possession of the sheriff, who disposed of it under the direction of the court, and as its agent only, as held by the courts, although no provision was contained in the statute that his bond should protect the estate, the Court of Appeals held that it could not be intended that the sheriff was to have charge of the estate without security, and that as no other was provided, his official bond was his security, on which his sureties would be liable with him as far as he was officially responsible. Williams vs. Collins, 1 B. M. 60.

And in the late condensation of the statute law of Kentucky, the revision extends the law to make it conform to the exposition of the Yirginia statute, as given in the decisions we have cited. Ky. Rev. Stat. of 1852, 333, s. 18.

In Alabama, a sheriff’s administration by statute is attached to the office. Governor vs. Gantt, 1 Stew. 390. Hence its decisions might not accord with those of Yirginia.

"We have examined the cases to which we have been referred by the appellees, that fix the liability of sheriffs, administrators and guardians between different bonds, and other decisions to which the cited cases referred. These cases are relied on by the appellees to sustain their second plea, but we cannot see that they do, or that they clash with the Yirginia cases, and with our construction of our statute. The principle pervading them is, that the liability should rest upon the bonds in force when the default of the principal is committed, and that is the principle upon which we hold the first official bond of Bouldin to cover the whole term of his public administration. Phillips vs. Brazeal, 14, Ala. 746; Dumas vs. Patterson, 9 Ala. 484; Governor vs. Robbins, 7 Ala. 79; Sherrill vs. Goodrum, 3 Hump. 119; The People vs. Ten Eyck, 13 Wend. 448, and Sebastian vs. Bryan, 21 Ark. 447, are examples of this class of cases. We do not see how they can assist the second plea, for no default of Bouldin, as public administrator, occurred during his second term of the sheriff’s office.

Another class of cases represented by The Commonwealth vs. Fairfax, 4 Hen. & Mun. 208; Raney vs. The Governor, 4 Black. 2; and Thomas w. Summey, 1 Jones Law R. 554, refuse to extend the liability of sureties beyond the term of the principal’s office ; and we should have followed those cases if we had considered Bonldin’s term of office had expired till October, 1855, or before his default alleged in the declaration was committed. The authority of these cases is not applicable to any of the pleas ot the appellees, but were doubtless cited to show the fault of the replication to the second plea, which, on inspection, we hold to be bad.

For the reasons herein given, we think the court erred in sustaining the demurrer to the replication to the second plea, because, although the replication was bad, the’ court should have extended the demurrer back to the plea and quashed it; and that the court erred in overruling the demurrer to the third plea.

No other questions than those arising upon the two pleas disposed of are made by the appellants, but a8 the case is to go back upon its reversal, some minor points made by the appellees may be noticed to prevent future embarrassment.

No question arises upon the record on which; the argument concerning the plea of limitation is properly founded, but an incidental remark in this opinion has disposed of that point.

The authority of the probate court to make the order requiring the sheriff to take charge of the estate of Higginbotham is not to be questioned. It is a court of superior and exclusive jurisdiction over the subject of administration, and its acts are presumed to be lawful. It was not necessary for the direction to Bouldin to state the reason that moved the court to make the order. State vs. Stroope, 22 Ark.

The first and last breaches assigned in the declaration charge that Bouldin did not deliver bonds, choses in action, and assets belonging to the estate of Higginbotham, etc., in his hand, to his successor in office, as he was ordered to do by the probate court. The objection, therefore, that an administrator de bonis non cannot sue his predecessor except for what remains in his hands unadministered, does not destroy the declaration, and the objection is not applicable against the successor of a public administrator, for he is not an administrator de bonis non, and the law requires the public administrator to pay to his successor the money, as well as to deliver the property belonging to the estate. Sec. 5, ch. 6, Eng. Dig.

Other defects are alleged against the declaration, but need not be noticed after the appellees have pleaded to it, and espedaily after the trial of the case, and when it is here only for consideraton of the points suggested by the unsuccessful party in the court below.

The judgment is reversed.


source: Caselaw Access Project

author: Mr. Justice Fairchild

license: Public Domain

text:
    Brodie vs. Moseby.
    On the 4th of June, 1851, the defendant obtained á levee contract in part upon his own land, with the intention of securing a preferred right, under the 4th section of the act of 11th of January, 1851, to purchase the lands in the rear — made application for the purchase in payment of his levee work in 1862, obtained the acceptance of his work after, the act of 12th January, 1863, and was paid in levee scrip, with which he made application to enter the lands, which was refused because they were not then confirmed — in May, 1866, after the confirmation, he entered the land, without its having been offered for sale, with his levee scrip, and upon a patent being issued to the state, obtained the deed of the governor. On the 9th of August, 1856, immediately after the lands, embraced in the same confirmation as those in controversy, were advertised and offered for sale — though the land agent did not offer these lands, having previously permitted their entry by the defendant — the com» plainant made application to enter the lands at private sale, which being refused, he filed his bill to divest the defendant of the legal title, and vest it in himself: Held, that the entry of the lands by the defendant was within the equity of the statute — if irregular, it was ratified by the deed of the governor — that his title was a perfect, legal]title, based on a strong equitable foundation, and could not be affected by the claim of the complainant, in which there is no equity.

      Appeal from Jefferson Circuit Court in Chancery ¡

    Hon, John C. Murray, Circuit Judge,

      Hempstead, for the appellant.
    Conceding, for argument sake, that upon the completion of the whole or part of the work under his contract, the defendant would have had a right to select land in kind, and might have selected rear lands — if you please, the lands in controversy — in payment, he must have furnished the numbers to the commissioners, and obtained certificates; yet he had an option, and chose to receive compensation in scrip. And his election being thus made and determined, he never could, afterwards, set up any “preference right” to rear or any other lands; but only had the same general right to purchase that every person had who was never a levee contractor at all. He had no more right to buy than Brodie, and neither could lawfully purchase at private entry before the public sale was closed.
    This construction of the law has received the deliberate approbation of this court in MoGehee vs. Mathis, MSS. Jcmuary Term, 1860: “According to the plain provisions of the act of “ 1851, the contractor might,” said the court, “take land in kind “ or take land scrip. It was left to his choice to do either. * “ * * * To take land in kind was one thing, and to “ take scrip was quite another. If the contractor took land, he “ became a purchaser, and acquired the exemption [from tax.] “ But if Be took scrip, he did not become a purchaser, and did “ not acquire the exemption.”
    The reasoning of the court in that ease must be decisive of this question, for surely after the election of Moseby to take scrip, any right or preference he might have had touching land, was at an end; unless this court should be prepared to say that he was entitled to scrip and land too.
    Brodie having applied to purchase the land, and made a tender of the amount required for that purpose, after the public sale, did everything which he could do to vest a right in himself to the land, \I/ytle vs. State of Arlca/nsas, 9 Mow. S. G. R. 333,] and it became vested from that time, and must prevail, unless it shall be found that the title of Moseby is paramount.
    .Á'nd Brodie’s right to apply to a court of equity by bill to divest the legal title obtained by Moseby, and have it vested in himself, can admit of no question, nor do I understand it to be denied. 2 Op. and Inst.,p. 4, Wo. 6; Wo. 15, p. 16.
    The present Chief Justice of the Supreme Court of the United States, (Judge Taney,) when secretary of the treasury, constantly announced and acted on the doctrine that persons claiming rights to land, might offer to perform what was necessary to assert their titles, and if they had legal rights, the refusal of the officers to allow an entry or receive the purchase money, will not debar them from asserting their claims in a court of justice. 2 Op. Wo. 534, p. 588; Pintard vs. Goodloe, 1 Kemp. 502; 8. G. 12 Mow. 8. G. B. 24; Wynn vs. Garland, 16 Ark. 440; Wynn vs. Morris, id. 414; Barna/rd’s hei/rs vs. Ashley’s heirs, 18 Mow. 8. G. Bep. 43; Gunnvngham vs'. Ashley, lb Mow. 8. G. Bep. 377; Moyer vs. MeOullough, 1 Smith’s (Ind.) B. 211; Kester vs. Kimbrough, 12 8. de M. 669.
    If a patent is issued to one not entitled to it, he is trustee of him who is entitled (Stark vs. Mather, Walker’s {Miss.) B. 181,) and in all such cases, the party holds the naked legal title for the benefit of the person legally entitled thereto.
    Watkins & Gallagher, for the appellee.
    The points in this case on the part of Moseby, are :
    I. That he was a settler, owner of land fronting on levee, took the contract and built the levee, in order to secure the back lands, and acquired a pre-emptive right to them, within the object and spirit and meaning of the acts of January, 1851.
    II. Before the levee was completed, surveyed and accepted, the system as established by the acts of January, 1851, was changed to the issuance of scrip, and all lands had to be sold for that (dollar) scrip or money; and no provision was made by the new system for contractors under the old law in respect of their taking the back lands under the pre-emptive right granted by the said act of January, 1851; and the land agents were not empowered to sell or allow to be located any lands not confirmed.

      Moseby had no alternative but to take scrip, and wait for confirmation ; but had filed in 1852, (before the enactment of the laws changing the system,) his application to the commissioners, for this specific land in payment for that levee work, and at the earliest opportunity, paid for the land with the identical scrip issued to him for that levee work. Thus he comes within all the equities of the law.
    III. Brodie has no equities whatever, but his claim is so inequitable, and so unjust to Moseby, that he cannot succeed, unless his claim be sustained st/rictissimi jwris.

    IV. The State has received and holds Moseby’s labor and money in payment for this land; and has conveyed to him all the title she had to it. Tie had all the equities before. The State is no party here, and does not complain.
    V. Brodie has no title — and unless he has a superior right vested under law, i. e. one which he could enforcg as against the State, so as to recover a title, supposing the State could be sued, he has no pretence for assailing the title or right of any grantee of the State, even if illegal or bad, because nothing would enure to his benefit thereby, and no party could complain but the State.
    Brodie’s only pretence of right, is by virtue of his application to purchase ; and this pretence of right is based solely on the posi' tion that the admertisement is a sufficient offering under the law ; and though, as in this case, there was no actual offering on the day of sale, that after the sale day, the lands were subject to purchase on application.
   Mr. Justice Fairchild

delivered the opinion of the Court.

On the 4th June, 1851, Moseby, the defendant to the bill filed in this case, and appellee in this court, entered into obligation with Creed Taylor, a swamp land commissioner,' to make a levee, on levee section thirty-eight, in Jefferson county, on the north side of the Arkansas river, as the same had been located by the commissioner. The levee was to be made upon lands owned by Moseby, though extending upon adjacent lands, and in their rear and adjacent to them, are the sonth-west quarter of section twelve and section thirteen, in township, three south, of range ten west, which are the lands in controversy. Moseby alleges that his object in making the contract to do the levee work was to secure a preference right to purchase these lands, having been informed that, as a levee contractor, he would have such right. And this expectation was a reasonable one, under the 4th section of the act of 11th January, 1851, relating to the subject of reclaiming the swamp lands donated to the State by the United. States. Under the act referred to, and that of the 6th of January, 1851, the one being supplementary to the other, Moseby could have taken his pay, for the labor done under his contract, in the rear and adjacent lands t© his own, but he did not finish the work, or did not procure it to be accepted and estimated, till after the act of 12th of January, 1853, was passed, by which the system of payment for levee work was changed, whereby accounts therefor were to be audited by the commissioners, presented to the auditor, who was to issue warrants for the amounts of the accounts, which the treasurer was to take up with money, derived from the sale of swamp lands, or with scrip, which was to be receivable in payment for swamp lands at public sale, or private entry. Act 12th January, 1853, amendatory of laws regulating lemded interests, section 27. Under this last law, Moseby obtained scrip for his levee work, it being issued in June and July, 1854, soon after his accounts were closed with the swamp land commissioners.

Under the law as enacted in 1851, the levee contractor could receive in payment for his work particular lands that had been reclaimed, or scrip representing quarter section tracts of land, which might be located upon any of the unsettled portions of swamp lands. But under the law, as modified by subsequent acts, the land scrip was made to represent dollars and cents, and this was the kind of scrip that was issued by the treasurer of the State, the-scrip representing land in quarter sections being issued by the swamp land commissioners.

Moseby contends that in taking scrip for his levee work, he did not intend to relinquish his right to be the preferred purchaser of the lands in controversy, that he only took the scrip, as a mode of settlement of his work, intending to apply it to the purchase of the lands, for which he had always intended his levee contract to be available, and because the law obliged him to do so; such being the legal effect of the act of 12th January, 1853, or being so considered and acted upon by the officers who had the administration of the swamp land laws, by whose opinion and advice Moseby represents himself to have been guided.

It must be conceded that Moseby has acted throughout his whole course of conduct, with relation to these lands, consistently with his avowed object to -become their purchaser, and their preferred purchaser, under the act of 11th January, 1851. When he obtained his contract in June, 1851, to make a levee, it must have been soon after the work was ready for contract : he took that section of the levee line that was in front of these lands: he did it, as he says, with the express intention of saving these lands for an addition to his plantation, which he needed; under a custom observed by the sub-commissioner of his district, he made and filed his application in June, 1852, for the entry of these lands, except eighty acres, in payment of his work, to be done under the particular contract for levee section No. 38 — and procured the lands to be marked on the plats in the office, as having been applied for by him; in June and July, 1854, as soon as he made his settlement with the commissioners, he obtained his scrip, and, with the view of putting it on the land; in September, 185J, he claimed, to Carroll, the land agent, to whom had been committed the sale of the lands, the right to enter them as levee contractor, upon his application before made, and then on file in the office, which was not granted, because the lands were not confirmed: the lands were confirmed to the State as swamp lands, in February, 1855, and in May, 1855, and, it would seem, as soon as the lists'could be transferred to the office at Pine Bluff, he repeated his claim to enter the lands as a levee contractor, which was sustained, and he entered them with the scrip which he had received for his levee work, and which he had kept to be so applied ; in November, 1856, the lands were patented to the State by the United States, and in May, 1857, he procured the deed of 'the Governor, thus ending his prompt and persistent efforts, as he always intended they should be ended, with the investiture of the title of the lands.

If Moseby has not secured the right to the lands it is because he has been misadvised, for as he understood the law, he has been active and continuous in his efforts to gain their preferred purchase, as a levee contractor, under the act of 11th January, 1851.

Brodie, however, contends that, by taking scrip for his levee work, Moseby elected not to take payment in the lands, and that his entry was void, as he had no superior right of entry to any other person, as the lands could not be entered till they had been exhibited to public sale; and that Brodie’s own right being founded on an application to enter the lands immediately after the land agent had closed his public sale, is a better right than that of Moseby, who having the legal title without right, must yield it to Brodie, who is entitled to it by right of his application.

Moseby does not equitably fall within the principle of McGehee vs. Mathis, 21 Ark., 59, as he never received the scrip instead of the lands in payment of his levee work, with the intent to use the scrip in any way but as a method of securing the lands for the work, by putting the very scrip he received upon the very lands for whose purchase he took the levee contract. He never relinquished his claim to have • the lands in payment of his work, he never did any thing that he thought was a relinquishment, or weakening, of his claim, he only took the scrip as a step towards getting his pay in the lands, which, without the change in the law, he could have got without, such intermediate step.

In pursuance with' his intention, when he entered into the contract, and in continuation of his effort to secure the' lands by application, to the sub-commissioner, Walker, in June, 1852, Moseby, as soon as his work was finished and estimated, had his accounts audited by the commissioners, and because they would not give him the land for the accounts, to procure the land with scrip, which he supposed was the only way open to reach the same end, he exchanged his adjusted accounts for Auditor’s warrants upon the treasury, and them he turned into treasury certificates, or scrip, with which to cover the lands.

Neither is Moseby’s case like that of Frazier, in Deloach vs. Brownfield, 22 Ark., for he took his scrip as a marketable commodity, he did not take his levee contract, or scrip in its discharge, with a view to secure the lands he applied to enter; .that is, such facts are not apparent in the case, while it is a part of the case that Frazier did not show that he owned the lands in front of the lands whose entry was controverted in that suit.

From the facts in this case, we are not satisfied that, by the letter of the statutes upon swamp lands, Moseby was debarred from his original right to purchase the lands in payment of his levee work, by taking scrip in the way he did, or that his taking and application of the scrip was anything but a circuitous mode of obtaining payment in lands for his levee work. And we are sure that his case is within the equity of the statute.

Moseby’s entry of the lands was made the 19th of May, 1855; Brodie’s application to enter the lands was made upon the 9th of August, 1855, which is the beginning of his claim. The entry was ratified by the state, by the issuance of her patent to Moseby, and though his entry had been irregular, we do not see how Brodie can object to it, unless it had violated an equity which he had in the lands, that was subsisting at the date of Moseby’s entry.

But Brodie has no equity. He would have had a legal right to have bought the lands at private entry, on the 8th of August, 1855, or any subsequent day after they had been offered at public sale by the land agent, and had not been sold. These lands were not offered for sale', as Mills, the land agent, positively swears, they were not then subject to private entry, and Brodie’s application to enter them, irrespective of Moseby’s claim, cannot support his suit. If Moseby’s patent could be canceled, Brodie has no claim upon the lands, but they would have to be exposed to public sale, and if so exposed and unsold, he would have the same right as any other man, who might be willing to pay for the lands, to endeavor to purchase them at private entry. Act of 12th January, 1853, secs. 8, 12.

In Deloach vs. Brownfield, the lands had been offered at public sale, were not sold for want of bidders, and Brownfield and Watkins afterwards made their entry — from having the legal title unopposed by any equity, their title was undisturbed by this court.

If Brodie had been permitted to make his entry he would have had only a claim subsequent to that of Moseby. If as in Bacoris ad. vs. Tate, decided at the present term, two swamp land patents had issued, one each to Moseby and to Brodie, and the legal titles had balanced each other, the equity of Moseby would have made his the better title. But when Brodie’s claim, as we have seen, is not a legal title, is not a legal claim, and has no support in equity, it cannot prevail over a perfect legal title that is based upon a strong equitable foundation. The north half of the southwest quarter of section twelve does not stand on the same footing as the other lands, as the entry of Moseby is his first specific step towards that piece of land, but he is entitled to it under his prior right.

The judgment of the Circuit Court of Jeffeison county sitting in chancery, dismissing the bill for .want of equity, is. affirmed.


author: Mr. Chief Justice English

text:
    Montgomery vs. Brittin.
    The plea of the statute of limitations is not appropriate to an action of sciro facias to revive a judgment.

      Appeal from, Lafayette Circuit Court.

    Hon. Len B. Green, Circuit Judge.
    Garland & Randolph, for the appellant.
    Gallagher, for appellee.
   Mr. Chief Justice English

delivered the opinion of the court.

The questions presented in this case were decided in Brearl/y vs. Peay, Bee., at the present term, which followed previous adjudications of the court.

The judgment sought to be revived by the scire facias was rendered 29th April, 1850. Upon the trial of the issue to the plea of payment, no actual payment was proven, and sufficient time for the common law presumption of payment to attach, had not elapsed when the scire facias was sued out. The plea of the statute oi limitation was inappropriate.

Judgment affirmed.


text:
    Farish vs. Jones.
    This court cannot presume, for the purpose of sustaining the judgment of the Circuit Court, that a plea was stricken out for some good and sufficient cause, against the affirmative showing, made by the record, that the court erred.
    A plea that the bond sued on was given for the last payment of a tract of land, and that the plaintiff had not made or tendered a deed, according to his bond for title, is not a good defence, if it fails to show that the bond, which was not made a part of the record, contained mutual and dependent covenants.

      Appeal from, Desha Circuit Court.

    Hon. John C. Murray, Circuit Judge.
    Weatherford for the appellant.
    Garland & Randolph, for appellee.
   Mr. Chief Justice English

delivered the opinion of the court.

Jones brought an action of debt, by petition and summons, against Farish, on a promissory note, in Desha Circuit Court. At the return term the defendant appeared, and filed two pleas, nil debit, and a special plea in bar. At the next term, the court struck out the first plea, sustained a demurrer to the second, and rendered judgment for the plaintiff.

For what cause the court struck out the plea of nil debit, does not appear. The counsel for the appellee insists that it must be presumed, for the purpose of sustaining the judgment, that the plea was stricken out for some good and sufficient cause.

But such presumption cannot be indulged against the affirmative showing made by the record, that the court erred. The plea was appropriate to the action — debt on an unsealed instrument— was in the usual form, signed by counsel, and appears to have been filed in good time.

The second plea alleges, in substance, that the note sued on was given for the last payment of the purchase money of four acres of land, which the plaintiff sold to defendant, and gave him a bond for a fee simple title deed; and that the deed was to be made and delivered to the defendant upon the payment of said purchase móney; but that no deed had been tendered before suit, etc.

The plea makes proferí of the bond for title, but does not set it out, or state the substance of it, nor was it brought upon the record by oyer.

The plea fails to show that the bond contained mutual and dependent covenants — or in other words, that the plaintiff was bound by the terms of the contract of sale to make or tender to defendant a deed for the land before suit for the purchase money. See Lewis vs. Davis, 21 Ark., 237, and cases cited.

The court properly sustained a demurrer to the plea.

The judgment must be reversed and the cause remanded with-instructions to the court to reinstate the appellant’s plea of nil debit, and that the cause progress, etc.


text:
    Wilder et al. vs. Mayo.
    In an action of ejectment, a replication to the plea of limitation that several of the plaintiffs were infants, is good on demurrer as to those within the saving clause, and the heirs of a deceased infant plaintiff, but the saving ns to the infants did not remove the bar as to those of age and otherwise barred.

      Appeal from Monroe Circuit Court.

    lion. J. 0. Tappan, Special Judge.
    Garland & Randolph, for the appellants.
    The replication set up the infancy of three of the plaintiffs and came within the statutory exception. Could’s Dig.,p. 749, seo. 5. The land was not divided between the Wilder heirs, and this disability enured to the benefit'of all. So far as this suit is concerned, on part of plaintiffs, but one interest was before the court, and the infancy of some of the plaintiffs was sufficient to take the case out of the statute. It has been held expressly that the interest oí one of several persons, having a part interest in land will protect the rights of those of full age from the operation of the statute. Lahife vs. Smart, 1 Bailey (8. C.) Rep. 195; Gaillard vs. Thompson, 3 Rich. Rep. 418; Lewis vs. Barksdale, 2 Brock. C. C. Rep. 436. The ruling of the court below on the demurrer is adverse to the opinion in Mitchell and wife vs. Eiier, 22 Ark., in which the child’s portion was saved to Mrs. Mitchell, who took the land as mother of the child, and the same disability was there relied on as is pleaded in this suit.
   Mr. Justice Fairchild

delivered the opinion of the court.

Mayo, being defendant to an action of ejectment brought by the heirs of Daniel "Wilder, pleaded three pleas of possession, which the plaintiffs denied, and also filed an additional replication to each plea, stating that Lorenzo J. Wilder, one of the plaintiffs, was an infant in September, 1854, that Gabrielle A. Wilder was an infant at the time the suit was begun, and Jemima 0. "Wilder was also an infant at the beginning of the suit, and that she had since died, leaving the other plaintiffs her heirs.

The terms of the possession relied on in the several pleas were three, seven and ten years, and less than three years had elapsed from the majority of Lorenzo J. "Wilder, to the commencement of the suit, as would appear by the plea. The defendant, Mayo, demurred to the replications, and the court sustained the demurrer. The plaintiffs contend that the interest of the three plaintiffs named in the replications were not barred by the pleas, and in this they are upheld by the opinion of Scott, judge, in Lytle vs. The State, 17 Ark., 649, 661, upon the 4th sec. of ch. 99, of English’s Digest. Although upon that question, the opinion is but the opinion of one judge, we adopt it as the proper construction of the statute under consideration, which is conclusive against the demurrer to the replication to the fourth plea of Mayo, the one relying upon the possession of ten years. The proviso contained in the section referred to, is continued in secs. 1 and 2, of ch. 106, of Gould’s Digest, upon which the second and third pleas were framed, and the same construction applied to those sections. The court then erred in sustaining the demurrers to the second, third and fourth pleas, for the interest of Gabrielle A. "Wilder, and Lorenzo J. Wilder, were several interests, and the plaintiffs should not have been precluded from asserting those interests ; while the interest of Jemima Q. Wilder, at her death, passed to the other plaintiffs, which they also should have been allowed to assert, unaffected by the statutes pleaded for Mayo’s defence. Mitchell vs. Etter, 22 Ark., upon the latter point.

The infancy of the plaintiffs named, did not save the rights, of the other plaintiffs from the effect of any limitation applicable to them, as is shown by the case of Lytle vs. The State.

The judgment of the Circuit Court of Monroe county is reversed, with instruction to overrule the demurrer to the replications, herein held to be good.


text:
    Duncan vs. Bateman.
    A man who sells lumber for building a house is not entitled to the lien provided for in the statute (Gould's Dig., ch. 112, sec. 1;) though it is the privilege of a mechanic or builder to include in his lien the price for materials furnished.

      Error to Jefferson Cvremt Court.

    I-Ion. John O. Murray, Circuit Judge.
    Gallagher, for the plaintiff.
    Garland & Bandolph and Yell, contra.
   Mr. Justice Fairchild

delivered the opinion of .the court.

“All artisans, builders and mechanics of every description, who shall perform any work and labor on any building, edifice, or tenement, . ' . shall have an absolute lien on such building, edifice, or tenement, for such work and labor, as well as for materials furnished by them, in and about such work and labor,” Gould’s Dig., ch. 112, sec. 1.

The question is presented whether a man who sells lumber for building a house is entitled to the lien provided for in the foregoing statute.

A lumber man is not an artisan, a builder, or a mechanic, and to no other does the statute extend a lien upon a building. That a mechanic or builder may include in his lien the price for materials furnished for the building is his privilege, but that is no reason why one who furnishes materials without doing any work should have a lien. A man who sells lumber for a house has no lien upon it any more than a merchant who sells nails to be used in the building, and neither has a lien,.because the statute does not give it to him; while the builder or mechanic has a lien for the same, or any other articles he may furnish for his labor performed upon the house, because the statute does give him such lien. We apply such law as exists, and cannot extend a statute restricted in terms to a particular class of persons, to a man not in that class.

The Circuit Court gave an opposite construction to the statute allowing to Bateman the benefit of the lien, and therefore its judgment must be reversed.

A remark upon this statute, in Brown vs. Sullivan, 5 Ark. 220, if considered without a reference to the statute, might induce the belief that the lien would operate for those who furnish materials for building under contract with the owner of the ground, but that was not the point under consideration, and if it had been decided so as to include Bateman’s account, the decision would have been wrong.

Other questions are made upon pleadings by Duncan, but it is useless to notice them, for the matter decided was raised and settled on the trial of the case, in such a way as to require our review of Bateman’s action. And it being held that Bateman had no lien under the statute, other errors that may have been committed against Duncan need not be noticed. Hicks vs. Branton, 21 Ark. 192.


text:
    Raines vs. Dooley.
    A plea of partial failure of consideration of a note given on the sale of property, based upon misrepresentation, must deny that the representations were according to the facts; and if unsoundness in the property sold be alleged, the plea must show that the representations as to soundness were such as in law to constitute a warranty, or were known to the vendor to be false.

      Appeal from Lafayette Gvrcmt Gowrt.

    ITon. Lbn B. Green, Circuit Judge.
    Gallagher, for appellant.
    Garland ’& Randolph, for appellee.
   Mr. Justice Fairchild

delivered the opinion of the court.

In application of the doctrine of recoupment of a note, under seal, on which this suit was brought by Dooley, Raines pleaded as a partial failure of consideration, that the note was given for horses and hogs, that the hogs were sold at three dollars a head, the number of them being one hundred ; that Dooley represented that they were running in a certain range in Long Prairie, in Lafayette county; that Raines could pen them, and could feed them from his horse, but that Raines had made, diligent and repeated search for the hogs, but could not find but ten, and they of an inferior quality. The plea further stated that of the four horses sold by Dooley to Raines for the note, and which Dooley represented as sound, one, reckoned in the note at one hundred and fifty dollars, was unsound and worthless.

A demurrer to the plea was sustained, and judgment was given for the whole of the note, from which Baines appealed.

The plea sets up no failure of consideration about the hogs. Giving to it the most favorable construction, which is more than the law requires, it does not deny but that the representations of Dooley were according to the facts. Although Baines had not been able to find ninety of the hogs, they may have been in the certain range in Long Prairie; and if found they might have been so gentle as to be penned and to be fed from a horse. The representations were not that Baines could find the hogs, but that they were in the range, and when found could be fed and penned. The plea avers search for the hogs, but not where Dooley indicated their range to be. The plea is- clearly bad as to the hogs, and being bad in part is bad as a whole. Doe dem. Lewis vs. Barksdale, 2 Brock. 445; Lytle vs. The State, 19 Ark. 660..

But that part of the plea relying upon the worthless horse is faulty in not showing that the representations of Dooley about its soundness were such, as in law, to constitute a .warranty, or were known- to him to be false, and therefore fraudulent. One or the other of these allegations must have been made by Baines, had he, after payment for the horse, attempted to recover its price from Dooley. Plant vs. Condit, 22 Ark. And Baines must be held to equal strictness in alleging the same facts by plea. The plea only alleged that Dooley represented the horse to be sound. The representations might amount to a warranty, if made under certain contingencies of time and quality, but all representations are not warranties. The plea should not have' left the legal effect of the representations in doubt, and to be determined by the evidence. That is not the effect of a good plea. The judgment of the circuit court is affirmed.


text:
    Kelly vs. Union County.
    On appeal from the county court, the circuit court has no jurisdiction to try the merits of the case anew, unless there be error found in the proceedings and judgment of the county court.
    Unless the bill of exceptions shows that a record, or paper, was read or used in evidence, such record or paper ought not to be copied in it; and for the omission to do so, in such case, a certiorari will not be ordered to perfect the record.

      Appeal from Union Circuit Cou/rt.

    Hon. Len B. Green, Circuit Judge.
    Lee, for appellant.
    Carleton, for appellee.
   Mr. Justice Fairchild

delivered the opinion of the Court.

Kelly, common school commissioner of Union county, filed an account in the county court, containing a statement of funds arising from fines, forfeitures, licenses, escheats, estrays, etc., which had been paid into the county treasury, and which he claimed to belong to the school fund of the county; and to be paid to him as commissioner. A trial was had in the county court, the claim was disallowed, and Kelly appealed to the circuit court.

On the trial of the case in the county court, the evidence of Kelly consisted of the records of the county court, but the record entries used as evidence were not incorporated in the bill of exceptions, nor was any statement given therein of what they proved.

It seems, from the bill of exceptions filed in the circuit court, that Kelly suggested a diminution of the record, and asked that the clerk of the county court be required to embody in the bill of exceptions the records referred to in the account of Kelly, but the circuit court refused, and upon examination of the case, as brought from the county court, affirmed its judgment. The circuit court could not have done otherwise on the bill of exceptions filed in the county court, for it contained no evidence to disprove the correctness of the judgment of the county court. The appeal did not give the circuit court jurisdiction to try the merits of the ease anew. That could not be done until error had been found in the proceedings and judgment of the county court. On coming to such conclusion the circuit court would have reversed the judgment of the county court, set the case for trial, and it would then have been open for the reception of any evidence to sustain the claim of Kelly. Carnall vs. Crawford County, 6, Eng. 622; Claris Cownty vs. Spence, 21 Ark. 446. Considering the account of Kelly as incorporated into the bill of exceptipns, which the clerk had not done in the. transcript before us, we see references by letter and page which we take to apply to record books; still those records could not be copied into the bill of exceptions unless the bill had shown that the records referred to were read, or were used in evidence. There was no ground on which to support the motion for a perfection of the record. The defect could be amended only by making a new bill of exceptions, and the circuit court could do no more than compel a true copy of that taken in the county court, to be certified to the circuit court. The judgment of the circuit court is affirmed.


text:
    Houston vs. Brown.
    An action will not lie upon an instrument of writing acknowledging the receipt of money by the defendant of the plaintiff, specifying its payment on account of a partnership concern, unless the plaintiff prove that there was not an existing or unsettled partnership.
    The court having affirmed a partnership, by which the plaintiff’s action was defeated as to the receipts, erred in permitting a partnership indebtedness to be set-off against an individual debt due to the plaintiff by the defendant.

      Appeal from Johnson Cvrouit Court.

    Hon. J. J. Green, Circuit Judge.
    Williams & Martin, for the appellant.
   Mr. Justice Fairchild

delivered the opinion of the Court.

Besides the note set forth in the first count of the declaration, which was a good cause of action against Brown, the defendant below, Houston, who is now the appellant, and was plaintiff in the Circuit Court, counted upon the following writing:

“$700 00. Cincinnati, May —, 1854.

[Received of John S. Houston, three hundred dollars, which is placed to my credit with Smith & Graham, for the payment of one saw mill, shingle machine, etc. Bec’d also, at the same time and place, four hundred dollars, which is placed to the credit of our account with J. Burrows & Co.,, as first payment on the engine.

“$300 00. Bec’d, Clarksville, Aug. 31st, 1854, of said Houston, again, three hundred dollars, being his part of a payment of six hundred dollars, made by me to said Burrows & Co,, balance due on said engine.

R. I-I. BROWN.”

A recovery #upon this writing was resisted on the ground that the moneys mentioned were advanced by Brown upon a partnership enterprise in which he and the plaintiff were interested.' And it seems to us, that the receipts are not such acknowledgments of money had and received by Brown, as to make him liable to refund the money without a settlement of the joint interests therein alluded to and implied. The verbal testimony that is brought into the case, in no way clears up the doubt upon Brown’s liability to Houston in this action. It is plain that a joint enterprise or partnership was begun by the parties to this suit, though the evidence is uncertain as to its terms, and is confused and conflicting as to its continuance. Sometimes Houston spoke of the property as belonging to him and Brown; its possible and actual losses as matters of personal interest; and at other times of only having money invested in the mills which he was anxious to withdraw, and to have nothing to do with the business; while the proof also shows that the mill had been put on Brown’s land; that the expenses of its running had been defrayed by him, and that its proceeds had been appropriated by him. Houston, also, is shown to have had access to the books of the mill; to have examined them, yet-Brown, in setting off against Houston in this suit the meal and flour he had received from the mill, has acted very inconsistently with his defence.

From the perplexing and unsatisfactory nature of the testimony, we do not say, as we are not called upon to do so, that at the time of the institution of this suit, there was an existing or an unsettled partnership, or joint ownership between the parties, although we believe that to be the better opinion, but we are well satisfied that Houston has not made the contrary to appear, which it was evidently necessary for him to do after the production of such an instrument as the series of receipts signed by Brown.

■ Houston ought not then to recover in this action, except on the note given to J. Palmer & Co., and assigned to him, and that was allowed him by the Circuit Court. The bill of exceptions states that Brown proved an off-set in which was included the sum of twenty dollars for flour and meal got by Houston from the -min. By disallowing Houston’s claim for the thousand dollars expressed in the receipts of Brown, the court affirmed the existence of the partnership, for which Brown contended. And also denied it by allowing to Brown this set-off of meal and flour. We think the action of the court was right upon the main defence of Brown, and wrong in permitting the twenty dollars to. be included in the set-off. Houston must. not be denied the right of an individual creditor of Brown by the defeat of his action, and be charged as a debtor for the use of the proceeds of the mill.

The verdict of the Circuit Court should be reduced by twenty dollars, the reduction to bear the date of the judgment, and if a remittitur shall be entered here to that effect, the judgment of the Circuit Court will be affirmed, but otherwise it will be reversed.

No other question worthy to be considered arises upon the record, although it is confused with a declaration of eleven counts, with tedious subsequent pleadings, and with numerous propositions which the court was asked to declare to be the law of the case.


text:
    Cunningham et al. vs. Brumback et al.
    Where the adverse possession of land has been held for more than the period of limitation, the fact that there has been a protracted litigation in respect to it— the adverse party having the equitable title, and a third person the legal title — does not remove the bar of the statute, or prevent the statute from running until the legal is joined with the equitable title.
    Where some member of the same family has remained in .possession of land, claiming title, though others have left — as where the father having left, the mother and son remain — the continuity of possession is not broken, so as to stop the running of the statute of limitation, or form a new point for its commencement.

      Appeal from Pulaski Gha/neery Gou/rt.

    Hon. Uriah M. Bose, Chancellor.
    Garland, for the appellants.
    The main defence relied on is the statute of limitations, and upon this point the case was decided by the Chancellor. It is proved beyond any question, that all the time Brumback, or those before him, held any of the lands or lots, there was pending in the courts here litigation about them. Appellees holding thus, acquired no title whatever, and their possession could never make them a title. There is no basis upon which the limitation can rest. All persons were bound to take notice of this litigation. Meux vs. Anthony, 6 Eng. Ill, There is no proof in the cause of any sufficient possession to ripen into title, from the date of the final decree in April, 1855, when the title was settled in Cunningham’s heirs. Of course until a title was settled or fixed out of the United States, it is not to be contended that the holder or possessor could insist on limitation. Angelí on Lkn. 31, II. Appellees do not pretend to have any title beyond that given by limitation, only Fowler’s representatives; but Brumback, Fowler’s vendor, had no other himself.
    Jordan, Williams and Stillwell & Woodruff, for appellees.
    The objection that the pendency of the suit of Cunningham vs. Ashley & Beebe (the legal title being in them) created such a disability to sue, as in equity ought to pr.event the statute from running until that suit was determined, is not well taken. We have no statute of limitation making any such exception, and where the legislature fails to make any such exception, the courts can make none. 13 Ark. 292; 16 lb. 696; 17 lb. 199.
    It is contended by appellants that, inasmuch as it is shown that appellees were in possession of the lots during the pendency of the suit against Ashley and Beebe, they were bound to take notice of that suit — that they were virtually parties to it, and were bound by the decree therein rendered. The establishment of such a principle or precedent would be ruinous to landholders. We take the law to be well settled that a decree or judgment neither binds nor protects, or in any manner affects the rights of those who are not parties or privies to it. 1. Bailey Eq. 159; 7 Leigh. 224; 1 Brock. 126; 1 Paige 35.
   Mr. Justice Fairchild

delivered the opinion of the Court.

We have examined this case and affirm the decree rendered by the Chancery Court. We approve of the opinion of the Chancellor, and direct it to be published in the Reports as expressing the views of this court:

CHANCELLOR'S OPINION.

The view that I have taken of this case renders it of little importance to decide the demurrer which questions the right of the plaintiffs to come into equity for relief. But because the plaintiffs seek to enforce a decree, and because in some other respects they might not be able to obtain an adequate remedy at law, I think that the bill on its face is sufficient, and I shall overrule the demurrer.

In the examination of the facts I am struck, at the first, with the length of time that the defendants have severally and successively occupied the lands in question. .We hear of Mrs. Brumback being in possession of them, as early as the year 1827, and continually and persistently have the Brumbacks remained in possession up to the present time. They have also made improvements upon it; and although they do not appear to be costly or extensive, yet no doubt tbffey are such as their estate would permit. The conveyance to Fowler must have given him, as to the lot that he purchased, the same right that was held by his vendor.

The statute of limitations is made to cut off stale claims. The law wisely holds that there shall come a time when even the wrongful possessor shall have peace; and that it is better that ancient wrongs should go unredressed, than that ancient strife should be renewed. The statute of limitations is adopted in equity, so far as the same is applicable; and it runs against mere equitable demands; except in certain cases of fraud and trust, which are foreign to the enquiry in this court. Ewell vs. Tidwell, 20 Ark. 136.

I do not think that the Brumbacks can be considered as affected by the suit between Cunningham and Ashley. It is a familiar principle that decrees only affect parties and privies. They were not parties to that suit, nor do they claim under any of the parties; but on the contrary, we find them in possession more than ten years before the patent issued to Beebe, and ever since that time they have been claiming against the world, and having maintained their possession for so long a time, if they are now to be ejected, it must be by force of some rigid rule of law, or the sway of some strong and superior equity.

It is contended for the plaintiffs that the pendency of the suit between Cunningham and Ashley & Beebe, and the outstanding legal title in them during a protracted litigation, amounted to such a disability to sue as ought in equity to prevent the statute from running against them; and in support of this position I am referred to the case of Burnett vs. Colby, 5 Simons 181, and other cases based on the same facts of this, for it is based on the relation of tenant for life and remainder-man. During the estate of the tenant for life, the remainder-man has no present right, either legal or equitable, to the possession; and if the tenant for life see fit to let a third person remain on the laud, the remainderman can have no remedy cither in law or equity until the life estate has expired; and this for the simple reason that until that time he is not injured, and consequently can have no redress. And I apprehend that nothing more than this is stated in the 370th to 374th section of Angelí on Limitation.

But such was not the case between Ihe Brumbacks and Cunningham, for if the land rightfully belonged to Cunningham, and he had equitably the right to the possession, the act of the Brumbacks in remaining upon the land was an injury for which there must somewhere have been means of redress.

It is true that the outstanding legal title was in Beebe and Ashley, and that Cunningham could not have maintained an ejectment; but that is nothing more than to say that his right to relief lay in equity, and not at law. It was not necessary for Cunningham to prosecute a suit against Beebe and Ashley, and thus obtain from them the legal title before he could come into equity for relief against the defendants in this suit. In this court the mere legal title is of no avail when set up against the equitable estate, but is made subordinate and subservient to it, and if a suit had been brought in equity against the Brumbacks, they could not have defended it by saying that the plaintiff did not have the legal title: or if they had claimed under the holders of the legal title they could not have a better right than was in the patentee himself: nor could the simple fact that the plaintiffs have acquired the legal title cause them to be more favorably regarded than they would have been with their superior equity over the holders of the legal title, and no reason is seen why the Brumbacks might not have been, embraced in the same suit wherein Cunningham asserted his right against Ashley and Beebe.

Nor do I think that the position of the plaintiffs, that there has not been sufficient continuity of possession by the defendants, is well taken.

The principal authority relied on in support of this principle is from Angelí on Limitations 413, where it is said: if one merely enters and commits a trespass, and then goes off, and another comes after him and commits a trespass, it is not to be denied that there is no privity between these persons, nor can the possession be said to be continued from one to another. This has express reference to cases where the land has been totallyMbandoned by the trespasser, where there has been a distinct interval between the going off of one trespasser and the coming of another, during which interval, for want of an occupant, the seizin is restored to the true owner. In such case, of course, the entry of the next trespasser is a new wrong, and is a new disseizin. But in this.egse the circumstances are very different. Christian Brumback, sr., and Mrs. Brumback were originally in possession: when Christian Brumback, sr., removed, he left Mrs. Brumback and her son in possession, and when Mrs. Brumback left, her son still remained: and so the continuity of the adverse possession has never been for one moment broken. Christian Brumback, jr., who was born on the land, is now in the prime of life, and has always resided on the land up to this day. Under these circumstances, it cannot be said that the statute bar does not attach because there has been no continuity of adverse possession. Fanning vs. Wilcox, 3 Day 258; McCoy vs. Dickinson College, 5 Serg. & Rawle 254; Shannon vs. Kinney, 1 Marsh. 4; Herd vs. Walton, 2 ib. 620; Peak vs. Chambers, 7 B. Mon. 565.

As to whether Christian Brumback or his mother has the best •title to the land, is not a question to be passed upon in this suit; the only question being as to whether the plaintiff’s remedy is barred by lapse of time; and having considered the facts of ■the case, I am of opinion that originally the defendants had no right, but that they, the plaintiffs, have delayed until they have no remedy. I shall therefore order the bill to be dismissed for want of equity, at the cost of the plaintiffs.


text:
    Woodruff vs. Core.
    The complainant being entitled to a pre-emption from having an improvement upon a quarter section of swamp land, filed his bill to set aside the legal title of a purchaser at public sale, but failed to show by other than weak and suspicious evidence, that the proof of his pre-emption right and the application to enter swamp land — the written proof and application not being produced — were for the land in controversy, whilst there was strong counteracting evidence to the contrary: Decree that his bill be dismissed.
    The rule in Conway vs. State Bank held not to restrain this court from reviewing the decree of a court of chancery, brought here by appeal, which opens the whole case, as if it had never been tried, as to all the points made in the court below.

      Appeal from Pulaski Chancery Court.

    Hon. Uriah M. Rose, chancellor.*
    Stillwell & Woodruff, for appellant.
    Jordan for appellee.
   Mr. Justice Fairchild

delivered the opinion of the court.

Under the act of 18th January, 1855, the appellee, the plaintiff in the court below, was entitled to a pre-emption from having an improvement upon the west half of the north-west quarter of section eight, in township two south of range ten west, by declaring and proving his claim according to the provisions of the law. The 14th section of the act of 13th January, 1857, would also give the appellee a pre-emption right by making proof of his cultivation of the land under the previous law, for that act did not restrict the right to such persons as wished to pay for lands by leveés, ditches or drains, but only gave to preemptors the privilege of paying in these works of reclamation. We say that the appellee was entitled to a pre-emption of the land in controversy, if he had proved it under the acts referred to, as we think that his improvement on, and cultivation of the land entitled him to the privilege of being a preferred purchaser. The only other point in the case is a question of fact, is whether the appellee took the steps, under the act of 16th January, 1855, to change his claim into a pre-emption right, so that it will overthrow the legal title of Woodruff, which is conceded to be perfect unless overshadowed by the appellee’s prior equity.

On the 12th of March, 1859, the land agent at Little Rock, advertised that the land in controversy would be sold on the 23d of May, 1859, and it then became the duty of the appellee to secure the benefit of his pre-emption within’ those times, by making an entry of the lands in the state land office at Little Rock.

Robinson testifies that, about the 20th of March, 1859, he prepared a written declaration of the appellee of his right to a pre emption to a piece of land which he believes to be the one in controversy, but that belief is founded upon an inspection of a paper purporting to' be a copy of the original, prepared by Robinson, and which we may suppose, from the argument for the appellee, to have been prepared by his attorney. Robinson swore to his statement, and also took and reduced to writing the supporting affidavits of Martin and Puckett, who identified the land and proved that the appellee had .an improvement thereon. The deposition of Robinson states conclusively that a paper stating the appellee’s right to a pre-emption was prepared by him; and was executed by the appellee, and was corroborated by Martin and Puckett, who, with the appellee verified their statéments by oath, before Robinson, vrho was a justice of the peace, but it would be doing violence to the rules of evidence to say that the deposition shows that the paper related to the land in controversy. Martin, however, does prove this, if his positive 'testimony to the fact be taken as proof, and he is equally explicit and positive in declaring that a few days after the paper was prepared, it was tendered as an application for entry of this land by the appellee to the land agent at his office, in Little Rock, that the money for the land was also tendered, that the entry was refused for the expressed reason that the land was not confirmed to the state as swamp land, that the appellee offered to leave his application on file in the office, and that the agent declined to receive it, or discouraged the appellee from so doing, because it was useless. Martin’s testimony sustains every essential part of the case which it was necessary for the appellee as plaintiff to make, and if the case rested upon the testimony, and upon the answer of Woodruff, the latter would be overturned; for not being founded on matters within the personal knowledge of the respondent, it is only pleading in denial of the bill, and does not, like a responsive answer of facts known to the respondent, require more than one witness for its overthrow.

But Martin’s deposition is met by opposing testimony.

What Owen, the land agent, states about not recollecting any application of the appellee, is not entitled to any consideration, both from the intrinsic nature of such evidence, as well as from what Owen says about his likelihood of not remembering the incident, if it had been a fact. But the testimony of Owen is material in its account of the course of business in the office, and from Owen’s positive testimony, from Weaver’s statement of the condition of the plats when he was in the office in April and May, and from the examination made by the witness Wood-ruff, it is well known that the piece of land in suit was marked as confirmed land on the plats when the appellee made his application for the entry. And- Martin shows that neither Puckett nor himself had any trouble in entering their land, that the land agent made no objection to any entry, but that of the appellee’s, and that solely for the reason stated. The forms of the applications or declarations and of the supporting affidavits were doubtless the' same, as all were prepared at the same time by Robinson, and as the land in controversy was not unconfirmed land, but was distinctly marked as confirmed on the plats, Owen’s refusal to allow its entry, if it had been mentioned in the appellee’s application, cannot be explained on any reason that we are at liberty to assign. For we have no right, from any fact in this case, or from general principles, to assume that Owen would act fraudulently or oppressively towards the appellee. And upon the conjecture of mistake,' there is at least as much room for suspicion that there might be a mistake in the appellee’s specification of the land he wished to enter, as to attribute the mistake to Owen. Indeed we cannot conceive how there could have been a mistake in relation to this land being marked as confirmed land, and Owen was as likely to have seen its true condition from the marks upon the plats, when the appellee applied to enter it, as when Woodruff, the witness, called as often as he says in the interval between the advertisement and sale of the land, and was always told it had not been claimed by pre-emption; or as when Owen sold the land from the marks upon his plats. Though the deposition of Martin is unqualified as to the writing prepared by Robinson, and used by the appellee at the land office, embracing the land in controversy, yet it is in general terms, and he does not show that he testifies from a knowledge of what was in the paper. He knew on what piece of land the appellee’s improvement and cultivation were, he knew that was the land intended to be put into the declaration, and he might then state, especially in the manner that terms are often prepared for a witness, that the writing related to the land in controversy, and express his real belief, when the fact might be otherwise. On this point we think the probabilities are in favor of the correctness of Owen’s conduct as set forth by Martin, connected with the marks of the land on the plats, rather than in favor of the writing prepared by Robinson, being as the appellee wished it to be, and as Martin thought*and deposed it was. The paper would have proved itself in this particular, and the uncertainty that grows out of the inconsistency of the testimony of Martin and of Owen, is owing to the negligence or misfortune of the appellee in losing the paper; he thence ought to be the one to abide the loss that such uncertainty may produce. But a stronger fact is disclosed by Owen and Weaver as appertaining to the mode of business of the.office, which is, that in all cases upon the refusal of an application to enter land it was Owen’s invariable custom to endorse upon the application the reason of the refusal, and to file it in the office. This is so reasonable and according to the course of business, as well as consonant to Owen’s habit, that it must have great effect in detracting from the weight of Martin’s testimony. As a question of preponderance of evidence, it seems plain to us that it does not incline to the prosecution, that the scales do fall towards the defence.

We are not inclined to place much reliance upon the discrepancy between the different versions of Martin’s statements, when he procured Fletcher to bid on the land at the sale at ■which Woodruff bought it, as Martin might have qualified his own account, or suggested some modification of Fletcher’s statement, that would have been acceptable to him, had the two been face to face when either testified. Yet, Fletcher’s testimony is not incompetent, because Martin was not first interrogated respecting it. For Martin’s .statement contained in itself all the elements of what it is necessary to apprise a witness when upon cross-examination, he must be referred to the time, place and person, connected with the contradictory statements that are to be introduced to impeach his testimony. And what Martin said upon this subject was not as a narative’of a transaction, affecting the parties to the suit, but of an act of his own, which might be disproved or modified by Fletcher, or by any witness having knowiede of the act. Looking upon the ease of the appellee through the most favorable medium, we cannot regard it better for him than a balanced case, and that is not enough to entitle him to a decree without regard to the effect of a decree for him being to divest a legal title that has been fairly acquired, and under the sanction of a public legal sale. If the testimony of the appellee were not suspicious, it is too weak to uphold the decree, and being both weak and opposed to other stronger counteracting evidence, we cannot allow the decree of the Chancery Court to be enrolled as the decree which in our judgment, ought to be the final one between the parties upon this controversy.

Notwithstanding the infinitude of cases to which The State Bank vs. Conway is applied, we did not expect to have it cited to us as a restraint against reviewing the decree of a court of chancery, brought here by appeal, which opens the whole case as if it had never been tried, as to all the points made in the trial in the court below; yet we are willing to express our disinclination to reverse a decree upon a difference between us and the court that rendered it, that relates to the mere finding of facts. But it is a question of law whether the facts admitted to be before both courts, and to have been well considered by the Chancery Court, shall have the effect to establish a preemption or divest a legal title inconsistent therewith. We think the appellee failed to establish the equity he had before the sale of 23d May, 1859, to a pre-emption, and direct that the decree appealed from be reversed, and that a decree be entered here dismissing the bill of the appellee.


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    Mahan vs. Owen ad.
    The affidavit to a claim against the estate of a deceased person need not be signed by the affiant. (Gill vs. Ward, 22 Arle.)

    Where neither the certificate, the caption nor the body of the transcript of a decree shows what court rendered the decree, it is no evidence.

      Appeal from White Circtiit Court.

    Hoñ. William C. Sevens, Circuit Judge.
    Jordan, for the appellant.
    B. D. Turner, for the appellee.
   Mr. Chief Justice English

delivered the opinion of the court.

Mahan presented to the probate court of White county, for allowance against the estate of John Owen, deceased, a transcript of what purported to be a decree of some court, in favor of Mahan, against Owen, for a sum of money.

Mary A. Owen, the administratrix of John Owen, contested the claim, it was disallowed, and on appeal by Mahan to the circuit court, the judgment of the probate court was affirmed.

It seems that the probate court rejected the demand, because the affidavit was not subscribed by Mahan,, and the transcript was not properly authenticated.

The first objection was not well taken, as held in Gill et al. vs. Ward et al. 22 Ark.

Passing over the informality of the certificate of authentication, attached to the transcript of the decree, in other respects, neither the certificate, the caption, nor the body of the transcript, shows what court rendered the decree.

For this cause the transcript was properly excluded, and the claim disallowed.

Judgment affirmed.


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    State use Trustees etc., vs. May et al.
    In an action by the State for the use of the trustees of schools of township No. etc., on the bond of M., the common school commissioner, the declaration alleged a liability on the bond of M., as common school commissioner, for his acts as commissioner of the townships; the defendants made default, and on enquiry of damages, the plaintiff offered to prove that M. had eolleeted money belonging to the specified township; Held, that the default of the defendants admitted that the declaration contained a cause of action against them, and that the evidence ought to have been admitted.

      Error to Union Circuit Court.

    Hon. Leu B. Green, Circuit Judge.
    Carleton, for .plain.tiff.-
   Mr. Justice Fairchild

delivered the opinion of the Court.

The State of Arkansas, for the use of the trustees of schools of township No. sixteen south, and range No. sixteen west, in Union county, sued the defendants in error, May and Tatum and others, on the bond of May, given as common school commissioner for Union county. It is alleged in the declaration, that, by the assent of the inhabitants of the township and acts of May, he became liable on his bond of common school commissioner of the county for-his acts as commissioner of the township, and fifteen breaches of his duty as township commissioner are charged against him. May and Tatum made default, and a discontinuance was entered as to the other defendants.

The fourth breach charged that May received about eight hundred dollars belonging to the school fund of the specified township, and had not paid it over as required by law; hnd to support the breach, on an enquiry of damages, the plaintiff offered in evidence the bond described in the breach, across the face of which xvas written by May, “ paid and canceled this 9th day of October, 1854, J. L. May, commissioner of township 16, range 16,” with proof that May collected the money on the bond at the time of the indorsement. The bill of exceptions states that the plaintiff also offered to sustain the other breaches by similar proof, applicable to each breach, although the offered testimony is not set out. The court sustained the objection of May to the evidence, to which the plaintiff excepted. The default of May and Tatum admitted that the declaration contained a cause of action against them, and the evidence offered to sustain the fourth breach was pertinent, and should have been received. On account of the ruling of the court in rejecting the evidence offered to sustain the breaches only nominal damages were awarded to the plaintiff, and she brought error.

We decline to enter into the field of speculation to which we are invited, by deciding questions not presented by the record, but for the error of the court manifest by the transcript, reverse the judgments •.


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    Union County vs. Kelly, as S. Com’r.
    On a reversal of a judgment of the county court on appeal to the circuit court, that court ought to set the case down for trial upon its merits, not remand it to the county court for trial.

      Appeal from Union Circuit Court,

    Hon. Lew B. Green, Circuit Judge.
    Cakleton, for the appellant.
   Mr. Justice Fairchild

delivered the opinion of the court.

Kelly, as common school commissioner for Union county, by petition to the county court, made claim to be paid out of the county treasury, the amount of taxes that had been paid therein, from taxes assessed and collected on land in the sixtcenth sections of the county] and which had been sold. The claim was founded on the 9th section, of chap. 154, of Gould's Digest. The county demurred to Kelly’s petition, the county court sustained the demurrer, and Kelly appealed to the circuit court. That court reversed the judgment of the county court, but instead of setting the case down for trial, upon its merits, as it should have done on reversal of the judgment, remanded the case to the county court, with instructions to overrule the demurrer.

Such judgments , from the probate court, under the statute regulating proceedings on appeals from that court to the circuit court, were held illegal in Reagan vs. Mitchell, 4 Ark. 630, and in Dillard vs. Barnes, 5 Ark. 302. In Carnall vs. Crawford County, 6 Eng. 622, this court adopted the same method of review of cases brought into the circuit court from the county court by appeal, and such judgments as the one in this case were pronounced to be reversible in Clark County vs. Spence, and Clark County vs. Scott, 21 Ark. 466 and 468.

The judgment of the circuit court of Union county is reversed, with directions to set the case for trial in that court upon its merits.


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    Scott ad. vs. Logan.
    Devise of property to children when they arrive at age or marry — that the father and mother of the testator shall have the use of it, or so much thereof as they want during their natural lives — that the father'and mother shall take care of the children until they are grown or marry, when the children shall take care of them— that the proceeds of the property be applied to the payment of taxes, maintenance of the father and mother, education, etc., of the children, charged with a contingent legacy to a sister; Held, that the property devised to the children vested in them on the death of tho testator, but to be divided at a future time; that the mother who was the only survivor of the family, was entitled to an ample maintenance out of tho property, to tho extent of the whole of it, if necessary, but had n'ot a life estate in it under the will, nor such an interest as would support replevin for the personal property.

      Appeal from Pope Circuit Cour.t,

    Hon. John J. Clendenin, Circuit Judge.
    Jordan, for the appellant.
    We submit that, at the death of the testator, the title to the property vested in his two children, subject to the maintenance of their grand parents-: upon the death of the surviving child, his administrator had the right to the possession and control of the negroes. The plain (iff had no right to the possession and control of the negroes — the will gave her no right to the possession — the law conferred no such right upon her by virtue of 'her lien upon the property for a support. In order to enforce that, her remedy would be a bill in chancery, and appointment of a trustee or receiver to take possession of the property, and pay out of the proceeds enough for her support and maintenance. See 2 Story Eq., secs. 1244-5; 1, Storxj Eq. 50G, 512; 2 lb. 1424.
    The devise of the use of property for life, or of a support out of it, is not a devise of the property itself. 6 B. Mon. 37; Keyes on Chattels 9, 10, 240, 241; 2 Bouv. L. Die. 594.
    Williams & Martin, for the appellee.
    We submit that a fair construction of the will is, that John Logan and his wife were to have the entire use, enjoyment and control of the property until'the arrival of the children at age,, or marriage, and then were to be supported by them out of fir- and that the'period mentioned in the will is not' merely the time of enjoyment, but the time at which the right of property was to vest. 1 Jarman on Wills, '756, 757, 760,771; 1 Muss. dk Myl. 203; 1 M([. Gas. Ab. 295.
    But even if the legacy is a vested legacy, the plaintiff’s right to recover is complete, for it is manifestly the intention of the testator to give' to his father and mother the use of the property for their lives. The grant of the use of property is the grant of the property itself, and entitles the usee to possession.
   Mr. Justice Fairchild

delivered the opinion of the court.

Frances Logan, the plaintiff below, and appellee'here, is the mother of Matthew T. Logan, and claims the negroes specified in her declaration of replevin, under the will of'her son, from the defendant bélow, who, as administrator' of Augustus Gay-lord Logan, son of Matthew T. Logan, had, before the institution of this suit, taken the negroes from .the possession of the plaintiff. The case was tried by the court sitting as a jury, and the evidence was the will of Matthew T. Logan, and 'an agreed statement of facts; and it comes here upon the question, whether under that will the plaintiff had a life interest, or other 'legal interest, in the slaves, so as to enable her to maintain her suit. In the circuit court this question was dependent upon numerous-propositions, which the parties respectively asked the court' to declare to be the law of the case. To those propounded by the plaintiff, the court assented, and refused to make the declarations asked for by the defendant, but out of them all, there legitimately arises but the single question of the plaintiff’s right to the possession of the negroes, under the will of Matthew T. Logan, which the court affirmed by its finding and judgment for the plaintiff: to reverse which the-defendant has appealed to this court.

Both parties found their claims upon the will, and the parts of it pertinent to this controversy are as follows:

. “ Item 3d. I do hereby bequeath to my beloved son, Augustus Gaylord, the north-west quarter, and spjith half of the northeast quarter of section twenty-eight, in township No. nine north, and range No. twenty west, together with one-half of whatever negro property may belong to my estate, when he arrives at mature age or marries.
“ Item 4th. I do further bequeath to my beloved daughter, Isabella Susan, the remaining half of section twenty-eight, in township nine north, of range twenty west, except that portion belonging to Peter Yorick, he complying with the conditions above; and I also bequeath to her the other remaining half of my negro property, or whatever it may be at the time of division.
“ Item 1th. I do hereby appoint by beloved father, John Logan, my -executor, to settle my business and fulfill, as near as possible, this my last will and testament.
“ Item 8th. I do further direct that my said father and beloved mother do have the use of all the property, personal and real, that I have bequeathed to my son and daughter, or so much as they may want during their natural life.
“ Item 9 th. I do further direct that my said father and mother do keep my said son and daughter until they are grown, or marry, or so long as father and mother, or either of them lives, and in case one or both of them shall live until either of my said children gets a family, then, in that case, I direct that they be taken care of, so long as they live, by my said children, jointly or separately, as may best suit the wishes of all parties.
“Item 11th. I do further direct that the proceeds arising from the lease or rent of any or all of my “property, until my said children arrive at age, or marries, be applied to the payment of taxes on lands, and maintenance of father and mother, my said children for their schooling, etc.
“ Item 12th. And I further direct that my beloved sister, Prances Josephine, be educated out of the proceeds of my estate, and that in case the property that I have bequeathed to my son and daughter be worth the sum of twenty-five hundred dollars each, at the time of division, the valuation to be ascertained by disinterested persons, then, in that case,' they must jointly contribute a sum sufficient to purchase my said sister a negro girl worth at least four hundred dollars.” '• ,

The property devised to the son and daughter in the third and fourth items of the will, vested in them at the death of the testator, but it was not to be divided between them till a future time. While in their pupilage they were to have their maintenance and education out of the estate,, and were to live with and under the care of the father and mother of the testator, if alive, till they should be grown, or should marry,

Two conditions of dependence pertaining to his children and to his parents, seemed to be in the mind of Matthew T. Logan; first, that of the children, till they should attain mature age, and become settled in life, during which period they and. their property were to be under the care or control of their parents; and secondly, that of the. parents, who were to be cared for by the children, and to live with them upon their maturity of age, or settlement in life. Although the title of the property referred to in the third and fourth items in the will, vested immediately in the son and daughter, its control was entrusted to the father of the testator, as the executor of the will, for its fulfillment, and its use was to be applied to the support and gratification of the parents, to the maintenance and schooling of the children, to the education of the sister, and to the payment of taxes, and this was to be done till the children, or one of them should assume the care of their, or its own interest.

A consideration of all the provisions of the will shows that the use of all the property, or so much as they might want during their natural life, which is given to the father and mother by the eighth item of the will, was not a gift to them of the property, or the bequest of a life interest, but was a provision for their support and- comfort. For. otherwise the eleventh and twelfth items of the will would be inconsistent with the eighth item, and with what we believe to be the general scope and intent of the will.

John Logan, the father and executor of the testator, upon the death of his son, in June, 184:5, in accordance with the will took the children and the estate of his son, and acted in the fulfillment of the will till his death, in 1859, by which time the son had become eighteen years old, and had been in the management of the farm for a year or two before his own death, which happened the day after the death of John Logan. The daughter died soon after the death of her father. In this condition, the plaintiff, the mother of Matthew T. Logan, was left in possession of the slaves sued for, but we do not think she had any legal title to them for her lifetime, or otherwise, and the consequence is that the suit was ill advised and cannot be maintained. The circuit court erred in upholding the alleged right of the plaintiff to recover in this action, and its judgment must be reversed.

Beyond all controversy, the plaintiff is entitled to a comfortable, to an ample maintenance out of the property bequeathed in the third and fourth items of the will, to the extent of the whole of it, if that be necessary, but a writ of replevin, and a court of law, are_ not the remedy and the forum to afford her relief.