author: Jesse Turner, J.:

text:
    Smithee, Land Commissioner, vs. Garth.
    1. Presumptions in favor of legislative action.

    Every reasonable presumption is to be made in favor of the action of the legislative body; it will not be presumed in any case from the mere silence of the journals, that either-house has exceeded its authority or disregarded a Constitutional requirement in the passage of legislative acts — unless the Constitution has expressly required the journals to show the action taken.
    2. Passage of Bh.ls : Constitutional requirements.

    The Constitution of 1868 contained the following provision, “on the final passage of all bills the vote shall be taken by yeas and nays, and entered on the journal.” Upon the passage of a bill in the House, the journal showed the number of votes in the affirmative and the number in the negative, and the names of tiloso voti g in the affirmative, but there was no entry of the names of the members who voted in the negative. Held, that the failure to enter the names of those voting in the negative, was a disregard of the constitutional requirement, and the bill did not become a law.
    APPEAL from Pulaski Circuit Court.
    Hon. J. W. Martin, Circuit Judge.

      Henderson, Attorney General, for appellant.

      J. M. Moore, contra.

   Jesse Turner, J.:

At the October Term, 1877, of the Pulaski Circuit Court, Henry E. Garth tiled his petition stating, that on the 10th day of October, 1877, he applied to J. N. Smithee, as Commissioner of State Lands, to enter certain vacant and unentered swamp and overflowed lands, granted by Congress to the State of Arkansas, under an act of Congress approved 28th of September, 1850, entitled, “An Act to enable the State of Arkansas and other States to reclaim the swamp lands within their limits,” and since confirmed to said State, and by said Commissioner offered at public sale in the manner and upon the notice required by law ; and thereupon tendered and offered to pay saidjCommissioner for said land, the sum of two dollars per acre, the price fixed by law, in a certain warrant issued by the Auditor of the State the 28th of August, 1871, under the provisions of section seven of an act of the General Assembly, approved the 23d of March, 1871, entitled, “An Act to amend an act entitled ‘An Act providing for the building and repairing of the public levees of this State,’ ” commonly denominated “Arkansas State Levee Bonds,” of which petitioner was at the time, and still is the owner and holder. That the bond tendered, No. 2,828, was filed and made a part of the record in the cause, and a copy of petitioner’s application was also filed, marked “A.” That the said Commissioner, contrary to law and his official duty, refused to receive said warrant and rejected his application o.i the ground, as the Commissioner alleged, that he was not authorized by law to receive the war. rants issued under the provisions of said act in payment for swamp lands of the State, with prayer that a writ of mandamus issue, directed to defendant, commanding him as such Commissioner to permit petitioner to enter the land mentioned in his petition, upon payment of the price fixed by law, in said warrant.

The defendant, J. N. Smithee, answered, alleging that the said bonds, issued under the act of March 23d, 1871, were issued in violation of sec, 6, art. x., of the Constitution of 1868, tho same being a loan of the credit of the State, without the consent of the people through the ballot box.

That he cannot by law receive the said warrants in payment of swamp and overflowed lands, because the Constitutional Convention of 1874, by ordinance duly passed on the 14th day of August, 1874 (a copy of which was filed and made part thereof), expressly forbids respondent as Commissioner of State Lands, to receive said warrants in payment for State lands, whether swamp and overflowed or otherwise, and that by an act of the Legislature, entitled an act approved December 14th, 1874, the respondent was further forbidden to receive said warrants in payment for the swamp and overflowed lands of the State.

That by an act of the Legislature, approved April 23d, 1873, it is provided, that in every instance the interest accruing on said levee warrants under the act of March 23d, 1871, shall be levied and collected from the owners of land who are bene-iitted by the making aud repairing of levees, or any ditches or drains, and not in the first instance chargeable on the State.

Respondent denies that the act of March 23d, 1871, was ever complied with by the citizens residing in the swamp and ovei’flowed districts of the State, by presenting their petitions to the Boards of Supervisors of the respective counties, etc., and denies that the application prescribed in sec. 4033 of Gantt’s Digest, was ever by the Boards of Supervisors for-Avarded to the Commissioner of Public Works and Internal Improvements, with the certificate of the County Clerk, etc.

And he denies that the Commissioner of Public Works ever-caused to be made accurate plans, surveys and estimates of the work required to determine the practical benefit and utility to the State or individuals.

Denies that the Commissioner of Public Works contracted with the lowest responsible bidder for the construction of all public works contemplated by the act of March 23d, 1871.

And denies that the Commissioner of Public Works ever furnished the Auditor of this State with the certificate, that the contractors had complied with their contracts and completed the same as prescribed by the said act.

That all of the lands improved and redeemed- under the said acts were private property, and no property of the State was improved or benefitted thereby.

Whereupon the petitioner moved the court, upon the petition and answer, to award him a peremptory writ of mandamus against the defendant, as prayed for.

And by consent it was ordered that the plaintiff: have leave to file a copy of the Levee Bond or warrant tendered as alleged in his petition, in lieu of the original, and that the same be taken as a part of the record in this cause.

The following is a copy of the Levee Bond or warrant, exhibited with the petition :

“ Number 2,828. “United States oe America,

“State oe ArkaNSas.

“Seven per cent. Levee Bonds :

“It is hereby certified that the State of Arkansas is indebted to J. W. Stansell, or the bearer hereof, for levee work done for said State, in the sum of Five Hundred ^ Dollars ($500), payable thirty years from and after March 23d, 1871, in lawful money of the United States, with interest at the :ate of seven per cent, per annum, payable semi-annually on the first days of January and July of each year, in the City of New York, on the presentation and surrender of the proper coupon hereto annexed, until the payment of said principal sum.

“Issued by authority of an act of the General Assembly of the State of Arkansas, approved March 23d, 1871, entitled an act providing for the building and repairing of the Public Levees of the State.

In testimony whereof, I have hereunto set my hand and affixed the seal of my office, at the City of Little Kock, Arkansas, on the 28th day of Angust, A. D. 1871.

[l. s.] ' “J. R. Berry, Auditor.

“HeNRY Page, Treasurer.”

Oil the 26th day of November, 1877, the following entry appears of record:

Come the parties by their respective attorneys and this cause having been argued and submitted at a former daj^ of this term, and the court being now well and truly advised in the premises, doth order that a writ of mandamus issue out of th:s court directed to J. N. Smithee,. as Commissioner of State Lands, commanding him as such Commissioner to grant the application of the petitioner, Henry E. Grarth, to purchase at private entry the swamp land described in his petition, to-wit: The south half of the north half and the south half of the southwest quarter ot section 36, township 18 south, range 22 west, upon payment of the price fixed by law, to-wit: Two dollars per acre, in Arkansas Levee Bond, numbered 2,828, of the denomination of five hundred dollars, tendered by the petitioner in payment for said land, and filed as part of the record in this cause, it appearing by consent of parties that the petitioner tendered the entire bond in payment for said land.

The respondent excepted to the ruling of the court and filed his motion for a new trial, assigning the following causes therefor:

Firnt — The court erred in holding the Levee Bond tendered in this suit to have been legally issued.

Second — The court erred in awarding the writ on the pleadings in this cause.

Third — The pleadings on the part of the defendant show a total want of power in the Auditorio issue the bond tendered, and under the issues joined, the defendant’s answer must be taken as true.

Fourth — The Legislature has no constitutional power to authorize the issuance o.f the bond tendered, secs. 6, 9 and 10,. art. x., of the Constitution of 1868, being a limitation on such powers.

Fifth — The act under which the bond in this case was issued was unconstitutional, in this, that the effect of such act was to loan the credit of the State to individuals in reclaiming their lands, when the consent of the people had not been obtained through the ballot box.

Which motion was overruled by the court, to the overruling of which motion the defendant excepted and took an appeal to this court.

Passing over the question of the constitutionality of the act of March 23d, 1871, which, under the circumstances of the case, we do not feel called upon to decide, we observe that if the act was constitutionally passed, the issuance of the warrant numbered 2,828, constituted a contract between the State and the party to whom it was issued, which neither the Constitutional Convention of 1874, nor the Legislature of 1875 could impair, or in any wise invalidate, because within the prohibition of the latter clause of sec. 10, art. i., of the Constitution of the United States.

But looking into the history of the passage of the act, we have come to the conclusion that the act was never constitutionally passed.

The Constitution of 1868, sec. 16, art. v., provides, that “Each house (of the General Assembly) shall keep a journal of its proceedings and publish the same, the yeas and nays of the members of either house, upon any question, shall be entered upon the journal at the request of five members,” etc.

Sec. 21, art. v., provides, that “Every bill and joint resolution shall be read three times on different days in each house before final passage thereof, unless two-thirds of the house where the same is pending should dispense with the rules. No bill or joint resolution shall become a law without the concurrence of a majority of all the members voting. On the final passage of all bills the vote shall be taken by yeas and nays and entered on the journal.”

Referring to the journal of the House of Representatives for January 21st, 1871, at page 161, we find the following entry in relation to the act of 23d March, 1871.

“Mr. Waters in accordance with previous notice introduced a bill (H. R. 50) entitled “An Act to amend an act entitled an act providing for the building and repairing of the public levees of this State, and for other purposes,’ which was read a first time, and on motion of Mr. Waters, by unanimous consent, the rules were suspended, and the bill was read a second time, and on motion of Mr. Waters was referred to the Committee on Internal Improvements.

The bill was amended and modified in several particulars and referred to the Committee on the Judiciary.

We find the following entry in the House journal of March 13th, 1871, at page 698 :

Mr. Preddy, from the Committee on the Judiciary, to whom was referred the bill of the House (H. R. 50) entitled “ An act to amend an act entitled an act providing for the building and repairing of the public levees of this State, and for other purposes,” reported the same, and submitted the following report thereon, recommending a substitute therefor.

Here follows the report of the Committee on the Judiciary offering a substitute for the original bill embracing certain amendments previously offered to the bill.

On motion of Mr. Prigmore, the report of the Committee was adopted.

We find the further entry in blouse journal of the 16th of March, 1871, on pages 756 and 757.

The House proceeded to consider the substitute for the bill of the House, (sub. H. R. 50) entitled “An act to amend an act entitled an act providing for the building and repairing of the public levees of this State, and for other purposes.”

On motion of Mr. Waters, the bill was further amended by inserting in Section 14, after the word “all” in line one hundred and forty-five, the word “ other.”

On motion of Mr. Waters; The rules were by unanimous consent suspended, and:

The bill was read a third time by title, and :

On motion of Mr. Tygart; Ordered, that the bill be placed upon its final passage.

The question being put, shall the bill pass ?

It was decided in the affirmative; yeas 47, nays 24; not voting 11.

Those who voted in the affirmative are : — Messrs. Alexander, Sr., Barbour, Barron, Cate, Chamberlain, Clayton, Cohn, Espy, Fricks, Fulton, Garner, Goad, Grady, Haskins, Haddock, Hale, Ham, Harris, J. W., Harris, W. G., Harvey, Hargledine, Hallibaugh, Janes, Jenkins, Johnson, Joslyn, Mayo, Minor, Morgan, Neal, Oit, Parker, Peck, Preddy, Prigmore, Robinson, Sumpter, Thompson, Waters, Webb, Whittemore, Wiley, Wood, Young and the Speaker.

So the bill was passed.

This is the entire voting on the House journal touching the passage of the bill. The. nays are not entered on the journal.

When the bill reached the Senate, we find the following entry on the Senate journal of March 16th, 1871, page 232.

MR. PRESIDENT :

I am directed by the House of Representatives to inform jour honorable body of the passage by the House, of House Bill, No. 50. “An act to provide for building and repairing of levees of this State, and for other purposes.”

J. R. Richards, Clerk.

And the following further entries appear on the Senate journal of March 17th, 1871, page 296 :

House Bill No. 50 ; “An act for the building and repairing of levees in the State of Arkansas.”

Read once by title, and :

Under suspension of the rules read a second time, and referred to the Committee on Internal Improvements.

Those are the only entries on the Senate journal which deserve special notice. It will lie observed that ivhen the bill was taken up in the Senate, it was read once by title, and immediately thereafter read a second time under suspension of the rules. There is uo showing on the journals that the rules were dispensed with for the first reading of the bill-; on the contrary, we think it appears affirmatively that the rules were not suspended.

The journal to be kept by the two houses of the General Assembly, ought to bo a complete and' perfect reeord of its proceedings, and if it appears affirmatively on the journal that in the passage of any bill, some mandatory provision of the Constitution has not been complied with, it will be fatal to the validity of the statute.

Judge Cooley, speaking of the journal to be kept by each House of the General Assembly, says: “If it should appear from these journals, that any act did not receive the requisite majority, or that in respect to it the Legislature did not follow any requirement of the Constitution, or that in any other respect the act was not Constitutionally adopted, the Courts may act upon this evidence, and adjudge the statute void. But whenever it is acting in tbe apparent performance of legal functions, every reasonable presumption is to be made in favor of tbe action of tbe Legislative body; it will not be presumed in any case from tbe mere silence of tbe journals, that either House has exceeded its authority, or disregarded a Constitutional requirement in the passage of Legislative acts, unless where the Constitution has expressly required the journals to show the action taken; as for instance when it requires the yeas and nays to be entered.” Cooley’s Con. Lim. 135 and 136.

Judge Stoiy, in speaking of the provision in the Constitution of the United States on the same subject, says: “The object of the whole clause is to insure publicity to the proceedings of the Legislature, and a correspondent responsibility of the members to their respective constituents. And is founded in sound policy and a deep political foresight. Intrigue and cabal are thus deprived of some of their main resources by plotting and devising measures in secrecy. The public mind is enlightened by an attentive examination of the public measures ; patriotism and integrity and wisdom, obtain their due reward, and votes are ascertained, not by vague conjecture, but by positive facts.” Story on the Con., page 590 and 591.

Mr. Webster, in his speech delivered in the Senate of the United States, on the 16th of January, 1837, by waj^ of protest against expunging the resolutions of the 28th of March, 1834, speaking of this same provision of the Constitution of the United States, said: “The Constitution moreover provides that the yeas and nays on any question shall, at the request of one-fifth of the members present, be entered on the journal. This provision most manifestly gives a personal right to those members who may demand it, to the entry and preservation of their votes on the record of the proceedings of their body, not for one day or one year only, but for all time. There the yeas and nays are to stand forever as permanent and lasting proof of the manner in which members have voted on great and important questions before them.” Webster’s Works, 4 vol., page 295.

Professor Walker, in his treatise on American Law, says: ‘ ‘ When the yeas and nays are not called for, members may shun responsibility either by not voting at all, or by having their voices drowned in the mass; and even if their votes be known at the time, it is not recorded for future reference, but when the yeas and nays are called and entered upon the journal, every member must vote, unless excused, and that vote may be scrutinized at any future period, so that there may be no way of escaping responsibility.” Walker’s Am. Law, page 85.

In the case of the Board of Supervisors of Schuyler County, Appellant, v. The People, ex re, The Rock Island and Alton Railroad Co., Appellees, the passage of an act of the Legislature of Illinois, was called in question, because of an alleged non-compliance on the part of the Legislature with a provision of her Constitution similar to that in ours.

Chief Justice Catón, who delivered the opinion of the Court, said : “ The Constitution does require that every bill shall be read three times in each branch of the General Assembly before it shall be passed into a law, but the Constitution does not say that these several readings shall be entered on the journals ; some acts in the passage of laws are required by the Constitution to be entered on the journals in order to make them valid, and among them are the entries of the yeas and nays on the final passage of every bill, and we held in the case of Spangler v. Jacoby, 14 Ill., 297, that where the journal did not show this, the act never became a law.”

And in the case of Walker v. Griffith, decided by the Supreme Court of Alabama, at the December term, 1877, in which the validity of an act of the Legislature of Alabama was called in question, Judge Manning who delivered the opinion of the Court, said: “When the Constitution requires that a particular thing shall be necessary to the validity of an act of Legislation, and that the journal must show that this thing was done; as for instance the passage of a bill by yeas and nays, which shall be entered on the journals, unless they do show it, the act cannot be accepted as Constitutionally adopted. The thing thus required is' an additional means outside of the enrolled act, but in concurrence with the signatures of the Speaker of the House of Representatives, and President of the Senate, authenticating its passage through the two Houses, and renders the forgery of such an act more difficult, and as the passage of it by yeas and nays cannot, according to the Constitution be shown otherwise than by the journals, they must in respect to it, ‘import absolute verity.’ ” * * * *

The principal objects in requiring the journals to be kept, probably were:

First — That the members might be thereby informed from day to day of the progress and state of the business before them; and

Secondly — That constituencies might afterwards see how their representatives had performed their duties in the public councils. See Law Reporter of June 12th, 1878, page 711.

Recurring to House journal at pages 756 and 757, and comparing the action of the Legislature with Section 21, Article v. of the Constitution, requiring that “on the final passage of all bills, the vote shall be taken by the yeas and nays and entered on the journal,” we find that this important and, as we regard it, imperative requirement of the Constitution was not complied with. The yeas were entered on the journal, but the nays were not entered at all.

True, it is stated in the journal, that on the final passage of the bill, the vote stood affirmatives 47 ; nays 24; and 11 not voting.

If it be said that the affirmative vote shows that a majority of those voting were for the bill, we remark that this may be so, but when we reflect that the negative vote was not recorded at all, and that an examination of the journal shows that in all other cases where votes were taken on the bill, or amendments thereto in its passage through the two Houses of the General Assembly, the yeas and nays, if taken at all, were taken in full and entered upon the journals, it is well calculated to throw suspicion on the whole proceeding attending the sup-supposed passage of this bill. But whatever may have been the circumstances attending the supposed passage of the bill, it becomes our duty to hold the Legislative department to a strict compliance with a mandatory provision of the Constitution, which in every case on the final passage of a bill, requires that the vote be takep by yeas and nays, and entered upon the journal.

Manifestly the object of recording the yeas and nays is not to show that a quorum of the members of the House is present, or that a majority votes for the bill. The journal may show that there was a call of the House before the final vote on the passage of a bill was taken, and that a quorum was present, and indeed all the memhers present, and the journal may also state that a majority voted for the bill; yet if the yeas and nays be not entered on the journal, the requirement of the Constitution is not compled with, and the bill does not become a law.

' The Constitution says the yeas and nays shall be entered on the journal; and we have no right to say that this need not to be done, or that half compliance is sufficient.

It is not sufficient to enter the yeas and omit the nays, nor to enter the nays and omit the yeas, and in all cases the names ■of those voting in the affirmative and negative must necessarily be entered on the journal.

Turning to the proceedings of the House of Representatives on pages 756 and 757, of the House journal, we find that in the supposed passage of the bill under consideration, a positive requirement of the Constitution was disregarded ; without the observance of which, no valid law can be passed.

The right to decide upon the constitutionality of an act of the Legislature, is a matter of grave importance, and should •only be resorted to in cases of a clear violation of the Constitution. In cases of doubt the presumption is in favor of the validity of the law, and this out of deference to a co-ordinate department of the government.

But in the case under consideration our deliberate opinion is, that in the passage of the supposed act of the Legislature it does clearly appear, that an essential and imperative requirement of the Constitution was disregarded and we do, therefore, in full view of the great responsibilities resting upon us, and of the far reaching consequences of the decision we make, pronounce the act of the 21st March, 1871, null and void, and as a consequence that the Auditor’s warrant numbered 2,828, mentioned in the petition and issued under the provisions of said act, is also null and void, and created no binding obligation on the State, and as a ’further consequence that the Commissioner of State Lands was not bound to receive it in payment for the lands mentioned in the petition.

The judgment of the Court below is reversed.


source: Caselaw Access Project

author: TURNER, J.:

license: Public Domain

text:
    Jacks et al. vs. Moore.
    1. Vehtte in trespass on real property.

    An action for an injury to real property must be brought in the county in which the property is situated.
    2. JURISDICTION: Consent can not give.

    No consent of parlies, express or implied, can give jurisdiction to a court to try a cause.
    APPEAL from Phillips Circuit Court..
    Hon. J. N. Cypert, Circuit Judge.
    Palmer, for appellants.

      Tappan & Horner, contra.

   TURNER, J.:

This is an action of trespass, tried in the Circuit Court of Phillips County at the May Term, 1877.

The complaint alleges that on or about the 6th day of May, 1876, Jacks, the defendant in the court below, entered upon the following described tract of land belonging to Moore, the plaintiff, while he was in the possession thereof, to-wit: The southwest quarter of sestion 18, township 1 north, range 4 east, situate in the County of Lee, in the State of Arkansas, and cut the timber growing thereon, and otherwise injured the same ; to the damage of the plaintiff $200,

The defendant filed an answer to the complaint, and the cause was submitted to a jury, who, after hearing the evidence, returned into court a verdict in favor of the plaintiff for $200 damages, for which amount judgment was accordingly rendered.

Whereupon the defendants filed their motion for a new trial, which motion was overruled, to which they excepted and took an appeal this court.

We deem it unnecessary to go into the merits of this cause, whatever they may be, for the x-eason that in our opinion the Circuit Court of Phillips County had no jurisdiction over the cause of action disclosed in the complaint.

The pleadings show affirmatively that the trespass was committed on real estate situate in Lee County, while the action was instituted in the Circuit Court of Phillips County and prosecuted in that county to its final termination.

The action ought to have been brought in Lee County, where the land is situated;

By an express provision of the Code an action for an injury to real estate must be brought in the county where the land is situated and where the trespass was committed. See Gantt's Digest, sec. 4532.

The language of the Code is unequivocal. The injury and the action is local, and was so at Common Law, and the Code simply follows the common law.

Newman, in his Pleadings andPractice, under the Civil Code of Kentucky, in commenting on provisions of that Code, precisely similar to provisions of our Code, which were in fact copied from the Kentucky Code, says : At Common Law, when the action could only have arisen in a particular county, it was local; such as real and mixed actions, actions of ejectment, trespass, quare clausum fregit, replevin, etc. * * * * *

In accordance with this Common Law rule, the Code has declared that actions for the following causes must be brought in the county in which the subject of the action, or some part thereof is situated:

First — For the recovery of real property, or of an estate or interest therein.

/Second — The partition of real property.

Third — For the sale of real property under a mortgage, lien or other incumbrance or charge.

Fourth — For an injury to real properly.

See Newman’s PI. and Prac., 17.

The record does not show any exception taken or question raised in the court below touching the jurisdiction of the Phillips Circuit Court; but then no consent of parties express or implied could give the court jurisdiction, or authority to try the cause.

We being therefore clearly of opinion that the Circuit Court of Phillips County had no jurisdiction over the subject of the action, do reverse the judgment of said court and remand the cause to said court with instructions to dismiss it for want of jurisdiction.


text:
    Adams, adm’r of George, vs. Boyd.
    1. Contract — Bill os’ Exchange.
    A contracted with B to do certain work and receive in full consideration therefo an order on C who owed B. After the completion of the work this order, the body of which was as follows: “ Please pay to * * * the sum of $550 and the same will be credited on your joint note to me ” was delivered t'A, who held it for nearly two years before presenting it to the drawer. Held, that the order was a bill of exchange, payable on demand, that it was the duty of the payee to present it in due time, and if dishonored to give due notice to the drawer; that the delay in the presentment was unreasonable and discharged the drawer from liability; held further, that A could not recover the value of the work under the contract.
    APPEAL from Pulaski Circuit Court.
    Hon. T. C. Peek, Special Judge.

      Wassel and Moore, for appellant.

      Matthews and Knight, contra.

   TURNER, J.:

This is an action brought by E. H. Boyd against Alexander George for the recovery of $550, founded on a written contract bearing date the 4th day of June, 1873, exhibited with and made a part of the complaint, by which contract the plaintiff agreed to do and perform certain work and labor for the defendant, and to make certain repairs and improvements on certain buildings and other property of the said defendant, and to furnish the materials necessaiy to enable him to complete the work agreed to be done, all of which is fully and specifically set forth in the contract. It was further agreed that upon the completion of the work, the defendant was to pay the plaintiff the sum of $550 in an order for that amount on J. W. Hopkins and wife, which the plaintiff agreed to receive as full consideration for said work.

The complaint sets out the contract in substance and alleges that plaintiff performed the work stipulated and agreed by him to be performed, and that in consideration thereof the defendant became indebted to him in the sum of $550.

That on or about the 4th of December, 1873, defendant gave to plaintiff an order on. J. W. Hopkins and wife for the sum of $550, which sum, if paid by Hopkins and wife was to be applied in payment of the sum which defendant had contracted and agreed to pay plaintiff for performing the work agreed by him to be performed for defendant. That he presented the order to Hopkins and wife in due time which they failed and refused to pay, of which fact defendant was duly informed.

At the April term, 1876, of the Pulaski Circuit Court the defendant filed his answer, in which he admits that the contract is truly set forth in the first paragraph of the complaint, but alleges that the said sum $550 was to be paid in an order for that sum on J. W. Hopkins and wife, and which the plaintiff agreed to receive as full compensation for said work.

■ Defendant admits that the plaintiff performed the work according to contract, and that he became indebted to the plaintiff in the sum of $550, the whole amount of which has been paid in the manner promised by the defendant and agreed to be accepted in full payment by the plaintiff, and denies that there were any conditions or contingencies about said payment, and asserts that the same was absolute and unconditional.

That at the time the contract was entered into J. W. Hopkins and wife were indebted to defendant in a large amount for real estate in the City of Little Rock, which was securéd by a lien on the same, and that the order above referred to was given with reference to said debt due the defendant, and that afterwards in settling said debt, credit was given to Hopkins and wife for the amount of said order, $550.

Defendant does not know whether said order was ever presented to Hopkins and wife, or if presented, whether the same was ever paid, and denies that he was ever duly informed of its non-payment.

At the same term of the Court, to-wit: On the (5th day of June, 1876, this cause came on to be tried and was submitted to a jury, who after being empannellod and duly sworn, returned into Court the following verdict: “We the jury find for the plaintiff, F. W. Boyd, and assess the damages at $649.29,” whereupon the Court rendered judgment against the defendant for the amount so found with costs.

And thereupon the defendant moved the Court to set aside the verdict, and grant him a new trial, assigning the following causes therefor:

First — That the said verdict is not sustained by sufficient evidence, and is contrary to law.

Second — That there was error of law occurring at the trial, in that the Court gave the 4th, 5th, 6th and 7th instructions.

Third — That the said verdict and judgment is contrary to the evidence.

The motion for a new trial being over-ruled, the defendant filed his bill of exceptions, and took an appeal to this Court.

The bill of exceptions discloses the following evidence in this cause:

F. H. Boyd, the plaintiff, after describing the written contract exhibited with his complaint and the circumstances attending its execution, stated that he spoke to Hopkins before he did the work, and told him he was about to take an order from George on him for $550, and. he Hopkins said it would all be right as he was owing George, and would as lief pay witness as George. The work was completed in two or three weeks after the date of the contract. Soon after it was done, witness applied to Johnny. Adams, (who had drawn up the contract and was attending to George’s business) for the order on Hopkins and wife and he put him off, saying he did not have it with him, that it was up at Tucker’s Bank locked up in the safe and could not be got. That he applied to Adams as many as fifteen or twenty times for the order, before he obtained it. The order was delivered to him some time in January or February, 1874, but don’t remember the exact date. On securing the order, witness, who was living in Argenta, took it home and left it. He did not see Hopkins for a long time after he got it. Hopkins was living in the country on this side of the river ten or twelve miles from towii. .Saw him several times in Little Rock before he got the order.

In March, 1874, he went out to see Hopkins and tried to get lumber from him, but he l’efused to let him have it without the money or the order. Witness thought that if he could have got the order sooner from George, he could have worked it, so as to have got the amount out of Hopkins.

Witness presented the order to Hopkins in December, 1875, and he told him he did not owe George anything then, and refused to pay tbe order or any part of it, and wrote “protested” across the order and dated and signed his name to it. This was the first time witness had an opportunity to present the order to Hopkins. He never got a cent from George for the work done, or materials furnished, and has nothing from him but the order. He took the job and agreed to accept the order expecting to get it when the work was done. Witness don’t know why Adams' did not give him the order sooner. It bears date June 4th, 1873, and is in the words and figures following:

Little Rock, Ark., June 4th, 1873,

Please pay to F. H. Boyd the sum of Five hundred and fifty dollars and the same will be duly credited on your joint note to me.

AlexaNder George,

By John D. Adams, Jr.

Endorsed,

Protested, December 13th, 1875.

J. H. Hopkins.

Witness further stated on cross-examination: That he did not present the order to Hopkins until December, 1875. That the reason was, he (Hopkins) lived a long way off, out in the country, and it was not convenient for him to go and see him, and that he considered Hopkins good any way. That if he happened to meet Hopkins in Little Rock, he did not have the order with him. It was at his house across the river in Ar-genta. That soon after he did present the order to Hopkins he notified George through Adams that Hopkins refused to pay it, and that he never went to see George about getting the order from him, but always went to Adams, who was attending to George’s business.

J. W. Hopkins, a witness for the plaintiff, stated: That some time in 1871, he bought some lots in the name of his wife from George in the City of Little Rock; that he made payments on them to the amount of $2735. He could not make arrangements to pajr the balance due and George placed the notes in the hands of Wassell & Moore, who brought suit in the Pulaski Chancery Court to enforce the vendor’s lien for balance of the purchase money. They obtained a decree against witness, and he spoke to Major Moore of the firm of Wassell & Moore, and told him he could not pay the amount of the decree, and proposed to give up the title -bond and relinquish all claim to the lots (acting for himself and wife) if he (George) would surrender the notes and cancel the whole proceedings, and thus settle the decree, if George would pay the cost of suit. A few days afterwards Major Moore called witness into his office and told him George accepted his proposition. Moore then drew up a receipt and the matter was settled. Witness delivered up the title bond, and relinquishéd all claim to the lots and the notes were given up to him. He did not notice particularly about the credits endorsed on the notes. Considered the matter all settled and paid but little attention to the notes. Don’t know whether the sum of $550, the amount of the order of F. H. Boyd, was credited on either of the notes or not. He just agreed to lose all he had paid and cancel the whole transaction. Has no recollection of Major Moore having shown him any statement of the credits, or the amount of the claim. This settlement with Major Moore was about the 11th day of July, 1874.

Some time previous to this, before the suit was brought and while he was owing George, Boyd told him he was about to do some work for George and that George proposed to give him an order on witness, aud asked if it would be good, witness told Boyd that he was owing George for lots and that the order would be good as he would as soon pay him as George. Boyd came to him and tried to get some lumber, but he refused to . let him have it, without the order of George or the money. Heard no more about it until last winter about the 15th of ■December, 1875, when Boyd presented the order for $550 that was exhibited here to-day. Witness refused to pay it, or accept it, and told Boyd that he did not owe George a cent. That all matters between them had been settled. Witness took the order wrote on it “protested,” dated and signed it. The date on the order is the date when Boyd first presented the order to witness.

On cross examination, witness stated that if the order of George to Boyd had been presented to him at any time before his settlement with George, it would have been paid.

John Dudley Adams, stated : That he drew up the articles of agreement between Boyd and George at the request of the parties, and they both signed them. Boyd did the work and so far as he knew, to the satisfaction of George. Witness drew the order on Hopkins and wife for $550, in George’s name as his agent. Boyd did not call for it until some time after the work was done. He met witness on the street and asked him for it. Witness told him it was up at Tucker’s Bank, that he did not have it with him, but that he could get it any time by calling on him at his place of business. Some time afterwards, not later than October or November, 1873, he called on witness at his house, and he gave him the order. He got it the second time he called for it. Could have got it at any time if he had called at witness’ place of business. The only reason he did not give it to him the first time was because he asked for it on the street when witness did not have it with him. Is certain that it was not later than October or November, 1873, that he gave the order to Boyd. There was no reason why he should have refused to give Boyd the order. The work was done and George had agreed to give him the order, and there was nothing to be made or gained by withholding it. Some time after witness gave the order to Boyd lie met Mm aud asked him if he had ever collected the order, and Boyd replied : Oh ! That order is all right. It is drawing 3 per cent, interest per month for me. Witness heard nothing more about it till about the time the suit was brought or shortly before, when Boyd came to him and told him Hopkins had refused to pay the order and wanted to know to whom he should look for payment of the $550. Witness could give him no satisfaction. The $550 was duly credited on the note of Hopkins to George, and was so credited at the time the notes were placed in the hands of Wassell & Moore. Their receipt for the notes mentions the payment of the $550.

Upon cross-examination, witness further stated that he was the son-in-law of the defendant, George. Had nothing to do with making the bargain between plaintiff and defendant. Was requested to draw up the articles of agreement between them ; nothing was said about the time when Boyd was to get the order.

C. B. Moore, a witness for the defendant, stated that he was one of the firm of Wassell & Moore. That they were employed by George in the summer of 1873, to bring suit in the Pulaski Chancery Court to enforce the vendor’s lien against J. W. Hopkins and wife, on certain lots in the City of Little Rock. Two notes of Hopkins and wife to George were placed in their hands. On one of the notes there was a credit of $550 endorsed as paid by draft in favor of F. H. Boyd. This credit was on the note when placed in their hands. Suit was brought, a decree obtained and the property was advertised to be sold, when the whole matter was settled in the manner detailed by Hopkins.

When the decree was rendered in the Chancery Court the credit of $550 was taken into the calculation and the amount deducted. Witness made the calculation and drew up the decree and knew that the $550 credit was taken into consideration.

On cross-examination, witness further stated: That when the arrangement was made between Hopkins and George, to settle the matter of the decree, he transacted the business for George. The receipts, cancellation of decree, etc., were drawn up in his office and there signed by Hopkins. Witness is quite sure that the amount of the decree was mentioned and is very sure that Hopkins saw the credit of $550, and knew at the time that it Avas taken into consideration in calculating the amount that was due on the decree.

A. George, the defendant, stated that Adams drew up the papers between Boyd and himself ; that Boyd Avas to take an order on Hopkins for the amount he Avas to pay him for the Avork, $550. Witness supposed the matter was all settled long before the suit Avas brought, he never heard anything about the order not being paid until a short time before the suit was brought, Avhen Mr. Watkins, Boyd’s, lawyer, came to see him about it. Witness contracted with Boyd to do the work and agreed to give him $550 for the job, Avhich was more than he Avould have given if he had been going to pay the cash for it. Hopkins was hard to get money out of. He was owing Mm and he Avas glad to get that much settled by the job of work, and as Boyd agreed to accept the order on Hopkins in payment he made the contract with him at $550. Boyd never informed Avitness that the order was not paid. He never called on him him about it, or asked him for the order.

On cross-examination witness stated that Boyd did the work according to contract, that he never paid him any money, or in any other Avay, except by the order oía Hopkins.

F. H. Boyd, the plaintiff, on re-examination, denied having told Adams that he had ever been paid the $550 by George, or any one else, and Avas receiving 3 per cent, a month for it from Hopkins, but did say to Adams that previous to this transaction he had loaned money to Hopkins at three per cent, a month, and that he considered Hopkins good.

J. W. Hopkins, witness for the plaintiff, on re-examination stated that he had borrowed money from Boyd previous to this-transaction, and had paid him as much as 3 per cent, a month for it. That he was not aware of the existence of the order and the indebtedness, till the order was presented to him in December, 1875.

Whereupon the plaintiff moved the Court to instruct the-jury as follows :

First — The answer admits that Boyd did the work, and that the price thereof was the sum of $550, so much of the controversy is thus established and the jury is to so consider it.

Second — -That the mere paper with the order written thereon is of no value nor any consideration for the promise by Boyd to do the work for Geoi’ge; that a promise by Boyd to do the work for George for merely a piece of paper with an order written upon it would be void as being a nude pact, (an agreement without a consideration) and not binding upon Boyd. That the real and true consideration of this contract is the promise by George to pay Boyd the agreed price of the work $550, and that the law in all cases implies a contract, that the drawer of an order (in this case George) will pay it to the payee (in this case Boyd) if the drawee (in this case Hopkins) should refuse or be unable to pay.

Third — If the jury believe that George had no mone3rs on deposit- with Hopkins but drew the order on Hopkins merely because Hopkins was indebted to him, then George is not discharged b3r the delay of Boyd in presenting the order to Hopkins and the giving of notice to George that Hopkins had refused to pay the order, and George is liable in this suit to pay Boyd the amount agreed on $550, as the price of value of the work and labor with interest as claimed from the date of the order, 4th of June, 1873.

Fourth — If the jury believe that defendant gave the order to plaintiff within a reasonable time and'Hopkins refused to accept or pay the order, and that George was duly notified of this and payment has been demanded of and refused by him then Boyd is entitled to judgment against George as claimed in the complaint.

Fifth — If the jury believe that George, since he drew the order on Hopkins has had a settlement with him, and that all of Hopkins indebtedness to George was then taken into account between them, and was settled with and discharged by George without any allowance being made to Hopkins of the amount of the order in that settlement, and that no part of the price of the work done by Boyd has been paid to him by Hopkins or by George, then Boyd is entitled to judgment against George as demanded by the complaint.

Sixth — If the jury believe that in the settlement made between Hopkins and George, the amount of $550 of the indebtedness of Hopkins to George was left out by George unsettled for between them, and even if that amount was credited on Hopkins’ notes and that when the order was presented to Hopkins, if presented in a seasonable time, he refused to accept or pay the same, that this did not in anywise discharge George from liability on said order.

Seventh — That the order given by George to Boyd on Hopkins and wife is a condition precedent that Hopkins and wife would accept the same if presented in apt time, and that if said order was so presented to Hopkins and he refused to accept or pay it, then George on notice thereof became liable for the amount of the order given by him to Boyd, and Boyd is entitled to judgment in this action as demanded.

The Court gave the first, fourth, fifth, sixth and seventh instructions, and refused to give the second and third. To the ruling of the Court in giving the fourth, fifth, sixth and seventh of said instructions the defendant excepted.

And thereupon the defendant moved the Court to instruct the jury as follows ;

First — If the jury believe from the evidence that at the time the contract was made between Boyd and George, it was agreed and understood, that Boyd should receive in payment for the work an order on J. W. Hopkins and wife, and if at the time the order came into the hands of Boyd, Hopkins and wife were indebted to George, and that the order was not presented for acceptance or payment to Hopkins and wife within a reasonable time, and if then presented, payment was refused, Hopkins and wife in the mean time having settled all indebtedness to George including the said order for $550, the plaintiff cannot recover. .

Second — In order to entitle the plaintiff to recover in this case, it must be on the draft, or order, not on the account for services rendered, as the draft being a higher security it extinguished the original contract, and to entitle a- recovery on the draft, the plaintiff must bring himself within all the requirements of the law merchant as holder of the draft.

Third — In order to bind the drawer of a bill of exchange or order for money payable at sight, or on demand the same must be presented to the drawer within a reasonable time, and with reasonable diligence, and it is for the jury to say from all the circumstances what is reasonable time aud reasonable diligence in this case.

Fourth — In order to bind the drawer of a bill of exchange or an order for money payable at sight or on demand, it is necessary for the payee to present the same for payment within a reasonable time, and if not paid, to give notice of non-payment to the drawer, as required by the law merchant.

Fifth — If the jury believe from the evidence and the written contract between the parties, which is made a part of the complaint, that Boyd agreed to receive in payment for the work done $550 to be in an order on J. W. Hopkins and wife and which order Boyd agreed to receive as full consideration for said work, and if the order was in fact given by George to Boyd, the plaintiff cannot recover, and this especially if Boyd consulted Hopkins before making the agreement anv learned from him that he and his wife were owing George as much as the amount of the order.

All of which instructions asked for by the defendant were given by the Court.

The record in this cause presents several important questions for our consideration. It will be seen that by the terms of the contract between the parties, that the plaintiff was to perform for the defendant certain specific work for which the defendant was to pay him $550 in an order on J. W. Hopkins and wife, which the plaintiff agreed to receive as full consideration for the work done.

The pleadings and proof show that the work was completed according to contract, and that the order bearing date June the 4th, 1873, for $550, was drawn by the defendant on Hopkins and wife in favor of the plaintiff, to whom it was delivered in the latter part of the year 1873, or early in the year 1874, and that the plaintiff did not present the order to Hopkins until nearly or quite two years thereafter. It appears that at the time the contract was entered into and previous thereto, Hopkins and -wife were indebted to the plaintiff for real estate purchased from him situate in the City of Little Rock, for which he had taken their notes and retained a lien upon the property sold. That before performing the work, the plaintiff had a conversation with Hopkins, and told him he was about to take an order from the defendant on him for $550 and that Hopkins told him it would all be right as he was owing the defendant and would as lieve pay the plaintiff as defendant. After completing the work as provided for in the contract some delay occurred before the plaintiff received the order. He states "in his evidence that soon after the work was completed, he applied to Adams, defendant’s agent, for the order, who put him off saying he did not have it with him, that it was at Tucker’s locked up in the safe and could not be got out. That he applied to Adams repeatedly for it, but he always put him off with some excuse, but at length he delivered it to him some time in January or February 1874.

Adams in his testimony states that the plaintiff applied to him only twice for the order before he obtained it, and the reason he did not get it the first time was that he applied to him on the street for it when he did not have it with him. That he told the plaintiff that he could get it any time by applying to him at his place of business.

It is further shown that some time in the summer of 1873, the notes of Hopkins and wife given to the defendant for the real estate sold by him to them remaining in part unpaid, were placed in the hands of Wassell & Moore for collection, previous to which a credit was endorsed by the defendant on one of the notes for $550 on account of the order for that amount in favor of the plaintiff.

Suit was brought by Wassell & Moore for the defendant in the Pulaski Chancery Court against Hopkins and wife to enforce the vendor’s lien against said real estate.

In due time a decree was obtained against Hopkins and wife and the property advertised for sale.

Pending these proceedings, a settlement was had between the defendant and Hopkins and wife by which the balance of indebtedness due from Hopkins and wife to the defendant and all their claim to, and interest in said real estate was cancelled by mutual consent and the notes delivered up to Hopkins and wife.

At tbe time of this settlement the $550 order was outstanding in the hands of the plaintiff, and unpaid, although previous thereto the amount of the order had been credited on one of the notes due from Hopkins and wife to the defendant as if actually paid.

What was the effect of the order on the rights of the parties when drawn and delivered to the plaintiff, as provided for in the contract?

Did it operate as an absolute payment to the plaintiff, as contended for by the defendant’s counsel, or did a contingent liability on the order attach to the defendant, to be determined by the plaintiff’s action as governed by the rules of the law merchant ?

It may be plausibly maintained that payment to the plaintiff in the order on Hopkins and wife was an absolute and unconditional payment and released the defendant from further liability to the plaintiff, yet we cannot think this is the legal mport of the contract.

What then is the character of the order delivered to the plaintiff? We think it is unquestionably a bill of exchange, and that when drawn and delivered to the plaintiff the rights and liabilities of the parties, drawer and payee were to be governed in all things by the rules of the law merchant.

Chancellor Kent, in defining a bill of exchange, adopts the language of Bagley, who says: “A bill of exchange is a written order or request by one person to another for the payment of money absolutely and at all events.” 3 Kent, 74. And Smith, in his mercantile law says : A bill of exchange is a written order for the payment of a certain sum of money unconditionally. Smith Merchant Law, 362.

These definitions, it is true, omit the negotiable element of a bill of exchange, which, though not essential to its validity, is supposed in the definitions of Kyd, Pothier and other law writers.

Tested by these definitions, this order must be regarded as a Bill of Exchange, for it is a written order or request by the defendant to Hopkins and wife to pay the plaintiff $550 absolutely and at all events.

The order then being a Bill of Exchange, let us inquire what were the undertakings, duties and obligations of the parties-to it.

The defendant, who was the drawer, undertook to the plaintiff, who was the payee, that the di’awees, Hopkins and wife, should pay the order when it became payable, on due presentment thereof, for that purpose, and if the drawees should not pay it when it became so payable and the payee gave him due notice thereof, then he (the drawer) would pay the sum or amount stated in the order to the payee, with such damages as the law allows in such cases as an indemnity.

The plaintiff was bound to present the order for acceptance and payment within a reasonable time after receiving it, and to-give due notice of the refusal of Hopkins and wife to accept or to pay the order to the plaintiff within the time prescribed by law ; on failure of either of which the defendant is exonerated from all liability on the order.

Hopkins and wife having failed to accept the order are under •no legal obligation to the plaintiff, and whether the defendant is released from liability on the order in consequence of the laches of the plaintiff, is a question we must necessarily decide.

Bills of Exchange are usually drawn payable at a certain time after date, or after sight, and in either case they are entitled to days of grace, or they may be drawn payable on demand, or what is the same thing in law, without specifying the time when payable, in which case they are payable on demand and are not entitled to days of grace.

The order under consideration is in effect payable on demand, and it was the duty of plaintiff to present it in due time to Hopkins and wife for payment, and if dishonored, to give due notice to the defendant of its non-payment.

In the case of bills entitled to grace, payment should be demanded on the third day of grace, and notice immediately given to every party who would be entitled to bring an action on it after paying it.

According to the received interpretation of the law, this notice should go by the first mail after the day next to the third day of grace ; so that if the third day of grace be on Thursday and the drawer and endorser (if there be one) resided out of town, the notice may, indeed be sent on Thursday, but must be put into the Post Office or mailed on Friday, so as to be forwarded as soon as possible thereafter. 3 Kent. 105, 106 ; Smith’s Mer. Law, 328, 329 ; Chitty on Bills, 325, 326, 327, 433, 434, 435 ; Edwards on Bills, 548, 549. v

In the case of a bill or order like this payable on demand, the duties of the payee are but slightly modified.

Such a bill “becomes due at the moment of presentment, and the presentment must be made withm a reasonable time after receiving it. What is a reasonable time, is, in the absence of any settled rule, said to be decided in the same way as the like question concerning the presentment for acceptance of bills payable at or after sight, and a longer time for presentment will be allowed when the instrument has been circulated and was apparently meant for circulation, but any delay beyond what the common course of business warrants is, in ordinary cases, unreasonable. “The course of business formerly was understood to be to allow the party to keep it, if payable in the place where it was given, till the morning after the next business day after its receipt; if payable elsewhere, till the next post’ ’*****

The established rule now is, that if the instrument be payable at a banker’s house and in a place where a party received it, it suffices to present it for payment at any time during the banking hours on the day after it is received. If it be payable elsewhere, it suffices to forward it by the regular post on the day after it is received, and the party receiving it by post has till the next day to deliver it.” Smith’s Mer. Law, 318, 319 ; Parsons Mer. Law, 103, 105, 110, 120; Edwards on Bills, 390, 392.

Notice of the dishonor of such a bill or order as this must be given, and with like effect as to the rights and liabilities of the parties thereto, as in other cases of the dishonor of bills of exchange.

What is due diligence in giving notice of a bill to the. drawer or indorser, (if there be one) is said to be usually compounded of law and fact, and proper for the decision of a jury under the advice and direction of the Court, and the mixed question requires tlie application of the powers of the Court and jury; and yet in seeming contradiction to this, it has been repeatedly held that the reasonableness of notice or demand, or due diligence when the facts were settled, was a question of law for the Court, and not a question of fact for the jury..

The facts of the case being ascertained, it is the duty of the Court to declare the law to the jury, who have a corresponding duty to receive and carry out the law as declared by the Court. See 2 How. 459; 1 Peters, 578; 21 Wend., 643; 4 Leigh, 50 ; 6 Ohio, 55 ; 9 Peters, 33.

' Having commented briefly on the Law Merchant in its application to the bill or order under consideration, we now direct our attention to the evidence in the cause, as set forth in the bill of exceptions.

The order bears date June 4th, 1873, and appears to have been drawn simultaneously with the execution of the contract between the parties, although it was not delivered to the plaintiff according to his own evidence, until sometime in January or February, 1874 ; but according to the evidence of the witness Adams, who was attending to defendant’s business, it was delivered by him to the plaintiff as early as October or November, 1873.

As a mean between these contradictory statements, as to the time, we may assume that the order was delivered to the plaintiff some time in December, 1873.

The proof shows that it was not presented to. Hopkins, nor demand of payment made until the 13th day of December, 1875. During this long lapse of time it does not appear that ■any efforts wore made or steps taken by the plaintiff to collect the order, or fix the liability of the defendant in case of default on the part of Hopkins and wife.

True, it appears that some time in the month of March, 1874, the plaintiff went out to see Hopkins, and tried to get some lumber from him ; but Hopkins ref used to* let him have it without the money, or defendant’s order. At this time the plaintiff had been in possesion of the order on Hopkins and wife some three months, yet he failed to take it with him, and ■so far as we can learn from the evidence, failed to inform Hopkins and wife that he had such order.

In fact Hopkins in his testimony states that he was not aware of the existence of the order until it was presented to him in December, 1875, nearly or quite two years after its delivery to plaintiff. In explanation of the delay and want of diligence in endeavoring to collect the order from Hopkins and wife, plaintiff complains of the defendants delay in delivering it to him.

The contract it is true, does not specify in words when the order was to be delivered, but we think it may be fairly interpreted as entitling the plaintiff to the order on the completion of the work.

The order bearing even date with the contract, we must suppose that it was the intention of the defendant to deliver it to the plaintiff when the work was done, and although it was not delivered until five mouths afterward, it was not because, as Adams states, of any disposition to withhold it, but because of the plaintiff’s failure to call for it at his place of business. When it was delivered, it was accepted by the plaintiff without objection, and this acceptance of the order without objection or protest, must be regarded as a waiver of any and all objections that might have been urged against it on account of' delay in its delivery.

Some time in the summer of 1873,the notes due from Hopkins and wife to the defendant, were placed in the hands of Wassell and Moore for collection, previous to which the defendant had entered a credit to Hopkins and wife on one of the notes for the amount of the order, thus reducing their indebtedness to him by that amount.

The settlement was made between defendant, and Hopkins and wife, and consequent cancellation of the notes and contract between them some time in July, 1874, nearly or quite seven months after the delivery of the order to the plaintiff ; and Hopkins in his testimony, states that if the order had been presented to him at any time before this settlement, he would have paid it; and the defendant in his testimony, speaking of the order, states he supposed the matter was all settled long before the suit was brought, and that the plaintiff never informed him that the order was not paid.

In further explanation of the cause of delay in not sooner presenting the order, the plaintiff states that when he secured it, he took it home and left it. That he was living over the river, at Argenta, and did not see Hopkins to present it to him for a long time after he received it.

On cross examination he further stated that the reason why he did not sooner present the order was that Hopkins lived a long way off, out in the country, and it was not convenient for him to go out and see him, and he considered him good any way. That if he happened to meet him in Little Eock, he did not have the order with him. It was at his house across the river, at Argenta.

The plaintiff states that very soon after he did present the order to Hopkins, he notified the defendant, through Adams, of the non-payment, but whether it was a day, or a week or a month, or longer after its presentment, does not appear.

The evidence, taken as a whole, clearly indicates that the plaintiff from the beginning relied on the solvency of Hopkins and wife, and confided in their ability and disposition to pay the order, rather than on any ulterior or contingent liability of the defendant, and this may account for the plaintiff’s delay in presenting the order and demanding payment.

Having decided that the order is a bill of exchange, to be governed by the law merchant as it affects the rights of the parties thereto, and having already considered what were the necessary steps to be taken by the plaintiff who was the payee and holder of the order, to fix the liability of the defendant, we are, therefore, upon a careful review of the testimony, most clearly of opinion that the omissions, neglects and failures of the plaintiff to take the requisite steps neccessary to fix the liability of the defendant upon default of Hopkins and wife, in law operates as a discharge of the defendant from all liability on the order.

But then it is said this suit was not instituted upon the order, but upon the written contract between the plaintiff and defendant.

True, it is not brought distinctively on the order, but is founded on the written contract of which the provision for the order is a component and essential part, but which the plaintiff would eliminate from the contract and treat as a nullity.

As before shown, the plaintiff bound himself to receive the order in full consideration for the work done, and is therefore not at liberty to ignore or treat it as a nullity. He must stand by his contract, and recover upon the order, if he recover at all.

But it may be urged, there is hardship in this case ; that the plaintiff has completed the defendant’s work according to contract and received nothing for it. But this cannot be truthfully said, since the plaintiff was paid in an order on Hopkins and wife which he was bound to receive, and if he failed to realize the amount of the order, it was his own fault* for it can hardly be doubted but that by due diligence on his part he could have collected the order from Hopkins and wife* or in case of their default, the liability of the defendant would have been irrevocably fixed.

The law merchant requires certain steps to be taken by the holder of commercial paper in order to fix the liability of the drawer ■ and endorser. This being neglected, they are discharged from all liability on the paper, and this without regard to the consideration proceeding from the holder to the drawer or endorser.

In the light of these conclusions as to the law and facts of the case, we are of opinion that the verdict and judgment were not authorized by either, nor indeed by the instructions of the Court.

The first instruction moved by the plaintiff was properly given by the Court.

The second and third were properly refused.

The fourth ought to have been rejected also, for it assumes that it was not necessary for the plaintiff to present the order and demand payment of Hopkins within due and reasonable time after receiving it. The assumption we think wholly unwarranted.

The fifth ought also to be rejected. The facts do not authorize such an instruction. The proof is that the amount of the order for $550 was credited on one of the notes long before their settlement with the defendant, and so the latter clause of the instruction is objectionable, as the defendant’s liability to pay the order was dependent upon the default of Hopkins and wife after due diligence by plaintiff to collect the amount of the order from them.

The sixth, like the preceding instruction, was not warranted by the facts of the case and, strictly, had no foundation to rest upon. The presentment of the order, if made in due time, would not have fixed the liability of the defendant unless he had been duly notified of such presentment and the default of Hopkins and wife.

The seventh would not have been objectionable if it had been accompanied with an explanation of the law as to the time of presentment and demand of payment of the order and of the notice necessary to fix the liability of the defendant. As the instruction was asked, it was calculated to mislead and leave the jury in doubt, and was properly rejected.

The first and second instructions asked for by the defendant were properly given.

The third ought not to have been given unless with an exposition of the law of the case. The Court in declaring that it was for the jury to say, from all the circumstances, what constitutes reasonable time and reasonable diligence according to the law merchant, without explanation or declaration of the law in its bearings upon the facts of this case, in effect surrendered to the jury what rightly belonged to the Court.

The fourth and fifth -were properly given.

The instructions of the Court assume throughout, rightly, as we think, that the order under consideration was a bill of exchange and governed by the rules of the law merchant, but the Court failed to explain and declare to the jury what the law merchant is, as it regards due presentment and demand of payment of a bill or order, and due notice of the default of the payee ; and in thus failing to explain and declare the law in its bearing upon the facts of the case, notwithstanding the facts were manifestly clear and unambiguous, the court in our judgment committed a grave error, and this may account for the verdict of the jury which, we think, was not warranted by the law or the facts of the case.

The Circuit Court should have set aside the verdict of the jury and granted the defendant a new trial.

The judgment of the Circuit Court is, therefore, reversed, and this cause remanded with instructions to said Court to grant the defendant a new trial and proceed with the cause not inconsistent with this opinion.


author: TuiíNer, J. :

text:
    Cannon vs. Davies.
    1. PRACTICE: Reply, Etc.

    ■Where the answer sets up no matter of counter claim or set off a reply is improper; it should not be met by a demurrer however, but should be stricken from the files.
    2. Eorcible Entry and Detainer: Ejectment, burden of Proof'.

    An action of forcible entry and detainer was instituted and, the answer putting the title in issue, was changed into ejectment before the repeal of section 2,947 of Gantt’s Digest; held, that the repeal of the statute did not affect the proceedings, and it properly proceeded as an action of ejectment: Held, further, that the burden of proof continued with the plaintiff.
    3. Ejectment: Verdict and Judgment.

    In an action of ejectment the jury rendered a veidict for the plaintiff without any assessment of damages, the Court entered judgment for the plaintiff for possession and damages; Held, that the judgment for damages was not sustained by the verdict.

      APPEAL from Mississippi Circuit Court.
    Hon. L. L. Mack, Circuit Judge.

      Rose and Palmer, for appellant.
    Lyles, contra.

   TuiíNer, J. :

This was an action of forcible entry and detainer brought by James F. Davies as administrator of the estate of James Stewart, deceased, against James H. Cannon.

The plaintiff alleges that on or about the 15th day of October, 1872, while he was in the peaceable possession of the northeast quarter of section 36, township 11, range 8 east, with all the dwelling houses, barns and sheds thereon, the defendant with violence and by force entered on said land and took possession of one of the houses thereon and continued to hold the same from the plaintiff.

The defendant answered stating that at the time of the service of process in this cause, he was in possession of said land claiming the same as a homestead under the laws of the United State, and by virtue of his entry of the same in the land office at Little Eock, as appears from the Eeceiver’s receipt, which was exhibited with and made a part of the answer; and he states that he did not, while plaintiff was in possession of the premises in question, with violence and by force enter thereon and take possession of one of the houses as alleged in the complaint. The following is the receipt filed with the answer and made a part thereof:

“ Eeceiver’s Eeceipt, No. 6,023 — Homestead.”

Eeceiver’s Office, Little Eock, Ark., Nov. 4, 1872.

Eeceived of James H. Cannon the sum of $14, being the amount of fee and compensation of Eegister and Eeceiver for the entry of northeast quarter of section 36 in township 11 north, of range 8 oast, under the act of Congress approved May 20, 1862, entitled an “Act to secure homesteads to actual settlers on the public domain.”

$14.00 -Receiver.

At the October term of the Court, 1873, the plaintiff filed a demurrer to the first paragraph of defendant’s answer which was overruled by the Court; whereupon the plaintiff: filed his reply to the first par-agraph of the answer setting up a claim to the land under an alleged purchase from the State, as swamp and overflowed land.

To which reply the defendant demurred and the demurrer was sustained. The reply and demui'rer were alike irregular and not authorized by the law or practice.

We have have had occasion lo observe irregularities coming up from more than one Circuit in the State, and we would respectfully recommend to the Courts and Bar where these irregularities prevail, to be a little more observant of the íequirements of the code practice.

There being in the aixswer no allegation of a counter claim or set off, and the cause being at issue upon the filing of the answer, no reply was admissible. If filed, however, it should not have been met by demurrer, but should have been stricken from the files. See Gantt’s Digest, section 4,579.

At the Februaiy term, 1874, this cause came on for trial and was submitted to a jury, who after hearing the evidence and instructions of the court, rendered the following verdict :

“ We the jury find for the defendant and assess the damages at two hundred and fifty-two dollars ($252) for rent for 1873.” Whereupon judgmexit was rendered against the plaintiff for possession of the premises and for said damages.

And aftenvards, at the same term of the court, the plaintiff filed his motion for a new trial, which, on consideration was granted by the court, and the judgment rendered in this cause set aside, and the court being of opinion that the defendant’s answer put in issue tbe title to the land, ordered that the action proceed as an ordinary action at law in the nature of an action of ejectment upon’ the issues presented in the first and and second paragraphs of the answer, and it was ordered that the defendant retain possession of the premises upon giving bond and sufficient security, etc., and defendant executing the bond required by law, and the same being approved, it was ordered that the possession of the premises be surrendered by the plaintiff.

At the September Term, 1875, the plaintiff filed his motion to disregard the judgment of the court in this cause on the 12th day of February, 1874, and protested against proceeding to trial thereunder, which motion was overruled, and thereupon the plaintiff filed another reply to the defendant’s answer, to which defendant demurred, and demurrer overruled.

This was simply a repetition of the irregular and loose practice already commented upon, and the reply like the preceding one ought to have been promptly stricken from the files.

At the May Term, 1876, it was ordered by the court that Frank L. James be appointed to survey the exterior lines of the land in dispute, and that he make report with map, etc. And at the November Term, 1876, it was ordered that the County Surveyor of Mississippi County proceed to and survey the exterior hues of said land, and report his survey with map, etc. Both of which surveys were made and report thereof, with accompanying plats, etc.

At the same term of the court, this cause came on to be tried, and was submitted to a jury who, having, heard the evidence and instructions of the court, rendered the following verdict; “We, the members of the jury, find for the plaintiff.” Whereupon judgment was rendered in favor of the plaintiff for possession of the land in controversy and against the defendant for the sum of six hundred and twenty-one dollars' ($621) for damages and for costs. And thereupon the defendant filed his motion for a new trial and assigned the following causes :

First — The court erred in permitting the plaintiff to intro-dnce testimony to show the character of the land.

Second — The court erred in permitting a map of the land made by Dr. P. L. James to go as evidence to the jury.

Third — The court erred in giving the instructions asked for by the plaintiff.

Fourth — The court erred in refusing to give the third and fourth instructions asked for by defendant, and in modifying the first instruction.

Fifth — The verdict of the jury is contrary to law.

Sixth — The verdict of the jury is contrary to evidence.

Seventh — Substantially the same as the two last.

Fighth — The judgment of the court is not sustained by the evidence.

Ninth — The judgment of the court is not sustained by the verdict of the jury.

Tenth — The judgment of the court is not warranted by the pleadings in the cause.

Which motion was overruled by the court, to which defendant excepted and filed his bill of exceptions and took an appeal to this court.

It will be observed that during the progress of this cause, its character was changed from an action of Forcible Entry and Detainer, to an ordinary action at law in the nature of an action of ejectment, and this was proper, because it sufficiently appears from the pleading that a trial of the cause involved a trial of the title to the .premises in question. Gantt’s Digest, sec. 2947.

And although the law, under which the change was made, was repealed by the act of March 2d, 1875, this action having been previously commenced, and pending as an action of ejectment at the time of the passage of the act of 1875, the repealing law did not affect the pending action, or the rights of the parties thereto, but it proceeds to tiial as if commenced as an ordinary action of ejectment. In the meantime the relation of the parties is not changed and the trial of the cause should have proceeded as in other cases. But in this remarkable trial the parties, by some sort of legal legerdemain, which we do not profess to comprehend, seem to have changed places and the regular order of proceeding was reversed. The defendant introduced his testimony first, and the plaintiff followed. The court evidently assumed that the burden of proof was on the defendant instead of the plaintiff. This was a gross error; for the plaintiff was bound, first, to make out his case and the title to the land being in issue, he must recover, if he recover at all, on the strength of his own title, and not on the weakness of the defendant’s, and this has been the settled rule for centuries.

Several instructions were asked for by the plaintiff, none of which were given.

The court then instructed the jury for plaintiff against the objections of the defendant, as follows :

Fifth — “That ejectment is a possessory action, and may be maintained for possession alone of real estate, provided the right and title to the possession is good and valid; and that the plaintiff need not be the owner of the land in fee simple.”

Sixth — “The defendant in this action having, by his answer, put the title of the land in issue, he must recover, if at all, on the strength of his title.”

Eighth — If the jury believe from the evidence that the greater part of the land in controversy is swamp and overflowed, and that James Stuart, the plaintiff’s intestate, entered this land in the proper land office in 1857, from the State of Arkansas, and held a certificate of purchase for the same, that any subsequent entry made by Cannon by reason of the Homestead Act or otherwise, would confer no title upon him, and the jury will find for the plaintiff.

Ninth and Tenth relate to the supposed requirements of the homestead law.

The court then instructed the jury on the part of the defendant as follows:

First — That under the pleadings in this cause, the jury are to try-the question of the legal title and right of possession, and if they find the legal title to the land in defendant at the time of the service of the writ, they will find for defendant.

Second — If you find from the testimony, that at the time of the commencement of this suit, the legal title to the land was in the United States, and that the United States have conveyed their title to defendant, you will find for him.

Third — That if the jury believe from the testimony, that before the plaintiff brought his suit, the defendant procured the certificate of title, they must find for the defendant.

Fourth — That if the jury believe from the testimony that the defendant had the certificate of title from the United States at the time the suit was brought, they must find for the defendant.

The third cause assigned in the motion for a new trial is to the effect ‘ ‘ that the court erred in giving the instructions asked for by the plaintiff.”

Recurring to these instructions our attention is arrested by the sixth, which is to the effect, “ the defendant in this action having by his answer put the title of the land in issue, he must recover, if at all, upon the strength of his title.”

This instruction reverses the law of the case, and throws the burden of proof on the defendant. It was gross error to so instruct the jury, and this taken in connection with the irregular and unusual manner of conducting the trial, was well cal■culated to mislead the jury, and is sufficient in itself to warrant a reversal of the judgment.

It is therefore, we think, unnecessary to comment further on •other instructions, some of which were proper, and others improper, orto go into, or discuss the merits of the cause as disclosed by the evidence adduced at the trial.

We advert, however, to another error of judgment at the trial :

The ninth cause assigned for a new trial is, “that the judgment of the court is not sustained by the verdict of the jury.”

Referring to the record we find that the verdict of the. jury was in the following words : “We, the jury, find a verdict for the plaintiff.” Whereupon the court rendered judgment in favor of the plaintiff for possession of the land in controversy, and for the sum of six hundred and twenty-one dollars ($621) for damages and costs. As there is no finding of damages by the verdict of the jury, the judgment for damages is wholly unwarranted, and for that cause, and to that extent the judgment would be reversible.

But as the Circuit Court erred in giving the plaintiff’s sixth instruction already adverted to, we are compelled to reverse its judgment, and remand the cause, with instructions to said court to grant the defendant a new trial, and proceed with the cause not inconsistent with this opinion.


author: ENGLISH, Ci-r. J.:

text:
    Neal vs. Speigle, adm’r.
    1. Vendor's Lien: Waived by taking mortgage.

    Where a vendor of land takes a mortgage upon it, to secure the purchase money, he thereby waives his equitable lien.
    2. VENDOR and Vendee: Rescission, cancellation of deed,’etc.

      A sold and conveyed land to B, taking from him a mortgage on the land for payment of the purchase money, and stipulating that if the purchase money was not promptly paid at maturity, B should reconvey the land to A, and A should deliver to him his note for the unpaid purchase money. After the purchase note matured, B being unable to pay, they agreed to rescind as agreed in the mortgage, by destroying the deed, mortgage and note, and to meet afterward and burn them. A died soon afterward and before the papers were destroyed. His administrator knowing of the agreement to rescind, afterward united with B in burning the deed, note and mortgage, B at the time concealing from him the fact that he had a few days before caused the deed to he recorded. B subsequently sold the land to D, who was cognizant of all these facts, for about one-third its value. Held: First, that the destruction of the papers did not destroy or -divest the title conveyed by them. Second — That actual notice of the unrecorded mortgage did not defeat the titfe of the subsequent purchaser. Third — But that the agreement of B to rescind precluded A from having the mortgage recorded, and equity would enforce the agreement to rescind, against him or his vendee who purchased with notice of the facts.
    APPEAL from Sebastian Circuit Court, Gr. D. in Chancery.
    Hon. W. W. Mansfield, Circuit Judge.

      J. II. Rogers, for appellant.
   ENGLISH, Ci-r. J.:

The material allegations of the bill in this case are :

That on the 20th October, 1871, Joseph E. Jones sold and conveyed to W. 13. Shaver the southeast quarter of the southeast quarter of Section 32, Township 7 north, Range 29 west, for the consideration of $500, and Shaver conveyed to him Lot No. 1, Section 6, Township 6 north, Range 29 west, forty-seven acres, in payment of $200 of the purchase money, and for the remaining $300 gave him a note payable 25th December, 1872, bearing 10 per cent, interest. To secure the payment of the note', Shaver executed to Jones a mortgage back on the tract sold and conveyed by Jones to him, which contained a provision that if Shaver should fail or be unable to meet said note promptly at maturity, then and in that event the trade was to be cancelled, so far as that Shaver should reconvey to Jones the land, and Jones should deliver up to him the note; but for the use, occupation and profits of the land, Jones was to retain the tract conveyed by Shaver to him.

That in the month of January, 1873, after the maturity of the note, Jones was taken seriously ill at the house of L. J. Speigle, and during his illness Shaver went to see him, and expressing to him his inability to pay the note, proposed to him to rescind the trade according to the requirements of the mortgage, which was then and there agreed upon by the parties. But as Shaver did not have with him the deed to the land executed to him by Jones, it was definitely agreed between them that at some future day, not far distant, they would meet and rescind said sale according to the terms of the mortgage ; and it was further agreed between them that as the deed and mortgage had not been admitted to record, a destruction of them and the note would fully carry out the requirements of the mortgage for the recision of the sale ; and Jones expressed to Speigle his wish that this agreement with Shaver should be fully carried out, and the sale of the land rescinded according the terms ol the mortgage.

That Jones did not recover from his illness, but died about the 30th of January, 1873, and Speigle was appointed his administrator by the Probate Court of Sebastian County, Greenwood District, where the parties resided and the land was situated.

That on the 5th of February, 1873, a few days after the death of Jones, and after the grant of letters of administration upon his estate to Speigle, Shaver, with intent to cheat and defraud the creditors and heirs of Jones, filed and caused to be recorded in the Recorder’s office at Greenwood, the deed executed by Jones to him for said tract of land.

That a few days after tbe recording of the deed, Shaver came to the house of Speigle and stated the agreement between him and Jones to rescind the contract of sale by the destruction of the deed, mortgage and note, and as the circumstances and agreement were well known to Speigle, and believing it to be right, he consented to carry out said agreement, and upon his part consigned to the flames the mortgage and note, and Shaver on his part burned the deed, Speigle not knowing at the time time that the deed had been recorded.

That John Neal, the brother-in-law of Shaver, and who was his adviser in this fraudulent act, claimed to be the owner of the laud by purchase and conveyance from Shaver, and that he purchased with full notice of the above facts and circumstances, and was not an innocent purchaser.

The bill was filed by Speigle as administrator of Jones, against Shaver and Neal, in the Circuit Court of Sebastian County, Greenwood District, and after making, in substance, the above allegations, prayed a forclosure of the mortgage, if the court could not decree a rescission of the sale agreed upon, and cancellation of the fraudulent registration, deed, etc.

Shaver did not answer the bill, and a decree, by default, was entered against him.

Neal, in his answer, states that he purchased the land on the 11th of March, 1873, of Shaver, who ¡was then in possession of it, for $200, and that by deed of that date, Shaver conveyed the land to him.

He denies that he was the adviser of Shaver in the fraudulent matters alleged in the bill, and claims to be an innocent purchaser, etc.

The depositions read- upon the hearing are not copied in the transcript, but a bill of exceptions taken by Neal sets out what was proven by the parties. It appears from it that the plaintiff proved all and singular the allegations of the bill, except the allegation that Neal was the adviser of Shaver in the fraudulent matters alleged. Plaintiff also proved that Neal had notice before Shaver sold and conveyed to him the land, of all the alleged transactions between plaintiff and Shaver, including the execution of the note for purchase money and the mortgage to secure’ the same, etc. It was also proven that the land was well worth $300, and that Neal in fact paid Shaver but $100 for it, having purchased of him another tract at the same time, which was included in the deed from Shaver to Neal; and that Shaver was in possession of the land when he sold it to Neal.

The court rendered a decree against Shaver for the amount of the $300 note and interest, and condemned the land to be sold to satisfy the decree, and Neal appealed to this court.

I. Had Jones merely sold and conveyed the laud to Shaver and taken a note for the unpaid purchase money, he would have had ap equitable vendor’s lien upon the land for the payment of the note, and appellant having purchased the land of Shaver with notice that the purchase money was not paid, would have taken the land subject to the vendor’s equitable lien.

But Jones took a mortgage back from Shaver upon the land to secure the payment of the purchase money note, and thereby waived his equitable lien, and had to rely upon the mortgage. 1 Jones on Mortgages, sec. 207, etc.; Bispham Eq., sec. 355; Fish v. Howland, 1 Paige, chap. 30: Young v. Wood et al., 11 B. Mon., 128; Mattix v. Weand et al., 19 Ind., 151; Harris v. Harlan, 14 Ib., 434; Shelby v. Perrin, 18 Texas, 515; Hadley et al. v. Pickett, 25 Ind., 450; Little et al. v. Brown, 2 Leigh., 353; Mims v. Macon et al., 3 Kelly, 343.

II. At the time the deed and mortgage back were burned, Jones being dead, the legal title to the land was in his heirs at law, by virtue of the mortgage, and the equitable title was in Shaver, and the destruction of the deed did not divest Shaver of his title and vest it in the heirs of Jones. The legal existence of the deed and mortgage continued, though the papers on which they were written were burned. Strawn v. Norris et al., 21 Ark., 80.

III. After the title papers were burned, Shaver sold and, conveyed the land to appellant, Neal. If there was nothing in the case but the fact that appellant had notice, at the time he purchased the land, of the existence of the unrecorded and. unsatisfied mortgage, he would have taken the land discharged of the mortgage: because, under repeated decisions of this court, construing the statute providing for the registration of' mortgages, (Gantt’s Digest, chap. 98) actual notice of an unrecorded mortgage does not defeat the title of a subsequent-purchaser. Main v. Alexander, 9 Ark., 112; Jacoway v. Gault, 20 Ark., 190; Hannah v. Carrington, 18 Ib., 105; Carnall v. Du Val, adm’r, 22 Ib., 136; Jarratt et al. v. McDaniel et al., 32 Ib., 602.

But there is more in this case than mere notice of an unrecorded mortgage. There was a stipulation in the mortgage, that if Shaver should fail or be unable to pay the note secured by the moi'tgage promptly at its maturity, the contract of sale should be rescinded so far as that Shaver should reconvey the land to Jones, and he should deliver up to Shaver the note. After the maturity of the note, the parties were together, and Shaver expressing his inability to pay the note, the parties mutually agreed that as the deed and mortgage had not been put upon the public records, they would rescind the sale, as provided for by the mortgage, by burning the deed, mortgage and note, but inasmuch as Shaver had not the deed with him, the parties were to meet again soon thereafter, and comply with this agreement. But for this agreement, Jones acting as a prudent man would ordinarily act, might have protected himself against a subsequent conveyance of the land by Shaver, by causing the mortgage to be recorded. But the death of Jones prevented the subsequent meeting of the parties. A few days after the death of Jones, Shaver went to the house of -Speigle, who had become his administrator, and proposed to burn the title papers and note in compliance with the agreement between him and Jones, and Speigle having been present when the agreement was made, and believing it to be right, consigned the mortgage and note to the flames, and Shaver put the deed in the fire in his presence. But for this, Spiegle might, and it would have been his duty as an administrator, to cause the mortgage to be recorded for the protection of the estate which he represented. But the conduct of Shaver deceived him, and induced him to burn the mortgage, and thereby put it out of his power to cause it to be recorded without the trouble and expense of reproducing it.

After the death of Jones, and before Shaver went to Spei-gle to induce him to burn the mortgage and note, he caused his deed to be recorded, and concealed this fact from Spiegle when he induced him to consign them to the flames, and burned the original deed in his presence. This was an ugly fraud. After having so deceived and deluded Spiegle, he sold and conveyed the land to his brother-in-law, the appellant, who, according to the bill of exceptions, had full knowledge of all of the above facts, for one-third of its value. A court of equity would not have permitted Shaver to take advantage of the fraudulent registration of his deed, but would have opened the agreement upon which the mortgage, note and deed were burned. Nor can the appellant, in equity and good conscience, be allowed to avail himself of a fraud of which he had full knowledge, and which he aided Shaver in attempting to perpetrate by purchasing the land of him.

But we do not think the court below should have rendered a decree against Shaver for the amount of the note and interest to the date of the decree, and condemned the laud to be sold to satisfy the decree, but should have enforced the agree-riient between the parties upon which the title papers and note were burned.

The decree must be reversed, and a decree entered here can-celling the deed from Jones to Shaver and its fraudulent registration, and the deed from Shaver to appellant so far as the land in question is concerned, and the legal title to the land will stand in the heirs at law of Jones, subject to the control which the statute gives of it to his administrator as-assets, etc.

The decree of the court below for costs against Shaver and appellant will not be disturbed.