text:
    Bowles, Admr., vs. Eddy & Wilbur.
    1. CONTRACTS: Lex Loci — Usury.
    The validity of a note as to usury, must be determined by the usury statutes of the State where it was made, unless it designates another place for payment.
    2. Laws ov oi her States : Proof of.

    Certified extracts by a notary public, of the laws of other States, are not evi-ievidence of them: They should be proved as indicated in McNeill v. Arnold et al., 17 Ark., 154.
    APPEAL from Ohicot Circuit Court.
    Hon. T. F. Sorrells, Circuit Judge.

      Reynolds, for appellant.

      Dodge & Johnson, contra.

   ENGLISH, C. J.:

On the 5th of August, 1878, John Eddy and David Wilbur, partners under the firm name of Eddy & Wilbur, brought ejectment in the Circuit Court of Chicot county against Oscar Bowles for a number of tracts of land described in the complaint.

At the return term, September, 1873, defendant, by leave of the court, entered his plea of not guilty in short upon the record.

At the September term, 1874, the death of defendant, Oscar Bowles, was suggested, and Wm. W. Bowles, his administrator, substituted as defendant, and the cause continued.

At the July term, 1875, the case was called for trial, and by consent of parties, submitted to the court upon the pleadings, evidence introduced, and argument of counsel, and, by consent, the court took the case under advisement until the next term.

At the October term, 1875, the court rendered judgment in favor of plaintiffs for possession of the lands, and for costs.

At the same term, on the 5th of November, 1875, the court set aside the judgment, and again took the case under advisement until the next term.

At the January term, 1876, defendant filed a motion to set-aside the submission of the cause, and for leave to set up as a. special defense, in addition to the plea of not guilty, theretofore entered, that the deeds relied on by plaintiffs to show title to the lands in themselves were based upon illegal and usurious contracts, as to which defendant had introduced testimony at the hearing, and were null and void, so that the pleadings might conform to the evidence introduced in the cause.

Which motion the court took under advisement until the next term.

At the July term, 1877, the court overruled the motion to open the submission, and again rendered judgment in favor of plaintiffs for possession of the lands, and for costs.

Defendants filed a motion for a new trial, which the court overruled, and he took a bill of exceptions, setting up the evidence introduced' by the parties on the submission of the cause and appealed to this court.

I. The motion of appellant to open the submission of the cause, and for leave to plead specially that the deeds relied on by appellees for title to the lands sued for, were based on usurious contracts, etc., was, under the circumstances disclosed by the record, addressed to the sound legal discretioxi of the court, and the overruling of the motion was not an abuse of such discretion.

It is stated in the motion, however, that the purpose of appellant in asking to be permitted to plead further, was that he-might make his pleadings correspond with the evidence introduced by him on the hearing of the cause; and' we deem it. proper, therefore, to examine and determine whether appellant in fact proved that the deeds relied on by appellees were based. on usurious contracts, and null and void, as stated in the motion.

It appears from the bill of exceptions that appellees read in evidence a deed of trust, executed 17th February, 1866, by Charles W. Campbell and Oscar Bowles (appellant’s intestate) upon the lands in controversy, to John T. Trezevant, of Memphis, as trustee, to secure the payment of a note made by said Campbell and Bowles to appellee for $14,800, payable 1st of January, 1867, with power to the trustee to sell the lauds on default of payment.

Also a deed bearing date May 3d, 1870, executed by Treze-vaut as such trustee, to appellees, showing that he had advertised and sold the lands at Lake Village, on the 19th of March of that year in pursuance of the power vested in him by the trust deed; that they were purchased by appellees for $2,500, and conveying the lands to them.

Appellant read in evidence a copy of the note secured by the deed of trust, which follows :

“MEMPHIS, February 17, 1866.

“14,300. On the first day of January next, we jointly and severally agree to pay to the order of Eddy & Wilbur the sum of fourteen thousand three hundred dollars, value received, as witness their hands and seals.

“C. W. Campbell, [Seal.)

“O. Bowles,” [Seal.]

It appears that appellees resided in New York: Campbell and Bowles in Chicot county, Arkansas, where the lands are situated, and that the note and deed of trust were made in Memphis, Tennessee, where Trezevant, the trustee, resided.

The note upon its face bears no interest; but appellant attempted to prove that it was executed for moneys advanced by appellees to Campbell and Bowles to aid them in cultivating cotton, upon contracts that the moneys were to be repaid with interest, and that appellees were also to have a certain portion of the cotton pioduced.

Usury, as at present understood, is unknown to the common law, and depends wholly upon statutory enactment. Tyler on Usury, p. 64.

“In some cases importance seems to be attached to the circumstance that one or both of the parties were inhabitants of the State or county where the contract was made. But there is, probably, n.o force in the distinction attempted to be made. The rule upon the subject is, that the law of the place where the contract is made is to control it, unless it appears upon the face of the contract that it was to be performed at some other place, or was made with reference to the laws of some other place ; and the reason of the rule is, not the allegiance due from the contracting parties to the government where the contract is made, or is to be executed, but the supposed reference which every contract has to the laws of the State or country where it was made, or to be executed, whether the parties are citizens of that State or country or not. But the lex loci applies only to the validity or interpretation of contracts, and not to the time, mode or extent of the remedy. And yet the rule is well settled, that when' a contract is made with reference to another country in which it is to be executed, it must be governed by the laws of the place whore it is to have its effect. But the lex loci is to govern, unless the parties had in view a different place, by the terms of the contract. To repeat then : the general rule established, ex comitate et jure gentium, is, that the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract, unless the parties have a view to its being executed elsewhere ; in which case it is to be considered according to the laws of the place where the contract is to be executed ( Vide Lee v. Selleck, 33 N. Y., 615.) This is the doctrine of the authorities as well as the elementary writers ; and it would seem as a general proposition, that, from the rule, there would be no difficulty in ordinary cases of alleged usury to determine the status under which they are to be decided.” Ib,, pp. 81-82; Jones v. McLean, sur. et al., 18 Ark., 462.

The note complained of as usurious having been executed at Memphis, Tennessee, and upon its face designating no other place of payment, its validity must be determined by the usury statutes of the State of Tennessee.

The only evidence offered by appellant of the usury statutes of Tennessee is stated in the bill of exceptions, thus :

Defendant “read a part of the plea in Laird v. Hodges, 26 Ark., 357, which is as follows: ‘And the said defendant further avers that by the law of the State of Tennessee any prom-isory note or other instrument wherein is reserved any greater Tate of interest.than the rate of six per centum per annum, is wholly void.’ And also read from Martindale’s Legal Directory, pp. 593-400, as follows: ‘Prior to 1870, an instrument bearing a higher rate of interest on its face than allowed by law, could not be sued on, or if sued on and usury pleaded, both interest and principal were lost, but since the enactment of 1870 it is thought only the excess of the interest is abated, and recovery may be had for the principal together with six per •centum interest thereon,’ to show what the usury laws of Tennessee were in 1866, the time said contracts and loan was made.”

Reither what Hodges stated in his plea, in the case of Laird v. Hodges, nor Martindale’s Legal Directory, was competent evidence of the usury statutes of Tennessee. McNiel v. Arnold et al., 17 Ark., 154; Gantt’s Digest, Secs. 2445-6.

The evidence offered by both sides at the trial, and objected to, was admitted; the court reserving its opinion as to competency, etc., to the final decision, and doubtless the court disregarded the above evidence of the usury law of Tennessee in making up and rendering its judgment.

Appellee for the purpose of showing that the note was not void, by the laws of Tennessee, for usury, but that the lender lost only the excess of interest, read in evidence what purports to be extracts from interest statutes of that State, authenticated by the certificate of a notary public of Memphis.

This was not competent evidence of the usury statutes of Tennessee, and doubtless the court disregarded it in making up and rendering its judgment.

The modes of proving the laws of the States, when relied on in our courts, were plainly indicated in McNeil v. Arnold, sup., and need not be repeated here.

II. A further ground of the motion for new trial was that the court failed to find and state its conclusions of facts, and its conclusions of law, as required by section 4686, Gantt’s Digest.

The statute is that, “Upon trials of questions of fact by the-court, it shall state in writing its conclusions of fact found, separate!}' from the conclusions of law.”

It is not shown by the bill of exceptions whether the court did or did not reduce its findings to writing, or that it was asked and refused to do so. It does not appear that any declarations of law were asked by either party, or that the court made any.

It found for the appellees, on the evidence, nearly all of which is documentary, and is set out in the bill of exceptions.

If the court failed to reduce its findings upon the facts to writing, it should have done so upon the request of either party, and might have done so after as well as before the rendering of the judgment, for a memorial, as held in Apperson & Co. v. Stewart, 27 Ark., 619, and the l’efusal of the couit so to do might be error. Chrisman et al. v. Rogers, ad., 30 Ark., 359; Wood et al. v. Boyd, 28 Ib., 77.

Appellees having proven, by the deeds introduced, title to the lands, and right .of possession, and appellants failing to show that the deeds were invalid, or to make out any other-good defense, the coui’t could not have done otherwise than find in favor of, and render judgment for appellee, and the judgment must be affirmed.


source: Caselaw Access Project

author: ENGLISH, C. J.

license: Public Domain

text:
    Worthington’s Admr., v. DeBardlekin, Ad.

      Practice in Supreme Court, where no declarations of law Toy Circuit Court.

    Where there is a motion for new trial in the Circuit Court, though the Court make no declarations of law, the Supreme Court will look into the bill of exceptions to see if there is any evidence to sustain the findings of the Court, silting as a jury, and whether as matter of law, a party is entitled to judgment upon the facts found.
    Limitations :
    The statute of limitations did not begin to run against a note executed during-the war until the proclamation of peace, 2d April, 1866.
    Same : Non-claim.

    Where the bar of the statute does not attach in the life of a party, the general statute of limitations ceases and the statute of non-claim is applied.
    Same : New promise.

    A verbal promise to pay a barred debt does not revive it, and a promise in writing does not revive the old debt, but gives a new cause of action co-extensive with the promise.
    Bankruptcy : New promise.

    A verbal promise to pay a debt discharged in bankruptcy revives the debt.
    APPEAL from Ghicot Circuit Court.
    Hon. T. F. Sorrells, Circuit Judge.

      Reynolds for Appellants.

      Rose Contra.
   ENGLISH, C. J.

This suit was commenced in the Probate Court of Chicot county, upon the follawing claims :

Estate of Elisha Worthington, Dr., To H. F. DeBardlekin, administrator of David Pratt.

To twenty-five per cent, of the amount of a due bill made by said Elisha Worthington in his life time to Daniel Pratt, for $5,760.00, and which said Worthington promised Mr. T. F. Ticknor, agent, etc., at divers times that he would pay twenty-five per cent, of $5,760.00.$1,440.00.

The claim was authenticated by the affidavit of Henry F. DeBardlekin, as administrator of Daniel Pratt, deceased, made before a justice of the peace on the 14th day of November, 1874.

It was presented by him for allowance to E. T. and J. M. Worthington, administrators of Elisha Worthington, deceased, on the 3d of December, 1874, and by them rejected.

It was filed in the office of the clerk of the Circuit Court on the 15th of April, 1875, and presented to the court for allowance at its January term, 1876, and the court upon the evidence produced by the parties, and without formal pleadings, allowed the claim for $1,440.00 against the estate of Elisha Worthington, and his administrators appealed to the Circuit Court.

At the January term 1877, of the Circuit Court, the case was submitted to the court sitting as a jury, upon depositions and other evidence introduced by the parties, and by the court taken under advisement until the following July term, when the court announced its findings in writing as follows :

‘ ‘ This cause coming on to be heard and both parties being Tepresented by their counsel, and this cause being submitted to the court sitting as a jury, and there being no declarations of law required of the court by either party, but the cause being submitted on the depositions and other evidence in the cause, the court doth find that the defendant’s intestate, after his; discharge is bankruptcy, did make an unconditional promise-to pay plaintiff twenty-five cents on the dollar of the debt barred by his bankruptcy, and that said promise is within the-statute of limitations.

‘ ‘ From the above findings of fact, the court declares the following to be the conclusion of law, viz : That the claim herein is a legal claim against said defendant’s intestate for-the sum of $1,440 with interest thereon from December 3d, 1874,, and that said claim be classed in the 5th class of claims against, said estate to the amount of said sum and interest as aforesaid.”

Judgment was entered accordingly.

The defendants filed a motion for a new trial on the follow--ing grounds:

1. The findings or conclusions of fact are not sustained by-the evidence.

2. The conclusions of law are erroneous.

3. The decision and judgment of the court are contrary to. the law and evidence.

4. Upon the whole case the findings-and judgment of the court should have been for defendants.

The court overruled the motion, and the administratiors of" Worthington took a bill of exceptions, and appealed to this court.

I. It is submitted by the counsel for appellee, that no ques-. tion of law having been reserved in the court below,, there is. nothing for this court to decide, citing State Bank v. Conway, 13 Ark., 344, and subsequent cases in which the ruling in, that case was followed.

In the leading cases cited, the court, after- reviewing the-previous decisions on. the subject, and discussing-the province-of the-jury, or the court sitting as a jury,, to,pass upon the-the facts, the law in reference to the granting of new trials, etc., held that where a party merely excepts to the finding of the court, or jury, setting out the testimony without any motion for a new trial, and without any exception whereby he shall put his finger upon the alleged error of law as to any ruling or decision of the court below, there is no case presented for the consideration of the court, on error or appeal.

In the case now before us, there was a motion for a new trial, and though the court made no declarations of law, none being asked by either party, we certainly can look into the bill of exceptions to see if there was any evidence to sustain the findings of the court, sitting as a jury, and whether, as matter of law, the plaintiff below was entitled to judgment upon the .facts found.

II. The court found from the evidence that after Elisha Worthington had been discharged in bankruptcy, he made an unconditional promise to pay twenty-five per cent upon the note mentioned in the claim sought to be probated against his estate, and that the promise was not bárred by limitation, and declared as a conclusion of law, upon the facts found, that the plaintiff below was entitled to judgment allowing and classing the claim against the estate of Worthington, and rendered judgment accordingly.

It was proven that late in the year 1859, or early in the year 1860, Daniel Pratt sold to Elisha Worthington of Chicot county, Arkansas, twelve eighty-saw gin-stands, at six dollars per saw, or $480 for each stand, making $5,760.00, for which Worthington afterwards executed to Pratt the following note, which is the due bill referred to in the claim sought to be probated.

“$5,760.00, Chicot county, Arkansas, March 6,1862. Due Daniel Pratt, when the blockade is removed, that cotton can be freely .sold .in the market in New Orleans, five thousand seven hundred and sixty dollars, with interest on said sum from the first of January, 1861, til paid. Interest at the rate of •eight per cent per annum.

E. WORTHINGTON.”

It was admitted that Worthington went into bankruptcy in February, 1868, and was discharged 20th of February, 1870.

He died 19th November, 1878, and on the 25th of the same month, letters of administration upon his estate were issued to appellants.

It was admitted that Pratt and Worthington were both residents of this State before and during the civil war, and that the Federal forces captured New Orleans May 24th, 1862. That Worthington never, in writing, made any promise that would take the claim or said due-bill or note out of the statute of limitations if the same was otherwise barred

It was also admitted that the lands belonging to the estate of Worthington, were valued on the tax-book at $32,000.00, and that the account current of his administrators showed a balance in their hands of over $7,000, and that all of the debts probated against his estate had been paid except the claim sued on, and a judgment which had been appealed from, of Martha W. Mason, for $12,000.

As to the promise of Worthington to pay twenty-five per cent on the note; Samuel F. Tichnor, on his examination in chief, deposed, in substance, that as agent of Daniel Pratt, he called on Worthington in the winter of 1868, at his residence, Sunny-Side Landing, and asked him to pay for the gin-stands. He replied that he could not then pay, but would pay, as it was a just debt.

Witness called to see him again in January, 1870, and he then said he had paid a large debt, which he regretted, and had paid some other debts for twenty-five cents on the dollar, and promised that he would pay that amount on the gin-stands ; said that he had some of them on hand, and was using them. At this time he was living near the Lake, on his Red Leaf plantation.

Witness called on him again 18th December, 1871, and he then said that he would pay the twenty-five per cent on the gin-stands, and that witness need not call again. That he thought that he could pay a part of the money that winter, and would either send a check or pay the money over to Esquire Springer. The reason why he thought that he could not pay that winter was, he said, that he had to build a house to live in. He further said to witness : “I am not telling you lies to get rid of you ; that would be very absurd in me, an old man.” He said further, that Pratt had not opposed him in getting his discharge in bankruptcy, and upon the honor of a man that the twenty-five per cent of the amount of the gins should be paid out of that crop and the next.

On cross-examination, witness repeated, in substance, the above statements, and also deposed that he offered to give up the old papers to Worthington, and asked him to give new ones, and he §aid that the old one was good, and gave witness Ins-word and honor that he would pay the amount agreed on.

The testimony of this witness was to some extent corroborated by the deposition of Martha W. Mason, who lived with Worthington, and heard some of the conversation between him and Tichnor about the gin-stands debt.

The only promise proven to have been made by Worthing-ton to pay twenty-five per cent upon the debt, after his discharge in bankruptcy, was that of 18th December, 1871, which was about one year, eleven months and seven days before the-grant of letters of administration upon his estate to appellants.

The note not being under seal, five years was the period of' limitation applicable to it. It was executed 6th of March, 1862, when the civil war was flagrant, payable on the removal of the blockade at New Orleans, but the statute of limitations did not commence to run against it until the proclamation of peace, 2d of April, 1866. Mayo & Jones v. Cartwright, ad. et al , 80 Ark., 414; Shinn v. Tucker, M. S.

Putting out of view the bankruptcy of Worthington, and the verbal promise after his discharge to pay part of the debt, any suit upon the note was barred by the statute of limitations before his death, which occurred 19th November, 1873, and of course there was no right of action upon the note against his administrators.

Moreover, at the time the promise was made (18th December, 1871), the note was barred by limitation, as well as discharged in bankruptcy.

The court below, however, treated the suit as being founded upon the new promise to pay part of the debt, and not upon the note, and found that the promise was made within the period of limitations.

If the suit was upon the now promise and could be maintained upon it, three years was the period of limitation applicable to it, the promise being verbal, and the time had not rim out when letters of administration were granted to appellants, and then the general statute of limitations ceased to run, and the statute of non-claim applied, and the suit was commenced against the administrators within two years from the grant of letters. Walker as ad. v. Byers, 14 Ark., 247.

But by statute, a verbal promise to pay a debt barred by limitation will not revive the debt, or remove the bar. Of course such a promise to pay part of the debt will not remove the bar as to such part.

If Worthington had made a written promise to pay one-fourth of the note, after it was barred by limitation, such promise would not have revived the old debt, but would have given a new cause of action, co-extensive with the promise. Duffin v. Phillips, 31 Ala., 573, and citations.

So a verbal promise to pay a debt discharged in bankruptcy will revive the debt. Apperson & Co. v. Stewart, 27 Ark., 619; and a promise to pay part of the debt, may, limitation being out of the way, give a new cause of action for so much.

But here the whole debt was barred by limitation, and the verbal promise .removed the bar from no part of it.

There were no written pleadings, and none were required, -but appellants relied on two defenses ; the statute of limitations and the discharge of their intestate in bankruptcy. The latter defense was defeated by the verbal promise to pay the part of the debt sued for, but the former defense was in no way avoided.

It follows that upon the facts in evidence, appellee was not entitled to a verdict and judgment.

Reversed and remanded for a new trial.


author: HarrisoN, J.:

text:
    Connelly et al. v. Weatherly, Adm’r.
    1. Probate Court : Practice and Pleading in.

    Where a guardian has died, his wards should present against his estate, several claims for their respective shares of an amount shown by his account in the Probate Court to he due them, and not a joint claim for the whole; but the Probate Court being confined to no course of procedure, may sever the demand and allow to each the sum he is entitled to
    2. Guardianship : Sureties on bond — action against. Settlement by his administrator.

    It is the duty of the administrator of a deceased guardian to make settlement of his guardianship. Until such settlement, no action can be maintained against the sureties on his bond.
    S. -Claim against administrator of guardian, when barred.

    Until the final settlement of a guardianship the statute of limitations never begins to run. But the claim of a ward against a deceased guardian must be presented to his administrator within two years after the grant of administration, or it will be barred, whether there has been a final settlement oí the guardianship or not.

      APPEAL from Phillips Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Palmer, for appellant.

      Proton, contra.

   HarrisoN, J.:

At the June term, 1873, of the Phillips Circuit Court, then having original jurisdiction of administrations and guardian-ships, the following claim against the estate of William Weath-erly, deceased, was presented for allowance :

“Estate op William Weatherly, Deceased,

•“To John Connelly and Martha A. Connelly, his wife, Walter Underwood, son and heir of Mary Jane Underwood, deceased, by his next friend, J. C. Davis, and Harvey J. Pasley and Helen M. Pasley, his wife — the said Martha A., Mary Jane and Helen M., born Thompson, and the late wards of said decedent—

Dr.

“1872. November.

“To amount shown to be due his said wards by second annual settlement account, filed in Phillips

' Probate Court, April 28, 1859.$3,278 17

•“Interest on same to Nov. 1, 1872, at 6 per cent,

thirteen years and six months. 2,556 84

$5,835 01

The claim was authenticated by the affidavit of John R. Connelly.

The administratrix," Martha Weatherly, filed an answer to the claim and denied that anything was due from her intestate’s estate to his late wards ; the sum shown in his hands by the settlement referred to in the claim having been, she said, expended afterwards in their maintenance and education; and as a further defense she pleaded the statute of limitations of three years, and also of five years.

The claimants demurred to the paragraphs of the answer setting up the statute of limitations, and the demurrer was sustained as to the plea of three years, and overruled as to that of five years.

The case, when the present Constitution was adopted, was remitted to the Probate Court, and John B. Connelly having died, it was abated as to him.

It appears from the record that William Weatherly, the decedent, was, on the 28th day of October, 1854, appointed by the Probate Court of Phillips county, guardian of Martha A., Mary Jane and Helen M. Thompson — the said claimants, Martha Connelly and Helen M. Pasley, and the said Mary Jane Underwood, and he executed to each, as required by the statute, a separate bond, and that at the April term, 1859, he filed his second annual account, which, instead of a separate account with each, was a consolidated account with all; and in it he charged himself with the sum of $3,278.71 in his hands as belonging to them in common ; and that the account was, at the July term following, confirmed. This was the last account he ever filed.

The record also shows that the administratrix, upon the hearing of the claim in the Probate Court, produced evidence that her intestate, after the settlement in 1859, maintained and supported, for several years, each of the said wards, and of the cost or value of their maintenance and support, and claimed, in behalf of the estate, credit therefor. The court thereupon found as upon final settlement of the several guardianships then made with her, that the estate was entitled to a credit in the guardianship of Martha A. Connelly of $660; in that of Mary Jane Underwood of $840 ; and in that of Helen M. Pasley of $800 ; and after deducting these several credits from the share of each in the sum admitted in the settlement of 1859, in his hands, allowed as several claims against the estate, Martha A. Connelly $432.73, Walter Underwood $250.72, and Harvey M. Pasley and Helen M. Pasley, $292.92, which it ordered paid as claims of the fourth class.

The administratrix appealed to the Circuit Court.

The claimants in the Circuit Court again demurred to the ■administratrix’s plea of the statute of limitations, and the same .ruling on the demurrer was made as in the Probate Court.

The cause was submitted to the court. It stated as the conclusions of fact found, that the defendant’s intestate was, by separate appointments and the execution to each of separate bonds, the guardian of the wards mentioned in the claim; and that they presented for allowance a joint demand for the aggregate amount of their several demands against his estate for money he severally owed them as their guardian. And as a ■conclusion of law, that several parties cannot recover jointly upon a several demand, and found for and rendered judgment in favor of the estate.

The claimants moved for a new trial, because the finding of the court was contrary to law and evidence.

The motion was overruled and they appealed to this court.

It was certainly very irregular, and the Probate Court should not have permitted Weatherly, instead of filing an account with each of his wards, and charging himself with their •several shares of the money in his hands, to file a consolidated one with all, and to charge himself with the money of all as "belonging to them in common.

But we cannot see how such an irregularity could affect the rights of his wards.

Though the claimants should have presented several claims for their respective shares, and not a joint one for the whole, ■.the Probate Court, being confined to no prescribed course of procedure, could adopt any method it deemed appropriate for-arriving at the merits and justice of the case, and as it very properly did, sever the demand and allow each the sum the-evidence showed she was entitled to.' The statute says :

“The court shall hear and determine all demands presented for allowance under this act,- in a summary manner, without the forms of pleading.” Gantt’s Digest, Sec. 115.

No possible prejudice that we can see was, or could have been done the estate, by the course pursued, and there is no-apparent reason that the claim should have been dismissed,, and they required to begin anew by exhibiting their several demands, which amounted in the aggregate to the sums jointly claimed.

But it is insisted by counsel for appellee, that until final settlements of the guardianships, it could not appear that the intestate was indebted to his wards, or that they had claims, against his estate.

It was the appellee’s duty to make settlements with the Probate Court of the unsettled guardianships.

Until such settlement was made there could be no actiom upon his bond against his sureties; but it does not follow that they might not, as creditors, exhibit their claims against the estate. Whether the settlement was made or not, they were compelled to exhibit their claims within two years after the grant of administration, or be barred by the statute of non-claim. A right of action against the sureties, after the-settlement, would have remained ; but they may have been insolvent, and that the only available remedy against the estate-

The Probate Court did, however, allow the administratrix to-prove the credits her intestate was entitled to in the accounts, between himself and his wards, and proceeded to adjust the same and ascertain the balance due each.

Why this might not be done, when considering their claims» though there hud been no regular settlement o± the guardian-ships, is not easily perceived.

The claims to the extent allowed by the Probate Court, were, it seems to us, fully established by the evidence : and the finding of the Circuit Co urt was clearly against the evidence. Y et we do not deem it necessary to state the evidence as tp the merits or justice of the claims, as it was not, as appears by the court’s conclusions of fact, considered relevant, or passed upon by it.

No final settlement of the guardianship having been made in the life time of Weatherly, the statute1 of limitations never commenced running. We, therefore, need not consider the demurrer overruled by the court.

The judgment is reversed and the cause remanded to the court below for further proceedings, and not inconsistent with this opinion.


author: Harrison, J.:

text:
    Ferguson et al. v. Doxey.
    -Coubt Common Pleas : Appeal from.

    There is hut one way of taking an appeal from the Court of Common Pleas to the Circuit Court, an j it must be moved for and taken at the term at which the ju gmentis rendered.
    APPEAL from Prairie Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Gompton, for appellant.

      Gatewood, contra.

   Harrison, J.:

The appellee recovered judgment in the Court of Common Pleas of Prairie county, at the April term, 1877, against appellants for the sum of $107. Appellants made no motion for an appeal, and none was granted at the term ; but they filed with the clerk, in vacation, and within thirty days after the judgment was rendered, an affidavit and bond for an appeal, and he transmitted the original papers, with the affidavit and bond and a certified transcript to the clerk of the Circuit Court, as in cases Of appeal.

The Circuit Court, on motion of the plaintiff, dismissed the ■case because no appeal had been taken.

The defendant appealed to this court.

It is insisted that an appeal to the Circuit Court was properly taken; that section 17 of the act of December 14, 1875, establishing Courts of Common Pleas in Prairie and certain other counties, provides two modes of taking an appeal from the Court of Common Pleas to the Circuit Court; — one as a matter of right upon a motion filed therefor at the term at which judgment was rendered, and the other, as was done in this case, by filing the affidavit and bond with the clerk, and without any action of the court.

The section is as follows :

“Sec. 17. That any person aggrieved by any judgment rendered by any of said courts, except a judgment of dismissal for want of prosecution, may, in person or by agent, take an appeal therefrom to the Circuit Court of the county upon complying with the following requisites :

‘First — The appellant or agent shall make and file with the clerk an affidavit that the appeal is not taken for the purpose of delay, but that justice may be done.

“Second — The appellant, or some person for him, together with one or more securities, to be approved by the clerk, must enter into an obligation to the adverse party in a sum sufficient to secure the payment of such judgment and the costs of appeal .

‘ ‘ Third — The appeal shall be granted by the court as a matter of right, upon motion filed at the same term of the court at which the judgment was rendered ; and the entering of the order granting the appeal shall be a sufficient notice to the adverse party that an appeal has been taken.

“Fourth — In order to malee the appeal effective, the affidavit and bond for the appeal must be filed with the clerk within 'thirty days after the appeal is granted; and upon the filing of said affidavit and bond, all further proceedings in said court shall be suspended; provided, that either party may appeal without giving any bond ; but in such cases the judgment shall not be suspended.”

The language of the section is too plain and explicit to require or admit of any construction. Obviously there is but •one way of taking an appeal provided, and it must be moved for and taken at the term at which the judgment is rendered.

The Circuit Court having acquired no jurisdiction of the •case, it was properly dismissed.

Judgment affirmed.


author: Eakin, J.:

text:
    Anderson et al. Partee’s Heirs v. Levy, Adm’r., et al.
    •«Practice: Parties; Heirs; Administrator.

    Upon the death of a party, the title to his lands passes at once to his heirs or •devisees, and the administrator can not represent them in court. In al ■cases where title to lands is to he affected they are necessary parties, and the 'Court should of its own motion refuse to proceed until they are brought in.
    •APPEAL from Jefferson Circuit Court in.Chancery.
    Hon. J. A. Williams, Circuit Judge.

      Sell and Compton for appellant.

      Carlton, contra.

   Eakin, J.:

This is a suit in equity brought by S. W. McCrary, on the 4th of September, 1873, against H. A. and R. D. Partee, and J. B. McGehee as partners, under the firm name of Partee,. McGehee & Co., and J. J. Freeman. The objects of the bill are, to cancel and set aside certain conveyances of lands to II. A. Partee, and to vest title in complainant, upopi the grounds that.they were held as securities for a debt already paid up: •or, in default of that relief,'to have an account of the dealings, between complainant and H. A. Partee and a personal decree. Freeman holding as trustee from II. A. Partee, to secure an individual debt of Partee to another person, is made a party..

The case made by the bill is substantially as follows : On the 1st of December, 1866, McCrary bought from John Don-elson and wife, a plantation in Jefferson county, for $15,000 i of this amount $8,000 was paid in cash. For the balance of $7,000 a note was executed due January 1st, 1868, bearing-ten per cent, iuterest from January 1st, 1867. This note was assigned by Donelson, to Henry W. Reynolds, who, (as developed in the case) claims an interest in the lands sold.

Complainant, in partnership with others (who have no interest in the matters in controversy) conducted largo planting-operations during the year 1867, doing their business through the house of Partee, McGehee & Co., of Memphis. As. claimed by said firm, complainant with his partners fell in their-debt. Having confidence in their statement, complainant executed to them his note for this balance in the sum of $16,500. This was for too large an amount, and it is chai’ged, was. fraudulently obtained. He calls for an account current. . To. secure this note, complainant with one of his partners (March), made a deed of trust to Charles L. Partee, including the Don-elson place and a large amount of mules and other personal property, with power to sell and apply the proceeds. It is •charged that he did take possession of and sell the personal property but not to the best advantage, nor did he fully apply the proceeds to the debt. An account of these sales is sought also.

In the fall of 1868, Reynolds was pressing for payment. Defendants agreed to accept drafts to pay him, for which complainant was to ship cotton. To secure Partee, McGehee & Co.,. -for these advances, complainant, on the 5th of September,. 1868, made another deed of trust to C. L. Partee of a large amount of personal propeily, cotton, etc., worth $10,000, conditioned upon repayment of the amount advanced by them, to take up Reynold’s note, and future advances, that the said, trustee should re-conve}'- to complainant the Donelson lands by quit claim deed.

Complainant continued his business with Partee, McGehee & Co., during the year 1869, drawing supplies, receiving advances and shipping cotton. Believing himself, from the representations of the firm, to be still largely indebted to them, he with his wife, on the 2d of March, 1869, made a quit claim deed of the Donelson place to H. A. Partee, one of the firm. This was expressed to be in consideration of amounts advanced,, and to be advanced, by him and his firm in payment of said landed property.

Before this time, on the 9th of January, 1869, a balance being due on the Reynold’s note, Partee, McGehee & Co., refused to pay the same, unless Reynold’s and wife should, convey the Donelson lands to H. A. Partee. This had been done and the balance of the note fully paid up. This deed, was referred to in the subsequent quit claim of McCrary and. wife, on the 2d of March, 1869.

Complainant took possession of the Donelson place at the time of purchase, and has kept it since. He paid taxes with the exception of one year, in which he failed. The lands were sold for taxes, and purchased by Win. Reynolds, a son of Henry W. On the 21st of November, 1870, complainant re-purchased the tax title and afterwards, in March, 1872, he transferred it to H. A. Partee. This, he says, was done in order to enable Partee to make to himagood and complete deed back, At the same time with this transfer, complainant executed to Partee two notes for $2,000 each, for the rent of the lands for the years 1873 and 1874. This he says was done to enable H. A. Partee to raise money on them, and for no other purpose.

On the 16th of January, 1871, complainant, as he alleges, purchased another contiguous body of lands, called the Bark-dale place, containing about 200 acres. For this land he paid to the vendor as a part of the cash payment, $536.66. For the balance of the cash payment, which in all amounted to $3,020, to bear interest from 24th December, 1870, at eight per cent., he drew upon Partee, Burleson & Co., (successors to Partee, McGehee & Co.). He also drew upon them for the deferred payment of $3,000 due 24th December, 1871, with like interest from December 24th, 1870. When the drafts were paid H. A. Partee took the deed in his own name.

On the 21st of June, 1873, H. A. Partee made a deed of trust of all these lands to J. J. Freeman, to secure his own debt of about $8,000.

Referring back to the trust deed of September 5, 1868, complainant, explaining the circumstances, says : That in the spring of that year he had gone to North Carolina, filed his petition there in bankruptcy, and been discharged. On his return he applied to Partee, McGehee & Co., to re-purchase the Donelson place, and to obtain advances of supplies for future planting operations. The deed of trust was executed in this view, and Partee, McGehee & Co., gave him a certificate showing that said last named deed of trust was made to secure them in assuming the payments on the Donelson place, and for advances to be made thereafter. Having taken the benefit of the bankrupt act against the old indebtedness of himself and his planting associates, to Partee, McGehee & Co., they asked him, in consideration of the renewed favor, to revive the old debt. He agreed to that, and to secure it by three life poli-, cies — two for $5,000, and one for $7,000, which have been since transferred to H. A. Partee. At the time of taking out the last policy, he says that Partee, McGehee & Co., gave him a writing explaining the purposes of the policies, and expressing-that upon the payment of the purchase money for the Donel-. son place the title to the same was to be re-conveyed.

On the 13th of March, 1872, he had a settlement with the-firm of Partee, Burleson & Co., showing a balance against him of $1,833.34. This, by the 16th of March, had been overpaid by the amount of $851.59, which was paid complainant. Com-, plainant says this settled all the payments due from him on the two places; that he executed a note to H. A. Partee for-about $9,000, which was wholly for a balance of th,e old debt revived in 1868, secured by the life policies ; and,, in no part,, for subsequent advances, or for payment on land... He says,, further, that the two rent notes which had been, given for-Partee’s accommodation, he intended, if the payment fell, upon, him, to claim them as credits upon the $9,000 note.

He charges that the deed of trust to Freeman was a fraud,, and that H. A. Partee declines to make title.

He prays that all the said conveyances to II. A. Partee be set aside and annulled; that the lands be released from the trust deed of Freeman in case the money secured thereby can be made out of H. A. Partee, or has been paid ;:that if he cannot obtain title to the lands he may have an account with said H. A., and those he represents ; that the life policies may be delivered up ; that he may have a personal decree, against said H. A., and general relief.

H. A. Partee, in his answer, says r. That hp. was. an old; friend of complainant; desired in every way to aid him, and induced mercantile firms with which he was connected to give complainant credit and accommodations. lie files an abstract of the accounts up to April, 1868, for the settlement of which the note for $16,500 was executed, and says the life policies were taken ottt to secure it. He explains the indebtedness by saying that complainant and his partners had failed to ship the crop of 1867, as promised, but had sold it in New Orleans. The trustee in the first deed of trust proceeded to realize what he could on the personal property, and apply the proceeds, which, with other credits, reduced the amount due on the note to about $12,875. This debt respondeut assumed and took an assignment of the note; and Partee, McGehee & Co., closed their account with McCrary and his firm. Partee, Burleson & Co., agreed to make future advances to McCrary on respond ent’s guaranty. It was part of the consideration for this arrangement that McCrary and wife should give him a quit-claim deed of theDonelson lands, and that Reynolds and wife should also execute to him a title. The intention was to have the legal title vest absolutely in himself; but, as an act of friendship, he gave McCrary a writing in which he agreed-to re-convey, in case he would pay $7,000 out of his crop after settling with Partee & Burleson for advances ; and as for the balance he would give time. This arrangement, made in 1868, was consummated in 1869 by deeds.

The Reynolds note was subsequently paid out of shipments of cotton to Partee, Burleson & Co., by McCrary, over and above their charges for advances, save a balance of about $2,800, which was taken up by respondent.

It was agreed thaf if McCrary did not repurchase, he would pay rent at the rate of $l,400'per year from January 1, 1868. He was, meanwhile, to pay taxes, and respondent the life premiums.

In tbe fall of 1871, McCrary advised respondent that he would be unable to purchase : and in March, 1872, they had a final settlement. Complainant surrendered the written agreement concerning the purchase, and it was destroyed. Respondent gave up to him the note for $12,875 (balance). A general settlement of all matters was made, and complainant, to show the ultimate balance, gave a new note to respondent for $9,788.99, dated March 17, 1872, due at one day, bearing ten per cent interest. Next day complainant executed his final release to respondent of all interest in the land which he may have acquired by virtue of the purchase of the tax-title from "Win. Reynolds.

As for the Barksdale lands, respondent says that he bought and paid for them with his own means ; complainant advanced without his knowledge or request something over $500 on the cash payment, which was afterwards refunded to him.

Since the settlement in March, 1872, respondent says that Burleson & Patterson have continued to make advances to complainant, on respondent’s guaranty, and that he has paid out for complainant about $2,009.87.

He says the trust deed to Freeman was made in good faith, to secure the debt therein expressed, and to get an extension of credit, and, generally, denies all charges of fraud.

Freeman, the trustee referred to, denies all fraud and collusion on his part; says he knows nothing of the matter between H. A. Partee and McCrary, and that the trust deed was made in good faith to secure a bona fide debt, which remains unpaid ; says that the beneficiaries in the deed whom he represents, as well as himself, are-innocent purchasers. He has advertised the lands for sale, and prays that any purchasers at the sale may be protected.

R. C. Daniels, pending the suit, was allowed to become a party, and file an answer and cross bill, with a prayer for a receiver. He says that on the 21st day of January, 1873, H. A.. Partee desired him to become security upon a note to the Merchants’ National Bank for $8,000 ; that said Partee exhibited to him his titles to the lands in question, which respondent thought satisfactory. He accordingly indorsed for him, and the deed of trust for his security was made to Freeman. After-wards, when the note became due, he was compelled to pay it. Neither at the time of endorsement, nor of payment, did he have any notice or knowledge of complainant’s equities, or of any transactions between him and Partee. He shows, further, that the trustee had sold under the provisions of the deed of trust on the 24th day of December, 1876, (meaning, doubtless, 1873), and that he had bought in the land for $6,750, which was credited on the debt, and deed executed. He claims to be the absolute owner of the land under said purchase, entitled to the immediate possession, but does not bring-ejectment because the title is already involved in this suit. He prays that his title may be confirmed against the complainant and all others, parties to the suit; charges that complainant is sub-letting the lands, and unless prevented will collect the rents, which are worth $2,000 a year, and that he has no property out of which it can be made, not exempt. He prays a receiver. This answer and cross bill was filed on the 25th day of February, 1874. The heirs of McCrary were not made parties. It appears from the next order of court, no date of' which appears in the transcript, that on motion of “the defendants’ attorney, and upon suggestion of the death of the plaintiff, S. W. McCrary,” it was ordered that the cause be revived in the name of J. F. Vaughan, as his administrator.. The heirs do not appear ever to have been made parties or brought in.

The cause was heard on the 30th of August, 18-75, upon the pleadings, exhibits, and a great mass of depositions on both sides. The court found tbat, at the institution of the suit the-complainant, McCrary, was the equitable owner of the property, and had fully paid for all the lands ; that the life policies' were given for the balance of his indebtedness to Partee, Mc-Gehee & Co., and to H. A. Partee, to be kept alive by them by payment of the premiums ; that the allegations of fraud on the part of H. A. Partee were fully sustained by the evidence ,- that the trust to Freeman was a fraud upon the trustee, but a» complainant bad contributed to making it possible by taking a lease as a tenant, the equities of the beneficiaries in said trust deed were superior to those of complainant, in the event that said Freeman cannot, by reason of the insolvency of Partee, save them harmless without resort to the lands. It was further held that the purchase was made by Daniels, pendente lite, in Tennessee, for cash and without any notice in Arkansas, and in violation of our laws, and was consequently null and void-The deeds and conveyances to Partee were held for naught-The title to the lands was divested out of him and vested in the lawful heirs of S. W. McCraiy. It was further ordered that Freeman, as trustee, have leave to amend his answers and cross-bill in accordance with the rulings of the court made in this cause, and proceed to foreclose, if the proper allegations-, be made.

Fees were settled and allowed to complainants’ attorneys-,, and ordered to be paid by the administrator out of the first moneys coming into his hands belonging to said estate, and to be charged in his settlements. No order was made for-accounting between the parties with regard to the old transactions. • From this decree Freeman, Partee and Daniels appealed.

This detail of the pleadings and matters of record, has been necessary to show the points at issue in the case, and the interest claimed by the several parties, so as to render the suggestions which the court may make, intelligible to the profession. To that end it is further necessary to observe upon the weight of the evidence.

We think upon the transcript, as now presented, it is clear that the Donelson lands were held by Partee as a security for a debt until the settlement between him and complainant in March, 1872 — certainly as a security for the sums advanced to pay for it. Whether he could have held them as a security for the note given for the general balance then ascertained, is a matter which it was not necessary for the court below to ■decide. As for the Barksdale lands, it seems plain that they were bought wholly by Partee with his own means, but with the intention of allowing complainant to pay for them, and keep them in connection with the others, if he could. It was not clear, under these circumstances, that complainant had any «equity in them, which he might enforce against the will of H. A. Partee, the purchaser. It is not a case of one employed by another to purchase, and taking the title in his own name. He was not the agent of McCrary, but, on the contrary, McCrary ■was his, and the deed was made as intended. Any equity Mc-Crary might have would spring out of the necessity of the Barksdale place to the full use and enjoyment of the other, to the best advantage, and the acknowledged right to redeem the latter, connected with an agreement on Partee’s part to allow McCrary to redeem both together, and proof that the land was purchased as a necessary addition to the Donelson place. In this view it may not have been erroneous in the court to hold that the Barksdale place was held as a security for the money advanced on that. This certainly was the mutual understanding of the parties up to the date of the March settlement.

This case should' have turned on the settlement in March, 1872, which seems to have changed the condition of the property and the relation of the parties. H. A. Partee then held. "the old note for $16,500, in Ms own right. It had been Reduced to something over $12,000 in 1868, the balance with interest being unpaid. He claimed to have advanced about $3,000 on the Reynold’s note, conceding that the other payments had been made by McCrary. This (about $2,800 with interest) was due to Partee. He had paid for the Barksdale place over $6,000, which (on the supposition of McCrary’s right to redeem) was also due with interest. Besides, there ■seems to have been other debts which a careful accountant made up into the statement. Nothing was due to either of the mercantile firms of which H. A. Partee was a member. The credits of these firms had been extended through Partee, who assumed the debts and made it an individual matter.

The evidence seems to establish clearly that owing this vast amount he dispaired of being able to redeem at any time. He .gave up his written evidence of right, and conveyed to Partee an outstanding tax title, took credit for the value of the lands ■on the account as it would have stood with all payments made for it charged against him, and gave his note for the balance. 'The full legal title was unconditionally in Partee, and had been before, save only as to the outstanding tax title. This was 'conveyed and McCrary took a lease as Partee’s tenant. It is ■difficult to perceive the grounds upon which, in the face of these facts, the court held that the lands had been fully paid for and belonged to McCrary. The preponderance of testimony is largely against it, and in favor of the conclusion, that McCrary, on that settlement, abandoned all his rights to the land and received therefor a credit of about $20,000 — giving for the balance his note for something over $9,000, secured by life policies. If the court below had taken this view of it, it would have followed that the trust deed to Freeman, and all proceedings under it, were matters concerning which complainant had no right to inquire.

The decree, and all proceedings in the court below, with regard to the land, after the suggestion of McCrary’s death, were-erroneous. The administrator might have prosecuted the writ for an account against Partee and a personal decree. But that branch of the case was abandoned. Upon the death of a party the title to his lands passes at once to his heirs or devisees, and! the administrator cannot represent them in court. In all cases; when title is to be affected they are necessary parties. It is well settled that the heirs of a mortgagor are necessary parties defendants to a bill to foreclose, or as complainants in a bill to> redeem. A bill to assert an equitable title to land, to which, the legal title is in another, on the grounds that it was in fact a mortgage, is in fact a bill to redeem. The success or failure of it effects the heirs, and they must in all cases be brought in. It does not cure the omission to decree in favor of the absent heirs. The propriety of the jurisdiction cannot depend' upon the result. Absent parties are not bound by decrees,, and should take no advantage from them. The action of the court in such cases is erroneous ah initio. It should, of its-own motion, refuse to proceed until the heirs are brought in,, and can have an opportunity to be heard.

There may arise cases where an administrator, also, may properly be made a party in a suit concerning the title to the’ lands. He has a qualified statutory right to the possession, and for the purpose of paying the debts, may apply to the probate court for their sale. To protect or enforce this right of possession and right to use lands as assets for debts, he might,, perhaps, on a proper showing of the necessity, be made a party with these heirs, but not without them. The substantial right and title is cast by descent upon the heirs, and the right of the administrator is in the nature of a contingent burden.

Since this cause has been appealed, the death of H. A. Par-tee has been suggested here, and his administrator, widow and theirs all been made parties. This is good practice and should Rave been pursued in the court below with regard to McCrary’s ■representatives, widow and heirs, in a contest for title to land, -and for a personal decree. The death of McCrary may give ■.rise to a further account concerning the proceeds of the life ■policies, and amounts advanced to Burleson, Patterson & Co., upon a supplemental bill to be filed in this cause, for which purpose the administrators of both parties will be necessary ¡parties.

It will be seen that in the present status of this cause, it is premature to make any authoritative ruling either upon the law •or the facts. Nevertheless as great labor has been expended iupon it by the attorneys, and considerable expense incurred in ithe appeal, It has been thought advisable by the court to intimate itswiews upon the whole transcript as it now appears. What changes of aspect the case may assume in its further progress cannot be anticipated, and it will be understood, that ■when properly brought to hearing with proper parties, in the •court below, the whole cause is to be heard de novo.

For the error in hearing the cause without reviving in favor ■of the heirs-of complainant McCrary, the decree is reversed and The cause remanded for further proceedings. The administrator, widow and ¡heirs of H. A. Partee having appeared here will if ollow .tire mase ¡below.


author: ENGLISH, C. J.:

text:
    Campbell & Strong v. Savage et al.
    Practice : Application to be made party to suit.

    0. & S. filed their bill against Savage to foreclose a mortgage executed by him* on certain lands, making Deadwiler, who was in possession and claiming am interest in them, a party defendant. Atwood showing that he claimed title to the land and that his tenar.t was in possession and had refused to pay him rent because he was made party defendant in the suit to foreclose, asked to-be made party defendant, and to file bis answer and cioss-eomplaint to plaintiff’s complaint. Held, that his application was properly allowed.
    Same : Judgment on overruling demurrer to cross-complaint.

    On overruling a demurrer to a cross-complaint, the judgment should be-respondeat ouster and the plaintiff be allowed to answer it.
    APPEAL from Dorsey Circuit Court.
    Hon. J. M. Bradley, Special Judge.

      Oarroll <& Jones, for appellants.

      McGain, contra.

   ENGLISH, C. J.:

O.i the 8th of June, 1875, Campbell & Strong filed a bill in the Circuit Court of Dorsey county against Joseph J. .Savage- and wife, and P. W. Deadwiler, to foreclose a mortgage.

The bill alleges, in substance, that on the 13th of May, 1872,. Joseph J. Savage made a note to complainants for $3,951.45,. payable at their office in New Orleans, on the 1st of January,. 1873, with ten per cent interest from maturity.

That to secure the payment of this note, Savage and wife, America Elizabeth, on the 15th of May, 1872, executed to complainants a mortgage upon certain lands, which are described, then situated in Lincoln county, where the mortgage was; recorded, but now in Dorsey county.

That defendant, Deadwiler, was in possession of the lands, claiming some interest therein as purchaser, mortgagee or tenant.

That no part of the debt or the interest had. been paid»

Prayer for decree against Joseph J. Savage for the debt and interest and expense of foreclosure, which was provided for in the mortgage, and that the lands be condemned and sold by a, commission to satisfy the decree.

Subpoenas were issued on the filing of the bill, returnable to the following fall term of the court, which were served upon the defendants, but none of them made any defense.

At the return term, on the 6th of October, 1875, Curtis B.. Attwood applied to the court to be made a defendant to the-bill, and to file an answer and cross-complaint.

On the next day the motion was heard, and against the objection of the complainants, granted, and the answer and cross-bill were filed, a receiver appointed to take charge of the lands,, and rent them out for the year 1876, and the cause was continued with leave to the complainants to amend their bill by the first day of the next term of the court.

The answer and cross-bill of Attwood set up tax deeds for most of the lands embraced by the mortgage, and alleged that defendant, Deadwiler, was in the occupancy of the lands as. tenant of Attwood.

In the transcript before us there is a hiatus from the September term, 1875, to the September term, 1876, no orders or entries appearing to have been made in the cause at the spring term, 1876.

On the 8th of September, 1876, complainants filed a motion to transfer the cause to the Circuit Court of the United States, for the Eastern District of Arkansas, which was stricken from the files, on motion of counsel for Attwood. Whereupon complainants filed a demurrer to the cross-complaint, which was argued, and by the court, overruled. “Thereupon complainants immediately made application to file their answer to the cross-bill on to-morrow morning, which was objected to by defendant, Attwood, for the reason that plaintiffs were required by the court to file their answer on or before the first day of the last term of this court; and on consideration, said application •was rejected by the court, to which ruling, plaintiffs excepted.”

Thereupon plaintiffs filed their tender to Attwood of moneys paid out by him for the lands claimed in his cross-bill, and also filed their motion to dismiss the suit, which was overruled by the court.

Thereupon, complainants making no further appearance, the 'court rendered a decree in their favor against defendant, ■Joseph J. Savage, for the debt and interest secured by the mortgage, and foreclosed the mortgage as to several tracts of land not embraced in Attwood’s tax deeds, and ordered them sold •by a commissioner, etc., and decreed the remaining lands covered by the mortgage, with the rents in the hands of the receiver, to Attwood.

Campbell & Strong appealed to this court.

I. The tax deeds exhibited with the cross-bill are dated subsequent to the execution of the mortgage; most of them are auditor’s deeds, and all of them were procured by Attwood in the years 1873-4-5.

Appellants might have made him a defendant as a pui’chaser subsequent to the execution of the mortgage, and it would have been the better practice for them to have done so to prevent litigation with him in another suit, and to make a clear title under foreclosure, decree and sale of the lands. Bliss on Bode Practice, p. 101.

It was proper for the court to permit him to become a •defendant, and file an answer and cross-complaint, on the showing made by him that he claimed title to most of the lands, and that his tenant was in the occupancy of the lands and had refused to pay him rent because he was made a defendant to the suit to foreclose. Gantt’s Dig., Secs. 4476, 4482. This case differs from Files v. Files, 28 Ark., 151.

II. The court permitted appellants to file a demurrer to the cross-complaiut, and after the demurrer had been argued, submitted and overruled, we can see no good reason why the court should have refused appellants the privilege of answering the cross-complaint, and showing, if they could, that any or all of the tax deeds relied on by Attwood were invalid.

The record does not show that the court had in fact made •an order at the term the cross-bill was filed, for the appellants to answer it at the next term.

The entry was that the cause be continued, with leave to ■appellant to amend their bill. If the court made an order for them to answer by a particular time, the record should have shown it. The statement of counsel that such order had Been made as a reason why the court should not permit an answer to be filed, amounts to nothing in the -absence of a showing of record that such an order had Been made. ' Record entries made at the time orders ■are made bjr the court, are the proper memorials of such 'orders, and not the memories of counsel, however good. If an 'order is in fact made, and not entered at the time, it may afterwards be entered, on a proper showing, nunc pro tunc.

True, the court had a discretion in the matter of the time of ■filing the answer, but having permitted the demurrer to be filed, and thereby treated the cross-complaint as open for •defense, we can see no good reason why the answer might not have been filed on the overruling of the demurrer. The proper judgment on overruling the demurrer was respondeat ouster.

So much of the decree as was in favor of appellee, Attwood, ■on the cross-matter, must be reversed at his costs, and the 'cause remanded with instructions to the court below to permit appellants to answer the cross-complaint, etc.


text:
    Necklace v. West.
    Unlawful Detainer : Action of — Mortgagee can not maintain.

    The action of unlawful detainer can not be maintained on the mere right of’ possession, but the relation of landlord and tenant must exist between the-plaintiff and def-ndant. A mortgagee, or purchaser under the mortgage, having only a right of possession, can not maintain the action. -
    Same : Amendment of action.

    An action of unlawfu. detainer can not he changed by amendment to ejectment,, where the defendant has been dispossessed under the writ.
    ’ APPEAL from Randolph Circuit Court.
    Hon. L. L. Mack, Circuit Judge.

      Moore, for appellant.

      Henderson & Caruth, contra.
   ENGLISH, C. J.:

On the 24th of September, 1875, Louis F. Necklace brought-an action of .unlawful detainer, in the Circuit Court of Randolph county, against David C. West, for possession of a tract-of land, together with mill-house, steam engine and boiler,, corn-mill, cotton-gin and press, and other machinery, upon and attached to the land described in the complaint.

The complaint alleges, in substance, that plaintiff is the owner- and entitled to the possession of the premises, describing them. That defendant unlawfully holds possession, and detains over-the premises ; and for ten days past has unlawfully detained, over and kept plaintiff out of possession, after lawful demand made. Prayer for judgment for possession of the premises,, and for damages for detention thereof. The complaint was. sworn to, and plaintiff also filed with it an affidavit, stating-that he was lawfully entitled to the possession of the premises,, describing them, and that defendant unlawfully detained over the same after lawful demand made therefor.

Upon the complaint and affidavit a writ was issued,’ commanding the sheriff to deliver possession of the premises to. the plaintiff, upon his executing a bond, etc., as required by the statute.

The plaintiff executed a bond, with security, conditioned as* prescribed by the statute, and the sheriff put him in possession* of the premises, and summoned the defendant.

At the return term defendant answered, denying that; plaintiff was entitled to possession of the premises, and that, he unlawfully detained the same, etc., etc.

The case was submitted to a jury at the August term, 1877..

The plaintiff introduced in evidence a mortgage, with powei-of sale, executed by defendant, on the 22d day of June, 1874,. to Levi 'Hecht & Brother, upon the premises described in the-complaint, to secure the payment of a note, $1,381.07, payable-on the 1st of May, 1875, with interest, etc.

The mortgagees were empowered by the mortgagor to sells the premises on ten days’ public notice, upon default of defendant to pay the note secured by the mortgage, at maturity.

Plaintiff also read in evidence a deed executed to him on the-10th of August, 1875, by Levi Hecht & Bro., reciting the mortgage, the failure of defendant to pay the note at maturity, notice and sale of the premises under the power contained in the mortgage, purchase by plaintiff at the sale, and conveying-the premises to him ; defendant admitting the recitals in the-deed to be correct, etc.

Defendant also admitted that he was in possession of the-premises at the time the suit was commenced, and that before suit plaintiff made a lawful demand upon him, in writing, for-possession of the premises.

The above was all of the evidence introduced on the part of the plaintiff.

Defendant testified that he was in possession of the premises-in his own right, and did not receive or hold such possession. by virtue of any contract, either express or implied, from plaintiff, or Levi Hecht & Bro., under whom plaintiff claimed possession, by virtue of his purchase' at the sale, made pursu- ' ant to the power contained in the mortgage.

The parties then introduced conflicting evidence in relation to the value of the rents and profits of the premises, from the time defendant was dispossessed to the time of the trial, which it is not deemed material to state.

The plaintiff moved the following instructions, which the •court refused :

“1st. When any person shall wilfully, and with force, hold •over any lands, tenements, or other possessions, after the determination of the time for which they were demised or let to him, or shall lawfully and peaceably obtain possession, and by force, or shall fail or refuse to pay the rent therefor, when •due, and after demand made, in writing, for the delivery of the .possession thereof-, by the person having the right to such possession, his agent or attorney, shall refuse to quit such possession-, such .person shall be guilty of an unlawful detainer.

■“2. Actions of unlawful detainer shall extend to and comprehend all estates, whether freehold or less than freehold.

“3. In a deed of conveyance to real estate, the legal possession follows and goes to the grantee or mortgagee, unless •otherwise expressly reserved in the conveyance.

“4. If the jury find from the evidence, that the defendant, by a mortgage, conveyed the property in controversy to Levi Hecht & Bro., and that, after default, said Levi Hecht & Bro., after said default, sold the moi’tgaged premises in pursuance of the terms of said mortgage, and that plaintiff, herein, purchased at said sale, he was entitled to the immediate possession of the mortgaged premises: and the defendant’s possession was,, -af-er -that time, only permissive, and that he held the possession of the mortgaged premises as a tenant at will or sufferance.

“5. If the juiy find from the evidence, that defendant held the possession of the premises in controversy, as a tenant of the plaintiff, and unlawfully withheld the possession of the same after lawful demand made by the plaintiff therefor, before commencement of this suit, and that plaintiff was entitled to possession thereof, they will find for the plaintiff.

“6. Where no damages are proved in an action of this kind,, the jury may find merely nominal damages.”

Against the objection of plaintiff the court instructed the jury as follows :

“Before the jury can find for the plaintiff, they must find from the weight of the evidence that the defendant was put in possession of the premises in question under a contract, express or implied, to return possession at some future time, and that defendant held the same over after the expiration of said time, after lawful demand in writing, of defendant by plaintiff, for possession. If such be not proved, they will find for the defendant.

“If you find from the evidence that there was no contract between plaintiff and defendant, either expressed or implied,, by which the relation of landlord and tenant can be established,, then you will find for the defendant, and assess his darhages at such sum as you may believe, from the. evidence, he is entitled to.

“The jury are instructed that the conveyance of the property-described in the complaint by the mortgage to Levi Hecht & Bro., and a sale by virtue of a power contained in said mort-. gage to the plaintiff Necklace, with demand made by plaintiff of the defendant for possession, is not alone sufficient to enable the plaintiff to maintain this form of action; but they must further find that the defendant received the possession ■from either the plaintiff Necklace or Levi Iiecht & Bro., under .a, contract by which he was bound to restore said possession ■under said contract, or you will find for the defendant, and •assess his damages at such sum as you may find him entitled to from the evidence.

“If the jury find for the defendant, they will assess his ■damages at the yearly rental value of the premises taken by 'the writ in this action, from the time the defendant was put out •of possession up to this date.”

The jury returned a verdict in favor of defendant, and assessed his damages at $906.66.

Plaintiff moved for a new trial, and in arrest of judgment.

The court overruled the motion for a new trial upon defendant entering a remitter for all the damages assessed in his favor 'by the jury in excess of $400. Also, overruled the motion in •arrest, and rendered judgment in favor of defendant for $400 damages, and for restitution of the property; and plaintiff took a bill of exceptions and appealed to this court.

The complaint, affidavit, writ, bond, seizure of the premises by the sheriff, the turning of defendant out, and putting of ■plaintiff into possession of the property before trial, the answer, instructions of the court, verdict and judgment, all show that the suit was an action of unlawful detainer under the act of March 2d, 1875, (Acts of 1875, p. 196,) to establish the law ■of forcible entry and detainer, aud not an action of ejectment.

In Dortch et al v. Robinson et al., 31 Ark., 298, this court held that under this act, which was a literal re-enactment of Chapter 72 of Gould’s Digest, an action of unlawful detainer would not lie on the right of possession merely, but the relation of landlord and tenant, express or implied, must exist between plaintiff and defendant to entitle the former to maintain this form of action against the latter.

There is no evidence in the case that the relation of landlord ■and tenant, express or implied, ever existed between plaintiff ■and defendant.

Defendant mortgaged the land to Levi Hecht & Bro., with power to sell on his failure to pay the note secured by the mortgage at its maturity; he made default and they sold the land and fixtures under the power, and they were purchased at the sale by plaintiff, who received a deed therefor, and on refusal of defendant to surrender possession on demand, plaintiff brought this suit. He, upon the facts disclosed, was entitled to possession of the premises, but he should have brought ejectment instead of unlawful detainer.

Counsel for appellant submits that the complaint contains ■all the material allegations requisite in a complaint in ejectment, and that under the code practice he ought not to fail in the suit because of a mistake in the proper form of action.

This may be true as a general rule, but it would be an' unjust •application of the rule to allow a plaintiff to bring the statutory action of unlawful detainer, deprive defendant of possession of the premises in advance of a trial, fail upon a trial to prove his right to maintain the action, and then avoid the consequences of the mistake, and defeat the defendants claim to damages under the statute for having oeen wrongfully dispossessed in a summary mode, by taking judgment in ejectment.

That the statute did not intend to substitute unlawful •detainer for ejectment, is manifest from its provisions that a .judgment in the former action shall be no bar to the latter, and that ejectment may be brought during the pendency of •unlawful detainer. Secs. 21, 23.

The court did not err in refusing the instructions asked by appellant, nor in giving the contrary instructions, upon the facts disclosed in evidence ; and the motion for a new trial was properly overruled.

There was no ground for arrest of judgment.

The appellant having failed to prove his right to maintain this form of action, the statute authorizes the jury to assess-appellee’s damages for being dispossessed under the writ, and. he was entitled to judgment for the damages, and for restitution of the premises. Sec. 17.

Affirmed.


text:
    Massie et al. v. Enyart et al.
    Exemption : Personal pi-operty not exempt from judgments for fraud.

    The exemption of personal property is in cases of debt by contract only; and a judgment or decree for tort or fraud is not a debt by contract, nor are the-costs, which are but an incident of the judgment.
    MotioN to vacate supersedeas.

      Davidson, for the motion.

      Pettigrew — J. D. Wallcer, contra.
   Harrison, J.:

The appellants having sued out an execution upon the decree in this court in their favor against the appellees for the cost of the appeal in this case, the appellees filed with the clerk schedules of property they claimed to hold exempt from the execution — one including a homestead, and the clerk thereupon issued a supersedeas as to the property so scheduled.

The appellants, for the cause that the execution is not for-the collection of a debt by contract, have filed a motion to quash the supersedeas. As will be seen by the report of the case — Massie et al. v. Enyart et al, 30 Ark., 251 — the action was in equity, and brought by the appellants against the appel-lees to set aside a deed of conveyance of a tract of land, upon the ground that it was made in fraud of the plaintiffs.’’ rights as creditors of the grantor, and that the same was for that cause by the decree set aside and canceled.

There can be no question as to the exemption of the homestead.

The homestead of a resident of the State, who is married, or the head of a family, and the owner in this case is shown to be such, is not subject to sale under execution, or other process,, upon any judgment or decree whatever, not rendered for “the purchase money, or for specific liens, laborers’ or mechanics’ liens for improving the same, or for taxes, or against executors, administrators, guardians, receivers, attorneys for moneys collected by them, and other trustees of an express-trust for moneys due from them in their fiduciary capacity.” Cons., Art. IX., Sec. 8.

The exemption of personal property is, in cases of debt,vby contract only. Section 1 of said article.

A judgment or decree in an action for tort, or fraud, is not a debt by contract, nor are the costs, which are but an incident of the judgment or decree. 2 Tidd, 945. If the defendant’s-personal property is not exempt from sale under an execution,, for the damages recovered against him in an action for torts,, we are unable to understand why it should be for the cost, the mere incident of the damages. In New York, it is expressly-held that a judgment rendered against the plaintiff for costs in an action brought by such plaintiff for damages for an alleged tort, is not a judgment for a “debt contracted,” within the meaning of the exemption law of that State. Schoulton v. Kilner, 8 How. Pr., 527; Latterof v. Singer, 39 Barb., 396; and see Thompson on Homesteads and Exemptions, Sec. 383.

Proceedings against the homestead were properly stayed and superseded, but there being in this case no exemption of the personal property, the supersedeas as to that must be quashed.