text:
    TRAPNALL & TRAPNALL v. TERRY & STEELE.
    Scire Facias — •Nature of when demurrable.- — Tlie writ of sciro facias occupies the place of both declaration and writ of summons, and. when the facts, set up in the writ, are not sufficient to show a cause of action, a demurrer would be a proper response.

      When motion to quash. — "Where there is no record in the court, as a foundation upon which the writ could properly issue, it is such a matter in abatement as might be reached by motion, and a party is not necessarily compelled to resort to a plea of nul tiel record.

    APPEAL FROM PULASKI CIRCUIT COURT.
    Hon. John Whytock, Circuit Judge.

      Bingo and Clark & Williams, for Appellants.
    Under our statute, the death of a sole plaintiff or defendant does not abate the suit, but the party, in whom the action survives, may continue the cause, by an order of court, substituting himself. Digest, Chap 1, Sec. 7; after quashal of the scire facias (which we submit was erroneous), the court, under the subsequent motion made for that purpose, should have, required the defendants to show cause why the appellants should not be made parties. Noland vs. Leech, ear’s., 10 Ark.,. 504.
    The order, of 25th April, 1866, was not such a final judgment of dismissal, as could not be revoked or set aside at a subsequent term. It was a nullity; both the plaintiffs were dead — it was not a judgment on the merits dismissing the case. The case of Harrell et al. vs. Mason, 9 Ark., 406, relied on by the appellees, is not applicable — is not law. Gleason vs. Carter, 28 Geo., 516; Goioenys vs. Loyd, 4 Texas, 483; Rumbéis vs. Jones, 3 Ind., 35; Parker vs. Badger, 6 Foster {N. 71), 466. Meade vs, Rutledge, 11 Texas, 44; Dennison vs. Holliday, 38 Fng, Law. and Fq. 496; Venable vs. Smith’s Fx’r., 1 Duval (Ky), 195.
    The case of Hubbard vs. Welch, 11 Ark., 151, cited by appellees, is not in point — it was a judgment upon the merits — and so with all the cases. They are all judgments upon the merits — none other have ever becu held conclusive. See Brooks vs. ITananev, 22 Ark., 174 ;■ Rector vs. Danlcy, 14 Ark., 304; Pulaski County vs. Lincoln, 13 Ark., 103; Smith vs. Danlcy, 2 Ark., 66 ; Walker ei al. vs. Jefferson, 5 Ark., 25 ; Ashley vs. Hyde Goodrich, 6 Ark., 101; Rauxlov., Wight &; Hatch vs. Rapley, 14 Ark., 203; Cossitt vs. Biseoe, Í2 Ark., 95 ; Yell vs. Outlaw, 14 Ark., 621; Cunningham■ vs. Ashley, 16 Ark, 181.

      Gallagher, Newton & Hempstead, for Appellees.
    The order and judgment of the court, dismissing the cause, could only be reached by appeal or on error. § Png.,. 519; 7 Eng., 218 ; 18 Ark., 53 ; 21 Ark., 117.

      Second, The term having passed, the court no longer had control of the matter. 1 Png., 282; 5 Ark., 709; 14 Ark., 203 ; lb. 568 ; 1 Png., 100; 7 Png., 95; 22 Ark., 176.

      Third, If the judgment was void, it should have been reached by writ of 'error coram nobis. Hempstead, U. S. O'. Ct. Rep. Dist. Ark., p. 699.

      Fourth, By analogy of Statutes of Limitations, as to writ of error, three years, or proper construction of section 94, Gould's Digest, parties were barred.
   Gregg, J.

On the Slst day of May, 1869, the 'appellants, by attorney, appeared in the Circuit Court and represented that after the institution of a suit in ejectment, in that court, against said defendants, by Martha F. Trapnall and Mary R. Trapnall, they had departed this life; that the suit had thereupon abated and the property descended to these appellants by inheritance; and they moved the court for orders and process proper to revive the action in their names, and that a writ of scire facias issue, which was ordered returnable to the next term of the court.

On the 14th of December, 1869, the defendants appeared and filed their motion to quash the scire facias, alleging:

First, That the writ was not moved for in time.

Secondly, That the writ shows, on its face, that the plaintiffs are not entitled to have the action revived.

Thirdly, That there is no such suit pending in. court, as the one described in said writ.

Fourthly, The writ is otherwise bad, etc.“

On the 2d of February, 1870, the court sustained the motion and ordered that the case bo stricken from the docket.

On the 8th, of the same month, the plaintiffs filed a motion to 'set aside the order last referred to and to revive the suit, which motion was taken under advisement until the next-term of the court.

On the 29th of June, 1870, the' parties appeared and the coui’t overruled the motion, and adjudged that the defendants go lienee and recover their costs; from which judgment the plaintiffs appealed to this court.

As a basis, for the proceedings oh the scire facias, it is shown, upon the record, that on the 6th day of August, 1861, the parties, alleged to have died, filed their declaration in ejectment against the defendants, in the Pulaski Circuit Clerk’s office, and, on the 28th of September of that year, the parties appeared in the then Circuit Court of that .county, and, by consent, the case was continued.

The next that appears is an order of the Circuit Court, of said county, made on the 25th of April, 1866,» striking the case from the docket for the want of jurisdiction, the proceedings having been instituted after the ordinance of secession and before the reorganization' of the State government; then follows the proceedings as above indicated.

The counsel, for the appellants, insist that upon the motion to quash the writ of scire facias, nothing can be looked to but the face of the wri t. They assume that the motion, like a demurrer, goes alone to the sufficiency of thé writ upon its face.

We are not prepared to concede this to its fullest extent; the motion is more nearly allied to a plea in abatement than a demurrer. The writ of scire facias occupies the place of both declaration and writ of summons.

If the facts, set up in the writ, are not sufficient to show a cause of action, a demurrer would be a proper response. But if the scire facias should require a defendant to answer in a suit, entirely and radically different from the one that had been in prosecution before the court, or require him to show cause why an action should not be revived, when in fact no action had ever been brought against such defendant, we see no reason why a motion, in the nature of a plea in abatement, might not be sustained. The court judicially knows its own records, and it appears to us, if there is no record in the court, as a foundation upon which a writ could properly issue, it is such matter in abatement as might be reached by motion, and that the party is not necessarily compelled to resort to a plea of nul tiel record; such would be an improvident issue of a writ and the court might even, on its own motion, quash such writ.

The third ground set up in the motion to quash was, that “ There is no such suit pending in court, as the one described in the writ.” We are of opinion that the records, before the court, justified the finding, and that there was no error in quashing the writ. The judgment of the Circuit Court is affirmed.


source: Caselaw Access Project

author: Searle, J.

license: Public Domain

text:
    COLLIER, admr. etc. v. HUNTER & OAKES.

      Suits' — Consolidation of. — An order of court is necessary before several suits pending, as provided in Sec. 132, Chap. 133 of Gould’s Digest, can be regarded or treated as consolidated.

      Bankruptcy — Plea of, good defense. — A person cannot be or remain a party to a suit after his. bankruptcy, and the plea, when properly pleaded, is a good defense.

      Practice — Trials de novo. — All cases, on appeal from inferior courts to the Circuit Courts, must be heard de novo.

    APPEAL FROM RANDOLPH CIRCUIT COURT.
    Hon. Elisha Baxter, Circuit Judge.

      English, Gantt $ English, for appellant.

      First, Tlie Circuit Court erred in affirming tlie judgment of the Probate Court without a trial de novo — Collier, ad. 'vs. Kilcrease, MS. opinion, present term.

      Second, The cases were treated as consolidated without an order of court for that purpose.

      Third, The coui't erred in sustaining the demurrer to appellants plea of bankruptcy. Brightley’s Bankrupt Law, p. 48.

      Fourth, The auditor’s reports, upon the accounts, were confirmed, though no notice was given appellant of the time and place of auditing them, nor did the auditor report the evidence to the court on which ho acted as required* by the statute. Dig; Ch. 4, Sec. 133, p. 127 ; Dig. Ch. 28, Sec. 74, p. 227.
   Searle, J.

This cause originated in the Probate Court of Randolph county. It appears, from the transcript, that the appellant, Collier, who was the administrator of the estates of Michael S. Wilson and Jonathan Wilson, deceased, filed, in said court, his account current for settlement in each case. Hunter and Oakes, appellees, herein, being creditors of said estates, filed objections to the accounts. The Probate Court, referred the accounts to an auditor, who made his reports thereon, and the reports were objected to, on the part of the appellant. After separate trials of the issues of the two cases, thus made up, the court confirmed, the reports. The appellant asked for new trials, which were disallowed; whereupon he appealed to the Circuit Court. The transcripts of the two cases were certified together up to the Circuit Court, and that court regarded and disposed of them as being, or having been, consolidated. Here, also, the appellant pleaded the bankruptcy of Oakes, one of the appellees, to which the appellees demurred, and the court sustained the demurrer. The court then, upon examination of the transcript, found no error and affirmed the judgment; whereupon, the appellant appealed to this court.

From the above statement, three questions are presented for our consideration:

First. Was it error, in the court below, in regarding the two cases, as instituted and tried ,in the Probate Court, as consolidated, and thus disposing of them?

Section 132, Ch. 133, Gould’s Digest, provides that “whenever several suits shall be pending in the same court, by the same plaintiff against the same defendant, for causes of action which may be joined, or when several suits are pending in the same court by the same plaintiff against several defendants, which may be joined, the court, in which the same may be prosecuted, may, in its discretion, order such suits to be consolidated into one action.” The cases, under consideration, were doubtless regarded and treated as consolidated under this section. And yet, it appears that neither the Probate nor the Circuit Court made any order for their consolidation. It seems that the Circuit Court treated the two cases as consolidated, simply, because they were certified together from the Probate Court. This, to say the least of it, was very informal.

But we may say, further, that these actions were not' such as could be consolidated under the above cited section. The defendants are different in the two eases. The grounds of action and the defenses are also different. The trials, therefore, and the judgments must be separate and distinct. Erom the consolidation so much confusion has already resulted and necessarily will result, that these adjudications, in their present shape, would bo a matter of impossibility.

Second. Hid the court below err in sustaining appellees’ demurrer to appellant’s plea of bankruptcy as to Oakes?

A transcript of the plea is not before us; and the only evidence, we have, that such a plea was interposed, is an entry to that effect. We cannot, therefore, determine whether or not the court erred in sustaining the demurrer. We may, however, remark that if the plea properly set up the bankruptcy of Oakes, the court should have overruled the demurrer. Eor, in relation to one adjudged a bankrupt, it is declared in section fourteen of the bankrupt law of the United States, that “all debts due him, or any person for his use, and all liens and securities therefor * * * * shall, in virtue of the adjudication of bankruptcy and the appointment of his assignee, be at once vested in such assignee.” Erom this section it most clearly appears that one cannot be or remain a party to a suit after his bankruptcy. Oakes sued in the character of a creditor of the estates of which the appellant was the administrator. If his bankruptcy was properly alleged, under the bankrupt act, the demurrer was not well taken and should have been overruled.

Third. Did the court below err in affirming the judgment of the Probate Court, on the appeal; without a trial de novo ?

The opinion in the case of Smith & Brother vs. Van Gilder, 26 Ark., 527, and affirmed, at the present term of this court,-in the case of Slark, Stauffer & Co. vs. Van Gilder, is conclusive of this question. It is there decided, that all cases, on appeal from inferior courts to the Circuit Courts, must be heard de novo. The court below should have tried this cause de novó. Having failed to do so, the judgment must be reversed and the cause sent back to that court to be proceeded with according to law and not inconsistent with this opinion.


author: Bennett, J.

text:
    BYERS et al. v. DANLEY.
    .Resulting trusts — Nature of, etc. — A resulting- trust is a more creature of equity, founded upon presumptive intention, and designed to carry that intention into effect.

      When will not attach, etc. — It will not attach in the person paying the purchase money, if it was not the intention of either party that the estate should so vest in him.

      Agents — When purchase by, will net operate as a resulting trust. — "Where an authorized agent purchases land for his principal and advances the purchase money, not as a loan to him upon the security of the lands purchased, or for the purpose of converting the money into lands, but as an advance to the principal, to enable the agent to accomplish the object of his principal, no trust will result in favor of the agent.

      Same — I/iens of, for advances, etc. — An agent has an implied or equitable lien, enforoible within proper time, in equity, for advances, expenses, commissions, etc., made in the purchase of lands for his principal, and this lien is incident to the debt and continues in the agent so long as he has the possession of the lands or title papers, but if ho parts with the possession, or the debt be paid or barred by the statute of limitation, the lien is gone. Possession — What must be, to operate in favor of holder. — Possession, in order that the statute of limitations may operate in favor of the holder, must be adverse, intentional, actual, continuous and unbroken for the full period prescribed by the statute; if there be an interruption of holding, the term of • adverse possession is closed, and upon resumption of possession, a new point is made from which limitations will again begin to run.

      Partition — When not cognizable in equity. — Partition cannot bo-had in chancery when the lands asked to be divided are held adversely, or the title is in dispute, except in cases where the lands are unoccupied and there is only * that possession in law, which is connected with the title to the lands.
    APPEAL FROM WHITE COUNTY CIRCUIT COURT.
    Non. -John WiiYtocic, Circuit Judge.

    IF. I?. Coodg and, Rice ‡ Benjamin and Whipple, for Appellants.

      First, We submit that no trust could result or be declared in favor of Smith.; lie invested the money as the agent of Northrop, and with the understanding that Northrop should pay it hack. 17 Miss., 228; 5 Gush., 431; 1 Md., chap. 479; 2
      Paige, 217; 1 Dev. and Bat. (N. C.), 119; 6 Ala., 404; 12 Peters S. C., 241; 4 Craneh., G. G., 541; 39 Barbour, 625; 10 Vesey, 366-7; 14 Gray, Mass., 119 and 122 (note); 34 Miss., 5 George, 611; 7 B. Monroe, Ky., 433; 2 Spence Equity Jurisdiction, 204: Equity will not allow the intention of the parties to he frustrated by mistake or fraud, but' will give the title its proper direction. Smith’s Leading Gases in Equity, 562; 28 Ala., 127; 3 Iowa, 422; 9 Watt’s, 32; 1 Story Equity, sec. 54 g.; 1 Paige, 495; 2 Wash. C. C., 321; 4 Desau, 487; 2 Blackford, 213, 8 N. II., 195; 2 Johnson, Ghy. 585.

      Second, Smith, acting as agent, his act, in reference to the subject matter of the agency, was the act of Northrop. Story on Agency, sec. 2; 1 Oregon Bep. 272. Northrop paid the money, and Northrop received the deed; and there was no possible room for a resulting trust in favor of Smith. 3 Sumner, 466; 28 Penn. 419; 30 lb 133; 58 Ala. 127; 17 III, 623; 18 Penn., 283; 13 Ml, 221-7; 2 Black U. S., 613; 23 Cal, 51; 21 Ark., 539; 18 Ind., 462; 39 Penn., 369; 2 Md. Chy., 515; 2 Washburn on Beal Property, 102 and 166; 1 Barbour, 180. In order to create a resulting trust in favor of him who pays the purchase money, the money must be paid before or at the time of purchase, and no future . advance of the purchase money, after the trade is made, will be sufficient. In other words, “the trust must arise, if at all, out of t^Le circumstance that money of the real, and' not of the nominal purchaser formed, at the time of the purchase, the consideration of that purchase, and was intended, at the time, by the party to be converted into land. 1 IIofi\ Ghy., 90; 3 Ala., 302; 13 Iowa, 521 .and 540; 46 Maine, 311; 13 Bl, 186, 221 and 227; 16 Vermont, 500; 3 Md. Ghy., 547; 32 Penn., 371; 33 Penn., 158; 3 Miss., 190; 16 Texas, 214; 28 Miss., 249; 2 Wis., 552; 2 Ind., 95; 2 Johnson Ghy., 405; 5 III, 1 to 19; 6 Gowen, 706 to 725; 2 Pope, 218; 8 N. H., 187; 2 Fairfield, Me., 9; 16 Maine, 268; 6 Dana, 331; 3 Wendell, 638; 2 Ark., 71; Harrington Chy., 12, 130; 3 Paige, 390; 3 Maine, 41; 4 Md. 465-.

      Third, Smith had a lien, and only a lien, upon the title papers and the lands «for his commissions, services, expenses, and advances, which grew out of his relation, and was incident to Northrop’s indebtedness to him. Story on Agency, sections 850 to 390 inclusive; 4 111., 94; 3 Story Equity, sees. 1215 to 1217; 2 Kent, 634; Montague on Liens, 1; Smith’s Mercantile Law, 336-7, 514, 515; 2 Camp.'Hep., 579.

      Fourth, As tó the Statute of Limitations, Northrop having the legal title, the constructive possession, by the payment of taxes, etc., followed the legal title, and he was in constructive possession until ousted by actual possession. 21 Ark., 9; lb., 74; 1 Hempstead, C. C., 225; 2 Washburn on Beal Property, top page 484, sec. 8 and 9; 1- Cowen, 286; 6 Serg. and B., 140. Then as to the actual possession of twelve acres of the lands, as alleged (but not proven) by Rond, in 1845, and continued until 1852. Before title can be acquired by possession, it must be adverse, actual, continuous and unbroken, for the full period prescribed by the statute; 22 Ark., 78. Until the Act of the 4th of January, 1851, the period of limitation for real property, in this State, was ten years, {English’s Digest, 98, Section 1), which Act of 1851 repealed the old Act of 1839; and by the second section, established the period of limitation as to lands at seven years, and the old statute bar of ten years, not having attached to Smith’s actual- possession from 1845 until 1851, was operated upon by the new Act of limitation, ás a demand in existance at the time of its passage, and gave» the parties interested, seven years after the passage of this new Act in which to bi'ing their actions, unless the same was served by the provisions of the first section of the Act of 1851. 5 Ark!, 510; 6 Ark., 518; Gould’s Digest, page 748, Section 1 and 2.

    The saving clause in the first section of the Act 4th of J anuary, 1851, only applies to parties who had three years’ possession of lands, etc., prior to the passage of the Act, “holding and claiming the same by virtue of a deed or deeds of conveyance, devise, grant or assurance.” But if Smith had possession, it did not work a disseizin, or lay a proper fohndation for a title to become complete under the Statue of Limitation ; for the title must bó a fee or it amounts to nothing. 2 Wash. 498, section 18.
    There must be an actual occupancy, clear, definite, positive, notorious and hostile. 6 S. and R., 21; 9 Penn., 22'6; 5 Met., 15 to 33; 15 Rl, 271; 5 Md., 256; 20 Howard, 32; 15 Pick, 250; 2 Geo., 191; 11 Gush., 210; 10 Johnson, 477; 7 Mass., 383; 11 Penn: 189.
    Causing lands to be surveyed, lines marked, and occasionally cutting grass upon it is not sufficient. 4 Mass., 216; 6 Johnson, 218; 2 Rich., 627.
    The occupancy must be manifested by fences or otherwise. 14 Pick., 224; 10 Barbour, 254. Making sugar occasionally, in camp built on land, not sufficient. 1 A. K. Marshall, 207. Nor would a “lap,” or “slash” fence around woodland be sufficient. ■ 3 Met., 125; 2 Johnson, 230; 10 N. II., 397; 7 N. II, 436. Cutting wood, clearing land, and running working lines, not sufficient. 6 Gush., 129; 18 Vt., 294; 1 Allen, 245.
    The possession must be continued, adverse and exclusive, during the whole period prescribed by the statute. 20 Howard, 32; 13 Pick., 250; 26 Geo. 191. The possession must be with the manifest intention to claim title to the land occupied against the true owner; in fact the intention with which the possession was commenced and continued are the only tests. 32 Miss., 127; 30 N. II, 355; 4 Wheat, 213; 6 Ind., 273; 39 N. U., 278 and 281; 9 Johnson, 180; 5 Peters, U. S., 102; 8 Gowen, 589.

      Clark & Williams, for Appellee. .
    We assume the position :

      First,' That when the deed of Creagh was first made and delivered to Austell & Marshall, it was an escrow,'dependent for its' effect as a deed, upon Smith’s paying the one hundred and eighty dollars.

      Second, That when that condition was complied Avith, the legal title passed to Northrop, and related back to the first delivery against Creagh, and all parties claiming under him, except, perhaps, an attaching creditor, who might seize the land before the deed became absolute, as to which there is no question here. See Hempstead vs. Johnson, 18 Ark., 125; 4 Kent’s Commentaries, 155. We refer especially to the language of Judge Kent, as referred to in last reference. McDowell vs. Cooper, et al., 14 Sergeant $• Pawle, Penn. Pep. 296; Harrison vs. Trustees of P. Academy, 12 Mass. Pep. 460; ■ Canning and wife vs. Pinkham et al., 1 New Hamp. Pep. 353; Buffon vs. Green, 5 New Hamp. 71; Goodrich vs. Wallace, 1 Johnson N. Y., Cases 253; 4 Kent, 454, 456; Shep. Touchstone, 285.
    The delivery of a deed to a third party is good, although the use is not declared. Soverbye vs. Arden, 1 J. Ch. P. 240. An actual delivery of the deed is not necessary to pass title. 1 Edwards Chancery, 497. When the grantor delivers 'the to a conveyancer, employed by the parties, to be deliverd to the grantee, the title passes immediately to grantee. Peed vs. Moble, 10 Paige C. P., 409; Byers vs. McClanahan, 6 Gill $ J. 250; Tate vs. Tate, 1 Dev. § Bat. Ch., 22.
    The naked legal title then vested in Northrop, charged with an equity in Smith for the payment of $313 00. This equity could be discharged by Northrop, by payment, within a reasonable time, and thus make his title good. That reasonable time did not extend beyond the period of ten years, which, by the law then in -force, was ten years. See English’s Digest, Chap. 99, Sec. 1; Revised Statutes of 1839, Chap. 91, Sec. 1; and was not repealed or altered until 1851, when the period was reduced to seven years, and Smith’s possession, three years before, and Danley, claiming under him, three yefes thereafter, adversely to-Northrop and his heirs, they are barred by the Act of 1851. Gould’s Digest, Chap. 106, Section 1. When the Statute of Limitation commenced running .against Northrop in 1840, it did not cease at his death, even in favor of minor heirs, for disabilities are not cumulative, and his heirs took, subject to the same rules and laws that Northrop held under. See Carter vs. Cantrell, 36 Ark., 154;
      Brinkley vs. Willis, 22 Ark., 5; Lytle vs. State, 17 Ark., 608. And Hanley’s possession can be added to Smith’s to complete ■the bar. Cunningham vs. Broomback, 23 Ark., 336.
    We submit further, that Smith having furnished the purchase money, the legal title was vested in Northrop, with resulting trust in Smith.
    Where a party purchases property and takes deeds in name of a third party, the latter is trustee of a satisfied trust, and his heirs cannot oust the former in ejectment.- Brown vs. Weast, 7 Howtard Miss., 181; Powell vs. Powell, Freeman’s -iChancery Miss. Rep., 134; Methodist Episcopal vs. Jaques, 1 .John. Chancery Rep. 450; Boyd vs. McLean, 1 Johnson Ch. Rep., 582; Botsford vs. Burns, 2 Johnson Ch. Rep., 409; Livingston vs. Livingston, 2 John. Ch. Rep., 540; 4 English, 518; Cook vs. Bronaugh, 13 Ark., 187 ; Gain vs. I^eslie, 15 Ark. 312; Shields vs. Trammell, 19 Ark., 51; Ferguson vs. Williamson, 20 Ark., 272.
    The payment of a part of the purchase money of a tract of land raises a resulting trust in' favor of the party by whom such payment is made. Chadwick vs. Felt, 35 Penn. State R., 305; 16 Texas, 314.
    Resulting trusts are not within the statute of Frauds. See above authorities. See Rose’s Digest, 782; lb. 366; title Statute Frauds, 15 ; and cases there cited.
    A trust intended fpr the benefit of' a third party, without his knowledge, may be affirmed by him afterwards. Cumberland vs. Codington, 3 John. Ch. Rep., 261; Shepherd vs. McEver, 4 John. Ch. Rep., 136.
    Parol evidence is admissible to establish a fact from which the law will raise or imply a trust. Moore, vs. Moore, 38 New Hampshire, 382.
    Oral declarations are sufficient and competent to make out .a trust by implication of law. 25 Georgia, 403 ; and the evidence of the trust may be circumstantial. 26 Georgia, 625 ; 29 Geo. 67.
    On the same subject, see Wells vs. Robinson, 13 California,
      138; 1 Head (Teim.) 305; 2 lb. 684; 12 Indiana, 348; 1 Clark (Iowa) 226; lb. 271; lb. 423.
    Generally a constructive trust arises in favor of tlie one who furnishes money for the purchase of land. Sullivan vs. McLemans, 2 Clark, (Iowa) 437.
    Where can we imagine a stronger state of facts to create an equity than we have here? It includes all three of the grounds- of equitable interference. 1st, Fraud. 2d. Trust. 3d, Mistake. It was á fraud in Northrop to employ Smith to advance money and give his services under the agreement proved, and then abandon it. It was a trust because Smith advanced the money. It was a mistake to take the deed to Northrop instead of to himself.
   Bennett, J.

On the 2d day of April, 1858, Benjamin F, Danley, appellee, brought suit in equity, to quiet and perfect title and for the possession and rents, against appellants and others. Some of the defendants demurred to the bill; some failed entirely to defend in any form. Defendants, Cheek and Mays, regularly defended by answer and proofs, etc. Upon the hearing, a final decree was entered giving appellee possession of the lands, from which an appeal was taken.

The facts, as appears from the bill and records in this case, are substantially as follows :

On the 11th day of July, 1835, the lands in controversy, to-wit: S. W. £ of Section 10, Township 7 North, Range 7 West, were patented by the United States to Frederick Race. On the -8th day of December, '1835, Race sells to John G. Creagh and, on the 5th day of January, 1840, one Algernon S. Northrop, desiring to purchase said lands, and meeting with one Erastus Smith, at Little Rock, who was an attorney, and at that time upon an extensive tour in the south- west, employed said Smith, as his agent, to purchase said lands for him, provided he could find out the owner for the same, agreeing to give Smith one hundred dollars for his. services, bear his necessary expenses, and pay back to him the purchase money which he might have to advance upon the purchase of. said land. To all of which, Smith, at the time, agreed, and, for the purpose of consuihmating the purchase of said lands for Northrop, proceeded to Mobile, Alabama, where he was informed Pace, the original patentee, lived in Clark county of said State. Smith went immediately to see Pace, from whom he learned that he had, years before, sold the lands to Creagh; Smith then went back to Creagh; proposed to purchase said lands from him for Northrop. Smith purchased the lands for Northrop, as his agent, for one hundred and eighty dollars, but not being able to advance the purchase money, at the time, Creagh agreed to execute, the deed to Northrop, and send the same • to Aslett & Marshall, of Mobile, to be delivered to Smith, as the agent of Northrop, upon the payment of the purchase money. Two months after, to wit, on the 13th day of May, 1840, Smith was at Mobile and, as the agent of Northrop, secured the deed and title papers from Aslett & Marshall, and" advanced, for Northrop, the purchase money. Ón the 15th of May, 1840, Smith sent deed and title papers to Goodrich & Boardman, at Little Rock, with his account, made out against Northrop, for his fees, expenses and purchase money advanced, with instructions to deliver the same to Northrop upon the payment of his account, amounting to three hundred and thirteen dollars. The bill then alleges title in Creagh; that the same passed to Northrop subject, of course, to Smith’s equities for commissions and advances made by him, as the agent of Northrop; states that the papers remained with Goodrich & Boardman for a long time and were lost; that Smith learned that Northrop had abandoned the trade, etc. Smith took possession of the land in 1840; paid taxes until sale to Danley in 1851 or ’52. In 1850, Northrop died intestate and without children. In 1852, Danley, knowing all the facts, purchased the lands from Smith for five hundred dollars. Smith makes a quit claim deed; Danley takes'possession of the lands and had them surveyed off into town lots, etc.; held, the same until 1855, adversely, and until commencement of suit, so far as to pay taxes. In 1855 appellants, and those under whom they claim, took actual possession under an adverse title, exhibited in the bill. The bill then alleges constructive possession, by Smith, from 1840 until 1845 by payment of taxes, and then by agent Bond, until sold to appellee, in 1852. Twelve acres of the land were cleared; that Danley took possession, by his agent, in White county, who was known to appellants.

In 1853-4, Danley gave notice by advertisement and by agent, warning all persons not to trespass on said lands. On the 20th of April, 1852, Danley got a quit claim deed from Northrop’s father; the brothers and sisters, except Thomas J., refusing to make a deed. Thomas J. gave Danley a quit claim deed dated 30th of December, 1857.

The bill then sets out Jones’ deed from Creagh, on the 10th of May, 1855; Jones’ deed to Cheek, of June 7,1855; Sheriff’s deed to Byers, January 1, 1856; Jones’ deed to Heard, June 22, 1855; to Cheek, October 7, 1855; to Mays, October 20, 1855 (all recorded), and alleging them fraudulent and void; that appellants knew of his claim and took forcible possession of the lands. The bill then alleges perfect title to .said lands •both in law and equity, and by adverse holding from 1840 to 1855, and prays for decree for title, possession and cancellation of appellants’ deeds; but if the proof is not sufficient to support his allegations as to title, that a decree be rendered declaring he has an estate during the life of Henry Northrop, with a fourth remainder in fee, and for the enforcement of Smith’s lien for advances, commissions, etc., and for general relief. This bill was filed April 2, 1858.

July 5, 1858, appellee filed amended bill making certain persons parties to the bill, and decree.pro confesso was entered up as to certain defendants.

January 1,1859, defendants, except Cheek and Mays, files demurrer.

January 4, 1859, demurrer was overruled and defendants .stood and decree pro confesso went against them. Cheek and Mays filed answer to the bill denying the allegations to the same; setting up statute of frauds, and that they are innocent purchasers without notice, and stating their purchase from Pace, etc. After which the case was continued from time to time upon orders-to take depositions, etc.; when, at the April term 1869, a final decree was entered against the appellants for the possession of the lairds, and order of reference as to the rents and profits, etc.; to reverse which, the appellants-prayed and obtained an appeal to this .court.

The above statement of facts presents the following propositions for adjudication, viz:

First. Did the payment of the purchase money for the land by Smith, an agent, create a resulting or equitable trust in his favor, upon the failure of the principal to refund the-money thus advanced, a deed having been executed in the name of the principal ?

Second. "Was the possession of the land by Smith,' and Danley, his vendee, of such a nature, and held for such a’ length of time as ripened into a perfect title?

Third. Can partition be had, in chancery, when the property to be divided is held adversely, or when the title is in dispute ?

Resulting trusts, or those which arise by implication of law, are specially excepted from the operation of the statute of frauds. Gould’s Digest, Sec. 8, 549. Trusts of this sort were said by Lord Hardwick, in Lloyd vs. Spillet, 2 Ath., 148, to arise in three cases: First, When an estate is purchased in the name of one person, but the money or consideration is given by another; Secondly, When a trust is declared only as to part and nothing said as to the rest, what remains undisposed of results to the heir at law, and they cannot be said to be trustees for the residue; and, Third, In cases of fraud and when transactions have been carried on mala fide.

Judge Lomax, in his copious and valuable Digest of the Laws, respecting Real property in the United States, considering the doctrine of implied trusts, lays down thirteen different causes wlieu sucli a trust may be raised. For the purpose of considering the case now before us, it will only be necessary to copy the second and eleventh. He says an implied trust is raised “where an estate is purchased in the name of one person and the consideration is paid by another;” also, “where fraud has been committed in obtaining; a conveyance.” 1 Lo-max Digest, 200.

Thus we believe it to be a well established principle, both in England and most of the United States, that if one man purchases an estate in lands and does not take the conveyance in his own name, but in trust of another, the trust of the legal estate results to him', who pays the purchase money. This trust results by the mere operation of law, though the person, in whose name the conveyance is taken, executes no declaration of. trust, and may be proved by parol evidence. Sugden on Vendors, 443; Gascoigne vs. Throing, 2 Vern., 366; Ross vs. Nevill, 1 Wash., 16; Foster vs. Trustees of the Atheneum, 3 Ala., 302; Dillard vs. Crocker, Spears, ch. 20; Dorsey vs. Clarke, 4 Har. & J., 551; Bank of the United States vs. Covington, 7 Leigh., 466; Paul vs. Chantian, 14 Miss., 580; Page vs. Page, 8 N. H. 187; Long vs. Steyer, 8 Texas, 460; Purdy vs. Purdy, Md., Ch. Dec., 547; Creed vs. Lancaster Bank, 1 Ohio State R., 1; Banan vs. Banan, 24 Vt., 375; Strumpler vs. Roberts, 18 Penn. State R., 283; Barker vs. Vining, 30 Maine, 121. However, in some of the States, the law does not allow a trust to result in favor of one paying the purchase money, if the deed is taken in another’s name, if there is no fraud in the transaction. This is the rule in New York, with this-exception, “unless it is done without the knowledge or assent of the party paying the money, or unless the party paying the money have creditors, in which case a trust results in their favor. So, if A purchases land with B’s money and takes a deed to himself, with the knowledge of the owner of the money, -it will not raise a resulting trust in his favor.” Norton vs. Stone, 8 Page, Ch. 222; Jenks vs. Alexander, 11 Page, Ch. 619; Brewster vs. Power, 10 Page, Ch. 562; McCartney vs. Bostwick, 32 N. Y., 59. A like rule prevails in Minnesota, Kentucky, Indiana and Michigan. But in Minnesota, if one pays money for an estate and takes a deed in another’s name, it will be presumed to bo a fraud. In Indiana, if an agent pays his principal’s money and takes a deed in the name of a stranger, without the knowledge and asseirt of the principal, it will raise a trust in favor of the latter. Michigan, a trust cannot be raised by parol. Sumner vs. Sawtelle, 8 Minn., 318; Graves vs. Graves, 3 Met., 169; Wynn vs. Shuner, 23 Ind., 375; Grosbeck vs. Seely, 13 Mich., 345. It may be considered, also, as well settled in this country, that a resulting trust may be established, upon parol evidence, against the answer of the grantee denying the trust; but the evidence must be full, clear and satisfactory. Boyd vs. McLean, 1 Johnson’s Ch. 582; Elliot vs. Armstrong, 2 Blackford, 199; Snelling vs. Utterback, 1 B. M., 609; Larkins vs. Rodes, 5 Porter, 196; Page vs. Page, 8 N. H., 187.

There is no doubt, also, that such a trust may be set up after the death of the nominal purchaser. Freeman vs. Kelly, 1 Hoffman, 90. By far the most numerous class of cases, where the doctrine of resulting trusts has been sought to be applied, are those where the purchase money for the conveyance of land has been paid in part or in whole by one man and the title deed taken in the name of another. The case before us is somewhat different from those heretofore adjudicated. Here wo have an authorized agent making a purchase of land for a principal; the agent paying his own money for the land and the vendor making a deed to the principal, who did not afterwards refund the purchase money thus advanced or in any way endeavor to ratify the acts of the agent. In the meantime the agent holds the muniment of title and takes possession of the land. Do these facts create an equitable lien, in the nature of a resulting trust, in favor of; the agent? A resulting trust is a mere creature of equity, founded upon presumptive intention and designed to carry that intention into effect, not to defeat i t. It will not attach in the person paying the purchase money, if it was not the intention of either party that the estate should vest in him. Botsford vs. Burr, 2 Johnson’s Ch., 405; Steeve vs. Steeve, 5 Ib., 18; Syme vs. Harder, 1 Page, 494; White vs. Carpenter, 2 Ib., 218; Phillips et al. vs. Cramond, 2 Wash. C. C., 441; McGuire et al. vs. McGowen, 4 Dessaussure, 487; Page vs. Page, 8 N. H., 187; Elliot vs. Armstrong, 21 Blackford, 199; Sedge vs. Morse, 16 Johnson, 199.

Equity will not make contracts for parties, but will look close-to their intention and design in reference to their transactions, as manifested by the circumstances of the case, and, when discovered, will endeavor to carry out and enforce the same. And even when intention has been frustrated or turned aside by fraud or mistake, equity will control and cancel such fraudulent transactions, correct the mistake and give the property or title its proper direction, in strict accordance with the intention or purpose of the parties.

But it is not necessary to look to the circumstances which surround this case for the evidence of intention, but simply to the agreement of the parties as alleged in the bill. Then it appears that Smith, as the agent of Northrop, was to purchase the lands for him, which he did do, and advanced the purchase money, not as a loan to, him, upon the security of the lands, or for the purpose of converting the money into lands, but as an advance to Northrop to enable him to accomplish the objects of his principal.

From all these circumstances no intention of a trust can be gathered. It was not intended by Smith to invest the money advanced to Northrop, in said lands, but as the agent of Northrop, and upon the faith of his agreements to pay the same back, with an hundred dollars for his services and necessary expenses, he paid the money. The money advanced was not made by Smith for a specific part of, or direct interest in the lands, but simply as the agent of Northrop, for him and upon the faith of his personal credit and previous agreement.

It being evident, from the above agreement and authorities, that Smith can have no trust -declared in his favor, it may be asked, inasmuch as he was the. agent for Northrop and advanced the money to make the purchase, what equities he had for such advances, or what remedy had he against Northrop or the lands purchased ?

First, If Northrop was a non-resident of Arkansas, as alleged in the bill, he could have made out his account against him, attached it to the proper affidavit, under the statute, attached the lands and had them sold to pay the debt. See Gould’s Digest, 163, Rec.s. 1,2,3, etc. Here would have been a complete remedy at law.

Second, Smith could have sent his account to Illinois and there brought assumpsit for money paid for Northrop, at his request, and Northrop, not being insolvent, lie in this way had another complete remedy at law.

Independent of these personal remedies, agents have, for the payment of their commissions, advances, disbursements and responsibilities, in the course of their agency, an established right, which in many cases becomes more impox-tant and effectual than axxy other xxxeaxxs of remedial redress; that is to say, an agents’ lien. Stqry, iix his work on agency 433, defines this.lien “to be a right in one man: to retain that which is ixx his possession, belonging to another, xxntil cex-tain demands of him, the person in possession, are satisfied. It is a qualified light therefore, which may be exercised over the property of another pex-son.”

These liexxs of agents, like all liens, arise by opex-atioxx of law. Chief Jxxstice Gibbs, in Wilson vs. Heather, 5 Taunton, 642, said: “ The right of lien does not arise out of any contract whatsoever’, but out of a right to hold property, until the party claiming the lien has been paid for the operation he perfox-ms.”

Thus we see, if Smith was aix agent of Northrop ánd, in carrying out the objects of his agency, he advanced money ox-incurred expenses for his principal, he had a lien and only a lien upon the title papers and the land for his commissions, services, expenses and advances, which grew out of this relation and was -incident to Northrop’s indebtedness to him. The extent of this was but a mere right to retain them until his demands were satisfied, and in this case, the property being real estate, he could retain it until the rents and profits had discharged the lien. In case of a mortgagee who ejects his mortgagor, he can only hold the lands until the rents and profits pay his debts or discharge his lien. So, if a mortgagor voluntarily surrenders the possession, no absolute estate passes to the mortgagee by virtue of his possession, but simply a right to retain the same for certain purposes, nor is it any adverse holding so as to ripen into a title, except upon mere presumption of payment. 2 Hilliard on Mortgages, 16.

It cannot be contended that an agents’ lien stands upon higher ground than that of a mortgage created by the solemn act of the parties.

Then Smith, having no title, could not convey a greater one to Danley, the appellee, and having merely a lien which could not exist for a moment without possession, it could not be transferred, and the effort of Smith to release the same to appellee, and delivering him the possession, as alleged in the bill, destroyed the lion and the appellee took, nothing by his release. Story on Agency, See. 360, 367. Hence, appellee can have no title or right of possession to the lands in controversy by reason of Smith’s lien.

Implied liens and equitable mortgages are the creatures of a court *of equity, which Smith, by timely application, could have invoked, and if he had obtained a decree to that effect, he could have enforced it against the lands. Such liens and mortgages are incidental to the debt and if that debt has been paid or barred by the statute of limitations, the lien is gone; therefore, the indebtedness from Northrop to Smith, having been created in 1840, Smith failing to apply the remedies at his command within three years, the period of limitations applicable to such demands, he was barred from enforcing them, and with the death of the remedy the lien ceases to exist.

We next come to consider the question as presented in our second proposition.

Was the possession of the land by Smith, and Danley, his vendee, of such a nature and held for such a length of time as ripened into a perfect title ?

It has been well settled that the possession upon which the statute of limitations will operate, for the holder, must be adverse, actual, continuous and unbroken for the full period prescribed by the statute — if there be an interruption of holding, the term of adverse possession is closed and upon a resumption of possession, a new point is made from which limitations will again begin to run-. Angel on Limitations, Chap. 31, Sec. 84; Potts vs. Gilbert, 3 Wash. C. C. R., 478; Doe vs. Campbell, 10 John., 477; Roderick vs. Searle, 5 Seg. & Rawles, 240; Anderson vs. Mulford, 1 Haywood, 820; Doe vs. Ridley, 1 N. C. 282; May vs. Jones, 4 Litt., 23; Sharp vs. Johnson, 22 Ark., 79.

The possession of Smith and Danley must have been adverse, hostile. What constitutes possession, and what evidence is sufficient to support it, are, of course, questions of law. Entering or appropriating the profits under a claim of exclusive right or with palpable intent to possess exclusively, when the other is not in actual possession, is an actual ouster and any actions palpably displaying such intention are evidence competent to render the entry an ouster. See the cases cited in Parker vs. Proprietors of Locks and Canals, on Merrimack river, 3 Met., 91; Prescott vs. Nevers, 4 Mason, 330; Marcy vs. Marcy, 6 Met. 360; Abercrombie vs. Baldwin et al., 15 Ala., 364; Calhoun vs. Cook, 9 Barr., 226; Dukeman vs. Parish, 6 Ib. 212; Doe vs. McCleary, 2 Carter, Ind. 405; Johnson et al. vs. Tonnelin, 18 Ala.

Sole possession or retainer of the profits for a great length of time, is competent evidence for a jury, of an intent or claim to possess exclusively, therefore, competent evidence of actual ouster. Chambers vs. Pleak, 6 Dana, 426; Bolton vs. Hamilton, 2 Waits § Sergeant, 294; and cases there cited. It must have been actual. There must, therefore be, in all" cases, an entry, in order that an ouster may be made, and an adverse possession begun. And it would seem that the legal notion of an entry to divest a possession, is the same with that required to revest possession, viz: a going upon the land with palpable intent to claim the possession as his own. Miller vs. Shaw, 7 Seg. & Bawles, 129; Lessees of Holtzapple and wife vs. Philibaum, 4 Wash, C. C. 356; Altemus vs. Campbell, 9 Watts, 28.

The nature of this claim of possession which must accompany the intrusion into the land, in order to constitute an entry, appears to be, not the assertion of a previously existing right to the land, but the assuming of a right to the land from that time, and a subsequent holding with assertion of right. This is what is meant when it is said that the possession must be taken under claim of right. This intention to claim and possess the land, is one of the qualities indispensible to constitute a disseisin, as distinguished from a trespass. During vs. Barnett, 11 Peters, 41. For one going upon the land and staying there, without claiming or asserting the land to be his own, is a mere naked intruder or trespasser, and effects no ouster. Society for the Propagation, etc. vs. Paulet, 4 Peters, 480; Lessee of Clark et al., vs Courtney, 5 Ib., 320. To bar a legal title, an entry on the land is indispensible; payment of taxes, alone, will not do. Sorber vs. Willing, 10 Watts, 141; Humphreys vs. Rohn, 480, 8 Ib., 78; Naglee vs. Albright et al., 4 Wharton, 291; Murphy vs. Lloyd, 3 Ib, 538.

There seems to be no cases to contradict this, when a legal title is to be barred. In McCall vs. Wily, 3 Watts, 69, there was an entry, and payment of taxes was relied on to define the extent of the ouster or the amount of land that was actually held.

It must have been continuous. If the property is of a character to admit of permanent, useful improvement, the possession should be kept up during the statutory period, by actual residence, or by continued cultivation or. enclosure. Johnson vs. Irwin, 3 Serg. & Rawle, 291; Roger vs. Renton 10; Ib. 303; Jackson vs. Schoonmaker 2, Johnson, 230.

Occasional occupancy, with payment of taxes, will not do; Sorber vs. Willing, 10 Walts, 141; but if the same is not such as to admit of residence or improvement, such use and occupation of it, as from its nature it is susceptible of, with claim of ownership, will be an actual possession. West vs. Humphreys, 162.

It must have been unbroken. As to whether several adverse possessions can be tacked together, the States differ among themselves. In South Carolina, in King vs. Smith, Rice 11, it was decided that they cannot be joined by conveyance from one to another. In the case of Lessee of Potts vs. Gilbert, 3 Wash, C. C., R. 475, Judge Washington was clear that when several persons enter into possession, the last cannot tack the possession of his predecessor, to his own, and even if there had been conveyances, he asks; “What had any of them in point of title to convey.” In Mason vs. Small, 9 Barr, 194, it was said that Judge Washington’s decision in Potts vs. Gilbert, was never acknowledged as sound law by any land lawyer or judge of that State.

In New York, Vermont, Massachusetts, Pennsylvania, Kentucky and Tennessee, possessions may be tacked, 'if one comes in under the other, and the possessory estates are connected and continuoirs, not otherwise. Brandt vs. Ogden, 1 Johns, 156; Jackson vs. Thomas, 16 Ib., 298; Winslow et al., vs. Newell, 19, Vt., 164; Ward vs. Bartholomew, 6 Pickering, 410; Wade vs. Lindsey, 6 Met., 407; Melvin vs. Proprietors of Locks and, Canals on the Merimack river, 5 Ib., 15; Overfeild vs. Christie, 7 Serg. & Rawles, 173; McCoy vs. Trustees of Dickinson College, 5 Ib., 254; Adams et al. vs. Ternnan et al., 5 Dana, 399; Chilton et al. vs. Wilson’s heirs 9 Humph. 399.

It seems also, that the possession, to be an ouster, must bo of such a nature, and of such notoriety as to. raise the presumption that the owner will have notice of it and its extent. See Proprietors,, etc., vs. Call., 1 Mass., 483; Proprietors, etc., vs. Springer, 4 Mass., 416; Herbert vs. Hanrich, 16 Ala., 581. As to the extent of the possession it is generally conceded that if one enters into possession under a deed, his possession is deemed to extend to the bounds of that deed, though he actually possess only a small part. In Ewing vs. Bennett, 11 Peters, 41, it is said: “It is well settled, to constitute an adverse possession, there need not be a fence, building or other improvement made; it suffices for this purpose, that visible and notorious acts of ownership are exercised over the premises, in controversy, for twenty-one years, after an entry under claim and color of title.”

Applying the above tests and principles to the possession of Smith and Hanley, we are compelled to say that there was no such adverse, continuous and ■ intentional possession, as will satisfy the requirements of the Statute of Limitations, in conferring any right or title whatever, upon them, by reason of such possession. Because, under the Act of January 4, 1851, the law then in force, the period of limitation for real property, in this State, was ten years. English’s Digest, 98, Section 1.

The allegations of the bill are, that Smith, through his agents, at Little Rock, took possession of said-land in 1840, and continuously, uninterruptedly and adversely to all the world, contimied tó have notorious and' peaceful possession; when the proof only shows a constructive possession, by payment taxes up to 1845, when he sent his agent, Bond, to take possession, and cultivated the cleared land, and paid taxes until 1849. See Dep. 243. Hanley then bought of Smith, and alleges that he took possession, but nowhere is it shown that he held actual possession until the expiration of the ten years, except by the payment of taxes for a few years. Never occupied any portion of them, or improved or cultivated them, or even manifested any claim thereto, except by having his agent, Robbins, survey a portion of it off into town lots, which, as we have already seen, is not a sufficient possession under the Statute of Limitations.

This case, also, presents the question, whether partition can be had, in chancery, when the property, asked to be divided, is held adversely, or when the title is in dispute. In the case of Adams vs. Ames Iron Co., 24 Conn, 330, the court says: “It was an established rule of the common law, by which the writ of partition would be only between co-partners; that the plaintiff must be in possession or seized of the lands when the writ was brought; and since the remedy by partition has been extended to joint tenants and tenants in common, the .same rule has been uniformly adopted,.whether the remedy is sought by writ or bill in equity.”

In the case of Leno vs. Patterson, 1 Watts & Serg. 185, it was determined that an adverse holding by one tenant in common for any length of-time, however short, previously to the institution of an action of partition, will bar a recovery in such form of action. In the case of Daniel vs. Green et al., 42 Ill., 473, wherein one party was holding adversely, to the one who sought partition, the court says : “ To permit the bill to be maintained, would be to hold that.purely legal titles may be tried by a suit in Chancery, instead of by an action of ejectment, in every case to recover lands adversely held.”

In the case of Longwell vs. Bently, 3 Grant’s cases, Penn., 177, the court says “ This action cannot be supported without proof that the parties, at the commencement of the suit, held the land together. .Proof that the one in possession held adversely for any length of time, however short, is proof that they did not hold together, and entitled the defendant to a verdict.’’ In the case of Bonner et al. vs. Props, of the Kennebeck Parchase, 7 Mass., 475, the court observes, that partition only lies for persons actually seized, and the petitioners were non-suited.

"We do not, however, conceive that the rule, above stated, extends to lands unoccupied, when there is only that possession in law which is connected with the title to the land. There could be no adverse possession under the circumstances and those having the legal title would, in law, he seized of the land in such sense that they would he entitled to a partition. But when one is in the adverse possession of land, claiming it exclusively against all others, another, claiming title and out of possession, cannot maintain his bill. He must first try his right in an action of .ejectment, and after that is established, he may institute his proceedings for partition.

In the case before us, the bill distinctly alleges that the complainant is out. of possession and that other parties, than those he asks to have the lands divided among, are adversely in possession and claim to own them under a title adverse to them. Which has the better title is purely a legal question and can only b¿ settled in a court of law.

It is a maxim of equity jurisprudence, of universal application, that where a ppirty has a full, adequate, and complete remedy at law, he cannot seek relief in a court of equity; such we deem the appellee has had at all times. Not even the quia timet jurisdiction of a court of Chancery can be called into operation, except upon an apprehension of an injury to a party from an assertion of an injury, which he has no means of procuring to be tried in the ordinary tribunals of law.

It is clear, from the examination of the whole case, that whatever right or title appellee has to the land in question, he derives through the Northrop deeds, and upon the strength of them he must rely. The titles thus derived are legal ones, and the controversies arising upon those deeds and their construction are purely questions of law. However, it may not be deemed improper to express our opinion on these titles. But the court does not assume a definitive decision upon them, with a view to a decree upon that basis, as that decision is properly to be made by a court of law, but with a view to prevent further litigation upon that point.

From the deeds presented in the record, the appellee has the life estate of Henry Northrop in the lands, as stated in tbe bill; upon tbe death of said Northrop, he is entitled to one-fourth of the remainder.

One of the witnesses stated that Henry Northrop is now dead, but inasmuch as this fact is not alleged in the bill, we have treated the case as though he were alive.

The decree of the White Circuit Court, in Chancery, is reversed and the cause remanded with instructions to dismiss • the bill for want of equity. ■


author: McClure, C. J.

text:
    TULEY et al. v. BRADY et al.
    Execution Sabes — Title of purchaser. — The purchaser, at a sheriff’s sale, ea* not acquire any greater interest than the judgment debtor possessed at the rendition of the judgment, and where the title or interest so acquired comes in litigation, it devolves upon the purchaser to show what'the title or interest of the execution debtor was.
    Purchaser without Notice — Defense of, what plea or answer must show. — The answer or plea of a party claiming to be an innocent purchaser, must state ' first, the deed of purchase, the date, parties and contents; second, • that the vendor was seized in foe and in possession, and third, a Iona fide payment of the purchase money and want of notice down to the payment of the purchase money and the execution of the deed.
    APPEAL FROM JEFFERSON CIRCUIT COURT.
    Hon. Henry B. Morse, Circuit Judge.

      Garland & Nash, for Appellants.
   McClure, C. J.

On, the second of April, 1860, Milton B. Tuley sold and conveyed to one William D. Baird certaiii lands .in Jefferson county. At the time of the sale, Baird paid four thousand dollars, and executed his two writings obligatory in the sum of twenty-five hundred and ninety-six dollars •each, payable on the 2d of April, 1861 and 1862, respectively. The deed of conveyance is in the usual form, save that it contains the following condition: “ But it is nevertheless expressly understood and agreed by the parties, that the said two notes for the two thousand five hundred and ninety-six dollars and thirty cents each, shall be and remain a lien upon said land and premises until ‘the same shall be fully paid off, with all interest that may accrue threon; then this deed is to vest an absolute title in the said party of the second part, his heirs and assigns forever.” On the 16th of August, 1866, M. B. Tuley ■assigned the two notes, alluded to, to Enos S. and Albert L. Tuley.

On the 21st of February, 1868, Enos S. and Albert L. Tuley filed their bill, in the Circuit Court of Jefferson county, against Charles W. Ready, as administrator of William D. Baird deceased, Catherine Valentine, Philo G-. Valentine, William Baird, Charles E. Baird, Violet Baird, Aman'da Baird and William P. Grace.

The object of the bill, as to all the defendants, except Grace, was to enforce a vendor’s lien.

In December of 1865, Grace obtained a judgment against William B. Tuley, in the sum of $690 65. Execution issued and levy was made upon the lands sold and conveyed to William D. Baird, by Milton B. Tuley, as the property of said Milton. The'property, so levied upon, was advertised and sold to Grace- for $100.

The bill recites the above facts, and alleges that the pretended title of Grace throws a cloud around the rights of the ■appellants, and greatly diminishes the value of said lands, if the same should be ordered to be sold to satisfy their said lien. The prayer as to Grace is, that his title, thus acquired, may be cancelled and held for .naught. The prayer as to others is, that they may be made parties defendants, and that the appellants may have a decree for the sale of the lands.

Ready, the administrator of Baird, made no response, nor did either of the Valentines. Grace filed an answer and cross bill, making Enos S. Tuley, Albert L. Tuley, Charles ML Ready, administrator of William D. Baird, deceased, Catharine Valentine, Phillip Valentine, William Baird, Vio.let Baird, Charles E. Baird, and Amanda Baird, parties defendants. The cross bill sets up a judgment, execution and sale of the property, described in the deed of Milton B. Tuley to William D. Baird, to himself. It admits that, on the day of his purchase, Owen, acting as the agent of Enos S. and Albert L. Tuley, notified him of the sale of the property by Milton B. Tuley, to Baird, and of the lien reserved in favor of the unpaid notes for the purchase money, then in Owens’ hands, as the agent of the Tuleys ; but he -charges that the assignment of the notes, to the Tuleys, was made without consideration, and for the purpose of defrauding the creditors of said William B. Tuley, one ox whom was Grace; that Milton B. Tuley and William D. Baird are both deceased; that the heirs at law of Baird, as well as the said Ready, administrator of Baird, have abandoned the right to perfect the title to said lands, and do not pretend to have any interest in the same. Thorelief asked in the'cross bill is, that he, Grace, upon final hearing,- may have a decree fully confirming and establishing his title to said lands as against the claims and demands of the complainants, in the original bill, and also against any claim or demand which the heirs at law, or the estate of the said William D. Baird may pretend to have in or to said lands, and that they and each of them may be perpetually restrained and enjoined from over proceeding to set up or establish any claim or title to said lands, by reason of either the sale and purchase, mentioned in said bill, or the assignment and transfer of said lands by the said William B. to the said complainants.

Enos S. and Albert L. Tuley filed an answer to the cross bill of Grace — a guardian ad litem was appointed for the infant heirs of Baird, who answered that he knew nothing of the facts set up in the bill, cross bill or answer of the parties, and asked the protection of the court.

At the final hearing, a decree, pro eonfesso, was taken as to Ready, the administrator of Baird, Philo G. Valentine, and Catharine Valentine. It was further decreed that Enos 8. and Albert L. Tuley were not entitled to any relief whatever, and that the said William B. Tuley, at the time of the assignment and transfer of said notes, mentioned in said bill, executed said assignment in fraud of the rights of said Grace, and in order to defeat the collection of the judgment of the said Grace; that there ivas no consideration for said assignment, .and that said bill be dismissed with costs. It was further decreed that Enos 8., and Albert L. Tuley, as well as the other defendants to said cross-bill, be and the same are hereby enjoined from setting up any claim to a lien on said lands by reason of the premises set up in said original bill; whereupon the complainants appealed to this court.

The deed of Milton B. Tuley, to William D. Baird, was not recorded at the time of the sale. The purchaser at a sheriff’s sale cannot acquire any greater interest than the judgment debtor possessed at the rendition of the judgment. This being true, a very pertinent inquiry arises, and it is : What interest did William B. Tuley have in the land by him deeded to Baird ? The facts are that Milton B. Tuley, in April of 1860, sold and deeded the land to Baird, in consideration of $9,192 60, four thousand dollars of which was paid at the time of the purchase. But Grace claims that he had no notice of this sale, because the deed from Tuley to Baird was not placed of record, and insists that, because of this, he is' a purchaser without notice. If it be true that Grace is a purchaser without notice, he is entitled to protection, and not otherwise. Now let us examine the facts, as to whether he was an innocent purchaser. W. F. Owen testifies that, “on the day of sale, he, acting for the complainants, gave notice that Milton B. Tuley had sold the land, about to be offered for sale, to Baird, and had-made him a deed.” To whom this notice of claim was given, or in whose presence it was made, does not appear; but it does appear, from Grace’s answer, that Owen, one of the attorneys of the complainants, gave notice that the “complainants claimed a lien on said lands for the-balance of the purchase money,” on the day and at the time the sheriff put up and offered said lands for sale.

This admission, of itself, might be strong enough to amount to notice of the sale of the lands to Baird by Tuley. Upon this point, however, we shall not express an - opinion, as the testimony of Grace,, himself, evinces a knowledge of the sale, obtained from Milton B. Tuley. Grace testified, “that after the recovery of the judgment against Milton B. Tuley, and before the assignment of the note to Enos S., and Albert Lr Tuley, he had a conversation with Milton B. Tuley, and said Milton told him that he had back the land,” (referring to the land mentioned in the deed from Tuley to Baird.) This conversation was had before the sale. From the facts and circumstances recited, it becomes apparent that Grace must have known of the sale from Tuley to Baird. If Tuley “had the-land back,” it is for Grace to show that fact, or he takes-nothing by the purchase at the sheriff’s sale. There is a demurrer clause in the answer of the Tuleys to the cross bill of Grace, alleging that said cross bill does not, on its face, show or disclose a case for relief, either at law or in equity.

This court held in Byers vs. Fowler, 12 Ark., 218; and in Cook vs. Bronaugh, 18 Ark., 192, that “the answer of a jaarty claiming to be an innocent purchaser, must state :

First' The deed of purchase, the date, parties and contents.

And Second, That the vendor was seized in fee and in possession.

And Third, A bona fide payment of the purchase money, and want of notice down to the.payment of the money and the execution of the deed.

In the case at bar, Grace, in his cross bill does not attempt to allege any title whatever in Milton B. Tuley, but,' on the contrary, admits in his own testimony and answer, and cross billjj. that he knew the title to the property, which was levied on and sold by the sheriff and purchased by himself, was in .Baird and not in Tuley.

Before one can have relief, such as is asked in the cross bill, the party asking it, must show, affirmatively, that his judgment debtor had an interest in the lands sold, and just what that interest was. The cross bill does not even setup any title to the property, in Milton B. Tuley at any time, or that Tuley was ever seized of the fee ; nor is there a denial of notice down to the time oP payment and the execution of the deed.

Having determined that Grace acquired no title by reason 'of the sheriff's sale, it is plain that the demurrer to the cross bill ought to have been sustained. The complainants having made him a party defendant to the suit, he had a right to attack the assignment of the notes, to the complainants, and show that it was fraudulent, and a fraud upon his rights. If his answer and cross bill had been so framed, the court, after having declared the assignment a fraud, and without consideration, might have ordered the property sold, and the proceeds distributed among the creditors of "William B. Tuley, deceased; but the bill was not so. framed. The assignment of the notes, whether fraudulent or otherwise, did not confer any title to the lands, in either Grace or Tuley; because the legal title to the land passed to Baird, with the execution and delivery of the deed. The assumption, in the bill, that Tuley made a conditional sale, is erroneous, as it is clear from the face of the deed, that the condition annexed to it was not for the purpose of retaining title, but for the purpose of protecting and securing the balance of the purchase money. The legal title to the property, as we have said, is in Baird; at his death, it passed to his heirs, subject to such incumbrances and liens, as he or the law- may have fix:ed to it. We agree, with the court below, that the assignment to the complainants, by Tuley, was fraudulent and without consideration* and for the. purpose of defrauding creditors, and the decree of the court, in dismissing the bill of complainants, is affirmed.

Grace, as we have already shown, has no interest or claim, to the lands purchased by him, at the sheriff’s sale*; this being true, it was erroneous to grant him a perpetual injunction against the complainants and the other defendants ; for this error, the cause is remanded, with instructions to dismiss the cross bill for the want of equity therein. It may be asked, at this point, what becomes of the notes ? The answer is, that they are properly assets of the estate of Tuley, deceased, whose legal representative is entitled to the possession thereof. Grace, and the other creditors of the estate of Tuley, deceased,inasmuch as the assignment to the complainants has been declared fraudulent, are bound to look to the same fund for the payment of their debts and judgments, as though no fraudulent assignment had been made.


author: Gregg, J.

text:
    BASS et al. v. HANEY.

      Practice — When decree affirmed with damages. — "Where it appears from the record that the appeal is taken for delay, the decree or judgment, of the . court below; will be affirmed with damages.
    APPEAL EltOM I10T SPRING CIRCUIT COURT.
    IIon. .John Whytocic, Circuit Judge.

      M. L. Jones, for Appellants.

      Garland & Nash, for Appellee.
   Gregg, J.

On the 15tli of February, 1870, the appellee commenced his suit, in Hot Spring county, to foreclose a mortgage given to secure $900. At the March term, following, both parties appeared and the appellants filed a set-off, which appellee admitted to be correct and no further defense was made. The cause was submitted to the court and a finding of $470 in favor of appellee, for which a decree was rendered, the mortgage foreclosed, and an order to sell the property in case payment was not made. On the 7th of next September, after a fieri facias had been issued for the sale of the property, the appellants presented to the clerk of this court, a transcript and supersedeas' bond, and prayed an appeal, which was granted and proceedings stayed; since which time they have taken no steps whatever to prosecute their appeal, and .the appellee has filed his motion for an affirmance'of the decree, etc. -

The record is clear, and the case fully appears to be one for delay.

The decree is therefore affirmed, with ten per centum damages on the amount recovered, and ordered to be certified to the Circuit Court, in chancery, of Hot Spring county, to be there carried into effect.


text:
    McDIARMID v. FITCH et al.

      Reqistkajrs — Duties of, •etc. — Registrars are required, by the act of July 15, 18G8, so soo.n as their, duties are closed, to deposit the original books with the clerks of their respective counties, and on failure to do so, mandamus will lie to compel them.
    PETITION FOR MANDAMUS.

      2$. W. Ganü and Hice & Benjamin, for Petitioner.

      Montgomery & Warwick, for Respondent.
   Gregg, J.

Individually, I have heretofore announced an opinion against the jurisdiction of this court in eases like this, which is an original petition filed in this court, December 26,1870, in which, it is alleged that .the defendant was president of the Board of Registration, in said comity, for the year 1870.

That the board had registered, or pretended to register, the voters of the county; that, before the 8th day of November, the registration was completed, and the books closed, and that it was the duty of the defendant, as soon as possible, to deposit the original books with the clerk of said county, and that he had frequently demanded said hooks of the defendant, hut he willfully and maliciously neglected to deposit the same, and a prayer for a mandamus, ordering and compelling him to deposit said hooks, etc.

On the 9th of January, 1871, the defendant appeared here, and filed his response, in which he admits he was duly appointed and acting president of said Board of Registration, and that prior to the general election, held bn the 8th day of November, the voters of said county were, by him and his associate members of the hoard, duly registered; that he had delivered a certified copy of said books of registration, but the original hooks, so made by them, had not been delivered to the petitioner, hut would be so delivered as soon as possible; and that said books, at the time of filing the petition herein, were not ready for delivery. And concluded with a. demurrer clause to the petition. The cause was not submitted until the 18th day of December, 1871.

The- thirteenth section of the registration law, approved July 15, 1868, among other things, provides that, “the registrars shall, as soon as possible, deposit with said clerk the original books of registration, which shall be kept and preserved among the records of the county,” etc. Other sections of that act provided -that, upon the close of the registration, the registrars, before the election, shall make certain copies of the registration books and furnish them to officers designated, and these provisions, being followed by the one quoted above, show the intention of the legislature to have been that, so soon as the registrars’ duties were closed, they should deposit the original books with the clerk of the county, that they might be preserved with the other records of the county.

These duties had all been performed more than two months before the respondent filed his answer herein. lie gives no excuse for having so long failed tó comply with the law, but says he will file them as soon as possible, and more than a year after the time his duty required him to file such books, he submits his case to this court, without giving any reason for having so long neglected to so file the books.

The response is wholly insufficient and a peremptory mandamus is awarded.


text:
    CHISM et al. v. TOOMER.
    Promissory if oxes and Bills — ■ When void by alteration, burthen of proof, etc. Any material alteration of a note or bill, after delivery, without the consent of the maker, either as to time of payment or amount, whether such alteration be favorable to the maker or not, renders the note or bill void, and a plea by the maker, setting up such ’defense, where the alteration appears upon the face of the note or bill, devolves the burthen of proof upon the payee or holder to show that the alteration was made before the delivery, or afterwards, by consent of the maker; otherwise, where the alteration does not appear upon the face of the note or bill.
    APPEAL ER0M JOHNSON CIRCUIT COURT.
    Hon. William N. May, Circuit Judge.

      English, Gantt & English, for Appellants.

      Eirst, The obligation filed before the Justice, as the foundation of the suit, shows no canse of action, and the Circuit Court should have dismissed the case, on appeal. Jjatham vs. Jones, 6 Ark., 371; Dicus vs. Bright, 23, Ark., 110,; Levy vs. Shurman, 6 Ark., 182.'

      Second, The court erred in sustaining the demurrer to the answer — it showed a material alteration of the instrument sued on, and was good as a special plea of non est factum. Story on Prom. Notes, 6 ed. see. 408; a and notes; Brown vs. Briggs, 20 Ind., 139; Gardner vs. Walsh, 32 Eng. L. Sf Eg., 162; U. States vs. Nelson, 2 Brock., 62; Me Vean vs. Scott, 46 Barber fN. Y.) 319; Hall admx. vs. McHenry, 19 Iowa, 521; Boalt vs. Broxpn, 13 Ohio (N. S.) 364; Morrison vs. Willy, 18 Md. 169; Martin et al. vs. Thompson et al., 24 Howard U. S. 316.

      Third, The court erred in rendering judgment for 10 per cent, interest, the words “until paid,” not being in the note. Brewster vs. Wakefield, 22 Howard U. S., 119.

      Clark & Williams, for Appellee.
    There being no bill of exceptions on motion for a new trial, there is nothing for this court to consider except the action of the court in sustaining the demurrer of appellee to the amended answer.
    The alteration of the note was not such as could vitiate — it was not fraudulent and could injure no one. The plea does hot pretend that the payee was privy to the alteration, or knew anything about it. See 2d Parsons on Cmt. T18, et seq., and notes.

   McClure, C. J.

-Suit was commenced before a Justice of the Peace, of Franklin county, in November 1860, by Joshua Toomer, on the following instrument:

“ One day after date we or either of us promise to pay J ames Patterson, Internal Improvement Commissioner, one hundred and ten dollars, for value received, with ten per cent, per annum from date.

Witness our hands and seals.

January 24, 1857.

(Signed)

1). A. R. Mays, [Seal.]

(4. II. Ciiism, [Seal.]

W. M. .Black, [Seal.]”

Chism, only, was served with process. After several mistrials before the Justice of the Peace, judgment was rendered in favor of Chism, and Toomer appealed to the Circuit Court. In the Circuit Court, Chism filed an answer, in the nature of a special plea of non est. factum. The plea in substance sets up, that he, Chism, wrote, signed, sealed and delivered, to the wife of Mays, a note for three hundred dollars which was to be signed by the husband of Mrs. Mays, and one W. M. Black; that, after said writing was delivered to the wife of Mays, the word “ three,” before the word “ hundred,” was stricken out and the word “ one ” written before the word “ hundred,” and before the word dollars; that he never directed or consented, and that he gave no authority whatever, to any one, to make said alterations ; nor did he. direct or consent to the delivery of the said writing to any person, after such alteration, or have any knowledge of such alteration until a short time before the commencement of this suit. The answer then concludes by saying, The said defendant therefore says that the said writing, so altered as aforesaid, is not his act and deed, wherefore he prays, etc.”

To this answer, a demurrer was filed, which was by the court sustained. The appellant declining to plead further, judgment was rendered against Chism for $110 debt, and $144 r% interest, and thereupon Chism appealed to this court.

The first ground of demurrer is, “ that the answer fails to aver any erasure,' alteration or interlineation in said writing, after delivery thereof to the payee, and fails to aver any participation in the alleged alterations, interlineations and erasures, by the plaintiff or his assignor.”

The second ground of demurrer was : “ that the alterations, erasures and interlineations, in said answer set forth, tending to diminish the rights of James Patterson, the payee of said writing, and the plaintiff in this cause, his assignee, appearing on the face of said writing, the law presumes said alterations to have been made before or at the timé of execution, without proof to the contrary, ■ And said answer failing to aver that the same were made after delivery of the writing sued on, and by or through the procurement of said Patterson or the plaintiff, is defective as a defense, although really made after the signing and delivery to Mays’ wife, as in said answer set forth.”

As will be seen, the demurrer admits that the instrument sued on was altered from a note of three hundred dollars to a note for one hundred and ten dollars. From the demurrer it appears that the court below was -of opinion, first, that it was the duty of Chism to implicate a holder of the note, after issue, in the alterations, or that the appellant would-be bound by such alterations as Mays and Black did afterwards make. The proposition is erroneous. Chief Justice Gibson, in Simpson vs. Stackhouse, (9 Barr. 186) in speaking of the alteration of a note said : “ As bills and notes are' intended for circulation, and as payees do not usually receive them, clogged with. impediments to their circulation, there is a presumption that they start fair and untarnished, which stands until it is repelled; and a holder, (mark you) a holder, ought therefore to explain why he took it branded with marks of suspicion. The maker of a note cannot be expected to account for .what, may have happened to it after it left his hands; but a payee or indorsee who takes it condemned and discredited on the face of it ought to be prepared to show what it was when he received it.”

The second conclusion to which the court seems to have come is, that inasmuch as Chism was not damnified by the alteration of his co-obligors, that the change was not material. This is not the test to determine whether the alteration is “ material.” The test is. whether the alteration made it a new note; and not whether the new note was more or less beneficial to one of the obligors. Some of the courts of the Union have held that if blank spaces be left in a note or bond, and the same were afterwards filled up, that consent would be implied. Wiley vs. Moon, 17 Serg. & Rawle, 438; Smith vs. Croker, 5 Mass. 538; 7 Blackf. 412.

An alteration of the day of payment, by extending the time, is an alteration which might be regarded as beneficial to any one of the obligors; yet such an alteration renders the note void as to those who did not consent. 3 Yeates, 391; 19 Penn. State, 119. In the case of Henman vs. Dickinson, 5 Bing., 183, a bill had been changed from £40 17s. 6d. to £49 17s. 6d., and the alteration appeared on the face of the bill, just as it does in this case. It was urged, on the trial, that the party producing the bill ought not to be compelled to show that the alterátion was made before acceptance, but that the onus of establishing this fact should be with the defendant. In response to'the proposition, Chief Justice Best said: “"We are of opinion, that where an alteration appears on the face of the bill, the party producing it must show that the alteration was made with consent of parties, or before the issuing of •the bill.” Tn this case, there is no such attempt, and the burthen of establishing the alteration is transferred from the holder to one of the obligors who positively and emphatically denies the execution of the instrument sued on. This cannot be done. In this case, Chism files a plea of non est factum; an issue, formed on this plea, would have determined what? It would have determined whether Chism executed and delivered the instrument sued on,. The demurrer confesses the plea, and admits that Chism did not- execute the instrument as sued on, but for three hundred dollars; it not only admits this, but it also admits that neither Mays or -Black had authority to make any alteration or changes which would bind the appellant, and that the appellant had no knowledge of the alteration until just,before the bringing of the'suit, which was a period of about ten years. The sole question to be determined, on the appellant’s answer, was: Bid Chism execute and deliver a note to Patterson, through Mrs. Mays, or any one else, for one hundred and ten dollars? Or, to put if a little broader: Bid Chism assent or consent that the note for three hundred dollars, which he delivered to Mrs. Mays, to be signed by her husband and Black, should bo changed to a note,for one hundred and ten dollars? If he did not, he is not bound. It may be said that the man who •was willing to be held for three hundred dollars, ought not to be allowed to complain -because he is only field for one hundred and ten dollars. The answer is, that there may have been considerations which would have induced Chism to have signed anote for three hundred dollars, that would not have led him to sign a note for one hundred and ten dollars. Eor aught wo know, Chism was to have paid a portion of the three hundred dollars, and if so, the altering of the'note, without his consent, to a note for one hundred and ton dollars, may have been the means of depriving him of the only consideration which moved him to sign the note in the first instance. Be this as it may, one thing is very clear, and it is, that Chism did not sign a note for one hundred and ten dollars, nor did he consent to the three hundred dollar note being changed into a note for one hundred and ten dollars; therefore it was not his deed, and tlie court erred in sustaining the demurrer.

There are two other questions argued by appellants’ .counsel, hut, under the view we have taken, the decision of which are not necessary to a disposition of this ease; but for the error aforesaid, the judgment of the Circuit Court of Franklin comity is reversed, and the court below is directed to overrule the demurrer to the appellants’ answer, and the cause is remanded.


text:
    HORNER, Adm’r, etc. v. THE STATE.

      Appeals — Will only lie from final judgments. — An appeal will only lie from ' a final order or judgment; the overruling of a demurrer is not such a final order or judgment.
    APPEAR EROM PULASKI CHANCERY COURT.
    TIon. T. I). W. Yonijsy, Chancellor.

      Gallagher & Newton and Garland & Nash, for Appellant.

      Benjamin, Solicitor General for the State.
   Gregg, J.

On the 24th of September, 1867, the appellee tiled her hill, in the Pulaski, county Chancery Court, to foreclose a mortgage on certain lands. Publication was had and, at the February term 1868, the appellant appeared as a claimant for the lands, and filed his demurrer to the hill, which was considered and by the court overruled, and upon that an appeal was prayed and granted to this court.

. Then follows a record agreement of the parties that the cause he referred to the master in chancery, that his report he made a of the being made, filed and confirmed, the record again states that an appeal was granted.

• Tbe chancellor should have proceeded to render a final decree upon the whole ease before' him.

It has been so often decided and fully settled, in this court, that an appeal will lie only from a final order or judgment, that argument or reference to cases is unnecessary; and to produce an argument to show that an order overruling a demurrer to the bill is not a final judgment in the cause, would not be expected This cause will be stricken from the docket.


author: Harrison, J.

text:
    PEAY & SCULL v. TANNEHILL & OWEN.
    Equity Practice — Decree bt couseht — How changed. — A decree, upon terms, by-consent of parties, cannot afterwards be changed by supplemental order, on application of one of the parties, as against the objection of the other.
    AUREAL PROM JEPPERSON CIRCUIT COURT.
    Hon. Henrry B. Morse, Circuit Judge.

      Carroll, Galloway & Bradshav: erial Watkins & Hose, lor Appellants.
    A sheriff is entitled, “for receiving and paying moneys on execution or process, when lands or goods have been taken in custody, advertised or sold, to two per centum commissions, and in no event shall be deprived of such commissions after an execution has gone into his bands, by any settlement or compromise between the parties.” Acts of General Assembly, Ark., 1868, lsi Session, p. 240; Crittenden County vs. Crump, 25 Ark., 235, and cases cited.

      Garland & Nash, for Appellees.
    There is no specification of charges, or an itemized account, no regular fee hill is presented, but the court allows the sheriff this sum ($149 50), and it is reasonable to suppose, in the absence of any exception being saved specifically; or any point being directly made, the court below was correct; this presumption is indulged by the appellate court fully and freely, .as to all rulings and judgments of the court below ; and it is therefore submitted, that this cause must be affirmed. Keizer vs. Seabrook, 25 Ark., 334; Dillard vs. Darker, 25 Ark., 503.'
   Harrison, J.

The appellees filed their complaint, in equity, in the Jefferson Circuit Court, against the appellants, to restrain proceedings upon a judgment which Peay, one of the appellants, had recovered against them and upon which an execution had already been issued and levied upon their lands, and obtained a temporary injunction thereon;

The defendants answered the complaint; after .which a decree, purporting to be by consent of parties, was entered, dismissing the complaint, and against the defendants for costs; and also for the costs attending the execution which were stated, thereon, to amount, in the aggregate, to the sum of $18-50. Afterwards the plaintiffs applied to the court to correct the decree so far as related to the costs, by stating the amount thereof to be $149 50, instead of $18 50, so as to include commissions to the sheriff at two per cent, upon the entire sum the execution required him to make, which alteration in the decree was made by the court, against the objection of the defendants, by a supplemental order. The decree against the defendants could, as the pleadings show, only be made by their consent, which must appear by the record; and although it does appear that they consented to a decree, as was at first entered, the record affirmatively shows that they dissented to the decree as amended. The decree against the defendants cannot therefore be sustained, and inasmuch as the dismissal of the complaint was predicated upon the payment of the costs by the defendants, the whole decree must be reversed and the cause remanded.