text:
    Matthews vs. Morris.
    1. Jurisdiction or Justice or the Peace. .
    In an action before a justice of the peace on an alleged contract for rent, the defendant cannot defeat the jurisdiction by controverting the plaintiff’s title to the land. »
    2. Consideration.
    An agreement to forbear proceedings is a valid consideration for a promise, though the claim may be doubtful.
    a. Construction or Contract.
    A purchased laud at tax sale, which was in the possession of B. The period for redemption expired the 10th of June. In May, B requested A to extend the time for redemption until the following fall, and told A if he did not redeem by the 10th of June, he would be willing to pay rent for the year, and thereupon was permitted to occupy the land: Held, that B was bound, under the agreement, to pay A rent for the entire year.
    APPEAL from Phillips Circuit Court.
    Hon. J. N. Cypert, Circuit Judge. •

      Palmer, for appellant.

      Tapp an & Hornor, contra.

   English, Ch. J.:

Wm. I). Morris sued George W. Matthews before a justice of the peace of Phillips County, on a claim of $125 for rent of about thirty acres of cleared land, for the year 1875, on a tract known as the Bailey place, described as the northwest quarter .section 19, township 1 south, range 2 east, etc. Upon an affidavit in support of the demand, and that defendant had removed part of the crop from the premises, an attachment ivas issued, .and levied on corn and cotton grown on the place.

• The defense of the defendant was, that the laud belonged to his wife, and that he had not rented it of the plaintiff — was not his tenant.

• On a trial before the justice, judgment was given for defendant, and plaintiff appealed to the Circuit Court.

The canse was tried before the court, sitting as a jury (19th November, 1875), and finding and judgment for plaintiff for the amount of his claim, motion for new trial overruled, bill of exceptions, and appeal by defendant.

The appellee, Morris, was the only witness examined on the' trial.

The substance of his testimony, as given upon his entire examination, is, that one John B. Bailey was the former owner of the land, and died on the place; that appellant married his widow in December, 1870, and moved on the place.

That the land was sold for taxes 10th of June, 1873; appellee held the certificate of purchase, and the time for redemption was out 10th June, 1875.

In May, 1875, appellant- came to appellee, and wanted to know if he would wait until fall for him to redeem the land. Appellee told him that the time allowed by law to redeem would be out on the 10th of June, and he did not see how he could wait until fall. Appellant insisted on his waiting until fall, and said he had been advised by lawyers that, if he could make that arrangement, it would be all right. Appellee then asked him if he did not redeem the land by the 10th of June, if he would be willing to pay him rent for that year. Appellee replied that he would; that he knew what the law was, and expected to pay appellant rent if he did not redeem by the 10th of June.

Nothing more was said at that time about the rent. Appellee took it for granted that if appellant did not redeem the land by the 10th of June, he would be willing to pay him customary rent.

Appellant failed to redeem the land 10th June, but appellee brought no suit for possession. The promise of appellant to pay rent prevented appellee from bringing suit for possession. The rent was worth $125. After appellant had two bales of cotton picked out and at the gin, appellee went to him, and asked him if he would pay the rent, as he had promised to do ? To which he replied that he would not, unless appellee could make it by law. Fie had removed part of the crop from the place, without the consent of appellee, before this suit was commenced.

On the cross-examination of appellee, at the instance of .appellant, he produced the tax deed, under which he claimed title to the land.

Appellant then moved the court to dismiss the case for want of jurisdiction, which motion the court overruled; but excluded the deed, and did not consider it as evidence in the cause.

The court found the facts proven to be .•

“That the defendant promised, if he did not redeem the land known as the Bailey place (here describing it as in the evidence) from tax sale by or before the 10th day of June, 1875, in consideration of the plaintiff’s forbearance to sue him, to pay to plaintiff the customary rent for said place for the year 1875. That the plaintiff did forbear to bring'suit for possession of said place under said agreement. That the value of the rent was the sum of $125, and that the same was a lien on the property attached in the suit.”

The court declared the law applicable to the facts proven to be:

“ That a promise of forbearance to sue for possession of land on the part of plaintiff, was a sufficient consideration to support a promise on the part of defendant to pay rent for the premises,”

The grounds of the motion for a new trial are :

First — That the court erred in refusing to dismiss the cause for want of jurisdiction.

Second — In excluding the tax deed, offered in evidence by defendant on cross-examination of plaintiff.

Third — In the finding of the facts.

Fourth — In the declaration of law.

Fifth — Finding and judgment contrary to law and evidence.

First — As to the question of jurisdiction.

In Fitzgerald et al. v. Beebe, 7 Ark. (2 Eng.), 310, it was held, that a justice of the peace had no jurisdiction in a suit for use and occupation, where the title to the land was drawn in question ; and the justice having- no jurisdiction, the Circuit Court had none on appeal.

There no contract for rent, express or implied, was shown. The relation of landlord and tenant between plaintiff and defendant was not proven. Plaintiff relied on title deeds to show his right to recover rent, and defendant sought to introduce title in others to defeat the action.

In Thruston et al. v. Hinds, 8 Ark. (3 Eng.), 118, held, that where there is no controversy as to title, in an action for use and .occupation, it is not essential to the jurisdiction of the justice of the peace, that there should be an express agreement or contract for rent; that the action would lie upon an implied, as well as an express agreement.

The authorities were reviewed by Mr. Justice. Walker, in Byrd, use, etc., v. Chase, 10 Ark. (5 Eng.) 602, and it was decided that, to maintain assumpsit for use and occupation, the relation of landlord and tenant must be shown to exist.

In this case, the appellee did not introduce and rely upon his title to the land to recover in the suit, but relied upon a contract for rent. There was some evidence conducing to prove that the relation of landlord and tenant existed between him and appellant ; that appellant agreed to pay him rent if he did not redeem the land by the 10th of* June ; that he failed to redeem, and continued in possession of the land, etc. Of the weight and sufficiency of the evidence to prove the contract for rent, it wan the province of the court below, sitting as a jury, to judge.

On cross-examination of appellee, at the instance of* appellant, he produced his tax deed for the land, and, upon its mere production, appellant moved to dismiss the suit for want of jurisdiction. Had the court sustained the motion, it would have utterly disregarded the evidence of the appellee conducing to prove the contract for rent. The appellant could not defeat the jurisdiction of the court by merely thrusting a deed into the case, and the court properly overruled the motion to dismiss.

Second — As to the exclusion of the tax deed.

The deed, which is set out in the bill of exceptions, recites that the land was sold by the collector on the 10th June, 1873, for unpaid taxes, etc., of 1872-, and purchased by Sam. P. Delatour, who obtained a certificate of purchase, and assigned it to W. E. Babcock, and that he assigned it to appellee, and then follow words granting the land to him, etc.

The counsel for appellant submits, that if this deed had been admitted in evidence, it would have shown that appellee had no right to recover any rent for the year 1875.

It is true that the deed bears date 5th of October, 1875, which was about the time the suit was commenced. It is also true, that if the appellant had relied upon this deed, or any other deed, no matter when dated, to recover rent in this suit, it would have been unavailing; for, as above shown, it must be proven in this form of action, that the relation of landlord and tenant existed between the parties, or that there was a contract, or agreement, express or implied, to pay rent, to entitle the plaintiff to recover.

Had there been no contract for rent between the parties, the appellee might, perhaps, have obtained the tax deed at any time after the 10th of June, 1875, when, it seems, the time for redemption was out, and brought ejectment for the land against appellant, and recovei’ed rent as an incident; and, in such action, the tax deed, if the sale was valid, might have been availing.

But here the appellee relied upon a contract for rent, and not upon the deed. He testified, in effect, that he held the certificate of purchase in May, 1875, when the contract for rent was made; that the time for redemption was out 10th June; that appellant agreed to pay him rent for that year if he did not redeem the land by that time; that he failed to redeem, and that appellant forbore to bring suit to dispossess him because of this agreement.

Had the tax deed been admitted in evidence, there was nothing on its face to contradict or disparage the testimony of appellee.

Third — As to the court’s finding of facts :

The court, in its brief statement of its conclusions upon the facts in evidence (Digest, sec. 4686), seems to have placed the consideration of the promise of appellant to pay rent solely upon the forbearance of appellee to sue for possession.

This was a narrow view of the evidence, for it is manifest that, whilst the forbearance of appellee to Sue for possession may have been an element in the consideration for the promise of appellant to pay rent, the use and occupation of the land was the greater element in the consideration for the promise.

But the placing of the right of appellee to recover rent upon each narrow ground, when the court would have been warranted by the evidence to place it upon broader ground, was'not an error prejudicial to appellant.

. Fourth — As to the declaration of law.

It is true that an arrangement to forbear proceedings, for a time, is a valid consideration for a promise, though the claim may be doubtful. 1 Parsons on Contracts (5 ed.), and notes, p. 440-1.

But the court might well have gone further and declared the law to be that the agreement of appellee that, appellant might occupy the land after the time for redemption was out, was a valid consideration for his promise to pay rent.

Fifth — As to the finding of the court being contrary to law and evidence, etc.

The finding of the court, sitting as a jury, upon all of thevidence, is, as above indicated, like, and in the place of tin-verdict of a jury.

That there was some evidence to support this finding, we think very clear.

We infer that the court found in favor of appellee for the value of the rent of the land for the whole of the year 1875.

Had the appellee made no agreement with appellant, and taker out his tax deed 10th of June, and brought ejectment for the land, he could not have recovered rent for so much of the rear-as had transpired before the 10th of June.

But the evidence conduces to prove that appellant agreed that if he did not redeem the land by the 10th of June, he would pas-rent for the year 1875, and that the rent was worth $125, tin, sum assessed by the court. It may have been a hard bargain, 'but he had the right to make it, and it is not shown that he was incomptent to contract. Because of this agreement he was permitted to occupy the land after the time for redemption expired,, and, after this agreement, the appellee could not legally have 'dispossessed him until after the expiración of the year. But, i; this agreement had not been made, it might have been in th*: power of appellee to dispossess him during the cropping season,..

It is true this suit was commenced before the expiration of th** year, and perhaps before the rent was due, but this the statute authorized, on the affidavit made by appellee. Digest, sec. 4102..

Upon the whole record, we affirm the judgment.


source: Caselaw Access Project

author: WALKER, J.:

license: Public Domain

text:
    Williams et al. vs. Ewing & Fanning.
    1. Coxstrwtvie Service: Appearance, etc.

    A warning- order published against a minor defendant was not entirely definite as to the place at which he was warned to appear. A guardian ml litem. was appointed by the court and filed an answer for the minor; hold, the notice and appearance were sufficient to bind him.
    Attorney ai> litem: Need not be appointed for minors.

    The provisions of the statute in regard to the appointment of an attorney for defendants who are constructively served, does not apply to minors, the appointment of a guardian ad litem is sufficient.
    Pkooueihxg to surjeot assets descended: Nature, jurisdiction, etc.

    A suit to subject assets descended to tiie heir to the payment of a debt of the ancestor, is a proceeding in, ram, and must be prosecuted in the jurisdiction in which the property is situated, by equitable proceedings.
    4.---: Parlies.

    Jin such a proceeding the heir is the only proper party.
    I.-- — : Pleading.

    In a proceeding to subject land descended to the heir, it should be described in tire complaint so as to enable the court to identify it in.the decree; but when tire court is enabled, by the evidence, to lay hold of the particular-land, the finding will aid the defective description in the pleading, and sustain the decree.
    R. ¡Sureties: Contribution from estate of cosurety.

      A, B and 0 were co-sureties, 0 died, and A and B were forced to pay the debt after the administration on the estate of C had been settled, and more than two years after the grant of letters; held, that they could subject assets descended to the heir, to contribution.
    ?. Guardian ad litem:
    l.s not entitled to compensation, except when appointed upon application of the plaintiff under section 4502, Gantt’s Digest, when the plaintiff is required to pay a reasonable compensation.
    •H, Heir: Personal liability of:

    The heir to whom assets have descended, is not personally liable for the debts of tho ancestor, beyond the value of the estate received by him.
    fl. Judgment on constructive service.

    Personal judgment cannot be rendered against a defendant constructively served with notice.
    .10. .Judicial sale:

    Must be on a credit of not less than three nor more than six months.

      APPEAL from Jefferson Circuit Court in Chancery.
    Hon. Read Fletcher, Special Judge.

      Gallagher & Nexoton, for* appellants.

      Garland & Gockrill, contra.

   WALKER, J.:

John H. Ewing and Talbot Fanning filed their bill in the Jefferson Circuit Court against Ann M. Williams, Beaver D. Williams, John Waters, a minor, Marcus L. Bell, administrator, with the will annexed of John Waters, deceased, in which they state that on the 1st day of July, 1858, Alexander Fall executed his bill single with the testator John Waters, deceased, and plaintiffs, as securities, payable to Eliza P. Wilson, twelve months after date, for $10,000 — that their co-security, John Waters, died in 1867, in the county of Jefferson, Arkansas, having made a will which was duly probated; that on the 18th of February, 1867, Robert W. Walker was appointed administrator of said Waters' estate; that soon thereafter Walker died, and Marcus L. Bell, on the 19th of February, 1868, was appointed administrator de bonis non of said estate, and is still administrator thereof. That after the execution of the note aforesaid Eliza P. Wilson died, and her legal representatives brought suit against plaintiffs on said note, and on the 12th day of March, 1872, obtained judgment against them for the sum of $5,991.71, the balance due on said note, after payments made thereon by Fall, the principal debtor. That Fall's estate was insolvent; their co-security, Waters, paid no part of said debt, but that plaintiffs, as such securities, had been compelled to pay, and did pay the sum of $5,991.71, so recovered against them; that one-third of such amount, to-wifc, the sum of $1,997.14, was due to them from the estate of their co-security Waters, that Waters' estate had been settled and his debts paid off, leaving $40,000 -or $50,000 worth of land, and $5,000 in money, which passed into the hands of the minor defendant, John Waters, as heir at law of said estate. That Ann M., the widow of Waters, had married tlxe defendant Williams, and renounced the provisions of the will of her deceased husbaxxd, and had dower assigned her.

Plaintiffs pray that a decree may be rendered against the heir, the minor defendant, for so much of said security debt paid by them as is equitably due against the estate of their co-security; that a lien be declared in their favor, on the lands which descended to the heir, and that so much thereof as may be necessary be sold to pay the same.

Willianxs and wife answer and deny all knowledge of the plaintiff's denxand, and as a defense insist upon the statute of non clainx of two years as a bar to plaintiffs' right of action.

Defendant Bell also answered and interposes the. same defense ; says that the estate has been settled, and the balance of $5,000, in money, and the lands which descended to the minor defendant, placed in his possession.

The other defendant, Johix Waters, appeared by guardiaxx ad litem, who interposed a general answer denying allegations, and requiring strict proof.

.The case was submitted to the court on the bill, answer, exhibits axxd evidence.

The court found that all the matex’ial allegations in plaintiff’s bill were true. That John Waters xvas the son and heir at law of testator; that $40,000 or $50,000 worth of land situated in Jefferson County, Arkansas, descended from Johix Waters, the father, to his minor son John, the defendant.

Upon this finding the decree was rendered in favor of each of the plaintiffs for $998.07, with costs, and after day given, that the lands be sold for cash in hand to pay the same. Defendant appealed to this court.

It is not often that we find a clearer case of equity made than the one here presented. There were three securities, one of them died without having paid any part of the security debt. It is equitable and just that the estate of the deceased security should be held responsible for the payment of his part of the security debt.

The claim of plaintiffs having matured after administration c-losed, they do not seek to disturb its settlement, or contest with creditors for satisfaction, but ask payment out of the estate which has descended to the heiz-, and which is equitably bound for the payment of the ancestor’s debts.

Counsel for the appellants have raised several questions touching the regularity of the proceedings prior to the rendering of the final decree, as well as others which affect the decree itself.

First, it' is objected that the decree was taken without a valid constructive notice to the minor defendant, a non-resident. . We find upon the record the warning order, in the usual form, and executed by publication, verified by the usual certificates. The order itself is, perhaps, not strictly as definite as it might have been, as to the place where defendant was warned to appear. We find, too, that a guardian ad litem was appointed by the coui’t; that he accepted the appointment, and answered for the infant defendant. We think this notice and appearance sufficient.

It is objected, however, that no valid decree could be rendered until an attorney to defezid for the infant had been appointed, and, in support of this position, we are' referred to sec. 4727, Gantt’s Digest, which provides that before judgmezit is z-endered against a defendant constructively served, and who does not appear, it shall be necessai-y to appoint azi attorney to defend for him. The attorney is required to be appointed sixty days before judgment is l-enderecl against such defendant, whose duty it is made to inform the defendant that suit is brought against him, and to advise him of such matters as may be useful in preparing his defense. We think this section, when properly construed, applies only to adult non-resident defendants. There could be no necessity for the appointment of such attorney to defend for minor defendants, because it is provided by see. 4493, Gantt’s Digest, that infant defendants shall appear by guardian. Special provision is made for such appointments, the answer is formal, admits nothing, and no decree can be taken against the infant unless upon full proof; the appointment of an attorney could add nothing to his defense, and the facts required to be communicated by the attorney would be worthless if communicated to an infant. We must hold the objection not well taken.

Having disposed of these, preliminary questions, none of which meet the merits of the - case, we will proceed, briefly, to review the case as presented by the pleadings:

This suit was brought to enforce payment of a debt which matured after the death of the testator, and after the expiration of two years*from the grant of letters of administration.

The administration had been closed, and the residue of the estate, consisting of land and money, passed to the heir at law of ¿he etstator; the plaintiffs, holding this debt, pursue the estate in the hands of the heir, and ask to subject it to the payment of their debt. At the common law no such right was given. Chancellor Kent, in his Commentaries, vol. 4, sec. 419, says: It is a hard and unjust rule of the common law, that lands descended or devised, were not liable for simple contract debts, and such seems to have been the opinion of the Legislatures of nearly all of the American States; most of them have passed statutes in mitigar-ion of this rule. By our statute, sec. 68, Gantt’s Digest, lands are made assets in the hands of an executor or administrator for the payment of debts, and, when they descended to the heir, the equitable right to subject them to the payment of debts followed; indeed, it is said by Mr. Rawle, that a lien is created upon the property, which follows it into the hands of the heir. Rawle on Covenants, p. 546.

In this instance it seems that the plaintiffs have asserted their right to satisfaction, not alone'out of the land, but also out of the $5,000 paid to the heir as part of the testator’s estate. If money alone had been received by this heir, we are not prepared to say that an action could have been maintained against him in Arkansas, he being a resident of Tennessee. • The money being personalty, passes with him to his place of domicil, and, in such case, suit must, necessarily, be brought where personal service can be. had on the defendant; but, as in this action the claim is for satisfaction out of both land and money, the action is properly brought in the county where the land lies, it is in effect a proceeding in rein, and must be had where the court which renders the judgment may subject the property to its satisfaction.

The right to recover is in equity, so held before the passage of our statute, which expressly confers power to sue the heir or devisee to enforce the payment of a debt due by the'devisor or ancestor. Walker v. Byers, 14 Ark., 246; Bennett v. Davidson, 15 Ark., 412.

Since these, opinions were delivered a statute has been enacted, sec. 153, Gantt’s Digest, which provides that legatees and distributees shall be liable to a direct action by a creditor to the extent of the estate received by each of them, notwithstanding the failure of a creditor to appear, and the discharge of the personal representatives..

The right of action to the plaintiffs was properly against the .. heir, for satisfaction out ©f the estate which passed into his hands,. The heir was the only proper party defendant to the suit. Bel), the administrator, had closed his administration, and turned over the estate to the heir. Williams and wife had received their dower, and had no interest in the estate sought to be subjected, to the payment of their debt, and were, therefore, not necessary parties defendant; there is no prayer for relief as against them, and the decree was properly taken against the heir.

As the action was brought to subject lands to the payments of debts, they should have been so described in the complaint, by legal subdivisions, as to distinguish them, and to enable the court to lay hold of them in rendering its decree. A description of the estate, as $40,000 or $50,000 worth of land, was too indefinite, but as the evidence introduced enabled the court to find the particular tracts, or subdivisions, which descended to the heir, the allegation is aided by this finding, and the necessary certainty furnished to enable the court to render a decree.

Upon the pleadings and facts found by the court, we think the plaintiffs entitled to the relief prayed, and to this extent the finding and judgment of the court should stand, but as we find several errors in the decree as rendered, it must he reversed and set aside, and a decree rendered as we shall indicate as follows:

The charge of $50 as a fee to the guardian ad litem was improperly taxed; his appointment was that of guardian ad litem ; he accepted the appointment, and made his answer as such; the answer is formal, and there is no statute authorizing an allowance for such services. Gantt’s Digest, sec. 4502, refers alone to appointments made upon application of the plaintiff who is required to pay a reasonable compensation for such service. The court also erred in rendering a personal judgment against the minor defendant on constructive service. The judgment should have been against the defendant for the sum ascertained to be due plaintiffs, to be paid out of the lands which came to the minor defendant by descent, and with an- order, after giving day for payment, for the sale of such estate, or so much thereof as might be necessary to pay the sum found due.

The heir is in no instance personally liable for the payment of a debt upon constructive notice, nor in a case like the present, beyond the value of the estate which came to him from his ancestor.

The court very properly gave to the defendant day for the payment of the money, before the day appointed for the sale of the property, but erred in directing the sale to be made for cash in hand; the sale should have been made upon a credit of not lees than three, nor more than six, months, as expressly provided in .section 4708, Gantt’s Digest.

Let the decree be reversed and set aside, the case remanded, and decree rendered for plaintiffs according to tne finding of the oourt upon the issues, and in other respects according to law, and not inconsistent with this opinion.


author: English, Ch. J.:

text:
    Perkins, adm’r, vs. DuVal, adm’r.
    S'jsatu'I’HS: Enactment of under the Constitution of 1868.
    The first section of an act of the Legislature entitled “An Act to enlarge the jurisdiction of Probate Courts,” approved the 16th of March, 1871, declares the subjects of which the Probate Court shall have jurisdiction; the second and third sections regulate the manner of taking an appeal to the Circuit Court: Held that they were not foreign to the subject indicated in the title to the act, or repugnant to section 22, article 5, of the Constitution of 1868, which provides that no act shall embrace more than one subject, which shall be embraced in its title. Neither was it repugnant to section 23, of said article, which provides that no law shall be revised, altered or amended by reference to its title only.
    APPEAL from Sebastian Circuit Court.
    Hon. Thomas H. Barnes, Special Judge.

      Wm. Walker, for appellant.

      Rose, eontre.

   English, Ch. J.:

■ On the 12th day of September, 1871, Ben. T. DuVal, as administrator of Marcellus DuVal, deceased, obtained the allowance and classification of a claim against the estate of Marshall Grimes, deceased, in the Probate Court of Sebastian County.

It seems that on the 4th of November, 1871, Charles Perkins, the administrator of the estate of Grimes, filed a transcript of the order of allowance in the office of the Clerk of the Circuit Court of Sebastian County, Fort Smith District, upon which the clerk of the court made the following endorsement:

“On filing the within transcript in my office, an appeal is hereby allowed to the Circuit Court, this 4th day of November, 1871.”

The case seems to have been placed on the docket, as upon appeal from the Probate Court, and at a subsequent term, Du-Val filed a motion to dismiss the appeal, “because said appellant did not make an affidavit that the appeal taken by him was not made for delay or vexation, but that justice might be done, and file the said affidavit with the clerk of the court at the time of taking said appeal, as required by law; and because the court had no jurisdiction of the, cause.”

The court sustained the motion, dismissed the appeal, and struck the cause from the docket for wapt of jurisdiction.

Perkins excepted to the decision of the court, took a bill of exceptions, setting out the facts, and appealed to this court.

Section 3, of the act of March 16th, 1871, (Acts of 1871, p. 18) required a party appealing from a judgment of the Probate to the Circuit Court, to file with the clerk of the Circuit Court an affidavit that the appeal was not taken for delay or vexation, but that justice might be done. This act was made, by its last section, to take effect thirty days after its passage, and had been in force more than five months when the appeal in this case was taken from the Probate to the Circuit Court.

The filing of the affidavit required by the statute (unless waived by appellee, Wilson v. Dean, 10 Ark., 308) was a prerequisite to the allowance of the appeal, and appellant having failed to file such affidavit, the appeal was not perfected, and the Circuit Court acquired no jurisdiction of the cause. Town v. Wilson, 7 Ark., 386; McJenkin v. State Bank, id., 232; State Bank v. Hinchcliffe, 4 Ark., 444.

The counsel for appellant submits that the act of March 16th, 1871, is repugnant to sections 22 and 23, article 5, of the Constitution of 1868, which was in force when the act was passed.

Section 22 provides that: “No act shall embrace more than one subject, which shall be embraced in its title.”

In Fletcher v. Oliver, 25 Ark., 298, the Chief Justice, delivering the opinion of the court, said: “The object of this clause of the Constitution was to prevent combinations, by which various and distinct subjects of legislation should gain support, which they could not if presented separately.”

And in Palmore, v. The State, 29 Ark., 252, the special judge (Hon. Sam. W. Wjujams) commenting on the same clause of the Constitution, said: “The Constitution required singleness of subject, to prevent omnibus bills, by which various distinct schemes could be united in one bill, and the like, and the friends of separate measures be thus united to carry through measures, which, alone, could not be passed.”

The title to-the act now in question is: “An act to enlargethe ■jurisdiction of the Prohate Courts.”

Section 1 declares the subject matters of which the Probate Courts shall have jurisdiction, and sections 2 and 3 prescribe the manner in which appeals may be taken from the Probate to the Circuit Courts, and for trials de novo in the latter courts, etc.

The subject of legislation, as indicated in the title, was the jurisdiction of the Probate Courts, and the sections of the act prescribing the manner in which their exercise of that jurisdiction was to be reviewed by the Circuit Courts were not foreign, but germain to the subject of legislation indicated in the title of the act.

Section 23, of article 5, of the Constitution of 1868, declares that: “No law shall be revised, altered, or amended, by reference to its title only, but the act revised, and the section or sections of the act as altered or amended, shall be enacted and published at length.”

In Palmore v. The State, the special judge, commenting on this section of the Constitution, said: “Its object was to prevent that system of amendments, which, instead of inserting the amendment or alteration, together with so much of the old law ks was retained, provided, in terms directory, that a given law should not be amended as follows: In a given section or line strike out given words and insert others, leaving the court, by -„his direction, to make the amendment itself, and make a new law out of the two. This Constitutional provision intends to ■-.heck all that kind of legislation, and rccpiires the Legislature to give us, in the old and new put together, what the new law is Intended to be.”

A glance at the act of March 16th, 1871, will show Ihat it is not repugnant to the section of the Constitution in question as interpreted in the opinion quoted from.

The act does not revise, alter or amend any law by reference to its title, but it is a new act, declaring what subjects shall be within the jurisdiction of the Probate Courts, and regulating the manner of taking appeals from their judgments to the Circuit Courts, and the mode of trial, etc., on such appeals, matters that were in confusion under the Civil Code, as shown in Yoes, adm’r., v. Moore, & Kidd, adm’rs,, 29 Ark., 125.

Judgment affirmed.


text:
    Garrett vs. Williams et al.
    Tkndob’s Lien, Assionment, Evidence, etc.:
    A vendor of real estate executed a bond ibr title, taking' tlie vendee’s notes for the purchase money. These he afterward assigned, in the usual form, without any restriction. The assignee, after the payment, and without any consideration, executed an instrument releasing the assignor from personal liability by reason of the assignment. The evidence shows that he knew the estate of the vendee, who had died, to be insolvent, and took the notes, relying solely on the vendor’s lien. Held: That the release of the assignor from personal liability did not discharge the lien, or prevent it from passing to the assignee; that the intention of the parties might be shown by proof of the facts and circumstances attending the transaction.
    APPEAL from Jefferson Circuit Court in Chancery.
    Hon. J. A. Williams, Circuit Judge.

      Compton & .Parsons, and Bell for appellant.

      N. Carlton, contra.
   English, Ch. J.:

The case made by the bill and amendment is, in substance, as .follows:

On the 20th December, 1872, Marion W. Lewis and wife, Ellen W., sold to Lofton H. Nunn certain tracts of land situated in the counties of Jefferson and Arkansas, composing a plantation known as the Greenback Place,” for $30,000, of which sum $9,000 was paid in money and drafts, and Nunn executed to Ellen W. Lewis, for balance, of purchase money, two notes for $10,500 each, one payable 1st January, 1874, and the other 1st January, 1875, each bearing, on its face, interest at eiglit per cent, from date until paid.

Lewis and wife executed to Nunn a bond to make him a good and sufficient deed to the1 lands on full payment of the two notes, with interest from the 1st of February, 1873, the time when Nunn was to be let into possession of tbe lands, as recited in the bond.

The bond also recited that Lewis and wife had, on the 10th of March, 1865, executed a mortgage upon the same lands to Jesse K. Bell, which was held by Lewis G. Garrett (plaintiff in the bill), and upon which there was due a balance of $7,000 or $8,000, which Lewis and wife were to pay, and if they failed to do so, and suit should be brought on the mortgage, Nunn was authorized to pay the debt, and have a credit for the amount paid, on his note for purchase money first falling due.

Nunn went into possession of the lands, and afterwards, sometime in the year 1873, died intestate, and his widow, Annie H. Nunn, was appointed, and qualified, as administratrix of his estate.

Lewi» and wife, after his death, assigned the two notes for unpaid purchase money, for value, to Lewis G. Garrett, and executed and placed in his hands a deed conveying the lands to the administratrix and heirs at law of Nunn, to bo delivered to them on payment of the notes, etc.

After the notes were assigned to Garrett, Mrs. Nunn, as administratrix of the estate of her deceased husband, sold and conveyed the interest of the estate in the lands to "Wm. P. Williams, under an order of the Circuit Court oí Jefferson County, sitting in probate.

Part of the consideration of this sale by Mrs. Nunn to Williams, as recited in the deed of conveyance, was that he was do save the estate harmless and free from liability, as to the purchase money due and to become due from the estate upon the lands, etc. This deed bears date March 2d, 1874.

Garrett presented the notes, duly authenticated, to the administratrix of Nunn, for allowance, etc. The estate was insolvent.

Claiming that he, as assignee of the notes, had a lien on the lands to secure their payment, in the nature of a mortgage, he filed the bill in this case, on the chancery side of the Jefferson Circuit Court, to subject the lands to the payment of the notes, etc.

Lewis and wife, Mrs. Nunn, as the widow and administratrix of her deceased husband, his heirs at law, who were minors, and Williams, etc., were made defendants.

A formal answer was put in for the minor heirs, by a guardian ad litem, appointed to defend for them. Lewis and wife, Mrs. Nunn, as administratrix, etc., and Williams, answered, etc.

None of the defendants, except Williams, contested the right of Garrett to have the lands subjected to the payment of the notes, etc.

In his answer he admits that the notes were transferred to Garrett by Lewis and wife, on the 24th of January, 1874 (and not at the dates of the assignments), and charges that notwiihstanding the formal assignments on the backs of the notes, it was expressly understood and stipulated between Lewis and wife, and Garrett, as part of the contract of assignment and transfer, that the notes were assigned to Garrett, without any recourse whatever, either in law or equity, upon Lewis and wife, and he therefore denies that Garrett acquired any lien upon the lands for the payment of the notes by virtue of the assignments, etc.

On the final hearing of the cause (February, 1876) upon the pleadings and depositions, the court dismissed the bill for want of equity, and Garrett appealed to this court.

First — As to the facts relating to the assignment, etc.

'The assignments on the two notes, as they appear in the transcript, are alike, and in this form: “For value, we assign this note to L. G. GairrettF Signed by Lewis and wife. The assignment on the note due 1st of January, 1875, bears date December 1st, 1873, and the assignment on the note due 1st of January, 1874, is dated December 29th, 1873.

The depositions of Marion W. Lewis, Marcus L. Bell, and of appellant, Garrett, were taken and read upon the hearing.

Lewis states, in substance, the sale of the lands by himself and wife to Nunn, the taking of his two notes for $10,500 each for balance of purchase money, and the execution to him of the bond for title, etc.;' that Nunn went into possession of the lands, and continued in possession until his death, but made no payment upon the notes; that at the time of the sale to Nunn there was a mortgage on the lands, executed by himself and wife to Jesse K. Bell, for about $8,000 or $9,000, which had been assigned lo Garrett. Witness, anxious to collect the residue of purchase money, met with Garrett about the 24th of January, 1874, at Pine Bluff, and, after various negotiations, made a trade with him, by which witness paid him the amount of the mortgage, and he paid witness the balance of said notes, except about the sum of $2,800, which witness abated to effect the trade. Witness then transferred to him the two notes of Nunn given for purchase money of the lands. At the date of this transaction Garrett held one of the notes as collateral security for the payment of $1,000, which witness had formerly borrowed .of him. The other note was in the hands of Shryock & Rowland, of St. Louis, witness having placed it there as collateral security for about the sum of $3,000, which he had borrowed of them.

After the trade was made (in the office of M. L. Bell), Garrett stepped out of the office, and witness spoke to Bell, and said to him in effect: “I regard you as my attorney as much as Gen. Garrett’s, and I wish myself and wife to be released from all liability on account of the transfer of the notes, and that I wanted to endorse the notes without recourse on myself and wife. He replied that that could not be done without releasing Garrett’s lien on the lands, but that he would get Garrett to give me a paper releasing myself and wife ; and then and there drew up an agreement for Garrett to sign. In a few moments Garrett returned to the office, and he signed the paper prepared by Bell, and delivered it to me.”

A copy of this paper is made an exhibit to the deposition of the witness.

Witness did not endorse the notes at the time he sold them to Garrett. He had endorsed one of them when he hypothecated it to Shryock & Rowland for $3,000, and had endorsed the other note to Garrett when he borrowed from him the $1,000. His understanding was that the paper above referred to released himself'and wife from all recourse as assignors of the notes, but this matter was not mentioned pending the trade with Garrett. At the lime witness traded the notes to Garrett his understanding was that there was but little property belonging to the estate of Nunn, except the “Greenback Place,” and that the estate was largely indebted, and this induced him to make the trade with Garrett.

His understanding when he made the trade with Garrett was that the lien upon the lands was transferred with the notes, though nothing was said about it between himself and Garrett.

Witness delivered to Garrett, when he sold him the notes, a deed executed by himself and wife to the administratrix and heirs of Nunn for the lands, to be delivered by him to them on the payment of the notes.

Witness also gave to Garrett, at the time of the trade, an order on Shryock & Rowland to deliver to him the note they held, upon payment of a draft which witness had forwarded to them in payment of his indebtedness to them.

The paper referred to in, and made an exhibit to the deposition of Lewis follows:

“Whereas, I hold a note of M. W. Lewis’ for $10,000, dated in 1865, in favor of Jesse K. Bell, secured by mortgage, signed by M. W. Lewis and Ellen W. Lewis, on what is known as the “Greenback Plantation,” on which note and mortgage there is now due a balance'of $8,914. Now, I have this day purchased of M. W. Lewis two notes of L. H. Nunn, dated 20th Decemberj 1872, for $10,500 each, due in one and two years, with eight per cent, interest from date, and which are a lien on said Greenback plantation, and the said balance of the $10,000 note, and mortgage of $8,914, is a part of the purchase money which I pay for the said two notes of L. H. Nunn; and said M. W. Lewis and E. W. Lewis are hereby released from said notes personally, and I look to my lien upon the said plantation for my payment.
(Signed,) L. G. Garrett.”

January 24th, 1874.

Marcus L. Bell, in his deposition, after giving a history of the sale of the lands by Lewis and wife to Nunn, the taking of the two notes for balance of purchase money, the execution of the bond for title, etc., states, in substance, that he was present at the various times when Lewis and wife transferred the notes to Garrett ; that they were transferred on the respective dates as appears from the endorsements on the notes. They were transferred for their full value, the first one to pay what is known as the “Bell Mortgage” on the lands, which Garrett held, and for money paid at the time. The second note was transferred for cash value received. Witness was present and made the transfer from Lewis and wife to Garrett, as the attorney for both parties, by consent. It Avas distinctly understood, and agreed at the time of the transfer of said notes, that they were a lien upon the lands knoAvn as the “Greenback Plantation,” and LeAvis and wife transferred all their rights to Garrett, legal and equitable, and executed a deed for the lands, in due form of law, to the widow and heirs of Nunn, and Avhen the notes were finally transferred to Garrett, placed the deed in his hands to be delivered to them on payment of the notes. At the time of the agreement between Lewis and wife and Garrett to transfer the notes, the last named note Avas in St. Louis, in the hands of parties there, and was afterwards sent to witness, and a proper endorsement placed thereon, and the note delivered in accordance with the previous agreement. After the contract was made between Lewis and wife and Garrett for the assignment of the notes, and after Lewis and wife had given an order to Garrett for the note then in St. Louis, they requested Garrett to release them from liability as endorsers on the notes, stating that they were insolvent, and that the lands were amply sufficient to secure the notes. Garrett replied that he could not release them as endorsers; but, inasmuch as they were insolvent, and as a special favor to them, and without any further consideration, he would give them a statement in writing that he would not look' to them for payment of the notes as endorsers, but would look to the lands for payment, they being deemed ample security. It was well known to Lewis and wife and Garrett, at the time said transfer was made, that Nunn’s estate was wholly insolvent, and there was no security for said notes whatever, nor any means belonging to said estate, to pay the same, outside of the said lands, and Garrett, in purchasing said notes,’ relied entirely upon his lien upon said lands to secure the payment thereof.

Garrett testified, in substance, that he purchased the notes of Lewis and wife some time in January, 1874; that Nunn was dead, and he understood that his estate was insolvent, and that there was no other property to pay the notes except the lands for which they were executed, known as the “Greenback Plantation.” His understanding at the time he purchased the notes was that Lewis and wife were transferring to him, with the notes, their vendor’s lien upon the lands, otherwise he would- not have purchased them. It was part of the agreement, as he understood it, that the lien upon the lands was transferred with the notes, the estate of Nunn and Lewis and wife being insolvent. The first note was placed in his possession some time, probably twenty days, before he finally purchased the notes, and was endorsed by Lewis and wife. When the trade was finally made, about the 24th of January, 1874, Lewis informed him that the other note was in St. Louis, and gave him an order on Shryock & Rowland for the note, and the note was afterwards delivered to him duly endorsed by Lewis and wife.

After the trade was made, and the notes transferred, Lewis asked witness to release him from personal liability on the endorsement, and witness executed the paper attached to the deposition of Lewis.

No consideration was paid witness for the execution of this t instrument. It was no part of the contract for the transfer of the notes. It was executed at the request of, and as a favor to, Lewis, witness believing the lands good for the debt, and Lewis insolvent.

He purchased the ’notes at what he considered a discount of between $1,500 and $2,000.

Second — As to the law of the case.

It is well settled by the decisions of this court that where the vendor gives a bond to make title on the payment of notes given for the purchase money by the vendee, the transaction is a security for the debt, and the same in effect as the making of a deed, and taking a mortgage back to secure the payment of the notes; and that the assignment of a note, thus secured, carries the lien or security with it, as an incident to the debt. Smith v. Robinson et al., 13 Ark., 533; Moore and Cail, adm’rs, v. Anders, 14 Ark., 635; Campbell v. Rankin et al., 28 Ark., 405.

In Moore and Cail v. Anders, Chief Justice Watkins delivering the opinion of the court, said: Whenever we assimilate the sale of land, by means of a bond, etc., to make title on payment of the purchase money, to a conveyance, and mortgage back to secure the same end, the usual incidents of a mortgage attach to the transaction, and the rights of the parties growing out of it are to be governed by analogous rules. The weight of authority, no doubt, is that the equitable lien of the vendor (that is where a deed has been made acknowledging the payment of the purchase money) is personal to him, and is not, unless under some peculiar equitable circumstances, assignable, etc. But clearly the lien, under a bond for title on-payment of the purchase money, being expressly reserved by contract tantamount to a mortgage security for the benefit of the vendor, and the note for the purchase money transferable like any other chose in action made assignable by law, the assignment of the note tacitly carries with it the vendor’s lien by way of mortgage security, as an incident to the debt.”

The same learned judge further said in that case: “The right of a purchaser to a conveyance, depends upon the payment of the note by him, or by some one who has become subrogated to his rights (as was the case in Smith v. Robinson), and not upon the fact that the vendor has received the money upon the note, if it be still outstanding against the purchaser, and this would be so, though he had endorsed it without recourse, or though he should beconie discharged by the laches of the holder as at the law merchant, or by his failure to pursue the maker with due diligence to insolvency under the statute of assignments, or supposing the assignor’s liability upon the contract of assignment to become barred by limitation.”

There is much plausibility in the remarks, but the question whether the lien of the vendor passes to the assignee of the note for purchase money, where the vendor assigns it without recourse, was not before the court in Moore and Cail v. Anders.

But this question was before the court in Williams et al. v. Christian, 23 Ark., 256.

Christian sold lands to Hundley, took notes for the purchase money, and gave him a bond for title. 'Christian assigned the notes to Williams and others in payment of a-debt he owed them without any recourse upon them. Williams et al. filed a bill to enforce the vendor’s lien, etc. The bill charged that the assignment between Christian and the plaintiffs was that the vendor’s lien of Christian should be transferred with the notes, but this was strongly denied by the answer of Christian, was not sustained by proof, and was inconsistent with the terms of the assignment.

Upon the case thus made, Mr. Justice Fairchild delivering the opinion of the court, said: “We hold that the restricted assignment of the notes in this case does not transfer any lien upon the lands mentioned in the bill to plaintiffs, etc. The acceptance of the notes so assigned seems to us to imply a reliance upon the personal responsibility of the maker of the notes.”

In the ease now before us the assignments upon the notes were not restricted, but in the usual form, and' the evidence utterly forbids the implication that Garrett relied upon the personal responsibility of the maker of the notes, or the solvency of his estate, when he purchased the notes. It is incredible that he surrendered to Lewis and wife a debt of nearly $9,000, secured by a mortgage upon the lands senior to their lien, and paid them about $10,000 in money, for the notes of Nunn, relying upon the personal responsibility of the maker of the notes, whom he knew to be dead, and his estate insolvent.

In the paper by which Garrett released Lewis and wife from personal liability upon their endorsements, his attorney was careful to state that he looked to and relied on his lien upon the lands for payment of the notes, in order to preclude any implication to the contrary from such release.

The personal release of Lewis and wife from responsibility upon their endorsement, by Garrett, was in no way prejudicial to any legal or equitable rights of the representatives of Nunn, or of Williams, who purchased the lands of his administratrix, after the assignment of the notes to Garrett. The release of the wife, who perhaps was not legally responsible- upon her endorsement, and of the husband, who was insolvent, was of but little concern to Garrett, and certainly of none to Williams. It seems to have been1 made without consideration, and as a matter of favor to Lewis.

The counsel for appellee insists that Lewis and Avife haA’ing been paid their money on the notes, and released from recourse on their endorsements, their lien upon the lands Avas thereby absolutely extinguished, and could not pass to Garrett, though it may appear from the evidence that he contracted for the lien, and purchased the notes upon faith that the lien accompanied them into his hands.

Such Avould have been the law of the case had the lien-of LeAvis and Avife been merely equitable — that is, had they conveyed the lands to Nunn by absolute deed, reserving upon its face no lien upon' the lands for the payment of the notes giAren for the purchase money; and it is to that class of liens that most of the cases cited by counsel apply. Indeed avg have gone further, and held that such liens are personal to the vendor, and not assignable at all. Shall, adm’r., et al. v. Biscoe, 18 Ark., 162. Hecht v. Spears, 27 Ark., 230.

In all of the decisions of this court on the subject of vendor’s liens, the distinction betAveen the equitable lien of the vendor, and that retained by a reservation of the legal title has been kept in view'.

In Bernays et al. v. Feild et al., 29 Ark., Feild & Dolley holding title to the land, assigned a note for the purchase money to Benedict, Hall & Co., by which the vendor’s lien passed to them, and they aftenvards reassigned the note to Feild & Dolly without recourse, and the court held that title and the debt being again united in their hands, the lien revived in their favor, notwithstanding the decision in Williams et al. v. Christian.

In Giggsby v. Hair, 25 Ala., 331, the court said: “It is true, if a note (for purchase money) is assigned without recourse by the vendor, it amounts to an abandonment of the lien on his part, and his assignee can work out no equity to subject the land through him. But whether or not the parties intended to abandon such lien, is a matter of fact to be gathered from the evidence and the nature of the transaction.”

In this case it is impossible to avoid the conclusion, from the evidence, that Garrett contracted for and relied upon the vendors’ lien in purchasing the notes.

That the intention of the parties in such cases may be shown by proof of the facts and circumstances attending the transaction, is in accordance with the decision of this court in Lavender et al. v. Abbott, adm’r., 29 Ark., where it was held that it might be shown that the vendor did not intend to abandon his lien- by taking other security for the purchase money.

"Williams has no claim to be regarded as an innocent purchaser for value without notice, etc. When he purchased the lands of the administratrix of Nunn, the legal title was in Lewis and wife; their bond for title, reciting the notes for purchase money, was on the public records; he purchased only the interest of Nunn’s estate in the lands, and part of the consideration for his purchase, as recited in the deed executed to him by the administratrix, was that he was to protect the estate against the outstanding notes for purchase money, etc.

The decree of the court below must be reversed, and the cause remanded with instructions to it to render a decree in favor of appellant against the administratrix of Nunn for the amount of the two notes and interest, and condemn the lands to be sold for the satisfaction of the debt, etc.

The court will appoint a commissioner to sell the lands, on the usual public notice,, the sale to be on a credit of not less than three nor more than six months, and on the payment of the purchase money, and confirmation of the report of sale, the court will decree the title of the lands to the purchaser, and direct the commissioner to make him a deed.

Williams will have to the day fixed by the court for the sale, to redeem the lands, and if he redeem them by paying the decree, on report of the redemption to the court, he having made his answer a cross-bill praying to be protected in his title, etc., the court, upon his cross-bill, will decree the legal title of the lands to him.

Mrs. Nunn made her answer a cross-bill, praying that if she had to pay anything on the notes, out of the assets of Nunn’s estate, she might have a decree against Williams for the amount, under the provisions of the deed executed by her to him.

If Williams fails to redeem the lands, and if the lands fail to sell for enough to pay the decree, and if any sum is paid upon the decree by Mrs. Nunn as administratrix out of the assets of Nunn’s estate, the court can then consider and dispose of her claim to relief upon the cross-bill.

The costs of this court will be adjudged against Williams, he being the only party that contested the claim of appellant to a decree against the lands. ■


author: Walker, J.:

text:
    Allen vs. McGaughey et al.
    1. Reformation of Deed, Decree, etc.:
    A conveyed land in trust to secure a debt to B; by mistake a tract intended to be conveyed was omitted. The land was subsequently sold, under a decree in foreclosure of the deed of trust, and purchased by B; the mistake was carried into the decree and commissioner’s deed. B took possession of the entire tract, including the part omitted: Held, that B was entitled to have the decree and deeds reformed so as to embrace tl.e omitted tract, as against a judgment creditor, who had had it sold and bought it under an execution on his judgment.

      2. Execution Sams:
    One who buys at execution sale, is not an innocent purchaser without notice, he takes the estate subject to all equities existing against it at the time of the purchase.
    3. Admissions:
    An admission by a grantor, of a mistake in the deed, is competent evidence against a subsequent purchaser, under an execution against him.
    4. Execution Sale: Redemption.

    A purchaser at execution sale, who accepts money paid for the redemption of land, cannot compliin that the party redeeming had no authority from the defendant in execution, to redeem.
    5. --: Et/ed of MedPiiijrtion.

    Redemption by the judgment debtor, of land sold under execution, restores the lien of the judgment in the same condition as if there had been no-sale.
    APPEAL from Jefferson Circuit Court in Chancery.
    Hon. J. A. Williams, Circuit Judge.
    Weatherford, for appellant.

      Bell, contra.

   Walker, J.:

The plaintiff, Allen, filed his bill in Chancery in the Jefferson Circuit Court, to correct and reform certain deeds; to set aside ancl correct a deed executed by the sheriff to the defendant, and that a deed from the sheriff to himself be set tip and established.

The material facts set forth in the bill are, that W. A. Kimbrough was largely indebted to the plaintiff, to secure the payment of which he contracted with the plaintiff, to convey bis plantation in Jefferson County, Arkansas, containing 1,200 acres, by deed of trust, that the deed was written and executed, and intended, and as was supposed by the parties, did contain all of said plantation tract, but that the draftsman in describing the lands, intended to describe them as the east half of section 11, and southwest quarter of section 11, by mistake wrote east of section 11 and southeast quarter of section 11, or in other words wrote southeast instead of southwest, the true description of the land. That the mistake was not discovered until after a decree had been rendered for the sale of the land, and a deed made by the commissioner to the plaintiff (the purchaser) for the land, the mistake being carried into both the decree and the commission■er’s deed. Plaintiff avers that, he would not have bought the land and paid the price he did pay, if he had not believed he was buying the entire tract; that part of the improved land lay upon this quarter section; that after his purchase, and after he discovered the mistake, he advised Kimbrough of it ;• Kimbrough admits that he had contracted and intended to convey the southwest not the southeast quarter; that he supposed he had conveyed the southwest quarter, and would correct it by giving a new deed, but that judgment at law had been rendered against him, which created a lien upon this quarter section; that defendant, McGaughey, had obtained one of these judgments, upon which execution issued, and was levied upon the southwest quarter of section 11, and sold by the sheriff, at which sale McGaughey was the purchaser, and to whom the sheriff made á deed ; alleges that McGaughey had notice of the mistake before his purchase.

This statement may suffice to show the ground upon which plaintiff claims relief.

In regard to the mistake in the deed of trust as to one of the tracts intended to be conveyed, which we will proceed to consider, leaving the other grounds for equitable relief for after consideration: As between the plaintiff and Kimbrough, the right to have this mistake corrected, and the deed so reformed as to embrace the lands intended to be conveyed, is free from all doubt, but as the rights of other parties have intervened, and the mistake carried into the decree, and the commissioner’s deed to the plaintiff, his rights have become more complicated, and the authorities conflicting.

The elementary writers, and the decisions of most of the American courts, form the conclusion that the mistake can be corrected at any time, even after decree rendered upon the contract, and sale of the property under it.

When a written agreement fails to express the contract as expressed between the parties, by an unintentional omission of part of it, or by expressing something different from their true intent, equity will reform the contract, whether it be executed or executory. Story’s Eq., p. 164; Sugden on Vendors, marginal page 189, and is enforced against all parties and privies claiming under them with notice.

This rule was fully recognized in the case of Stewart and wife v. Pettigrew, 28 Ark., 376.

In Simmons et al. v. North, 3 Smed. and Marshall, p. 71, this rule is fully recognized, and it was there held that after a decree and sale of the property under it, the court had power to correct the mistake, and to reform both the deed and decree, so as to make them conform to the intention of the parties contracting.

Before such reform was made or suit brought for that purpose, judgment was rendered against the grantor ; the land unintentionally omitted in the deed was levied upon and sold. Chief Justice Sharkey, who delivered the opinion of the court, when considering this state of case, said: The power of a Court of Chancery is not confined to any description of contracts; it extends to executed, as well as executory, contracts, however solemn they may be in their character. When the mistake is admitted, then there is an equity de hors the deed or instrument, and the powder to relieve is said to be as clear as when the mistake is shown by proof, either parol or written.”

It is not regarded as an infraction pf the rule, which prohibits the introduction of parol testimony, to explain or vary written contracts; nor does it fall within the operation of the statute of frauds.

The remarks of Judge Sharkey, that there is an equity dek-ors the deed or instrument, finds support in several other adjudicated cases, and indicates the true nature of the equity upon -which the right of relief is founded.

It is the contract made between the parties, in parol in the first instance, and of which the writing is but the evidence, and the consideration paid which Linds the conscience of the parties to perform and observe it, as, in fact, entered into. And when the writing, by mistake, fails to express truly the terms of the contract, it is not for that reason vitiated, but when ascertained, is reformed by the court and given effect, unless, in doing so, some equitable right has intervened to prevent it.

Assuming the proof of the mistake in the case before us, to establish that fact, the 160 acre tract of land, though not embraced in the deed, was sold to the plaintiff, and paid for by him before the rendition of the judgment under which the defendant claims to have purchased. In point of fact, it was the plaintiff’s land. He had bought, paid for, and taken possession of it, and although not included in his deed, with the aid of parol evidence showing the contract and mistake, the decree and the deeds were subject to be reformed. In the language of Sharkey, the plaintiff had an equity de hors the deed.

Thus considered, this tract of land was not Kimbrough’s. It had been sold by him, and he had been paid for it.

The judgment lieu under which the defendant purchased did not attach to it, unless, perhaps, in a qiialified sense.

This question was fully discussed in the case of Morgan v. Bouse, 33 Mo., p. 219. Bouse had bought of Jones and Ely a certain tract of land, paid the purchase money, and taken possession of it. By mistake in the draftsman, the lands purchased were omitted, and other lands, not contracted for, inserted in the deed. Judgment was subsequently rendered against Bouse, the purchaser of the lands from Jones and Ely. Morgan, the plaintiff, purchased the land at sheriff’s sale, as the property of Bouse, and' brought suit to have his purchase confirmed. The question arose whether Bouse had such an interest in the land at the time of Morgan’s purchase, as would subject it to sale for the payment of his debts.

Mr. Justice Sharswood, who delivered the opinion of the court, said: Bouse, at the time Morgan’s rights accrued, had paid the purchase money for and gone .into possession of the land; was in position to compel a deed from the grantors, Jones and Ely, or have reformation of those originally delivered to him, and had such an interest in the land as, in view of a court of equity, was devisable or descendible as real'estate (2 Sto. Eq. Juris., p. 790, 1212), and could have protected his lights in the premises by legal or equitable procedure, and remarked that, as often as that court had passed upon the question, it had spoken but one language, that whenever a party is in such situation in regal’d to land, as to be entitled to a decree for specific performance, he has such interest as may be transferred by execution sale, and as a matter of course, when the law once secures to a debtor an interest in land, the incident of transferability must follow, and the purchaser will succeed and occupy the estates of him whose interests the sheriff’s deed purports to convey, otherwise execution sales would be utterly inoperative, so far as regards equitable interests in land.

Nor does it alter the aspect of the case we are considering, that there was a mistake made in the deed, the only effect of which was to multiply the equities of the latter; to add to his claim for specific performance, a right to a reformation of the conveyance. Stone v. Hull, 17 Ala., 557; Waldron v. Leitson, 15 N. J. Eq. Rep., 126, and Burke v. Anderson, 40 Ga., 535, all sustain this position.

If the ruling in the case of Morgan v. Brown, above cited, is sustained by authority and upon principle, which we think is the case, it follows necessarily that the plaintiff, Allen, acquired by his purchase such an interest in the land omitted in his deed as would, upon his death, have descended to his heirs, or might have been sold or devised; that the land was equitably his by force of his contract of purchase, his payment of the purchase money, and his actual possession. Such being the case, there was at best but a qualified judgment lien upon the land by the judgment under which the defendant purchased, subject to the equitable right of the plaintiff to so reform his deed as to make it conform to the contract.

The defendant claims as purchaser at execution sale, to which the rule caveat emptor applies. He gets no warranty of title by his deed, but takes the estate encumbered with all the equities upon it at the time of his purchase, such, only, as the defendant in the judgment had, charged with all the equities that might be asserted against him.

Such has been the uniform decision of this court, and, in a late case — Jones v. Wilburn, ante—in which lands were sold under a judgment by a creditor who held a lien upon the land for the payment of the purchase money, it was held that, although the land was sold and deed made to the purchaser, he, in fact, bought only the equitable right of redemption.

It is contended by the defendant that he was an innocent purchaser, without notice, and, as such, should be protected against the equitable right of plaintiff.

But upon a careful consideration of the authorities, we are satisfied that no defense as an innocent purchaser without notice can be interposed by a purchaser at execution sale.

In the case of Burke v. Anderson, above referred to, it was held, that although courts of equity will correct mistakes, except as against bona fide purchasers without notice, yet persons at execution sales were not such; they claim under the debtor, and have only such rights as belonged to him, not such as seem to belong to him. In Glass v. Glass, 1 Heiskell, 613, it was held, that the claim of the beneficiary in a parol resulting trust, is superior to that of creditors.

In Click v. Click, 1 Heiskell, 642, it was held, that a purchaser at execution sale could not be considered as a purchaser for a valuable consideration without notice.

Approving the correctness of these decisions, we must hold that the defense of McGaughey, as an innocent purchaser without notice, cannot be sustained; but, if otherwise, as in his answer he failed to deny all knowledge of the mistake, not only at the time of his purchase, but also at the time he paid the purchase money, he failed to bring himself within the rule which would give him the benefit of this defense. Byers v. Fowler, 12 Ark., 286 ; Miller v. Fraley, 21 Ark., 22.

Upon the ground of mistake alone, we think the plaintiff entitled to the relief prayed.

The proof abitndantly shows that by mistake, the southwest quarter of section 11 was left out of the deed, the land described in the deed was the east half of section 11, and the southeast quarter of section 11, and, as the southeast quarter was part of the east half, there could have been no purpose in inserting it again in the deed. Plaintiff says it was the southwest quarter of section 11 which was contracted for and intended to be conveyed, on which was part of the plantation, and which was taken possession of and held by him as part of his purchase.

Defendant denies all knowledge of the mistake, and requires proof. The proof is, that Kimbrough, in his lifetime, admitted the mistake, and promised to correct it, but the judgment had been rendered against him, which pi’evented his doing so.

Bell deposed that he was the commissioner who sold the land, and supposed at the time that this tract was included in the deed, and was under this impression when the land was sold to plain-tiff.

We think this evidence sufficient to prove that the mistake was, in fact, committed. The admission of Kimbrough himself would have been sufficient.

It was alone on the admission of North, in Simmons v. North, that the deed in that case was reformed, and, upon the state of case thus presented in the bill, and proven, we think the plaintiff was entitled to relief.

The second ground for relief is, that the plaintiff bought the land at sheriff’s sale, under the oldest judgment lien, paid the purchase money, and obtained a purchaser’s certificate from the sheriff.

The statute gives to the defendant in execution twelve months in which to pay the price bid, and redeem the land. Before the time expired for redemption, some one, whom plaintiff says was not authorized by Kimbrough to do so, paid the price bid, for Kimbrough, and redeemed the land ; that the redemption money was paid to his attorney without authority from him, but as he received the purchase money from his attorney, he thereby affirmed his act, and had no right to complain; indeed, the redemption was a matter with which he had nothing to do. The effect of the redemption was to restore the property to Kimbrough, with a judgment lien upon it, just as if no sale had been made, and if, in truth, as plaintiff alleges, he sued out another execution upon his judgment, before the judgment lien expired, and. had the land sold and purchased it, he acquired a good title to it. Rover on Judicial Sales, 514. But as the plaintiff failed to make proof of such purchase, he is not entitled to relief upon this ground.

.The court below erred in dismissing plaintiff’s bill, and for this error the decree must bo reversed and set aside, with costs.

Let a decree be rendered in this court, setting aside the sheriff’s deed to defendant McGaughey, correcting the mistake in the deed,' and affirming the title of the plaintiff to the southwest quarter of section.il, as part of his purchase.


author: Harrison, J.:

text:
    Moses et al. vs. Kearney, Clerk, etc.
    1. Mandamus: Practice in.

    Under the provisions of the Code of Practice all questions of law and fact arising upon an application for mandamus should be submitted together, and disposed of at the same time.
    2. --: Parties.

    Where the writ of mandamus is sought for the enforcement of a public right, common to tire whole community, it is not necessary that the relator should have a special interest in the matter, or be a public officer; the statute, however, requires that the proceeding shall be in the name of the State.
    3. Mukioipai. KnuunATiox: Contract, etc.

    Section 2(), of chapter 44, U-ould’s Digest, which provided that when a county seat had been established for four years it should not be removed without the assessment by the County Court of a sufficient tax to pay the lot owners for their lots and improvements, was a mere municipal regulation, subject to repeal by the Legislature, and not a contract within the meaning of section 10, article 1, of the Constitution of the United States.
    APPEAL from Conway Circuit Court.
    Hon. W. N. May, Circuit Judge.

      Clark & Williams, for appellants.

      Benjamin & Barnes, contra.

   Harrison, J.:

This was an application by Joshua Moses, and nineteen other residents and owners of lots, in tbe town of Springfield, in Conway County, for a mandamus to William Kearney, the Clerk of said county, to remove his office from Lewisburg back to Springfield, from whence he had moved it, and to keep it at the latter place.

Springfield had been the established seat of justice since 1852. It was located there in pursuance of the general law relating 'to county seats (Ch., 44, Gould’s Digest), then in force, which contained the following provision:

“Section 20. When the seat of justice of any county shall have been established for the term of four years, the same shall not thereafter be removed unless the County Court shall cause a sufficient tax to be assessed on all the taxable property within the county, to pay the owners of lots, at such seat of justice, for their lots and improvements.”

The General Assembly, on the 16th of April, 1873, passed an act to remove it to Lewisburg.

The preamble of the act recites that, “the creation of the county of Faulkner from the counties of Pulaski and Conway has left Springfield, the County seat of Conway County, on the extreme eastern border of said county, and the addition of territory from Perry and Pope Counties places Lewisburg centrally in the county, taking into consideration population, railroad and river facilities, and commercial importance;” and the first section is as follows:

“Section 1. Be it enacted by the General Assembly of the State of Arkansas, That Alexander Davis, W. G. Gray and William Moore be, and they are hereby appointed commissioners, who, upon receiving a bond from the incorporation of Lewisburg, conditioned that said incorporation shall, by the first day of January, 1874, donate to the county of Conway, subject to the control of the County Board of Supervisors, a sufficient sum of money and material to erect a court house equal in value to the present one at Springfield, in said county, and furnish a suitable building or buildings for county officers, and court room, free of expense to Conway County till January 1st, 1874; shall, in pursuance of this act, order the several county officers to move their offices, records and office fixtures to the building or buildings in Lewisburg designated for the use of the county. Thereafter Springfield shall cease to be the County seat of Conway County, and Lewis-burg shall be the County seat of said county.”

Their petition alleges that no tax had been assessed to pay them for their lots and improvements; and that although the corporation of Lewisburg had not executed the bond required by the act, and the Commissioners had made no order directing the county officers to move their offices to Lewisburg, the said County Clerk had moved his office, and was keeping it there.

The defendant filed a demurrer to the petition upon the ground that the petitioners had no specific right in the subject matter, to be affected or impaired by the removal of the County seat from Springfield.

The court sustained the objection, and refused the mandamus.

The case was decided at the July term, 1873, of the Circuit Court, but the appeal was not taken until the 15th day of May, 1875, and it was not submitted in this court until a day of the present term.

The demurrer admitting, as a matter of course, the truth of the allegations of the petition, the removal of his office by the County Clerk seems to have been without either color or pretext of authority. Probably his counsel intended, if the demurrer was overruled, to make other answer, and put in issue the allegations of the petition or some of them. We think, however, that the practice contemplated by the Civil Code, and the better one in applications for mandamus, is, that all questions, both of law and fact, shall be submitted together, and disposed of at the same time. Section 4153, Gantt’s Digest, says: “The party against whom the mandamus (* *) is sought, shall file an answer wherein he shall state the reason why the writ should not be granted, which answer shall be filed at or before the time fixed i for making the motion,” and by section 4154, the cmrt is required “to hear and decide all questions of law or fact arising in the motion, and the granting or refusing of the writ shall be the final order in the motion.”

In a proceeding of this character delay would often defeat the object sought, and a seeming necessity exists for its speedy determination, not admitting of the delay which might be occasioned by several appeals to this court.

The rule is well settled that when, in the absence of statutory regulation, the proceedings are for the enforcement of a duty, affecting not a private, but a public right, common to the whole community, it is not necessary that the relator should have a special interest in the matter, or that he should be a public officer. Moses on Mandamus, 137 ; Hamilton v. The State, 3 Ind., 458 ; The People v. Collins, 19 Wend., 56; County of Pike v. The State, 11 Ill., 202; State v. County Judge, 7 Clarke (Iowa), 186; People v. Tracy, 1 How. Pr., 186; People v. Supervisors, 18 ib., 461.

Our statute, sec. 4151, Gantt’s Digest, however, requires the proceedings, when the public interest is affected or concerned, to be in the name of the State. Then the proceedings in this case, if the petitioners' have no interest except such as is common to the rest of the community, cannot be sustained, and the court below correctly refused them the writ, though if applied for by the State it should have been granted.

But the appellants claim a special interest. They say they have, by sec. 20, Ch. 44, of Gould’s Digest, under the provisions of which statute the seat of justice was established at Springfield, the right to be paid for their lots and improvements there, and to have the tax to pay them, provided for in said section, assessed before it is removed.

We think there is no doubt, though that question is not before us, that in a proceeding under the provisions of that statute, when it Avas in force, for the removal of a county seat, provisions should have been made for payment to the lot-OAAmers by the assessment of the tax directed by said section; but that statute Avas repealed by the act of March 16th, 1869, Ch. 34 Gantt’s Digest, reA'ising the law concerning the removal of county seats, and it makes no provisions for the payment of the lot-owners > and the act of April 16th, 1873, makes none.

It is, hoAveArer, contended that the repeal of the law could not deprive and divest them of a right acquired under its provisions, and, as they claim, by contract with the State.

It is well established doctrine that the contracts of the State are equally as inviolable by it as those betAveen private individuals; but a distinction must be drawn between contracts and measures and regulations Avhich concern the system of administration or gOArernment of the State.

The distinction was A’ery clearly stated by the Supreme Court of the United States in the case of Butler et al. v. Pennsylvania, 10 How., 416. The court in that case say: “The contracts designed to be protected by the tenth section of the first article of that instrument (the Constitution of the United States) are contracts by AA'hich perfect rights, certain, definite, fixed private rights of property, are vested. These are clearly distinguishable from measures or engagements adopted, or undertaken, by the body politic or State Government for the benefit of all, and from the necessity of the case, and according to universal understanding, to be varied or discontinued, as the public good shall require.” Sedg. on Stat. and Const. Law, 581; Cooley on Const. Lim., 275-574; Thorpe v. R. & B. R. Company, 27 Vt., 140. Chief Justice Marshall, in delivering the opinion of the court in Dartmouth College v. Woodward, said: That the framers of the constitution did not intend to restrain the States in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us is not to be so construed, may be admitted.” Dartmouth College v. Woodward, 4 Wheat., 629.

It is plain that the Ch. 44 of Gould's Digest was a municipal regulation only, and that whatever interest or right the appellants had under its provisions, not common to all the people of the county of Conway,' which, at best, was only contingent, was swept away and abrogated by its repeal.

The judgment of the court below is affirmed.


text:
    Arkansas County vs. Freeman & Johnson.
    Attorneys;
    Attorneys appointed by the court, to defend persons charged with crime and unable to employ counsel, are not entitled to compensation.
    APPEAL from Arkansas Circuit Court.
    Hon. John A. Williams, Circuit Judge.

      Gibson, for appellant.

      Dooley, contra.
   Harrison, J.:

The appellees, who are attorneys and counsellors at law, were appointed by the Circuit Court of Arkansas County, to defend a person indicted for an assault with intent to kill,who was unable to 'employ counsel. After they had performed the duty, the judge certified to the County Court, an account in their favor against the county for $50 for their services. The County Court refused to allow the claim, and they appealed to the Circuit Court. In the Circuit Court they recovered judgment against the county for the amount of their claim.

The statute, sec. 1,824, Gantt’s Digest, makes it the duty of the court, if any person about to be arraigned upon an indictment for a felony, be without counsel to conduct his defense, and unable to employ any, to assign him counsel, at his request. It makes no provision for any compensation to the counsel so appointed.

The appellees, however, contend, that the performance of the duty assigned them by the court, imposed' an obligation on the county to pay them for their services.

We do not think ihat such is necessarily the case.

The legislature has with great particularity fixed the fees of officers, and provided for the expenses attending the holding of the courts, and the trial of persons accused of crime, and it seems improbable if it intended the counsel in such eases to be compensated, it would not have fixed and directed the payment of his fee. Such an omission indicates rather the purpose of the legislature to make such services gratuitous. The County Court can allow no claim against the county, for the payment of which the law has made no provisions. Crittenden County v. Crump, 25 Ark., 235; Williams et al v. Ewing & Fanning, ante; Irivn v. Commissioners, etc., 1 Serg. & Rawls, 550.

Attorneys are a privileged class; they only are permitted to practice in the courts; and they are officers of the court. The law confers on them rights and privileges, and with them imj>oses duties and obligations to be reciprocally enjoyed and performed. The services required of them, in cases like the present, are such as charity and humanity demand in behalf of the destitute and defenseless; and the presumption cannot be admitted that they serve in expectation of fee or reward. The appellees but performed a duty, which their relation to the court and the public required of them.

The decisions in other States, upon statutes similar to ours, have not been uniform. In Indiana, Iowa, and Wisconsin, the county is held chargeable. In Illinois, California, and Kansas, such liability is denied. Blyth v. The State, 4 Ind., 525; Webb v. Baird, 6 Ind., 13 ; Hall v. Washington County, 2 Green, 473; Dane County v. Smith, 13 Wis., 585; Vise v. Hamilton County, 19 Ill., 78; Rowe v. Yuba County, 17 Cal., 61; Case v. Shawnee County, 4 Kan., 511.

The judgment of the court below must be reversed, and the cause remanded to it with direction to render judgment in favor of the defendant.


text:
    Smith et al. vs. Allen.
    1. Appeal from Justice of the Peace:
    Where an appeal is taken from the judgment of a justice of the peace, it is his áuty to file a transcript in the office of the Clerk of the Circuit Court on or before the next term of that court, and it is incumbent on the appellant to see that the transcript is filed and the case docketed. If he neglects to do it, it is in the discretion of the Circuit Court to affirm the judgment of the justice.
    2. Descent and Distribution, etc.:
    Under the provisions of sec. 7, Gantt’s Digest, if a woman dies, leaving a minor child, and an estate under the value of ®300, the estate will vest in the child, who may be substituted as plaintiff in a suit instituted by the deceased parent. If the motion to substitute is made within one year after the death, the opposite party is not entitled to notice.
    APPEAL from Pulaski Circuit Court.
    Hon. J. J. Clendenin, Circuit Judge.

      Coates, for appellants.

      Watkins, eontra.

   English, Ch. J.:

Bella Allen (a widow) sued Thomas Smith, before a justice of the peace of Pulaski County, on an open account, for $101, and on the 2d of March, 1874, recovered judgment for $75. Smith appealed to the Circuit Court (9th March, 1874,) and executed an appeal bond, with James Coates as surety.

On the 3d of June, 1875, Mary Allen, infant daughter, and only child of Bella Allen, appeared in the Circuit Court, by her next friend, McG. W. J. Bell, her grandfather, and suggested that her mother had died intestate, leaving an estate of less than $300 in value, and praying to be substituted as plaintiff in place of her mother, and that the judgment of the justice be affirmed against Smith, and his surety in the appeal bond, for failure to-prosecute the appeal, etc.

On the next day this motion was heard by the court, and the infant, by her next friend, substituted as plaintiff, and the judgment affirmed for failure of Smith to prosecute his appeal.

On the 8th of June, 1875, Smith filed a motion to set aside the judgment of affirmance, on the ground that it was rendered without notice to him, and setting out facts conducing to show that he had a meritorious defense to the suit.

The court overruled the motion, and in September following, Smith obtained the allowance of an appeal by the clerk of this court.

No bill of exceptions was taken by the appellant, and the recitals in the entry reviving the cause in the name of the infant appellee, by her next friend, and affirming the judgment of the justice for failure of appellant to prosecute his appeal, must be taken as true, in the absence of any showing to the contrary.

The entry recites, in substance, that it appeared, to the satisfaction of the court, that appellant failed to pay the costs required by law to have the case docketed, and failed to have the cause docketed, and otherwise failed to prosecute his appeal as required by law. It was, therefore, ordered by the court,that the cause be placed on the docket (on the motion of Mary Allen, by her next friend, etc.), and it further appearing to the court that Bella Allen was dead, and that Mary Allen, an infant, was her only surviving heir, and entitled to the whole of her estate, the same not amounting in value to the sum of $300, and that McG. W. J. Bell, her grandfather, was her next friend, etc.

The order substituting the infant, by her next friend as plaintiff, and the judgment of affirmance, is in the same, continuous entry, though the order of substitution follows, instead of preceding the judgment of affirmance, as it should have done.

It seems that before the motion to substitute and affirm was filed, the justice had lodged in the clerk’s office a transcript of the proceedings before him, and the original papers, but they had not been marked filed by the clerk, and the cause had not been docketed, on account of the failure of appellant to pay fees, and prosecute his appeal. The magistrate’s certificate of authentication of the transcript bears date 1st of June, 1875, which was more than a year after the appeal was taken.

First — It'was the duty of the justice to file in the office of the Clerk of the Circuit Court, on or before the first day of the next term, a transcript of the entries made by him in his docket, together with all process and papers relating to the suit (Gantt’s Digest, section 3825), and it was incumbent on the appellant to see that this was done, and that the cause was placed on the docket.

Here appellant took his appeal 9th of March, 1874, procured a stay of execution by executing an appeal bond, and there he let the matters rest, taking no further steps in the prosecution of his appeal, for more than a year.

On such failure to prosecute his appeal, the Circuit Court had the discretion to affirm the judgment of the justice, and there was no abuse of such discretion in this case. Gantt’s Digest, sections 3838-9.

Second — The appellant was not entitled to notice of the motion to revive the cause in the name of the representative of the deceased plaintiff) the motion having been made, as it appears in the transcript, within less than a year after her death. Gantt’s Digest, sections 4774, 4779. Appellant was bound to be in court, in the prosecution of his appeal, and to take notice of such motion. Noland v. Leech, 10 Ark., 504. Callahan et al. v. Saleski, 29 Ark., 217.

Third — Section 7, Gantt’s Digest, provides that: “When any man shall die, leaving minor children and no widow, and his estate shall not be above the value of $300, his entire estate shall pass to and invest in his minor children, for their support and education, and the (probate) court shall not be required to appoint an administrator on such estate.”

In this case a woman, the original plaintiff) died, leaving a minor child and no husband, and her estate was not above the value of $300.

By statutory rule of construction, the word man in the above section, includes a woman, and the word children includes a a child. Digest, sections 5616, 5617.

The subject matter of the suit in this case being part of the deceased mother’s estate, which the court below ascertained to be of less value than $300, her infant child, by its next friend, was properly substituted as plaintiff. Gantt’s Digest, sections 4774, 4491. Hampton et al. v. Physick, adm’r., 24 Ark., 561.

Judgment affirmed.