text:
    Leingardt et al. vs. Deitz.
    Garnishment, Judicial: Cannot issue before judgment against the defendant.

    Section 396, of Gould’s Digest, relating to judicial garnishment, does not authorize the issuance of the writ before judgment against the defendant, and a judgment against the garnishee in such a case reversed, though he answered admitting indebtedness.
    APPEAL from Pulaski Circuit Court.
    Hon. J. J. Clendenin, Circuit Judge.

      W. H. Winfield, for appellant.
    The Circuit Court erred in rendering judgment de novo against • defendant, where there had been no appeal from the judgment by default below. Gantt’s Digest, 3820.
    No garnishment could issue againfet the R. R. except as incident to an attachment, or after judgment. Gantt’s Digest, 2991;. 5 Ark., 214.
    The act of 1871 (see Gantt’s Digest, sections 396, 397) is part, of the attachment law, and its provisions only apply in such cases, otherwise garnishments issue only on judgments. See Gantt’s Digest, 2991 to 3002 inclusive. Pulaski Comity v. Power,. 10 Ark., 588.
    Section 23, in Constitution of 1868, concerning alteration and revision of laws cited and commented on, also on the construction of the sections, 396 and 397. McMinn v. Bliss, 31 Cal., 122; Merrill v. Gorham, 6 Cal., 41; People v. White, 34 Cal., 183;
      Ransom v. State, 19 Conn., 292; Rogers v. Hurd, 4 Day, 57; Brooks v. MobileS. Commissioners, 31 Ala., 227; Mayor v. Weems, 5 Ind., 547; Allison v. Hubbell, 17 Ind., 559; Holbrook v. lioibrook et al., 1 Pick., 250; Inhabitants of Mención ,v. County of Worcester, 10 Pickering, 235; 6 Cushing, 384; Reddick v. Governor, 1 Mo., 147; Reddick x. Walsh,15 Mo., 519; Statex. King, 44 Mo., 283; State x. Scott, 9 Ark., 270; McFarland, x. State Bank, 4 Ark., 410; Buckner x. Real Estate Bcmk, 5 Ark., 536; Wilson x. Biseoe, 4 Ark., 44; Scott x. State, 22 Ark., 369; Fennington x. Coxe, 2 Cranch, 33; Ayden x. Strong, 2 Pains., 584.
    A statute applicable to particular actions cannot be applied by construction to another action standing in the same reason. Fourth Circ. (Ya.), 1821; Jacob x. N. S., 1 Brock. Marsh., 520.
    The proceeding in rendering judgment by the justice against the road, without summons, process or appearance, was void as without authority. Reevex. Clark, 5 Ark., 27; Anthony exparte, 5 Ark., 358; Pendleton x. Fowler, 6 Ark., 41; Levy x. Shurman, 6 Ark., 182; Everett x. Clements, 9 Ark., 480; Butler x. Wilson, 10 Ark., 316 ; Booth x. Estes, 16 Ark., 104. He must be made defendant and have his day in court. GantPs Digest, - section 423; Drake on Attachment, sections 452, 454; Thorn x. Wood-ruff, 5 Ark., 55; Wolf x. Tappan, 5 Dana, p. 361.
    Counsel argued at length upon the Constitution and laws affecting exemptions, that choses in action might be scheduled, and claimed as a part of the personal property, and would then be released from garnishment against the debtor, citing (together with authorities supra) Tyson x. Tostleioaite, 13 111., 728; Wallace x. Martin, 17 B. Monroe, 191; Thompson x. State, 20 Ala., 54; Haydon’s case, 3 Eep., 8; Huffman x. State, 29 Ala., 40; Torrance x. McDougal, 12 Ga., 526; Mason x. Finch, 2 Scam., 224; McDougal x. Dougherty, 14 Ga., 674; Tuttle x. State, 7 Minn., 465, and others explanatory of the case of Gegory v. Evcms, in which it was held in Missouri that wages were not property.
    “Personal property” is defined by section 5629, of Gantt’s Digest, and'includes things in action and evidences of debt.

      R. A. Watkins, for appellee.
    Where one defendant appeals, the Circuit Court may try the whole case de novo. Gantt’s Digest, sec. 3825. Relied upon sec. 224 of the Code, amended in 1871, for authority to issue garnishment before judgment. Gantt’s Digest, sec. 396.
    The language is plain, unambiguous and comprehensive, embracing all civil actions. The language is to be taken in its common acceptation, and with its legally ascertained meaning. The court cannot consider the propriety or policy of the act, but there is nothing monstrous in the provision.
    The act was unnecessary to authorize garnishments in attachment cases. That right existed before.
    There is no such class of actions as “ suits by attachment.” Sec. 1, C. C. P. Attachment is a provisional remedy, auxiliary to a civil action. Sec. 216, C. C. P. See also sec. 58.
    The location of the provision with the subject matter of attachment cannot alter its plain provisions.
    The proceedings before the justice were regular; the appellants had notice, and were parties to the suit and had appealed.
    A court of law cannot compel obedience, by a garnishee who answers, in any other way than by order to pay the fund into court, and by judgment in case of failure.
    On exemption cited. Sec. 1, art. 11, Const, of 1868; sec,. 2635, et seq. Gantt’s Digest. A chose in action not subject to sale, and therefore not exempt. 3d Sand., 692; 6 Geo., 550; 6 Blackf., 577; 5 Mich., 225; Wright (Ohio) 455; Miles (Pa.) 130; llWis., 176; 1 Bland, 530; 23 Texas, 508. Exemption laws strictly construed. 21 La., 686. “ Personal property ” not choses in action. 19 Mo., 261; Bankrupt Register, August 1st, 1868, p. 19 ; 7 Giles U. S. District Court Maryland.
    No execution or process against Lingard had been issued when the schedule was filed, and the payment of the debt by the railroad company to Lingard, against the order of the court, rendered them liable to plaintiff, independently of any exemption.
   Harrison, J.:

H, Deitz sued A. Liugardt on an account before a justice of the peace, and also, at the commencement of the suit, but without an attachment against the property of the defendant, or filing any bond or affidavit therefor, sued out a writ of garnishment against the Cairo and Fulton Railroad Company.

The writ of garnishment was served, and, upon the return day, the company appeared by its attorney and, without any allegations and interrogatories being filed, admitted, as the justice’s docket states, an indebtedness to the defendant sufficient to satisfy whatever judgment might be recovered against him.

The summons against the defendant not being served, an alias was issued, and service being had, judgment by default was rendered against him on the 30th day of December, 1873.

On the 6th day of January, 1874, judgment was rendered against the Cairo and Fulton Railroad Company, on its admission of indebtedness to defendant.

Before the latter judgment was rendered, on the same day, the defendant filed with the justice a schedule of his personal property, claimed as exempt from execution, in which was embraced the company’s indebtedness to him.

From the latter judgment both the company and the defendant appealed to the Circuit Court.

The Circuit Court, without a trial as to the facts, on an inspection of the transcript from the justice’s court, affirmed the judgment against the company, and gave judgment against both appellants for the costs in both cases. They then appealed to this court.

The writ of garnishment in this case was, evidently, sued out under the supposed authority of section 396 of Gantt’s Digest, which is as follows

Whenever, in a civil action, the plaintiff shall have reason to believe that any other person is indebted to the defendant, or has in his hands or possession goods and chattels, moneys, credits and effects belonging to such defendant, the plaintiff may sue out a writ of garnishment, setting forth his cause of action against the defendant, and commanding the officer charged with the execution thereof to' summon the person therein named as garnishee to appear at the return day of the summons in the action, if the writ shall have been issued at the commencement thereof, and, if not so issued, on such day as the court shall designate, to answer what goods, chattels, moneys, credits and effects he may have in his hands or possession belonging to such defendant, and in all such actions, where the plaintiff shall have obtained judgment, he may sue out a writ of garnishment, setting forth such judgment, and shall proceed in the manner herein directed for the enforcement and collection thereof.”

Though the language of this section is so general as seemingly to authorize the issuance of a writ of garnishment in a suit commenced by ordinary-process, or any civil action, the context and subject to which it relates plainly show that such was not the intention of the Legislature, and that such writ can be had before judgment is obtained in cases of attachment only.

The section quoted is part of section 224 of the Code of Civil Practice, as amended by the act of the Legislature, passed March 27th, 1871. That act commences thus:

“ Be it enacted by tbe General Assembly of the State of Arkansas, That the act entitled Code of Practice in Civil Cases in Arkansas, approved July 22d, 1868, be and the same is hereby re-enacted, and the following enumerated sections of the said act are hereby so amended as to read as follows.”

The immediate context of said amended section is as follows :

“ Chapter III — Attachment.
“ Article T — General Attachment.
“Subdivision 11. How an attachment is obtained.
“ Section 217 (amended 1871). In an action to recover money, clerk to grant attachment upon affidavit. Nature of affidavit.
“ An order of attachment shall be made by the clerk of the court in which the action is brought in any case mentioned in the first subdivision of section two hundred and sixteen, when there is filed in his office an affidavit of the plaintiff, or of some one in his behalf, showing—

First — The nature of the plaintiff’s claim.

8econd — That it is just.

Third — The amount which tbe affiant believes the plaintiff ought to recover; and

Fourth — The existence in the action of some one of the grounds for an attachment enumerated in the subdivision, and in the case mentioned in the subdivision of section two hundred and sixteen, where it is shown by such affidavit, or by the return of the sheriff, or other officer, upon the order for the delivery of the property claimed, that the facts mentioned in that subdivision exist.”

It is thus numbered and denoted :

“Sec. 224 (amended 1871). Plaintiff may have attachment against garnishee,” and the remaining part of it, which is the same as section 337, in Gantt’s Digest, is as follows :

“The plaintiff in all cases of garnishment may also have an attachment against the property of a garnishee who is made a defendant thereto, by stating in his affidavit some one or more of the grounds of attachment mentioned in this chapter, and the amount which the garnishee is indebted to the principal debtor, and executing bond to said garnishee.”

Before it was amended the section read as follows:

“Section 224. The plaintiff in a civil action may have an attachment against the property of a garnishee, who is made a defendant thereto, by stating in his affidavit some one or more of the grounds of attachment mentioned in this chapter, and the amount which the garnishee is indebted to the principal debtor, and executing bond to said garnishee.”

From this examination of the statute it clearly -appears that the Justice of the Peace had no authority to issue the writ of garnishment in the case, the same not being a suit by attachment, and, as his is an inferior court and of limited jurisdiction, it follows that the entire proceedings against the Cairo and Fulton Railroad Company were null and void, and ought to have been set aside and quashed by the Circuit Court. Its judgment is therefore reversed, and the cause is remanded to it, with instructions to quash the said judgment and proceedings of the Justice of the Peace against said Cairo and Fulton Railroad Company.


source: Caselaw Access Project

author: Walker, J.:

license: Public Domain

text:
    DuVal et al. vs. Marshall.
    , „ !• -Estoppel:
    One who executes an instrument as administrator of an estate is estopped to deny his representative capacity.
    Coi«st,ict oe Laws: Foreign law.

    The usual presumption that the common law prevails in another State does not apply to the Creek nation of Indians, but the usage and customs that constitute their laws must be proven.

      3. Foreign Administrator: Power over assets in this State.

    Where one domiciled in another country dies, leaving assets in this State, upon which ancillary administration is had, the administrator of the domicil cannot withdraw or dispose of the assets in this State until the ancillary administration is settled, whether there be debts in this State or not; and the assignment by the foreign administrator of a judgment recovered in this State is void.
    4. Fraud:
    An assignment of a debt, procured by misrepresentation and suppression of the facts affecting the rights of the assignor, is void.
    5. Resulting Trust: By payment of purchase money.

    In order to create a resulting trust in favor of one who pays the purchase money for property bought in the name of another, the payment must be contemporaneous with the purchase.
    6. Chancery Jurisdiction: Over the assets of an estate, appointment of a Receiver, etc.

    Where the conduct of the administrator of an estate is such as to hinder and embarrass the collection of the debts of the estate, a Court of Chancery has the power, and it is its duty,to appoint a Receiver to collect and hold the assets, and, having acquired jurisdiction for that purpose, it may retain it for the purpose of finally settling the estate.
    7. Parties in Chancery:
    Where an administrator is wasting the assets of an estate, any heir or creditor may apply to a Court of Chancery to have them placed in the hands of a Receiver, and the estate wound up under its directions.
    APPEAL from Crawford Circuit Court in Chancery.
    Hon. E. L. Ham, Circuit Judge.

      Rose and B. T. DuVal, for appellants.
    There was no evidence of fraud, and Marshall will not be heard to say he did not know what the contract contained. 2 Phil. Ev. Cow. & Hill, ch. 8, sec. 1, note 495; Wilson v. Stray-horn, 26 Ark., 28.
    Properly shown that Marshall, when making the assignment, was administrator of his father’s estate according to the laws and customs of the Creek nation of Indians. Barkman v. Hopkins,
      17 id., 154, although he was bound by it if he were not. He was estopped from denying it. Prater v. Frazier, 11 Ark., 249; Kinsworthy v. Mitehell, 21 id., 145.
    Payment to the administrator of the domicil is good. Swatzel v. Arnold, 1 Wooln., 384; Watkins v. Fllett, 9 Wall., 740.
    The decree was too broad. St. Eq. PL, sec. 40. The suit could not be sustained by an heir. Lemon v. Rector, 15 Ark., 436; Popev. Boyd, 22 id., 535; Anthony v. Peay, 18 id., 30; Worsham v. Field, id., 448.
    The decree was for the whole amount, although Marshall sued as one of the heirs, error. Moulding v. Scott, 13 Ark., 89; Atkins v. Grace, 21 Ark., 165; Rose Digest, p. 18.
    Probate Court alone had jurisdiction. Moren v. Me Gown, 23 Ark., 93.

      Walker, for appellees.
    Parol proof inadmissible to show that a purchase was made by one for the use of another, without, showing that the purchase was made with the money of such third person. 2 Lead. Ca. in Eq., pt. 1, p. 559, 560; Eonblouque’sEq.,393; Hill on Trustees, 134 note; 2 John’s Chan. R., 404; Steen v. Steen, 5 John Ch. R., 1; Page v. Paige, 8 N. Hamp. Repts., 187.
    The practice of devices to induce a contract which would not otherwise have been made, is fraud. Benjamin on Sales, sec. 428.
    No one can derive any benefit from a fraud practiced for him by another. Kerr on Fraud, 111 to 117.
    . Great inadequacy of consideration, although not relievable of itself, may afford marks and presumptions of frauds in connection with other circumstances, Story’s Eq. Juris., sec. 244, and where one of the parties is less competent than the other to contract judiciously, it will throw upon the other the onus oí proving that it was fair and without undue influence. Kerr on Fraud, 188, 190. Less than half valuéis such gross inadequacy. 1 Story’s Eq.¿247 ; Eonblouque’s Eq., 47.
    Executory contracts made by Indians void, and in contests between an Indian and white man, when the former shall have presumption of title from possession or otherwise, the onus shall be on the white. Brightly’s Dig., 424, see. 25, and act of U. S., 30th June, 1834. This act cannot be questioned since the decision in the Iowa case, 3 Wall., 407, notwithstanding the decision in Siohs v. Ukohartonah, 21 Ark.
    • The judgment could be assigned only according to our laws, Story on Con. of Laws, sec. 33 et seq.; 1 Bouvier’s Law Die., 244.
   Walker, J.:

The material facts, as appears from the pleadings and evidence, are, that in 1860, Ben. Marshall, a native and citizen of the Creek nation of Indians, recovered judgment in an action by attachment against ®ne William B. Nowland, in the Crawford Circuit Court, for the sum of $1692.23. That the writ of attachment had been levied upon the property of Nowland, and dissolved, and the property released by the defendant executing a bond with security, in the statute form. Upon this judgment execution issued and was returned nulla bona, except as to $200, To recover the remainder of the judgment,' suit was brought by Marshall in the same com-t, on the bond given to dissolve the attachment in the former suit against Nowland, the principal debtor, and Ben. DuVal and John King, his securities in the bond. Pending this suit Marshall died in the Indian nation, intestate, and defendant Whitesides was appointed administrator of his estate, in whose favor judgment was rendered on the 10th November, 1868, for $2757. On the 2d September of that year, King, one of the parties against whom the judgment had been rendered, prepared and placed in the hands of one Steadham, a merchant and trader in the Creek nation, the following instrument with instructions to have it executed by the heirs of Ben. Marshall.

Know all men ''by these presents, that for and in consideration of the sum of four hundred dollars to me in hand paid by John King of Fort Smith, Arkansas, the receipt whereof I hereby acknowledge, I this day sell, transfer and assign unto the said John King, his heirs and assigns, all the right, title, interest and claim of the estate of Ben. Marshall, late of the Creek nation, deceased, in and to a certain debt due by William B. Nowland and others, to the estate, and the judgment rendered thereon in the Crawford Circuit Court, in the State of Arkansas, on the — day of-, 186-, and I do hereby constitute and appoint the said John King my true and lawful attorney in fact, in my name, but for his sole use and benefit, to ask, demand and sue for the same, and generally to do and perform such other acts and things as may be proper and necessary in the premises. Hereby ratifying and confirming all the acts and doings of the said John King, done, and to be done in the premises.

In witness whereof, I have hereunto set my hand and seal as the administrator of said Benjamin Marshall, in the Creek nation, this 26th November, 1868.

Signed, George Marshall, administrator of the estate of Ben. Marshall, deceased.

Attest: Geo. W. Grayson.

Upon the validity or invalidity of this instrument, arises the' material questions to be determined.

George W. Marshall and six others, claiming to be the heirs of Ben. Marshall, deceased, brought their suit in chancery in the Crawford Circuit Court against DuVal, Johnson as administrator of the estate of King (who had died intestate), Whitesides, the administrator of Ben. Marshall’s estate, and Thomason and Humphries, the attorneys of the estate of Marshall, who prosecuted the suits and who obtained both judgments. The bill presents, substantially, the following allegations and charges, in addition to the facts above recited.

That plaintiffs are the children and sole heirs at law of Ben. Marshall; that they had no knowledge or information of the proceedings had in the Crawford Circuit Court, nor of the grant of administration upon said estate to Whitesides, at the time of the execution of the assignment to John King, and remained totally ignorant of such judgment or proceedings until late in the year 1871.

That plaintiff, Geo. W. Marshall, met with Steadham at his store in the Creek nation, who represented to him, that his father, Ben. Marshall, deceased, was indebted to the Masonic Lodge of the Creek nation (of which he was treasurer), in the sum of $400, and upwards; that he, Steadham, was authorized to collect the debt, to which plaintiff replied, that he had never heard of such a debt and knew nothing about it. Steadham assured him that such was the fact, and that John King of Fort Smith, owed his father $400, on account, about a steamboat, which he thought he could collect from King, and proposed to accept an order from him on King for that amount, in satisfaction of the debt his father owed the lodge, to which plaintiff assented. That thereupon Steadham produced an instrument of writing, which plaintiff has been recently informed, and believes, was prepared by King himself, and was in his handwriting, placed it on the counter and said, there is the order on King for the payment of the $400 he owed your father already written for you to sign; and that relying upon these representations of Steadham, he signed the same without reading it, or having heard it read; that plaintiff remained in ignorance of the purport of the instrument so signed until, in 1871, when he was informed that instead of its being an order for $400, it was in fact an assignment by him as administrator and heir at law of the estate of Ben. Marshall, of said last mentioned judgment. That said instrument was executed without consideration by the said Geo. W. Marshall, and without the knowledge, privity, or consent of the other plaintiffs, heirs of Ben. Marshall, as aforesaid, that, the said George "W. had no power whatever to transfer, or assign such judgment. That King is dead, and that Johnson is the administrator of his estate and, that he, as such administrator and Ben. DuVal between them, pretend and claim to be the owners of such judgment by force of said assignment, which plaintiffs allege to be fraudulent and void. Plaintiffs aver, that it was not true that Ben. Marshall owed the Masonic lodge any sum whatever, or that Steadham had power or authority 'to collect the same, or that in fact anything has ever been paid to said lodge in consideration of any debt due by Ben. Marshall to the lodge, nor did King pay to Steadham, or the lodge, any sum, nor did he owe Marshall upon any other consideration than that growing out of the attachment bond and judgment thereon.

These are the material allegations which we deem it important to recite, in order to a proper understanding and disposition of the case.

There are other allegations charging a combination between . Whitesides, the administrator, Thomason and Humphries, the attorneys, and DuVal, by which, for a consideration the attorneys and Whitesides refuse to collect or suffer the judgment against DuVal and King to be collected; that the bond of White-sides is only for $500, a sum wholly insufficient to indemnify the plaintiffs against loss, and that DuVal is in failing circumstances.

Demurrers were filed to the bill, and upon leave, an amended or supplemental bill was' filed; the only part of which it may be necessary to notice is, that letters of administration had been granted to the plaintiff, George W. Marshall, by the proper authorities of the Creek nation, since the commencement of this suit.

The defendant, DuVal, moved the court for a rule upon the attorneys, who prosecuted the suit, to show by what authority they prosecuted the suit, the motion was sustained, and it appearing from the showing made, that the attorneys were only authorized to represent the plaintiff, George W. Marshall. The court had the names of the other plaintiffs stricken from the record, and by leave of the court, the pleadings were so amended as to conform to such amendment. After having dismissed the suit as to the defendants Thomason and Humphries, and so amended the prayer of the bill for relief as to retain that which asked that the assignment of the judgment executed by Marshall to King be declared void, and set aside, and that a receiver be appointed to collect the judgment, (the subject of litigation) and to hold the money, when collected, subject to the order of the court, the court, upon petition of plaintiff, made an order that a receiver be appointed.

The defendant, DuVal, in his own behalf, and as the administrator of the estate of John King,- answered; that from information and belief it was not true that the assignment from Marshall to his intestate, King, was procured by fraud and misrepseDtation, and without consideration, but that the same was executed voluntarily and upon a valuable consideration, with a full knowledge of the facts. He admitted the agreement alleged to have been made with Thomason, Humphries and Whitesides to recall the execution issued against him on the judgment rendered in favor of Whitesides as administrator of the estate of Ben. Marshall, and that he had paid to Thomason and Humphries $300 the money due them as a fee, and for which they claimed a lien upon the judgment, and had also paid thirty or forty dollars ■to Whitesides for costs of administration. That in addition to this, he had given to Whitesides a bond to indemnify him against loss, because of his refusal to issue execution on the judgment; that he did this, not to defraud the plaintiffs, but in good faith, believing the assignment valid.

The answer is long, and recites conversations and details facts, which need not be referred to. It may suffice to say that the above is substantially the response to the material allegations of the bill.

Whitesides’ answer substantially admits the facts alleged as to the receipt of the money for costs, and his recall of the execution, and refusal to issue another. That he had been indemnified by DuVal for so doing, claims that he acted in good faith, believing that the assignment was valid

It will be found upon examination of the pleadings, as amended, that but two questions were put in issue or left to be determined; ■first, as to the validity of the assignment of the judgment to King, and second as to the proper disposition of the estate in ■controversy.

The case thus presented was heard upon bill, amended bill, answers and depositions ; after hearing which and upon consideration, the court found that the assignment of the judgment made by the plaintiff, George W. Marshall, to John King, was procured to be made by fraud and misrepresentation, and decreed that the same be vacated, set aside and declared to be of no force and effect in law, and, that upon a bond by Luther C. White (who had been appointed receiver) to James A. Loekhart, the clerk of said court, and his successors in office, for the faithful performance of his duties as such receiver, being filed, which was done, in open court and approved, it was ordered that said receiver proceed forthwith to take possession of the assets of the •estate of said Ben. Marshall, to sue out execution on said judgment, to collect the amount thereof, and all other debts due or •owing said Marshall’s estate by the defendant Whitesides as administrator of said estate, against William B. Nowland, Ben. DuVal and King’s estate, on a judgment rendered the 10th November, 1868; and that he do not pay the money, when collected, to King, or any one claiming the same, by or under him, or his legal representatives. The court further found that Whitesides entered into an agreement with DuVal to recall the execution issued on said judgment, and not to permit another to be.issued and had thereby committed a devastavit of his intestate’s estate, and that the judgment debt was in danger of being lost, and directed the receiver to collect and hold the same subject to the further order of the court.

This is the decree from which the defendants have appealed, and with regard to which two questions are presented. First, as to the decree setting aside the assignment of the judgment to King. Second, as to the disposition made of the property in suit.

As questions of fact the rendition of the judgment, its validity, and that an assignment of it was made in the Creek Nation, there is no question. The validity of the assignment is the material question.

The plaintiff avers that the assignment was procured to be made by the suppression of the necessary facts to enable the plaintiff to contract with a knowledge of his rights and interest, and by the misrepresentations of Steadham, the agent - of King; that the contract was without consideration, and that the plaintiff, George W., at the time he entered into said agreement was not the administrator of the estate of Ben. Marshall, deceased.

Upon this issue, the written assignment, as administrator, of the judgment, the property of the estate of Ben. Marshall, makes a prima facie case against the plaintiff, which must be overcome by evidence, and first, as regards the character in which the plaintiff contracted with King and whether he was or not, administrator.

The averment that he was not acting as administrator, is affirmative, and so far as the plaintiff, George W., is concerned, he is es-topped by the instrument executed by him in that character from denying it; in addition to which, it is shown by the only evidence introduced, that he was recognized in the Creek nation as administrator of his father’s estate, and acted as such; that he was not acting under appointment or letters of administration; that there was no law at the time, in force in the Creek nation, other than custom and usage, under which the next of kin, a son, or some competent person, took upon himself the administration and settlement of estates of deceased persons, and had power under this custom to do so. But the witness does not depose as to the power, under such usage and custom, to sell and dispose of choses in action. If this had been an administration in a sister state, in the absence of the statute laws of the State, we should hold, as we repeatedly have, that the common law was in force under which the powers and duties of the administrator would be determined. In the case of Cox v. Morrow, 14 Ark., 612, it was held, that in the absence of proof to the contrary, the courts of this State will presume the common law to be in force in another State, without any modification, other than such as was produced by the revolution', and our political institutions in general. But we are not prepared to say that we will presume the existence of the common law in a semi-civilized nation of Indians, acting under usages and customs of their own. Conceding that these usages and customs are laws to them .and will govern the disposition of estates made under them, we must have proof of what powers are confered upon an administrator to dispose of the estate of deceased persons, who die intestate, before we can uphold a contract of sale, of a chose in action belonging to an estate as valid.

In this case a still further question arises. Conceding this to be an administration of the estate of Ben. Marshall, an Indian, resident in the Creek nation, it was evidently the primary administration, for the general settlement and distribution of the intestate’s estate, and the administration taken out in Crawford County, Arkansas, was auxiliary to it, an administration for the purpose of collecting the assets in this State, and for the payment of debts and liabilities here; the residue of the assets (if any) to be held subject to be transferred to the primary administration at the domicil of the intestate, and charged as assets there, and paid out according to the laws and usages of the place of domicil. The case under consideration presents the question as to whether, pending the two administrations, that of the domicil can whilst the auxiliary administration is progressing, sell the assets, and withdraw them from administration. We think not. The expenses of administration were certainly to be paid, and it might be, that debts due in the State, might exist, to be paid. The rights of the foreign administrator do not as matter of right extend beyond the Territory of the Government which grants it; as to personal property situated in foreign conuntries, the title, if acknowledged at all, is acknowledged ex eomiiate. Story’s conflict of laws, sec. 515. And here, says Story, the rule to which reference has so often been made, ap2>lies with great force; that no nation is under obligation to enforce foreign laws prejudicial to the rights of its own subjects. Persons domiciled and dying in one country, are often deeply indebted to foreign creditors, living in other countries, where there are assets of the deceased. In each case, it would be a great hardship upon such creditors, to allow the original executors or administrators to withdraw those funds from the foreign country, without the payment of such debts, and then to leave the creditors to seek their remedy in the domicil of the original executor or administrator, and perhaps there to meet with obstructions and irregularities, in the enforcement of their own rights, from the peculiarities of the local law.”

In this particular case, we are not aware of other debts against this administration than the attorney’s fees for collecting the debts, and the cost of administration, but that does not affect the principle involved. The question is not to be determined by the extent of the local indebtedness of the intestate, but whether, in any case, the administrator at the domicil can dispose of or withdraw the assets in the hands of the ancillary administrator until the debts are paid and the administration settled, and we are clearly of opinion that he cannot.

In legal effect, this question has been settled by our own court in the case of Clark v. Holt, 16 Ark., 257, in which it was held that the personal estate of the deceased is to be disposed of by the law of the domicil, and if he has effects in a foreign jurisdiction, and administration be granted on his estate, it is merely ancillary to the administration of the domicil, so far as regards the collection of the effects and the proper disposition of them, but subservient to the rights of creditors, and distributees residing in the country where the ancillary administration is granted.”

And in the case of Payne & Huntington v. Johnson, adm’r, decided at the last term of this court, it was held that an administrator cannot pay a creditor of an estate by assigning or selling notes due to the estate, the effect of which would be to appropriate the assets of the estate to the payment of one debt in preference to others.

In the case before us a judgment for $2757 was sold for the mere verbal promise of a third party to pay a’ debt said to be due by the estate to the Masonic lodge for $400. Holding, as we must, that the assets collected and in the hands of the administrator in Arkansas, although ancillary to that in the Creek Nation, should be held subject to the payment of the debts against the estate in this State, of course they should be classed and paid according to the laws of this State.

We do not think the allegations of fraud and misrepresentation are fully sustained. The evidence is that Steadham, before the contract was entered into, or tbe assignment executed, told plaintiff that there was an old debt of about $1,000 which Now-land owed plaintiff’s father, to which King was security. That witness told him to consider of the matter, and consult with his friends; that one of them was present; that the assignment was read to him, and that he executed it.

But there is no evidence that the plaintiff was aware that Whitesides was administrator in Arkansas, or that there was an attachment bond or judgment on it. Although the assignment bears date sixteen days after the judgment, Steadham says that it was written and delivered to him in the City of Washington about the first of September, more than two months before the judgment was rendered; and, as the transaction took place in the Creek Nation, where both Steadham and plaintiff lived, seventy or more miles from Van Burén, between which places we may well presume there was but little intercourse, it is fair to infer that both of them were ignorant of the existence of such a debt and the judgment on it, and when told of the old debt of Nowland, plaintiff was without information to charge him with inquiry. The instrument to be signed, although drawn by King, who well knew that he and DuVal were bound for the debt, and he must also have had some.general knowledge of the amount of the indebtedness, neither discloses any party as debtor except Nowland — the language is “Nowland and others,” nor gives either date or amount. Thus informed, this plaintiff, an Indian of the Creek Nation, was called upon-to make this assignment of a judgment for $2,757, on parties who claim to be solvent, for the consideration that Steadham promised verbally that if he, the plaintiff', would sign the instrument of assignment, he, Stead-ham, would pay a debt of $400, which, Steadham represented to plaintiff, his father owed to the Masonic lodge of Muscogee as treasurer of the lodge, and that he, Steadham, was authorized to collect it.

Considering the additional fact, which is shown by the evidence of Steadham himself, that some six or seven years before that time the lodge building had been destroyed, the lodge broken up, disbanded and scattered during the late war, and had never in all that time been reorganized or reinstated — in fact, that there was no lodge; and, in addition to this, the further fact, as shown by the evidence of the same witness, that the only power given him to make this collection was conferred by a few members of the lodge during the late war; that this power, thus conferred at a time when the lodge had disbanded as a brotherhood, and must be presumed to have forfeited their charter, conferred upon Steadham no authority to collect or to settle the lodge debt (if, in fact, any such existed), and that the only consideration for this assignment was the verbal promise of Stead-ham that he would pay the lodge debt of $400, are all circumstances tending to prove that the plaintiff had been induced, by misrepresentation or through ignorance of the facts, to make such an assignment, and upon the consideration of a mere verbal promise to pay t© a lodge which had no existence, and whose body had been dispersed and disbanded for more than five years, according to the evidence of Steadham, who acted as the agent of King, and when considered with all the attendant circumstances, we think justify the conclusion at which we have arrived, that the contract was void for want of consideration, and, moreover, that it was void because the administrator of the domicil of the deceased had no power to sell or transfer the assets of the estate in the hands of the ancillary administrator in Arkansas, then in process of administration, and that the court below did not err in decreeing that the assignment be set aside as void.

The contest as to the validity of the assignment must necessarily have been with DuVal as the administrator of the estate of King. Individually, DuVal had no grounds whatever to contest the validity of the assignment, or to assert any right under it. The transfer was made directly to King, in his own name, and, as shown by the written transfer, in his own right.

It is true that near three years after the transfer was made by plaintiff to King, DuVal gave to Steadham a draft on some one in St. Louis for $400, to be applied by Steadham in payment to him for his undertaking to pay the Masonic Lodge debt, which, however, so far as appears, has never been paid, but even if paid it was not a payment of the Lodge debt, but a debt to Stead-ham. This payment, at the time it was made, was not such a payment of money as to create a resulting trust in favor of Du Val for money paid in the purchase of the debt. The payment must be made at the time of the purchase as held by this court in the case of McLain v. Sale and wife, at the last term of the court. So that, in fact, neither of the defendants (appellants) has any interest which can be affected by the further orders and decrees of the court with regard to the collection of the judgment or the disposition of the money when collected. In regard to which the state of case presented by the bill, and shown by the admissions of defendant’s answers, and the evidence was that under an agreement entered into between Thomason and Humphries, the attorneys, who had the collection of the judgment, Whitesides, the administrator,, in whose name the judgment had been rendered, and DuVal, one of the judgment debtors. DuVal paid the attorneys $300, the fee claimed by them,, and to Whitesides, the administrator, some thirty or forty dollars,, his fees and costs, and gave Whitesides a bond of indemnity to save him harmless, by reason of his recalling the execution which had been issued, and in consideration of which he and the attor- ' neys agreed with DuVal that they would not again issue, or suffer to be issued, an execution on the judgment; that Whitesides' bond as administrator was only for $500,. a sum wholly insufficient to secure the estate against loss.

This is, substantially, the state of case made, in addition to which it is not improbable from the facts disclosed, that both the attorneys prosecuting the claim, and the administrator were influenced mainly in the course they took, by the mistaken belief that the judgment really belonged to the estate of King, and that DuVal was equitably entitled to control it. Be this, however, as it may, the effect of their conduct was to hinder, delay and embarrass the collection of the debt. And we think, from’the facts of the case disclosed, that the court had power, and it was its duty to appoint a receiver to collect and hold the estate subject to further the order of the court.

The court did not attempt to settle the title to the estate,, indeed, under the law as we construe it, it would have been premature to do so. The several orders made were interlocutory in their effect and purpose. The ancillary administration had not been closed, until which time the residue of the assets, whatever they may be, are not in condition to be turned over to the administrator at the intestate's domicil. If the efficient collection of' the money, and its due administration had been well protected,, the Chancellor might have remitted the ease to the Probate Court for judicial administration, and particularly where it was probable that claims existed against it, but, such not being the state of case, and, so far as appears from the facts in the case, the attorney’s fees and the costs of administration being the only charges of the estate, the Court of Chancery once having taken rightful jurisdiction of the case, had power to retain it, settle the fees due, and finally dispose of the case.

In reaching the above conclusion we have given due consideration to the several points raised by appellant’s counsel, and have in effect disposed of them, except that which questions the right of the plaintiff to bring this suit.

It will be found upon examination of the several decisions referred to by counsel, that they do but affirm the general rule, that the action can only be maintained by the party who has title, and that all of the parties whose interests are to be affected by the decree, should be brought before the court, as parties to the suit.

If the bill in this case had been brought to recover a debt belonging to the estate of the intestate, or had prayed for a decree for title in the plaintiff or other party, to the money so to be collected, then, of course, no one but the administrator, in whom the title vested, could maintain the action. But in this case the suit is brought against the administrator and others, his confederates, who it is alleged have asserted a fraudulent claim to the trust found in his hands, and belonging to the estate of his intestate, with regard to which by mal-administration he has committed a devastavit. It is true that the legal title to the judgment in contest is in him, but only as a trustee for the benefit of creditors and heirs. The plaintiff is one of the heirs, and as such is interested in the estate and in the faithful performance of the trust. He has set up no exclusive title in himself t) the estate, and asks no decree in his favor, nor any decree prejudicial to the rights of the creditor or his heirs, but that the fraudulent claim to the judgment by DuVal and King, may be declared void, and the collection and safe keeping of the money when collected be confided to some responsible person who will perform the trust which Whitesides, the administrator, has abused.

If this plaintiff, an heir and as such interested in the estate, has no right to sue as cestui que trust, then we are at a loss to say who can sue. In the case of Slocum, Richards & Co., v. Blackburn et al., 18 Ark., 309, referred to as authority by counsel, the bill was filed by creditors against the widow and heirs of Marshall, who died intestate, and upon whose estate there had been no administration. It was brought to set aside a fraudulent conveyance of slaves, made by Marshall in his lifetime, and to subject the slaves to the payment of their debt to the exclusion of other creditors.. Chief Justice English, who delivered the opinion of the court, held, that under the state of case made, an administrator, not a creditor, was the proper party to sue, and proceeds to remark that there were, however, cases, in which a Court of Chancery may exercise jurisdiction ancillary to that of the Probate Court, in others concurrent, and still in others a superior jurisdiction. Story in his work on chancery pleadings, page 221, says: “If a trustee has fraudulently or improperly parted with the trust property, the certui que trust may proceed against the trustee alone.” And at page 148, the same writer says: “Where a bill is brought for the due application or distribution of a surplus, to be paid after payment of debts and legacies, it is not necessary to make creditors or legatees parties to the suit, because the decree of the court will merely direct an account and payment in the course of administration.” This is just what the decree, in substance and effect, does in this case, with the exception, that instead of trusting the distribution to tbe administrator, it reserves to itself tbe control of tbe final disposition of the funds.

Tbe creditors and heirs of tbe estate were the only parties interested in tbe collection and distribution of this money, and their inserest was not only not prejudiced but was in fact protected by tbe decree. There was, therefore, no necessity for making them parties to tbe suit.

Tbe plaintiff could not compel them to become plaintiffs, and unless be bad power as an heir and cestui que trust to stop this devastavit and waste of the estate, being perpetrated by tbe trustee and others, there would be no redress. In view of the whole case, and the interests of the parties, we think the suit properly brought.

Let the decree be affirmed.


author: C. B. Moore, Sp. J.:

text:
    Pindall et al. vs. Trevor & Colgate.
    1. Pleading: Defects in a bill in chancery cured by the answer.

    Where the allegations of a bill in chancery are defective, but the averments of the answer supply the defect, the plaintiff may have a decree on the latter.
    2. Statute op Frauds: Pant performance.

    The delivery of possession under a verbal contract for the sale of real estate will take the case out of the statute of frauds.
    3. Implied Trust: How created.

    A party who enters into a written contract for the purchase of land, as the agent of another, who had made a verbal contract of purchase on the same terms but failed to make the stipulated payments, and is after-wards reimbursed by the other party or his representative, for payments made under the purchase, will be held as a trustee for the original purchaser, whether the latter had knowledge of the transaction or not, and one who purchases from him with knowledge of the facts takes subject to the trust.
    4. /Sarat.
    A purchaser, at execution sale, of property which is affected by a trust, takes it subject to the trust:

      5. Pleading: Innocent purchaser, eta.

    One who relies on the defense of an innocent purchaser without notice must allege all the facts necessary to constitute the defense.
    6. --Gross bill.

    Where the allegations of a cross bill are foreign to the subject matter of the original bill, it should not be allowed to be filed, or ii filed, should be stricken out; the code does not permit a departure from the original subject matter.
    7. Parties in Chanceby: _
    Beneficiaries in a deed of trust, who are represented in a suit affecting the subject matter of the trust by their trustee, are neither necessary or proper parties.
    8. Purchaser pendente lite, etc.

    One who purchases pending litigation, and after maturity, a claim that is secured by a deed of trust, takes with notice and is affected by all the equities attaching to the subject matter of the trust.
    9. Judicial Sale: Inadequacy of price.

    S$are inadequacy of price, an mixed with fraud, does not vitiate a sale under execution.
    10. Judgment Lien: Paramount to subsequent mortgage.

    This court would be slow to admit the doctrine that a deed of trust or mortgage executed and recorded subsequent to a judgment of the Circuit Court, would, under any circumstances, create a paramount lien.
    APPEAL from. Desha Circuit Court in Chancery.
    Hon. M. L. Stephenson, Circuit Judge.

      R. Hutchinson, for complainants.
    The sale of the land under Randolph's execution, whilst subject to the mortgage of Trevor & Colgate, was, at least, of very doubtful propriety. Kissem v. Nelson, 2 Heiskell's Rep., (Tenn.).
    Inadequacy of price should be of great weight to set aside execution sales. Cummings v. Little, C. E. Greene's Chan. R. (N. J.), p. 51. This to be taken in connection with the excessive amount of the levy, and the fact that plaintiffs in the execution were purchasers. See Lessee of Allen v. Parish, 3 Ohio R; Lessee of State v. Maclaster, 9 id.; Reynolds v. Nye, 1 Freeman's Ch. R. (Miss.), 469. It is abuse of power in a Sheriff to knock off property at a price grossly inadequate. He should rather adjourn the sale. See Reynolds v. Rye, supra; Knightly v. Buroh, 3 Camp. R., 520; TinkumY. Purdey, 5 John. R., 345; MoDonald v. Neilson, 2 Cowen’s R., 139; United States v. Bremen, Hemp-stead’s R., 320; Russell v. Richards, 11 Maine R., 371; Lantz v. Worthington, 4 Burrs R., 153; Warren v. Leland, 9 Mass. R., 265; Richards v. Holmes, 18 Howard, 147; Cummings v. Little, supra (p. 49).
    Cases cited of sales set aside. Fowler v. Stoneman, 6 Texas, 60; Allen y. Stephanes, 18 ib., 658; Swires v. Brotherline, 41 Penn. State R.; Swope v. Ardery, 5 Ind., 213; Fieman v. Wilson, 6 Johnson Ch. R., 413; Howell y. Baker, 4 ib., 411; Ennis y. Waller, 3 Blackf., 780.
    Mrs. Church’s heirs not affected by the sale. It conveyed only the interest defendant, in judgment, had when rendered. The parol contract was not void but voidable. Dyer v. Dyer, 2 Heis., 134.
    A judgment lien not preferred to prior equities, or unrecorded conveyances. See Watkins v. Wassell, 15 Ark., 73, and cases cited in the Am. notes to Bassett v. Nosworthy, 2 vol. L. Ca. in Eq.; Byers v. Engles, 16 Ark., 543; Sto. Eq.,.sec. 1503 and note; Walker v. Gilbert et al., 1 Free. Ch. R., 96; Click v. Click and Glass y. Glass, 1 Heis. (Tenn.), 607 and 613; Baker v. Morton, 12 Wall.; Sandford v. Weeden, 2 Heis., 81; Roberts v. P'rancis, ib., 132, especially if the purchase be pendente Me. See also Osterman v. Baldwin, 6 Wallace (U. S.), 122.

      W. G. Weatherford, for cross claimants.
    Previous to the execution of Anderson’s agreement with Kline and Peale, Mrs. Church owned the land under the parol contract partly performed. Keatts v. Rector, 1 Ark., p.' 418. Morrison v. Peay, 21 ib., 113; Kellums v. Richardson, 139.
    It is sufficient that this parol agreement was discovered by the answers of Randolph and Anderson, although not relied on in the original bill. Mortimer v. At chard, 2 Vesey, 243; Rose v. Mynatt, 7 Yerger, 30; Maury v. Lewis, 10 Yer., 118.
    Kline and Peale took for Mrs. Church’s benefit, and had no right to sell and direct conveyance to Carroll, who admits he had notice of Mrs. Church’s right at the time, and held only dry legal title. See Perry on Trusts, sec. 217, and Le Neve v. Le Neve, 2 Eq. Lead, cases. No trustee, unless empowered, can sell. Story, secs. 520-1 and 609; Hill, 316; Lewin, 18 Scam., 127.
    Randolph & Pindall having notice, took by their purchase, subject to this trust, Baker v. Morton, 12 Wall, 150. Purchaser at execution sale gets only debtors’ title. Horner v. Hanks, 22 Ark.; Carson v. Benedict, 2 W. C. C., 33 ; McKay v. Carrington, 1 McClain, 50; United States v. JDu/ncan, 4 McL., 607; Click v. Click, 1 Heiskell Tenn., 607 ; Jackson v. Town, 4 Cowan, 599; Jackson v. Post, 9 id., 130 — 15 Wend., 588, Buchan v. Sumner, 2 Barb, ch., 165; White v. Duncan, 1 Ohio N. S., 110; Coleman v. Cook, 6 Randolph, 618; Ash v. Livingston, 2 Bay, 80; Massy v. McRvane, 2 Hill ch., 426; Orth v. Jennings, 8 Blackf., 420; Williams v. Hollingsworth, 1 Strobh. Eq., 103; Bank v. Campb., 2 Reil. Eq., 179; Jackson v. Dubois, 4 John., 216 ; Watkins & T. v. Wassell, 15 Ark.; Byers v. Engles, 16 Ark.
    Of this trust, these cross-complainants had no notice, and advanced money on the faith of Carroll’s ownership, and title by recorded deed. They were purchasers for value, whom equity will not disarm. See Perry, sec. 218; Bassett v. Nosworthy, supra, in Lead. Ca. in Eq.; Adams Eq., p. 148, (Mar.); Bayerly v. Gaither, 2 Jones Eq., 86; Lovev. Taylor, 26 Miss.; Padgett v. Lawrence, 10 Paige; Morse v. Godfrey, 3 Story; Upshaw v. Hargrove, 6 S. & M. We therefore claim superior not only to heirs of Mrs. Church, but to judgment purchasers.
    Carroll’s note to Kline & Peale was a lien of which the execution purchasers had notice, and they should offer to pay it off, if it were conceded that Kline & Peale could sell. Shall v. Biscoe, Moore & Gaiel v. Anders, Smith v. Robinson. See also Daniel's Ch. Tr., 181-195. On the subject of ¿>roper parties, and the practice involved they cited Shield v. Trwmmel, 19 Ark., to sustain the cross bill — also Horner v. Hanks, 22 Ark. Code, sec. 108.
    On the point of relief against gross inadequacy of price at execution sales, cited, Bright’s heirs v. Tobin, 7 Monroe, 616 ; Woods v. Morrill, 1 Johnson Ch., 502; Turman v. Floods, 6 id., 411; Troup v. Woods, 4 id., 228; Howell v. Baker, id., 118; Gist v. Frazer, 2 Lit-t., 118; analogous Strates, Ex. v. Commissioners, 4 Cr., 403. Sheriff ought not to sacrifice property, but return it not sold, for a vend. Ex. Knightly v. Birch, 3 Camp., 520; Tinkern v. Purdy, 5 John, 345; McDonald v. Nilson, 2 Cowan, 139 ; Reynolds v. Nye, Freeman's Chan., 462.

      Garland, for Wiggs et al.

    In addition to authorities cited, and points made by Mr. Hutchinson, creditors should have been compelled to exhaust their remedies on lands not claimed by Wiggs et al.. 2 Washburne’s Real Property, 202-3, and notes; 3 ib., 19, and notes; Adams' Eq., 271-77.
    The court should establish the trust for Mrs. Church’s heirs. The only remedy is in equity. Rhea v. Duryear, 26 Ark., 344; Cain v. Leslie, 15 Ark., 312 ; Kerr on Fraud and Mistake, 289; ib., 321; 2 Wash. R. T., 439, sec. 12; Trapnall v. Brown, 19 Ark., 39; Simpson v. Montgomery, 25 Ark., 365. The case of Danly v. Byers does not apply.
    The property may in any event be followed for the purchase money. Kerr,' supra, 107, 119.
    The pleadings do not deny that Carroll had notice. See, Miller v. Fraley, 21 Ark., and cases cited — and, in fact, he did, and is chargeable with the trust. 2 Wash. Real Prop., p. 450 (top) sec. 21; Kerr, supra, 172 et seq. Nor is it averred that Carroll was ever seized. 21 Ark., supra.

      Pindalls, with whom are Clark & Williams and E. PE. English for Pindall & Randolph.
    On the point that inadequacy of consideration will not vitiate cited Wagner v. Phillips, 41 Mo. 117 ; Croner v. Smith, 49 Mo., 318. And if the sale is attacked at all it should be by direct proceeding on the part of the person interested. See also Cooper v. Reynolds, 10 Wall, 308; Meir v. Kelle, 31 Mo., 331; San Francisco v. Pixby, 21 Cal., 56 ; Day ■ v. Graham, 1 Graham, 111.; Comstooky. Purple, 49 111., 160; Cavender v. Smith, 1st Iowa, 355 ; Wallace v. Berger, 25 Iowa, 460; Reed v. Brooks, 3 Little, 127.
    The case of Thomas v. Randolph, 23 Ark., and Brittan v. Hanley, 20 Ark., are assumed to have settled the law in this State on this point, and become a rule of property.
    Cross complainants were not innocent purchasers without notice. Beech v. Martin, 27 Ark., 6; Luley v. Ready, 27 Ark., 102.
   C. B. Moore, Sp. J.:

This was a suit brought on the chancery side of the Desha Circuit Court, to the fall term of 1867, by Wiggs and others, the heirs of Mrs. Maria L. Church, against Lafayette J. Carroll, Wm. R. Anderson, John A.. Klein, Carroll, Hoy & Co., Elihu Randolph, W. Warren Johnson and F. S. & F. G. Schlessinger, on original bill, and by Trevor & Colgate against the heirs of Mrs. Church, Randolph and others on cross bill.-

Complainants in the original bill allege that by an agreement in writing, dated January 1st, 1855, Wm. R. Amderson covenanted and promised with and to John A. Klein and Jacob Peale, for the use and benefit of Maria L. Church, on the fulfillment of certain promises of Klein and Peale, the payment of taxes, etc., and for the expressed consideration of $2,900 paid down, and two writings obligatory of Klein and Peale, each for the sum of $1,450 payable respectively on the 1st of January, 1856, and 1st of January, 1857, to make or cause to be made to them, a deed with usual covenants of warranty, to the West half of Northeast quarter of section thirty-five, and the Southeast quarter of section twenty-six (less eight acres specifically excepted) all in township nine, South of range two West, and containing in all 232 acres.

That the purchase of this land by Klein and Peale was made with the money of Mrs. Church, the mother of all the complainants, except James A. Wiggs, who is the husband of Lucy, •one of the heirs; that Mrs. Church died soon after the purchase, and that by her death the beneficial interest in the land was cast on complainants. That the land was held in trust, by Klein and Peale, for Mrs. Church and her heirs. That Klein and Peale, in fraud of the rights of complainants, on the 1st day of January, 1857, sold the lands to Lafayette J. Carroll, for the express consideration of $6,000 payable five years after date with eight per cent, interest, and that Carroll executed his note to Klein as "guardian of the heirs of Maria L. Church for the amount and payable as above stated.

After this sale to Carroll, Klein and Peale instructed Anderson in writing to make a deed to Carroll for the land, and to reserve a lien in the deed for the purchase money.

That on the 10th of April, 1857, Anderson executed a deed to Carroll with covenants of warranty and relinquishment of dower for the express consideration of $5,800; but that Anderson, in neglect and violation of his instructions, incorporated no lien in the deed.

Complainants aver that Klein and Peale aoted without authority in selling the lands to Carroll, though Klein was the guardian of Mrs. Church’s children, but even if he had authority that Anderson made the deed, without reserving a lien as expressly directed, that Carroll had full notice of the trust in Klein and Peale, and of Anderson’s violation of his instructions, and claim the deed to Carroll is absolutely null and void.

Peale died after the execution of the deed to Carroll, and' his heirs are not made parties to the suit.

At the date of filing the original bill complainants were all minors except Mrs. Wiggs, who had recently become of age.. Immediatlely after the execution of the deed to Carroll, he took possession of the lands, and has retained it ever since.

Complainants further aver that in the exercise of his ownership or pretended ownership of the lands, Carrroll permitted apparent incumbrances on them which are clouds on the claim and title of complainants. These incumbrances consist of judgments against Carroll, one for about $800 in favor of defendant Randolph, and one in favor of Carroll, Hoy & Co., for nearly $9,000, both obtained in the Desha Circuit Court on the 1st day of November, 1866, and a deed of trust executed by Lafayette J. Carroll and wife, on the 12th of February 1.8$7. to W. Warren Johnson as trustee for F. S. & F. G. Schlessinger, to the land in question and a large amount of other lands.

Complainants pray that the title to the lands described in their bill be decreed to them, their title quieted and that the encumbrances be set aside and held for naught. Or that, if the conveyance to Carroll by Anderson be held legal and valid, the $6,000 note executed by Carroll to Klein, with the interest thereon, be decreed a lien on the lands in complainants’ favor and the lands be sold to satisfy the same, and for general relief.

Several of the defendants filed answers to this bill. Randolph filed special demurrer, which was sustained, with leave to complainants to amend their bill, wliioh they afterwards did, setting out, with more accuracy and formality, the averments of the bill first filed.

Carroll, Hoy & Co. filed a formal answer. As they have never taken any step beyond obtaining their judgment against L. J. Carroll, their interest in the case will not be further noticed.

W. Warren Johnson, trustee for the Schlessingers, also answered, setting up his trust deed, and claiming to be an innocent purchaser of the lands without notice.

Defendant Randolph answered the bill as amended, denying all knowledge of the transactions except as shown by the contract between Anderson and Klein and Peale. He charges the facts to be that in 1854 Anderson was the owner of the lands described in the complainants’ bill, and in that year he made a verbal conditional agreement with Mrs. Church for the sale of the land for $5,800, of which $2,900 was to be paid January 1st, 1855; $1,450 January 1st, 1856, and $1,450 January 1st, 1857, and that on failure of Mrs. Church to make any of these payments when due, she was to forfeit the payment, with the land. Claiming that the contract of sale was verbal, and no memorandum or agreement in writing, Randolph sets up and relies on the statute of frauds.. He claims that Mrs. Church never paid any part of the purchase money, except the $1,250, within the time specified in the verbal contract, and that she forfeited the contract. That afterwards Anderson resold the lands to Klein and Peale, for the unpaid and deferred payments that Mrs. Church was to have made $1,650 cash, and two bonds of Klein and Peale for $1,450 each, due respectively January 1st, 1856, and January 1st, 1857, and that the agreement between Klein and Peale and Anderson was then executed and dated as of January 1st, 1855, and so framed as to cover and include the $1,250 paid by Mrs. Church. ’ . '

That Klein and Peale paid the second payment and exercised ownership over the lands, and tried to sell it as their own, and insists that they were the true owners of the equitable title; that they made default in the last payment, and sold their equitable title to Carroll and áuthorized Anderson, on payment by Carroll of the money due him, to convey the lands to Carroll; that Carroll made the last payment and received a deed from Anderson, which was acknowledged and recorded, and that Carroll received possession of the land from Klein and Peale, and continued in possession with no cloud on his recorded title.

He denies that Klein and Peale were Mrs. Church’s agents or paid the money out of her assets; denies all material allegations of the bill, except the recovery of his judgment, and that of Carroll, Hoy & Co., and the execution of the trust deed to W. Warren Johnson; insists that his judgment was obtained before notice of the pretended rights of complainants and long before commencement of the suit; that before the filing of the amended bill, he had caused execution to be issued on his judgment, and levied on the lands and sold them on the 26th of October, 1868, ' and that he (Randolph) and L. A. and X. J. Pindall, became the purchasers under the execution. The Sheriff’s deed is made an exhibit to the answer.

Anderson also answered the bill. His answer is very similar to that of Randolph. He goes somewhat more into detail of the transactions between himself and Klein and Peale. He states one fact not mentioned by Randolph, and which is material, to-wit: that on the 1st of January, 1855, he surrendered possession of the lands to Mrs. Church under the verbal contract, after having received from her the $1,250.

Randolph may be considered as the only one of the defendants really and vigorously contesting the claim of the Church heirs.

The depositions of Anderson, Klein, Carroll and X. J. Pindall were taken in reference to the issues made by the bill and answers.

After the original bill, as amended, was filed, Trevor & Colgate moved to be made defendants, claiming to be assignees of the Schlessingers, of the debt secured by the trust deed to Johnson.

Leave was granted and they filed their answer and cross-bill. They exhibit a general assignment by the Schlessinger’s of their assets to them. They make all the complainants, and some of the defendants to the original bill and some other persons defendants to their cross bill.

Randolph moved to strike out the cross-bill. The motion was overruled and the defendants thereto answered.

Several depositions were taken as to the pionts raised by the cross-bill, but the aspect of the case was not materially changed, except the fact seems to be more fully proven that Mrs. Church was living when the agreement between Anderson and Klein and Peale was executed.

At the hearing, the court below decreed that the deed of Anderson to Carroll, to the lands claimed by the Church heirs be cancelled and delivered up as fraudulent, and that Anderson execute a deed to the complainants in the original bill, as the heirs of Mrs. Church, to said lands.

That the deed of trust to Johnson, assigned to Trevor & Colgate is a prior lien to that of the heirs of Mrs. Church, on those portions of the lands in said trust deed embraced in Anderson’s deed to Carroll, and that they and certain other of the lands, included in the trust deed and not sold under Randolph’s execution, and not claimed by the heirs of Mrs. Church, are subject to sale under said trust deed, and the court ordered them sold by the trustee, Johnson, if the amount of Trevor & Colgate’s debt was not paid by a day named in the decree. The court further decreed that so much of the cross-bill, as prays the setting aside of the execution sale of the lands mentioned in the trust deed and claimed by the Church heirs, be dismissed. Their own costs were decreed against the respective parties.

The case comes up to this court on appeal taken by Randolph, Trevor & Colgate, and the Church heirs.

After this detailed statement of the facts and condition of the pleadings, as found by the transcript, and which has seemed to us unavoidable in order to a clear and correct understanding of the points involved in this controversy, when we sift out the real merits of the case, from the immense amount of rubbish with which they are encumbered and surrounded, we find the questions presented to us for review and decision, comparatively few.

Our first inquiry must be as to the rights of Mrs. Church and through her to her heirs, under the parol contract made by her with Anderson in November, 1854. Whilst it is true that the complainants in the original bill do not base their claim on this contract, but rely upon the written agreement or title bond executed by Anderson with Klein and Peale, it must be borne in mind, that this parol contract of 1854, does not appear to have been known to them until the answers of Anderson and Randolph were filed. Both of these defendants discover the facts. Anderson sets out the circumstances connected with it with much minuteness, and reiterates them in his deposition. This contract being thus admitted in the answers, even if there were no evidence to support the admissions, dispensed with the necessity of its averment by the complainants, according to well established principles of equity practice.

If the statement in a bill be wholly defective, still a decree may be made on the answer. See Mortimer v. Orchard, 2 Ves. Jr., 245; Rose v.. Mynatt, 7 Yerger, 30; Maury v. Lewis, 10 Yerger, 118.

In Rose v. Mynatt, Green, J. said: It is said that the court cannot decree in this cause, and because the bill is not framed with a view to the aspect of the case as we have considered it. It is true that the case made in the bill is entirely different from the one we have discussed as being presented in the answer, and it is much to be regretted that the bill was not amended upon the Chancellor’s suggestion so as to embrace the truth of the case.

As a general rule, in a Court of Equity as well as a Court of Law\, the party must recover according to his allegation, if at all. But this rule is not so strictly enforced in equity as at law. Newland on Contracts, 163, etc.” And decree was rendered on •the facts admitted in the answer.

In the case at bar, there, is no material conflict or difference between the state of facts as presented and alleged in the complainant’s bill, and relied on by them, and the terms of this parol contract, revealed to them for the first time by defendants in their answers, but there is rather, we think, a harmony between them, and, as we will presently attempt to show, the one was but a continuation of, and an effort, at least, to consummate and perfect the other.

Counsel for defendants in the original bill, seem to have regarded this parol contract as included within the scope of the case as presented by the complainants, and have argued, with great earnestness and force, to prove the parol contract of 1854 void, under the statute of frauds.

"Was this parol contract between Mrs. Church and Anderson void by the statute of frauds ? It is admitted and very abundantly proved that $1250 of purchase money was paid by Mrs. Church and accepted by Anderson, and that Anderson placed her in full possession of the land; that he left the land and purchased another place and moved on to it.

The statute of frauds is not an utterly inflexible one. Like all others of its class, it has its exceptions and modifications and equity, especially, will alway^,apply the exceptions and modifications when truth and justice demand it, and where the facts by the evidence warrant it.

In the early case of Keatts v. Rector, 1 Ark., 418, this court held, “ that if possession be delivered and obtained solely under the contract, and in reference exclusively to it, then the possession will take the case out pf the statute, etcThis doctrine has been steadily adhered to, by this court, from that time onward, and this case has been frequently adverted to and approved. See Cain v. Leslie, 15 Ark., 312; Rhea, ad., v. Puyear et al., 26 Ark., 344.

It is hard for us to conceive of a case, as shown by the pleadings and evidence, more clearly falling within the doctrine of these cases.

This point established, we regard it as unquestionable that, until the execution of the agreement between Anderson and Klein and Peale, Mrs. Church owned the equitable title to the lands subject to the payment of the balance of the purchase-money.

Our next inquiry is as to the value and effect of the written contract between Klein and Peale and Anderson, made as of date January 1st, 1855. This contract or title bond, which is made an exhibit to the bill, was entered into by Anderson with Klein and Peale, and is signed by Klein and Peale as the agents of" Mrs. Church, and purports, on its face, to be for the use and benefit of Mrs. Church. The rule of interpretation of all instruments is that they shall receive the most natural and reasonable-construction of which they are capable, that interpretation to be aided, of course, by the light of evidence, where it exists.

Here we find Anderson, a few months after making the sale under parol contract, between himself and Mrs. Church, going to the City of Vicksburg, to find Mrs. Church, with the express intention of carrying out the terms of the parol contract by making further collections of money on that contract. Failing to see Mrs. Church, who appears to have been in feeble health, he continues his negotiations with Klein, the brother-in-law of Mrs. Church, and Peale who appears to have been her intimate friend. He, then and there, received from Klein $1650, the exact amount of the balance due on the first payment under the parol contract, and made his title bond, dating it as of the 1st of January, 1855, and took the notes of Klein and Peale at the same time and for the exact amount of the deferred payments in the original parol contract between himself and Mrs. Church. Klein in his deposition says this was all done at the request and with the consent óf Mrs. Church. Klein and Peale style themselves the agents of Mrs. Church, and seem to have been so regarded and treated by Anderson. Peale seems to have been rather a nominal party in the whole transaction.

Klein, as the evidence shows, afterwards paid the notes, and was reimbursed for the same out of the property of Mrs. Church’s heirs, she having died shortly after the written contract was made.

Now applying the above rule of interpretation, and giving to this contract its most natural and reasonable construction, we are at once forced to the conclusion that it was the clear intention of all the parties simply to make definite and certain, and to carry out the terms of the verbal contract, and that it was for the use and benefit of Mrs. Church during her lifetime, and that it must enure to the benefit of her heirs after her death.

Mrs. Church, under the verbal contract, was the equitable owner of the lands, and the written agreement being made expressly for her use and benefit, she certainly continued to be the equitable owner. Under the verbal contract, Anderson held the legal title for her, and, under the written contract with Klein and Peale, he still held the legal title for her use and benefit.

Considering it as established that there was no intention in making the written contract to nullify or vary the terms of the parol contract of sale, but rather to render them secure and certain, if Mrs. Church knew of and consented to this written agreement, and Klein swears she did, the only effect it could have, as to Klein and Peale, would be to authorize them to hold the legal title for Mrs. Church and her heirs, after the full payment of the purchase money — in other words, to make them trustees of the legal title. Anderson was to hold this legal title till payment of the purchase money, and they after that event.

If Mrs. Church did not know of, or authorize the written agreement, the effect would be the same. Klein and Peale, by intermeddling, would become trustees de son tort, or constructive trustees of the legal title when the full amount of the purchase money should be paid.

This brings us to the consideration of the next point, viz: the conveyance by Anderson to Carroll. What right had Klein and Peale, as the agents of Mrs. Church,” as they style themselves, and as Anderson seems to have regarded them, to order this conveyance ? We are not unmindful that the defendants to the original bill, in their answers and in their argument, insist that Anderson, when at Vicksburg in 1855, sold the land to Klein and Peale, because Mrs. Church had forfeited and given up her purchase under the verbal contract, and that they thus acquired the right to sell to Carroll. ' The evidence fails to sustain this theory, and all the circumstances tend to contradict it.

The agreement is made in express terms for the use and benefit of Mrs. Church. If Klein and Peale were purchasing the land for themselves, why should they make use of her name in the agreement, or why subscribe themselves her agents? Conceding that she authorized and assented to the written agreement, we search the instrument in vain to find any power of sale, or other disposition of the land, express or implied, or reserved therein, by or for Klein and Peale, or either of them.

Their “agency,” however ample, terminated at the death of Mrs. Church. Anderson only stipulated to convey the legal title to them for Mrs. Church’s use and benefit, on full payment to him of the purchase money. Carroll admits, and it is nowhere denied, that he was the brother of Mrs. Church, and her agent at the time the parol contract and sale was made, and that he then knew of the whole transaction, and was fully aware of the trust in favor of Mrs. Church’s heirs at the time he took the deed from Anderson, made by direction of Klein and Peale. What title, then, did he acquire by this conveyance to him by Anderson? If it is true that Mrs. Church authorized the written agreement, he could not possibly take more right or title than Klein and Peale had, to wit: the right to hold the legal title, on payment of the purchase money for the use of Mrs. Church, if she were living, and for her heirs after her death.

If, on the other hand, Mrs. Church never knew of, or sanctioned the written agreement, when Anderson made the deed to Carroll who had notice of the equities of the Church heirs, he could only take what Anderson had, after receiving the whole of the purchase money, to-wit: the right or privilege to hold the dry legal title for these heirs.

All the text writers on the subject of trusts state this as the invariable rule. Perry, in his work on trusts, sec. 217, says: “It is a universal rule that if a man purchases property from a trustee with notice of the trust, he shall be charged with the same trust, in respect to the property, as the trustee from whom he purchased. And even if he pays a valuable consideration, with notice of the equitable rights of a third person, he shall hold the property subject to the equitable interests of such persons.” In 2 Washburn, (Real Prop. sec. 21,) the doctrine is laid down in these words: “If one purchase from a trustee with knowledge actual or constructive of the trust, he himself becomes trustee of the property, etc.” Very numerous authorities are cited to sustain the rule as expressed by these writers.

But it is claimed that this conveyance was recorded, and that the defendant Randolph, by virtue of his judgment and execution sale acquired the property discharged of the trust and all equities of the Church heirs, because, as he asserts and argues he had no notice of these equities. In short, he claims to be an innocent purchaser without notice.

It is true the judgment was obtained before notice, but between the date of the judgment, November 1st, 1866, and the execution sale, October 26, 1868; this suit was commenced by the Church heirs, to-wit: On the 9th day of October. 1867, and Randolph made a party defendant. The original bill, as first filed, was never dismissed. It was pending on demurrer till October 29th, 1869, when the demurrer was sustained with leave to amend, and it was amended accordingly (see Tr., p. 184,) so that the suit was pending, and thereby actual notice brought home to Randolph and his partners, long before and at the date of the execution sale.

It is almost “elementary law,” that a purchaser at execution sale gets only such title as the debtor may have.

Authorities on this point might be multiplied, ad infinitum. We content ourselves with reference to but one or two. See Carson’s Lessee v. Boudinot, 2 Wash., C. C. Rep., 35, and Honor v. Hanks, 22 Ark., 572, where this court incidentally announced the doctrine.

In Watkins and Trapnall v. Wassell, 15 Ark., after full review of authorities, the court said: “Ye think these .authorities will sustain the position assumed, that the interest of the creditor in the real estate of the debtor, is limited to the actual interests of the debtor at the time the lien (judgment lien) attaches, etc.”

Randolph and his partners (Messrs. Pindall) became the purchasers at the execution sale. Being charged with notice by the pendency of this suit, they clearly fall within the rule in Byers v. Engles, 16 Ark., 543. This case so often referred to in subsequent opinions of this court, and very recently in Jackson v. Allen & Co., ante, approved and affirmed, may now be regarded as the settled doctrine of this court, and we think leaves nothing for the purchasers at the execution sale in this case on the score of purchase without notice.

We might be content to rest this branch of the case on the broad principles above indicated and the-authorities cited to sustain them; but aside from these we think the defendants have failed, in their pleadings, to place themselves in an attitude of successful defense on the plea of innocent purchasers, because they do not in their answer deny that Carroll had notice of the trust or the equities of the Church heirs.

Though in this case it might not have availed them, as the proof is positive that he did have full notice, yet such denial is essential in such a plea. See Miller v. Fraley, 21 Ark., p. 22, and authorities there cited.

Another fatal defect in the answer is, that it does not aver that Carroll was ever seized of the land in question. See 2 Dan. ch. PI. and Pr., 775; 3 Sug. on Vendors, 490; Byers et al. v. McDonald et al., 12 Ark., 286.

Our next consideration must be as to the position occupied by Trevor & Colgate the complainants in the cross bill. Their counsel argue with great earnestness and ingenuity, that though they fully admit the equities of the Church heirs, as against Randolph and other defendants in the original bill, because the deed of trust of which they claim to be the assignees, was executed prior to the commencement of the suit by the Church heirs, they are incumbrancers or purchasers without notice, and have rights superior to those of Randolph, and are entitled to satisfaction of their deed of trust before the Church heirs can take the property. The court below took this view, and sustained their claim to the land in controversy and embraced in the trust deed.

We are clearly of opinion that the Circuit Court erred in allowing this cross bill to be filed, or in not dismissing and striking it from the files, at the hearing, on demurrer reserved in Pindall’s and Randolph’s answer, for the reason : First — That it introduced new parties and new subject matter. It brought in L. A. and X. J. Pindall, who are not parties to the original bill, and introduced litigation in reference to about 1,000 acres of land not mentioned in the original bill.

If a cross bill introduce new and distinct matter no decree can be rendered on it. See 3 Dan. Ch. Pl. and Pr., p. 1743; Galatian v. Erwin, 1 Hopk., 48; Daniel v. Morrison, 6 Dana, 186; May v. Armstrong, 3 J. J. Marshall, 262.

In the case of Honor v. Hanks, 22 Ark., 572, this court quotes, with approbation, and, in fact, adopts as its own, and the true doctrine, the language of the court in May v. Armstrong (3 J. J. Marshall, 262), as follows: “The cross bill must relate exclusively to the subject matter of the bill, and things connected therewith, and foreign mátter cannot be introduced unless under special circumstances.”

Second — The cross complainants, who claim to be the assignees of the Sohlessingers, were already represented by‘Johnson, the trustee in the deed of trust, and there is no averment in the cross bill that he was not properly representing his trust.

Johnson was, in every way, competent to protect the interests of the beneficiaries in the trust deed, and the proper party to do so. He is made a defendant in the original suit, and there was no necessity of the intervention of these cross complaints.

Their cross bill has tended greatly and unnecessarily to complicate the case. As is well remarked by one of the eminent counsel, in his brief for defendants, the objects of the cross bill could have as easily been attained after the disposition of the main case between the original' parties, when, if Johnson had succeeded, Trevor and Colgate could, by petition with notice to Johnson, have procured an order to have the proceeds of the sale of the land turned over to them.”

We do not overlook the fact that the complainants in the cross bill insist that the Code has modified the practise in regard to the introduction of new parties in a cross bill and refer to sec. 108 of the Code.

By a careful examination of this section it will be seen that the privilege of introducing new parties is confined to a cause of action “affecting the subject matter of the action,” evidently meaning the original action.

The Code, at all events, makes no change in the old rule, forbidding the introduction of matter foreign to that in litigation in the original bill or complaint.

Newman, in his treatise on Pleading and Practice, under the Code, p. 612, speaking of the cross complaint, says: “The language of the amendment to the Code must no doubt be understood as embracing substantially the same subject matter in this respect that was necessary under the former system,” and refers to May v. Armstrong, sup., and then, after a full comparison of the two systems, p. 615, he remarks: “And the rule must not be overlooked that under the former system as well as the present Code Practice the cross petition must be confined to the subject matter of the original petition, or, in the language of the Code of Practice, must affect the subject matter of the action.”

This cross bill seeks relief on two grounds:

First — That the cross complainants were purchasers without notice, and

Second — Because of the inadequacy of the price for which the lands were sold at the execution sale.

We regard the first ground as insufficient, for the reason that, at the time of the assignment to them of the Schlessingers’ interest in the deed of trust, May 30th, 1868, the original suit was pending, .and Schlessingers and Johnson, the trustees, were parties, and thus had notice.' The claim assigned to Trevor and Colgate was overdue, and they were affected with all the equities attaching to it. They could not be placed by the assignment in a better position than Schlessinger was.

The second reason urged, to wit, the inadequacy of the price paid at the execution sale, is of no avail. This court has again .and again held that mere inadequacy of price, if unmixed with fraud, does not vitiate a sale under execution. See Britain v. Handy, 20 Ark., 381; Randolph et al. v. Thomas et al., 23 Ark., 69; Miller v. Fraley, 21 Ark., 22; Hardy v. Heard, 15 Ark., 184.

Having indicated our decision that the conveyance by Anderson to Carroll was in fraud of the rights of complainants in the original bill, and void, and that the judgment lien of Randolph only attached to such interest as Carroll had in the lands mentioned in the original bill, and the trust deed to Johnson, being subsequent and junior in all respects to the judgment of Randolph, we conceive, aside from the objections already pointed out to the validity of the cross bill, as against the original complainants, it cannot prevail against the defendant Randolph, as complainants in the cross bill insist.

We would be slow to hold that, under any circumstances, a deed of trust or mortgage, executed by a debtor and recorded months after the rendition of.a judgment regularly rendered in the Circuit Court against such debtor, would constitute a lien paramount to the judgment.

With such a doctrine announced any debtor might defy his judgment creditor, and, by keeping his property mortgaged to its full value, forever prevent the enforcement of the judgment lien.

Several points were raised and discussed by counsel, but they are of minor importance, and as those reviewed by us fully determine the merits of this case, we forbear to pass upon them.

On the whole case, therefore, the decree of the Desha Circuit Court is reversed, and we direct that the decree of this court be ■entered dismissing the cross bill of Trevor and Colgate, annulling and cancelling the deed from Anderson to Carroll, and the deed of trust from Carroll to W. Warren Johnson, and the sheriff’s deed to Randolph and Pindalls, so far as the two latter relate to and affect the lands described in the original bill of complaint, and that the title to the said lands be absolutely vested in the complainants in the original bill, the heirs of Maria L. Church, deceased, and their title to the same be forever quieted, and that ■each of the parties to this suit pay their own costs, both in this ■court and the court below.


text:
    McRae et al. vs. Rogers.
    Chancery Practice. When a bill should be dismissed absolutely, and not. “ without prejudice.”

    Where a cause in equity is tried on bill, answer, exhibits and evidence, and the court finds the evidence insufficient to sustain the case, the bill should be dismissed absolutely, so as to bar another suit, and a decree (dismissing it without prejudice will be reversed and a final decree entered by this court.
    APPEAL from White Circuit Court in chancery.
    Hon. John Whytock, Circuit Judge.

      B. D. Turner for appellant.
    The bill should have been dismissed absolutely. It is not within the cases where a bill may be “dismissed without prejudice.” Code, sec. 402. Nor was it proper by any rule of practice.

      Gallagher & Newton for appellee.
    The dismissal of a suit without prejudice is a matter within the discretion of the court. The authorities are meagre, but the following are cited in argument. ■ Danl. Ch. Pr., vol. 1, p. 335— 36, etc., and vol. 2, 1200 ; Anthony v. Peayetal., 18 Ark., p. 24; Pddins v. Buoh, 23 Ark., 509 ; 7 Blackf. Illinois, 541.
   Walker, J.:

Rogers brought his suit in chancery against McRae and others, to the March term, 1866, of White County Circuit Court. The defendants answered and reserved the question of the sufficiency of the bill, by way of demurrer, replication was filed, evidence taken, and the case submitted, and heard upon the pleadings and evidence at the November term of the court, 1868, and taken under advisement by the court until the April term, 1869, at which term the court sustained the demurrer to the bill, and gave the plaintiff leave to amend his bill; an amended bill was filed and answered, and at the November term, ¡1869, the case-was set for trial, and heard upon bill, answer, exhibits and depositions, and again taken under advisement until the April term, 1870, at which time the court found that the evidende did not sustain the allegations of the bill, and decreed that the same be dismissed, at the cost of plaintiff, but without prejudice.

The defendant, McRae, appealed upon the sole ground that the decree should have been absolute and final, and not, without prejudice; the effect of which was after submission and trial upon the merits of the ease, to permit the plaintiff at a future time to re-open the issue and try the case again.

Plaintiffs, whether in law or in equity, (unless in cases of cross actions), have a right to take a non-suit, or dismiss their suits at any time before final submission; and in chancery cases, after submission, if the chancellor should find cause for equitable relief, which must fail from a mistake in the pleading, or defect in the proof, or want of parties, it is the practice to dismiss the bill without prejudice, so as to enable the plaintiff to obtain the relief to which, but for such neglect, oversight, or want of party, or other like cause, he would be entitled.

Daniel, in his work on chancery pleading and practice, at page 1199, vol. 2, says: "When a decree does not reserve the consideration of the points of equity arising upon the determination of the legal rights of the parties, or of the further directions consequent upon the master’s report, or the costs of the suit, it is said to be a final decree, and may be pleaded in bar of any new bill for the same matter. Of this nature is a decree dismissing the plaintiff’s bill, which, as we have seen, may be pleaded to any new suit, unless accompanied with a direction that the dismissal is to be without prejudice to the plaintiff’s right to file another bill, and that directions of this sort, are inserted when the dismissal is occasioned by any slip, or mistake in the pleading, or in the proof. Thus, where a bill was dismissed for want of parties, it was expressed to be without prejudice; and so when a bill was dismissed in consequence of facts not having been properly put in issue, the bill should be dismissed without prejudice.

By a recent statute, Gantt’s Dig., sec. 4638, the practice with regard to dismissing bills, with or without prejudice, is prescribed and limited, but as this case was commenced before the code practice took effect, it will be considered and determined by the rules of practice in force at the time the suit was commenced.

Turning to the facts of this case, we find that the ease had been twice submitted for hearing, that after the first submission the bill was amended, and finally submitted upon the pleadings as amended, exhibits and the evidence; upon consideration of which, the court found that the evidence was not sufficient to sustain the allegations, and decreed that the bill be dismissed. There is nothing from the state of the pleadings, or from the evidence, by which we may presume that there was any mistake oversights or omission either in the pleading or the evidence, which by amendment would make for the plaintiffs a better case.

In consideration of the whole case, the time and opportunities given to the plaintiff to present his case fully, and in the absence of any facts from which we may infer that if permitted to do so, he could make a better case, we must hold that the court below erred in refusing to render a final decree in the case.

Let the same be entered in this court with costs.