author: English, Ch. J..

text:
    Venable vs. Brown.

      Payment on contract within the statute of frauds.

    Where a party has paid money, or delivered property on a parol contract for the purchase of land, which is void by the statute of frauds, he cannot maintain an action for the money or property so paid or delivered, so lose; as the other party is able and willing to perform the contract.
    APPEAL from White Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Goody & McRae, for appellant.

      B. B>. Turner, contra.

   English, Ch. J..

Replevin for a mule, by ¥m, P. Brown against E. M. Venable, tried before the Circuit Court of White Couunty, on appeal from the judgment of a justice of the peace.

The court, sitting as a jury, found the following to be the facts proven:

“The plaintiff and defendant made a parol agreement, by which the plaintiff agreed to purchase, and defendant to sell to him, the tract of land on which plaintiff was residing, for the sum of $800, of which plaintiff Avas to pay $125 in a mule, (the one in controversy), and the contract was to be afterward completed by delivery of the mule, and execution of notes by plaintiff imbalance ($675), and execution of the deed by defendant and wife to plaintiff for the land, all to be done simultaneously. After-wards defendant notified plaintiff to bring the mule and complete the contract by fixing up the papers.
“Plaintiff carried the mule to defendant’s residence on the premises, expecting the contract to be completed by execution and delivery of the deed and notes, but there being no officer present to take the acknowledgment of the deed, it was agreed that the defendant and wife should acknowledge it on the following Monday (it then being Saturday), to which time the completion of the contract was postponed. The deed was written and signed by defendant and wife, and afterwards'acknowledged at the day appointed, but was never delivered to plaintiff. The notes were never executed by the .plaintiff. The plaintiff anticipating that the contract would be completed, left the mule (which had been put up at defendant’s out of a shower of rain) at defendant’s residence, not as a payment, but intending that it should become a payment on the completion of the contract.
“Afterwards the plaintiff becoming unwilling, (for what he thought sufficient reasons) to complete the contract, notified the defendant, and demanded possession of the mule. The defendant then tendered the deed and demanded the execution of the notes, and refused to deliver up the mule. Plaintiff then instituted this suit. The court finds the value of the mule to be $125. That before the institution of the suit, plaintiff offered to pay defendant the cost of keeping the mule, but defendant refused to accept it, and the use of the mule by defendant was worth his keeping.
“The court further finds, as law of the case, from the evidence, 'that the dealings between the parties were only negotiations for a contract, and did not amount to a contract, and that plaintiff is entitled to recover the mule, or its value,'$125.”

The defendant asked the court to find the facts, and declare the law as follows:

“Facts — That plaintiff and' defendant entered into a verbal contract for the sale and purchase of a tract of land, and the plaintiff delivered to defendant a mule at $125 in part payment thereof. That after the delivery of the mule, the plaintiff refused to further execute the contract by giving his notes and receiving the deed for the land, which was tendered to him by the defendant, who was able and willing to perform his part of the contract.”
“Law — The defendant having delivered the mule in part execution of the contract, it was, to that extent, an execution on the part of plaintiff, based upon a sufficient consideration, and the title to the mule, by the act of the plaintiff having passed to the defendant, his refusal to perform the remainder of the contract did not change or affect the sale and delivery of the mule, nor revest the plaintiff with title or right of possession thereto, so as to enable him to maintain this action for the recovery of the mule thus delivered and paid upon the contract, and the court finds for defendant with costs.”

But the court refused to find the facts, and to declare the law as desired by the defendant.

Judgment was rendered for plaintiff, a motion for a new trial overruled, and defendant took a bill of exceptions and appealed to this court.

Had the court below found the facts to be as drawn up on behalf of appellant, the court might very well have declared the law of the case to be as proposed for appellant on such version of the facts.

For the current of authorities sustains the proposition, that where a person has paid money, or delivered property, upon a parol contract for the purchase of land, which is void by the statute of frauds, he cannot maintain an action to recover back the money or property so paid, or delivered, so long as the other party, to whom the money has been paid, or property delivered, is willing to perform on his part, and has the ability to perform. Brown on the Statute of Frauds, sec. 122; Collier v. Coates, 17 Barbour, 472 (in which the earlier New York cases are reviewed); Cobb v. Hall, 29 Vermont (3 Williams), 510; Coughlin v. Knowles, 7 Metcalf (Mass.), 57; Duncan v. Baird & Co., 8 Dana (Ky.), 102; Lane v. Shackford, 5 New Hamp., 130; Sims v. Hutchins, 8 Smedes & Marsh., 328; Beaman v. Buck et al., 9 id., 207; Rhodes, adm’r, v. Storr, 7 Ala., 346; Dougherty’s adm’r v. Goggin, 1 J. J. Marshall, 374; Bedinger v. Whittamore, 2 id., 252.

But the court refused to find the facts as drawn up for appellant.

The appellant swore that the mule was delivered to him in part payment, and in part execution of the contract for the sale of the land, and the appellee swore that it was not so delivered.

It was in the province of the,court below, sitting as a jury, to weigh the conflicting evidence, and make up and announce its own conclusion of facts.

Judgment affii’ined.


source: Caselaw Access Project

author: English, Ch. J.:

license: Public Domain

text:
    Cook, use, etc., vs. Loftin, adm’r.
    Change of Venue: Order for must appear, eta.

    The transcript shows an affidavit for change of venue by the defendant, on the ground of bias in the judge; but it does not appear that any order was made on the affidavit: Held, there was not sufficient showing that the court below had been deprived of its jurisdiction to sustain it in striking the casue from the docket.

      APPEAL from Jackson Circuit Court.
    Hon. H. S. Coleman, Special Judge.

      Rose, for appellant.

      Goody, contra.

   English, Ch. J.:

This suit was commenced in the Circuit Court of Jackson County, in the year 1867, and was pending therein at the October term, 1871, at which term, on the 7th of November, 1871, it appears from the transcript before us, that the defendant filed the following affidavit:

“I, John R. Loftin, the defendant in the above entitled cause, do swear that I verily believe the Hon. Elisha Baxter, judge of the Jackson Circuit Court, in which the said action is pending, will not give him a fair trial thereof.”

Subscribed by affiant, and sworn to before the clerk of the court, the day on which it was filed.

■ It does not appear from the transcript that any order was made upon this affidavit, by court or clerk.

No further entry appears until the September term, 1875, when, on the 15th of September, the defendant filed a motion to strike the case from the docket, stating in the motion, for cause, that, by an order of the clerk of this court, made in this case on the 7th day of November, 1871, and entered on record as of that date, on the 24th day of February, 1873, the venue in said case was changed to the Woodruff Circuit Court, and this court has no further jurisdiction or control of the same.”

On the next day (16th September) the plaintiff moved for a -rule upon the clerk of the Circuit Court of Woodruff County to furnish a transcript of all the proceedings in the cause in said court while the same was pending therein; which motion the court overruled, but allowed the plaintiff time until the following Monday to procure such transcript.

The transcript was accordingly procured and filed.

It shows that the cause was on the docket of the Woodruff Circuit Court at the March term, 1873; and on the 19th of March, the defendant filed a motion to strike the cause from the docket. On the 9th of April, 1873, the court sustained the motion, on the ground that the court had no jurisdiction of the case, and struck it from the docket, and directed the clerk to return the papers to the clerk of the Circuit Court of Jackson County.

How the cause got into the Woodruff Circuit Court does not appear from the transcript. '

On the filing of the transcript from Woodruff, the court took up the motion of the defendant to strike the cause from the docket, filed on the 15th September, 1875, and sustained the motion, and simply struck the cause from the docket for want of jurisdiction; and the plaintiff excepted, and appealed to this court.

By act of March 27th, 1871, to amend the Civil Code of Practice, it was provided that: Whenever a party to any civil action, in the Circuit or Chancery Court, verily believes that the judge of the court in which the action is pending, will not give him a fair and impartial trial, he may file with the clerk of such court an affidavit to that effect, verified as pleadings are required to be verified, whereupon the clerk shall mahe an order changing the venue, in such case, to the most convenient county in an adjoining circuit,” etc. Sec. 760, Amended Code.

If this act was not in conflict with the Constitution of 1868 (see State v. Flynn, 31 Ark., 35), it was the duty of the clerk of the court, on the filing of the affidavit, to make an order changing the venue, as provided by the act, and to make a memorial of the order by entering it of record.

In the motion filed by appellee to strike the cause from the docket, it is stated that the clerk made an order changing the Venue to Woodruff, on the 17th November, 1871, and entered the order of record, as of that date, on the 24th of February, 1873. But this is a mere statement in the motion, and there is ho evidence in the transcript that such an order, or entry of record was made at any time.

If the clerlr, in fact, made the nunopro tuno entry at the time alleged, he was very tardy in making it, and the necessity for the change of venue had ceased, if it ever existed, for the judge whose impartiality was impeached by the affidavit of appellee, had ceased to hold the office, and become governor of the State, and another judge was upon the circuit.

It is probable that the cause was stricken from the docket in the Woodruff Circuit Court, because there was no evidence before the court that the venue had been changed by any competent order.

We cannot presume, even in favor of the judgment of the court below, that an order was made and entered changing the venue, when the transcript before us fails to show such order or entry.

It was a matter to be shown by the record, that the cause was pending in the court below, and the appellant was insisting upon a trial, after the filing of the affidavit impeaching the integrity of the judge. See Cook v. Baxter, 27 Ark., 480.

After this decision was made, it is probable that the clerk transmitted the papers in the cause to Woodruff, accompanied by no evidence of a competent order changing the venue.

However that may be, there is no sufficient showing in the record before us that the court below 'had been legally deprived of jurisdiction of the cause, and the court erred in striking it from the docket.

The judgment is reversed, and the cause remanded, with instructions to the court below to reinstate the cause upon its docket for further proceedings in accordance with law, etc.


text:
    Lee County vs. Abrahams.
    1. Circuit Clerk: Settlement for funds of county and State, jurisdiction, etc.

      It is the duty of the clerk of the Circuit Court to render an account to that court of all money received by him as such clerk for the use of the State or county. And it is the province of the court to audit and adjust his accounts, according to the records, dockets, papers, etc., of the court, and to make and certify duplicate bills of the settlement to the County Court. But if the Circuit Court neglects to require him to report during his term of office, the County Court may, under its general jurisdiction, force him to settle.

      ti. Recorder: Settlement for county funds, jurisdiction, etc.

    It is the duty of the county recorder to file with the County Court an account of all money received by him as recorder, for the use of the county; ■•and that court has jurisdiction to force him to settle and pay the same -over.
    APPEAL from Lee Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      J. J. Hornor, for appellant.
   English, Ch. J.:

On the 29th July, 1875, the following order was made by the County Court of Lee County, in the matter of the settlement'of D. B. Abrahams, as former clerk of the Circuit Court and ex officio recorder of the county.

“On this day comes special attorney, employed by this court to examine the reports and settlements of all county officers who are required by law to make settlement with the County Court of all funds in their hands belonging to the county, and report all delinquents, and reports that L. B. Abrahams* was circuit clerk and ex officio recorder of Lee County, from the-- day of April, 1873, to the 30th day of May, 1874, when the office of circuit clerk in Lee .County was abolished, by act of the legislature, and that, upon examination of the records, it no where appears that said Abrahams, as such clerk, has made the settlement with the board of supervisors required by law, of the taxes and county revenue which were, or ought to have been, collected by him, or paid the same into the hands of the proper officer; and it appearing, to the satisfaction of the court; that the said Abrahams, as clerk as aforesaid, is delinquent in his settlement as required by law, the court proceeds to adjust the accounts of said delinquent, and finds the amount due from him to the county as •follows: A tax of fifty cents on each of the following number

of certificates of record on instruments of writing recorded in the recorder’s office, collected by said delinquent, and payable into the county treasury in lawful money of the United States:

In record of mortgages, “B” 216; tax......... $108.00

In trust deed record, “A” 266, tax.............. 133.00

In record of deeds, “A” 206, tax............... 103.00

Marriage certificates, 70, tax....................... 35.00

Commissions and bonds, 8, tax.................... 4.00

Credentials, 3.......................................... 1.50

Also, original writs in equity, 13................. 6.50

Also, original writs in law, 23...................'.. 11.50

Execution, 1.......................................... 50

Total revenue due from said delinquent to the couniy, and appropriated by law to the fund for general purposes............ $403.00

It appears that prior .to the entry of this order, and on the same day, Abrahams, as ex-circuit clerk, filed in the court a report, by way of general settlement, that he did not make any collections of money for the county of Lee during his term of office, and had no funds in his hands belonging to the county.

The above settlement, made by the court, was entered of record, and after the expiration of ten days, the clerk of the court charged Abrahams with a penalty of 25 per cent, on the amount found, as above, to be due to the county from him, for failing to pay the same over to the county treasurer, etc.

On the 19th of August, 1875, a citation was issued to Abrahams, as late clerk of the Circuit Court, and ex officio recorder, reciting the above settlement, the imposition of the penalty, etc., and notifying him that unless he appeared at the next term of the court and showed good cause why such settlement should be set aside, judgment would be rendered against him, etc.

He appeared at the return term (Octobei', 1875) and demurred for want of jurisdiction in the court; the demurrer was overruled, and declining, to answer over, judgment was rendered against him, in favor of the county, for $403 in United States currency, and $100.75 penalty thereon, with fifty per cent, per annum upon the whole until paid.

He appealed to the Circuit Court, where he. again demurred for want of jurisdiction in the County Court, insisting that the Circuit Court was the proper forum to settle and adjust his accounts, as its former clerk, etc.

The court sustained the demurrer, and dismissed the cause for want of jurisdiction, and the county appealed to this court.

The statutes provide:

“The clerks of the several courts of record shall collect and pay over to the collectors, etc., all taxes on writs, executions, official seals, and other sums of money by whatever name designated coming to their hands and belonging to the State or county, and shall render accounts at each term of the respective courts, verified by oath of all moneys which have been received to the use of the State or county not before accounted for.” Miller’s Digest, sec. 196.
“They shall keep a true account of all fines, penalties, forfeitures, and judgments imposed, adjudged or rendered in favor of the State or any county by their respective courts, distinguishing those payable to the State from those payable to the county, and shall keep the same «pen for the inspection of the judges of their respective courts and the collector of the revenue.” Id., sec. 197.
“It shall be the duty of the judges of such courts to audit and adjust the accounts of their respective clerks according to the records, dockets and papers of their respective courts, and to make two separate bills of the several sums wherewith their clerks shall be chargeable, specifying on what account the same is payable, and certify a copy thereof to the clerk of the County Court, who shall file and charge the same accordingly, and the other shall be certified and delivered to the County Treasurer.” Id., 198.

No doubt it was the duty of the appellee, as Clerk of the Circuit Court, to render an account to that court, of all moneys received by him, as such clerk, to the use of the State or county, and it was the province of the court to audit and adjust his accounts, according to the records, dockets, and papers, etc., of the court, and to make and certify duplicate bills of the settlement, etc., as required in the statutes above copied.

The appellee was doubtless appointed Clerk of the Circuit Court of Lee County under the provisions of the act of Api’il 17th, 1873 (Gantt’s Dig., Ch. 21), which provided for separate Circuit Clerks in counties having a population of 10,000, etc.

. And by act of April 23d, 1873 (Acts of 1873, p. 201), Lee County was brought within the provisions of this act. But the act of April 23d, 1873, was repealed by act of May 20th, 1874 (called session), and thereby the office of Circuit Clerk in Lee County abolished.

By the act of April 17th, 1873, under which appellee held the office of Circuit Clerk, he was made ex-officio Recorder of that county, and was required to take an oath and give a bond as such Recorder. Gantt’s Digest, Ch. 113.

Appellee, therefore, held two offices, he was clerk of the Cir-. cuit Court, and he was Recorder. The offices were as distinct as if held by two persons instead of one. As Recorder, he was the clerk of no court.

The Circuit Court could not tell, by an inspection of its “records, dockets and papers,” what moneys appellee had received for the county as recorder, and the law did not require him, as, recorder, to make any settlement with the Circuit Court.

By section 7, Miller’s Digest, there is a tax of $3 on each criminal conviction; a tax of fifty cents on each original writ, and execution issued out of any of the courts of the State, and the sum of fifty cents on the certificate of record of each instru-. ment of writing recorded in the recorder’s office. These are all; collected for county purposes.

It was the duty of the appellee, as recorder, to collect the tax upon all instruments recorded, and to account to the County-Court for the same*, and to pay the money over as required bylaw. Miller’s Digest, secs. 209, 202, 216.

As Clerk of the Circuit Court it was his duty to collect thq tax on original writs, executions, etc., and report his collections to the Circuit Court, to be audited, adjusted and certified to the County Court, etc., as required by the above statute.

It seems that he reported no collections while in office as clerk or recorder.

The County Court charged him with the tax on thirteen original writs in equity, twenty-three at law, and one execution. All the other items charged against him are for the tax on recorder’s certificates. As to these items, the County Court certainly had jurisdiction to rule him to a settlement. Miller’s Digest, sec. 209 to 218.

As to the tax on writs issued by him as clerk, the Circuit Court should have ruled him to a report, if in fact he failed to. report as required by law, audited and adjusted his accounts, and certified them to the County Court, etc.

But if the Circuit Court neglected to rule him to report during his whole term of office, we see no reason why the County Court, having original jurisdiction in matters relating to county taxes, etc., might not force him to a settlement. Miller’s Dig., sec. 214, etc.

The judgment is reversed and the cause remanded to the Circuit Court, with instructions to reinstate the cause, overrule the demurrer, and for further proceedings.


author: Walker, J.:

text:
    Tate and Wife vs. Jay et al.
    1. Seizin: Dower, etc.

    The heir at law will net acquire seizin of the lands of his ancestor so long as the same remain in the possession and control* of the administrator, and there are outstanding debts. Nor will the widow of the heir acquire a right of dower in land so held.
    2. Doweh.
    Dower is a freehold estate, growing out of marriage, seizin, and the death of the husband. It obtains by way of lien created by, and at the time, of marriage. When once fixed, it is paramount to the rights of creditors and purchasers; and no act of the husband, without the wife’s consent, can divest her of it.
    APPEAL from Lincoln Circuit Court in Chancery.
    Hon. Jno. A. Williams, Circuit Judge.

      Bell, for appellants.

      H. Carlton, contra.

   Walker, J.:

Jay and wife filed their bill in chancery to have dower set apart and assigned to them in right of the wife, who was the widow of Joseph W. Clay, Jr., deceased.

The claim to dower is asserted upon a large tract of land, indeed, several tracts, situate in Lincoln County, which was owned as an estate in fee simple by Joseph W. Clay, senior, the father of Joseph W. Clay, junior.

The bill alleges that Joseph W. Clay, Sr., at his death left three children, his sole heirs, namely, Joseph W. Clay, Jr., Caroline P. Clay, who married the defendant Raynor Whitfield, and Mary C. Clay, who married defendant Thomas G. Tate. That in 1862, plaintiff Mary N. Jay was married to Joseph W. Clay, Jr., and lived with him as his wife until his death in 1870. That plaintiffs were married in 1871, and are now husband and wife. That in the lifetime of said Joseph W. Clay, Jr., he was seized of an estate of inheritance of an undivided third interest in all of the real and personal estate of his father, Joseph W. Clay, Sr., subject alone to the widow’s dower, which has ceased by her death, and of the debts against said estate; and charges that the personal estate was more than sufficient to pay the debts of the estate.

That in 1868, her then husband, Joseph W. Clay, being the owner of said undivided interest, was adjudged a bankrupt; that under proceedings in bankruptcy said undivided interest was sold, and purchased by Henry Page for the nominal sum of about $500, who- conveyed such interest to defendant Tate; that defendants are in possession of the lands, claim them, and have made division among themselves; that the amount of the land is about 4,000 acres, about 1,500 acres of which are cleared and in cultivation, which lands have been in the use and possession of defendants since 1868, and are worth $8 per acre per annum rent; that plaintiffs have requested defendants to set apart and allot to the plaintiff, Mary, dower in said lands.

The defendants, Tate and wife, answer. They deny that Joseph W. Clay, Jr., was at any time seized of the estate, or was in possession of it, only as tenant under Thomas Fletcher, who held the land in his possession as administrator of Joseph W. Clay’s, Sr., estate; deny that there was personal property sufficient to pay the debts of the estate; state that the estate is largely indebted and still unsettled; that judgment for alarge amount has been recovered in the United States Court, which is unsatisfied, and the lands have been placed by'that court in the hands of a receiver ; that the personalty has been exhausted.

The other material allegations may be taken as admitted.

The exhibits and an agreed statement of facts show that Joseph W. Clay, Sr., was the owner of a large estate in lands, negroes and personal property, which came into the hands of Fletcher, as administrator, who held the lands in possession, and rented the same; that Joseph W. Clay, Jr., one of his heirs, re-resided on part of the land, but held it as a tenant under Fletcher; that he was declared a bankrupt, and his interest in the land sold to Page, who transferred it to the wife of defendant Tate ; that the estate of Joseph W. Clay, Sr., had never been settled, and large debts were yet unsettled; and that whilst in this condition, Joseph W. Clay, Jr., died.

No other facts need be stated to determine the question at issue.

The court below, upon this state of facts, held that Joseph W. Clay, Jr., was, during coverture, seized of an estate of inheritance in the land, and that the widow was entitled to dower, subject to the debts of this estate, and decreed accordingly.

Defendants Tate and wife appealed.

The decision of the whole case turns upon the question of seizin.

Was the husband, during coverture, seized of an estate of inheritance ? Such seizin, during coverture, and the death of the husband, entitle the widow to dower. Was the husband seized of the land? Seizin is either in deed, or in law; seizin in deed, is actual possession; seizin in law, the right to immediate possession. Unless such seizin existed during coverture there can be' no dower, because it is an indispensable requisite to her right to dower, so declared by- statute. Sec. 2210 Gantt’s Digest, provides that a widow shall be endowed of one-third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage.

Under the state of case presented, we must hold that the husband was not so seized.

This estate belonged to the husband’s father, who died intestate. It is true that as such heir he held an interest in the land, but not a right to the immediate possession. It was an estate dependent upon the contingency that the father had other estate sufficient to pay his debts, and, by express provision of statute (sec. 68 Gantt’s Digest), it is provided, that lands shall be assets in the hands of the executor or administrator, and shall be deemed in their possession, and subject to their control for the payment of debts. Sec. 70 provides for his renting the lands, the rents to be accounted for as assets ; and sec. 71, if necessary for the payment of debts, for the sale of the land.

A sale of the land for the payment of debts would pass to the purchaser an absolute estate in the lands, free from dower, and if such is the case, it must necessarily be because the widow had no dower.

Her right to dower after marriage is absolute, and fixes a lien upon all the lands of which the husband was seized of an estate of inheritance •, no subsequent act of his, without her consent, can divest her of it. It is a freehold estate, growing out of marriage, seizin and the death of the husband. It takes by way of lien created by and at the time of marriage, and, when once fixed, is paramount to the claim of creditors and purchasers, without regard to the husband’s debts. Hill v. Mitchell, 5 Ark., 608; Menifee v. Menifee, 8 Ark., 9; Bobb v. Powers, 18 Ark., 440.

But these were not debts of the husband, nor this an administration upon his estate. It was the father’s estate, and his debts a limitation upon the title of the husband, his heir.

If dower creates a lien, a fixed title which the widow has power to assert upon the death of her husband, and existed under his title as heir, then the purchaser under a sale made for the payment of debts would take an encumbered, not an absolute and perfect title, as we are satisfied he does, if the widow was entitled to dower, and the cause why the title under such sale is free from such encumbrance is, that there is no dower.

Under this view of the case, we must hold that the widow is not entitled to dower, because her husband was at no time during coverture, seized of the land, either in deed or in law.

The judgment and decree of the court below must be reversed and set aside, and the cause dismissed.


text:
    Cockrill vs. Armstrong.
    1. Dower: Joint tenancy.

      Dower will not be carved out of an estate held in joint tenancy; seizin in severalty is requisite to support it. The alienation which severs a joint tenancy cuts off dower, because the same act of the husband by which the joint estate is severed, operates to pass the fee of his moiety to his grantee.
    2. Joint Tenancy: How created under the statute.

    Under the provisions of sec. 837, Gantt’s Digest, a joint tenancy can only be created by a grant, or devise, to executors or trustees, as such; or, by the express terms of the grant, or devise.

      3. Will: Construction of.

    A will contained the following provisions: “ First — I hereby bequeath and devise all my estate, real and personal, including all my effects, of every description whatsoever, subject to the limitations hereinafter set forth, to my sons, * « * whom I constitute my sole executors. Seconds — It is my wish and desire that my plantation * * * shall not be sold or disposed of, but remain and continue as at present, to be kept together with all my other effects, under the joint management of my executors aforesaid; not to be divided, but to remain as an entire estate until my son * * becomes of age; and in the event of either of my sons dying without issue, before that time, the survivor, or survivors, to succeed, as heirs and executors: ” Held, that the first clause was intended to be a devise to the sons simply, and under the statute they would hold the estate as tenants in common; that the second clause was only intended as a limitation upon the use and disposition of the estate until the minor son became of age.
    The third clause was as follows: “ Having full confidence in iny sons aforesaid, and in their disposition to deal fairly, justly and liberally, I leave it to them to make proper and suitable provision for their sisters, ® ® Held, that it was the intention of the testator to charge the estate in the hands of the sons with the maintenance and suitable provision for the daughters.
    5. --:
    Wills are always liberally construed, and every legitimate conclusion indulged, in order to reach a just and equitable result; words and sentences must be so considered and construed as to arrive at the real intention of the testator.
    6. --: Sow trust may be created, by.

    Express words are not necessary to the creation of a trust by will; if, from the language used, in view of the whole disposition of the estate, such an intention is manifest, a trust will be implied.
    7. ——-:
    The fifth clause of the will was as follows: “ It is my desire that my grandson * * be brought up and educated at the cost and expense of my estate:” Held, that it created an express trust and charge upon the estate. The terms wish and desire must be construed as imperative upon the executors.
    8. Doweb: Oat of trust estate.

    Where the trustee has an interest in the subject of the trust, whether created by deed or otherwise, the wife is entitled to dower to the extent of such interest, if it can be decreed to her without interfering with the trust estate, or defeating the purpose of the trust.

      9. ------:
    While land is in the custody of an executor, who is also a devisee under the will, it is not subject to dower in favor of the wife of such devisee.
    10. --:
    Upon the sale, by executors, of the real estate of the testator, for the payment of debts of the estate, the purchaser takes the title, free from dower in favor of the wife of a devisee.
    11.---: Out of encumbered estate.

    Where the estate is subject to paramount incumbrances, the widow will be endowed out of the equity' of redemption. And where the purchaser thereof has expended money in removing the incumbrances, she will be required to refund it, with interest, before she can assert her right to dower.
    APPEAL from Jefferson Circuit Court in Chancery.
    Hon. John A. Williams, Circuit Judge.

      Coehrill and Rose, for appellant.

      H. Carlton, contra.

   Walker, J.:

This action was brought by Matilda P. Armstrong, as widow of James T. Armstrong, deceased, to have dower assigned her out of several tracts of land, of which, she alleges, her husband, during coverture, was seized as of an estate of inheritance.

The question as to whether the estate of the husband was an absolute estate, or was so incumbered and qualified that dower did not attach, presents the material question of contest.

The facts are, that William Armstrong, at the time of his death, in 1847, was the owner of several tracts of land, negroes and personal estate; that he had no wife living, but had children and heirs — three sons, three daughters and an infant grandson ; that he made a will by which he devised all of his estate to his three sons, but whether absolutely, or coupled with a trust ,to support his daughters and educate his grandson, is a disputed fact which will be hereafter referred to ; that,- at the time of his death, his lands were incumbered with a mortgage to the Real Estate Bank of $25,400, with interest, and after his death, by his sons, who were appointed executors of the estate, the lands were further iucumbered with the payment of a debt of $10,000 to William Wilson, and $30,086.64 to McGregor, Alloway & Co. The mortgage deed to Wilson was executed on the 17th of April, 1849; that made to McGregor, Alloway & Co.,-was executed on the 19th of August, 1854.

In February, 1856, the defendant, Cockrill, bought of James T. and Francis W. Armstrong an undivided two-thirds interest in the lands, so devised by their father, for the consideration of $13,000, and an agreement, also, to pay two-thirds of the incumbrances upon the land, and David I. Armstrong, the other son, the other third part of such incumbrance.

Under this purchase, Cockrill, claiming to be the owner of an undivided two-thirds interest in the lands, entered, as tenant in common, with David I., upon the lands.

There appears to have been a verbal agreement-between the brothers as to the particular tracts of land to be held by each, and this was understood when defendant, Cockrill, purchased the undivided interest of two of the brothers.

In 1858, Cockrill and David I, Armstrong made partition of the lands. By the division, lands in secs. 1 and 12 were set apart to defendant, Cockrill; subsequently he exchanged with David I. Armstrong, and let him have the lands in secs. 1 and 12, and took other land in exchange, and gave to David I. $4,000 or $5,000.

At the time of CockrilFs purchase, there were about 350 acres of cleared land; since then fifty or seventy-five, acres of the improved land have fallen into the river, since which time defendant, Cockrill, claims that on the lands purchased by him he has cleared and put in cultivation 500 acres, besides other improvements, and to have paid and satisfied two-thirds of the incumbrances on the land, according to agreement; claims in his answer that he should be subrogated to the right of the mortgagors whose debts he has paid, and that if dower is allowed to plaintiff he is entitled to payment out of the dower for the sums so paid and for improvements upon the lands.

There were other parties made defendants, residents upon other tracts of the land set apart to David Armstrong, who have not appealed and whose claims need not be considered.

The case was heard in the court below upon the bill, answer, exhibits and depositions, upon consideration of which the court found: that the plaintiff was the widow of James T. Armstrong, who departed this life in 1873, that during coverture he was seized and possessed of an estate of inheritance by devise of one undivided third interest jointly with his brother Frank and David in the lands; that the rents of the lands were worth more than, the improvements made upon it, and decreed to plaintiff dower in the lands. From which defendant Coekrill has appealed.

In order te entitle the widow to dower, her husband must, during coverture, have been seized of an estate of inheritance in the lands, out of which she claims to be endowed.

It is insisted by the counsel of defendant Coekrill that for several reasons the husband had no such estate in the lands as entitled the widow to dower.

First — Because the husband acquired an estate with his brothers, David and Frank, in joint tenancy, that such an estate is not an estate of inheritance.

That such is the common law rule, is certainly true. The seizin of the husband must be a sole seizin, the rule requires that seizin shall be sole, both of the freehold and of the inheritance. So stringently is.this rule applied that where one joint tenant claims his share, whereby the joint tenancy is severed, and the possibility of survivorship of the other joint tenant is destroyed, it is nevertheless held that the wife of the former shall not be endowed; upon the principle it is said that the same act of the husband by which the joint tenancy is severed, operates to pass the fee of his moiety to the grantee. 1 Scribner, Ch. 12, sec. 33.

In 4 Kent Com., 37, it is laid down that the husband must have had seizin of the land in severalty, at sometime during the marriage, to entitle the wife to dower. No title to dower attaches on a joint seizin, the mere possibility of the estate’s being defeated by survivorship prevents dower.

The seizin, to be effective, must be substantial, not a mere transitory seizin for an instant, as where the husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor. Kent Com., 4, 38, 39. In such case the husband is not deemed sufficiently, or beneficially seized, by an instantaneous passage of the fee in and out of him, to entitle the wife to dower.

Such is clearly the rule at the common law, and conceding that the brothers were in this instance joint tenants, and that the tenancy had not been severed by partition at the time that James Trooper Armstrong conveyed his interest in the lands to Cock-rill, the case would come directly within the rule laid down by Scribner and Kent. The alienation which severs the joint tenancy, cuts off the widow from dower, because the same act of the husband, by which the joint estate is severed, operates to pass the fee of his moiety to the grantee.

The deed from the husband to Cockrill severed the tenancy, and in the same act passed the fee to Cockrill and left no seizin or estate of inheritance.

It is, however, contended by counsel for the plaintiff that by statute the common law rule with regard to joint tenancies has been changed.

The statute referred to reads as follows: “Every interest in real estate granted or devised to two or more persons, other than executors and trustees, as such, shall be in tenancy in common unless expressly declared in such grant or devise to be a joint tenancy.” Gantt’s Dig., sec. 837.

There can be no question as to the intention of this enactment, and under it we must hold: That it is only where the grant is to executors or trustees, as such, or where by the terms of the grant or devise, a joint tenancy is devised, that a joint'tenancy can exist. It is, therefore, not sufficient that an estate be granted or devised to several persons, to make them joint tenants. The deed or devise must declare that they are such, in order to bring the parties within the common law rule upon the subject of joint tenancy.

It therefore becomes necessary to determine whether in this devise it was in terms intended that these sons should hold as joint tenants.

The language of the devise is as follows: “ I hereby bequeath and devise all my estate, real and personal, including all my effects of every description whatever, subject to the limitations herein set forth, to my sons James Trooper Armstrong, David I. Armstrong and Frank Will. Armstrong, whom I constitute and appoint my sole executors.

“Second — It is my wish and desire that my plantation below Pine Bluff, including the adjoining lands, and all the appurtenances, shall not be sold or disposed of, but remain and continue as at present, to be kept together, with my negroes and all my other effects under the joint management and control of my executors aforesaid, not to be divided, but to remain as an entire estate, until my son Frank becomes of age, and in the event of either of my sons dying without issue before that time, the survivor or survivors to succeed as heirs and executors.”

Upon a fair construction of these provisions, we think that the first clause was intended to be a devise to the sons of the estate simply, and although at the common law they would hold the estate as joint tenants, yet under our statute they hold as tenants in common.

The second paragraph was only intended as a limitation upon the use and disposition of the estate until the minor son became of age.

We must therefore hold that this objection is not well taken.

The second ground assumed by the defendant’s counsel is that by the terms of the will, the estate was devised to the sons, coupled with a trust to provide for the three daughters, and for the education and care of the minor grandson.

The testator, after the devise of his estate to his three sons, provides:

“Third — Having full confidence in my sons aforesaid, and in their disposition to deal justly and liberally, I leave it to them to make proper and suitable provision for their sisters Susan, Margaret and Nancy.”

In the absence of any apparent cause why the whole estate should have been given to the sons, it is to be presumed that the testator contemplated making suitable provision for his daughters also, who we may presume were entitled to the same care, protection and support as the sons were, indeed the obligation of a parent always strong to provide for his children, is presumed to be stronger towards the daughters than the sons, their inability to protect themselves, the very unremunerative and limited sphere of action assigned them in society, and more particularly daughters educated, as we may suppose from the circumstances of the testator, they were; we must not indulge the belief that the father intended to make no provision out of his estate for the support and maintenance of his daughters.

After placing this large estate in the hands of his sons, he says: “In full confidence in the disposition of my sons to deal justly and liberally with their sisters, I leave it to them to make proper and suitable provisions for them.”

What did the testator mean by the terms justly and liberally? What by the terms proper and suitable provisions for their sisters ? Surely not less than the sons themselves received, and these appeals to the sons to act justly and liberally, imply that they had received a consideration which in justice imposed upon them the duty, out of this estate, to provide for the sisters by settling upon them a portion of the estate, a suitable portion, a-liberal provision. Whether tender age or other cause prevented the father from setting apart a portion of his estate for his daughters, or why he left it with his sons to make this provision for them, the conclusion is irresistible that the father intended to place the estate in the hands of his sons for themselves and in trust for the support of their sisters.

Wills are always liberally construed, and every conclusion which may be legitimately indulged in order to reach a just and equitable conclusion, is not only permissible but is required. Words and sentences are to be considered, and construed, so as to reach the real intention and purpose of the testator.

So strong is the presumption that a father would not intentionally omit to provide for all of his children, that in case the name of one or more of the children is left out of the will, by statute it is held to be an unintentional oversight, and the law brings them within the provisions of the will, and makes them joint heirs in the inheritance.

It is not necessary to use the word trust, or to direct property to be held in trust. But if, from the language used, in view of the whole disposition of the estate, an intent and purpose may be reached which implies a trust, a trust will be implied.

Perry says: “Implied trusts are those that arise when trusts are not directly or expressly declared in terms, but the courts, from the whole transaction, and the words used, imply or infer that it was the intention of the parties to create a trust. Courts seek for the intention of the parties, however informal or obscure the language may be; and if a trust can fairly be implied from the language used, as to the intention of the parties, *the intention will be executed, through the medium of the trust.”

In order to present this question in its true light, let us suppose that one of these daughters had filed a bill against the brothers, and charged them with a breach of trust in not making suitable provision for her support out of this large estate, for not having acted justly and liberally by her, as was in confidence expected of them by their father. We cannot doubt but that upon a proper showing of neglect a court of equity would require that a suitable provision should be made for- her maintenance, and, if neeessaiy, would lay hold of the estate for that purpose, and, if so, it would be because a trust was created by the will in her favor.

The language used, when taken in connection with the obvious purpose of the testator, is much stronger than is frequently held sufficient.

Perry gives many examples, where gifts or bequests are made, coupled with terms which imply a purpose sufficient to raise a trust, thus at Ch. 4, sec. 112, vol. 1, he says: “That if a testator make an absolute gift to one person in his will, and accompany the gift with words expressing a “belief,” “desire,” ‘‘will,” “request,” “hope” or “confide,” have the “fullest confidence” and other like expressions, the courts will consider the intention of the testator as manifestly implied, and they will carry the intention into effect by declaring the donee, or first taker, to be trustee for those whom the donor intended to benefit.”

Many other expressions are given where it has been held that a trust would not be implied.

In all cases the general purpose and end to be effected must necessarily be taken into consideration in determining the question as to whether a trust was or not intended to be raised.

We have given this subject the most careful consideration, and have reached the conclusion that the intention of the testator was to vest the legal title to the estate in his sons, and to charge the estate in their hands with the maintenance or suitable provision for his daughters; no other conclusion can be reached without imputing to the father the great wrong, without apparent cause, of disinheriting his daughters.

Fifth — It is my wish and desire that my grandson, William Armstrong Cocke, be brought up and educated at the cost and expense of my estate.”

Here an express trust was created, and a charge declared upon the testator’s estate. The terms wish,” and desire,” must be construed as imposing a direct obligation upon the executors to make such expenditure,.and to charge the estate with the expense. Taking this provision in connection with all of the others in the will, does but strengthen the conclusion, that it was really the intention of the father to provide out of his estate for all of his children. The will is short and concise, the general purpose clearly expressed.

The estate of the testator consisted of lands,. negroes, stock, and farming implements; the cultivation of the plantation his occupation and means of support; his children, two grown sons, the third not then of age, three daughters and a grandson. It may be presumed that he thought it best to keep the estate together, and have the lands cultivated for the payment of his debts and the support of his children. To this end he devised the whole of his estate to his three sons, appointed them his executors, and directed that the estate should be kept together as an estate until the youngest son should become of age.

The sons may be presumed to have been capable of managing the estate, the daughters not. The extent of their incapacity, whether from tender age or other cause, does not appear.

The whole estate was devised to the sons, evidently for the purpose of enabling them to manage and settle the estate, and provide for and support the sisters, and take care of and educate the grandson, and this was, no doubt, intended to be a charge upon the estate; a trust confided to the sons; not a naked trust, but one coupled with an interest.

In a trust without an interest in the trustee, the wife of the trustee would not have been entitled to dower, because the dower interest would have diverted a portion of the estate from the use and purpose for -which the trust was created, (1 Wash. R. Prop., 162.) but where the trustee has an interest in the estate conveyed to him in trust, whether created by the deed or otherwise,' then, to the extent of such interest, the wife is entitled to dower. 4 Kent Com., 436.

Scribner, Ch. 19, p. 393: “Although the wife is not dowable when the husband holds nothing but the dry legal title, without any beneficial interest in the land, yet, if any substantial interest therein be conferred with the estate, to that exteiit it is supposed she would be entitled to dower.”

In the case under consideration, the devisee certainly had such interest, and his wife (the plaintiff), to the extent of such interest (if the estate was not otherwise incumbered), would be entitled to dowei1, to be so decreed as not to interfere with the trust estate, or to defeat the purpose for which it was created.

We must, therefore, hold that the grounds assumed by counsel for Cockrill, unless in this qualified #sense, is not well taken.

The third ground of objection to the widow’s claim to dower is, that the estate of William Armstrong was, at the time of his death, charged with the payment of a debt secured by mortgage and that the estate passed to and vested in the devisees, subject to the prior rights of the executors, with an immediate right of possession and seizin and use, and, if necessary for the payment of debts, sale.

And that this estate came into the possession of the husband, not as devisee, but as executor in trust for the payment of the debts of the tes,tator. This ground is well taken.

It is provided by statute that lands shall be assets in the hands of the executor or administrator, and shall be deemed in his possession, and subject to his control for the payment of debts; he is empowered to rent the lands, to receive and account for the rents as assets, and, if necessary for the payment of debts, to sell the lands. Such sale, if made, would convey to the purchaser an absolute estate, free from dower, and, if free from dower, it must be because no dower existed at that time ; none could exist whilst the lands were so held by the executor, because the seizin, as well as a qualified estate, was in him, and not in the devisee (the husband). There was, therefore, no such estate in -the husband of which the wife was entitled to dower. So held by this court at the present sitting, in the case of Jay and Wife v. Tate et al.

Independent of this position, but in connection with it, it may be well to consider the character of title held by James T. Armstrong (the husband of plaintiff), who claims title as devisee of his father’s estate.

The estate of the father was, at the time of his death, incumbered with a mortgage lien for the payment of a debt to the Eeal Estate Bank, and, consequently, the father then held only the equity of redemption.

At the common law, the legal estate in the lands mortgaged would have vested in the mortgagee, but in equity, the equity of redemption is the ancient estate in the lands, without change of ownership. Coote on Mort., p. 23.

Equitv, adhering to the principles of the civil law, which considers the borrower the owner of the pledge until barred by judicial sentence, and looking to the substance, not the form of things, held the 'mortgagor, as in the civil law, the real owner of the land until decree of foreclosure, and possessed of it in his original right, and, consequently, that the equity of redemption was an estate in the land, and the person entitled to it the real owner of the land. Such is the decision of this court in State v. Lawson, 6 Ark., 269 ; Moore v. Anders, 14 Ark., 637, and Kannady v. McCanon, 18 Ark., 170.

Such-was the estate held by William Armstrong at his death, and such the estate devised.

At the time of the conveyance to Coekrill, the devisees were jointly in possession of the lands as executors. In the execution of their trust as executors, they had a right to sell and convey the lands for the payment of the debts of the testator. The fee, after the payment of the debts, was in them; the power of disposition in them. By their sale as executors, and for the payment of the debts of the estate, they had power to convey the absolute estate, free from the charge of dower. The sale was made in their trust capacity, arid they are estopped from denying the necessity of the sale, or the character in which they sold.

If they were at that time seized of an estate of inheritance, the widow would not, of course, be estopped from asserting her rights, but the estate was then incumbered, so that the seizin and estate were not such as to entitle the widow to dower. It may have been, and probably was in part, disincumbered by paying off the two last mortgage debts, but, by the same deed that effected this disincumbrance, the husband parted with his whole estate. This momentary disincumbrance, this seizin for an instant, is of no avail. 1 Scribner, Ch. 12, p. 261.

The deed from the executors and devisees is, in substance, as follows:

Francis W. Armstrong, James T. Armstrong and David I. Armstrong, as executors of the estate of William Armstrong, deceased, and in their individual rights, of the one part, and Sterling R. Coekrill of the other, for the consideration of $13,-000 cash, paid to Francis and James Armstrong, and in .consideration of an agreement and undertaking of Coekrill to pay certain debts due from the estate of William Armstrong, deceased, consisting chiefly of the debts to McGregor, Alloway & Co., and William Wilson, set forth more fully in mortgages to them upon the property about which this contract of sale and purchase is made, two-thirds of these and other debts being assumed by said Coekrill, and one-third by David I. Armstrong. Now, this indenture witnesseth, that, for and in consideration of the foregoing, and other sufficient causes moving, the said James T., David I. and Francis W. Armstrong, as executors, and in their' individual right, grant, bargain and sell, etc., to Coekrill and his heirs, forever, two-thirds of the real and personal estate known as the Armstrong place, one. mile below Pine Bluff, fully described in the mortgage deed to Wilson, with the negroes described in the mortgage to McGregor, Alloway & Co., it being the intention of this indenture to convey all the right, title and interest which James T. and Francis W. have in said estate, being two-thirds, the other third belonging to David I. Armstrong. The said James T., Francis W. and David I. Armstrong convey all the right, title and interest, which they have power to do as executors of the estate of William Armstrong, deceased-, and the said James T. and Francis W. Armstrong all their right individually, being one-third each, but only warrant the title to the real and personal estate, and interest, against themselves and all persons claiming title by or through them.

(Signed,) James Trooper Armstrong,

F. W. Armstrong,

D. I. Armstrong,

Executors of William Armstrong.

Construing this deed, and giving effect to it, according to the language used, and the powers and duties of the grantors, we must hold that two-thirds of the lands were sold, by all of the executors, all joining in the deed as such, for the purpose of paying the debts of the estate of William Armstrong; the debts are so described in the deed.

Cockrill, in his deposition, swears that the sale of the land was made by the executors for the purpose of paying the debts; the debts are the same described in the deed, with the addition of that due the Real Estate Bank, and amounted, all together, to about |65,000.

Looking to the answer of Cockrill and to deeds to Wilson and McG-regor, Alloway & Co., a question may arise as to whether the debts described in the deed of mortgage were not contracted by the trustees in their trust capacity in carrying on the plantation, as under the provisions of the will the executors were required to keep the estate together as an entirety, and cultivate it until Frank, the youngest son, became of age, the time when the debts were contracted.

The fact that the estate of the testator was charged as security for the payment of the debts, the positive declarations of the executors to Cockrill that these were debts of the estate of William Armstrong, deceased, and they, as executors, were making sale of the lands to pay off the debts, added to the fact that -the debts are due by the estate of William Armstrong, fix the general purpose of the sale, and it is probable ■ that the $13,000 paid to James and Frank Armstrong were given them for their interest in the lands, to cover which they also convey as devisees in their own right.

These executors had power to make such sale, and Cockrill acquired an absolute title to the property. It was a sale to pay the debts of the estate, and, like any other trust sale, is valid until set aside for fraud.

Suppose all of these debts were not properly chargeable to the estate of William Armstrong, deceased, and the sale had been in fraud of the rights of this widow, certainly she would be required, by proceedings in equity, to set aside the sale for fraud, and should attempt this, and establish the abuse of trust by the executors.

There can be no doubt but that the mortgage, contracting a lien upon the land, before the marriage of plaintiff, to Wilson, for $10,000, and the debt of the Real Estate Bank for $25,000, was a charge upon the land, two-thirds of which were paid by Cockrill, and that, before he could be disturbed in his title, the widow would be required to refund to him the money paid and the interest upon it.

These debts were an incumbrance upon the estate, out of which she claims dower; and it is a rule that where the holder of an equity of redemption has redeemed the land from the mortgage incumbrance, the lien of which was senior to the dower interest of the widow of the mortgagor, she is endowed only of the equity of redemption. Scribner, vol. 1, 568.

After a careful consideration of the case in its several aspects, we must hold that the plaintiff is not entitled to dower.

First — Because the land was sold by the executors of the estate of William Armstrong to pay the debts of the estate, which were an incumbrance upon the title of the husband, under which defendant, Cockrill, acquired an absolute title to the land, free of the charge of dower.

Second — Because the husband was never at any time seized of an estate of inheritance in said land; that his right to seizin was arrested and vested in him as executor by force of the statute, and that he held as executor until he parted with his equity of redemption, and all other estate by force of his deed to Cock-rill, who, under such title, entered into actual possession of the land, and at the time of the death of the husband, was seized both in deed and in law.

Let the judgment and decree of the court below be reversed, and set aside, and suit dismissed.


text:
    Roberts et al. vs. Jacks.
    1. Lien not assignable:
    A lien is neither property or a debt, bnt a right to have satisfaction for a debt out of property, and is not the subject of sale or assignment.
    2. --: By contract.

    The following clause in a note, executed for the rent of land, viz: “This note constitutes a lien upon the cotton and corn raised upon said land this year,’’ does not create a lien upon the crop, it is merely a declaration as to the legal effect of the note.
    3. --: Bent note.

    No lien attaches to a note executed for the rent of laud; the fact that it is given for rent adds nothing to its legal effect.
    4. --: An unplanted crop for rent.

    A contract for a lien on a crop to be planted, to secure the rent of the land, is void at law, but after the crop has matured may be enforced in equity.
    5. Assignment:
    The assignee of a note acquires an absolute title to the debt, and the exclusive right of action thereon.

      6. --: As collateral secwity, does not carry landlord’s lien

    The assignment of a note executed for the rent of land as collateral security, does not confer the landlord’s lien upon the assignee, or entitle him to attach the crop raised on the land, for the debt.
    7. Transfer of cause to equity docket.

    The mere transfer of a cause from the law to the equity docket does not constitute it an equitable cause of action. It simply enables the plaintiff to present a cause lor equitable relief.
    8. Right or action: By assignor in proceeding to mf orce lien, etc.

    Where a note, which is a lien on property, is assigned as collateral security for a debt, the assignor cannot maintain a proceeding in equity to enforce the lien.
    APPEAL from Phillips Circuit Court.
    Hon. M. L. Mangum, Special Judge.

      Palmer, for appellants.

      Tappan & Hornor, contra.

   Walker, J.:

Thomas Jacks brought an action of debt under the Code form upon the following instrument of writing:

Phillips County, January Jp, 1872.

On the first day of November next I promise to pay to the order of Joseph W. Nevill, $990 for rent of land on said NevilPs plantation; ¡this not» constitutes a lien upon all the cotton and corn raised upon said land this year.

[Signed] Jas. P. Roberts, [seal.]

Which note was endorsed:

Pay to T. M. Jacks.

[Signed] J. W. Nevill.

With the further endorsement thereon:

“I hereby waive notice and protest, and will still be bound as endorser on this note. October 31, 1872.
[Signed] J. W. Nevill.”

The action is brought in the name of Jacks as assignee against Roberts. The allegation in the declaration is, “that Joseph W Nevill assigned and transferred said note to the plaintiff as security for a debt which he then owed plaintiff.” Several credits were entered on the note, and the following affidavit filed:

“Thomas Jacks being drdy sworn, says on oath that the facts set forth in the foregoing complaint arp true, and that the sum of $691.32-100 are now due him for rent, etc.,” and that defendant James P. Roberts has removed from said plantation a part of the crop grown thereon during the year 1872, without his consent, and that he has a lien on said crop to secure the payment of said rent, etc.

Upon the filing of the complaint, and this affidavit, a writ of attachment issued against the defendant, to attach the crop of cotton grown on the plantation, was levied upon the cotton, and a bond entered into by Roberts with Charles Wooten, as. his security, conditioned that Roberts should perform the judgment of the court in said suit, or that said Wooten would have the seven bales of cotton attached, or its value, $525, forthcoming, and subject to the order of the court, for the satisfaction, etc. This 'bond was given to Jacks.

After these proceedings the defendant appeared and filed his motion to dissolve the attachment, because the action is brought to enforce a landlord’s lien for rent by an assignee of the note, and because the lien is personal and cannot be assigned, and that the affidavit is not sufficient.

This motion was by the court overruled, and, at the instance of plaintiff, the case was transferred to the equity docket and continued.

It will, at this point, be well to consider whether the plaintiff, as assignee, held a lien upon the defendant’s crop of cotton, and ' a right to attach it, because, if he had no lien, the attachment should have been dissolved.

As a general rule it is well settled by this court that the transfer. of the debt by assignment does not carry with it the lien which attached to it whilst the note was in the hands of the payee. Moore & Cail v. Anders, 14 Ark., 628; Turner et al. v. Hornor, adm’r., 29 Ark., 440; Bernays v. Feild & Dolly, id., 218; Williams v. Chrisman, 23 Ark., 255, as well as several other cases hold this to be the effect of the assignment, unless in a few cases which we will refer to in another connection. '

In most of the cases referred to above, the lien was an implied equitable lien upon the property sold to.secure the payment of the purchase money, a vendor’s lien upon land for the payment of the purchase money. A common law lien is a right in one man to retain that which is in his possession belonging to another until certain demands of him, the person in possession are satisfied. The lien is founded upon the idea of possession, and attaches exclusively to personal property. Bispham’s Equity, 325.

In the case under consideration, the debt was not contracted for lands, but in consideration of a contract of rent, a future use of lands, and there was no lien, either express or implied, which attached to the debt, or the property contracted for, but after making the agreement to pay a certain sum of money, a memorandum is added, in the following language : This note constitutes a lien upon all cotton and corn raised upon said land this year.”

It is claimed by plaintiff that this is a contract for a lien. What are the legal or the equitable rights which arise out of this declaration as to lien ? It is certainly not a contract, no undertaking or agreement to do, or forbear doing anything, but simply a declaration of the effect of a contract made, a contract to pay money for the rent of land.

A lien is neither a jus in re nor a jus in rem, but a charge’ upon property. It is personal, and gives a right to satisfaction out of particular property, to the payee, and exists only as between the vendor and vendee. Leading cases in equity, Hare & Wallace’s Notes, 1, p. 336.

The lien itself is neither property nor is it a debt, but a right to have satisfaction out of property, to secure the payment of the debt, and is, therefore, not the subject of contract or sale. We must remember that the contract for the payment of the money for' the consideration of rent, is distinct and independent of the recital, which declares that the note constitutes a lien not upon, the use of the land, the thing contracted, but upon the property, cotton and corn of defendant, to be grown upon the land.

There is no connection between the crop to be raised and the consideration for which the note was given. It is, therefore, not a lien upon property sold, but upon other and different property. There is, therefore, no such connection between the consideration for which the note was given, and the crop to be raised, as to create a vendor’s lien, and if it had been the intention of the parties to secure the payment of the note by taking a lien upon property, there should have been a contract to that effect.

In the case of Bennett et al. v. Mason et al., 7 Ark., 253, Bennett, Reed and Lewis sold Willett Wyman a steamboat; part of the purchase money was paid, and notes given for the payment of the residue of the purchase money, in which the following statement in the contract appears: “ And the said Bennett, Reed and Lewis are to retain a lien on said steamboat', Lady Morgan, until the above notes are discharged.”

The court, when passing upon the legal effect of this clause, said : It is true that in the bill of sale plaintiffs say that they are to retain a lien upon the boat until the notes are discharged, but this is a mere suggestion; is no stipulation, and is nugatory.”

This is a much stronger case than the one now under consideration ; in that it was an attempt to reserve a lien upon the property sold to secure the payment of the balance of the purchase money, but in this to set up a claim to a lien upon other property. Let us suppose that the' words for rent of land on the Nevill place” had not been inserted in the note, and the statement had followed : this note constitutes a lien, etc.; the mere declaration that such was the case would not have made it a lien, or have added in anywise to its legal effect. The fact that the note was given for rent adds nothing to the legal obligation of it, a mere consideration to uphold the contract.

After the most careful consideration, and keeping in mind all of the equities which could arise upon a liberal construction of this clause, we are of opinion that it was not a contract for a lien which attached to the note.

But should we be mistaken in thus holding, it is evident that at the time the contract was entered into, there was no crop planted; no cotton and corn grown upon the place ; nothing to which the lien could attach, and that the contract was, for that reason, at law void. Apperson v. Moore, 30 Ark., 56; Driver v. Jenkins, 120 id.; Alexander v. Pardue, 359 id.; and Hamlett v. Talman & Graves, 505 id., as well as several later decisions, settle this question. But they also hold that after the crop has matured ; after property, in fact, exists, an equitable lien may be declared and enforced for the satisfaction of the debt, with regard to which we will in the further investigation as to the equitable rights of the several parties make reference.

We have seen that Jacks, as assignee of Nevill, has brought his action at law, and claims to be the legal owner of the debt, and of an equitable lien upon the cotton grown upon Nevill’s plantation for its payment.

The note appears to have been assigned in the usual form, and purports to ^convey the legal title to the debt, and according to our decision in Block v. Walker, 2 Ark., 4, gave to Jacks an absolute title to the debt, and the exclusive right to sue upon it. This decision has been long held by this court as settling thé legal effect of assignment of notes or bonds given in the ordinary course of business.

But, in several of our later decisions, we have taken a distinction between such assignments and those where the note or bond is assigned mérely for the purpose of having the debt collected; or where the note is assigned and placed in the hands of a third person as a collateral security for the payment of a debt. In Dickinson et al. v. Burr, 15 Ark., 372, it was held that the assignment of a note to an agent for collection, should the note not be collected, and be returned to the assignee, he may strike out the assignment, and sue in his own name, overruling so much of the case of Block v. Walker as held that he could only acquire title by a re-assignment of the note to him.

In the case of Crawley v. Biggs, 24 Ark., 563, where the notes were assigned as collateral security, it was held, that under the peculiar equitable circumstances of the case, the vendor’s lien followed the notes into the hands of the assignee. The suit was brought in equity by the assignee to enforce a vendor’s lien upon the lands for the payment of the purchase money. The allegations were, that Riggs was indebted to W. G. Crawley for a tract of land, the payment of the purchase money secured by note; that W. G. Crawley assigned the notes to J. F. Crawley, and that they were a lien upon the land ; that Riggs sold the land to Harris, and took notes from him for the purchase money; that, as an inducement to Crawley to make to him (Riggs) a deed for the land, he assigned to him the notes taken of Harris as collateral security- The suit was brought by an assignee to enforce a vendor’s lien upon the lands, for the payment of which the notes, were given.

Judge Clendenin, who delivered the opinion of the court, said: The question then arises, the lien being perfect in Riggs, could he, by assignment of the notes for the purchase money, assign the lien held by the vendor.” After referring to decisions in which it was held that, by force of the assignment of the debt, the lien was lost, the judge refers to the case of Moore & Cail v. Anders, 14 Ark., in which Chief Justice Watkins held that the weight of authorities was, that the equitable vendor’s lien was personal to him, and is not, unless under peculiar equitable circumstances, assignable, and lays hold of this remark of Judge Watkins, which merely assumes the possibility of a case of exception to the settled rule, that the lien was personal, and only attached to the debt while in the hands of the payee, and did not follow it in the hands of the assignee, and decided that, as the note was assigned as a collateral security, the assignee should be subrogated to the rights of the assignor.

In a still later case, Carlton v. Buckner, 28 Ark., 66, the case of Crawley v. Biggs was cited with approbation, the notes were assigned as collateral security, and the suit maintained by the assignee.

At this point it may be well to consider what these rights were. The legal title to the debt had passed by the assignment to the assignee. ' Such must be its effect in law, or the case Block v. Walker cannot stand. The legal title cannot remain part in one and part in the other; it either passes, or does not pass, by the assignment. The judge was commenting upon the decision in the case of Moore & Cail v. Anders, in which it was held, that “ by force of the assignment, the lien was lost; that it was personal. It was, therefore, the lien right of the assignee to unite in him a debt, and a lien upon property for its payment.

The case of Dickinson v. Burr cannot be relied upon in support of this decision; it rests upon the distinct ground, that the note was endorsed to the cashier of the bank, and left there merely for collection; that the bank had no interest in it, and when not collected, was returned to Burr, who struck out the endorsement of the bank, and took an assignment of th.e note from Ringgold ; that, in effect, it was not an assignment, but a mere power to collect; that the debt Was all the while “ Burr’s.”

In the case of Crawley v. Riggs, the notes were assigned to plaintiff “Crawley” as collateral security to pay a debt due to him.' It was not claimed that the legal title to the debt was not in the assignee, but that he should be subrogated to the rights of the assignee, which were but a lien interest.

The decision in the latter case, in which it would seem that the outstanding lien in the assignor, which did not pass by force of the assignment, should be held as subrogated to the assignee, so as to unite the debt and the lien in the same party, which is held, in the case of Bernays v. Feild and Dolly, to be necessary, is not free from doubt, and, so far as regards the case made by Jacks, need not be considered. He has brought no suit in equity, but his action is strictly at law, according to the pleading.

It is true, that upon his own motion the case was transferred to the equity docket, but the mere act of transferring the case to that docket did not make it an equitable cause of action; the change is made to enable the' plaintiff to present a cause for equitable relief.

Sec. 4461 Gantt’s Digest provides, that “ An error of the plaintiff as to the kind of proceeding adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings by an amendment in the pleading and the transfer of the action to the proper docket.”

No amendment was made in the pleadings, no allegations setting forth the facts which entitle him to relief in equity. The original declaration in the action at law remained just as when filed.

The substance of the complaint is, that Roberts executed his note to Nevill for $990 for the rent of land for the year 1872, in which it was stated that the note should constitute a lien upon the crop of corn and cotton raised that year upon the land; that Nevill assigned the note'to Jacks as security for a debt which Nevill owed Jacks; that several payments were made; that there is a balance due on the note, for which he prays judgment. This is the whole case made by the pleading. If what is stated is true, he was entitled to a judgment at law for his debt; and, whether the debt was assigned as security for the payment of the debt due by Nevill to Jacks or not, could not affect the right to recover, nor give another right.

The proceedings to authorize an attachment is no part of the pleadings in the case; no issue can be taken upon them; they were made to enable the plaintiff to sue out summary process. No issue was taken on the declaration, no evidence, no allegation to be proven.

We need pursue this branch of the case no further, but will turn our attention to the case presented by Nevill, who, by leave of the court, was permitted to file his complaint in equity, in which he makes both Roberts and Jacks defendants.

Roberts answered the complaint of Nevill; evidence was taken to sustain the issue between them. But Jacks makes no answer, no defense. Before Roberts answered, he demurred to Nevill’s bill, by which the sufficiency of the bill was put in issue, the demurrer was overruled, and Roberts excepted.

The allegations having been admitted by the demurrer, the question is, were they sufficient to entitle Nevill to relief, without referring at length to the allegations in Nevill’s bill. It is certainly necessary, in order to entitle him to equitable relief, that he should distinctly allege, and show by his pleadings, that he was the legal owner of the debt, and had an equitable lien upon the cotton of the defendant, not as landlord, or that he has a landlord’s lien, for that question was not presented for our consideration, but that by force of his debt and the recitals in the note he has a lien by contract.

As regards the debt, he admits that he assigned the note to Jacks, but endeavors to avoid the legal effect of the assignment, by an averment that the note was assigned and placed in the hands of Jacks as collateral security to pay a debt which he owed Jacks, and his counsel relies upon the case of Crowley v. Riggs to take the case out of the rule laid down in Block v. Walker. But by reference to the case it will be found that Crowley, the assignee, and not Riggs, the assignor, brought his suit in equity, and the equitable lien supposed to be vested in Riggs, was, by subrogation, vested in Crowley, the assignee, to enable him to maintain his claim to the lien. The court does not hold that the assignor held the legal title, notwithstanding his assignment, but that the assignee, by subrogation, held the lien; so that, in fact, so far from Nevill’s showing that he had the legal title to the note, he shows that, in fact, he has no such title.

We have already disposed of the question of lien by contract; there was no contract, not only because there was at the time the contract was entered into no property, nothing to which the lien could attach, but also because no contract was in fact made; the statement at the foot of the note was no contract for a lien upon property, but merely a declaration as to the effect of the note.

Thus considered, we must hold that the demurrer should have been sustained. This disposes of the case. It is unnecessary to look into the issue formed between Nevill and Roberts, or the evidence offered to sustain it.

In the progress of the case it was sometimes stated to be a case in favor of Jacks v. Roberts, then Jacks and Nevill v. Roberts, and then again Nevill v. Jacks & Roberts, and, as last stated, it progressed until the issue was formed, and the case set for hearing, where upon its own motion the court transferred the case back to the common law docket, where it was heard, and a judgment was rendered in favor of Jacks, which, upon motion for a new trial, was set aside, and a new trial granted.

The court then, upon its own motion, reconsidered its judgment in favor of Jacks, in the trial at law, ordered the case to be again docketed on the chancery docket, and again found the issues in favor of Jacks, who had made no issue with any one, and rendered judgment for the debt in the declaration mentioned, against the defendant Roberts, and against Charles Wooten the security Upon the bond given by the defendant to release the cotton from attachment.

That such proceedings are without precedent, and irregular is too manifestly clear, to require more than a statement of the facts.

Under the state of case presented, Jacks was clearly not entitled to judgment; there was no issue taken in the action at law. The proceedings in the common law court were not referred to, or made part of the case presented by Nevill. The case was heard in equity upon the issue formed between Nevill and Roberts, a case which, by Jacks failing to answer, stood confessed as to him, and yet judgment was rendered in his favor.

The judgment and proceedings.in the court below must be set aside and reversed, and the cause remanded with instructions to dismiss the bill presented by Nevill; that the case be reinstated ujx>n the common law docket with instructions to sustain the motion to dissolve the attachment and release the property attached, with leave to Roberts to file an answer to the complaint, that the case may proceed to hearing and final judgment.


author: Harrison, ,1,:

text:
    Chrisman vs. Jones.
    1. Presumptions: In favor of official acts.

    In acts of an official nature everything is presumed to be rightly and duly performed until the contrary is shown.
    2. Patent: Legal effect. Recitals, etc.

    A patent executed by the Governor, to swamp land, is sufficient evidence of title. The recitals thereof are official evidence of the facts recited.
    APPEAL from White Circuit Court.
    Hon. J. N. CyPERT^Circuit Judge.

      Coody, for appellant.

      JB. D. Turner, contra.

   Harrison, ,1,:

This was an action by Francis M. Chrisman against Joseph Jones, for the recovery of a quarter section of land, which wás commenced on the 23d day of August, 1873.

The defendant in his answer admitted being in possession of the land, but denied the plaintiff’s title and right of possession.

Upon the trial, which was by the court sitting as a jury, the plaintiff read in evidence two deeds from the State to him, one for the east, and the other for the west half of the quarter section in controversy, as parts of the swamp and overflowed land granted to the State by Congress, executed by the Governor on the 11th of August, 1873, which was all the evidence in the case.

The court declared as.the law of the case that the recital in the deeds that the land was swamp and overflowed land, and had been confirmed to the State, was not evidence of such facts, and to entitle the plaintiff to recover, other evidence of them than the deeds, was required, and found in favor of the defendant.

The plaintiffs moved for a new trial, which was refused, and he appealed.

The deeds were sufficient evidence of the plaintiffs’ title. In acts of an official nature every thing is presumed to be rightly and duly performed until the contrary is shown. Broom’s Legal Max., 729; Bank of the United States v. Dandridge, 12 Wheat., 69 ; Stewart v. Houston, 25 Ark., 314. The recitals in the deed were official evidence of the facts recited.

The judgment must be reversed, and the cause remanded, that a new trial may be had.


author: Harrison, J.:

text:
    Lee County vs. Govan.
    Circuit Clerk: Tax on original writs, etc.; how paid.

    It is the duty of the Circuit Clerk to pay the tax on original writs, executions, deeds, etc., to the County Collector; and he cannot setoff allowances mad,e him by the County Court against the amount of such taxes in his hands. 'i
    APPEAL from Lee Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      J. J. Hornor, for appellant.
   Harrison, J.:

At the July term, 1875, of the County Court of Lee County, the appellee, who was the Circuit Clerk, settled with the county for the tax on original writs, executions, deeds, etc. He claimed the right to set off against the amount in his hands,' several allowances the court had made him, and upon which warrants had not been issued, exceeding, in the aggregate, the amount in his hands, and to have an allowance for the excess. The court refused to admit the set off; and he was found to owe the county $4S7.

He appealed to the Circuit Court.

The Circuit Court decided that he was entitled to set off his allowances, and rendered judgment in his favor against the county for $180.

The county appealed to this court.

Section 163, of the Revenue act of April 28th, 1873 (section 5255, Gantt’s Digest), says: ' “The clerks of the several courts of record in this State, shall collect and pay over to the collectors of their respective counties, all taxes on writs, executions, official seals, and other sums of money by whatever name designated, coming to their hands and belonging to the State or county, and shall render accounts at each term of their respective courts, verified by oath, of all moneys which have been received to the use of the State or county, not before accounted for.”

And by section 161, of the same act, section 5261, Gantt’s Digest, the collector is required at each regular term of the County Court, to settle his accounts for moneys received from clerks, recorders, and other officers on account of taxes, fines, etc.

It would thus seem quite clear .that the clerk is required to pay the taxes on writs, etc., collected by him to the collector, and not directly into the county treasury, but section 5268, Gantt’s Digest, reads as follows: “All collectors, sheriffs, clerks, constables and other persons chargeable with moneys belonging to any county, shall render their accounts to and settle with the * * * 'County Court,’ at each regular term thereof, and pay into the County Treasury any balance which may be due the county, and take duplicate receipts therefor, and deposit one of them in the office of the County Clerk within five days thereafter.”

This section, so far as it relates to the requirement of clerks to pay moneys in their hands directly into the county treasury, is obviously in conflict with the two sections we have first referred to ; but as this was a provision of the revenue law in force at the passage of the act of April 28th, 1873 (sec. 37 of Ch. T47 of Gould's Digest), and was not re-enacted, in the act of April 28th, 1873, it was, so far-as there is a conflict, abrogated and repealed by that act.

It being the duty of the clerk, as we have just seen, to pay the moneys in his hands to the collector, might the County Court discharge him from its performance, by setting off against them the claims which he may have against the county? We think not.

He is required to render, at each term of the. Circuit Court, an account of-all moneys which he has as its clerk received to the use of the county; and to the County Court, at each term, such as he may have received as recorder, or clerk of that court. Sec. 5255, Gantt's Digest, Lee County v. Abrahams, ante. It is the duty of the judges of the several courts of record to audit and adjust the accounts of their respective clerks according to the records, dockets and paper.s therein, and a certified statement of the sums with which he is chargeable, specifying on what account the same is payable, is to be filed with the county clerk, and another is to be delivered to the treasurer. Sec. 525.8, ib.

These provisions of the statute are intended for keeping correctly and accurately the accounts of the clerk, collector and treasurer, which object would be defeated if the clerk might discharge his liability in any other way than by payment to the collector.

The judgment of the court below is reversed, and the cause remanded, to be proceeded in according to law.


text:
    Hughes vs. Lawson.
    Statute op Frauds:
    A promise to pay the pre-existing debt of another, founded upon the original liability, and without any new consideration to support it, is a collateral undertaking, and within the statute of frauds. And the mere possession by the promissor, of property of the debtor not deposited for the purpose of paying the debt, will not withdraw it from the operation of the statute.
    APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Wise, for appellant.
   Harrison, J.:

Lawson sued Hughes before a justice of the peace, upon his promise to pay the debt of one Hudson for $80. The plaintiff recovered judgment before the justice, and tbe defendant appealed to the Circuit Court, and in the Circuit Court the plaintiff again obtained a verdict and judgment. The defendant then appealed to this court.

The evidence was, that Hudson owed the plaintiff $80 for the ' labor of his son in his crop, and being threatened by the plaintiff with a suit, they, at his suggestion, went to the defendant, whose land Hudson bad cultivated, to get him to settle-the debt. Tbe defendant promised the plaintiff to pay the debt when Hudson’s cotton, then in his gin, was sold. The defendant had furnished the land, and the team and feed for the same, and was to have one-half the crop; and Hudson had agreed to turn over the cotton raised on the place to the defendant to . secure advances he had made him, and a debt which be owed M. M. Dodd, and for which tbe defendant was bound.

After the defendant’s promise, Hudson, without his consent or knowledge, carried the cotton to Pine Bluff and turned it over to Dodd, in payment of his debt to him, and the defendant received no benefit whatever from it.

The court gave, at the instance of the plaintiff, the two following instructions to the jury, against the objection of the defendant :

First — If you believe, from the evidenee, that the defendant agreed to pay the plaintiff, for Hudson, $80, and had, at the time, money or property in his possession or under his control, or afterwards got any, out of which it was to be paid, you will find for the plaintiff.

Second — If you believe, from the evidence, that the defendant promised, in the presence of the three parties, and it was so agreed and understood between them, to pay the plaintiff Hudson’s debt to him, it became the debt of the defendant, and Hudson was discharged from his obligation to the plaintiff, and you will find for the plaintiff.

The rule is well settled that the mere possession of property belonging to the original debtor, not deposited with the defendant for the purpose of paying the' debt, will not withdraw his verbal promise to pay it from the operation of the statute of frauds. Brown Stat. Frauds, sec. 187 ; Deltz v. Parke, 1 South., 219; Simpson v. Nance, 1 Speer, 4; State Bank v. Mettler, 2 Boser, 392.

The cotton in the defendant’s gin at the time of his promise, was not placed there for the purpose of paying the debt, and there was no evidence that any property afterwards came to his hands for that purpose. The case is, therefore, clearly within the rule just stated.

It is also as well settled that a promise by a third person to pay the pre-existing debt of another, having immediate respect to and founded upon the original liability, and without any new consideration moving him to pay or answer for such debt, is a collateral undertaking, and, unless in writing, within the prohibition of the statute. Kurtz v. Adams, 12 Ark., 174; Elder v. Warfield, 7 Har. & John., 391; Tileston v. Nettleton, 6 Pick., 509 ; 2 Par. Con., 9 ; Brown Stat. Frauds, sec. 212.

There was no evidence of any new consideration moving to, or inducing the defendant to assume the debt as his own, by which Hudson would have been discharged. No purpose of his own was shown to be subserved by his promise.

The second instruction was likewise erroneous.

The following instruction was asked by the defendant, which the court refused to give :

If you find, from the evidence, that there was a pre-existing debt from the plaintiff to Hudson, and that the defendant promised to pay said debt, you will find for the defendant, unless it also shows that the promise was in writing, or that a new considr. eration was given by the plaintiff, which moved him to pay or answer for the debt.

The latter part of this instruction, or that in regard to a new consideration, is not accurately correct,' for a consideration for the promise, from Hudson, would have been equally as availing; but as there was no evidence of any such consideration, it was entirely abstract and mere surplusage, and could not possibly have misled the jury.

With this exception, the instruction was but the declaration of the statute of frauds, Gantt’s Digest, sec. 2951, and the court erred in refusing to give it to the jury ; Kurtz v. Adams, supra.

The judgment of the court below is reversed, and the cause remanded to it, with instructions to grant the. defendant a new trial.