author: A. Pike, Esq.

text:
    Marshall v. Green Exr.
    So far as the answer of the defendants is responsive to the bill, replying to it in the negative and positively, and not admitting it and seeking to avoid the effect of the allegations and admissions by counter allegations, it is the testimony of the defendants in their .own behalf, and must prevail unless overweighed by other- testimony.
    Two witnesses, or one whose testimony is well corroborated by circumstances, are necessary to overweigh the direct testimony of a respondent so given.
    . At the same time the answer is no more sacred than the testimony of a disinterested witness.

      And its credit may be wholly destroyed by equivocations, evasions, concealments evident on its face, contradictions, improbabilities, or any other of the many defects and vices in evidence which often make the most positive statement of a witness weigh little or nothing.
    Green’s executor having filed a cross-bill to subject certain lands to execution at law, the defendants being father and son, answered that after the bond for title had been made, whereby the father acquired a right to the land, he made a transfer of the bond and delivery of-possession of the land to the son: Held, that this was matter in avoidance which the defendants must prove.
    The father having denied that he purchased the land for himself, States in his answer that “ he may or may not have told his vendor that he was purchasing for himselfthis being in regard to a matter within his own knowledge, and not being a denial, is in law equivalent to an admission that he did so state.
    The answer of one of the defendants being evidently untrue as to a certain statement of a fact within his Qwn knowledge; the maxim falsus in uno falsus in omnibus applies, and his testimony ceases to be entitled to any credit whatever.
    The defendant must take the privilege of being a witness for himself cum onere, subject to all the rules and principles of the law of evidence by which the law strives to guard against the dangers of perjury.
    He must be careful to testify fairly, frankly, ingenuously, fully, and it is the duty of his solicitor to see that he does it.
    A claim against the estate of a deceased person cannot be verified by the affidavit of an agent.
    Execution having been levied on certain lands as the property of the defendant in the judgment at law, the son of the defendant filed a bill in chancery to injoin the sale, claiming the lands as his own, asserting that they had been conveyed to him by his father. Many circumstances combining to show that this alleged conveyance was merely colorable and intended to hinder and delay the creditors of the father, the same is held to be void.
    The creditor having filed a cross-bill to subject the lands to the payment of his debt, the court below, in decreeing the sale from the father to the son to be fraudulent and void, should have further decreed that unless by a day fixed, the defendants in the cross-bill should pay the plaintiff the amount of the debt, damages, interest and costs adjudged at law, and also costs on the original and cross-bill, the lands, or so much thereof as as should be necessary, Bhould be sold by a commissioner.
    The proceeds of such sale should first be applied to payment of the costs on the original and cross bill and the expense of executing the decree, and the residue should be applied to the payment of the judgments at law, and the surplus, if any, should be brought into court.
    Should the proceeds of such sale fail to produce satisfaction of the costs and judgments at law, the creditor should be remitted to his proceedings at law for the collection of the residue by execution or garnishment.
    Damages on the dissolution of an injunction can only be awarded by the court where money is injoined, and then “ on the amount released by the injunction.”
    The suit on the original bill in the case not being to enjoin the collection of a debt generally, but only to prevent the sale of particular property for payment of it, damages should not have been awarded by the court below on dissolving the injunction.
    And the court below having erred in this respect to the injury of the appellant, the appellee must pay all the costs accruing in this court, although in other respects the decree entered in this court be in his favor.

      Appeal from Hempstead CwevAb Court.

    Hon. Len B. Geeen, Circuit JudgS.
    Watkins and Eakin, for tbe appellant.
    S. H. Hempstead, for tbe appellee.
   Opinion prepared by

A. Pike, Esq.

—See note page virr.

This suit comes before us upon a cross-bill for discovery and relief, brought to subject certain lands, as tbe property of William Marshall, tbe legal title to which is in James A. Marshall, to the payment of two judgments against the former, executions on which judgments had been levied on the lands, and the lien of the judgments is claimed to have fastened upon them in equity.

The chancellor decided the cause, and granted the relief, on .what was virtually an issue of fact, as to the real ownership of the lands; and it is for us to decide whether that finding is so plainly against the evidence furnished by the answers and testimony, as to require us to find otherwise, and to reverse the decree.

To determine this, it is first necessary to ascertain what facts in the case are admitted, or so fully proven as to be beyond dispute.

On the 26th of April, 1858, William Marshall the father, a man about 57 years of age, agreed with B. F. Benfro to purchase from him a small piece, of land in Hempstead county, near the town of Washington, containing about two acres or a little less for $203.25; executed his note for this sum and received a bond by which Benfro agreed to convey him the land, on payment of the purchase money.

William Marshall immediately took possession of the land, and continued in actual possession and occupancy of it, from that time forward, until .decree rendered in the court below.

Some two months after the first purchase, William Marshall also contracted orally with Beniro for a piece of land 80 feet ‘ square, near the other, at the rate of $175 per acre. This sale was evidenced b.y no writing, nor was the price secured by any; but the purchaser took possession, and ever after retained possession.

Soon after purchasing, William Marshall moved upon the land, and proceeded to build a dwelling house upon it, which, as soon as it became habitable, he occupied and lived in until decree below.

William Marshall was, by trade, a wagon-maker, and had ■ carried on that business in Washington for several years prior to 1858. Both before and after the beginning of that year, his son James A. Marshall, was in the habit of having and collecting . accounts for work done by his father.

William Marshall, Benfro testifies, had settled with him, previous to the 8th of March, 1859, the whole purchase money for both pieces of land, except some $17 or $18. Thirty-one dollars were settled by an account, at first made out in the name of William Marshall, but changed, when taken back for correction of items, into the name of James A. Marshall, for work on wagons and ploughs, done by William Marshall, at his shop in 1858, commencing with the 1st of February and without later date of month or day. Eighty-three dollars were settled by transfer of an account against W. A. Muldrow, in favor of James A. Marshall, for the same kind of work, done by William Marshall, in January, February and April, two items only being later than February, and these amounting to $8.75 only. This account was verified by .the affidavit of William Marshall, on the 11th of February, 1859.

The amount of this account was included in a receipt, dated January 1, 1859, given by Eenfro to James A. Marshall, when William Marshall handed him the accounts, for an order on George Muldrow for $109.75, due by the estate of Warren Mul-drow, and $79.75 due by George Muldrow. Both were for work done by William Marshall.

Previous to March, 1859, William Marshall several times told Eenfro that when he should fully have paid for the land, he meant to have it conveyed to his daughter.

The lumber for building the house was purchased in the name of James A. Marshall, as far as purchases are proven. Part was purchased from Collins, to be delivered at William Marshall’s building. William Marshall left the bill, and the account for the lumber was made out against him, but James A. Marshall afterwards told Collins he would settle the bill, and directed it should be made out against himself. Part of this bill was paid for by shop-work done by William Marshall. Collins had also furnished other lumber, which was delivered on a lot sold by J. A. Marshall to J. E. Eakin, and for the price of this lumber, in part, Eakin gave J. A. Marshall his note, which was given Collins by J. A. Marshall in part payment for the two bills of lumber. Part of the bill for the lumber for the house was also settled by a grocery bill due by Collins to J. A. Marshall & Brother. Another lot of lumber was bought from Matthew Moss, William Marshall bringing the bill for it, but it being in James A. Marshall’s name. James A. told Moss he had sent the bill, and would see it paid and he gave his note for it. William Marshall said it was to build a house on land he had bought from Eenfro.

On the 7th of March, 1859, William D. Green, as executor of the will of George W. Green, filed in the office of the clerk of the circuit court of Hempstead county a transcript of a judgment obtained by him against William Marshall before a justice of the peace, on the 13th of December, 1858, for $88.33 debt, and $60.88 damages, with costs, and interest at 10 per cent, on debt and damages.

And on the 11th. April, 1859, he filed a transcript of another judgment before a justiee of the peace, also obtained by him against "William Marshall, on the 3d of January, 1853, for $66.09 debt, $13.20 damages and 87 cents costs, with interest at 10 per cent, on debt and damages.

On the 8th of March, 1859, the day after the first transcript was filed, William Marshall, by indorsement under seal, on the bond for title, assigned it, and all his rights and equities therein, to James A. Marshall, and directed deed to be made to him; this .being stated by the indorsement to be due for value received, and in pursuance of a previous agreement between the father and, son, by which, in consideration that the son would pay the notes for which the bond was given, he was to acquire all the father’s right, title and interest in and to the land. James A. Marshall then told Renfro, on applying to him the same day for a deed, that the indorsement had been very carefully drawn, because he expected to have to fight Green for the land, and that, if it was not fully paid for, lie would pay the balance still due; and he did give Ms note for the $17 or $18 unpaid, and Kenfro made Mm a deed of conveyance.

Executions issued from the clerk’s office on the two judgments against William Marshall, returnable to May term, 1859, and were levied on the lands, and these advertised to be sold on the 30th of May.

To prevent this sale, James A. Marshall, on the 30th of May, filed his bill against Green as executor, the sheriff and William Marshall, claiming the land as his, and seeking to injoin the sale. The injunction was* granted. At November term 1859, Green answered, and exhibited cross-bill to subject the lands to his executions, as t*he property of William Marshall, making the father and son defendants. Each answered; and the cases being duly at issue were heard together.

So far as the answers of the Marshalls are responsive to the allegations of the bill, replying to them in the negative and positive!}1, and not admitting them and seeking to avoid the effect of the allegations and admissions by counter-allegations, they are the testimony of these defendants, in their own behalf, and must prevail, unless over-weighed by other testimony. Two witnesses, or one whose testimony is well corroborated by circumstances, are necessary to overweigh the direct testimony of a respondent so given. At the same time, the testimony of a respondent, in the shape of an answer is no more sacred than that of a disinterested witness; and its credit may be wholly destroyed by equivocations, evasions, concealments evident on its face, contradictions, improbabilities, repugnance to facts impossible to be denied, or any ' other of the many defects and vices in evidence, which often" make the most positive, statements of witnesses weigh little or nothing.

The principal allegations by which the son’s title is impeached are:

1st. That the father bought the land for his own use and benefit.

This the son virtually admits, by not denying it, and by admitting that he did not at first purchase it for the use of and on behalf of him, the son. His account is, that, about the 1st of May, 1858, (four days after the purchase) before the bond had been proven, acknowledged or recorded, or any thing done to carry it into execution, the father, finding himself in embarrassed circumstances and professing to be unable to conclude his bargain with Renfro, agreed with the son to transfer to him his interest in the contract, if he would pay the purchase money; which proposition the son accepted, and the father delivered him the bond and put him in possession.

But the father swears that he originally made the purchase on account of Ms son, the land to be paid for oxrt of the,son’s means, and to be conveyed to him for his own use. He says that he may or may not have sand, at the time of the purchase, that he was purchasing for his own use; a matter of more importance and significance than he seems to imagine it, but he avers that the bond for title was made hastily and carelessly to himself, instead of to James A. Marshall, for whom he intended the purchase, and to whom he afterwards transferred the bond and delivered possession. And he broadly avers that he never meant to buy for himself, and never paid a cent for the land out of his own means, and that he had never set up any claim to it, since the verbal transfer to his son.

This matter of a verbal transfer and assignment of the contract and bond, being set up affirmatively, to avoid the legal consequences flowing from the facts that the father purchased the land, the son in no way intervening, and that he gave his note for the price, and took a bond for title to himself, which note and bond for title were still in existence uncanceled as late as the 8th of of March, 1859, more than ten months afterwards, is still matter in avoidance, pleaded affirmatively, and put in issue by the replication. The only proof that it was ever made is furnished by another son of William Marshall, who states that he had heard his father say, two or three times, the first time about two years prior to November, 1860, that he had transferred the land to James A. Marshall. It is very certain that if the son had filed a bill against the father for specific performance of this verbal contract, this testimony would not have entitled him to relief; nor would any degree or qurntity of parol evidence as to the making of the bargain have done it, because there wotdd have been no sufficient proof of part performance to take the case out of the operation of the statute of frauds, as we shall hereafter more clearly see.

The testimony of William J. Marshall amounts to but little, on this point, not only because the father himself paid, with accounts for work done by him, nearly the whole purchase money, repeatedly told Kenfro that when he should have finished paying for it, he would wish it conveyed to his daughter; but also because the account of the purchase given by the father himself, in his answer, carries its own contradiction upon if® face. He evades answering tbat he did tell Renfro he was purchasing for himself, by saying that he may or may not have said so, when it is entirely improbable that, when giving his own note for the price and taking a bond to himself, he did not say something equivalent to a statement that he was buying for himself. The answer, couched in these disingenuous words, is equivalent to an admission that he did not give Renfro to understand that he was not purchasing for himself, but for his son. And the answer that he may or may not have said so and so, not being a denial, and this of a matter certainly within his own knowledge, is in law, as it is in reason, eqnivalent to an admission that he did so state.

The averment that the bond was “ hastily and carelessly” taken to himself, is worse than an evasion. Did he also “ hastily and carelessly” execute his own note for the price? It is inconceiva- - ble how any man could expect to blind a chancellor or avoid the legal conclusions resulting from the deliberate execution of the most solemn and binding instruments, by such a transparently absurd averment. If the chancellor was satisfied that this deliberate allegation was false, he could not but conclude ’ that the positive and reiterated averment that he purchased, not for himself, but for James A. Marshall, was also willfully and deliberately false. We cannot but think he wasjustified in so concluding; and then, as the whole weight of William Marshall’s answer as testimony depends upon his credit as a witness, the maxim “falsus in wio,falsus in omnibus” applies, both in law and reason, • and his testimony ceases to be entitled to any credit whatever.

Fraud always tabes a tortuous course, and endeavors to cover and conceal its tracks. The defendant to a bill which seeks to unearth and expose it, has a mighty advantage in being allowed to swear in Ms own behalf. He must take the privilege of being a witness for himself cum onere, subject to all the rules and principles of the law of evidence, by which the law strives to guard against the dangers of perjury. He must be careful to testify fairly, ingenuously, fully. It is the duty of his solicitor to see that he does it, though, as every one knows who has been familiar with the chancery practice in this state and elsewhere, such is not the universal idea of the solicitor’s duty; and answers too often display ingenuity 4n evasion, and reluctance to admit the whole truth rather than fairness and frankness; a fault so general as to seem almost to have ceased to be a fault at all.

Moreover, the two accounts, given by the father and the son in their answers, are irreconcilable and both improbable. If, as the father alleges, he purchased for the son, how could the son trul/y answer, that “ he'does not know, and has not been informed, save by said cross-bill, and cannot set forth as to his information or belief or otherwise, whether or not the said William purchased the said tract of land for his own use or otherwise.” That is not credible, if the father’s answer is true. Both pretend that the son has been virtually the guardian of the father for years, the latter being unable to support himself, without the help of the former; and the former hiring him to work for him and collecting his accounts. Is it at all credible that the father would have purchased land for the son without authority from, him, without notice to him, without letting him know he was about to do so, or had done so? Can it be true that the son had, when he answered, no information or belief on that point? It is too evident that this is one of those too common tricks of evasion in answering, or rather in testifying under oath, which a/re common, because they have not been visited with the consequences which they demand. It is far too common for respondents to answer that they have no knowledge, information' or belief on a given point; this being done for the purpose of putting the complainant to trouble, when they do possess sufficient information, and their belief and conviction are-sufficient and sufficiently well founded to make it their sworn duty to admit the fact alleged. A defendant is as much bound to answer as to his information, hearsay and belief, as to his knowledge. What he believes, the court will believe, if it is against his interest. Fair and frank answers will be much more common than they are now, when parties cease to swear falsely by such denials, and when the testimony of which, these make part, is held to be wholly discredited by thém, and chancellors shall pronounce them entitled to no weight or consideration. A defendant should “be the more scrupulously frank and fair, because his interest exposes .him to suspicion.

Not only when an answer which is to be the defendant’s testimony in his own behalf, contains a deliberate, positive and willful mis-statement of fact; but equally when it is manifestly reticent, evasive, or disingenuous, the chancellor not only may act on the maxim “falsus in uno, falsus in omnibus,” and attach little or no credit to the whole; but he ought to do so, as a jury should, where a witness before them, testifying orally, deliberately perjures himself as to a single fact, or reluctantly lets the truth ooze out, or attempts to evade or avoid full disclosure, or testifies unfairly and disingenuously, or contradicts himself, or is contradicted by circumstances that cannot lie.

When it was demanded of the chancellor that he should believe the statement of James A. Marshall, that four days after his father purchased the land, he concluded he could not carry out the bargain, and therefore assigned the contract and bond for title, by parol, to his son, it devolved upon him to compare this testimony of the claimant under the alleged parol transfer, with all the facts and circumstances in proof, and determine whether he could give it credit or not. In doing so, he could not fail to be startled by the singular reply of the son as to his knowledge, information and belief in respect to his father’s purchasing or not purchasing for himself. It was singular that the father should become convinced of his inability to pay for the land only four days after he bought it; and when he could and did pay for it, and for another piece of land purchased two months afterwards, with accounts for work done by him, which were due at the time of the purchase. It was singular, if the father so- soon concluded that he could not pay for the land, that he should, two months afterwards, two months after abandoning the contract to his son, go on to puiv chase from the same person an adjoining piece of land. It was singular that the son did not at once substitute his note in place of his father’s, and himself pay for the land with those accounts which he claimed as bis own property. It was singular he should take no assignment of the title bond for ten months, and not until one of the transcripts on which execution issued had been hied in the clerk’s office. All these circumstances were materials for the chancellor’s judgment, affecting the credibility of the whole answer of the son.

2d. That upon the purchase from Renfro, the father took possession of the land, and proceeded to improve it and to build a dwelling-house upon it: that he contracted for the lumber and materials in his own name, erected the building in his own name, and for his own use, his son having a family of his own and living elsewhere, and following a different business; that the father employed hands to work on the house, and paid them in his own labor, or with his own money: that the son took no control over the building, ordered no materials, and paid nothing towards the expense of building or improvement, until about the 8th of March, 1859; that he hired no hands to work on it, and became responsible for nothing connected with it, until about the same time; and that the father continued all the time in possession, the son never claiming to be proprietor in any public or open manner until about the same time; and that if the son made any payments on account of the house, he made them out of moneys ■earned by the father at his trade, collected by the son on settlement, and to be applied for the father’s benefit as he should direct; the son having, for some years, been in the habit of collecting his father’s accounts.

The reply to this is: that the father did take and retain actual possession and occupancy of the land, and lived on it until the suit was brought, his son having a family of his own and living elsewhere; but — that he was in reality, in consequence of the verbal transfer of the contract and bond, only the son’s tenant at will or sufferance; that the house was intended for the residence of the father: but he did not do any work or procure it to be done, or contract for any lumber or materials, in bis own name, or otherwise than as agent for the 'son and on the son’s responsibility; that the son exercised full control, assumed all the responsibility and bore all the expenses of improvements, after the verbal transfer, the father improving entirely under his control and direction. It is not pretended that the father paid any rent for the land. It is admitted that nothing was paid him, or agreed to be paid as a consideration for his transfer of the title. It is not disclosed, as was afterwards proven, that the purchase-money had been nearly paid by old accounts for work done by the father. It is not alleged that the son planned the building, or superintended the work, or hired any hands to work on it, or in any way interfered.

It is further replied, that the purchase money of the land and the materials of the house were in part paid and settled with accounts for work done by the father; and that before the purchase the son had been in the habit of collecting accounts due his father; but this was because the father was embarrassed, and the son furnished him supplies and money, and took the accounts in part payment for the same; and that since January, 1853, the son owned all the accounts, and the father only collected them, when he did so at all, as his employee; and that the son paid Ken-fro with money and assets of his own — because he had fully settled with the father for all the proceeds of his work and labor that had come to his hands; and the son sometimes used the father as his agent, in the transaction of business, and employed him as a mechanic to work on the house. And to prove that the son did not pay for the land or buy materials with means derived from the labor of the father — “ except such as belonged to the son under contract,” it is pleaded that on the 3d of March, 1858, the son agreed with the father that he would pay him $500 for his work and the proceeds of it that year, he, the son, controlling the business, furnishing the materials and receiving the proceeds: an arrangement which has continued every year afterwards; that Renfro was paid in part by work done by the father while in the son’s employ: how much, is not stated.

This agreement is found with the testimony of William J. Marshall, another son. It was executed by each party under his seal; and the witness proves the signatures genuine; and that he saw and read it in the early part of the year 1858, when it was placed by James A. Marshall in the safe at the grocery, for safekeeping, where it remained twelve months or more. There is no proof that this arrangement was made public. The witness had heard his father say, he was working for James A. Marshall, several times sincé the agreement was made; heard him say so soon after it was made, and since it was made James A. has exercised the right to control and collect all the accounts tor work done by the father. The instrument fixes the compensation of the father at four hundred dollars. The answers say it was five hundred: and William J. Marshall says that both parties told him it was five hundred. If the arrangement was a real and Iona fide one, made by a poor man unable to support his family by his work, this indifference — as to the amount of compensation he was to receive — might well have seemed singular to the chancellor.

So this witness says that, about two years or over before he testified (which he did in November, I860,) he heard his father say he had transferred to James A. the lands bought of Renfro; and that “ since then James A. Marshall has exercised control and ownership over that property” and had the improvements made on it, though the father occupied it and worked on the house. Never heard him claim it as his own: he said it was James A. Marshall’s. This was before the 7th oí March, 1859. He proves that James A. had furnished some lumber for the shop and paid for some hauling, since the spring of 1858: and that he exercised acts of ownership over the property by furnishing materials, paying money etc. How much he paid, the witness could not say; but swears he furnished all the lumber and paid out a great deal: but how much lumber he furnished he does not know.

If there was really this distinct arrangement, made in earnest and in good faith, it is hard to conceive why the account against Renfro should first have been made out in the name of William Marshall as creditor, and then changed to that of dames A. Marshall. And also it should be noted that the claim against Muldrow’s estate, for work done by "William Marshall, was verified by his affidavit, though that of the creditor himself was required by law, and a claim could not be verified by the affidavit of an agent, as this court had decided six years before.

That it was not made publicly known that the son was building the house, the father being only his agent, is proven by Renfro, who understood from the father’s own statements as to the plan that he himself was directing it, and that he was controlled in regard to the plan by the consideration of expense. It is plain the arrangement was a secret one.

The agreement between the father and the son set up in the ' answers, under which it is claimed the father worked at his trade, is affirmative matter, to avoid the effect of the admission that the accounts of William Marshall for work, were used by him to pay Renfro for the land, and by James A. Marshall to pay for materials for the house. Such an agreement is produced and proven by a ydtness. It was a secret agreement, not known to the public: and whether it was made in good faith, and as evidence of a real and actual business arrangement, or only as a device to hinder creditors, was a question for the chancellor to decide upon all the circumstances.

3d. That upon a fair accounting, a large balance would be found due from the son to the iather, charging the former with all moneys collected for the latter, and crediting him with all advances and payments: — and by special interrogatories the son was required to state how much he had collected, in all, from persons who owed his father : how much his father ever owed him; and how muQh more he had paid for his father than he h^d,received; and as to that the cross-bill prayed for an account to be taken.

The son declined to account: but stated that his father was largely indebted to him at the time of the verbal transfer of the contract for the land, then owing him about $381.91; and that he continued largely indebted, owing him about the same when James A. Marshall paid Renfro for the lands: and at the time of answering about $736.12. This accuracy as to tbe dollars and cents would seem to indicate that the materials for a full account existed, and that the account had been kept and the balance due at different times ascertained; but no account is furnished or statement of items of advances made or of accounts collected.

The general charges, that the transfer of title was made to prevent creditors of the father from collecting their debts; and that the other arrangements and dealings were made and had with the fraudulent design of securing his earnings to the father and shielding his property from his creditors, are broadly and positively denied by both answers.

The son submitted that it is no fraud upon creditors to assist, by advances of money and supplies, a parent whose advancing age and indigent circumstances render him unable to support himself; and to take in part remuneration such choses in action or other effects as the father may be able to transfer; or to step in and relieve him of a bargain which he is unable to carry out: or to furnish him with a house for his shelter and protection. And this is earnestly and eloquently urged upon us by his counsel as presenting the true features of his case.

If such and such only were the purposes and motives of the son, it probably seemed to the chancellor, as it certainly seems to us, that they, could have been attained in a more natural and straight-forward way. If the proceeds of the father’s labor were insufficient to support him as his family, and the son was willing and intended to loan or present him with such amounts, in money or supplies, as the proceeds of his labor fell short of furnishing, it was easy to do so without interfering with his business, or hiring his time and labor. ' The means used were more than was neces sary to attain the object, and persuasively suggest a further object and purpose, the one assigned not being adequate to account for the resort of the parties to these means. Did the necessity of contributing to the father’s support require that the son should demand to be repaid for his advances, as far as the father could repay him, not in moneys collected by the father from those who became indebted to him, but in the accounts themselves: that the son should take the trouble of collecting those accounts; that he should himself carry on the father’s business, pay .him an annual stipend, and be entitled to all the proceeds of his labor ? That course would naturally engender suspicion that the object was not alone to contribute to the father’s support by the addition of gratuities to his earnings, but also to place those earnings beyond the reach of his creditors. If such was not one and perhaps the chief object, what necessity is pleaded or shown for so taking control of the father’s labor and business, and collecting the accounts for his work ? Such secret arrangements between father and son, being unusual, are naturally suspicious, and could be freed from suspicion only by being publicly avowed and made known.

So, too, if the son desired merely to give his father a home, the way to do so legally and fairly was easy. A purchase of the land by the son himself, and a lease for years, or conveyance for life, in trust, duly placed on record, would have been a plain and straight-forward mode of effecting what was desired. But fraud does not move on straight lines, but seeks circuitous and secret paths to effect its purposes, and by these betrays itself. If the son had taken the simple and natural measures to effect the ends which he professes he had alone in view, we could have believed that he had no other, and that he was actuated by no other motives than those which he professes. The only key to explain the devices to which he resorted, is supplied by the facts that his father had long been in embarrassed circumstances, and that the land and house were in danger of being subjected to payment of the complainant’s judgments. And if the .purpose of the son really was not to put his father’s earnings beyond the reach of his creditors, and to enable him in reality to own and to enjoy the land purchased, laughing at the attempts of his creditors to subject it to the payment of his debts, it is exceedingly unfortunate that the course of action pursued and the plans resorted to, were sucb as fraud, seeking to hinder and defeat the claims of creditors, would have availed itself of, as most appropriate and efficient.

In Hildreth vs. Sands, 2 J. C. R., 35, the debtor had continued in possession, and in the exercise of acts of ownership. He superintended the erection of a building on the premises, and made improvements on them at his own expense, and received the rents. The party claiming against the creditors, alleged in his answer, that the debtor so in possession acted all the time, as his agent; but the chancellor said, “ there is no certain authority produced from which that agency flowed, nor any voucher or account exhibited as evidence of the agency, nor even any assumption of that character, prior to the autumn of 1810, when C. Sands first represented himself as acting in that capacity. These continued acts of ownership are inconsistent with the averment of a fair, bona fide sale of the property in February, 1807, and inconsistent with the ordinary course of dealing, when no imposition is intended to be practiced upon mankind.” And he referred to Codwise et al., vs. Sands, 4 Johns., 536, where it was held in the court of errors, “that the receiving of rents and managing the estate by the vendor, after an alleged sale, and under an assumed agency from the vendee, but without any evidence of a genuine agency, other than the uncorroborated assertion of the partjq was a strong indication of fraud.” Nothing, he said, would be more destructive to fair dealing and to the rights of others, than to permit such a miserable contrivance to prevail: for all fraudulent sales could be masked in this way with the utmost facility. “ Whether such a fraudulent conveyance,” he 'said, “shall stand or fall, is a question deeply interesting to the whole community.”

In the court of errors, 14 John., 493, upon an opinion delivered by SpeNCEk, J., this decree was unanimously affirmed. The question was, whether a deed executed in February, 1807, was to be deemed fraudulent. The party seeking to avoid it was purchaser of the property under a judgment obtained in February, 1808; but it was proved that Sands was under considerable embarass-ments in 1807, and Judge SpeNoer said that the court had a right to infer that the judgment was' obtained in regular course of law, and. that the debt must have been due when the deed in question was given. In this case, it is admitted that William Marshall was embarrassed long before 1858: one judgment was obtained in 1853, and though the other was not obtained until December, 1858, the large amount of damages or interest ($60 88) compared with the debt (88 38) shows that the debt had been due many years before.

So the judge there said that it was urged that Sands might have had property abundantly sufficient to satisfy his creditors, independently of the lands in question. But that, he- said, was not proved, and it was for the appellant to make out the fact; and he not having done so, the' inevitable conclusion was that Sands had no other property out of which his creditors could obtain satisfaction. He then remarked on the conduct of the appellant, as not such as that of a bona fide purchaser would have been : and said that his answer as to the time when the deed was made and the first knowledge he had of it, was open to severe remark: and added: “ it is pretended that he acted as an agent to the appellant, but no authority for that purpose is produced, and like the rest of the facts, it stands on the naked assertion of the appellant.”

It is urged upon us that the utter want of caution of these parties repels any presumption of fraudulent conduct or intent. In this connection we are referred to their mistake as to the price to be paid William Marshall by his son, for his labor in 1858, and to their uncertainty as to the date of the purchase of the land 80 feet square. To us the former seems quite inconsistent with the hypothesis that the agreement was made in earnest and to be really acted under; and the latter with the alleged fact that the son received a transfer of all his father’s right to the land on the 2d of May, 1858. That the assignment on the bond might have been antedated, and that its not being so is evidence of fair dealing, has been duly weighed by us, but amounts to very little when coupled with the facts that it is evidently the work of one familiar with the law, and. that Marshall “ had had it very carefully drawn, because he had Green to fight.” If he had ventured on antedating it, the handwriting might perhaps have disclosed by whom it was written, and the testimony of that person might have shown when it really was executed.

SpeNOER, J. said in Sands vs. Hildreth, “I cannot take the trouble to go through all the evidence of fraud, nor shall I cite a single adjudged case ; but content myself with saying that I never met with a more marked case of actual, positive fraud; and if such a deed, so contaminated, is allowed to stand, there would be an end of all upright and honest dealing between man and man, and no creditor would hereafter have the least chance of coercing a dishonest debtor to pay his debts.” "Whether we should or should not be justified in using language so strong and pointed in this case, we are at least prepared to say with the chancellor^ that we are satisfied from the facts which have been stated that the transfer |to [the defendant was colorable merely, and intended to cover the property from claims then existing, or then impending and anticipated; and that, as against all such claims, the deed is to be adjudged fraudulent and void.

The court belowed decreed that the injunction granted on the original bill should be dissolved and the creditor remitted to all his remedies at law to make the property liable for the debts in question, and awarded damages at six per cent on the dissolution of the injunction, and the deed of Ttenfro was decreed to be “in all things set aside,” so far as concerned the collection of the judgments in question; and that deed was “ for the purpose of collecting said judgment debts, in all things canceled, set aside and. held for naught”; with decree for all costs against the defendants.

In regard to the damages, were are of opinion that the case was not one for awarding them. By the statute, damages are to be assessed and awarded, only when money has been injoined,” and then “ on the amount released by the dissolution of the injunction.” This was not a suit to injoin the collection of a debt generally, but only to prevent the sale of a particular property for payment of it. The existence of the debt and the validity of the judgments were in no wise impeached. The judgment debtor was not complainant, nor was the inj unction granted to him. The collection of the debt out of other property, if his, was not injoined: and it might well happen that a third person could well ask for and obtain an injunction like the present, to prevent the sale of land claimed by him, without the judgment debtor having any connection with the question involved. Damages can only be assessed when the judgment debtor obtains an injunction to prevent the collection of a money demand. So much of the decree, therefore, is erroneous.

In The State vs. Curran, 15 Ark., 20, the proper form of decree in a case like the present is given. The court below should have held the transfer of the title bond to James A. Marshall, and the deed to him, fraudulent and void as against these debts, and therefore should have decreed that unless by a day fixed, the defendants or one of them should pay the complainant the whole amount of debt, damages, interest and costs, adjudged by the said two judgments and of subsequent costs thereunder, and should also pay all the costs in the original suit and in the suit on cross-bill, in the court below, that then the lands specified in the pleadings, or so much thereof as should be necessary should be sold on that day, at the court house door in the county of Hempstead, by a commissioner appointed by the court for that purpose, and after a specified notice; .that the commissioner should execute and deliver a deed or deeds to the purchaser or purchasers, conveying to him or them all the right and estate of both the defendants in said land, or so much thereof as might be sold, on the seventh day of March, 1859, or at any time since; that should the proceeds of such sale fail to produce satisfaction of said judgments and payment of costs, then that complainants should be remitted for the residue unsatisfied by said judgment to his legal remedy by execution or garnishment; and that 'the commissioner should first pay . out of the moneys relized by such sale tbe costs in tbe original and cross-suits, in tbe court below and tbe expenses of executing tbe decree, and then apply the residue to the satisfaction of said judgments, bringing tbe surplus, if any, into .court.

Tbe decree below will, therefore, be reversed, and decree entered here in conformity to this opinion, tbe court below to appoint the commissioner and fix tbe day of sale, and as tbe decree must have been reversed on appeal, as to tbe damages assessed, if otherwise properly framed, the costs in this court are to be paid by "William D. Green, executor of George W. Green, the appel-lee.


source: Caselaw Access Project

author: A. Plee, Esq

license: Public Domain

text:
    Branch vs. Mitchell.
    When any of the defendants in a chancery suit are minors, the court is the guardian of their rights, and must give them here as well as below, the benefit of every ground of defence of which they might have availed themselves by demurrer or by general and particular denial of the allegations of the bill.
    Nor would they, not demurring, nor even if the objection were not made at the hearing, lose the benefit of an objection to the jurisdiction of the court that would have been valid on demurer.
    Where a party has the only or better legal title to land, he may obtain or regain possession by an action of ejectment if he is out of possession; and it is reasonable that equity should decline to interfere where he may obtain all the relief he needs at law. (Apperson, vs. Ford, 23 Ark, Í46.)
    If he be in possession, then, as he can bring no action at law, it has been held that he may ask a court of equity to remove a cloud upon his title which makes it less valuable, or may prevent his disposing of it to others.
    But where one holding an equitable title only to lands, or a junior legal title with prior or superior equities, comes into a court of equity to impeach or cancel, or compel a conveyance of, the senior or better legal title, the jurisdiction of the court in no wise depends on the question of possession.
    And in each case the court of chancery will have jurisdiction though no fraud is charged the bill.

      Depositions read before the register and receiver of the United States land office could not be read in this suit in chancery, unless it wore shown that the witnesses were dead or beyond the reach of the process of the court.
    A person conveying lands by a deed containing the words “grant, bargain, sell and convey,” is not a competent witness for his grantee in a suit between such grantee and a third person concerning the title to the lands.
    When, on an appeal from a decree in chancery the question presented to this court is one simply of fact, it is precisely as it would be if the parties had had it tried before a jury on an issue out of chancery, and the verdict being against the appellants, their motion for anew trial had been overruled.
    Even if we thought the weight of the testimony was against the finding, we should not disturb it, unless it was palpably and glaringly wrong.
    If there is merely a doubt, or a preponderance of testimony one way or the other, the finding below must remain conclusive.
    By the words of the act of congress of September 28, 1860, all the lands in the-state which were swamp and overflowed, and thereby unfit for cultivation, immediately passed to and vested in the state.
    The provisions of the 6th section of the act of January 11, 1861, must be construed to be a consent on the part of the state to receive from the United States the purchase money paid to the latter for only such of the swamp lands as the state could rightfully relinquish; and not for any which any person might obtain a right to as against the state before the purchase of the same by another from the United States.
    Under the act of January 11, 1851, a levee contractor had a preference right of' entry to lands in the rear and adjacent to his front lands ; and he might make his selections before he had completed his levees.
    The law of January 6, 1861, did not say that he should not select his land until after hediad finished his work; but only that when he had done both he should furnish the numbers of the land to the commissioners, and receive from them a certificate.
    When he had finished the work, if he had selected the lands and furnished the numbers to the commissioner, his right to the land was complete, whether he ever obtained a certificate or not.
    No matter at what date he selected the lands; if he finished the work, in whole or in part, and the commissioner approved and received it, and the amount due for it was enough to pay for the lands, they became his, and his title, if necessary, as against any intervening purchaser or claimant, would relate to the 11th of January, 1861, on which day the right of preference in building the levees and taking these lands in payment vested.
    His right of pre-emption was to all the lands in rear of and adjacent to the front land by right lines.
    The selection in this case was made by a letter addressed to the commissioner, which was sufficient.

      And the entries in the book kept by the commissioner, whether it was a record or not, are sufficient to prove the selections and applications noted in it, where the commissioner has sworn that he entered them correctly there.
    When he filed it in the office of the board, it became sufficient evidence to the board on which to base its confirmations.
    The entry of the appellee having been confirmed by the commissioners, their decision is conclusive unless properly impeached.
    The law presumes in favor of the commissioners that they acted on sufficient data and evidence.
    The commissioners had power to pay for the work as it advanced towards completion.
    The appellee had a pre-emption right and was only bound to pay for the land in one way, by doing the workundertaken by him to a sufficient amount, by a certain time and in accordance with his contract.
    Whether he made known his selection of the lands sooner or later, so that he did not permit his right to lapse by abandonment, made no difference. It was only material that he’ should do it when or before his work was finished and received.

      Appeal from, Arkansas Circuit Cov/rt in Chancery.

    Hon JohN C. Mubray, Circuit Judge.
    GarlaND for the appellant.
    WilliaMS and Stillwell for the appellee
   Opinion prepared by

A. Plee, Esq

—See note page vm.

Samuel Mitchell instituted suit in chancery against John A. Jordan, Joseph Branch, and the minor heirs of George W. Martin, to obtain cancellation of the patent granted to Jordan by the United States for certain lands in Arkansas county, and to have his own title to the same perfected and quieted. Jordan disclaimed title and interest. Branch answered, and general defence was interposed for the minor heirs by a guardian ad litem appointed by the court. Replications were filed to each answer, and the cause heard on the pleadings, exhibits, other documentary evidence and depositions.

The case as presented to us for decision is as follows:

Before the passage of the act of congress of 28th September, 1850, granting to the state of Arkansas the whole of the swamp and overflowed lands in the state, “made unfit thereby for cultivation,” Mitchell had purchased and owned lands on the Arkansas river, in the alluvial bottom, on and along the river bank; in rear of, and adjacent to which lay the lands in controversy, also in the alluvial bottom, and lower than the front lands. On the lands owned by him were his plantation and homestead. It is-very clear from the testimony that the back lands were swamp and overflowed lands, unfit for cultivation in their natural state and without protection from levees, and that therefore they passed to the state under the grant.

On the 6th of January, 1851, the legislature of the state provided for reclaiming these swamp and overflowed lands, by providing for the creation of a board of three commissioners, empowered to fix the price of the lands, to inaugurate a system of levees and drains, to let out the making of the same to contractors, and to make payment to such contractors; and on the 11th of January, 1851, by a supplemental act, it was, among other things, enacted, that any person owning lands on the banks of any river, in any land district, should have the preference of taking the contract to levee such lands; and also the preference “ to take in payment for executing his contract, any swamp or overflowed lands lying in the rear, adjacent to his own lands.”

By the principal act, payment for making levees and drains was to be made “ in the lands reclaimed or in the proceeds of the sales thereof” at the prices to be previously fixed by the commissioners; the commissioners■ were empowered “to issue land scrip representing quarter section tracts,” in which, “at -his option, and in lieu of lands,” any contractor might demand and receive payment for his work; and it was provided, that when any contractor should have finished his work in accordance with his contract, and should “ have selected his land in payment therefor, or located his scrip in lieu thereof,” he should furnish the numbers of the land to the commissioners,, and on their certificate the governor should execute a deed to him or his assignee.

On the 3d of June, 1851, the board of commissioners, by ordinance, empowered each commissioner, within his division or district, to locate the necessary levees, let the contracts for building them, and supervise and pass upon the work. On the 2d of September, they required contractors, claiming adjacent lands by preference right, to take them immediately in rear of their work, by right lines; and provided that “no portion of land” should be sold for cash, at the fixed rates, except to contractors, in payment for work, or to pay expenses. On the 14th of October, they fixed the price of lands within six miles of a navigable stream at 75 cents per acre; and established three offices, for sale of lands, one in each division, subject to the supervision of the commissioner assigned to the division. A sub-commissioner was provided for, for each division, and certificates of purchase were to.be signed by the commissioner of the division, and countersigned by the sub-commissioner. These were to “entitle the purchaser to the land” so purchased. On the 8th of January, 1852, the board ordained that contractors might receive pay whenever they had completed 5,000 cubic yards of levee, in accordance with their contract, or as soon afterwards as the same could be measured, received and approved of; provided that the work were fully secured, and approved of by the commissioner of the division. And, on the 9th of January, 1852, the board ordained that the secretary of the board, or the commissioner of the division should issue certificates to persons applying for lands and filing scrip for the same, or an authenticated account of work done. On presentation of these certificates to the board, and if the lands were confirmed to the state, the purchaser was to receive, a full certificate of purchase for the lands.

Creed Taylor, one of the commissioners in 1851, was assigned to the district or division in which the lands in controversy lay.

On the 16th of July, 1851, Mitchell took, and entered into a contract for tbe leveeing of tbe lands in front of those in controversy, by tbe terms of wbicb be was to be paid fifteen cents a cubic foot for tbe contents of tbe levees “when completed and received.”

On tbe 12tb of November, 1851, Mitchell wrote to Taylor, tbe division commissioner, requesting him to enter and secure for ■him, among other lands, all those in controversy, that is, lots 9, 10 and 11, in tbe south-west quarter of section 31, in township 8 south, of range 3 west; and tbe north half and south-west quarter of section 5, and tbe whole of fractional section 6, in township 9 south, of range 3 west.

On the 20th of November, Taylor entered these, as applied for by Mitchell, “for work not yet received,” in his memorandum book of sales and entries, which was afterwards filed and remained in the office of the board.

The bill alleges that, on the 15th of December, 1851, Taylor gave’ Mitchell a certificate of entry of these and other lands, which is lost; and an affidavit of its loss was filed by Mitchell before the hearing; but no evidence was made of the existence or contents of such certificate.

The bill also alleges that the entries were confirmed by the board in January, 1851. Taylor testifies that they were to be confirmed on the 6th of January. The records of the swamp land commissioners show that Mitchell applied to enter them on tbe 8th of February, 1852.

By section 31 of the act of 12th January, 1853, the commissioners were required to file in the auditor’s office a list of all swamp and overflowed lands disposed of by them, showing to whom, for what and when each tract of land was sold, to what class each tract belonged, the name of the person who signed the certificate of purchase, the number of the certificate, etc., and the records in the auditor’s office show that the lands in question were entered by Mitchell on the 8th of February, 1852. On the 3d of April, 1855, Hobbs and Williams, swamp land commissioners, certified that it appeared from evidence in the office of' the board, that they were sold to Mitchell on the 20th of November, 1851. They were, no doubt, governed by the entry in Taylor’s book of memoranda.

We do not think there is any material discrepancy, in these dates. It is quite clear, we think, that on the 12th of November, 1851, Mitchell wrote to Taylor, selecting these and other lands, in which he desired to receive payment for his work: that Taylor received the letter about the 20th, and on that day made the' entry: that he is mistaken in testifying that the entries were confirmed on the 6th of January, but they were in fact confirmed on the 8th of February, 1852, at the session of the board which commenced in January.

On the 18th of December, 1851, Taylor reported these and other lands to the governor, as swamp and overflowed, and unfit thereby for cultivation. The governor applied to the surveyor general to report the same as swamp and overflowed lands, and on the 20th of December, that officer approved the list, and recognized the lands as of the character intended by the grant.

In the meantime, on the 25th of November, 1851, John A. Jordad entered the lands in controversy, among others, in the proper land office of the United States, with Choctaw scrip, and afterwards, obtained patents for the same. Before the patents issued, he conveyed one undivided half of the lands to Branch by a deed whereby he “ granted, bargained, sold and conveyed” to him; warranting against the lawful claims of all persons claiming through or under himself, but against none other. The other half he seems to have treated as the property of his partner, George W. Martin; but never conveyed it to him.

Soon after Jordan’s entry, Mitchell protested against it, and it was suspended. The commissioner of the general land office then directed the register and receiver at Little Bock to give notice to the parties and take proof as to the character of the land, and certify the same, with their joint opinion, to the surveyor general.

On the 4th of December, 1854, the parties appeared before the register and receiver; witnesses were examined, and those officers certified it to the surveyor general, to be their opinion that the lands were swamp and overflowed within the meaning of the act of congress; and the surveyor general also so certified, to the commissioner of the general land office on the 19th of December.

The first allowance for work was made to Mitchell, on the 7th of April, 1852. Many others were made on different days after-wards, during the same year. He had already been charged with the price of the lands applied for by him; and as each allowance was made, he was credited with its amount, against the previous charges.

The act of 20th January, 1855, recognized the validity of certificates of purchase given by the swamp land commissioners, or any one of them, or by any one acting under their authority, and provided the means of obtaining patent certificates thereon. And the act of 7th January, 1857, authorized the auditor to issue duplicate certificates of entries made by persons under any of the acts for the entry and sale of the swamp and overflowed lands, in lieu of certificates lost, when it shall appear, by the public records in the auditor’s office, or in that of the land agent, that such entry in fact existed. *

The heirs of Martin being minors, the court is the custodian of their rights, and must give them, here, as well as below, the benefit of every ground of defence of which they might have availed themselves by demurrer or general and particular denial of the allegations of the bill. Nor would they, not demurring, nor even if the objection were not made at the hearing, lose the benefit of an objection to the jurisdiction of the court, that would have been valid on demurrer.

"We have, therefore, in consequence of the expression of individual opinion on the part of the learned judge who delivered the opinion of the court in the case of Apperson vs. Ford, 23 Ark., 746, looked at the question of jurisdiction, as dependent on the possession or non-possession by the plaintiff, of the land in controversy. For it is undeniable that the bill does not allege that the complainant has possession of the lands, as to which he invokes the aid of the court in this case.

When a party has the only or the better legal title to land, as against that which he wishes to put at rest, he may obtain or regain possession by an action of ejectment, if he is out of possession; and it is reasonable that equity should decline to interfere where he may obtain all the relief he needs, at law. If he is in possession, then, as he can bring no action at law, it has been held that he may ask the court of equity to remove a cloud upon his title, which makes it less valuable, or may prevent his disposing of it to others. The court of chancery will not become a tribunal to try the legal title to land; or, in other, words, it will not without some special ground for assuming the jurisdiction, undertake on behalf of the letter legal title, to remove out of its way an inferior title, legal or equitable. But whether one holding a junior or inferior legal title, with prior' or superior equities be in or out of possession, it is difficult to conceive on what ground his right to the aid of a court of equity can be denied. If im, possession, he may be ousted by an ejectment: if out, he cannot obtain possession, when confronted by the only or the older and better legal title. If in possession, he cannot Irmg ejectment; out, he can not maintain it.

The language of the courts is always to be understood by applying it to the facts of the case decided. That which seems to be general and of universal' application, has, in reality, often a limited application; and so the words of truth and the utterances of the law, undeniable in the case wherein they are spoken, become the parents of error and false doctrine. That judges have often been too incautious in their language, is true: and so it has been in regard to this particular doctrine.

Where one holding an equitable title only to lands, or a junior legal title with prior or superior equities, domes into a court of equity to impeach and cancel, or compel a conveyance of, the senior or better legal title, the jurisdiction of the court in no wise depends on the question of possession. He does not come to have “ a cloud upon bis title” removed. In this case, the best legal title, even if Mitchell held a patent from the state, would be in Branch; and Mitchell has a clear right to invoke the aid of the court.

It is also objected that the bill is deficient “ in not chaining fraud and mistake, especially, in allowing Jordan to make his entry.” But, in a case like the present, though fraudulent courses on the part of the holder of the better or only legal title, would add strength to the contestant’s case, if the fraud existed, his case may well be complete in the absence of any actual fraud; and if the title impeached had been obtained in entire ignorance, on the part of the holder of it, of any title, or claim or equity whatever on the part of the contestant, the equities of the latter might still be perfect, vested under the law, and his right to relief and redress complete. "When, in the case of Cunningham vs. Ashley & Beebe, 15 Howard, ; 13 Ark., 653, the complainant showed that he had a valid pre-emption, which, but for the legal title procured by the defendant, ought by law to have ripened into a legal title, it was entirely unimportant whether their entry of the lands was procured or accompanied by actual fraud. And as to mistake, if the entry by Jordan was permitted when the United States no longer owned the land, of course Jordan was at least mistaken in purchasing and paying for it, and the land officers in selling it, and the general land office and president, in treating the sale as valid, and granting a patent.

That the issuance of the patent is an act of sovereignty, if it were so, could not make an allegation of fraud or mistake in procuring it, any the more necessary. True, it is not to be “ lightly questioned, or set aside on slight provocations.” But the United States, in selling their lands, exercised none of the attributes of sovereignty. They were simply the owners in fee simple absolute of the public lands: and as between persons claiming title under different grants or conveyances from them, their deeds (and a patent is but a deed) stand upon the same footing, in a court of equity, as the deeds executed by an individual owning lands in fee simple. The grant of swamp and overflowed lands to the state was as much an act of sovereignty; and the question in the case is, at bottom, whether these lands were disposed of and possessed by one or the other conveyance from the same grantor. Whether Jordan did or did not intend a fraud is not a question that can affect the rights of Mitchell. If he cannot make out his case without alleging such fraud, he cannot make it out at all.

There is no doubt that, in order to demand an inquiry into the validity of Jordan’s entry, Mitchell must show that if no one had interfered as Jordon has done, the state would have had the power to dispose of the land to himself; and that he has so dealt in regard to it, that, the title of the state becoming complete, he would be entitled to demand from her a conveyance, or could procure title under her by proper suit. The court would not at the instance of a party not interested and not entitled to a conveyance from the state, undertake to inquire whether the lands passed to the state or not, under the act of congress granting the swamp and overflowed lands. If the lands in controversy have not, in equity, passed from the state to Mitchell, the state alone is competent to impeach the title of Jordan or Branch; and this especially, since the act of congress of the 2d of March, 1855, authorized patents to issue to persons who had entered or purchased swamp lands, prior to the issue of patents to.the state; and since the state itself; by the act of 11th January, 1851, consented to receive from the United States the purchase money paid for any swamp lands, theretofore or thereafter sold by the United States.

The first enquiry, therefore, in this case, is whether these lands passed to and vested in the state, as by a grant m presentí, by the provisions of the act of congress of September 28th, 1850; and the second, whether, under the laws of the state, Mitchell, if the state had the power, or now has the power, to convey to him the lands, is entitled to demand a conveyance.

The first question requires it first tobe determined whether the lands were,' at the date of the act of congress, swamp and overflowed, and thereby rendered unfit for cultivation. It is upon this question the testimony taken before the register and receiver bears, and it is denied that it was competent to read that testimony at the hearing. Two of the witnesses, Shultz and Smith, had died before this suit was brought. The testimony, laying their’s aside, is ample and uncontradicted in regard to the character of the land; it being fully proven to overflow frequently from eighteen inches to twelve feet, and that no one would think of cultivating it, unless it were protected by levees from inundation. Creed Taylor, Gibson, Lenox, Foster, Felts and Moore, by depositions read at the hearing, prove that they were deeply overflowed lands. A continuous levee of great length was necessary to protect them. Most of them, were covered with water in 1857, and again overflowed in 1858.

No depositions were read in the court below, on behalf of the defendants, to show that the lands were not swamp and overflowed and thereby unfit for cultivation, except' Jordan’s, and except also those of three witnesses read before the register and receiver. As these witnesses were not shown to be dead, or beyond reach of the process of the court, it was clearly not competent to read their depositions. And the testimony of Jordan was clearly incompetent. It is claimed that he was not interested, because he had conveyed by quit claim only, and with covenants against no person save those claiming under himself. But his deed was not ■a quit-claim. The words used in it are of gift and grant, “grant, bargain, sell and convey.” True, his warranty is only as to persons claiming under himself; but the words, “grant, bargain and sell” also import a covenant of seizin or title, broken when made, if at all, distinct from the warranty, and under which he and his heirs were and are responsible to the grantees, if the title fails in this suit. Moreover, he still stands on the record as proprietor of one undivided half of the land, not having conveyed it to any one.

The register and receiver and surveyor general were satisfied as to the character of the lands: and although it was testified that tbe plantations in front also overflowed, and that a plantation liable to overflow is not thereby unfit for cultivation, this cannot prove that there áre no swamp and overflowed lands in the Arkansas bottom unfit thereby for cultivation. Low and swamp lands holding rain water and overflowing to a great depth, are clearly of the character contemplated by the law; and the evidence of this is only the more conclusive, if even the front lands, almost invariably higher, and in this case certainly so, are not free from overflow unless protected by levees.

The inquiry before the register and receiver shows that those officers and the surveyor general were satisfied by proof, and so decided, that the lands were such as intended by the grant: and as no further investigation was had, it is quite plain that the patents must have issued to Jordan, not on account oí any doubt on that point, but solely in obedience to the peremptory mandate of the act of March 2, 1855.

Whether it was competent to read on the hearing the depositions of Shultz and Smith, we need not consider. The testimony was sufficient without them. And, it may be added, this simple question of fact is before us here, precisely as it would be if the parties had had it tried before a jury, on an issue out of chancery, and the verdict being against them, their motion for a new trial had been overruled. Even if we thought that the weight of the testimony was against the finding, we should not disturb it unless it was palpably and glaringly wrong. If there is merely a doubt, or a preponderance of testimony one way or the other, the finding below must remain conclusive.

As to the second branch of the first inquiry, this court has already repeatedly decided that by the words of the act of 28th September, 1850, all the lands in the state which were in fact swamp and overflowed, and thereby unfit for cultivation, immediately passed to and vested in the state. The question is no longer an open one. That grave inconveniences might result to the state and individuals, and distressing conflicts of title, from the doubtful character of much of the land in the state, was a consideration to be duly weighed by the court, in determining the meaning of the grant, and it has been duly considered. And also it was and is a consideration of no small moment, that the congress of the United States, by the act of 2d March, 1855, virtually decided that the grant was not in presentó, since they ordered that patents should issue to purchasers of such lands, on purchases made after the grant “any decision of the secretary of the interior, or other officer of the government of the United States to the contrary notwithstanding.” So explicit a declaration of opinion by the congress invoked for the consideration of the question, careful consideration and great deliberation. Yet the congress, at the same time, admitted the validity of any sale made of such lands by the state, prior to the entry, location or purchase of the same under the laws of the United States; though such sales were ordered to be disregarded if the state should not, within ninety days, furnish a list of the lands so sold.

Whether the lands falling within the terms of the grant, had or had not vested in the state under the act, was a judicial question, which congress had not the right to take upon itself to decide; and it is but respectful to that body to suppose that it was simply the intention of the act to give purchasers their patents, so that the claimants under the state might institute proceedings in equity to establish their titles and avoid the patents. However that may be, we continue satisfied with the decisions heretofore made ; and again hold that all the lands in the state which were really and in fact swamp and overflowed, and thereby unfit for cultivation, passed to and vested in the state, on the 28th of September, 1850. The case is the same as if the grant had been of all the prairie land, or all the wood land, or all the alluvial land, in the state; the difficulty of ascertainment of its character not affecting the question. The words of grant, the operative words are direct and positive: “Shall be, and the same are hereby granted to the stateand the provision of the second section, that the secretary of the interior should make out and transmit to the governor a list and plats of the land described, and at the request of the governor, cause a patent to issue to the state ; and that “on that patent, the fee simple to said lands shall vest in the said state,” can no more be held to limit the effect of the present grant in the first section, than if, in a deed, after immediate and express conveyance of lands by some general description, it should be provided that, when the numbers should be ascertained, another deed should be made, “on which the fee simple should vest.” This would make the title of the state to any of the land, depend on the request of the governor for a patent. The words of the second section must be held to be simply á definition of the nature of the title which the state took under the grant, and not a postponement of the period at which the title should vest.

It is quite true, that “where grants are made under descriptions so vague and indefinite, that neither the grantee nor any other can tell their location or boundaries, until the gra/ntee does some act which locates and defines them, if another grant strictly defined, intervenes, the first grantee may lose what he would have been entitled to, if his own grant had been descriptive and definite.” The cases decided by the supreme court of the United States, “where one had a claim, unlocated, on a large section of country, which might be located by survey at any spot not appropriated by an individual title” in which it has of course been held, that “if any other person afterwards obtained a grant by specific boundaries, within the limits wherein the prior grant, was to be located, the title of the latter grantee could not be impaired by any subsequent survey of the former,” are far from deciding this case. Such were The United States vs. Forbes, 15 Peters, 184; The United States vs. King, 3 Howard, 736; Glenn vs. The United States, 13 Howard, 250, and Fremont's case, 17 Howard, 558.

No doubt the land granted must in some way be severed from the public domain. If the grant w-ere of all the land^Mtb^ high water mark on the Arkansas and Red rivers, they ®ofil^» be sufficiently “severed from the public domain,” no jpi,tt.er how much trouble and difficulty it might cost to ascertain them. The definition of the lands, in this case, as well as that, is distinct and certain enough; though’ mistakes may be made in deciding on the question of fact. "Whatever can be made certain is certain.

The position of the learned counsel, that even if the land did pass by the grant, it did not relieve the state of the necessity of getting it located and confirmed as swamp land; and that, from the time of the grant until this was done- by her, the United States did not obligate themselves not to sell the lands to any one else, needs no serious refutation. The act making the grant did not require the state to do any act at all, except, through her governor, to demand the patent; and it can hardly be seriously contended, that if the secretary of the interior, in making out the lists, omitted half the lands in the state, which were really swamp and overflowed lands unfit for cultivation, the state must lose them, and would not take them under the grant. If the lands in question passed to the' state by the grant, the United States no longer owned them, and of course could not sell what was no longer her own. That the state was a donee and Jordan a purchaser has no place diere. A title parted with on any valid consideration is gone forever; and the reference to the distinction between executed and executory contracts is a misapplication of principle and doctrine.

The provisions of the 5th section of the act of 11th January, 1852, must be construed to be a consent on the part of the state to receive from the United States the purchase money paid to the latter, for all such of the swamp lands as the state could rightfully relinquish, and not for any which any person might obtain a right to, as against the state, before the purchase of the same by another from the United States.

This brings us to the second enquiry: which is, as to the title of Mitchell, and his right as vendee oí the state or under the laws.

It is undeniable that, when he selected these lands and when Jordan entered them, Mitchell bad not completed the wort be bad undertaken; that none of bis' work bad been received; and that no allowance whatever bad been made him, of any amount due him on account of such work.

It is also true that the board did not confirm or act on bis entries until the 8th of February, 1852: and that he stands here as if be bad never obtained any certificate of entry or purchase.

It is earnestly insisted, therefore, that Mitchell fails in every respect to show that be was entitled to purchase the land, when be made the application; that be completely fails to show that he was ever, at any time, entitled to purchase them; and that an 'entry by him, subsequent to Jordan’s location was, in any event,' unavailing.

The argument is, that by the law of 6th January, 1851, he was to have a certificate issued to him, when he should have finished his work in accordance with his contract, and should have selected his land in payment therefor; and that Mitchell selected these lands nearly four months before the day fixed for completing his contract, and more than three months before any allowance was made him of moneys due under his contract. And it is also urged that the contract itself provided that he should be paid when the work should be finished and received.

Under the act of 11th January, 1851, Mitchell had the right, in preference to all others, to take the contract in question, for leveeing in front of these lands. Under the same act he had a right of preference or pre-emption as to these and other lands in the rear of and adjacent to'his front lands. But, according to the argument, he must.go on and complete the levees, before he could select any of the rear lands, and in the mean time Jordan, or any other person, might purchase these lands as swamp lands, from the state, or buy them of the United States, and so defeat his pre-emption right altogether. That would make the right truly “a visionary and unsubstantial thing.” Either he could make the selection at any time, as the work progressed, and so prevent any sale of the same lands to others, or he could require the commissioners not to sell my of the rear lands, which he might have a right to take in payment, to other persons. If Ms work did not amount to enough to pay for all the rear and adjacent lands, and he made no selection in time, a grant of a specific tract within the same boundaries, a sale of it by the state, might give title to that tract against him. It was therefore wise, prudent and fair to others, to select at an early day, the lands to which he meant to assert his right to a pre-emption. The law of January 6th, 1851, did not say that he should not select his land until after he had finished his work, but only that when he had done both he should furnish the numbers of the land to the commissioners, and receive from them a certificate.

As contractors often agreed to build several miles of levee, and could only carry on the work by receiving payment in land or scrip as the work progressed, the commissioners wisely provided for paying them when they completed 5,000 cubic yards, in accordance with their contracts, and fully secured, and approved by the division commissioner.

We think that it was entirely proper for Mitchell to indicate these lands to the division commissioner, five months after he commenced the work, and that his letter to Taylor, the commissioner, was a sufficient selection. Tie had a pre-emption right to the lands, inchoate and to be complete when he should finish the work; he had a right to receive Ms payment in lands; and when he had finished the work,- if he had selected the lands and furnished the numbers to the commissioners, Ms right to the land was complete, whether he ever obtained a certificate or not. ITe had, in such case, done all that the law required Mm to do; and even if the commissioners refused him his certificate, that would not affect his right nor defeat his title.

No matter at what date he selected the lands, if he finished the work, in whole or in part, and the commissioners approved of and received it, and the amount due for it were enough to pay for the lands, they became his; and his title, if necessary, as against any intervening purchaser or claimant would relate to the 11th of January, 1851, on which day the right of preference in building the levee and taking these lands in payment vested.

And it is quite clear that, having the right of pre-emption of the land, and having taken the contract to build the levee, and commenced the work, he could not be ousted of his right of preemption by a purchase made by any other person, even from the state; though he did not select the lands until after such purchase. His right of pre-emption was in all the lands in rear of and adjacent to the front land, by right lines. Much less could any one deprive him of his right of pre-emption by purchasing the land from the United States, since they were not the owners of it.

The letter of the 12th of November, was a sufficient selection of the lands. No form is prescribed by law, or by any ordinance of the commissioners. The contractor was merely required to furnish the numbers to the commissioners, when he should have selected his lands. Of course, some sort of notification was necessary, accompanying the list, to show with certainty that he had selected these particular lands, and elected to receive them in payment for his work.. The form of that was immaterial.

And the entries on the book kept by the commissioner, whether that book was large or small, and whether it was a record or not, are sufficient to prove the selections and applications noted in it, when the commissioner has sworn that he entered them correctly there. When he 'filed it in the office of the board, it became sufficient evidence to the board on which to base its certificate.

It is quite evident that the entries of Mitchell were confirmed: and as the commissioners were made by law a tribunal to pass upon all work done under contract, to approve of and accept it, or reject it, to settle the amounts due contractors and order payment, and to confirm or reject their entries and purchases of land in payment for work, from their decisions on all which matters there .was no appeal, those decisions are. conclusive, unless properly impeached, and the evidences, accounts, papers and the like, on which they proceeded, need not be produced to fortify their decisions, when these are relied on, That the board allowed Mitchell a sufficient amount, in the aggregate, between the 7th of April, 1852 and March, 1853, for work done by him, to pay for 4,000 acres of land, and that they recognized and treated as valid his entries; and placed them on their records, and included them in the lists sent up to the auditor, proves that they had approved of and received his work and confirmed his entries, and were bound to grant him certificates of .purchase. If they had not done either of these things: or if it was intended to insist that Mitchell never really built the levees, or completed his work, or that he defrauded the state, or if it was meant to rely on any other facts that might avoid the action of the board in settling the amount due to him or ratifying his entries, these matters should have been specially set up and relied on by way of defence, and would have demanded proof.

We cannot perceive that it was wrong for Taylor to decline to permit Jordan to interfere with the lands in the rear of Mitchell’s front lands-and levee, until Mitchell should first have indicated to what lands he intended to hold and enforce his right of preemption. That was simply to respect his rights.

■It is testified by Kimball, the custodian of the swamp land records, that he could find in his office no estimates of the work done by Mitchell. The answer does not impeach the validity of the allowances, by any averment that no estimates or fraudulent estimates were furnished ; and it was not necessary for Mitchell to do more than prove that the allowances were made. The law presumes in favor of the commissioners, that they acted on sufficient data and evidence. The orders of allowance profess on their face to be based on estimates, and that these are no longer to be found cannot affect the validity of the allowances, when that fact appears only incidentally.

That the commissioners had the power to pay for work as it advanced towards completion we do not see any reason to doubt. The miles of levee to be made were numbered. Mitchell took several; and though many miles might be included in one contract, there is no reason-for holding that the contract vfas indivisible, if the board chose to consider it otherwise. It might well be deemed a separate contract for each mile or some less length of levee. The object of the legislatnre was, as the act declared, “to encourage, by all just means, the progress and completion of the reclamation, by offering inducements to purchasers and contractors to taire up said lands;” and if a contractor taking ten miles of levee to build, completely finished nine, and the other remained unfinished, by his death or otherwise, the commissioners were not required, by the merely directory provisions of the law to refuse to make any payment whatever for the nine miles of completed levee. The provision of the law is not mandatory nor prohibitory. It is simply, that when the contractor has finished his work, and selected his lands in payment, he shall furnish the numbers to the commisioners, and on their certificate have a deed from the governor.

And, if the selection had not been good, when made before the whole work under a contract was finished, it became good, if not withdrawn when the work was finished. If the contractor could not select the lands sooner, then, necessarily, no other person could intervene and take them from him by purchase. The true question in this case is, whether the state could be heard to object, on this technical ground, if Mitchell were demanding from her a deed; and she admitted that he had the pre-emption right, had done the work, and selected the land, and that the amount due him for work being sufficient,’he had been charged with the price of the land and so had paid for it in 1852. Evidently the state would be estopped, after receiving payment, to object to making title in consequence of any trivial precedent informality; especially when her commissioners; invested with very ample powers, had agreed to pay all contractors as often as they should complete 5,000 cubic yards of levee. In fact she has provided for such a case, by the act of 7th January, 1857. Since it appears, both by the records in the auditor’s office, and by those of the swamp land commissioners, “ that the entry in fact existed,” and since, in such case, the purchaser could procure from the auditor a duplicate certificate, on his affidavit of loss, and such other evidence of it “ as he can command, in the discretion of the auditor.” This is the agreement of the state that she will furnish Mitchell a duplicate certificate on his demand. If he did not finish his work according to his contract, it was for the commissioners to apply the remedy or enforce the penalty, by withholding his pay, or canceling his entries. By allowance of the payments, they admitted performance on his part. They are presumed to have acted fairly, regularly and on sufficient premises, and if it is to be relied on that they were guilty of fraud or collusion, or were deceived, this must be particularly alleged and proven, or the presumption stands.

In Walworth vs. Miles, 23 Ark., 653, Miles claimed no preemption right. Tie had contracted to build certain levees, and on estimates of a commissioner had been allowed for an old levee and work done, some $4,800 ; and in part payment he applied to purchase the lands in controversy, which application was certified by the secretary of the board to have been made. But the day after the allowances were made to Miles by the board, on protest of Walworth to the effect that the allowance for the old levee was improper, the board suspended the allowances, the application to purchase and the certificate issued for the residue of the allowance, until the question as to the sufficiency of the old levee should be determined. At the next meeting the' claim for the old levee was rejected, and the entries rescinded and canceled. Meanwhile Walworth had entered the lands.

Upon this case it was held that the commissioners had not sold the lands to Miles; that they could not give certificates of application to purchase them, by Miles, when the work, in payment for which the lands were asked, had been rejected: and that when the commissioners discovered that Miles had not done the work allowed for, and was not entitled to the allowance, it was the right and duty of the commissioners to refuse to consummate the sale. The court considered the action of the commissioners to have been had in the lawful exercise of their authority, and said: that until Miles bad paid for the lands by a sufficient amount of work, he was not entitled to a certificate of purchase ; and that, -until he received such a certificate, he had no evidence of an entry. And it is quite true, that if he had applied to enter the lands, in payment of levee-work when nothing was due him, or not enough to pay for the land, his application would have amounted to nothing; and a subsequent entry by another, before he had paid for it, would have held the lands. For, his purchase had no prior fight to rest upon or connect with. If he had had a pre-emption right to the lands, it would have been quite different. As it was, payment was the only possible inception of his title, and the court said that he could not buy or acquire a valid claim without paying for the lands; that his work once received as pay was found to be insufficient work, was therefore no payment; and therefore, his application was rightly disregarded, his scrip properly canceled. But Mitchell had a preemption right, and was only bound to pay for the land in one way — by doing the work undertaken by him, to a sufficient amount by a certain time, and in accordance with his contract. "Whether he made known his selection of the lands sooner or later, so that'he did not permit his right to lapse by abandonment, made no difference. It was only material that he should do it when or before his work was finished and received. That he paid for the land is indisputable, for the commissioners charged the price of them against the allowances made him, and the allowances were sufficient to pay for very much more land.

In Brodie vs. Moseby, 23 Ark, 318, Moseby, like Mitchell, took a levee contract, intending to secure the rear lands by the consequent pre-emption right. lie took the contract in June, 1851; applied to enter the lands in June, 1852, and had the lands marked on the plats in the office as applied for by him. In January, 1853, all levee work was required to be paid for in scrip, and in May, 1855, he renewed his claim to enter the lands, by virtue of his pre-emption right, and did do so, paying for them with scrip received for his levee work. This court held his title good, and that Ms equity would have made Ms the better title, against any other 'legal title otherwise equal to his. In that case, as in this, the pre-emptor applied for the land before his work was finished. Of course an application without payment creates no title, but an application by a pre-emptor, followed by timely payment, does do so. Moseby’s scrip and Mitchell’s allowances were evidences of payment; because each was the evidence that so much work had been done in payment. Moseby did not pay for his land in the the scrip, any more than Mitchell paid for Ms by the allowances. The scrip was evidence that he had paid for it long before. So were the allowances. Each began to pay for his lands, as soon as he began his work. Perhaps each had fully paid for them, in fact, before he applied to enter them.

We need only refer again, in addition, to the case of Cunningham vs. Ashley and Beebe, 15 Howard, and 13 Ark., 653. In that case Cunningham was entitled to a pre-emption to the quarter section in controversy, because he cultivated a portion of it in the year 1829, and was in possession on the 29th of May, 1830. He made proof of his pre-emption on the 29 th of May, 1831. He then applied to enter the land, and offered to pay for it, but was not allowed to do so, in consequence of its being covered by a New Madrid claim. This was afterwards decided not to hold the land, but in the meantime Beebe entered the land with floats, and subsequently procured a patent. Every technical and formal objection possible was taken to Cunningham’s claim, and it was defeated in the court of original jurisdiction and here; but it was sustained by the supreme court of the United States, which held that Cunningham’s rights were paramount to those acquired under the new location, and were founded on his settlement and improvement, and the acts subsequently done in the prosecution of his claim. “ Having done,” the court said, “ every thing which was in his power to do, the law required nothing more.” The principle stated in Lytle vs. the State of Arkansas, “ that a pre-emption right, covered by law, becomes a legal title, subject to be defeated only by a failure to perform the conditions annexed to it,” was strongly enforced in the case oí Cunningham vs. Ashley and Beebe, and many plausible objections to-the preemption title of the same class as those taken in this case, were with little notice overruled. It wras especially urged that there was no sufficient evidence of the allowance of Cunningham’s claim by the register and receiver; in other words, of their decision that his proof was sufficient to entitle him to purchase in preference to others. This proof consisted not of any certificate by the register and receiver, who decided upon the evidence produced, but of a list of the pre-emptions allowed at the land office at Batesville by those officers, found in the office and not signed by either of them, but made out by a clerk under the register’s decision, and certified by a subsequent register, and a certificate of still a subsequent register, that the claim was allowed, as appeared' from the papers in his office. It is evident that the court considered the claim to be quite as complete, in the absence of any certificate of allowance, as it would have been if one had been given. The list of allowed claims proved the allowance, as in this case the entries on the books of the board, and the list sent to the auditor prove Mitchell’s entry and the sále to him by the commissioners.

Upon the whole case, we are clearly of opinion that when Jordan purchased of the United States, the latter had no title to the lands, they having before then vested in the state; and that Mitchell having a pre-emption right to the same under the laws of the state, having in no wise lost or abandoned his right, having' selected these lands as those which he wished to take in payment for his work, and that selection having been assented to by the commissioners; and his purchase of and payment for the lands entered by them on their records and reported to the auditor, his equitable title would be good even against a purchaser from the state. It is clearly sufficient to enable him to avoid the intrusive title of Jordan or Branch. The patents vesting in Jordan no title to these lands, none can pass from Branch to Mitchell by decree. So much of the decree below as directs that, is surplus-age and inoperative.' Otherwise the decree is proper, and it is therefore affirmed.