author: EakiN, J.:

text:
    Osier vs. Hobbs.
    CONTRACT TO Pay : None implied for gratuitous services.

    Services intended at the time to be gratuitous, cannot afterwards be used to raise an implied contract to pay for them.
    APPEAL from Wooodruff Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      B. D. Turner, for appellant.
   EakiN, J.:

This action was brought before a Justice of the Peace, to recover compensation for care and attention bestowed by the wife of appellee Hobbs, upon the child of appellant. It was taken by appeal to the Circuit Court, and submitted to the Judge sitting as a jury.

The effect of the evidence, as presented in the bill of exceptions, is : that the child, which was feeble and sickly and very young, was given by appellant Ozier’s wife to Mrs. Hobbs, to be raised. It seems the mother was then in a dying condition. Mrs. Hobbs took the child and kept it some two years or more, rendering it fair motherly attention. During this period appellant did many acts of neighborly kindness to Hobb’s family, sending them provisions, furnishing teams, etc. It affirmatively appears that neither party intended to charge for services, to the child on one hand, or for articles or labor furnished on the other.

Ozier, having learned that the child had been corrected by the son-in-law of Mrs. Hobbs-, took it away. She was - much mortified by this, and Ozier afterward told her that he had only taken it temporarily, and meant to return it after her son-in-law left. She made some answer which induced him to believe that she did not desire or urge it, and he never did.

It seems further that Mrs. Hobbs had bought a sewing machines in the expectation that Ozier would pay for it. When the note became due he refused to do so. This, with other reasons, induced Hobbs to sue for the past services of his wife with regard to the child.

The court refused, at the request of appellant, to declare the law to be:

“First — If the plaintiff and wife, at the time the child was taken to their house to be raised, and during its continuance there, did not intend to.charge for board and attention rendered to it, he has no cause of action in the case.

“)Second — If it was understood by and between plaintiff and his wife, and the defendant, during the time the child was at their house, that no charge was to be made against the defendant for board and attention to the child, the plaintiff cannot, afterwards, claim compensation and maintain this action.”

The court, instead, made the following declaration :

“Upon the evidence in this case, the defendant is liable to the plaintiff for a reasonable compensation for the care of the infant of said defendant, less the value of the contributions made by the defendantand upon that found for the plaintiff the sain of $50. The court based this finding and con-chision on the ground that defendant permitted the wife of plaintiff to receive his child, an infant, from his (defendant’s) wife on her death bed, under the belief that the plaintiff’s wife was to have the child, and raise and care for it as her own, and permitted her to have the care and charge thereof for two years and six months ; that he made sundry advancements or contributions of provisions, medicines and clothing, amounting to $175, towards the support of the child, neither party intending to charge the other for these favors, and that defendant afterwards took the child away, pretending that the child was mistreated, 'and that against the assent of plaintiff.

The general principle is well announced in the instructions asked; that, services intended at the time to be gratuitous, cannot, afterwards, be used to raise an implied contract to pay for them ; and this was the case made by the paper filed before - the Magistrate. It was a simple account against Wm. J. Osier, in favor of Isaac Hobbs, for “board, attention and care” of the child, at the request of the defendant, from June 16th, 1872, to August 1st, 1874, $300. According to the findings of the court in this action, the declarations of law asked by defendants should have been given, and the judgment should have been in his favor. ;

There is nothing in the whole case to indicate that plaintiff intended or desired to proceed against the defendant on the ground of his wrongful conduct in taking away the child, in violation of his supposed implied contract (which was found by the court to be a fact) to allow plaintiff’s wife to keep and raise the child as her own ; nor is there any proof of damages incurred by plaintiff or his wife, on account of the tortious conduct of defendant, resulting from loss of future services. We do not mean to say that the injury to the feelings of the wife, in depriving her of the society of the child, to which she may have become very much attached, and her mortification on account of the unjust censure of her conduct, implied by defendant’s pretences, might not have been estimated in the assessment of damages by a jury or a court sitting as such, in an action properly framed for the purpose. , We merely mean, that in this action and on the proof there is error in the judgment.

Let the judgment be reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: Eakin, J.:

license: Public Domain

text:
    Portis & Bro. vs. Talbot & Packard.
    Judgments : Correction of errors in, when and how may be made.

    When there is an error in the entry of a j idgment, which is clearly shown by other parts of the record, and its correction is necessary to make the record consistent, it may be corrected at any time, even after the term; and the court-will of its own motion correct it by nunc pro tunc order, and will annul all that may have been done under an execution issued on it.
    APPEAL from Jefferson Circuit Court.
    On motion bj Appellees to set aside sale, etc.

      Met L. Jones, for Appellants.

      McQain & Kimball, for Appellees.
   Eakin, J.:

On the 7th of June 1878, the appellees, John H. Talbot and Willard L. Packard, under their firm name, recovered of James M. Portis and William N. Portis under their firm name of Por-tis & Bro., the sum of $1678 28-100, with interest thereon at the rate of 6 per cent, per annum from date till paid, and their costs ; and also, in the same judgment they recovered of James M. Portis individually the sum of $123 67-100 and costs.

And also in the same judgment, they recovered of William N. Portis, individually, the sum of $60.5 50-100 and costs.

From this judgment Portis & Bro. and William N. Portis, on the 22d of February 1878, prayed an appeal from the Clerk of this court, which was granted. They executed and filed a supersedeas bond signed W. N. Portis alone with three sureties. The cause was advanced as a delay case, and the judgment of the court below affirmed here, on the 15th of June 1878.

By obvious mistake, the judgment was entered here against the appellants and their sureties for $1678 28-100, with interest from 7th of June 1877, and the further sum of $167 82-100, being ten per cent, damages, with costs ; and also the further sum of $605 50-100, with like damages and costs. The mistake consisted in rendering James M. Portis liable, as one of the appellants, for the individual judgment against William N. Portis. He had only asked the appeal from the firm judgment, and was not a party to the supersedeas (bond. The judgment against himself individually was not appealed. It was intended that the judgment here should follow that below, and be against the firm of Portis & Bro. for the larger amount, and William N. Portis alone for the lesser.

Execution issued from this court on the 1st July 1878, against both the Portis’s, and the sureties for both, amounts, with interest, damages and costs. It was levied upon certain lands and lots, as the property of William N. and James M. Portis, which were sold and pm-chased by Talbot & Packard, the judgment creditors, for $600, which was credited on the debt, less the fees paid $22 25-100.

On the 17th of August following an alias execution was issued, in terms which accorded with the judgment as it was intended, that is, it ran against the firm of. Portis & Bro. for the larger debt, damages and costs, and against William N. Portis and the sureties for the smaller debt of $605 55-100 damages and costs. Upon this execution was endorsed the credit for $600, proceeds of the first sales, less fees.

Upon a bill filed in the Jefferson Circuit Court in the month of September following, an interlocutory injunction was issued by the County Judge, restraining the Sheriff from levying this latter execution upon the property of the sureties in the bond, before he should have exhausted all the property of the principals: and ordering and directing him to levy upon lands pointed out by complainants. This order was afterwards sustained and continued by the Chancellor until further orders.

The bill upon which this injunction was granted, being exhibited here, discloses that the injunction was ordered on the grounds that the Sheriff refused to levy upon property pointed out by the principals, and was about to levy upon the property of the sureties in preference.

On the 2d November, 1878, the appellees, in whose favor the execution issued, moved this court for a writ of prohibition against the Circuit Court, to inhibit it from proceeding in the cause, and on the 9th they moved to set aside and annul the sale on the first execution, on the ground that they acquired no title by the purchase, and were misled in bidding by the representations of W. N. Portis, with regard to their ownership, and also on account of error in the execution, in not following the judgment.

In fact the first execution did follow the judgment entry of this court, but not as it should have been. The second execution was in accordance with the proper judgment as affirmed here, but there was no proper judgment entry to authorize or support it.

The error in the entry was a plain clerical misprision, arising naturally from the anomalous nature of the judgment below, which was the result of an arbitration, and included in one entry, three distinct judgments, one against the firm of Portis & Bro., one against William JST. Portis, and another against James M. Portis, the last of which was not appealed. It escaped the attention of the court in reading the record ; but it is of the nature of those which may be corrected at any time, even after the term ; inasmuch as it is clearly shown by other parts of the record, and the correction is necessary to make the record consistent.

The court will now make the correction, of its own motion, by a nunc pro tunc entry, as of the same date; and annul all that was done under the first execution, and recall the second. This will leave nothing upon which the suit for injunction can operate; and will supersede the exercise of the doubtful power of prohibiting the Circuit Court from proceeding in a matter within its general jurisdiction ; upon the grounds that in the particular case, it may seem to be proceeding erroneously. We do not doubt that the Circuit Court, in this case, upon being advised of the action of this court will make such ruling as to costs as it may deem equitable, and end the matter there. It does not seem to be a case for damages. There will be nothing left to restrain.

Let the entry here be corrected nunc pro tunc, to conform to the judgment below as affirmed, with proper costs and damages against the appellants and sureties, and in all other respects as originally intended; set aside all that has been done under the first execution, and recall the second.

With regard to the costs of $22.50, which seems to have been expended by appellees (plaintiffs in execution) upon their purchase under the sale, a question may arise. The application to set aside the sale, is made by themselves upon two grounds. One is that they obtained no title, and were induced to bid by the misrepresentations of William N. Portis; another, that ■the execution was irregular. There is no answer to the motion, and the eourt might perhaps grant the relief on the first ground alone, which if the execution had been regular, would have entitled appellees to execution for those particular costs also. Inasmuch however, as the mistake in the judgment entry entered into the execution rendering it excessive, at least as to James M. Portis, and the sale was made under such circumstances of irregularity, as to induce the court to set it wholly aside, and would have induced the court to do so, had the defendants in the execution applied for relief on their part, no costs as to it can be awarded. It was as much the duty of appellees as that of appellants to notice the error in the entry. Either party might have had it corrected on proper motion at any time, and a proper execution issued; and the attempt to avail themselves of it in its erroneous form, cannot entitle appellees to reimbursement of costs expended in the effort.

Let a new execution issue on the judgment as corrected.


author: Howaed, Special J.:

text:
    Young et al. vs. Mitchell.
    1. PLEADING: Denials, how must he made.

    A denial must be direct, not argumentative. The former rules of equity in regard to answering the allegations of a pleading are the same under the Code. He who submits to answer must do so fully and fairly.

      2. Confedérate MONEY : Consideration.

    Confederate Treasury notes, issued and circulated as money, were a good consideration for a contract,
    3. Executions : Equitable title subject to.

    The vendee of real estate holding a bond for title, has an equitable interest which is subject to executions.
    APPEAL from Hot Springs Circuit Court in Chancery.
    Hon. —:-'-, Circuit Judge.
   Howaed, Special J.:

Belle J. Young and others, heirs of R. R. Young, filed their complaint in equity, in June, 1873, in the Hot Springs Circuit Court, against A. F. Mitchell and George W. Lawrence, in which it is stated:

That on the 29th day of July, 1863, Reed R. Young, father of the plaintiffs, purchased from Andrew F. Mitchell a tract of land in Hot Spring County, for the price of $5600, of which $5000 .was paid, and the remainder to be paid when the land was surveyed and a deed made for the same ; that at the time, Mitchell executed the following memorandum in writing:

“Received of R. R. Young, five thousand dollars in part pay for my tract or parcel of land, lying and being in the Magnet Cove, in Hot Spring County, and State of Arkansas, and containing about three hundred and seventy-two acres, more or less — which I bind myself to make or cause to be made a good and sufficient title to the same at any time when I may he requested to do so, or as soon as I can do so.

“ Given under my hand, this 29th July, 1863.

“A. T. Mitchell.”

That the said memorandum was not filed because it was burned when the court house of Hot Spring County was burned, in 1873 ; that the matter rested thus until 1866, when Young and Mitchell, having differed about the payment for the land, agreed to arbitrate, and did so, and that an award was made that Mitchell should have the lands surveyed and give to Young a deed, Young paying $650 with 6 per cent, interest, from July 29th, 1863, till paid, to be paid in one or three months; that at the time fixed, Young was ready to pay, but Mitchell purposely avoided him; that in 1867 or 1868, Young removed with his family to Tennessee.

That on the 18th day of January, 1868, the defendant, Lawrence, filed an account against Young, and an affidavit for attachment before a Justice of the Peace ; that an attachment was issued and levied upon this land by the Constable; that the Justice made an order for the defendant to appear, and he not appearing, he entered judgment for Lawrence, who took a certified copy for the same, and on the 2d March, 1868, filed the same in the Circuit Clerk’s office ; that in June, 1868, Lawrence had execution issued and levied upon this land, and in September following, at regular sale, the land was sold and bought by Lawrence for the pittance of $60.

The plaintiffs then charge the sale and deed void for several reasons, which will be noticed hereafter.

The bill then charges, that Young died November 4th, 1868, leaving these plaintiffs his only heirs ; that efforts have been made to settle the matter ; that the , land was worth $3040; that Lawrence’s acts were fraudulent; that plaintiffs have always, been ready to pay the $650 ; that Lawrence has been in possession since January 1st, 1869.

Plaintiffs pray that the attachment proceedings and sale of the land be decreed to be, void; that the deed to Lawrence be cancelled, and that Mitchell be required to make to plaintiffs as heirs of Young, a good and sufficient deed to said lands.

To this bill, as exhibits, are copies of the proceedings before the Justice and the Sheriff’s deed to Lawrence.

On the 29th of August, 1873, Lawrence answered and made his answer a cross-bill.

He admits the purchase, the correctness of the memorandum and of the description of the land, and of the statement of the arbitration and award. He admits suing Young, and all the steps taken in that suit and subsequent pleadings ; but denies any irregularity or illegality; and states that the sale of the lands was open and public; that he purchased all of Young’s interest and exhibits his Sheriff’s deed. He admits Young’s death, but does not know who are his heirs. He asks that his answer be taken as a cross-bill, and that upon payment by him of the residue of the purchase money, his title be confirmed, the Youngs and Mitchell be enjoined from further intei’fering with him in his possesion of the land, and for all other relief.

On the 3d of October, 1873, Mitchell filed his answer and made it a cross-bill.

He denies that Young purchased the tracts of land as alleged, or that he executed any such memoranda, or receipt, as is in said complaint set forth; he states that he entered into a verbal contract with Young for the purchase of these lands for the sum of $5650, in Confederate money, for which he gave him some kind of receipt, the terms of which he cannot remember; that Young failed to pay the $650 ; that Confederate money was illegal currency; that Young promised to pay the residue immediately, but has not done so or been willing to do so. That Young and himself agreed to submit their matters to arbitration, (he states the award with some variations, but attacks its validity ;) that Young did not pay the sum awarded at the time tixed or any other time, and that therefore he has no claim or interest of any kind in said lands; denies that he avoided Young or that Young was ready at the time to pay the residue ; states that he has never received anything of the least value to him or any consideration whatever for said lands, and that the said $5000 was worthless ; that he has no knowledge of the death of Young, or who are his heirs.

Mitchell substantially admits the statements in the original bill, of the proceedings in the suit by Lawrence; adopts the objections of the plaintiffs to the sale and deed, and states others which will be hereafter noticed.

The prayer of the cross-bill is that the original bill be dismissed, the deed to Lawrence set aside, etc,

At the March term, 1877, of the court below, the cause was submitted on thise pleadings and exhibits, Lawrence’s deed in testimony, an agreement that the copies of the arbitration papers filed as an exhibit were true and correct copies, and an agreement that the pleadings of each party were to stand as answers to the several cross bills filed.

The court, without making any special findings, decreed Young’s original bill, and Lawrence’s cross bill be dismissed, that Lawrence’s deed be cancelled, Mitchell’s title quieted, possession of the land given to Mitchell, and that he recover costs from the other parties. From this decree, both Young’s heirs and Lawrence appeal.

The lands in controversy are east half of the southeast quarter of section 19; the west half of southwest quarter, section 20, and northwest quarter, section 20, township 3 south, range 17 west.

It is claimed by both Lawrence and Mitchell, that the plaintiffs cannot succeed, because their heirship to Young having been denied, it has not been proven. Lawrence says, whether said plaintiffs are the heirs he does not know, and calls upon them to make proof thereof.

Mitchell says he has no knowledge of the death of B. B. Young, or that complainants are his heirs, and denies the same, and asks that proof be made thereof.

Neither Of these is a sufficient denial. The issue each was required to make, was not whether he knew these allegations to be true, or whether he was willing to admit them to be true, but whether they were in fact true ; * * if he was without legal information on the subject, he could have traversed them in that form. Gantt’s Digest, 4569; Trapnall v. Hill, 31 Ark., 357.

There is much said in both the pleadings and arguments of counsel, of an arbitration of the matters in dispute between Mitchell and Young, and an award in October, 1866. But these proceedings appear never to have been completed, adopted, or acted upon, by either party in any particular. We deem it unnecessary to further refer to them.

The answer of Mitchell to the allegatious of the bill of Young’s heirs, is unsatisfactory and evasive. The complainants set out a memorandum, which is a receipt by Mitchell, of a portion of the purchase money, and an agreement “ to make a good and sufficient title when requested so to do, or when he could do.” They state that they cannot file this paper because it was placed among other papers, in an arbitration suit between Mitchell and Young, in the court house of Hot Springs County, and destroyed when that building was burned in the year 1873. Mitchell denies that Young purchased the land “ as alleged in said complaint,” or that he “ executed any such memoranda or receipt as in said complaint set forth.” He says he does not know, nor has he any means of knowing whether this paper was burned. But he does say he made a verbal contract with Young, for the sale of these lands, that a portion of the purchase money was paid in confederate money, and that he gave to the agent of Young, a receipt of some kind in writing, showing that said nominal sum of five thous- and dollars was paid on said tracts of land, but whether in said receipt said nominal sum of five thousand dollars was mentioned as five thousand dollars simply, or five thousand dollars in confederate money, he cannot recollect.

These denials and allegations are not such as are required. A denial must be direct, not argumentative. The former rules of equity with regard to answering the allegations of a pleading are the same under our system. He who submits to answer must do so fully and fairly. Any effort to escape from a direct answer is not tolerated. 1 Nash. Pl. and Pr. 175; Newman Pl. and Pr. 511, et seq; Guynn, et al v. McCauley, et al, 32 Ark. 105; Gantt's Digest, 4569.

But in direct connection with this manner of answering, Mitchell insists that what he received from Young was in *‘ confederate money,” that this was an illegal eurrency, that it was of no legal value whatever, and that it has never been of any value or benefit to him. He nowhere offers to return the currency: he does not ask for a rescisión of any contract. He treats the entire transaction as a nullity: and, upon this ground of absolute failure of consideration, he appears to have relied for the relief asked by him from, and granted to him by the court below.

In a long and unbroken line of authorities from Smith v. Thorington, 8 Wall. 1, to Williams v. Bruffey, 6 Otto, (96 U. S.) 176, the Supreme Court of the United States has maintained the doctrine that notes issued by the confederate government, and actually circulating as money, supported the consideration of contracts. In Thorington v. Smith, that court decided that a contract for the payment of confederate treasury notes, made between parties residing within the so-called confederate states, could be enforced in the courts of the United States, the contract having been made on a sale of property in the usual course of business.

In Delmos v. Insurance Company, 14 Wallace, 651, the-court says : ‘ ‘ This court has decided that a contract was not void because payable in confederate money ; and notwithstanding the apparent division of opinion on this question, in the case of Hanauer v. Woodruff, we are of opinion that on the general principle announced in Thorington v. Smith, the notes-of the confederacy actually circulating as money at the time a contract was made, may constitute a valid consideration for such contracts.

In Williams v. Bruffy, the court says: “The same general form of government, the same general laws for the administration of justice, and the protection of private rights, which had existed in tlie.States prior to the rebellion, remained during its continuance and afterwards. As far as the acts of the States did not impair, or tend to impair, the supremacy of the national authority, or the just rights of citizens under the constitution, they are in general, to be treated as valid, and. binding. As we said in Horn v. Lockhart: “ The existence of a state of insurrection and Avar did not loosen the bands of society, or do away Avith civil government, or the regular administration of the laAvs. Order was to be preserved, poiice regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated, precisely as in times of peace.”

And this court, in a well considered and exhaustive opinion, said, in Berry v. Bellows, 30 Ark., 214: “It may be safely asserted that no court entitled to respect would now decide that when a creditor, acting for himself, accepted Confederate money in payment of a debt at any time during the war, when, and in a Southern State where it circulated as currency, •such payment did not extinguish the debt.”

There remain the matters disputed between the complainants and Lawrence. Young’s heirs and Mitchell set up the following objections to Lawrence’s title.

I. The defendant, Young, had no such estate in said land as was subject to execution, being a mere equitable interest.

II. The proceedings and judgment of the Justice of the Peace do not show the attached lands were within his teritorial jurisdiction.

III. The return of the Constable does not show there was no personal estate within his township or county upon which to levy the attachment.

IY. It does not appear from the Justice’s transcript the account was filed before writ issued.

Y. The transcript of the judgment and proceedings in attachment does not show a writ was levied upon the lands mentioned in the Sheriff’s deed to Lawrence.

YI. There was no bond filed by defendant, Lawrence, as required by law before issuance of execution by Clerk of Hot Spring Coui’t, and under which the Sheriff sold this land, as required by sec. 30, chap. 26, Gould’s Digest.

YII. No bond was at any time filed in the attachment suit before the Justice of the Peace, or in the Hot Spring Circuit Court, as is required before execution can issue.

YIII. There was no advertisement as required by law of the sale under which Lawrence claims title.

IX. In and by the face of said deed it appears that the levy, advertisement and sale of said lands were each and all on the same day.

X. Said supposed legal proceedings and deed under which. Lawrence claims are otherwise fatally defective and void.

It is only necessary to refer to our statute and the construction which this court has placed upon it to meet the first objection. “Our statute is very comprehensive, and declares all real estate subject to execution, whereof the defendant, or any person for him is seized in law or equity. The vendee of real estate holding a bond for title, is in equity considered as the real owner, whether he had paid the purchase money, or actually taken possession or not, subject only to the legal and equitable rights of the vendor for the unpaid purchase money. Hardy v. Heard, 15 Ark. 187; Gantt’s Digest, 2630. Clearly in our above stated view of this contract, Young hadan interest which could be sold. He was in the condition of a vendee, with bond for title.

Most of the objections relied on by the appellant can be disposed of easily. . The record of the proceedings shows that, there was filed an account and an affidavit as required by the statute.

The plaintiff, Lawrence, seems to have complied with all the requirements- of the statute in instituting and prosecuting his case. The account was properly filed and the affidavit for an attachment was made. The writ was properly issued. The record is sufficient upon these points.

No bond was required to be filed with the Justice before an attachment could issue. Stewart v. Houston, 25 Ark., 311.

It is objected that the levy in this case was made upon land, without stating in the return of the Constable that there was no-personal property which could be reached by the writ of attachment. We are asked to say that this failure of the office to make that affirmative statement should invalidate everything done in the proceedings, and declare them void. There is no statement that anything was improperly done. It is not so claimed. Simply the return does not so show. The statute is as follows :

“Whenever the Constable to whom any writ of attachment, issued by any Justice of the Peace, shall be directed, can find no personal property upon which to levy the same, he may and shall levy such writ upon any lands, tenements or town lots, belonging to the defendants in such execution, which .may be subject to execution and make his return accordingly, describing in such return the lands, tenements or town lots, so levied upon.” Gould’s Dig. chap. 16, sec. 35.

In a former statute, upon attachments before Justices of the Peace, the Constable was authorized to attach slaves, when he could find no other property whereon to levy such attachment. In so making an attachment, he stated the fact, and that appears to have been sufficient.

It appears in this case that the Constable made a levy upon certain property, which he designates. It is necessary that he should show in his return, which has never been directly attacked affirmatively, that every provision of the statute has been strictly observed. We think, in this case, the officer has obeyed the requirements of the statute. Must he be held to have gone further? We think not.

The Supreme Court of Iowa in treating this question say, (in an opinion by a dissenting judge, which was afterwards adopted as the law) : “It is then stated, as a legal proposition, that it should affirmatively appear by the officer’s return that the provisions of the statute had been strictly observed, as the jurisdiction of the court depends entirely upon a legal levy. The only return required by the act, is that the inventory and appraisement shall be annexed and returned with the writ. How then, can it be assumed that the return must show affirmatively that the provisions of the statute had been strictly observed? A legal levy is by no means dependent upon, or the sequence of, such a return. 3 C. Green’s R., 398.

In construing a similarly worded statute, the Supreme Court of Kentucky, use this language. ******** “ The motion was made upon the ground that the officer had no right to levy upon slaves, when, as assumed, other personal property to a sufficient amount had been shown to him ; and, if it be conceded that the fifteenth section of the execution law, applies to attachments, it is only directory to the officer and does not render the levy either void or voidable.”

In Isham v. Downer, 8 Conn., 282, the court in considering this question, where the court below had instructed that neither the plaintiff, nor the officer who served the plaintiff’s attachment, was bound to take the personal estate of the debtor, but that the real estate was liable to be taken, notwithstanding his ownership and possession of personal estate, say; “But it is said, that the statute contains a new and positive direction, that an attachment shall be served, by attaching the goods or chattels of the defendant, or if none can be found, by attaching the person or land of the defendant. If this construction be adopted, there must be a total absence of personal property, to justify taking the person or land of the defendant, or making any other service.”

This court has in several cases stated the rule in this respect. Rose Ford, 2 Ark., 26; Henry v. Ward, 4 Ark., 150; Elliott v. The Bank, 4 Ark., 437; McNabb v. The Bank, 4 Ark., 555.

We are of the opinion, then, that the sale to Young was valid and upon good consideration ; that Young had such an interest in the lands as was subject to sale; that Lawrence purchased the interest of Youug; that Mitchell is entitled to the balance of the purchased money ; namely, $600, with interest from July 29th, 1863, at the rate of 6 per cent, per year; and that upon payment of this sum Lawrence should be decreed to have title to the lands and be quieted in the possession of the same.

Decree reversed and cause remanded for further proceedings in accordance with law, and not inconsistent with this opinion.


author: HaRRIsoN, J.:

text:
    Gist, Ex., vs. Hanly.
    Lien, of attorney for his fees and cost:

    An attorney has a lien upon the securities in his hands for his fees and costs, as well as upon a judgment recovered upon them. Section 3622, Gantt’s Digest, so far as it extends, is but a declaration of the law as it was before. Where an attorney has attached property for the collection of a debt, the lien of the attachment enures to the benefit of t'.e attorney Lr his fees and cost advanced in the action, and cannot be defeated by any settlement made by his client and the debtor, without his consent.
    APPEAL from Phillips Circuit Court.
    Hon. J. hi. Cypert, Circuit Judge.

      Tappan & Hornor, for Appellants.
    Brown, Oontra.

   HaRRIsoN, J.:

Thomas B. Hanly was employed as an attorney by William H. Ford, a non-resident of the State, to bring suit by attachment in the Phillips Circuit Court, against Thomas C. Gist, on two writings obligatory or bonds, made by said Gist to John N. Herndon, each for $3500, dated December 27th, 1859, and payable with interest from date, respectively, on the 1st of January, 1861 and 1862, and the bonds were placed in his hands for that purpose. Ford at the time of his retainer paid him $225, and agreed to pay in addition thereto, eight per cent, of what might be recovered.

Hanly accordingly brought suit on each bond, in the name of Herndon, for the use of Ford, which suits were commenced on the 12th day of February, 1868, and the attachments were levied on fifteen hundred acres of the defendant’s lands.

The defendant filed a motion, in each case, to dismiss the suit upon the ground that the bond was given in the purchase of slaves.

Before the motions were determined, Grist died, and the suits were revived against his executor, Thomas Gist.

Afterwards, Ford and said Thomas Gist, without the consent or knowledge of Hanly, compromised and settled the suits; and Gist paid Ford $1500, in full satisfaction and discharge of the bonds, and agreed to pay the costs, and Ford gave him a receipt against the bonds, and an order to Hanly for them.

Hanly refused to surrender the bonds, and he filed this complaint in equity against Ford, Herndon, and Thomas Gist, as such executor of John C. Gist, to enforce his lien on the bonds for the remainder of his fee, and $15.75 costs in the suits, paid by him, stating therein the foregoing facts, and charging collusion between Ford and Gist to defraud him.

Only Gist answered the complaint, or made any defense. He denied the charge of collusion, or any knowledge that any thing was due the plaintiff, and denied that he had a lien' on the bonds or debts settled by him. He offered to pay the costs advanced by the plaintiff.

The court found that Ford was indebted to the plaintiff, on his fees, and for the costs advanced, $405.75, and for which he had a lien on the bonds or claims, and decreed the payment of the same by Gist out of the goods and property of his testator’s estate.

Gist appealed from the decree.

That an attorney has a lien on the judgment he has recovered for his client, for his fee and the costs advanced by him, is beyond controversy; and it is as well settled that he has a similar lien on thesecurties in his hands.

Hollis v. Claridge, 4 Taun. 807; Furlong v. Howard, 2 Scho. & Lep. 115; Ex-parte Nesbit, Ib. 279; Taylor v. Popham, 13 Vesey, 59; Twort v. Dayrell, Ib. 195; Pemberton, ex-parte, 18 Vesey, 282; Stevenson v. Blakelock, 1 Maule & Seld. 535; Pleasants v. Kortrect, 5 Heis. 694; Howard v. Osceola, 22 Wis. 453; Keenan v. Dorflinger, 19 How Pr. 153; Story on Agency, sec. 383.

But it is contended that lie has no lien whatever until after the judgment, and that his client may compromise or settle the suit with the opposite party without his consent, and without paying his fee; and we are referred to section 3622 of Gantt’s Digest. That section, so far as it extends, is but declarative of the law as it stood at the time of its enactment, and makes no change. By no possible construction can it be held to have taken away the lien of the attorney upon the papers and securities in the cause. That the law gives such lien before judgment the authorities abundantly show.

Pleasants v. Kortrecht, supra; Howard v. Osceola, supra; Keenan v. Dorflinger, supra; Jones v. Morgan, 39 Ga. 310; Rasquim v. Knickerbocker Co. 12 Alb. Pr. 324; Hutchinson v. Howard, 15 Vt. 544; 2 Kent’s Com. 640.

The attorney is virtually an assignee of a portion of the judgment, or of the debt or claim, equal to his fee, and the advances which he has made for his client. For the parties then to make any arrangement or settlement between themselves, without his consent, by which his right might be defeated, would be a fraud upon him, against which he is entitled to protection. As has been said, a party should not run away with the fruits of the cause, without satisfying the legal demands of his attorney by whoso industry those fruits are obtained.

It does not appear that any other defense was set up against the bonds than that they were given in the purchase of slaves, or .that there was any valid defense againt them,. nor is it shown that the lands attached, were not of sufficient value to satisfy the debt.

The lien of the attachments also enured to the benefit of the appellee, and the parties for that reason had not the right, by a compromise or settlement between themselves, to release the attachments. In the case of Pleasants v. Kortrechl, above cited, the solicitors impounded a trust fund by attachment for the benefit of their client. The client, without their knowledge or consent, compromised his case and dismissed the suit. The court say; “We think that whenever the solicitor has succeeded, by his professional services,, in securing a fund by attachment, and thereby fixing upon it the lien of his client, his own lien, like that of his client, attaches, both however subject to be defeated by the loss of the fund on final hearing or trial. Prima facie, the fund attached is subject to be appropriated to the satisfaction of the attaching creditor’s lien, and along with his lien, that of his solicitor goes pari passu.”

The appellee’s connection with the suits, and the levy of the attachments were facts which the appellant must necessarily have-known, and they were sufficient to put him upon inquiry as to the lien, and the appellant’s settling with Ford in the face of these facts without the appellant’s consent, was at his peril.

It is also insisted that the appellee should have verified his claim as a demand against the estate of the appellant’s testator.

This objection is wholly untenable. As has been shown, it is part of the demands upon which the suits against his testator were brought, as to which no ¡presentation to the executor or verification was required, and which has been appropriated to the estate by the appellant.

Although, as it seems to us, the appellee might have enforced his liens by an application to the court in the cases in which they arose, this does not exclude the jurisdiction of the court, in an original suit in equity, to afford the relief. No such objection, however, was raised in the court below, or in this.

The decree is affirmed.


author: HarrisoN, J.:

text:
    Richardson & May vs. Hamlett and Wife, et al.
    Vendor and Vendee : Mortgage: Agreement for 'purchase money will be enforced.

    An agreement between the vendor and vendee, that the latter shall execute to the former a mortgage upon the land, to secure payment of the purchase money, will give the vendor or his assignee the same rights in equity as if the mortgage had been executed.
    APPEAL from Ohicot Circuit Court in Chancery.
    Hon. T. F. Sorrells, Circuit Judge.

      Reynolds, for appellants.

      Rose, contra.

   HarrisoN, J.:

This was a suit in equity by Richardson & May, the appellants, against John C. Hamlett and Alice R. Hamlett, his wife, and James W. Abell and Emma G. Abell, his wife, the object of which was to establish and enforce a lien on certain lands for the payment of a note given for purchase money.

The complaint alleges that Samuel P. Weisiger, in his individual capacity and also as executor of Lucy Weisiger, deceased, and Thomas N. Lindsey, on the 22d day of September, 1873, sold the lands to John G. Morgan for $ 12,000 — for $4000 of which sum the said Morgan gave them drafts on T. H. and I. M. Allen & Co. of New Orleans, and for the remainder, two notes for $4000 each, payable respectively in one and two years, from the 1st day of January, 1874, bearing 8 per cent. interest from the latter date until paid ; and that the said Weis iger and Lindsey executed to him a deed for the lands.

That it was in the sale and purchase of the lands also agreed that Morgan should execute to the vendors a mortgage on the lands, to secure the payment of the drafts and notes, which agreement was stated in the deed, but that the mortgage was never executed.

That Morgan died in 1875, intestate, leaving a widow, Emma L. Morgan, and the said Alice R. and Emma Gr., and Lula L. Morgan, who is an infant, his heirs at law, and that the said John C. Hamlett is the administrator of his estate.

That the said Emma L. Morgan, in consideration of the transfer to her and the said Lula L. of certain property belonging to his estate in Alabama, and other matters not stated, released to the defendants her dower, and as the guardian of said Lula L. her interest also, in the lands and other property of the said John Gr. Morgan’s estate in Arkansas. That the defendants are in possession of the lands. That the drafts and the note first due, have been paid. And that the plaintiffs are the assignees and holder’s of the second or last note, which with the exception of $840.48, paid on the 10th day of May, 1876, is still due and unpaid.

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a causo of action. The court sustained the demurrer, and dismissed the complaint.

Had there been no agreement for a mortgage or other security, there could be no question that the vendors would in equity have had a lien on the lands for the purchase money, which, as it appears upon the face of the deed,' that the purchase money was not paid, would have enured to the plaintiffs upon the assignment of the note to them, accordingto the provisions of sec. 564, Gfantt’s Digest (Act, 1873). Yet, though they contracted for a different security, from which the presumption arises that it was not their intention to rely on that, the failure of the vendees to give the mortgage, did not have the effect to deprive them of the security bargained for, much less of all security whatever.

Equity looks upon that as done, which ought to have been done. Judge Story says : “All agreements are considered as performed, which are made for a valuable considaration, in favor of persons entitled to insist upon their performance. They are to be considered as done at the time, when, according to the tenor thereof, they ought to have been performed. They are, also, deemed to have the same consequences attached to them; so that one party, or his privies, shall not derive benefit by his laches or neglect; and the other, party, for whose benefit the contract was designed, or his privies, shall not suffer thereby.” 2 Story Eq. Jur. sec: 64 g; 1 Perry on Trusts, sec. 231; Craig v. Leslie, 3 Wheat. 563; Atwood v. Vincent. 17 Conn. 565; Jackson v. Small, 34 Ind. 241.

The rights of the plaintiffs are, therefore, the same as they would have been, had the mortgage been executed in accordance with the agreement.

Under what authority Lula L. Morgan’s interest was released by her guardian, does not appear, but that is not a matter for our consideration. Not being a party to the suit, her rights, whatever they may be, will not be in any way affected by the decree, it being a principle everywhere admitted, that the rights of no one shall be decided in a court of justice, unless he be present.

We are of the opinion that the complaint does contain sufficient equity, or such fa'cts, as constitute a cause of action, and that the demurrer ought to have been overruled ; the decree is therefore reversed, and the cause remanded for further proceedings.


author: EaiciN, J.:

text:
    Mayes vs. Hendry.
    1. Vendor's Lien. Taking security presumptive waiver of.

    The acceptance of other security raises a presumption that the vendor intended to waiver his equitable lien on the land for the purchase money, but it is a matter of intention, subject to proof.
    2.-: The Remedy.

    It is not necessary to the enforcement ef a vendor’s lien in equity, that he should first exhaust his remedy at law. Upon a valid agreement for the sale of land, the vendor until conveyance, holds the legal title in trust for the vendee, and after conveyance, the vendee holds it charged with a trust for the purchase money.
    3. Practice. Time of answering.

    It is within the discretion of a chancellor to permit an answer to be filed after the time allowed for filing it, which will not be interfered with by the Supreme Court, except in cases of plain abuse or manifest mistake. It is not enough that a defendant has a meritorious detense. It must be used in a fit time.
    4.-: Necessary parties must he in court'.

    Although want of necessary parties must be taken advantage of by answer or demurrer, yet if from the nature of the ease, a complete and final settlement of the rights ef the parties before the court, cannot be had amongst themselves, the chancellor should, of his own motion, order other necessary parties to be brought in.
    APPEAL from Washington Circuit Court.
    Hon.-, Circuit Judge.

      J. D. Walher, for appellant.

      L. Gregg, for Appellee.
   EaiciN, J.:

Appellee, Alexander Hendry, on the 20th of September, 1875, filed a bill against Samuel and Joseph Mayes, to assert and foreclose an equitable vendor’s lien for the purchase money of-certain lands, alleging that he sold to them, and conveyed to Samuel. Mayes a third interest in a certain tract upon which there was a mill, for the sum of $2500, also one-sixth in the same tract which belonged to John Hendry, but which said appellee had a right to sell, for the sum of $1250, for which said John Hendry executed the conveyance.

Also, the entire amount of a certain other tract, lying adjacent, for the sum of $1300, which appellee and his wife at the time conveyed, and attempted to describe properly in the deed. The bill sets forth the true description, and offers to correct any errors in the conveyance, if such there be. The deed being in possession of defendant, Samuel Mayes.

The entire consideration of the said sale, composed of said several tracts, was $5050, to be paid as follows: $1000 to the order of complainant, on or before January 1st, 1875, with interest at the rate of 15 per cent, per annum, from its date of June 15th, 1873.

There were due from said complainant, two notes to W. F. Wilson, one for $600, dated June 11th, 1872, due at twelve months with interest at the rate of twenty per cent, per annum till paid; and the other for $132.50, dated January 1st, 1872, due at one day, with interest at the rate of. 15 per cent, per annum until paid. The former of these notes was secured by a trust deed to Wilson, on most of the real estate conveyed, except the mill property, but it included the residence. Said Samuel Mays being aware of this incumbrance, agreed as a part of the consideration of the purchase, to pay these notes to Wilson within a short time, not exceeding twelve months, and it was further agreed between complainant, said Wilson, and said Samuel Mays, that said Wilson would continue to hold his trust deed as a security for his notes and interest, and so much therefore of the purchase money, was left on open account between complainant and Mays. In part performance of this agreement, said Samuel, afterwards paid up the interest on said Wilson’s notes to the first day of July, 1874.

For the remainder of the purchase money, said Mays executed a certain other note, which complainant had cashed in bank, and also gave him mules and other property, leaving unpaid only the first named note, and the principal of the Wilson notes with interest from the first day of July, 1874.

Joseph Mays united with Samuel in the execution of the first note. At that time he was insolvent. The complainant alleges that he did not take his name as security, or rely upon it as such, but because he offered to sign, and complainant supposed from the representations of the parties, that he had an interest in the purchase. He with said Samuel has since been in possession.

Prayer for an account between complainant and defendants, and' a decree for the whole amount due, which is averred to be $2,247.20, or thereabout at the time of filing the bill; that his vendor’s lien may be declared therefor, and the lands sold on default of payment, and for general relief. No account is sought of the sum due Wilson, nor is there any prayer that a portion of the unpaid purchase money be appropriated to his debt.

• At the October term succeeding, Joseph Mays disclaimed, and Samuel demurred. The demurrer was overruled as to all the points specified, except for the cause that inasmuch as it appeared from the bill that Joseph Mays was a surety on the first note, there was as to that no equity for a vendor’s lien. This was cured by an amendment causing the bill to appear as above recited.

The other causes of demurrer overruled were, for want of equity; want of certainty in the description of the lands ; and failure of the bill to show title in complainant.

After amendment, defendant Samuel Mays, was by order of court, allowed until the 15th of December, 1875, to file his answer. He failed to do so, and at the next April term, the bill was by order of court taken as confessed. About two weeks afterwards at the same term, defendant moved to set aside tbe said order, and for leave to answer, tendering at tbe same time a sworn answer with his motion, all of which is brought on the record.

The grounds of the motion were in effect, that he had a meritorious defense ; that his answer was drawn, verified and left with one of his attorneys, prior to the 15th of December ; that the attorney left home, and was unavoidably detained until about the 25th, and that defendant supposed it had been hied, that the parties on both sides had been engaged in taking depositions, and there was a pending agreement for further depositions when the decree pro con/esso was taken, that complainant shortly before the interlocutory decree had been taken, had amended his bill as to material allegations.

With regard to the answer exhibited and tendered with the motion, it may suffice to say, that it traversed many of the material allegations of the bill, and presented matter which, if sustained by proof, would have materially affected the decree ■ in favor of defendant. Upon its face it is meritorious.

On the 1st of June the court refused the motion to set aside the interlocutory decree ; the amendment made at the time of taking it, was withdrawn by complainant; and a final decree was rendered.

The decree finds the sale of the several interests and parcels of land, as set forth in the bill, describing more particularly the metes and bounds of the second tract; that defendant Samuel Mays agreed to pay therefor, the aggregate sum of $5050. That he had paid all of said amount except $1000, and interest thereon at 15 per cent, per annum, from June 5th, 1875, which was to be paid directly to plaintiff, and except also the sum of $732.50, due to Wilson on the two notes held by him, and which the defendant assumed to satisfy, and the interest of which he had paid up to July 1st, 1874 ; .that complainant was not released from his liability on said notes, nor in anywise secured against the same, save by defendants promise to pay Wilson; that there was due and owing complainant the sum of $2446, consisting of principal and interest, on said notes ; that the $600 note of Wilson was a prior lien with interest from July 1st, 1874, amounting at the time of the decree to $830 ; that the defendants entered upon the posses sion of the lands at the time of the purchase, and that Joseph. Mays had no interest; that he was insolvent and not accepted, as surety, and that complainant retained his vendor’s lien.

It was ordered that complainant recover the sum of $1616, being the balance due after deducting said sum of $830, with, interest on $1132.50 thereof, at 15 per cent., and interest on. $485.50 at the rate of 6 per cent, from the date of the decrees,

Time was given for the payment of said sum of $1616, and upon default it was ordered that a special -fieri facias might issue to the Sheriff, as commissioner, to carry out the decree and make sale of enough of the property to pay said sum of $1616, and in case of deficiency, that execution issue for the remainder ; and that said defendant hold said premises subject to the payment of said sum of $830, in addition to complainant’s lien, which last sum’is held as “yet due of the purchase price agreed to be paid to said Samuel Mays.” Defendant-appealed.

There was no error in overruling the demurrer, as to all the points, except as to that regarding the waiver of the vendor’s lien, by the acceptance of Joseph Mays as surety on the note. Upon this point we may presume the demurrer was properly sustained, although the bill was amended to meet the objection, and as it appears now in the transcript, shows circumstances which rebut the waiver. The rule as recognized in this court is, upon this point, that the acceptance of other security raises a presumption that the vendor meant to waive his equitable lien for the purchase money; but it is nevertheless a matter of intention. The vendor may show, from circumstances, that ■such was not the intention, and in that case the lien will be protected, although other security be taken. As to other matters the bill shows sufficient equities upon its face to entitle •complainants to some relief. The supposed uncertainty in the ■description of the lands, should have been met by a motion to make the complaint more definite and certain, and not by demurrer. It is not plainly defective as it stands

The lands are described by courses, distances, measurements and contiguous boundaries. If these measurements and contiguous boundaries exist, the lands may be located by them. If they do not, that should be shown by answer. There must, in all descriptions of lands, otherwise than by the government surveys, be marks and monuments, or contiguous boundaries, of which the court cannot take judicial cognizance. If they are such as may be found by persons acquainted with the locality, they must be taken for granted as existing, unless denied.

If the boundaries of the last tract be imperfectly described, enough, nevertheless, appears in the bill to show that there was a sale of a certain tract lying east and north of the Mill tract, which the complainant conveyed by what he supposed to be the true boundaries ; that he has not control of the. deed, which is in defendant’s possession, and that he is willing to correct the description if it is erroneous. Although, under the Code of Practice, he could not file a bill merely for discovery of the former description ; yet, in a bill filed to enforce other plain equities, he may well proffer, on behalf of defendant, and to do him complete justice, to correct any error he may point out, which would work to his prejudice. If the defendant refuses to point out any, it must be presumed, not only that the description is true, but sufficiently definite to enable a competent surveyor to locate the land.

It is contended that the complainant below, having executed deeds of the lands, and divested himself of the legal title, cannot now enforce his equitable vendor’s lien, without having-first exhausted his remedy at law. In other words, that a proceeding to enfoi’ce his equitable lien is upon the footing of a. creditor’s bill to reach equitable assets, and cannot be brought, without first,showing judgment at law, return, of nulla bona, insolvency, or something else, to make it clear that complainant is remediless at law. The analogy 'of the cases does not hold good, inasmuch as this is not a bill to reach equitable assets, but rather to reach a legal estate, and subject it to equities which a Court of.Equity alone can recognize and enforce. -It is simply to declare a trust for the purchase money upon specific property, which trust is raised in. equity and. continued until the debt becomes barred, and is based upon the same idea and is indeed part of the doctrine .of specific performance. That doctrine is that upon a valid agreement for the sale of land, the vendor, until conveyance, holds the legal title in trust for the vendee, and after conveyance, the vendee holds it charged with a trust for the purchase money. Although this trust rests upon no express contact — is the mere creation of courts of equity, and is guarded and qualified carefully.to protect innocent purchasers — there is no reason why, as between parties and those bound by notice, it may not be considered as specific as any resulting or other implied trust.

It is not easily comprehensible what is meant by saying that it is neither a jus ad rem, nor a jus in re, and that it has no existence until a bill be filed to enforce it. It is plainer. language to say that it does not bind innocent purchasers, before lis pendens, and that it is merely personal to the vendor, and does not pass to the assignee of the- debt. Within its scope, however, as carefully guarded by courts of equity, it is a specific lien co-existent with the debt — binding from the beginning, as well before suit as after, all who take the land with notice.

These principles were recognized and declared very forcibly and clearly by this court more than twenty years ago, in an opinion delivered by the present Chief Justice (See Shall v. Biscoe, 18 Ark., 142), in which the nature of this equitable lien was thoroughly discussed. Nothing indeed is left to be added.

The enforcement of such liens has been the common practice in this State since that time, and it has never been considered necessary to allege or show that the remedy at law had been exhausted. . .

The action of the courts of the several' States in America, has not been uniform with regard to this equitable lien. In some it has been rejected wholly, and in others received only in a modified form. The courts of Maryland and Indiana have held that the remedy at law must be first .exhausted, But the weight of American authority is in favor of the English doctrine. When the lien is recognized at all, it is best that it should be. efficient, and rest upon the idea of a trust, which follows the lands, with notice of its existence, and which like other trusts may be specially enforced in favor of the vendor without regard to the general solvency of the vendee. It does not conflict with this view, to hold that it is merely personal to the vendor and does not pass to the assignee of the debt. . It is the satisfaction of the vendor alone which is contemplated in equity, and those who take the notes are supposed to have given full value, and to have relied upon their legal rights upon them.

The failure of the bill to show that the. legal remedy of complainant had been exhausted, did not therefore affect its equity. Upon the whole we find no error in overruling the demurrer.

Ought the court to have granted leave to defendant to file his answer after default and the order to take the bill as confessed? The answer appears on inspection to be meritorious, and the court might well, in furtherance of justice, have allowed it to be filed. But this was a matter within the discretion of the Chancellor. The Circuit Courts are the great reservoirs of original jurisdiction, entrusted with the active administration of justice amongst the citizens. It is the duty of the presiding judges to preserve the order of business in their courts, and see to it that cases proceed with dispatch, and in due course of practice. For these purposes a large discretion must of necessity be entrusted to them ; and this court is ever loth to interfere with that discretion, except in cases of plain abuse, or manifest mistake.

The judges are chosen by the people, are learned in the law, and have weighty responsibilities, which the}'- are doubtless anxious to discharge with fidelity. Presiding in the court they have personal cognizance of the conduct of suitors and attorneys, and are better able to judge of matters of laches, than this court can from the meagre contents of the transcript.

It is not enough to have a meritorious defense. It must be used in apt time, or the business of the courts might be interminably delayed. Suitors on both sides have rights, and neither should be allowed to delay the other, unreasonably. In this case, time was given beyond the return term of the summons, to answer. The time was ample, and the answer actually prepared, but not filed, either at the time designated nor afterwards; until, at the next term the bill had been taken pro confesso. Suitors are bound by the action of their attorneys in matters of practice, and although this may seem to us a case of hardship, we cannot say that the Chancellor abused his discretion, or that there was error in refusing leave to file the answer out of time. Upon default of answer the decree may be rendered on the bill and exhibits. Nothing else is confessed, and there are no issues.

We come now to the final decree, rendered upon the bill and exhibits, taken as confessed. It seems to us clearly such as a Court of Chancery should not have pronounced, inasmuch as it fails to make a definite and final settlement of the rights of the parties actually before the court.

The sale to Mays was not a sale of an equity of redemption, subject to a prior lien. It was a sale of the whole subject matter, at full value of the property, with the understanding that upon payment of the price agreed, Mays was to take the property discharged of all liens. To effect this it was agreed between all parties interested, that a part of the purchase money should be appropriated to the discharge of Wilson’s $600 note, which constituted the lien ; another part to Wilson’s other note upon complainant, for which there was no lien; and the balance to complainant. The vendor’s lien is set up for the whole, and so allowed by the court, but the decree is only for the payment to complainant of so much as was to be paid to himself, and so much as was to be paid to Wilson on the lesser note not secured by lien — and no order whatever is made for the payment to any one of the balance of $830, which is left in defendant’s hands, evidently for the purpose of being paid over to Wilson. The sale should have been ordered for the whole amount of the sum found due, and the money should have been brought into court and applied to the discharge of the lien — or, if deemed advisable, and Wilson had been willing, the amount of Wilson’s lien might have been fixed, declared and continued as a charge upon the lands in defendant’s hands. As it now stands, if defendant should fail to pay Wilson, and the latter should collect the debt of complainant, he would be obliged to renew the suit for the enforcement of the remainder of his lien. The decree is incomplete.

Again, if it should turn out that more is due on Wilson’s note than the amount recited in the decree, which may be the case, the defendant would be bound to pay it all to save the land, and a new litigation would spring up between him and complainant for reimbursement.

The court, in Wilson’s absence, takes the account of what is due him and fixes the amount to be paid him by Mayes. On the supposition that Wilson has a lien the court leaves so much of complainant’s lien unexecuted, and orders a sale of the lands for the remainder, without any action upon Wilson’s lien, or prayer for its enforcement. . This is adjusting the rights of parties by halves — without that complete and final settlement which chancery should always endeavor to acom-plish — and the necessity for which is often the only'ground of jurisdiction.

If the sale had been merely of an equity of redemption, subject to a prior lien, and that equity had been estimated at its value with reference to the burden, the complainant might have foreclosed his vendor’s lien without any reference to the older encumbrance, and had a sale of the equity for the payment of the purchase money. But this is not such a case. The sale, by agreement of all parties, was to bo made a clear sale, and the purchase money appropriated to relieve the older lien. It was for full value. The rights of the parties, as between themselves, cannot be adjusted, without an account with Wilson, and that cannot be taken unless Wilson be made a party. If being a party he should elect to let his debt remain as a lien upon the land and give further indulgence to defendant, discharging the complainant, the amount due complainant might then be ascertained in a manner to bind all parties, and close the litigation, in which case the land might be sold subject to Wilson’s lien, which also would be clearly ascertained. . ■

Although under our Code, the want of necessary parties must be taken advantage of, by demurrer or answer, or it will be deemed to be waived, this is to be understood only of such cases as in their nature allow of a ■ complete and final settlement of the rights of the parties before the court, amongst themselves. When this cannot be done, it is made the duty of the Chancellor to order the other necessary parties to be brought in (see sec. 4481 of Gantt’s Digest), and this he should do of his own motion at any stage of the cause, when the necessity becomes apparent, otherwise parties by consent, or failure to demur, or declining to insist on proper parties by answer, might compel a court to proceed to nugatory decrees which would settle nothing, and leave a subject matter open to litigation. Simms et al. v. Richardson & May, 32 Ark., 297

No proper decree can be entered in this, cause, without making Wilson or his representatives parties. The Chancellor erred in attempting it, and for this cause the decree must be reversed, and the cause remanded, with instructions to the court to direct Wilson to be made a party and brought in, and to allow complainant to amend his bill with apt averments for the purpose and also to allow defendant to answer the whole bill, and for other and further proceedings not inconsistent with this opinion.


text:
    Holland, Adm’r vs. Rogers.
    1. Evidence. Pleadings as.

    Where there is an amended complaint filed in a cause, the original can no longer be used as evidence in Us original state; the pleadings as amended must be considered altogether.
    2. Same. Construction of pleading.

    A complaint alleging an indebtedness “for the sale, release of a tract of land,” and “forlands sold and conveyed and released, etc., does not necessarily imply a conveyance with general warranty. Where the whole transaction discloses that the vendor was to convey auy such interest as he had, a deed of “ bargain, sale or quit claim ” of his interest in the land is sufficient, and admissahle as evidence under the allegations of the complaint.

      3. Deeds.-
    A simple bargain and sale of land in writing, in words of the present, and upon sufficient consideration is a conveyance, transmitting the title from the grantor to the grantee, with or without covenants of warranty, and is no less a conveyance because it contains also clauses of quit claim, or release.
    4. AGENCY. Proof of by statements of agent.

    The transactions and declarations of an agent, are not of themselves evidence of his agency as against the principal.
    ERROR to White Circuit Court.
    Hon. J. J. ClendeNIN, Circuit Judge.

      B. JD. Williams, for plaintiff in error.

      Goody, contra.

   EakiN, J.:

After the case of Watkins, surv. v. Rogers, 21 Ark., 298, was remanded; the plaintiff by, leave of court, amended the declaration by striking out the words, “ a good and sufficient deed” of conveyance, and inserting the words “a quit claim deed.” Mrs. Walker having died pending the appeal, the suit was revived against John Gr. Holland, appointed administrator ad litem for the purpose. Afterwards on the 3rd of November, 1869, the plaintiff took a non-suit, procured the appointment of said Holland as regular administrator, and on the 20th of January, 1870, presented to him the same claim which had been in litigation, as follows :

“Mary J. Watkins, alias Walker, (Estate of)

“To Thomas J. Rogers, Dr.

“ To amount agreed to be paid for the sale, release of tract of land, to-wit: The northeast quarter of section 8, township 6, north range 9 west, being the amount of claim due from Alex. S. Walker, her former deceased husband, to the said

Rogers.'. $ 358 19

Interest from December 12th 1856 until December

12th, 1869, fifteen years at 6 per cent. 279- 38

$ 637 57”

This account after litigation, was allowed and classed by the ' Probate Court. Holland appealed to the Circuit Court, when it was submitted to the court sitting as a jury.

The court found as facts, that Mrs. Walker, through her agent Bond, applied to the plaintiff to purchase a piece of land which she had formerly owned, but for which plaintiff had a tax deed, to enable her to perfect a contract for the sale of the same lands to Stamps. That she agreed to pay plaintiff the same amount which he paid for the lands, and also the amount which her former husband, Alex. Walker, owed him. That for this consideration, he sold to her the land, and conveyed it by quit claim deed, which she accepted. That the amount of plaintiff’s claim, including the debts due from Alex. Walker, and the sum paid for the tax title, agreed to be paid by her, was |350, which remained unpaid. Judgment was rendered accordingly. Motions for a new trial, and in arrest were overruled, and an appeal taken with bill of exceptions.

The first, second and third grounds of the motion for a new trial, embrace the admission in evidence of the quit claim deed from plaintiff to Mrs.Walker; the amended declaration in the former suit; the tax deed of the sheriff to plaintiff, and a certain other deed executed by William G. Turner, as trustee, to J. W. Stamps, to all of which defendant objected on the ground that they did not show a full and sufficient conveyance without which the plaintiff should not recover.

The defendant had read as evidence, the original declaration for this purpose. It was certainly allowable to the plaintiff to show that the declaration was afterwards amended. It could no longer be used as evidence in its original state, to bind the plaintiff, or the whole benefit of the amendment would be lost. The court allows or disallows amendments to pleadings in its discretion, but after allowance, the pleadings stand as amended, in place of, or supplemental to those originally filed, and must be considered altogether. The object of amending is to correct mistaken, improvident, or imperfect allegations, and to allow the pleader to stand on grounds better considered-.

■ Plaintiffs deed to Mrs. Walker, bore date of 12th December, 1856. It was for che expressed consideration of $100.00, for which it went on to declare, “I have bargained, sold and quit claimed, and by these presents do bargain, sell and quit claim unto the said Mary J. Walker, and her heirs,” etc., “ all my right, title, interest, estate, claim and demand, both at law and equity, and as well in possession, and in expectancy of, in and to all,” etc., describing the land. •'

The sheriff’s deed to plaintiff, was inordinary form executed on the 26th day of March, 1857, reciting the tax sale on the 12th day of March, 1855, and the purchase by plaintiff of said lands for the taxes, etc., for the years 1836 to 1854.

The other was a deed executed on the 21st day of January, 1859, by William Gr. Turner, as trustee for Quarles, and his wife Emily Sophronia, and Thomas Watkins, conveying to Stamps, certain lands which he had contracted to purchase of Mary J. Walker in her lifetime, including those in question. As to this deed, it may be said in passing, that its bearing pro or con in this case is not apparent. The relations of Mary J. Walker, to the parties in it are not disclosed. Its admission cannot have affected either side.

As for the rest, they were properly admitted to show the consideration for Mrs. Walker’s promise. This was not like the former suit. . No special contract had been set up as in that, of a consideration precedent to be performed on plaintiffs part; his account filed, and a complaint which he thought it proper to file in the Probate Court, was for a sum of money for the “ sale, release of tract of land,” and for “ lands sold and conveyed and released,” etc.

This language, descriptive of the consideration, did not imperatively demand proof of its strict technical accuracy, and if it bad, it did not necessarily imply a conveyance with full warranty. In common parlance sales of land, and conveyances in accordance therewith, often mean sales of such interest as the vendor has. When a strict compliance with a contract to convey is demanded, the best practical rule of construction is well laid down in Witter v. Briscoe, 13 Ark., 422, as follows:

“Where a party agrees to convey land, and there is nothing said as to the nature and extent of the title to be conveyed, nor anything connected with the transaction, going to indicate the particular species of conveyances intended ; the law implies a deed in fee simple, and with covenants of general warranty.”

Here the whole transaction is disclosed. The plaintiff had bought lands of Mrs. Walker at tax sale. She had contracted to sell them to Stamps, and desired to perfect the title. She did not require, for this purpose, any other conveyance from plaintiff than of such interest as he had acquired by the Sheriff’s deed. That put her in statu quo; as she would have been if she had paid the taxes, and as she was with regard to the other lands. It is not reasonable to suppose that a conveyance with full warranty was intended.

A simple bargain and sale of land, in writing, in words of the present, and without any more is a conveyance, operating under and by virtue of the statute of uses, always upon sufficient consideration. It was devised in England, as a common assurance, soon after the passage of the statute (see Blackst. Com. Book 2, p. 338) and has become the most common mode of conveyance in the United States. It is more than a quit claim, or a release; it actively effects a divestiture of title from the grantor, and transmits it to the grantee, with or without covenants of warranty, and it is no less a conveyance in the strictest sense because it may also have clauses of quit claim or release. It comes within sec. 832 of Gantt’s Digest, and passes to the grantee any after acquired title of the grantor. At least in the present case there can be no question of its efficacy in this respect, as such was its obvious intention, expressed upon the face, The deeds were properly admitted.

It is objected that the plaintiff was, himself, permitted to testify; and also that he was permitted to prove Batte’s agency for Mrs. Walker, by Batte’s statement to himself. His testimony, in substance, was, that Mr. Bond came to see him about the land and it was agreed between them, that if Mrs. Walker would pay him what Alexander Walker owed him, and what he had paid for the land, he would let her have it. The amount of his account against Walker, for land and all, was about $350. He and Bond counted it up. He had several notes and book accounts. None of the notes were payable to himself. He did not remember the cost of the land, but knew when he was talking with Bond. Batte brought him a deed and he signed it, the same read in evidence. He came in right of Mrs. Walker. She was at Batte’s house at the time, and Batte came directly from there, and stated that he represented Mrs. Walker. Batte is dead. Mrs. Walker never raised any objection to the deed. In connection with this, Bond in his testimony said, that he went to see plaintiff at Mrs. Walker’s request; that Rogers told him Mrs. Walker could have the land, if she would pay what it cost, and what Alexander Walker owed him. He repoi'ted that to Mrs. Walker, and she said she would do it. Witness was not her agent generally. He did not recollect that he reported her acceptance back to plaintiff, nor does he state whether he informed her or not of the amount of the debt, or in what it consisted. The plaintiff does not state in his testimony how, or through whom oi’when, his proposition was accepted. His theory of the matter, seems to have been that the transaction was closed by the interview with Bond.

It was not improper to receive this evidence for what it might be worth to the court. It did not apply to any personal communications, or transactions with Mrs. Walker. In other respects his competency was not affected, as has been repeatedly held. The transactions with Bond and Batte, and their declarations wore facts — parts of the res gestae — but not of themselves competent to prove the agency of either party. That required proof aliunde, and when proven, might be connected with their declarations. The court was fully warranted by the circumstances in concluding that Batte did, in fact, represent Mrs. Walker in accepting the deed. She was at Batte’s house, and Batte came from his house to plaintiff; procured his signature to the deed; and, afterwards it was placed upon record. There was no objection from her then, or thereafter. That Bond acted for her in asking propositions from plaintiff is well proven.

Other grounds of alleged error relate to declarations of law by the court and findings of fact. The points involved in them are sufficiently covered by this opinion, and do not require further notice.

Although it sufficiently appears that at the time plaintiff had the conversation with Bond, ho was the owner of the notes against Walker, and estimated them as a part of the debt due him .from Walker, there is a total failure of proof that Mrs. Walker was ever advised by Bond or anyone else of that fact, or that she ever notified plaintiff of her acceptance of the terms proposed by him to Bond. Perhaps, if she had, she would be bound by them in full, and held accountable for communications made to Bond in her behalf. But there is no proof on that point.

It seems also, thatWalker, whose estate was insolvent, owed plaintiff a small individual debt — about $20. The cost of the land was about $80. The deed prepared in Mrs. Walker’s behalf and brought, by Batte, to plaintiff for execution, expressed the consideration of $100. He executed it without objection or any explanation made to Batte. No circumstance is shown, to affect Mrs. Walker with any knowledge of other debts, or even to put her on enquiry. Bond merely says that he told her she could get the land by paying what Alex. Walker owed, and the cost of the land. She remarked that she would do it. It is fair to presume she had in mind only the individual debt of her deceased husband, and meant only to assume that. She got the benefit of the deed, was enabled to complete her contract with Stamps, and ought to be held accountable for all she agreed to give, but not for outstanding debts of her husband, which for all that appears, she knew nothing of. Bond was not her agent to contract. He did nothing that would have bound plaintiff to make the deed, or that can now bind her with his private knowledge of circumstances not communicated.

We think the court below erred in finding that these notes constituted a part of the debt she agreed, or ought, to assume. There is no positive proof, nor, outside of the deed, any strong presumption, of the assent of the minds of the parties in the terms of any contract of sale, so far as regards the amount to be paid. In such cases, at law and in the absence of proof of fraud or mistake in equity, the deed itself must give the terms of the contract. The judgment upon the proof should not have exceeded the amount paid by plaintiff for the land, and the individual debt of Walker, with interest at 6 per cent. For such excess it is erroneous.

Let it be reversed, and the cause remanded for a new trial.


author: ENGLISH, Ch. J. :

text:
    Beecher vs. Brookfield.
    1 WITNESSES: Husband and Wife.

    A wife is not a competent witness for or against her husband.
    2. Pleading : Allegations in, must be prcmed.

    Fraud, when alleged, must be proved if denied.
    APPEAL from Poinsett Circuit Court in Chancery.
    Hon. L. L. Mack, Circuit Judge.

      Rose, for appellant.

      Brown, contra.

   ENGLISH, Ch. J. :

The bill iu this case was filed on the Chancery side of the Circuit Court of Poinsett County, by Todd W. Beecher against Joshua S. Brookfield, as administrator de bonis non of William Gf. Arledge, James C. Brookfield, and J. Logan Smith, as Sheriff of said county.

The object of the bill was to open, on allegations of fraud in obtaining them, two decrees rendered in said court, in favor of Joshua S. Brookfield, as such administrator, against the complainant. The case was heard upon the pleadings and evidence, the bill dismissed, and complainant appealed.

Some leading facts appear from the pleadings, which are not controverted and which may be briefly stated for the better understanding of the matters disputed between the parties.

On the 4th of March, 1867, Beecher executed to James C. Brookfield a note for $3000, due at twelve months, bearing interest from date at 10 per cent. On the same day, to secure the payment of the note, Beecher executed a deed of trust, with power of sale, upon town lots and lands, in which Joshua S. Brookfield was made trustee. On the 20th April, 1870, James C. Brookfield, the payee of the note, and beneficiary in the deed of trust, assigned them personally to himself as administrator of Wm. G-. Arledge, deceased.

On the 29th of January, 1869, Beecher executed to James. C. Brookfield a note for $4798.37, payable at twelve months, with 10 per cent, interest; and on the same day, to secure the payment of the note, executed a mortgage upon other town lots, lands and personal property. On the 20th of April, 1870, James C. Brookfield assigned the note and mortgage personally to himself, as adminstrator of the estate of Arledge, and as administrator de bonis non of Win. R. Lipscomb, indicating' in the assignment what portion of the debt each estate was to-have ; and on the 6th of May, 1872, as administrator of Lipscomb, he assigned the interest of that estate in the note and mortgage to himself as administrator of Arledge.

On the 1st of June, 1873, James C. Brookfield resigned his. administration of the estate of W. Q. Arledge, and on the 3d of September, 1873, Joshua S. Brookfield wag appointed administrator de bonis non of said estate.

In November, 1873, Joshua S. Brookfield, as such administrator of the estate of Arledge, brought two suits on the Chancery side of the Circuit Court of Poinsett County, against-Beecher and James C. Brookfield, one to foreclose the deed of trust, and the other to foreclose the mortgage, and on the 13th of January, 1874, obtained the two decrees which the bill in this case seeks to open for fraud. James C. Brookfield was. the solicitor of Joshua S. Brookfield in the two suits ; and at the time the bill in this case was filed, August 28th, 1875, special executions upon the decrees were in the hands of J. Logan Smith, Sheriff, etc.

There is no allegation in the bill or amendment that James C. Brookfield practiced any fraud or unfairness upon appellant, to induce him to execute the first note and deed of trust, or the second note and mortgage, or that they were without consideration.

The bill alleges that the consideration of the first note was $400 in money loaned appellant by James C. Brookfield, and •outstanding debts and liabilities of appellant, which Brookfield agreed to discharge and take up.

The bill also alleges that the consideration of the second note was goods that had been, prior to the date of the note, ■and during the year 1867, 1868 and 1869, sold by said Brook-field to appellant, and money that had been paid to him, and advanced on his account, and goods and moneys to be thereafter sold and advanced by Brookfield to him, and for outstanding debts and liabilities of his, which Brookfield had agreed to discharge and take up.

At what time the relation of attorney and client between James C. Brookfield and appellant commenced, is not alleged •or shown by the bill. But by an amendment to the bill it is alleged that said Brookfield was, long prior to the execution of the above notes, deed of trust and mortgage, a licensed attorney, and engaged in the practice of the law, and was, by •express contract, agreement and understanding, from the year 1859 to the year 1875, the standing attorney, counsel and legal adviser of appellant, and employed to attend to all cases in the •courts, both at law and in equity, in which appellant was a party, and that during that time appellant reposed full coiifi-•dence in the legal ability and integrity of said Brookfield, and acted on his legal advice in all matters. And it is further alleged that appellant executed the notes, deed of trust and mortgage on his advice as such attorney, but, as above stated, there is no allegation that Brookfield practiced any fraud or unfairness upon appellant in procuring the execution of the notes, deed of trust and mortgage. In other words, the execution of said instruments is not impeached, but it is the after conduct of Brookfield that appellant complains of in the bill and amendment.

The gravamen of the complaint is that after the execution of the second note and mortgage, appellant placed in the hands of James C. Brookfield a large number of claims for collection,, and which he was to collect and place to his credit. That he collected money upon the claims, and appellant also made him payments, which were not credited before or when the two decrees of foreclosure were taken. That after James C. Brook-field brought the two foreclosure suits as attorney for Joshua. S. Brookfield, his brother and partner in the practice of law,, and who succeeded him in the administration of the estate of Arledge, he fraudulently induced appellant to make no defense' to the suits, and to let the decrees be taken on default, promising him that he should have the benefit of all just credits and that he failed to allow such credits, and took the decrees for largely more than was due, and afterwards caused special execution to be issued upon them for the sale of the property embraced in the deed of trust and mortgage. The credits appellant claims are specifically alleged.

James C. Brookfield, in his answer, denies that he was the attorney of appellant when the foreclosure suits were commenced, that he induced him not to defend the suits, and that, he was entitled to any credit which had not been allowed him. The answer is specific as to every credit claimed by appellant..

■The appellant took the deposition of his wife, but the court suppressed it on motion of appellees, and it was not read upon the hearing, and will not be regarded as evidence. The wife was not a competent witness for her husband, Collins v. Mach 31 Ark., 684.

Appellant read upon the hearing the depositions of Wm. Gr. Arledge, Jr., and wife Silvester, but neither of them proves that James C. Brookfield in any manner induced him not to defend the foreclosure suits, or that he was entitled to any credit claimed by him.

The deposition of appellant, which was read upon the hearing conduces to prove that he was induced not to defend the foreclosure suits and to let the decrees be taken by default, by James C. Brookfield, and that he was entitled to credits not allowed when the decrees were rendered, but in every material matter his testimony is flatly contradicted by the deposition of Brookfield, which was read on the part of appellees.

Upon the contradictory pleadings and conflicting evidence, the court below found, as recited in the decree, that the two decrees which the complaint sought to set aside and reopen, were rendered by the court upon due and legal notice, that the allegations of fraud in obtaining said decrees were not sustained by sufficient proof, and that, therefore, the court could not set aside the decrees, and could not adjudicate the other matters of relief sought by the complaint, and hence the bill was dismissed.

The counsel for appellant submits that the onus probandi was upon Brookfield, and that if the depositions of the two were balanced, appellant must prevail in the suit.

After the deed of trust and mortgage were executed, and before they were foreclosed, had appellant filed a bill against Brookfield to cancel them on the ground that they were executed to him, under his advice or procurement, when the relation of client and attorney existed between them, and that there was fraud or unfairness in their execution, the burthen of proving there was no fraud or unfairness might have been upon Brookfield.

Or if appellant had answered the bills to foreclose the deed of trust and mortgage, and shown that the relation of client and attorney existed between him and Brookfield when the instruments were executed, and charged fraud or unfairness on the part of Brookfield, he might have put the onus probawli upon him.

In either of such cases the authorities cited by counsel for appellant might have been applicable. See Bigelow on Fraud — attorney and client — p. 192 to 222. 2 Leading Cases in equity, White & Tudor, 4 Am. ed., p. 1216, etc.

But no su'ch case is made by the complaint now before us. Suits were brought by Joshua S. Brookfield as administrator of Arledge to foreclose the deed of trust and mortgage. James C. Brookfield brought the suits as his attorney against himself and appellant. Whatever may have been his relation to appellant in other matters, he placed himself in an antagonistic position to him in bringing these suits against him. The appellant made no defense to the suits, though duly served with process. He was allowed such credits as were endorsed upon' the notes, and decrees taken for the balances appearing to be due upon them. Some eighteen months after the decrees were entered, and when executions upon them were in the hands of the sheriff:, he filed this bill to open the decrees for fraud in obtaining them, alleging that James C. Brookfield, the attorney of the plaintiff in the suits, had induced him not to interpose any defense to them. This allegation is denied, and in the depositions of the parties there is oath against oath. Why should Brookfield be required to disprove an affirmative allegation made by appellant? For what reason should he be held to prove a negative, that he did not induce appellant not to defend the suits ? He did not bring the suits as appellant’s attorney, though he had been his attorney in other matters.

How could he have proven a negative if the duty had been imposed upon him? Could he have produced witnesses to swear that they were present at every interview between him and appellant, from the time the suits were commenced to the time the decrees were taken, and that he said nothing to appellant, at any time, to induce him not’to interpose any defense to the suits? This is hardly probable. It was the duty of appellant to defend the suits if he had any meritorious defense. If he thought proper to let the decrees be entered without defense on any promise, oradyice, of Brookfield, who was not his attorney in the suits, but acting for the plaintiff in them, he should have taken the precaution, in so grave a matter, to have some means of proving it. We see nothing in the case to take it out of the general rule, that a party who alleges fraud, must prove it.

Decree affirmed.


author: Harrison", J.:

text:
    Collins et al vs. Underwood,
    Married "Women. Contracts of.

    The contract of a married woman, unless for the benefit of herself or her separate estate, cannot be enforced against her estate.
    APPEAL from Phillips Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.
    Palmer, for Appellee.
   Harrison", J.:

The plaintiffs in this case as administrators of Charles Collins, deceased, sought to subject the property of the defendant, which she held as separate estate during her coverture, to the payment of a note executed by her jointly with her late husband, Q. K. Underwood, to the plaintiffs intestate for $264.41, dated the 13th day of August, 1874.

The complaint alleged that the note was given in settlement of an account for the board and tuition of their daughter, and that it was the intention of defendant, in the- execution of the note, to make the same a charge upon her separate estate.

In her answer she denied that she had, in making the note, intended to create a charge, or that it was a charge upon her estate.

The proof was that the daughter of the defendant and her said late husband, had been a pupil in the State Female College, at Memphis, of which Dr. Collins the plaintiff’s intestate, was president, the fall session of 1873, and the spring session of 1874. Her board and tuition not being paid, Dr. Collins wrote several times to her father asking payment, who replied giving excuses and promising payment.

The defendant was present at the commencement exercises-in June, 1874, at which time her daughter graduated, and remained several days at Dr. Collins’ house, and whilst there, expressed much mortification because her daughter’s bills had not been paid, and saying that she had some time before given her husband the money with which to pay them, but that he applied it to other purposes. Before leaving she paid a part-of the account, and as she said, out of her own means.

Dr. Collins, afterwards, went to Helena to see the defendant’s husband about the account, and it was settled by the execution of the note. Underwood was insolvent, which fact was known to Dr. Collins when he took the note, but he knew the defendant had separate property, out of which she led him him to believe, she would pay the note ; and he looked to her for payment.

The court upon the hearing, refused the relief prayed, and dismissed the complaint for want of equity.

The plaintiffs appealed.

It was held in the case'of Stillwell and wife v. Adams et al. ex’rs, 29 Ark., 346, that .a married woman cannot create a charge upon her separate estate, except by a contract in relation to it, or .for her personal benefit; and the doctrine was approved in Henry v. Blackburn, 32 Ark., 445.

There is no evidence that the note was given for the benefit of either the defendant or her estate; but it plainly appears, that it was given in the satisfaction or settlement of her husband’s debt, whose duty it was to provide for the support and education of his children.

The decree is affirmed.