author: Gregg, J.

text:
    NEWSOME v. WILLIAMS, Adm’rx.

      Ejectment — When will not lie for possession. — Lands were sold and bond given v to malee title upon the payment of certain notes executed for the purchase money. The vendor brought ejectment for the possession of the lands; the vendee pleaded a tender and demand of deed before suit brought; on demurrer to the jilea, Held: That the plea was sufficient to defeat the action of ejeetmenl.
    A1TKAU FROM CROSS CIRCUIT COURT.
    IIon. J. M. Hanks, Circuit Judge.

      IT. M. Bose, for Appellant.

      First. Tlie plea was had because the defendant did not offer to bring the money into court. See 2 Grecnlcaf JSv., 600; 3 Chüty PL, 055-6; Slack os. Hice, 1 Bibb., 272; Fddy vs. O’Hara, 14 Wend., 221; Booth rs. ' Conneggs, 'Minor’s B. 201. The money should (have been brought into court, and notice of that fact given at the time of serving the plea. Sheridan vs. Smith, 2 JUll (A”. T.) 538; Fade vs. Fade, 1 Harr., 273. Unless brought into court when pleaded, the 'tender is of no avail. Jarboc rs. McAfee, 7 B. Monroe, 270 ;. Knox os. Light, 12 III., <86; Clark os. MuUari.e, 11 LaL, 352 ; Callen os. Green, 5 Harrington (Del.) 17; Mason, vs. Groom, 24 Geo., 211.

      Second: If the plaintiff has the legal title — and clearly lie bad, according to the statement of the plea — the defendant cannot set up an equitable title in bar. Jackson vs. Bierce, 2 Johnson’s B., 221; Jackson os. Days, Bid., 442; Jackson vs. Van Slyck, 8 Id., 487; Sinclair vs. Jackson, 8 Cow., 543; Spencer vs. Mackel, 2 Ham.., 263; Heath vs. Knapp, 1 Penn. S. B., 482; Cawser vs. Driver, 13 Ala., 838; Dixon rs. Porter, 23 Miss. (1 Cush.), 84.

      Adams § Dixon, for Appellee.
    The plaintiff, to recover in ejectment, must not only have title, but the right to immediate possession. Wilson vs. Jobes, 11 GUI $ Johnson, 351. -

      The plaintiff must have also the right of action at the time of the final judgment. If, therefore, the action be founded on a mortgage, and tie defendant, at any time before final judgment, tender to the plaintiff the amount due upon the debt, secured by the mortgage, and the cost in the action of ejectment, the plaintiff’s right of action is taken away, and lie can no longer obtain judgment in his favor in the action of ejectment. McDaniel vs. Reecl, 17 Vermont, 674; Beach vs. Beach, 20 Vermont (3 Washbi), 83 ; Cherry vs. Cherry, 26 Vermont (3 Deem)', 696.
    The right of entry should exist at the time of the commencement of the action. Brown vs. Kelly. 18 Barb., 484; Champlain and Lawrence R. R. Go. vs. Valentine, 19 Barb., 484.
    A vendee, under title bond, to whom possession has been given, is as mortgagor in possession, and cannot be evicted by vendor if he pays, or offers to pay, upon vendor’s complying with 'the contract. See Smith vs. Robinson, 13 Ark.,. 534 ; Harris vs. King, 16 Ark., 126; Moore vs. Anders, 34 Ark., 633.
   Gregg, J.

In 1861 Newsome sold to Anson Williams certain real estate in Cross county, and gave him a'bond conditioned that he would make a good and clear title upon the payment of three several notes, executed for the purchase money.

In 1866 Newsome brought his action of ejectment against Anson Williams for possession of the lands. Williams appeared before the court and filed two pleas — one, not guilty; the other, reciting the sale to him, the title bond and its conditions ; and averring that he had paid the first two notes and, that before the commencement of this suit, he had tendered to the plaintiff the full amount of the other note, and interest, and demanded of him a deed to the lands, according to the conditions of the bond, but that he failed and refused to execute such deed; and averred he was ready and willing to pay said sum, if plaintiff would make him a deed, and that no deed had ever been tendered to him, etc.

The plaintiff’ demurred this plea; the court overruled his demurrer; he rested, and the court rendered judgment for the defendant, and to reverse that judgment, the plaintiff sued out the writ of error in this cause.

The death of Anson Williams was suggested, and the cause remained oh the docket until the present term, when it was i'evived and submitted in,the name of Crella Williams, administratrix, etc.

The only question for our determination is, whether or not a tender of the money due, and the demand of a deed, before suit brought, was sufficient to defeat the plaintiff’s action of ejectment.

In more instances than one, this court has declared that if, Upon a sale of land, the vendor takes notes and gives a bond for title, he occupies a position, in legal effect, the same as if he had executed a deed of conveyance and then taken back a mortgage to secure the payment of the notes. Smith vs. Robinson, 13 Ark., 534; Harris vs. King, 16 Ark., 126; Moore & Cail vs. Andrews, 14 Ark., 633. Taking this as settled law, we must treat the plaintiff as a mortgagee.

If the plaintiff was strictly a mortgagee, he could not procure title to the lauds by ejectment; he could only possess himself of the lands, and convert the rents and profits towards the satisfaction of the debt. Had suit been brought with a view of depriving defendant of title to the lands, it should have been in chancery for a foreclosure and sale of the lands to satisfy the note. It then seems clear, if the object of the suit was not to defeat the defendant’s title to the lands, or to have them sold, but merely to seize upon the rents and profits until the note was paid, it is a suit to recover payment of the note, and if so, a tender of the amount of the note, before suit brought, ought to bar the action. But it is averred this tender was made upon condition that plaintiff would make a good and clear title to the defendant for the lands in suit. The plaintiff here insists that this was no defense to his action at law; that if available at all, it was only so by the defendant suffering judgment, and tlien resorting to a coiirt of equity to interpose by injunction until the plaintiff would make and tender sucli deed. On the other hand, it is insisted that there were mutual covenants existing; that when the defendant was bound to pay the money, the plaintiff was at that same time bound to execute such deed, and that he had no right to charge the defendant with being in default until he performed his own covenant.

In the case of Smith vs. Henry, 7 Ark., 213, which was an action on a note given on a verbal contract for real estate, this court said: “The land formed the consideration for which the writing obligatory was executed, and, therefore, the purchaser should not be compelled to part with his money without receiving a title. Smith has done more than was incumbent upon him to do; he tendered the money and demanded a conveyance, which was refused.”

In McDaniel vs. Reed et al., 17 Ves., 680, the court said: “ This action is ejectment; the tender is made upon this action, and never could be made upon it. This action of ejectment is founded upon a mortgage, and the mortgage is only an incident to the debt, and the right to recover depends upon the fact, whether at the time there is a right of action upon the debt. The tender, therefore-, was upon the debt, and if a legal tender was made upon the debt, the right of action was thereby suspended. If the right of action was suspended upon the debt, eo instanti, it was suspended upon the mortgage.”

It has been repeatedly decided that a vendor cannot maintain an action for the purchase money, without tendering a deed. Bank of Columbia vs. Hanger, 1 Pet., 465; Green vs. Reynolds, Johns., 207; Hunt vs. Levermore, 5 Pick., 397; Withers vs. Atkinson, 1 Watts, 246; Leonard vs. Bates, 1 Black., 172; 4 Black., 342; 7 Wend., 129.

If an action directly on the note for the purchase money cannot be maintained without an offer to convey, can an action seeking pay through rents and profits, which can be secured by obtaining possession, occupy any more advantageous grounds? This is but a mode of enforcing payment, and when the payment of the purchase price is the object of a suit at law, we do no see that one mode of seeking payment, In'such court, should be placed upon grounds of defense not tenable in any other.

Our court, in the case of Daniel vs. Defevre 19 Ark., 201, says : “That the plaintiff must show.that ho had a legal estate in the premises at the commencement of the suit; second, that he had the right of entry; third, that the defendant or some one claiming under him were in possession,” which was but an enunciation of well-established law; hence it is well settled that a legal title alone is not sufficient upon which to recover, but a right of possession must exist atthetimeof suing.

Mr. Greenleaf, in his work on evidence, Vol. 2, Sec. 330, says: “Payment of a mortgage debt is a good defense tó an action, at Jaw, brought by the mortgagee against the mortgagor to obtain possession of the mortgaged premises * * * and where usury renders the security void, this may also be shown, in defense, against an action brought by the mortgagee upon the mortgage.”

As shown above, it is well settled, in this State, that a vendor who sells and gives bond for title occupies the same legal relation to the vendee as one who conveys and takes amortgage back, and it is, therefore, clear that any defense that would defeat an action of ejectment by a mortgagee against the mortgagor, will also defeat a vendor who lias sold and given bond for title; and when payment of the mortgage debt will defeat the ejectment, a proper tender and refusal will have the like effect, and, as above stated, it has been long since settled by this court that, upon contracts to make titles to lands upon the payment of the purchase money, the covenants are dependant, and he, who would resort to the courts for redress, must first perform, or offer to perform his -part of the agreement: Livermore vs. Hunt, Supra; Jones vs. Gardner, 10 Johns., 268; Hudson vs. Swift, 20 Johns., 26; Withers vs. Barb, 7 Watts, 227.

It follows, if tlie facts averred in tlie plea be true, that the plaintiff ought not to recover, and the court did not err in overruling his demurrer.

The judgment is affirmed.


source: Caselaw Access Project

author: Bennett, J.

license: Public Domain

text:
    WRIGHT, Adm’r. Etc. v. CAMPBELL & STRONG.
    Equiti' Pleadixu — Demurrer for want of parties, ete. — The more fact that a. party, at the time of the execution of a deed of trust, was insolvent,"or largely indebted to certain creditors, docs not, of itself, show that other parties may bo interested in the result of a suit to set aside such conveyance, so as to render a bill for Unit purpose demurrable for the want of proper parties-

      Same — To enforce creditor’s demand allowed in Probate Court, ete. — A demand allowed, classified and adjudged by the Probate, Court to be a claim against an estate, lias the same force and effect of a judgment, and, in such case, it is not a pre-requisite, as under the general rule, that a creditor having such demand, and socking tire interposition of a court of equity to set aside a deed, should show an execution issued and.return of nulla bona.

    Executors, etc. — Cannot purchase property of testator, ete. — An executor or-administrator cannot buy any part of the estate of his testator 'or intestate: as, in equity, ho is held to be a trustee for the next of kin, legatees and creditors, and has no right to become the purchaser of the property ho represents.
    APPEAL "FROM JEFFERSON CJIIOC.T.L’ COURT.
    Hon. IIenry P>. Horse, Circuit Jud.r¡c..

      A. II. Garland, for Appellant.
    We submit the demurrer was well taken. The hill shows on its face that there are other creditors beside the complainants, and the rule, in equity, is that all persons interested should he made parties: Story Eq. PI. (Redfield’s Ed.) 76 cl

      seq.; Note 2 top page 77. Where the parties are not known it must be so charged in the bill: 'lb., 99.
    The fourth cause of demurrer is fatal, and not amendable. The complainants in their bill, by their own showing, have not exhausted their remedy and proceeding at law, 'which must be done before a Court of Chancery will interpose.
    To contest the validity of a deed, the creditors must have obtained judgment and execution: 2 Bibb., 416 ; 3 Littcll, 13; 1 Monroe, 106; lb., 233; 5 J. J. Marshall, 87; 6 Id., 83; 7 Dana, 496; 11 Ark., 40; 11 Ark., 718; 12 Ark., 387; 4 Johns. Ch. 671; 4 Id., 682-687'; 2 Id., 295-144; Ark. Code p. 143, Sect 473. Mrs. Wright was administratrix of the estate, and the law foi’bade her. purchasing the land for herself. As administratis, she was trustee for the heirs and creditors: 4 How., (U.. S.) 552 et seq.; 7 Ark. 520. The law positively forbade her dealing with the estate for her benefit: 2 Spence Eq., 299; Adams’ Eq., 59-60; Williard’s Eq., 604-606; Fonb. Eq., 445, book second, Sec. 7 ; 4 Kent, 438. Executors cannot use assets and retain profits: 4 How. (27. S.) 552; 12 Ind., 266; Hump. C. C. Reps., 225-251; 11 Foster (N. H.) 70; 29 Penn., 64; 26 Id., 67; 27 Ala., 62; 5 McLean, 4; 1 Stock (N.J,') 218.

      Bell &¡ Carlton, for Appellees.
   Bennett, J.

On the 12th day of October, 1869, Campbell & Strong filed their bill of complaint in the Jefferson County Circuit Court to cancel a deed made by Elizabeth W. Wright to Carland IT. Dorris, in trust for the benefit of her minor child, James W. Wright. The deed conveyed lands, and charged, in the complaint, to have been voluntary, and the consideration was love and affection merely. Campbell & Strong are creditors of Elizabeth W. Wright, who died in the year 1865. Their claim has been duly presented to the defendant, Hartwell T. Wright, as administrator of Elizabeth W. Wright, deceased, and the same allowed and duly classified in the Probate Court of Jefferson county. It is charged, in the complaint, that the estate of Elizabeth* W. Wright deceased, is wholly and • totally insolvent, and it would be unnecessary and useless expense to proceed further against said administrator to make complainants’ debt. It is also charged, in the complaint, that Elizabeth W. Wright was largely indebted at the time she made said deed of trust, and was at that time insolvent.

The insolvency of Elizabeth W. Wright, as charged, is admitted by all the defendants, in their answer, to be true. The making of the trust deed, and the consideration for the same, as alleged, are also admitted to be true. The defendants, however, say in their answer that the lands conveyed by the said trust deed were not the lands of the said Elizabeth W. Wright, but belonged to the estate of Joseph J. Wright, deceased, the husband of the said Elizabeth W. And the defendants say, in their answers, that Elizabeth W. Wright had no authority to make, said deed of trust, and the same was a fraud upon the rights of the defendants, Hartwell T., Mary'S, and Joseph Wright, children and heirs at law of said Joseph J. Wright. The defendants also expressly say and. charge in their answers that the pretended claim • of Elizabeth W. Wright to said lands was bought and procured by her when she was the administratrix of Joseph J. Wright, deceased, and with the money'- and credits of said estate, and with nothing else, and her purchase of said lands, each and all of them, inured to the benefit of the estate of Joseph J. Wright, and that she held them in trust for said estate, and that said lands belong to defendants, the heirs of said estate.

The answer of the defendant, Joseph Wright, in addition to the defendants’ claim, as heirs of Joseph J. Wright, deceased, also sets up and asserts a tax title to said land, by virtue of a purchase made by Thomas,H. James, at a tax sale on the 2d of March, 1868, who afterward assigned and transferred, in due form of law, his certificate of purchase to said Joseph Wright, who afterward obtained a tax deed, as provided by law.

The complainants, replying to this allegation of the answer, state and charge that Thomas S. James was, at the time of said tax sale, the attorney of the estate of Elizabeth W. 'Wright, deceased, and had "been acting as attorney for her estate for some time previous to said tax sale, and that said Thomas S. James did declare, at the time of his said purchase at the tax sale, that he was purchasing the same for the benefit of the estate of Elizabeth W. Wright, deceased, and for the purpose of defeating the mortgage of the Real Estate Bank upon the lands, and requested persons present not to hid against him on that account; all of which was known to Joseph Wright. Eor this reason the complainants, in their reply, say that this purchase by James, at the tax sale, was fraudulent and void.

A demurrer to the bill was filed in all the answers.

The record does not show what disposition was made of the demurrers, hut we shall treat them'as though they were overruled by the court below. The demurrers arc general, but the counsel for defendants insist that the bill is defective :

First. Eor want of proper parties to it.

Second. Because it does not disclose any grounds for equitable relief.

This is a bill brought by Campbell. & Strong to cancel a a deed made by Elizabeth W. Wright to her minor son, and to subject the laud conveyed to the payment of their debt. It alleges that at the time of the conveyance, she was largely indebted, as much as thirty thousand dollars,-and that she was insolvent and wholly unable to [jay her debts. It also, alleges that her estate is insolvent, and that they have no other means by which they can make their debt. These are the only allegations that can, by expression or- implication, raise the presumption that there may be other creditors or parties interested in this suit.

The fact that the estate is insolvent does not show that _ other parties may be interested in the result of the suit, because the insolvency may arise from inability to pay the debt of Campbell & Strong alone. Nor does the fact that Elizabeth W. Wright, herself, was insolvent at the time of the execution of the trust deed, and that her indebtedness was thirty thousand dollars at that time. Because, if she was owing other* parties than Campbell & Strong, at that time, that" indebtedness may have been liquidated since, and they may bo the sole creditors of the estate.

As to the want of equity. The. defendants insist that before a court of equity will interpose to try the validity of a deed, a creditor, seeking to sot it aside, must present to the court'a judgment of a court upon his demand upon which an execution has been issued and it returned nulla bona; or if the creditor would avoid the force of this rule, he must show such equitable circumstances as will relieve him from its application, so as to make his case an exception: Meux vs. Anthony et al., 11 Ark., 411.

Conceding the above to be the correct doctrine, have not the plaintiffs brought themselves within it? The record shows that the claim of Campbell & Strong was allowed by the administrator of .the estate of Elizabeth W. Wright, and that the Probate Court lias allowed and classified it, and ordered and adjudged that the same stand as a claim against the estate. This order of the Probate Court has the same force and effect as a judgment: Chap. 4, Sec. 115, Gould’s Digest; Cositt et al. vs. Biscoe, 12 Ark., 95; McMorrin, adm’r. vs. Overholt, 14 Ark., 244. Should execution have been issued on it ? It has been held in the case of Adamson et al. vs. Cummins, ad., 10 Ark., 541, that “a judgment obtained in the Circuit Court against an administrator, as such, cannot he executed until, the estate is settled in the Probate Court; hut an execution on such judgment, before it is ascertained that there are assets to pay it, is irregular.” The same doctrine has been maintained in the case of Horner, as Trustee, vs. Hanks et al., 22 Ark., 585.

If an execution, upon a judgment obtained in the Circuit Court, cannot ho enforced against an estate, we can see no reason it would lie for a creditor to to obtain an execution in the Probate Court, after lie lias had. •his claim allowed and classified. After this has been done, the administrator is obliged to pay such claims from the assets of the estate; an execution could accomplish no inore. If the allegations of the bill are true, the complainants are entitled to relief. The demurrers were properly overruled.

In determining the rights of the parties in this cause, as presented by the bill, answer, exhibits and proofs, it becomes necessary to prosecute three inquiries: .

Mrst. Was the estate of Elizabeth W. Wright in these lands impaired by reason of the tax purchase and tax deed of Thomas S. James and Joseph Wright?

Second. Was the deed of trust executed to Garland II. Dorris by Elizabeth W. Wright null and void as against the creditors of said Elizabeth W.?

Third. Did the purchase of these lands made by Elizabeth W. Wright, in 1857, of the trustees of the Real Estate Bank, and of the heirs of Wood Tucker, inure-to her individual benefit, or was she but■ the trustee for the estate of Joseph J. Wright in the purchase?

As to the first inquiry. The separate answer of the defendant, Joseph Wright, states that the lands in controversy were assessed for taxation in the year 1869, in the name of Garland II. Dorris, trustee. The taxes, costs and penalty remaining wholly due and unpaid, in due time," and in accordance with law, they were offered for sale, at which sale, Thomas S. James bid the same .off for the taxes, etc., and he received a certificate of purchase from the collector, which certificate was afterward endorsed and transferred to him, and afterward he obtained a tax deed, duly executed and acknowledged, and, by virtue of this deed, he' claims that the title to said lands, in law and equity, is vested absolutely in him. The deed is exhibited.

The answer of the complainant to this cross bill admits the tax sale and purchase by James, but charges that said James w.as, at the time of said sale and purchase, the attorney for the estate of Elizabeth W. Wright, deceased, and had been acting in that capacity for some time previously, and that at the time o± purchase of the lands at tax sale, did declare that he was purchasing them for the benefit of the estate of Elizabeth W. Wright, and for the purpose of defeating the mortgage of the Real Estate Bank of the State of Arkansas, which was upon the lands, and requested persons present not to bid against him on that account. It also alleges that the defendant, Joseph Wright, well knew these facts at the time of the endorsement and transfei-of the certificate of purchase to him.

The proof introduced fully substantiates the answer to the cross matter.

It has been laid down as a general proposition that trustees — unless they are nominally such to preserve, contingent remainders — agents, commissioners of bankrupts, assignees of bankrupts, solicitors to the commission, auctioneers, creditors who have been consulted as to the mode of sale, or any person who by their connection with any person, or by being employed or concerned in his affairs, have acquired a knowledge of his property, are incapable of purchasing such property: 2 Sugden on Vendors and, Purchasers.

The declaration of James, at the tax sale, that lie'was acting for the benefit of the estate of Elizabeth W. Wright, together with the fact that he was its attorney, placed him in such confidential relation as would come within the above general rule. Joseph Wright,knowing all these facts, attlietime of the transfer of the certificate, cannot acquire any greater interest in the lands than James himself would have had, if he had obtained the deed himself. It is clear, then, that this purchase by James is void, as between himself and the estate of Elizabeth W. Wright.

Second. Urns the deed of trust executed to Garland II. Dorris by Elizabeth W. Wright null and void, as against the-creditors of the said Elizabeth W ?

This was a conveyance of the lands in trust to Garland II. Dorris for the benefit of her minor child. Jamos W. Wright, the consideration of which, was “love'and affection.” At the time of its execution, it was admitted that Mrs. Wright was owing large sums of money, and that she was insolvent and wholly unable to pay what she owed.

The rule of law governing transfers of property, under these-circumstances, is well expressed by Chief Justice Johnson, in the case of Dodd vs. McGrew, 8 Ark., 106, and reiterated by Mm in the case of Smith vs. Yell, 8 Ark., 470, and it is that “when there is no actual fraudulent intent, and a voluntary conveyance is made to a child, in consideration of love and affection, if the grantor is in prosperous circumstances, unembarrassed and not considerably indebted, and the gift is a reasonable provision for the child, according to his state and condition in life, comprehending but a small portion of his estate, leaving ample funds unincumbered for the payment of the grantor’s debts, then such conveyance will be valid against debts existing at the time., But though there be no fraudu- - lent intent, yet if the grantor was considerably indebted and embarrassed at the time, and on the eve of bankruptcy, or if the nature of the gift he unreasonable, considering the condition in life of the grantor, disproportioned to his property, and leaving a scanty provision for the payment of his debts, then such conveyance will he void as to creditors.” See, also, Van Wyck vs. Seward, 6 Paige, 67; Salmon vs. Bennet, 1 Conn., 525.

When this trust-deed was executed the complainants were creditors of Mrs. Wright, she owing them a large sum of money. She was insolvent and wholly unable to pay her debts, and, under the rule of law, as announced in the above cited cases, we have no hesitation in saying that this conveyance and gift, being voluntary, were, as to these complainants,. absolutely void in law. See, also, the following cases: Jackson vs. Seward, 5 Cowen, 87; Rende vs. Livingston, 3 John. C. R., 481; Buckhorn vs. Jett, 1 Brockenb. R., 500 ; Hapskirk vs. Randolph, 2 Id., 138; Bullard vs. Briggs, 7 Pick., 533; Bennett vs. Bedford Bank, 11 Mass., 421; Ridgway vs. Underwood, 4 Wash. C. C. R., 137; Sexton vs. Wheaton, 8 Wheaton, 229; 2 Hovendon on Frauds, 74, and cases there cited.

"We now come to the last, and, to these complainants, the most important inquiry in the case, to-wit : Did the purchase of these lands, made by Elizabeth "W". Wright in 1857, of the trustees- of the Real Estate Bank, and of the heirs of Wood Tucker, inure to her individual benefit, or was she but the trustee for the 'estate of Joseph J. Wright in the purchase, she being its administratrix ?

The rule of law has been well settled, that an executor'or administrator cannot buy any part of the estate of his testator or intestate, as, in equity, he is held to be a trustee for the next in kin,. legatees and creditors, and has no right to become .the purchaser of the property which he -represents. We are, however, asked to consider 'the case as not within the above rule, because the administratrix, in this instance, purchased the land of a stranger, and not at public sale of the estate, and that the purchase was made with the money-borrowed of the complainants, and not from any effects of the estate of Joseph J. Wright. What are the facts ? It appears that Joseph J.,.Wright died on the 21st day of December, 1854. At the time of his death he. was residing on these lands. At the May term, 1854, of the Circuit Court of Jefferson county, a decree was obtained against Wood Tucker ■and the said Joseph J. Wright, in favor of Henry L. Biscoe, trustee of the Real Estate Bank. This decree shows that unless a certain amount of money was paid by either Wood Tucker or Joseph J. Wriglit, within a certain time, the commissioner named should have power to sell these lands. The money was not paid, and the lands were sold as ordered in the decree. The trustee of the bank became the purchaser; the commissioner' afterward making a deed, duly executed, Acknowledged and recorded. All this transpiring was before the death of Joseph J. Wright.

After Mr. Wright's death, letters of administration were granted to liis widow, Elizabeth W. Wright, on the 9th day of January, 1855, and she was duly qualified as such administratrix. On the 12th day of March, 1859, Elizabeth W.. Wright purchased these lands in her own name, of the trustees of the Real Estate Bank, and by deed, purchased the interest of the heirs of Wood Tucker, on the 22d day of December, 1859.'

Thus it is to be seen that these lands were once owned by Joseph J. Wright, but were sold, under a'judicial sale, by virtue of a decree rendered against him, in a court of competent authority. Whatever interest Joseph J. Wriglit had in the lands was transferred to the purchaser, and we can see no reason why Mrs. Wright, though administratrix of Joseph J. Wright’s estate, could not purchase them of such person,, if the transaction is not connected with fraud or collusion to the detriment of .the estate. These lands did not constitute any part of Joseph J. Wright’s estate, at the time of his death. The decree was rendered and the sale effected during his lifetime. The administratrix never took possession of them as such, nor were they ever under the control of the Probate-Court, as will appear from the inventory of the estate on file.. But it is claimed that Mrs. Wright made the purchase with the money and effects of the estate, and that the heirs have a resulting trust in the lands.

The law has never been favorably disposed to recognize trusts, created by operations of law, while it may be admissible to prove a trust in opposition to a deed or written instrument-. Yet such evidence, for this purpose, must be of so positive a character as to leave no doubt of this fact, before it can set it aside. Does the evidence, disclosed in the redord, show the money used in the purchase came from the estate oí Joseph J. Wright ?

Hartwell J. Wright, the administrator of Elizabeth W. Wright’s estate, says that she resided on these lands from the death of his father until, the time of her death, and she had no other home. He was well acquainted with his mother’s business since his father’s death, and he was entrusted by her with the maifhgement of his father’s estate, and he never knew of his mother owning any property, real or personal, in her own right, except some claim that may be set up by deed from Gordon N. Peay, receiver of the Real Estate 'Bank, executed the 1st of March, 1859. The only source of income that his mother had, and all she had to depend on for her living, was the proceeds of the lands above mentioned. In all her business transactions, the 'money that she had or used was derived from the proceeds of these lands.

The testimony of Thomas S. James is about to the same effect — no more definite'or more conclusive.

This is all the evidence, in the least tending to show, either by expression or implication, that the purchase money for these lands came from the estate of Jos.eph J. Wright. No evidence whatever, as to how much money ever was received by Mrs. Wright from the estate; what was the yearly value of it, nor as to how much money ever was in her hands belonging to it. On the contrary, we have the direct testimony of M. L. Bell that he knew that Mrs. Wright purchased bonds to pay the Real Estate’Bank for these lands about the year 1858, or spring of 1859, and that he knew she borrowed money from the complainants, Campbell & Strong, to purchase the bonds. Paschal W. Strong, one of the complainants, also testifies, that “ on the 12th day of Febniary, 1859, Campbell & Strong advanced to her twenty-five hundred dollars in cash, and on the 4th day of November, 1859, they accepted her three drafts on them for twenty-seven hundred and forty-five dollars — the three amounting to the sum of $8235. The money previously borrowed, with the drafts, amounting, in all, to $10,735. Mrs. Wright said, at the time she obtained it, that she wished to use it in the purchase of the lands belonging to her father’s, estate. This direct evidence, as to the procurement of the money, taken in connection with the fact that the purchase was made immediately afterwards, and the declaration of Mrs. Wright, that that was what she desired of it, must be considered as conclusive that she did not use the money of tlie estate in tlie purchase, but she obtained the means of these complainants. The lands not belonging to the estate of Joseph J. Wright, and she not using the money or effects of that estate, with which to make the purcháse, she had a right to'take the title in her own name for them, and as such, they must be held subject to the payment of lior just and lawful debts.

The decree of the chancellor below does not make any final disposition of the tax-deed of Joseph Wright. This deed having been found to be void as to the interests of Emma W. Wright, the decree should so declare. With this modification the decree of the Jefferson Circuit Courtis in all things affirmed.


author: English, Special Judge.

text:
    GREENWOOD & SON v. MADDOX & TOMS.
    CoxstitutiojXat. Law — Construction of Section 3, etc., Article XII. Constitution.— Section 3, Article XII. of the Constitution, respecting the exemption of homesteads, is to be construed in connection with Sections 1, and 2 of same Article, and so construed, it exempts all homesteads from sale on execution or other final process, except in the instances in the sections named, and it does not, by any-of its expressions, limit the benefit of this exemption to ■married 'men or heads of families.

      Same — Unmarried men may encumber homesteads, etc. — While, under the provisions of the Constitution, the homestead of an unmarriedman is protected from sale on execution, except in the instances therein expressed, yet he is . left free to place incumbrances upon it, which a married man or head of a family is forbidden to do.

      Same. — Tenant in common, when entitled to homestead. — Where lands held in common are levied upon, a tenant in common is at liberty to apply for partition, and after partition, by fixing his dwelling thereon, will bo entitled to the benefit of the homestead exemption.

      APPEAL EROM MONROE CIRCUIT COURT.
    Hon. M. L. Stephenson, Circuit Judge.

      Hughes & Smith aucl Wassel if Moore, for Appellants.
    We submit that tbe appellee, Toms, was not entitled to a homestead. For the determination of this question, we assume that there is no substantial difference between the old statute (Gould’s Digest, Chapter 68, Section 29,) and the constitutional enactment (State Constitution of 1868, Article XII. Section 8.) By the old law, the requisites for claiming this privilege were:

      First. Citizenship, which this court in McKenzie vs. Murphy, 24 Ark., 155, construed to mean residence; and,

      Secondly. The qualification of being a householder or head of a family.
    The constitutional requirements are, residence, ownership and actual occupation. The constitutional provision is no broader than the old statutory provision, so far as this case is concerned, even if it is so broad. The object of the homestead law is a humane and a benificent one. The object is plainly not to enable men to evade the payment of their debts but to protect the family from the improvidence of its head : “to provide a home where the family might be sheltered, and live beyond the reach of financial misfortunes.” ' Wassell vs. Tannah, 25 Ark., 101. “To afford a home to the family of which the householder was the head, irrespective of his liabilities. The statutes intended no individual benefit for the head of the family; disconnected from it, the head of the family was entitled to no consideration.” McKenzie vs. Murphy, 24 Ark., 159.
    Could Toms claim as a homestead an undivided one-third interest in a tract of land containing 320 acres ?
    The Constitution requires the claimant to be the owner and occupier. Toms was a tenant, in common with his two sisters. Until partition should be had, he had an interest in each and every one of these 320 acres. Upon partition, he might have had allotted to him more or less than 160 acres. Before partition, he was not the exclusive owner of a single acre. The third declaration of law is therefore not altogether free from doubt.

      A. II. Garland, for Appellees.
    "We submit that the finding; of the court below, both ‘as to' the law and the facts, was correct.

      First. That Toms, although not a married man, was the head of a family within the meaning of the Constitution and in contemplation of law", and as such, entitled to the homestead exemption. See Wade vs. Jones, 20 M'o., 75; Puehanan vs. Gran far, 3 Humph., 216; WasMurp, on Ileal Property, -325, 380.
    As to the position contended for by appellants, that the homestead is not exempt from the collectioir of this debt, because it was contracted, as alleged, for the purpose of erecting valuable improvements thereon, we submit that in this, they are neither sustained by the law or the evidence. ¡See, as to fixtures, 1 Wash. P., Prop. 14, 20; lb. 133-4. That Toms, if a tenant, had a right to remove the engine, etc. See Floes vs. Meade, 12 Smith’s Leading Cases; Holmes vs. Tramper, 20 Johns’ Pep., 29; Wainsborongh vs. Morton, 4, Adoph ¿¡; Filis, 884 ; Gulling vs. Tufold, Puller’s Nisi Prims, 34; 1 Salk Pep., 363 ;°Atk. Pep. 477.
   English, Special Judge.

Rioses Greenwood & Son, merchants of New Orleans, sued Maddox & Toms, in the Monroe Circuit Court, on a note for $2707 14, dated 14th. April, 1870.

Upon an affidavit that the defendants had removed a part of their property out of the State, etc., a writ of attachment was issued and returned by the sheriff, levied on an undivided third interest of Tonis in the n’ortli-eas^ quarter of section 23, and the no.rtli-west quarter of section 24; township 1 north, range 3 west, 320'acres ; and, also, upon an engine, gin, machinery, etc., found on the premises. Both of the defendants were also personally served with process.

At the return term, May 1871, Toms filed a motion-to quash so much of the return of the sheriff, on the writ of attachment, as showed a levy upon his undivided one-third interest in' the lands. As grounds of ‘the motion, it was stated, in substance, that Toms was a resident of the State, and the head of a family; that he owned an undivided third of the lands attached, the other two-thirds being owned by his two minor sisters, of whom he was guardian; that the promises consisted of 820 acres, a part of which was improved, and a part unimproved lands; that his portion, upon a division, would amount to less than 160 acres; that the mansion house, on the premises, was the common residence of Toms and his minor sisters ; that he claimed his interest in the premises as a homestead, exempt from levy and sale on attachment, execution, etc.; that,, the demand of the plaintiffs did not arise prior to the adoption of the present Constitution, etc.; that the lands were not in any town, city or village ; and that the debt sued on, was not contracted for improvements made upon the lands within the meaning of the homestead provisions of the Constitution, etc.

To the motion of Toms to quash the levy upon the lands; a response was filed for the plaintiffs, in which it was denied that Toms was the head of a family, within the meaning of the exemption laws, etc., and avering that he was not, and never had been a married man. It was admitted that he had two sisters, who were under age, but denied that the sisters resided with him,.or were in any manner dependent on him for support and maintenance, inasmuch as they were the owners, in their own rights, of a handsome estate, amply sufficient to support and educate them. Averred that the whole or a greater'portion of the debt, sued on, was contracted by the defendants in the erection of valuable improvements upon the premises claimed by Toms as exempt from execution or attachment, etc.

It seeriis that the court rendered judgment, at the May term, 1871, against both of the defendants for the amount of the note sued on, and condemned the engine, etc., attached, to be sold as personal property in satisfaction of the judgment, but took the motion of Toms to quash the levy on the lands under advisement until the next term.

At the November term, 1871, the motion was decided. The court quashed the levy on the lands, and overruled a motion for a new trial. .Prom a bill of exceptions taken by the plaintiffs, it seems that, upon the hearing of the motion, the following evidence was introduced by the parties.

Toms testified, in substance, that he -was about twenty-two years of age, and by occupation a farmer. That, he was a resident ■ of the State, and resided upon the lands attached.' His interest in the lands was an undivided third; the other turn-thirds belonging to his sisters, Clarinda and Sallie. The .three inherited the lands from their father. He, Toms, kept house, and the house occupied was his ancestral residence. He had never been married. *IIis sisters, whose ages were respectively fifteen and twelve, resided with him when they were not at school. He was their legally constituted guardian. They had the same interest in the property that he had. They owed no debts, unless perhaps for current bills for board, tuition, medical attention, store bills, etc. He urns considerably in debt. The consideration of the note, in suit, was in part a steam engine and machinery purchased by Maddox and himself of plaintiffs. They were partners, engaged in the- business of farming. The note, was made in April, 1870. The engine and machinery were placed upon the lands, .in .question, in the fall' of 1869. The engine urns used as the motive power of a cotton gin. It was a portable engine. He did not mean that it could be carried about in one’s hand’s, or by a man on horseback, but that it could be moved on a stout wagon with adequate horse power, or oxen. Portable engines are distinguished from stationary ones by this, that the former are constructed with a special view to being readily removed from place to place. The engine in question had never, in point of fact, been moved from the place where'it was first put. It had a rough plank shed over it to protect it from the weather. It rested upon sills placed upon the ground, and could be easily removed without injury to the freehold. The cost of the temporary covering was no part of the debt .sued on. The engine might be removed to any other place, or attached to any other gin, or used for driving any other 'machinery, without substantial injury to the freehold or to the engine itself. The debt represented by the note, sued on, was not contracted altogether in the purchase of the engine and machinery. A portion of it was supplies furnished Maddox and himself.

Burton, a physician, testified that Toms lived at the same place where his father had lived liofore him. lie was the guardian of his two minor sisters, who were -then boarding with witness, in Clarendon, going to school.

Maddox testified that the plaintiff's were commission merchants of New Orleans. That the note sued on was given in settlement of an account due by Toms and witness to them, the principal item of which ivas an engine and machinery, and the balance was for supplies furnished. The engine, etc., was purchased by them in the fall of 1869.

Wilburn testified that he had known Toms from his boyhood. lie resided on the same place where his father reside'd in his lifetime. Describes the engine, etc., about as Toms did in his testimony.

The court made'the following declarations of law:

“The court declares the law to. be that any resident of this ' State, who is the owner of any real estate in the same, is entitled to the benefit of the provisions of the Constitution in relation to the homestead.

“That a married man or the head of a family cannot legally encumber his homestead in any manner except for taxes, laborers’ and mechanics’ liens, and security for the purchase money thereof. This provision does not extend to residents of the State not married men or the heads of families.

“ The undivided interest of any iegatee or distributee, re- , siding upon the estate of a deceased person, is not subject to sale on execution, or other process, but the owner is entitled to the homestead exemption as against any debts of his own contracting.

“ That supplies for the purpose of carrying on a trade or business, and which-were not furnished directly as betterments to the realty, although they may be placed upon the homestead, are not such as is contemplated by law a's advanced for the erection of and as improvements thereon.” ’

The plaintiffs excepted to these declarations of law.

The court found the following facts: “That Maddox & Toms were partners in the business of planting upon the estate of Henry Toms, deceased, who was the father of one of the defendants. That this defendant, Toms, resided upon the property which was the home place of his father, and was one of the heirs of the estate. That .defendants contracted a large debt with the plaintiffs for supplies to be. used in the carrying on of their business of planting, and that the note sued on uas given for the balance on the settlement of their account. That among their other purchases defendants bought of the plaintiffs a portable steam engine, mill and cotton gin, -which was intended, and was so understood by both parties, to be placed upon the plantation for the purpose of better enabling the defendants to prosecute their business of planters. That said machinery was placed ■ upon the premises, but was not attached to the soil. That a shed was erected over said machinery, but that no part of the supplies furnished-by the plaintiffs-was used in the erection of said shed. The court, sitting as a jury, finds the issue, so far as the attachment upon the land is concerned, for the defendants.”

The plaintiffs appealed to this court.

First. It does not appear that the court below found, upon the facts of the ease, whether Toms was the head of a family or not, but, in effect, declared the law of the case to be that lie was entitled to tlie benefit of tlie homestead exemption, as against tlie attachment and sale under execution, though not a married man or the head of a family.

By the statute in force at the time the present Constitution-was adopted, every free white citizen of the State, male or female, being a householder, or head of a family, was entitled to a homestead exemption. The homestead consisted of not exceeding 160 acres of land in the country, and a town or city lot, being the residence of a householder or head of a family, with tlie improvements thereon, without limitation as to value. It ivas exempt from sale on execution, except for taxes, but there was no prohibition against incumbrances. Gould's Dig., Ch. 68, see. 29, 30, 31; Acts of 1866-7, p. 311, sec. 6.

This statutory homestead exemption was allowed to no one but a householder or head of a family, but the benefit of the exemption -was continued to the widow, child or children; after the decease of the owner, etc. Sec. 30, uh. sup.

A householder is the master or chief of a family; one who keepshouse with his family.— Webster. A person having and' providing for a household. — Bouvier.

In McKenzie vs. Murphy, 24 Ark., 157, Mr. Justice Fair-child, remarking upon.this statute, said: “The object of the statute was to afford a home to the family of which the citizen, the householder, .was the head, irrespective of his liabilities. The statute intended no individual benefit for the head of the family; disconnected from the family, the head of it ivas entitled to no consideration; but the family, when deprived of its head by death, ivas to have the protection of the act by holding the land, or town or city lot, upon which the family residence was situated, exempt from execution, so long'as either was occupied and used as the residence of the family of which the deceased head was the representative.” In Tumlinson vs. Swinney, 22 Ark., 414, the Chief Justice said of the same statute: " “ The legislature intended to secure to the householder, or head of a family, a homo, a dwelling place, free from the claims of creditors, and protected from the invasion of the officers of the law — an asylum,-where the family may live in independence and security, and which they may improve and make comfortable, without the fear of being deprived of it, and turned houseless and homeless upon the world, by improvidence, or by tbe misfortunes and vicissitudes incident to life.”

If, while this statute was the law of the homestead, a man had lived, from'choice or necessity, in his house by himself, and done his own housework, without wife, children, dependent relations, or domestics, he would not have been entitled to the benefit of the exemption. The officer of the law, armed with an execution, might have invaded his asylum, and deprived him of whatever comforts he derived from his solitary and cheerless home. It may be remarked, also, that, under the provisions of Chapter 68, of Gould’s Digest, but a small exemption of personal property was made in' favor of a person not the head of a family — the wearing apparel, tools of a mechanic, books, etc., of a minister, teacher, lawyer, physician, etc., Sec. 22, 28 — whilst a more liberal allowance was made to the married man with a family. Sec. 28..

After the war, when the people were impoverished, and many of them in debt, the exemption of personal property in favor of a married man, widow or widower having a family of children, or persons having the care or maintenance of a minor child or children, was liberally enlarged; and the exemption in favor of a class of persons, male or female, living alone, without families, was also increased. Acts of 1866-7, p. 309.

Thus stand, substantially, the law of the homestead exemption, and the law of the exemption of personal property, at the time the present Constitution was adopted, in 1868. When the convention assembled, the State was still laboring under the impoverishing effects of the war; the people were yet much in debt, and Congress had passed a bankrupt act. At an early day of its session, a committee on exemption of real and personal property ivas appointed: Debates and Proceedings of the Convention, p. 61. The committee framed' and reported provisions to be inserted in the Constitution, lb. p>. 205. After some discussion on the expediency of making constitutional, instead of legislative exemptions, the provisions reported by the committee, were referred to the committee on the Constitution, its arrangement and phraseology. Ib. p. 358-861. This committee made some changes in, and additions to the provisions referred to them, and, as amended, they were adopted as Article XII, of the Constitution, under the title, Exempted Property.

Sec. 1, of this article, provides that: “ The personal property of any resident of this State, to the value of two thousand dollars, to be selected by such resident, shall be exempted from sale on. execution,” etc. This exemption is not limited to married persons, of heads of families, hut is allowed to any resident of the State. The distinction made in the exemption statutes, above noticed, between persons with, and without families, was not kept up in this section.

Sec. 2 of the same article provides that: “Hereafter the homestead of any resident of this State, who is a married manor head of a family, shall not he incumbered in any manner while owned by him, except for taxes, laborers’ and mechanics’. liens, and 'security for the purchase money thereof.” This section simply places a limitation upon the power of a married man or head of a family to incumber the homestead, and was designed for the benefit and protection of families, wives, children or other dependent persons, etc., — a provision which was not in the homestead statute, which only protected the homestead from sale on execution. This section does not prescribe the quantity nor the value of the. estate that is to constitute the homestead, nor protect it from sale on execution, nor does it expressly or by necessary implication limit the homestead exemption to married men or heads of families.

.Sec. 8, provides that: “Every homestead, not exceeding one " hundred and sixty (160) acres of land, and the dwelling- and appurtenances thereon, to be selected by the owner thereof, and not in any town, city or village; or in lieu thereof, at the option of the owner, any lot in a city, town or village, with the dwelling and appui’tcnancos thereon, owned and occupied by any resident of this State, and not exceeding the value of five thousand dollars, shall be exempted from sale on execution or any other final process from any court; but no property shall be exempt from sale for taxes, for the payment of obligations contracted for the purchase of said premises, for the erection of improvements thereon, or for labor performed for the owner thereof,” etc.

'This section limits the quantity of land that is to constitute the homestead in the country, as well as in the towns, etc., and certainly places a limit upon the value of the homesteads of the towns, etc., if it does not limit the value of the country homesteads. It also exempts all homesteads from sale on execution or other final process, exceptin the instances named; and it does not, by any of its expressions, limit the benefit of this exemption to married men, or heads of families, but seems, by fair interpretation of its language, to extend to any resident of the State. And this construction is in harmony with the first section, which relates to the exemption of personal property from execution, etc.

This conclusion is adopted after mature deliberation, though not free from all doubt, because of the want of clearness and accuracy in the expressions of the third section, but the conclusion has been reached by construing this section in connection with the other sections of the article.

The court below might well have found, upon the facts in proof, that Toms was the head of a family. lie succeeded his deceased father in the care of his minor sisters, who continued to live with him in the family mansion, when not at school. 1 Washburne on Real Property, top page, 327.

But the question whether a man not married, or the head of a family-is entitled to a homestead exemption from execution. is directly presented by the record in this case, and we have deemed it a duty to decide it, .though, it may rarely happen that a man will be the solitary occupant of his home and dwelling place, unaccompanied by any of the persons ordinarily constituing a family. Still, if he resorts by choice, or from necessity to that'lonesome life, the framers of the Constitution seem to have intended to protect his homestead from sale on execution, except in the instauces expressed, though he is left free to place incumbrances upon it, which a married man or head of a family is forbidden to do.

Second. Was Toms entitled to a homestead exemption in the three hundred and twenty acres of land, which he hold as _ a tenant in common with his two sisters, before his interest had been severed, by partition, and his dwelling fixed upon the share allotted to him? Át the time he made the motion to quash the levy, returned by the sheriff upon the writ of attachment, he was not the owner of any particular portion, or acres of the land, but had an equal interest with .his sisters in all of the acres, and the dwelling and appurtenances thereon. Ilecertainly had the elements out of which he could cause a homestead to be formed, by having the land partitioned, and fixing.his dwelling on the share allotted to him, if the ancestral mansion-did not fall upon the portion assigned to him. At the time he made the motion to quash the levy, he had taken no step to have the land partitioned. If the court, on the one hand, had refused to quash the levy, and left the appellants at liberty to take out an execution, and sell his entire interest in the lands, he might have been deprived of his right to perfect his homestead claim, or of the privilege of putting himself into a condition to protect his homestead exemption — if, indeed, the sale would deprive him of that right. See Hughes vs. ■ Watt, 26 Ark., 228. On the other hand the court quashed the levy, and thereby deprived the appellants of an opportunity of having the benefit of a sale of any portion of the land in any event. This might work a wrong, because some of it being improved, and some unimproved, and the former being more valuable than the latter, it might turn out upon a partition that Toms •would get'for his share unimproved lands, embracing more than 160 acres, the limit of the homestead right, and the appellants could sell the excess; or ■ it might happen that the ancestral mansion would not be upon the share allotted him, and he might not choose to fix his dwelling-on it, and in that event, the appellants would have the right to cause his share to be sold under execution. ~We think the-better practice would have been, in the absence of statutory-regulations, for the court not to have quashed the levy, but to hav,e left the appellants at liberty to take out their execution, and Toms at liberty to apply for partition, etc. If it may be said that the appellants might be too fast for him with their execution, it may be answered that he could obtain án injunction to stay the sale until his homestead right.could be ascertained and forfeited.

We.are aware that it has been held, in California, that a. homestead cannot be claimed by* a tenant in common, on the ground that no provision is made by the homestead statute of that State for partition. Wolf vs. Fleishacher, 5 Cal., 244; Gibbin vs. Jordan, 6 Cal., 417. So in Indiana and Massachusetts, 1 Wash., on Real Prop., top p. 388. But it has been ruled otherwise in Iowa, Thorn vs. Thorn, 14 Iowa, 49, and in Vermont, McCreary vs. Bixby, 36 Verm., 254, 257, and we prefer the. reasoning of these decisions. See also Horn vs. Tufts, New Hamp., 479.

Here there is no trouble about partition, for the application for partition might have been made in the court which quashed the levy. Gould’s Dig. Ch. 811.

Third. The remaining question is whether tliemote, sued on, is an “ obligation contracted for the erection of improvements ” on the land in question, within the meaning of the third section of .the 12th article of the Constitution? The engine, etc., for which the note was in part given, was purchased of appellants, by Maddox & Toms, ms partners, and placed on the premises as a motive power to the gin, etc., to be used in their partnership planting business. Maddox had no interest in the land. As between him and Toms, it did not become part of the realty, but remained personalty, ■and was subject to their partnership debts. Toms was only a tenant in common with his sisters, and they could not have claimed that the portable engine, placed on the land by him .and his partner, for purposes connected with their planting business, became part of the realty. If Toms had been the .sole owner of the land, and purchased the engine and placed it on the premises for his own purposes, and the controversy had arisen between him and a vendee to whom he had sold the land, there might be a question whether it was not a fixture, and passed with, and as a part of the realty. 1 Wash. on R. Prop., top pages, 16, 17.

Upon the facts of this case, the engine, etc., was surely not an improvement erected on the property within the meaning of the clause of the Constitution in question. As held by the •court below it was no permanent betterment of the property.

For the reasons, however, above indicated, we think the ■court below should not have quashed the'levy upon the lands, and the-judgment of quashal must be reversed, and the cause remanded with leave for the parties to take such further step ¿is they may deem proper, not inconsistent with this opinion, etc.

Stephenson, J., being disqualified, did not sit in this ease.

IIon. E. IT. English, Special Supreme Judge.


author: Stephenson, J.

text:
    TURNER, Adm’r. v. LASSITER et al.
    Vendoji’s Lien- — Enforcement of when tender of deed impossible, etc. — Where-the holder of a note, given for the purchase money of real estate, desires to-subject the land to its payment, and the right to do so depends upon the-making and delivery of a deed to the land, to the vendee, he must tender a deed with his bill, or, if the tender is impossible or impracticable, he must offer to make it, when ascertained by the court to whom it should bo made;- or, if the disability exists upon the part of the vendor to make the deed, when such disability is removed 'by the court.
    APPEAL FROM ASHLEY CIRCUIT COURT.
    7Eon. Henry 7». Morse, Circuit. Judge.

      Johnston cf Hawkins and TJ. M. Rose, for Appellants.
    Ve submit, tlio court erred in sustaining .the demurrers.
    Between the plaintiff and Leach, the assignee of C. J. Lassiter, and the heirs at .law of Lassiter, no personal, mutual and reciprocal rights and obligations exist.
    The plaintiff has no right, in law or equity,, to demand the payment of money«from either of the defendants. Nor can. they or either of them, by any right in law or equity, demand a deed from plaintiff. The plaintiff', in his suit, is not seeking to recover judgment against either of them personally for the money. The proceeding is in vein against the land only.
    The rights of the defendants, Sumner and Van Gilder, are wholly dependent upon the rights and equities of the other defendants, pendente lite. See Story’s Equity, edition of 1886,. vol. 1, secs. 405-406.
    ■7. IF. Van Gilder, for Appellees.
    That the demurrer was properly sustained we submit r

      First. There is no equity in the bill, because it fails to allege, with sufficient certainty, the facts that ivould constitute a lien upon the land in favor of plaintiff’s intestate. It states a sale without stating when, but states that after said sale'in 3862., Lassiter acknowledged lie owed $2000, and gave his note. It does not state whether there was a contract in writing, or a bond for title given or not. This, we thiuk, a fatal defect.' Story on Eg. Pleading, sees. 23 and 257 ; Harrison vs. Nixon, 9 Pet., 483 ; 22 Ark., 227; 1 Hilliard, on Mortgages, chapter 23, section 57.
    The second cause of demurrer is also well taken.
    The complaint docs not tender or offer to tender a deed, which is certainly fatal. 26 Ark., 506/
    The bill docs not even bring the heirs of Holloway as parties into court, so that a deed could be decreed. 18 Ark., 24.
   Stephenson, J.

On the 18th day of January, 1868, Milton Holloway filed a bill in the Ashley Circuit Court, on the Chancery side, against Francis Lassiter, Laura and Jones P. Smith, James M. Leach and James Mcrriweather, to subject certain lands, in Ashley count}', to the payment of the purchase money thereof, and to cancel and set aside an outstanding adverse title set up by M’orriweather.

The bill alleged that G. J. Lassiter, in his lifetime, purchased the lands from the complainant, who gave him possession and took his note for $2000. Soon after the sale, Merriweather brought suit, by ejectment, against Lassiter, to recover the lands; claiming title through the Swamp Land office, and a condition was annexed to the note, at the request of Lassiter, and by consent of complainant, that if the.title of the latter should be maintained, the money should be paid; otherwise, if Merriweather’s title prevailed. Merriweather’s suit had been dismissed for want of prosecution, and abandoned by him, and Lassiter had sold the lands to Leach, who had full notice of the non-payment of the purchase money; that C. J. Lassiter has departed this life, and no administration has been had upon his estate; that Francis Lassiter and Laura Smith are his only heirs at law; that Jones P. Smith is the husband of the said Laura, and that all the defendants are non-residents of the State.

Notice was duly had on all the defendants, and at the-term of the Ashley Circuit Court a decree, pro confesso, was taken-against Leach and Mcrriweatlier. The other defendants appeared and demurred to the bill for want of equity and for multifariousness.

At this stage of the proceedings, the records of the court wore destroyed by fire, and on the 2d of August 1869, Iloiloway having departed this life, his administrator, 'William Turner, filed a petition setting out all tlie above facts, and asked that tlie cause be reinstated.- -

The record shows no service on the defendants in the petition, but the written consent of Laura and Iones P. Smith, to reinstate, is filed.

At the March term, 1870, John Sumner and John W. Van Gilder presented their petition to the court to be made defendants, alleging that they were the then owners of the land. The court granted the petition.

At the Eall term, 1871, tlie court sustained the demurrer of Francis Lassiter and the Smiths interposed prior to the'destruction of the record, and gave leave to Turner to amend-his bill.

At the spring term, 1872, the amended bill was filed. From the nature of the amendments, it is evident that the demurrer was sustained on the ground that the bill was multifarious, from the fact that the name of Morriwoathor, as defendant, is stricken out; also the prayer for relief against his title. With these exceptions, the bill alleges the same facts as the original, with somewhat more circumstantial particularity. To the amended bill, Sumner and Van Gilder demurred for want of equity, and because no deed was tendered before the suit was brought.

The court sustained the demurrer and dismissed the bill, and Turner appealed.

The record shows the suit to have been improperly reinstated. No notice- appeal’s to have been given of the petition to reinstate, as required by law: Gould’s Digest, Chap. 143, Sec. 5. The agreement of the Smiths to reinstate could not bind the other defendants and it was necessary, before the court could properly proceed, that all the defendants should been brought in. It is evident, therefore, that for this error, which affects every subsequent step taken, in the cause, the decree of the court must be reversed. But, inasmuch as the appellant may properly reinstate his case, in order that he may have it properly adjudicated, in the court below, without again bringing it here, we will proceed to the examination of the subsequent questions presented in the record.

If the defendants had all been in court, the demurrer to the' original bill might properly be sustained, for the settlement of the dispute between Holloway and Merriwoathor, as to the adverse title of the latter, ivas wholly independent of and unconnected with the cause here at issue. But it was certainly incumbent on the administrator, inasmuch as the legal title to the land ivas in the heirs of Holloway, to bring them before the court to enable it to decree a deed, if such step became necessary to the proper determination of the case.

The.court erred in letting in Sumner and Van Gilder to defend upon the showing made in their petition. They base their right to come in simply upon the ground that they are the present owners of the land. For aught thatappears hi the record, tliei' may claim title through Merriwcather; and to allow them to come in upon this petition, is, in effect, to reinstate the error which was pointed, out by the demurrer to the original bill, and cured by the amendments thereto.

Sumner and Van Gilder demur to the amended bill, because no deed was tendered before suit ivas brought. • If they had been in court as original defendants, or as holders through Lassiter, and no tender of, or offer to make a deed had been made in the bill, this would have been a substantial objection; but it is evident that they were not the owners of the land at the time Holloway filed his bill, and since, there has arisen an emergency which renders a compliance with the contract, according to its literal terms, impossible.

Holloway is dead, and before a deed can be made by Ms heirs, the aid of a court must be invoked. To require a deed to be tendered, iu such a case, before suit was brought, would be to require a manifest impossibility. And so where the vendor desires to subject the land to the payment of the purchase money, but the vendee is a non-resident of the State, or any other substantial reason which would render a tender impossible or fraught with doubt as to whom it should be made.

Where, the holder of a note, given for the purchase money of real estate, desires to subject the land to its payment, and the right to do so depends upon the making and delivery of a deed to the land to' the vendee, he must tender a deed with his bill, or, if the tender is impossible or impracticable, he must offer to make it, when ascertained, by the court, to whom the santo should be made; or if the disability exists upon the part of the vendor to make the deed, when such disability is removed by the court.

There is no appearance, in the record, of any order b" the court, reinstating the cause. The petition to reinstate is a suit, in court, upon which there must be a determination and judgment; until this is done, the court canuot proceed with any question touching the original cause.

The decree of the Circuit Court is reversed, and the cause remanded with directions to allow the appellee, if ho so deems, to reinstate the causo and amend his bill.


author: Rennistt, J.

text:
    HANGER & MOODY v. THE STATE.
    Real Estate Baxk — Stock mortgage, nature of, etc. — The Mock mortgages executed to the Real Estate Bank, were made for the double purpose of securing the payment of the State bonds, and money borrowed of the hank by the stockholders.

      Mortgages — Where equity of redemption of sold, etc. — Where the equity of redemption in mortgaged promises is sold under a judgment, or under a junior mortgage, which judgment or mortgage is a lien upon the equity of redemption merely, the legal presumption is, that the purchaser only bids to the value of such equity- of redemption, and that the land purchased is, in equity, the primary fund to pay? the amount due upon the prior bond and mortgage.
    APPEAL FROM PULASKI CHANCERY COURT.
    Hon. T. J). ~W. Yon ley, Chancellor.

      Clark ^ Williams, for Appellants.
    Ry the general nature and purposes of the hank, without any reference to its positive provisions, it seems to us plain that the hank could not, either by a foreclosure in a Court of' Chancery, or under the power of seizure and sale contained in the charter, become the owner of these lands in her corporate right, so that they would belong to the general funds. But if we turn to the provisions of the charter, we shall find that such a proceeding is expressly, or rather by direct implication, prohibited; Bee 21.9i section; and as for the construction of this section, which is incorporated in most of the hank charters,oas well as charters for insurance’companies in tire United States. See Bank of Michigan vs. Niles, 1 Doug. Mich., 401. And see Iiiisscll vs. Tapping, 5 McLean, 194; People vs. Utica Insurance Company, 15 Johns., 858; Utica Insurance Company vs. Scott, 8 Cow., 709; Farmers’ Doan Company vs. Clawcs, 3 Comst. 470; The Banks vs. Poitiavr, 3 Band., Va., 186; Tuamaston Bank vs. Simpson, 21 Me., 195 ;‘ Logan vs. Bodalett, 1 Blackf., Ind., 418-419; Angelí and Ames on Corporations, 153, 154, 155; Merreft rs. Lambert, 1 IT/df, C. B. 166.

      Iii our view of the ease, the purchase of those lands, in such manner as to convert them. into banking funds, was an act which could not possibly come within this proviso ; because it was, in no sense, done as a “requisite for accommodation in relation to the convenient transaction of the business of the bank ;” and if it was,.it was not land which had been mortgaged to the hank in satisfaction of a debt previously contracted in the course of its dealings, both of which must concur to give the right to purchase. See the case above cited, and Edwards vs. .Earmers’ Insurance Company, 21 Wend., 467.

      M. W. Benjamin, Solicitor General, for the State.
    Thorn mortgaged to, the Real Estate Rank certain lands. These mortgages were double mortgages, the senior to the State and bondholders and the junior to the hank. See Wilson vs. Biscoe, el al, 11 Ark., 44. Thorn failed to pay and the bank foreclosed and bought in the property. The receiver sold the right of the hank (the equity of redemption) to Moody & Hanger.
    Peay, in his capacity of receiver, was not and did not claim to be the State of Arkansas, and if he had bpen, there would have been no merger of the two titles in one, unless he had intended to make it. It is a well settled rule, that where two ■estates meet, in equity, there is no merger unless it is the intention of the party in whom they meet, to have them merge-See Eorbers cf Moffett, 18 Vesey, 384; James vs. Morey, 2 Coioen, 246; Davis vs. Peirce, 10 Min. 378; Earle vs. Washburn Alien, 95; Bell vs. Woodward, 34, N. Hi, 90; Knowles vs. Jjawlin, 18 Geo., 476; Moore vs. Harrisburg Bank, 8 Watts, 138; Haynes vs. Popé, 14 La. An., 248; Hawkins vs. MeVae, 14. La. An., 334.
   Rennistt, J.

The bill, in this case, is brought to foi’eelose a mortgage given by Thomas Thorn to secure the' payment of a stock bond executed by Thom to the Real Estate Bank of the State of Arkansas, and to subject certain lands, therein described, to the payment of a debt, which, as is alleged, was secured by said mortgage.

By the bill, it appears that one David Fulton, subscribed for one hundred shares of the capital stock of the Real Estate Bank. That, on the 16th day of September, 1837, the proper officers of the bank awarded to said Fulton seventy-two shares of said capital stock, whereby he became a stockholder in the bank to that number of shares; that, on the 16th day of May, 1840, on his application, and the written request of Thomas Thorn, his stock was transferred to said Thom, who furnished and executed the mortgage exhibited in the bill. This deed of mortgage recites that, on the 16th day of May, 1840, Thomas Thorn executed his bond, to be due on the 26th day of October, 1861, and-payable to the bank for the sum of seven thousand and two hundred dollars, with interest at the rate of five per cent., payable half yearly. The bond was executed for stock subscribed as aforesaid. The mortgage was conditioned, that if the said Thorn or his assigns should pay all such sums of money as he might receive from the bank, on account of stock and the interest thereon, and should pay to whom it might be due, so much or such sum of bonds of the State, issued in favor of said bank and the interest thereon, or so much as would be equal to the stock allowed; and, also, should pay the bond in said deed recited, and the interest thereon, then the deed to be void. That, by virtue of being a stockholder in the bank, Thorn obtained stock loans; that the said Thorn has not paid or caused lo be paid his'proportion of the bonds of the State issued to the State; nor has he paid the bond above described, nor the interest on the same.

Peter Hanger and Francis Moody make themselves defendants under the provisions of the statute. They answer, ádmitting the-facts of the bill, but allege that, after the execution of the mortgage above recited and sought to be foreclosed, Thorn borrowed of the Real Estate Bank, upon security of said mortgage, the sum of $3600, and that the bank brought a bill in the Pulaski Circuit Court to foreclose «aid mortgage to pay them for this loan of $3600 and interest, which had never been paid by Thórn. Qn this bill a decree was finally rendered in favor of the bank against Thorn, and the lands mentioned in the mortgage ordered to be sold. A commissioner was appointed to carry the decree into effect. The money was not paid as ordered by the court. The land was sold under the decree, and bought by Luther Chase, one of the trustees of the Real Estate Bank, for the sum of $120. The commissioner made a deed to him for the benefit of the bank.

Gordon N. Peay, by a decree of the Chancery Court of Pulaski county, was afterwards appointed receiver of the effects and assets of the bank, and, while acting under orders from the court, on the 1st day of January, 1858, by deed, conveyed what right, title and interest the bank had in these lands to Hanger & Moody for $11,163, to be paid in the bonds of the State of Arkansas issued to the Real Estate Bank, which were paid and sale confirmed by the court.

This new matter is. made a cross bill, and the defendants pray that the said mortgage may be declared fully discharged' and satisfied; or that the sum of $11,163, so paid by these defendants, may be declared to be a fund devoted in equity to the payment of the sums due by said Thorn under the mortgage, and that an account may be taken as to what is due by said Thorn under the mortgage, and they (Hanger & Moody) be permitted to pay any balance which may be found due, after deducting that sum, in redemption of said lands.

The State, by her answer to this cross bill, admits the matter stated by the defendants to be true in point of fact, but insists that the defendants are not entitled to the relief as prayed. Upon the hearing, the cross bill was dismissed, and a decree rendered in favor of the State; from which decree an appeal was granted.

Only two points are raised by the new matter set up in the answer of the defendants:

First. Was the sale of the lands, and purchase of the same •under the decree of tlie Pulaski Circuit Court, a complete discharge of the mortgage which the State is seeking to foreclose ?

Second. If not a complete discharge, are the defendants entitled in equity to have tlie amount paid by them, with the interest, while in the hands of the receiver of the bank, created into a fund out of which the stock mortgage shall be paid, and the mortgage discharged to the extent of that fund ?

The mortgage, which the State is seeking t.o foreclose, was executed under the provisions of the thirteenth section of the charter of the bank. In that section it was required that the stockholders should execute bonds and mortgages to the bank, conditioned for the payment of the bonds of the State and interest thereon, and, also, for the payment of-all moneys received from the bank on account of subscriptions for stock.

When a person has executed a mortgage, under the provisions of this section of the charter, his deed of mortgage secures the State for the State bonds loaned to the bank to the extent of his interest in it, and also secures the bank for the money he, as a stockholder, or otherwise, has borrowed of the bank.

"We do not, however,' deem it necessary to say more upon the nature of these mortgages, as the case of Wilson vs. Biscoe, et al., 11 Ark., 44, has fully and completely exhausted the reason and authority for holding these mortgages to be double in their character.

Justice W"alker, in delivering the opinion in the above case, said, “ that the two conditions in the mortgage are separate and distinct, and secure rights to the State and the holder of State bonds, prior in point of time and equity, and a subsequent equity and security to the banks for loans made to the stockholder, on account of stock, to the same extent and as fully as if two distinct instruments, the one prior to the other in point of time, had been executed for that purpose.”

In the case before us, it appears that Thomas Thorn mortgaged to the Real Estate Rank certain lands under the provisions of their charter. Thorn failed to pay his note or stock bonds; the bank foreclosed and bought the property itself. Several years afterwards the receiver sold the right of the bank to Hanger & Moody, and in the deed of the receiver it was expressly covenanted that he in no way sold or-in any manner interfered with the interest of the State.

The foreclosure and sale was for only the subsequent equity and security which the bank held for loans made by it. The purchaser could only buy what was foreclosed and offered for sale, and, in this instance, stood in the relation of junior mortgagees, after the purchase from the hank receiver, and subject to the prior mortgage lien of the bondholders and the State. The purchaser acquired no other estate iu the lands than the equity of redemption of the mortgagor, and a subsequent purchaser could not get any other or greater estate.

The sale, under the decree of the Pulaski Circuit Court, was nota complete discharge of the mortgage; then, arc these defendants entitled, in equity, to have the money paid hy them, with the interest, while in the hands of the bank receiver, created into a fund out of which the stock bond, given hy Thorn to the bank, shall be first paid, and the surplus, if any, applied to the discharge of the mortgage? Or, iu other words, was the relationship between the bank and these mortgagors a fiduciary one? the bank being a trustee, and having no power or control over the mortgages, except in a fiduciary capacity. And should it become necessary for the purposes of the trust, that a sale of. the property should take place, could the bank become the purchaser of it, in its own right? as trustees cannot buy trust property, except for the interest of the beneficiaries.

We have already said that this mortgage was double hi its character, having the same effect as though Tb orn had executed two instruments — one to the State, to secure it for such a pro rata of the bonds issued t'o the bank as he (Thorn) held shares of its capital stock; the other, given to secure the bank for Thorn’s stock-bond, made in payment for his stock in the hank — the mortgage given to the State being prior to the one given to the bank. If this be true, there can be no trustee relationship between any of the parties. It is an ocouiTence Avhieh happens in nearly every day’s business transactions, that A, to secure a debt which he oavgs 33, executes to him a mortgage on his lauds, and afterwards he executes another one to C. 0, at the proper time, forecloses his mortgage, and, at the sale under the decree, buys the property himself. After the sale and confirmation, what has C obtained by his purchase ? Simply the equity of redemption which A had, and the property subject to the prior incumbrance of 33. Noav, suppose that C sold Avhat he bought for ten or twenty times as much as he paid for it, could it be said he Avas a trustee for A, and that the surplus over and above what he paid for the equity of'redemption, should bo applied to the extinguishment of the mortgage to 33 ?

It has been repeatedly. held that when the equity of redemption in mortgaged premises is sold under a judgment or under a junior mortgage, which judgment or mortgageis a lien upon the equity of redemption merely, the legal presumption is that the purchaser only bids to the value of such-equity of redemption, and that the land purchased is, in equity, the primary fund to pay the amount due upon the prior bond and mortgage. Tice vs. Armin, 2 Johns. Ch. R., 125; Hyer vs. Pruyn, 7 Paige R., 465; McKinstry, adm'r, vs. Curtis, 10 Id., 503.

Thus the lands are primarily liable to secure the prior incumbrance. ^ The foreclosure of the mortgage, and the purchase of the lands by Chase, under the decree, extinguished, all the right and title of Thom to the land, satisfied the debt due the bank to the amount bidden, and discharged the lands from the lien of the mortgage in favor of the bank. The debt due the bank, before the foreclosure of the mortgage, was assets of the bank. After the purchase of the lands by Chase, they became assets to the extent of Thorn’s interest therein; and after Hanger & Moody bought the lands of the receiver, the amount paid by them, whether more or less, were assets of the bank to be applied to the extinguishment of its liabilities, and not for the benefit of Thorn.

If, at the sale under the decree, the lands had brought more than the amount of the junior debt, the residue would belong to the mortgagor, and not to be applied to the satisfaction of the mortgage first given; for the lands in the hands of the purchaser of the equity of redemption are primarily liable for this purpose. The equity of redemption is the property .of the mortgagor, and the presumption of law is, that the purchaser of it only bids for its value — bids such sums as ho deems the lairds are worth in excess of the prior mortgage debt.

If Thorn had paid, up-all his indebtedness to the bank, which was secured by this junior security, there would have been no doubt but that be would have been entitled to have •had his lands released to that extent. But he having- suffered his equity of redemption to be sold from under him, by virtue of a decree of a court of competent jurisdiction, that sale extinguished all his title to them, and it was vested in the purchaser, and a subsequent sale by the receiver of the bank, although for a much larger sum than was originally due the bank, cannot inure to Thorn’s benefit, and certainly not to these defendants.

Under no view of the case can we see where the trustee of the bank, or the receiver of it, were the agents or trustees of the defendants, and it is not neccssai-y to inquire into the fact as to whether the lands brought more than enough at the sale made by the receiver to Hanger & Moody to pay Thorn’s indebtedness or not.

In reviewing the whole case, wc arc of the opinion the chancellor committed no error in dismissing the cross-bill of the defendants, and rendering a decree in favor of the State.

Decree affirmed.