text:
    Phelps vs. Jackson, adm’r, et al.
    1. Statute of limitations applicable to judicial sales.

    A proceeding instituted for the purpose of having a judicial sale of laud set aside, and the property re-sold, or a trust established in the plaintiff’s favor, and title to one half the land vested in him, on account of the fraudulent conduct of the purchaser, is not a suit for the recovery of the land, or within the provisions of section 4116 of Gantt’s Digest, which provides that all actions against the purchaser for lands bought at judicial sale, shall be brought within tive years.
    2. Implied Trust.
    A held two notes of equal amount for the purchase money of land; he transferred one of them to B as collateral security for a debt. A after-wards died, and proceedings to foreclose (he vendor’s lien was brought in the name of his administrator upon both notes. Under a decree of foreclosure, the land was bought in by the heirs of the decedent, and no money paid: Held, that a trust was created in favor of B ag to one half the land.
    3. Judicial Sale: Payment, re-sale, etc.

    Under a decree which directs land tobe sold for cash, the purchaser acquires no title until he pays the amount of his bid; and, upon his failure to pay, the land should be re-sold.
    APPEAL from Drew Circuit Court in Chancery.
    Hon. T. F. Sorrells, Circuit Judge.

      McCain, for appellant.

      J. A. Jackson, contra.

   Walker, J.:

The appellant filed his bill in chancery in the Drew Circuit-Court against the heirs of William E. Conley, deceased, and James A. Jackson, the administrator of Conley’s estate, to set aside a sale of land made to the heirs under a decree of court, or to have half the land purchased by the heirs conveyed to him, as having been purchased by them under an implied trust for the benefit of the plaintiff, as well as for themselves.

Several of the defendants, in their answer, reserve the question of the sufficiency of the bill by demurrer; and others set up in their answer the statute bar of five years as a defense to the action.

We will first dispose of these questions as preliminary to an investigation of the ease upon its merits.

The bill presents, substantially, the following state of ease:

William E. Conley, a resident of Drew County, sold a tract of land to John E. Montgomery, and executed to him a bond for title when the purchase money was paid for the land. Montgomery executed his notes, payable in two instalments, for $2,650 each.

Conley was indebted to a firm in New Orleans, of which plaintiff was a member (and who afterwards succeeded to all of the rights of the firm), and wished also to pi ocure from the firm additional supplies for his plantation, and for the purpose of securing them from loss for the debt contracted, and for additional advancements, endorsed one of the notes given to him by Montgomery for $2,650, and delivered it to the firm as a collateral security.

That the debt due by Conley to the firm at the time the note was so endorsed greatly exceeded the amount of the note, and still remains wholly unpaid. That Conley died in Texas, leaving tüe defendants his heirs, one of them, William E. Conley, Jr., administrator upon the estate in Texas. William C. Arnett, who married one of Conley’s daughters, was a practicing attorney in Drew County, was the confidential adviser of the heirs, and had them to place the other note for $2,650 (which was held by Conley at the time of his death) in his hands. Arnett wrote to plaintiff that he was about bringing suit on this note, and to send the note in plaintiff’s hands to be sued upon also ; plaintiff sent the note to Arnett, to be collected for him; after receiving the note, that Arnett wrote to plaintiff that, in order to save his lien upon the land, it was necessary to bring the suit in the name of the administrator of Conley’s estate; that such statement was false, but that he was ignorant of the laws of Arkansas, and, confiding in the knowledge and integrity of Arnett, he suffered him to bring suit in the name of the administrator, against Montgomery to enforce the vendor’s lien upon the land, for the payment of which the note was given. That Arnett was interested in the estate, having married one of the heirs, and combined and confederated with the other heirs (the defendants) to defraud plaintiff. That a decree was rendered against Montgomery for the amount due on both notes in favor of William E. Conley, Jr., the administrator of the estate; a lien was declared upon the land, a commissioner appointed to sell, and the land was bid off at the price of $2,500 by Arnett, for William E. Conley, Jr. (the administrator), for the benefit of the heirs of the intestate; that no money was paid for the land; that the sale was confirmed by the court, and the deed approved.

A copy of the decree, and the proceedings under it, is filed as an exhibit. That the whole matter was managed and controled by Arnett, with the intent to defraud the plaintiff out of his note óf $2,650; that all of the defendants had notice of the fraudulent conduct of Arnett, and approved the same; that plaintiff was kept in ignorance of these fraudulent transactions until long after they had been consummated.

That immediately after their purchase the heirs took-possession of the lands; that defendant Jackson was soon after appointed administrator of Conley’s estate in Arkansas, and is also the agent of the heirs, and, as such, or as administrator, has the control of said lands.

Plaintiff is not advised in what capacity the lands are held by Jackson, and requires that he should disclose the capacity in which the lands are held, in his answer.

That the rents and profits of the land, whilst so held by Jackson, were of great value; that an account should be taken of them, and the plaintiff decreed one half of the land, or, that the sale be set aside, and the lands be again sold, and one half of the purchase money be decreed to plaintiff.

This is substantially the case made by the bill, and, upon due consideration of which, we think, if maintained by proof, would entitle the plaintiff to relief. The reasons for so holding will be deferred until we come to consider the case upon its merits.

The defendants object that the cause of action is barred by the statute of limitation of five years. There is a statute — sec. 4116 Gantt’s Digest — which provides, that All actions against the purchaser for lands sold at judicial sales shall be brought within five years, and not after.” But the question is, was the suit in this instance brought against the purchaser for the recovery of the land sold at judicial sale? We think, in view of the nature of the complaint, that it was not. The suit was not brought to recover the land, but to enforce an equitable lien upon it, which existed at the time of the purchase. An incumbrance On the lands set aside, a title to the lands for which no consideration was paid; at least to the extent of the interest of the plaintiff, who • prays, as he had an equal interest with the plaintiff in the decree, and the lien declared, and as no part of the purchase money was paid to him; that he be decreed one half the land, as held under an implied trust. If, on any one of the alternative forms of relief, the plaintiff would be entitled to relief, the recovery of the land from the defendants would not necessarily be involved, which, we think, is the case. The statute bar of five years was not well pleaded.

The remaining question to be considered is, whether, upon the whole case as presented by the parties upon bill, exhibits, answers and depositions, the plaintiff is entitled to relief.

The answers of the defendants put but few of the allegations of the bill at issue. They deny all knowledge of the indebtedness of William E. Conley, deceased, to plaintiff; deny knowledge of the transfer of the note to plaintiff, as collateral security, or how it came to the hands of Arnett; know nothing of the relations of confidence and trust between plaintiff and Arnett; deny all fraud on the part of Arnett, or that he was their confidential ad-visor. The other material allegations are admitted. The answer of the infant defendants admit nothing, but for which, our examination of the evidence would be limited.

The sale of the land by Conley to Montgomery, as alleged,, and the execution of the notes, is shown by the contract of sale, and the decree of the court.

That plaintiff held one of the notes; that it was placed in the hands of Arnett as the attorney for plaintiff, and at his (Arnett’s) recpiest, is proven by the depositions of Phelps, Green his bookkeeper, and by the letters of Arnett himself, who in a letter to the firm (of which plaintiff was a member) dated December 16,. 1865, said: “You hold a note made by J. R. Montgomery to W. E. Conley as collateral, the judge died this fall, and the note you hold will soon be barred by statute of limitation, there is as yet no administration on his estate, and I, therefore, request that you send the note to us, or to some other attorney for collection, by, or before the first day of January. I am a son-in-law of the judge, and as such, feel an interest in the matter * * You will please enclose the note immediately, with authority to bring suit in your name. I hold your receipt to Judge Conley.

'[Signed,] S. L. Arnett.”

On the 23rd of August, 1866, Arnett wrote again to plaintiff) as follows.

“ Your note of the 27th ult. is before me, I have just filed a bill in equity against John R. Montgomery on the note you sent us, and another one, for the same amount, to enforce a lien .upon the land of Montgomery; he left the State in 1863, and has not been back since, left no property, except land for which the notes were given. That species of property having greatly depreciated, will not, probably, sell for the amount of the note, in which event, I will buy it in for the heirs of Conley. * * I brought suit in the' name of Conley’s administrator for two reasons, the legal title is in him, and, second, under our law, you cannot enforce a vendor’s lien on a note that has been transferred. [Signed,] S. F. Arnett.”

It is shown by the decree, a copy of which is exhibited, that the suit was brought in the name of the administrator, upon both notes, upon which a decree was rendered, declaring a lien upon the land for their payment. A copy of the report of the commissioner and of the order confirming the sale, is also made an exhibit, from which it appears, that the land was bid off in the name of the administrator for the use of the heirs of Conley, at the price of $2,500. That no money was paid upon the purchase, that a deed was made and the sale confirmed.

It is shown by the evidence of Phelps, and Green his bookkeeper, that after allowing all credits, $5,209.88 of the debt due from Conley to plaintiff remained unpaid. That it was to secure the payment of this debt, that the note was endorsed and delivered to plaintiff. We think this proof amply sufficient to sustain the material allegations in complainant’s bill, and to raise an implied trust on the land, even though there may be no proof that the other defendants had knowledge of, or, were participants in the fraud. Yet the administrator who purchased the land was chargeable with notiee.

There was also proof that since the sale of the lands, they had been in the care of the defendant, Jackson, and that the annual rents were worth $200, or more, out of which he paid taxes. But from the view which we take of the case, we deem it unnecessary to pursue our enquiry further, with regard to the rents and profits.

The sale of the land was illegal, and the deed inoperative. The court ordered the commissioner to sell for cash in hqnd, the manner of the sale was definite, and the commissioner could sell in no other way. If the purchase was not paid, it was no-sale, and the land should have been again offered for sale, and sold to a bidder who would pay cash in hand in for it. -Rover on Judicial Sales, at page 59, says : The contract of sale is only executed so as to pass the title, by the payment of the purchase money, and the execution and delivery of the deed.” The payment of the purchase money was a prerequisite to the execution and delivery of the deed, which, not having been done, the sale should be set aside, the deed cancelled, and declared void. If the administrator wished to purchase the land, he should, in any event, have paid over half the purchase money. It was a sale made for the benefit of himself and plaintiff, both were equally interested, each entitled to half the purchase money ; To withhold it from the plaintiff and take the whole of the land, was a violation of every principle of justice, and common honesty.

In view of the whole case, we think the plaintiff entitled to relief, and that the court below erred in refusing such relief, and in dismissing plaintiff’s suit.

Let the decree of the court below be reversed, and set aside, with costs, and the case remanded with instructions to set aside the commissioner’s sale, and cancel the deed made to the defendants as void. That an order be made appointing a commissioner to sell the lands under the decree heretofore rendered, upon the terms and in the manner prescribed by law and the equitable practice of the court, and that when such sale is made, the commissioner be required to bring the money for which the land is sold into court, one half of which, after the cost of sale, to be paid to the plaintiff, and the other half to the legal representatives of William E. Conley, deceased, they paying the other half of such costs.


source: Caselaw Access Project

author: English, Ch. J.:

license: Public Domain

text:
    Gaither et al. vs. Lawson.
    1. Ejectment: Title Requisite to Maintain the Action.

    Under our statutes ejectment may be maintained in all eases where the plaintiff is legally entitled to the possession of the premises. The receipt of a Receiver of the United States Land Office for the fees and commissions paid by an applicant for a homestead under the provisions of the homestead act of Congress, will entitle the holder to maintain the action.
    2. Tax Sale: Tender of Payments and Improvements by Purchaser.

    Where public lands, not subject to taxation, are sold for taxes, and afterward entered, the person entering the land is not required to tender the purchaser afc'tax sale the money paid, and value of improvements made by him, before he can maintain an action for the land.
    APPEAL from Marion Circuit Court.
    Hon. J. M. Pittman, Circuit Judge.

      J. D. Walker, for appellants.

      Gregg, contra.

   English, Ch. J.:

In March, 1876, William A. Lawson brought ejectment in the Marion Circuit Court, against John F. Gaither and Jeremiah Gaither, for possession of a tract of land. The complaint is, in substance, as follows:

“Plaintiff states that he is the owner, and entitled to the possession of the following tract of land, situate in Marion County, etc., containing 38 21.100 acres, and described as the northwest quarter of the southwest quarter of sec. 6, township 18 north, range 16 west; that defendants hold possession of said land without right, etc.
“ That, on the 21st day of March, 1873, plaintiff entered, under the provisions of the act of Congress approved May 20th, 1862, entitled rAn act to secure homesteads to actual settlers on the public domain/ the west fractional half of the northwest fractional quarter; and the north half of the southwest quarter of sec. 6, in township 18, north range 16 west, at the local United States Land Office, at Harrison, Ark., and received from the receiver of said office a duplicate receipt therefor, No. 1569, a copy of which is made an exhibit to the complaint, etc.
“ That plaintiff, by virtue of his entry, became and was entitled to possession of all the lands embraced in his said entry, on said 21st day of March, 1873; and defendants, on said day, being in possession of said northwest quarter of the southwest quarter of said sec. 6, were, by the plaintiff, permitted to remain in possession thereof until the month of February, 1874, since which time said defendants have unlawfully kept plaintiff out of possession, and still unlawfully withhold from him possession thereof.”

Prayer for possession, damages, etc.

The receiver’s receipt, made an exhibit to the complaint, is as follows:

“ Duplicate receiver’s receipt No. 1569 ; application No. 1569; Homestead Receiver’s Office, Harrison, Ark.

March 21st, 1873.

Received of William A Lawson, the sum of $14 — cents, being the amount of fees and compensation of register and receiver for entry of the west fractional half of the northwest fractional quarter, and north half of southwest quarter, of sec. 6, township 18, north of range 16 west, under the act of Congress approved May 20th, 1862, entitled “An act to secure homesteads to actual settlers on the public domain.”

' $14. John A. Torrance, Receiver.

The defendants filed an answer, containing three paragraphs, in substance:

“First — That the lands described in plaintiff’s complaint, were, on the 8th day of March, 1869, offered for sale by the sheriff of said county of Marion, at the court house door of said county, for the non-payment of taxes assessed against said lands for several years previous thereto, and that defendant, John P. G-aither, being the highest bidder at said sale, became the purchaser of said lands at and for the sum of $10.00, the amount of taxes, penalty and costs claimed to be due thereon, and that at the expiration of two years from the date of said sale, the sheriff of said county executed and delivered to said John F. Gaither, a deed for said land, which deed was not entered of record, and was lost, or destroyed, and cannot be filed herewith.
‘‘That said defendant, John F. Gaither, after the execution and delivery of said deed, erected improvements on said lands of the value of $3,000, and that plaintiff did not, before the bringing of this suit, file in the office of the Clerk of the Circuit Court of said county of Marion, an affidavit that he had tendered to said John F, Gaither the amount of money originally paid therefor for taxes, penalty and costs, with a hundred per cent, thereon, and the full value of the improvements erected thereon, and that the same had been refused. Defendants therefore ask that said cause be dismissed.”
“Second — That it is not true, as averred in said complaint, that defendants entered into possession of said land described in said complaint, and unlawfully withhold the possession thereof from plaintiff in manner and form as therein averred.
“Third — That-plaintiff is not the owner of, and entitled to the possession of said land in said complaint mentioned, in manner and form as therein alleged.”

The plaintiff demurred to each paragraph of the answer. To the first paragraph because it states no facts amounting to a defense, shows no title in the defendants, contains no averment that the said lands were subject to taxation, that they had been listed or assessed, or that any valid deed was executed to defendants, etc.

The court sustained the demurrer to the first paragraph of the answer, and overruled the demurrers to the second and third paragraphs.

'The cause was submitted to the court, sitting as a jury, on the issues made by the second and third paragraphs of the answer.

The plaintiffs read in evidence the receiver’s receipt copied above.

Defendants admitted that at the time of, and before the commencement of the suit, they were in possession of the land in controversy, and that plaintiff, long after he entered the land, and before suit, demanded in writing, possession of the land of defendants, and that they did not deliver possession thereof to him, and that the use of the property after demand, and for six months previous to the trial was worth $30 per month.

Plaintiff admitted that at the time he entered the lands, and procured the receiver’s receipt, defendants had and held an improvement on the land in controversy, consisting of a mill, etc., of the value of $500, which was all of the evidence'.

Defendants asked the court to declare the law to be:

First — That said receiver’s receipt did not vest in plaintiff such a title as would authorize him to maintain an action of ejectment.

Second — That the facts shown in evidence did not authorize the plaintiff to recover.

The court refused to make these declarations of law, but on the contrary held and declared that the receiver’s receipts did show sufficient title in plaintiff to authorize him to recover, and that-the facts shown and admitted in evidence did authorize the plaintiff to recover in this action.

The court found the issues for the plaintiff.

The defendants moved for a new trial on the grounds:

First — That the finding of the court was contrary to law.

Second — That the evidence was not sufficient to authorize such finding.

Third — That the court erred in refusing to declare the law to be as asked by defendants.

The. court overruled the motion for a new trial, and rendered judgment in favor of plaintiff for the land, without damages.

Defendants took a bill of exceptions, and appealed to this court.

First — By the common law the plaintiff in ejectment must in all cases prove a legal title to the premises in himself, at the time of the demise had in the declaration, and evidence of an equitable estate is not sufficient for a recovery. Fenn v. Holme, 21 How. U. S., 483.

When land is purchased of the United States, the fee is in the government until the patent issues, and, in the absence of a statute authorizing it, ejectment could not be maintained upon a certificate of entry, which is evidence of equitable title only. Bagnell et al. v. Broderick, 13 Peters. Moore and Cail, adm’r., v. Anders, 14 Ark., 633.

By our statutes, ejectment may be maintained in all cases where the plaintiff is legally entitled to the possession of the premises.

It may be maintained in all cases where plaintiff claims possession of the premises under- or by virtue of—

First — An entry made with the register and receiver of the proper land office of the United States.

Second — A pre-emption right under the laws of the United States.

Third — An improvement on the public lands against an intruder, with no better right.

Fourth — A New Madrid certificate of entry.

Fifth — A swamp land patent certificate, issued by the proper State officer.

To entitle the plaintiff to recover, it is sufficient for him to .show that, at the time of the commencement of the action, the defendant was in possession of the premises claimed, and that the plaintiff had title thereto, or the right to the possession thereof. •Gantt’s Digest, secs. 2253-58, Ch. 51.

Thus it may be seen that the scope of the common law action ■of ejectment has been much enlarged by the statutes referred to.

It seems, from the receiver’s certificate read in evidence on the trial, that appellee entered the land, which is the subject of this action, with other tracts, on the 21st March, 1873, under the homestead act of Congress, of May 20th, 1862. 12 Statute at Large, p. 392. Under the second section of the act, no certificate was to be given to the person making the entry, or patent issued for the land, until the expiration of five years from the date of such entry. By section 3, the register of the land office is required to note applications, entries, etc., on the tract books, plats, etc., of his office, etc. By section 6, the commissioner of the general land office was required to prepare and issue such rules and regulations, consistent with the act, as should be necessary and proper to carry its provisions into effect, etc.

By section 20, of a printed circular issued from the general land office, August 30th, 1872, upon payment of the fees and commissions, by a person applying to enter land under the homestead act, and amendments, the receiver was required to insure his receipt therefor, and furnish a duplicate to the claimant.

"We suppose that the receipt read in evidence on the trial was issued under regulations made and published by the commissioner.

The certificate must, we think, betaken a.s prima facie evidence that appellee complied with the requirements of the homestead act in making the entry.

Such entry invested him with an inchoate equitable title to the land, and, upon faithful observance of the provisions of the law in regard to settlement and cultivation for the continuous period of five years, and upon proper proof, etc., before the land officers, he would be entitled to patent a crtificate, upon which a patent would issue, vesting in him a complete legal title.

But upon making such entry, he certainly would be entitled to-the possession of the land, in order to make the settlement and cultivation required of him by the act ■ of Congress to complete-his right to a patent.

Upon such title, though but an inchoate equitable title (subject to be defeated by non-compliance with provisions of the act of Congress), and upon such right of possession, we think appellee could maintain ejectment, under the liberal provisions-of our statute, for possession of the land against one having no-better title or right of possession.

It seems that, at the time appellee made his entry, appellants-had a mill on one of the tracts embraced in his entry. Under-what right, or color of right, they entered upon this tract and-erected the mill, they did not show on the trial. For anything appearing to the contrary in this case, they were mere trespassers.

Second — The first paragraph of the answer was an attempt to-plead matter in abatement of the suit, under secs. 2267, 5216, Gantt’s Digest.

The plea should have alleged that the land was subject to assessment, that it was assessed for the taxes of some particular-year or years, sold for non-payment of taxes, etc., and purchased by appellants, etc.

Whatever else the statute may mean, it certainly does not mean, that where public lands are assessed and sold for taxes, which are not subject to taxation at all, and afterwards entered,. the person entering them must tender to the tax sale purchaser the, money paid by him, etc., and the value of the improvements, etc., before he can maintain an action for the lands. Haney v. Cole et al., 28 Ark., 303.

Judgment affirmed.


author: Harrison, J.:

text:
    Jefferson v. Hale, adm’r.
    3. Pleading: Allegations of value in trover.

    In an action of trover, the failure to allege the value of the property converted, will be cured by a verdict for the plaintiff.
    2. Tboveb: Bur dm of, proof in.

    Where scrip was deposited with a bailee, for safe keeping, proof of the bailment, in an action of trover for its conversion, does cast on the bailee the burden of showing a re-delivery to the bailor, the plaintiff must prove the conversion as well as the bailment.
    3. Damages: Measure of, in, trover.

    ffhe measure of damages in an action of trover, is the value of the property at the time of its conversion.
    APPEAL from Mississippi Circuit Court.
    Hon. L. L. Mack, Circuit Judge.

      Palmer, for appellant.

      Adams, contra.

   Harrison, J.:

This was an action by W. P. Hale, administrator of Josiah B. Murray, deceased, against J. T. Jefferson, surviving partner of the firm of Jefferson & Edrington, to recover the value of certain Arkansas State warrants, or scrip, and Mississippi County scrip^-$5,000 of the former, and $2,000 of the latter — deposited by his intestate with said firm and converted by them to their own use.

The State warrants were alleged in the complaint, to be worth sixty-five cents, and the county scrip, eighty-five cents on the dollar.

The defendant’s answer denied only the bailment, or that such deposit had been made with them, and the alleged values of the sci’ips.

The case was submitted to a jury, which returned a verdict for the plaintiffs, for $5,268.75.

Motions for a new trial, and in arrest of judgment, were filed by the defendant, and overruled; and he appealed.

The cause assigned in arrest of judgment, was the very indefinite one; that the complaint was not sufficient in law to support a judgment.

The particular objection, however, urged by the appellant’s counsel here, is, that the value of the scrips, at the time of conversion, was not averred.

This objection we consider, not true in point of fact. The averment of the values of the scrips, was not restricted to the time of bailment, and applied as Avell to the time of conversion as to that; and had there been no averment as to the value, at all, the omission would not have been fatal to the action, for a good cause, though defectively stated, Avould, nevertheless, have been shown, and the verdict would have cured the defective statement. 1 Chit. Plead., 673; Sevier v. Holliday, 2 Ark., 513; Martin v. Webb, 5 Ark., 73 ; Fry v. Baxter, 10 Mo., 302 ; Colbrook v. Merrill, 46 N. H., 160.

The motion for a new trial was upon two grounds:

First — That the court gave, at request of the plaintiff, an erroneous instruction to the jury; and,

Second — That the verdict was contrary to the evidence.

The evidence, or so much thereof as is material to be stated, was as folloAvs:

J. B. Best, testified for plaintiffs : That, Josiah B.Murray and' himself were in Memphis, on the 10th of June, 1872, and that Murray came to his room at the hotel, on the morning of tha day, to ascertain from him the amounts of money, State scrip, and county scrip, injoined in his, Murray’s, hands; witness was, at the time, clerk of Mississippi County, and it appears elsewhere in the evidence in the case, that Murray was sheriff. Witness gave him the estimated amount of each, and Murray then took from his satchel a lot of State and Mississippi County scrip, and he and , witness counted from it the requisite amount, about $2,600 of each kind, and put the same in two packages. Witness then, at Murray’s request, counted the remainder of the scrip. There were about $5,000 of the State, and a little over $2,000 of the county. After he had counted it, he put that also in two packages, which he pinned together so as to make one.

They then went to Jefferson & Edrington’s, whilst there, Murray loaned Jefferson & Edrington $5,000, for which they gave him an acknowledgment or obligation. The defendant handed the money to Mr. Bills, their book-keeper, to take to the bank; and as he was about starting, Murray said to him ; “Hold on; I will go with you, and deposit this package of scrip.” Edrington and the defendant both said, that there was no use to go to the bank; that they had a good safe, which was both fire and burglar proof, and it would be as safe there as at the bank, Murray thereupon handed the package, the same that contained the remainder of the scrip, after the $2,600 of State, and the $2,600 of county, or thereabouts, had been taken out, $5,000 of State scrip, and $2,000 of county scrip, to the witness, who handed it to the defendant, and he put it in the safe.

The witness and Murray left the office of Jefferson & Edrihgton, about 3 or 4 o’clock that evening, and were together the whole of that afternoon. They came up home on the same boat, and Murray was never again in -Memphis ; he died on the 4th of September following.

He further testified that Arkansas State warrants, or State scrip, was worth at- that time sixty-five cents, and Mississippi County scrip from eighty-five to eighty-seven and a half cents on the dollar.

And, also, that he, in March, 1874, met Bills, the bookkeeper of Jefferson & Edrington, in Memphis, and asked him what had become of the scrip, and he told him that it had been delivered to John Matthews; and he also saw* the defendant, and asked him the same question, and he gave the same answer. Matthews, when he heard that they said the .scrip had been turned over to him, denied it, and he and the witness went to Memphis to see the defendant and Bills about it. At first they insisted it had been delivered to Matthews ; but after considerable conversation and some words, they admitted it had not been. This witness, it appears, married the widow of Murray.

The plaintiff testified that he demanded the scrip of the defendant, on the 14th of April, 1875, the day, but before, the suit was brought. He said he knew nothing about it; if it was ever left with them Edrington got it.

John Matthews testified, for the defendant, that Murray was mortally wounded in a difficulty with one Fitzpatrick, in the latter part of August, 1872, and died on the 4th of September thereafter. When wounded he was carried to the witness’ house. A short time after .he had been there, he said to the witness he wished him, if he should die, to settle up his business. After it became apparent that he would die, his physician asked him if he desired witness to administer upon his estate, and he replied that he did. Witness then drew up a chair to the lounge upon which he was lying, and requested him to give him a statement of such matters of his business that he had no 'written evidence of, with everybody he owed, and everybody owing him. He gave a statement of several matters, which the witness reduced to writing and, asking him for his papers, which had been put aw7ay after he had been brought to the house, he handed witness a receipt of Jefferson &\Edrington for $5,000 loaned them, and told him he would find, in a pigeon-hole in top part of his secretary at his house, State and county scrip, and that his books and papers there would show all his other business. After his death, he procured from his widow the keys of his secretary, and found in it two packages of State and county scrip.

On account of the disorders and troubles then existing in the county, he put the two packages, with other scrip belonging to different persons, and his own books and papers, in a box and sent them to Memphis. The box was left at the store of Jefferson & Edrington. After the troubles in the county were over, he went to Memphis and got the box. He took all the scrip out, and carried it, Jefferson going with him, and deposited, it in the bank.. Sometime afterwards, he withdrew it from the bank, and with the exception of some belonging to - Edrington, brought it home. The same evening he returned home, he, in the presence of Murray’s widow, opened the two packages he found in the secretary, and counted the scrip in them, which corresponded witu the amounts endorsed by Murray on the packages, the whole about $7,000 — about $3,200 in State, and the remainder in county. He was then administrator of Murray’s estate, and he paid out about $2,500 in the two kinds of scrip, to the sheriff, on account of the taxes that had been enjoined, by order of the County Court, and turned the remainder over to the plaintiff, who succeeded him in the administration.

Nelson A. Bills testified, for defendant, that he was bookkeeper for Jefferson & Edrington, on the 10th. of June, 1872, the time of the alleged deposit of the scrip with them, and until December of that year ; and he had no knowledge of any scrip having been left with them by Murray; that he handled all the means of the house, and would certainly have known it if it had been done.

The instruction to the jury complained of was as follows:

If you find from the evidence that Jonah B. Murray delivered to Jefferson & Edrington the scrips, mentioned in the complaint, for safe keeping, and that the defendant is the surviving partner of said firm of Jefferson & Edrington, then it is incumbent on him to show, by proof, that they were re-delivered to him, or his administrator; and, unless he has so shown, you will find for the plaintiff; and will assess his damages at the value of the scrips, as shown by the proof, with interest thereon at six per cent, per annum from the time demand was made therefor.”

This instruction was evidently wrong. The burden of the proof was upon the plaintiff', who, to maintain his action, was required to establish by evidence every material allegation of his complaint not acknowledged by the defendant’s answer, and it was as requisite for him to prove the conversion of the scrip as it was the bailment of it; and proof of the bailment did not dispense with proof of the conversion, or cast upon the defendant to exonerate himself from liability, the burden of proving that he had re-delivered it, or, in other words, had not converted it.

The measure of damages, in cases like the present, is the value of the property at the time of the conversion, as held in Reyburn v. Pryor, 14 Ark., 505.

But inasmuch as the case must, for the error just shown, be reversed, and remanded for a new trial, we do not think it wo'rth while to express an opinion in further notice of the instruction, whether the value, at the time of the deposit, if proven, was so continuing as to afford a presumption as to the value, three years after, at the time of the alleged conversion.

Nor need we, for the same reason, say anything concerning the-sufficiency of the evidence to warrant the verdict, or the other' ground assigned in the motion for a new trial.

The judgment of the court below is reversed, and the cause remanded to it, with instructions to grant the defendant a new trial, and to proceed according to law, and not inconsistent with, this opinion.


text:
    Williams vs. Rivercomb, et al.
    Exemption: What law governs as to wife's debt dum sola.

    A married in 1870, his wife owed a debt which was contracted in 1866, upon which judgment was recovered against both of them: Held, that as to the husband the debt was contracted at the date of the marriage, and he was entitled to the benefit of the exemption law then in force, while the-exemptions of the wife, as to her separate property, would be governed by the law in force at the time she contracted the debt.
    APPEAL from Washington Circuit Court.
    Hon. J. M. Pittman, Circuit Judge.

      J. B. Walker, for appellant.
    No counsel for appellee.
   English, Ch. J.:

On the 6th of August, 1874, Robert R. Williams brought replevin, in the Washington Circuit Court, against George Rivercomb, William Mclllroy and .Joseph Williams, for 129 bushels of wheat, a black sow, eight shoats, five pork hogs, a white cow and calf, two heifers, and a bay horse mule.

The defendant Mclllroy filed a separate answer of two paragraphs, controverting plaintiffs right to possession of the property, and denying its unlawful detention.

The defendants, Rivercomb and Joseph Williams, filed a joint answer of two paragraphs, the first denying plaintiff’s right to possession of the property, and the second in substance:

That the property sued for was, by defendant Rivercomb, as deputy sheriff of Washington County, levied upon and taken, into possession, by virtue of a writ of execution against plaintiff arid Rachel Williams, in favor of said William Mc-Illroy, issued by .the Clerk of the Circuit Court of Washington County, directed to the sheriff of said county, and that said property, at the time the same was so levied on, was subject to seizure and sale for the satisfaction of said execution.

The cause was submitted to the court, sitting as a jury, upon an agreed statement of facts, as follows:

“That the property in controversy, at the time of the leyy of Melllroy’s execution thereon in 1874, belonged to plaintiff. That the wife of plaintiff, in 1866 (when sole) was indebted to defendant Melllroy; and that in 1870 she married the plaintiff Williams, and that thereafter judgment was obtained against her and Williams, her husband, and execution issued and levied on the property in controversy; and that by virtue of such levy the property was taken into the possession of defendants before the commencement of the suit, and advertised for sale. That plaintiff filed his schedule in proper form, and within the time required by law, claiming the property to be exempt from execution and sale under the Constitution of-1868, and the law framed in conformity thereto. And that Williams (plaintiff) is entitled to a recovery herein, if he was entitled by law to schedule, and claim exemption under the Constitution of 1868, and the laws enacted since that time. That if the exemption laws previous to the Constitution of 1868, alone are applicable in the collection of such judgments, defendants are entitled to recover. That the property is of the value specified in the affidavit of plaintiff for replevin, to-wit: $214.25.”

The plaintiff asked the court to declare the law to be that he-was entitled to schedule, and claim the property to be exempt, from execution under the Constitution of 1868, and the laws-framed in conformity thereto, but the court refused so to declare the law.

Plaintiffs also asked the court to declare, that upon the facts,, he was entitled to recover, which the court refused.

The court declared the law to be for the defendants, and found the issues in their favor.

Plaintiff moved for a new trial, which was overruled, and final judgment rendered against him, and he took a bill of exceptions, and appealed.

By section 1, article 12, Constitution of 1868: “The personal property of any resident of this State, to the value of f2,000,, to be selected by such resident, shall be exempt from sale on execution or other final process of any_court, issued for the collection of any debt, contracted after the adoption of this Constitution.”

The act of March 28th, 1871, provided for the scheduling of' property claimed to be exempted from execution, etc. Gantt’s Digest, sections 2635 to 2642.

The wife of appellant, when a femme sole, contracted the debt, (by note it seems) in the year 1866. Had she never married-appellant, and had judgment been obtained against her, after the-adoption of the Constitution of 1868, execution issued, and levied on her goods, she could not have claimed the benefit of the exemption, because she contracted the debt before the adoption of the: Constitution.

Moreover, judgment having been taken against her and appellant, after their marriage in 1870, and execution issued against, both of them, had her separate property been levied upon, as it. might have been, if she had any, she could not have claimed the benefit of the exemption, because the debt was contracted by her before the adoption of the Constitution of 1868. 2 Bishop’s Law of Married Women, section 52.

But the appellant was in no way liable upon the debt until he married the woman who contracted the debt, which Was in 1870, and after the adoption of the Constitution of 1868. By the marriage he became liable to pay the wife’s antenuptial debt. In legal effect he then assumed the payment of the debt, in other words, in effect, by the marriage, he contracted to -pay the debt, because the law imposed that duty upon him as an incident of the marriage. Harrison v. Trader and wife, 27 Ark., 288.

Had the appellant, in 1870, instead of marrying the maker of the note, endorsed it, or guaranteed its payment, his undertaking, or contract, being subsequent to the adoption of the Constitution of 1868, he would have been entited to the benefit of the exemptions provided for by it, while the maker of the note would not, her contract being prior to the adoption of the Constitution. Ross, adm’r., v. Jones, 22 Wallace, 576.

The case thus put, by way of illustration, is, we think, analogous to the one before us.

Exemption laws relate to the remedy (Newell v. Heyden, 8 Iowa, 143) and the exemption provided for by the Constitution of 1868, being a law of the remedy at the time appellant bound himself, by marriage, to pay the wife’s debt, we think he was entitled to the benefit of the exemption as a legal incident to his undertaking.

Judgment reversed, and cause remanded, with instructions to the court below to grant appellant a new trial.


text:
    Dortch et al. vs. Robinson et al.
    1. Unlawful Detainer:
    The act of March 2d, 1875, to establish the law of forcible entry and detainer, is but a re-enactment of Ch. 72 of Gould’s Digest, under which it was held by this court that unlawful detainer would not lie on the right of possession meroly, but the relation of landlord and tenant, express or implied, must exist between the iilaintiff and defendant.
    2. ----: Sheriff’s Deed, eta. :

    The sheriff is not authorized to make a ueed to land sold under execution, until the expiration of twelve months from the sale, and a deed made less than twelve months from the sale will not entitle the grantor to maintain unlawful detainer for the land. It is by no means clear whether sec. 2709 of Gould’s Digest, authorizing purchasers at execution sale to resort to that remedy, was not repealed by the act of March 2d, 1875, regulating the action, or that it applies to sales under proceedings by attachment, or under judgments not in personam.

    APPEAL from Phillips Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Tappan & ITornor and Hughes, for appellant.

      Wassell & Moore, contra.

        Bradley v. Hume, 18 Ark., 284; Frank et al. v. Hedrick, ib., 304.

   English, Ch. J.:

In September, 1875, W. P. Dortch and wife, Medora, Laura B. Robinson and Aaron V. Brown brought an action of unlawful'detainer, in the Phillips Circuit Court, against Phillip Robinson and others for the possession of certain lands, situate in said county.

The complaint alleges, in substance :

That plaintiffs, on the 18th January, 1868, recovered against Cynthia N. Brown, in said Circuit Court, a judgment, by attachment, for $8,000, .for their damages, with interest thereon, etc. That there was attached, in said suit, the following described real estate, etc. (Here follows a description of the lands.)' That it was afterwards, on the 14th day of the January term, 1875, of said Circuit Court, ordered and adjudged that the sheriff of said county sell said real estate, at the door of the court house, in the city of Helena, upon first giviúg thirty days’ notice of the time, terms and place of sale, as required by law, upon a credit of three and twelve months. That afterwards, on the 2d of March, 1875, there was issued, out of the office of the clerk of said Circuit Court, an order of sale, signed by the clerk, and sealed with the seal of said court, and directed to the sheriff of said county of Phillips, reciting said judgment, and the levy of said attachment on said property, and the condemnation thereof by the judgment and order of said court, to be sold for the payment of said judgment, and commanding said sheriff to sell said real estate, at the door of the court house, in said city of Helena, on the 10th day of May, 1875, upon giving thirty days’ notice of the time, terms and - place of sale, as required by law, upon a credit of three months. That said sheriff proceeded, on the 10th day of May, 1875, in accordance with said order, after giving due and legal notice of the sale, to sell said lands in front of the. court house door, etc., and at such sale the plaintiffs became the purehásers thereof, for the aggregate sum and price of $7,000, they being the highest and best bidders for the same. That said sum was paid by them, and said sale was confirmed by said Circuit Court, at the May term thereof, 1875; and that said sheriff executed to plaintiffs a deed for said lands, which is exhibited, and made part of the complaint. That defendants are in possession of said lands, and hold the same as tenants of said Cynthia N. Brown. That plaintiffs have been lawfully entitled to the possession of said lands since the execution of said deed, and are now lawfully entitled to the possession thereof, and that defendants unlawfully detain the same, after lawful demand therefor made.

Prayer of judgment for the lands, etc., damages, etc.

Upon affidavit, bond, etc., a writ of possession was issued, under which the defendants were dispossessed, by the sheriff, and plaintiffs placed in possession of the lands.

Cynthia N. Brown, on her motion, was made defendant, and demurred to the complaint on the following grounds:

First — The complaint shows that, in the determination of this suit, the title in fee simple, as between plaintiffs and defendant, Cynthia N. Brown, must be adjudicated, which cannot be done in an action of unlawful detainer.

Second — That unlawful and forcible detainer does not lie, by a purchaser of lands at a sale under attachment, to get possession of said lands from the attachment debtor.

Third — That the deed upon which the plaintiffs rely is void, and of no effect.

Fourth — That plaintiffs do not allege that they were ever possessed of the premises.

The court sustained the demurrer, and plaintiffs resting, judgment was rendered for defendants, a writ of restitution awarded, damages assessed, etc., and plaintiffs appealed.

The act of March 2d, 1875, entitled “An Act to establish the law of forcible entry and detainer,” etc. (Acts of 1874-5, p. 196) which was in force when this suit was commenced, is a literal reenactment of Ch. 72, Gould’s Digest, title “Forcible Entry and Detainer.” This act expressly repeals Ch. 61, Gantt’s Digest, title “ Forcible Entry and Detainer,” made up of provisions taken from the Civil Code and amendments; and it also repeals all laws and parts of laws inconsistent with the act.

Under the law as it stood in Gould’s Digest, Ch. 72, it was decided that an unlawful detainer would not lie on the right of possession merely, but the relation of landlord and tenant, express or implied, must exist between plaintiff and defendant to entitle the former to maintain this form of action against the latter. Bradley v. Hume, 18 Ark., 284; Frank et al v. Hedrick, ib. 304.

In this case the complaint does not show that appellants were ever in possession of the lands, or that appellees held under them by virtue of any contract, or that the relation of landlord and tenant, in any manner, express or implied, existed • between appellants and appellees.

Appellants attempted to maintain unlawful detainer upon a mere alleged right of possession under the sheriff’s deed; in other words, to make this form of action answer the purpose and scope of ejectment.

It was. well said by Mr. Justice Scott, in Sumner v. Spencer, 9 Ark., 444, that: “This remedy (forcible entry and detainer),, like all of the class which changes possession of property before-the defendant has had an opportunity to be heard in a court of' justice, is strongly in derogation of common right; and, although its operation will be often beneficent, it will be, perhaps, as. often found an instrument of injustice and oppression, and possi-, bly sometimes a means of irreparable mischief, and, according to well settled rules, it must, so far as the plaintiff is concerned, be kept strictly within the provisions of the statute which creates and', qualifies it.”

In this case, upon an affidavit and bond made and executed in behalf of appellants, the appellees were dispossessed of the lands, on the 24th of September, 1875, during the cropping season, in advance of trial and judgment, the appellant’s claiming no other right of possession, than that given them by the sheriff’s deed exhibited with their complaint, which may, or may not be valid.

The counsel for appellants insist that they had the right to bring this action under sec. 2709, Gantt’s Digest, p. 521, which the digester has made to read as follows : “ Sec. 2709. Upon the execution of the deed, the grantee, if possession is not delivered within ten days, may proceed by forcible detainer, to be put in possession thereof.”

This is a fragment of sec. 697 Civil Code, title “ Execution and Redemption,” and the whole section is as follows: “ Sec. 697. After the time for redemption has expired, the sheriff, or his successor, shall convey by deed the property sold under the provisions of this title to the person entitled thereto. Upon which, such grantee, if possession is not delivered within ten days, may proceed, by forcible detainer to be put in possession thereof.” Civil Code, p. 209.

The digester divided this section of the Code, and of part of it, the first sentence, and of matter taken from the Revised Statutes, he made sec. 2703 of the Digest, title “ Execution,” and of the remainder of the section, he made, by adding some words, section 2709 of the Digest, same title as above copied

Bringing the parts of the Code, thus separated by the digester, again into companionship, if the clause relating to forcible detainer is not inconsistent with the act of March 2d, 1875, and repealed by it, and if it does not apply exclusively to sales under executions issued upon judgment in personam, and if it applies to sales made under proceedings by attachment, as in this case, which is by no means clear, still, taking this clause in connection with the preceding sentence of the section, that is, looking at the entire section, it does not help the appellant’s case; for, by the first sentence of the section, the sheriff is not authorized to make the deed until after the time for redemption has expired, which is twelve months from the sale, Gantt’s Digest, sec. 2697. And the complaint avers that the sale was made on the 10th of May, 1875, and the deed made an exhibit to the complaint bears date 31st of May, 1875, and the suit was commenced in September following.

So that in no view, does the complaint show a right of action in the form of remedy adopted by appellants in this case, and the court below did not err in sustaining the demurrer to the complaint. *

We are not disposed to go further, and decide whether the deed relied on by appellants is valid, or invalid from premature execution, or otherwise.

That may be done in a form of action where all of the proceedings in the attachment suit, as well as the deed, may properly come before the court, and where the court will be authorized to adjudicate upon the validity of appellant’s title, which cannot, properly be done in the form of action adopted in this case.

Judgment affirmed.


author: Walker, J.:

text:
    Bruce et al. vs. Benedict.
    1. Demurrer.
    Where a general demurrer is filed to an answer containing several paragraphs, the demurrer should be overruled if any one paragraph presents, a good defense. The court must pass upon the demurrer as an entirety, and cannot overrule it as to one paragraph and sustain it as to another.
    2. ——-.
    In an action of trespass, the complaint alleged that property of the plaintiff which was exempt from execution, was unlawfully seized and sola by the defendants, under an execution against the plaintiff, but tailed to show the date of the debt; that a schedule was filed under the statute, etc., upon demurrer to an answer filed to the complaint: Held, that the latter was defective, and, by relation, the demurrer should have been sustained as to it; but qurrce-. If a demurrer had been interposed to the complaint, should.the allegations in regard to the levy, exemption, etc., have been treated as surplusage, and the remaining allegations sustained as a good cause of action?
    APPEAL from Faulkner Circuit Court.
    Hon. J. J. Clendenin, Circuit Judge.

      Gantt, for appellants.

      Wilshire & Allen, contra.

   Walker, J.:

This was an action at law, brought in the Faulkner Circuit Court by Louisa W. Benedict against Bruce, Lincoln and Mau- . * pm.

The complaint is, that on the 26th day of September, 1874, the plaintiff owned and was possessed of personal property of the value of $60, which, as she avers, was exempt from sale under execution for all debts contracted prior to the Constitution of 1874, under and by virtue of the provisions of the Constitution of Arkansas, adopted April 1, 1868; and that, at the time of the levy and sale, sh'e was not possessed or the owner of property exceeding in value the sum of $545.25, notwithstanding which, the defendants, Bruce, Lincoln and Steele, combining and colluding with defendant Maupin to defraud plaintiff, procured and advised Maupin to sell the said personal property of the plaintiff by virtue of a pretended execution, from whieli the property was ■exempt by law, issued on the 9th of December, 1874, by B. N. Griffith, a justice of the peace for said county, on a judgment wherein Bruce and Lincoln were plaintiffs, and plaintiff was defendant; and that defendants Bruce, Lincoln and Steele, unlawfully combining with Maupin, that he (Maupin) as constable, unlawfully took, seized and sold the aforesaid property, to the injury and damage of the defendant $160.

The defendants, without demurring, answered the complaint, in which, in three distinct paragraphs, they deny : First — That plaintiff was unlawfully damaged in the sum of $160; they admit the possession and ownership of the property, as alleged, and, in general terms, deny that it was exempt from levy and sale under execution, for debts contracted prior to the adoption of the Constitution of 1874.

The defense interposed in paragraph two is, that Maupin, as constable, by virtue of a legal and valid execution, in favor of Bruce and Lincoln against the plaintiff, directed to him as constable, levied upon and sold the property in the plaintiff’s declaration, and deny that it was exempt from execution.

The third paragraph sets up as defense, that the plaintiff filed no schedule of her property with the justice who issued the execution under which the property was sold; that she obtained no supersedeas from the justice, and gave no notice to the constable of the exemption of said property.

Defendants admit that plaintiff was not possessed of personal property exceeding in value $545.25, but that they were not apprised of said fact by plaintiff before levy and sale.

To this answer the plaintiff demurred.

The grounds of demurrer are, that the defense set forth in defendants’ answers do not constitute a legal defense. The court sustained the demurrer to the answers, the defendants excepted, and declined to answer further.

The court, sitting as a jury, assessed the plaintiff’s damages to $60, and rendered jndgment for that amount. The defendants moved for a new trial, on the grounds that the court erred in sustaining the demurrer to their answer; the motion was-overruled, and defendants appealed to this court.

The sufficiency of the pleadings is presented by the demurrer, and presents the only subject for consideration.

If the plaintiff had been content to state, in her petition, the facts necessary to entitle her to recover in an action of trespass at the common law, and the defendants, in their answer, had justified under the execution levied upon the property by the officer, an issue would have been formed under which, under the Code practice, she would have been permitted to introduce evidence to prove that the property levied upon and taken from her possession was exempt from execution; she would have been entitled to do this, because it is matter which, under the common law form of pleading, should have been presented by replication, which is disallowed under the Code practice, therefore the facts, as a necessity, must be given in evidence, or so fully stated in the petition as to put them in issue by the answer; and the question of doubt is as to whether, when the plaintiff attempts to set up this exemption in her petition (as she has done in this instance), she should not be held to state all of the facts necessary to show a valid exemption; and, as she has failed to do so in this instance, whether we should treat all the averments in reference to an exemption as surplusage, and sustain the petition as containing a good cause of action in trespass.

If the demurrer in this instance had been to the petition before answer, perhaps, under the liberal Code practice of amendments, this might have been done; but, in this case, the defendants have answered to the petition in three paragraphs, one of which is responsive to the allegations of exemption.

Defendants deny that the property was exempt; that it had not been scheduled and set apart as exempt from execution; that it was levied upon and sold without notice that plaintiff claimed an exemption upon it.

If the plaintiff intended to rest her claim to this property as exempt from sale under execution, as she has attempted to do, she should have stated all the necessary facts to have entitled her to exemption, setting forth the time at which the debt upon which she was sued was contracted, so as to bring it within the provisions of the constitution, which exempts a certain amount of personal property from sale under execution, and in addition to this, that she had filed her schedule of property, as required under sec. 2635 of Gantt’s Digest.

The defendants’ answer was not only a sufficient response to the allegations which were made, but also to such as should have been made to entitle plaintiff to an exemption; it denied the existence of all the necessary facts to constitute a valid exemption.

But, should this matter of exemption be treated as surplusage, then, in another paragraph, the answer sets up affirmatively that judgment was rendered against the plaintiff, in a court of competent jurisdiction, upon which execution issued, directed to defendant, Maupin as constable, in obedience to which he levied upon the property of defendant in execution, the plaintiff in this suit, so that, whether considered in one or the other form, the defendants had fully answered.

The remaining paragraph of the answer was clearly defective; a denial that the property was unlawfully damaged $160; admitting the possession of the property in the defendant, and a general statement that the property was not exempt from execution, was wholly insufficient, and if a separate demurrer to that paragraph had been filed, the demurrer should have been sustained, unless, by reason of the defects in. the petition, by relation, judgment should have been rendered against the' party committing the first error in the pleading.

But the demurrer is general, and applies to all of the paragraphs. If any one of them is sufficient, the demurrer should have been overruled.

The pleader must stand upon his general proposition, and the court must pass upon it as an entirety, and cannot overrule the demurrer, as to one, and sustain it as to another. Archer v. National Insurance Company, 2 Bush., 226.

If we decide that the demurrer should have been sustained to the answer, which we cannot do, then we must sustain an insufficient petition, and overrule a good defense to it, even when made perfect.

Under this state of case, as the plaintiff committed the first error, we think judgment should be rendered upon demurrer to the sufficiency of the petition. Bradley v. Hume, 18 Ark., 294; Pettus v. Harris, 11 Ark. Because, should we overrule the demurrer under the state of pleadings presented, the plaintiff could not avail herself of her right of exemption without an amendment of her petition.

In consideration of all which, the judgment of the court below must be reversed and set aside, and the cause remanded, with leave to the plaintiff to amend her petition, so as to omit all matters in reference to the levy of the execution, and exemption of the property, to which the defendants may answer, and if the plaintiff, in fact, is entitled to an exemption of the property, she may avail herself of the benefit of it by proper evidence upon the trial.


author: Walken, J.:

text:
    Jenkins et al. vs. Tobin et al.
    1. Deposition: Authentication, etc.

    Where depositions are taken before a justice of the peace in another State a certificate of authentication of his official character should accompany the deposition.
    2. Evidence: Burden of proof under issue of devisavit vel non.

    •Under the issue of devisavit vel non, where the inquiry is whether the testator was of sound and disposing mind, and free from undue influence, at the time of executing the will, the burden of proof is on the plaintiff.
    3. Devisavit vel non: Evidence, etc.

    An instruction to the following effect held correct under an issue of devisavit vel non: Evidence that the testator was weak and imbecile from age and disease to the extent that he was incapable of attending to his ordinary business, and in that condition was induced'to abandon attorneys previously employed by him, that the will was written by the attorney of the principal devisee, and witnessed by said attorney, and the wife, and a relative of said devisee when other disinterested parties were near and could have been conveniently called to witness it, may be considered by the jury in determining whether the will was obtained by undue influence or not.

      4.--: Same. Instruction upon.

    An instruction under an issue of demsavit vel non which coupled together a number of circumstances having a bearing on the capacity of the testator at the time of making the will, and announced that they were all strong circumstances to disprove capacity, was erroneous; the circumstances being admitted, their weight should have been left to the jury.
    (For various circumstances admissible under the issue of devisavit vet non, as bearing upon the capacity and ¡freedom of will of a testator, see the opinion.)
    APPEAL from Desha Circuit Court.
    Hon. L. A. Pindall, Special Judge.

      Carlton and Bell, for appellants.

      Carroll & Jones, and Garland, contra.

   Walken, J.:

This case was brought before us upon appeal, and was decided at the November term, 1874, reported in 29 vol. Ark. Rep., p. 151.

By reference to the decision then made, the facts will be found fully set forth, and several of the questions now presented for consideration settled.

The judgment of the court was set aside and the cause remanded to be tried anew. There was a change of venue from J efferson to Desha County, where a trial was had and a verdict rendered in favor of the plaintiffs, upon which judgment was rendered in their favor; defendants moved for a new trial, which was overruled, exceptions taken, and the case again brought before us for consideration.

It is first objected that the court erred in overruling defendants’ motion to dismiss the suit for want of jurisdiction.

Suit was brought in the Circuit Court on the 21st of July, 1871, after the Code practice went into effect, under which the remedy was by appeal from the judgment of the Probate Court, before which the will was probated.

The prayer of the petition was, that an issue be formed to be tried by a jury, as to whether the instrument probated, was or not the will of Nathan Jenkins; the will was probated on the 6th November, 1868, at which time the right to proceed by petition to test the validity of the will was given, and although the petition was filed after the Code practice -was declared to be in force, suit was brought within the time given by the statute after the will was probated, to file such petition.

Numerous authorities have been cited by appellant’s counsel to show that, after the Code practice went in force, the Circuit Court had jurisdiction no longer by. petition, but we need not consider them, because the same question was heretofore presented and disposed of when the case was submitted for our consideration, at the November term, 1874, and for that reason -was properly overruled by the court below.

The second ground of objection is, that the court erred in suppressing the deposition of Laura B. Cooper. The deposition was taken before a justice of the peace, in the State of Pennsylvania, and was suppressed because there was no certificate of authentication, showing that the person who took the deposition and styled himself justice of the peace, was in fact such.

Defendant’s counsel concede that the objection would be good but for an agreement by counsel, under which the deposition was taken. It seems to have been agreed by the counsel on both sides that depositions might be taken between certain hours at a day and place therein named -without a commission, before any officer qualified by law to take the same, reserving all questions of relevancy and competency.

Defendants’ counsel contend that, as the relevancy and competency of the evidence was alone reserved, all other irregularities were waived.

Such, we think, was not the effect of the agreement. The necessity of taking the depositions by commission -was waived, and time, place and a qualified officer were agreed upon, but certainly it could not h^ve been intended by the panties, that proof of the qualification of the officer who took the deposition, should be dispensed with. The depositions were to be taken before one qualified by law to take them; the fact that he subscribed himself an officer was no evidence that he was such, and because there was no certificate showing that he was an officer, the depositions were properly suppressed.

The third exception taken by the appellant was the giving of the following instruction by the court in lieu of the plaintiff’s first instruction: “A devise is the direction of a testator of sound mind as to the disposition of his property after his death, and before a will can be established upon an issue of demsavit vel non, it must be made to appear to the satisfaction of a jury that the testator was twenty-one years old and of sound mind; these facts must be established to the satisfaction of the jury from the proofs in the case by the party seeking to establish the will unless it sufficiently appears from the evidence by the plaintiffs.”

This instruction was clearly erroneous; whatever may have been the decision of other courts, this court has so repeatedly held that a party who seeks to set aside a will which has once been established in the Probate Court, upon an allegation that from mental incapacity or from other' sufficient cause, the will is invalid, assumes the affirmative, and is entitled to conclude the argument before the jury, leaves it no longer an open question. Rogers v. Diamond, 13 Ark., 479; McDaniel v. Crosby et al., 19 Ark., 533, and in our former decision on this case, 29 Ark., 151.

The questions at issue were narrowed to an inquiry as to whether the testator was or not-of sound and disposing mind and memory, and free from influence at the time he executed the will; questions which the plaintiff assumed to prove, and which the court, by its instructions, wrongfully imposed upon the defendant.

If the burden of proof devolved upon the defendants, as held by the court, then certainly they were entitled to conclude the argument; but as such was not the case, it was not error to permit the plaintiff to conclude, so expressly held in this case when heretofore presented.

The court gave the sixth instruction of plaintiffs over defendants’ objection, which is as follows: “If the jury believe, from the evidence in the cause, that Nathan Jenkins was weak and imbecile in mind from old age and disease, so much so that he was incapable of attending to his ordinary business affairs, and that, whilst he was in this condition, he was induced to abandon the attorneys who had previously attended to his business affairs, and that the attorney of William H. Jenkins, who was the principal devisee under the will now in contest, was called in to write said will, and that said will was attested only by said attorney of William H. Jenkins and his wife, and E. L. Colburn, who was the relative of William H. Jenkins, when other parties not interested in said will were about the place, and could have been conveniently called to have witnessed the same, this may be taken into consideration by the jury as a circumstance to determine whether said will was obtained by undue, influence or not.”

We think this instruction properly given, and is fully sustained by our previous decision in this case.

The remaining objection is to the giving of the eleventh instruction asked by the plaintiff, which is:

“That if the jury find, from the evidence, that, at the time of making the will, the testator was possessed of a large amount of real and personal property, of the value of $15,000 or $20,000, and that in this will he gave all of his large estate to his two sons and their wives, and made no provision for the children of his deceased daughters, Margaret Tobin and Nancy Barnes, for the reason that the testator had, before the date of making said will, given to his two daughters property and effects more in value than the estate he was then bequeathing to his two sons and their wives ; and they should further find that said testator had not given to his two daughters property equal in value to the estate bequeathed in his will, but, on the contrary, had given to his daughters only a small amount in value in comparison to the property bequeathed in the will, say not more than one-tentli part in value ; and should further find that the testator, at the time of making his will, was about eighty years old, and in feeble health, and that said sons and their wives were present at the making of said will, and that the children of his two daughters were absent; and further that- one of said sons went after the attorney who drafted the will, and that E. L. Colburn was a brother-in-law of said William H. Jenkins, and living on the place at the time, and was called to be one of the witnesses to said will, while there were other persons on the place and in the vicinity, no way connected or akin to the two sons and their wives, who could have been called to witness said will, these would all b® strong circumstances, which would go to establish that, either at the time the will was made, the testator was laboring under undue influences, or that he was not of sound mind and disposing memory.”

The facts and circumstances, if given in evidence, might well have all been considered by the jury as tending to prove an undue influence, or an incapacity of the testator to make the will at the time it was made, and perhaps all of them taken together might be called strong,” but we think the court erred in instructing that all the circumstances were strong.

The admissibility of circumstantial evidence tending to prove a fact, even when weak and remote, is still admissible as evidence ; but, when collected and considered together, they may become as strong and convincing to the mind, of the existence of the fact intended to be proven, as direct evidence would; and it should be remembered that proof of sanity, or insanity, mind, or lack of mind, are most frequently to be determined by circumstantial evidence.

The court should have reformed this instruction, so as not to leave an impression upon the jury that the circumstances were all strong,” but to have left it to the jury, who were instructed to receive them as evidence, to weigh them in connection with all other circumstances in relation to the same matter, and to determine, upon due consideration, whether, taken together, they were sufficiently strong to enable them to reach the conclusion that the testator, at the time he made the will, was induced to do so by such undue influences as were held to be sufficient, in the the opinion previously delivered in this case, or was not of sound and disposing mind at the time the will was executed.

Because, if they should find the one, or the other, or both propositions to be true, then they should find the issue for the plaintiff.

The first instruction asked by the defendant, and refused to be given by the court, has already been disposed of.

The eleventh instruction asked for by the defendant, and refused by the court, is as follows:

If the jury believe, from the evidence, that Nathan Jenkins, in making a will in 1862, made, substantially, the same statements as to the advances made to his elder children, as were made in the will in question, and that his sanity or capacity was not questioned at the time of making the will in 1862; and they further believe that Nathan Jenkins was a man of truth and veracity, they may take these circumstances into consideration in forming their opinion as to the capacity of the testator, and the alleged undue influence, and are the judges of the means and information of said Nathan Jenkins, and the other witnesses on the facts of these advances.”

If, in truth, the first will was made at a time when the testator was of sound mind, and he did make, substantially, the' same statements therein as to the advancements made to his children, as was made in the last will, which is assumed to have been made when of unsound mind, the recitals in the first will were proper evidence to go to the jury, as tending to show that the testator was in disposing mind and memory when he made the last will. Such conclusion, however, is not to be drawn from the recitals in one clause of the will, but all of its provisions must be considered together, and, although there may be a different disposition of the testator’s property in the last from that made in the first will, this circumstance alone may be entitled to but little consideration; it is often necessary and proper that such changes in the last will be made as the changed circumstances of the testator, or of his devisees, may render just and proper, and such changes may be explained or accounted for, or the reverse, by parol evidence; but if the reasons and inducements for making certain changes in the disposition of the testator’s property in the first will, made when he is shown to be of sound and disposing mind, are given, and a certain disposition of his property made in accordance therewith, and, in the last will, different reasons are assigned for a disposition of the same property, or a different disposition of the property itself, then it would be a question whether the recitals in the first will would not lessen, rather than increase the probability, that the testator was of sound and disposing mind when the last will was made.

The question as to whether the testator was a man of truth or not, was not properly a question to be submitted to the jury under the issue formed ; it could have no reference to the capacity, or state of mind of the testator. With- this qualification we think the instruction should have been given.

The objection, that the jury found contrary to the evidence, will not be considered, because, from the view which we take of the case, it must be remanded for a new trial, and we prefer to express no further opinion as regards the- weight of the evidence, or its sufficiency to entitle the plaintiffs to recover, than that, if this was the only question to be considered, we would not, for that reason, set aside the verdict; nor do we deem it necessary or proper to go at length into the reasons by which we arrive at our conclusions upon the material points discussed, because they were fully considered in our former opinion.

It is to be regretted that, for a single misapprehension of the court below, as to what our decision was upon the question as to whether the plaintiffs or defendants should assume the affirmative, should have induced the court to hold that the affirmative was upon the defendants, and, at the same time, denied them the right of conclusion before the jury. This decision was materially prejudicial to the rights of the defendants. To what extent it influenced the verdict of the jury, we are unable to say, but must hold it to be an error, for which the judgment must be set aside and a new trial awarded, and the cause remanded for further proceedings according to law, and not inconsistent with this opinion.


author: Harrison, J.;

text:
    Spain vs. Johnson et al.
    1. Tax Sale:
    Under the revenue law in force in 1S67, it was only as to lands owned by-non-residents, that the County Court was authorized, upon the failure oí the collector to sell on the day appointed by law, to direct the sale to be had on a different day.
    2. --: Collector’s deed.

    Where a tax deed relied on in an action of ejectment, fails to show for what year the lands were assessed, that the tracts were assessed separately, or the amount of taxes due on each; and shows that the several tracts were sold together, it is illegal and void.

      3.---: Tender before suit; waiver, ete.

    In an action to recover land held by the defendant under a tax sale, a failure on the part of the plaintiff to make the tender required by statute, before bringing the suit, must be pleaded in abatement, or it will be regarded as waived.
    APPEAL from Calhoun Circuit Court.
    Hon. G. W. McCoun, Circuit Judge.

      Garland, for appellant.

      Gallagher & Newton, for appellees.
   Harrison, J.;

This was an action of ejectment, commenced on the 10th day of January, 1871, by Albert C. Spain against Benj. W. Johnson, Silas A. Pope and Martin V. Mitchell, for a tract of land of 2,540 acres, comprising twenty eight parts or divisions and subdivision’s of seven sections.

The transcript before us is very imperfect, or the proceedings below were attended with great irregularity. The answer of Johnson, which the record states was filed, is not found in the transcript; it however appears, that the plaintiff’s title was put in issue by all the defendants.

The case was tried by the court, without a jury, upon an agreed statement of facts, and it found in favor of the defendants.

The plaintiff moved for a new trial, on the ground, that the finding of the court was contrary to the evidence. His motion was overruled, and he appealed.

The agreed facts were as follows:

The plaintiff purchased the lands, some from the State of Arkansas, and the others from the United States, in 1860, and had since received the patents for the same.

They were duly assessed in 1866, in his name, for the taxes of that and the preceeding year.

They were sold by the collector of taxes, on the 23d day of August, 1867, and were bought by Alexander Mason, who received from the collector, a certificate of purchase. Mason assigned the certificate of purchase to the defendant, Johnson, to whom the county clerk, on the 23rd day of August, 1869, •executed the deed hereinafter set out.

The defendants were then, and had been ever since the execution of the deed, in possession of the lands.

And the plaintiff, before the writ was issued, filed in the office of the clerk, an affidavit that he had tendered to said Johnson, the taxes and costs first paid on account of the lands, with one hundred per cent, interest thereon, and twenty-five per cent, interest on all costs and taxes afterwards paid; and the full value of all improvements made thereon; and that the same had been refused.

The deed from the clerk was as follows :

State of Arkansas, 1 County of Calhoun, j

Whereas, it appears from the records of the County Court that, pursuant to an order of the County Court of Calhoun County, that Augustus G. Barker, as collector of revenue for the county of Calhoun, and the State aforesaid, did sell, for the non-payment of taxes, on the 15th day of June, A. D. 1867, the following lands, viz : The southwest quarter of southwest quarter, the southeast quarter of southwest quarter, east half of southeast quarter, southwest quarter, west half of southeast quarter, south half •of northwest quarter of section 2, southeast quarter of northwest quarter, southeast quarter, south half of northeast quarter, east half of southwest quarter of section 4, northwest quarter of southeast quarter, north half of southwest quarter, southeast quarter of southeast quartei’, northeast quarter of northwest quarter, northeast quarter of southeast quarter section 9, north half and north half of south half section 10, east half of northwest quarter, northwest quarter of northwest quarter,' northeast, quarter of southwest quarter, northeast quarter of northwest, quarter of southeast quarter of section 10, east half of northwest quarter, northwest quarter of northwest quarter and the northwest quarter of southwest quarter, west half of northeast quarter, northeast quarter of southeast quarter of section 12, all in township 14 south, range 16 west; when the same, on said day, was offered for sale by the collector of said county, to satisfy said taxes, penalty and costs then remaining due and unpaid, which said taxes, penalty and costs amounted to the sum of $87.50 ; and all the aforedescribed lands were struck off to Alexander Mason, he bidding the amount of taxes, penalty and costs for the lands. And it further appearing that the said Alexander Mason afterwards, to-wit, on the 1st day of August, 1869, sold to Ben. W. Johnson, as appearing from transfer on certificate of purchase, by said collector to said Mason given. And whereas, it also appears that said lands were sold for taxes, penalty and costs, as the property of Albertus C. Spain; and it further appearing that the said Albertus C. Spain, nor any other person for him, and no other person having the right has made application for the redemption of said lands, and the time fixed by law for the redemption having expired :

Now, therefore, I, James H. Means, clerk of the County Court in and for the county of Calhoun, and State of Arkansas, by virtue of authority in me vested by law, have this day made and executed, and by these presents do grant, sell, bargain and convey unto the said Ben. W. Johnson all the above and foregoing described lands, with the hereditaments and appurtenances thereto belonging, or in any wise appertaining, to have and to-hold the above described lands unto the said Ben. W. Johnson, his heirs and assigns forever, so far as I, by law, have the power and authority to warrant the same.

In testimony whereof, I have hereunto set my hand, and affixed the seal of my office, at office, at the town of Hampton, this 23d day of August, A. D. 1869.

[L. S.] James H. Means,

Clerk of Calhoun County, Arkansas,

A sale of lands for taxes on any other day than that fixed by law, unless so ordered by the County Court, is void. McDermott v. Scully, 27 Ark., 226; Hogins v. Brashears, 13 Ark., 242.

And, according to the statute in force in 1867, it was only in the case of non-residents’ lands the court was authorized, when the collector, from some cause, had failed to offer them on that day, which was the second Monday in March, to direct a sale of them on a day thereafter. Gould’s Digest, Ch. 148, sec. 136.

The deed recites or refers to an order of the court for the sale on the 23d day of August, but it does not show the lands belonged to or were assessed to a non-resident; nor is it shown, if it might be, by.the agreed statement of facts.

It would be difficult to point out every objection appearing upon the face of the deed. It does not show for what years the lands were assessed; that the tracts were assessed separately; the taxes due on each; and it appears that they were not offered separately, but sold together in a body.

The sale was clearly illegal and the deed void. Gould’s Digest, Ch. 148, secs, 14, 23, 114, 115, 118, 119; McDermott v. Scully, supra; Hogins v. Brashears, supra; Bonnell v. Roane, 20 Ark., 114.

The finding of the court was against the' evidence, and it should have sustained the plaintiff’s motion, and awarded him a new trial.

But it is insisted by the appellees, that as it does not appear the plaintiff showed, by his affidavit before the commencement of the action, that he tendered the defendant Johnson the taxes and costs paid on tbe lands after the alleged purchase, as well as those first paid, his action should have been dismissed.

No plea in abatement was filed, nor motion to dismiss the suit seems to have been made. It was a matter the defendants could waive, and which, if passed in the court below without objection, should be regarded here as waived.

But it does not appear that such an affidavit as required by the statute, sec. 2267 Gantt’s Digest, was not filed. The admission in the agreed statement of facts, that an affidavit of the' tender of the taxes and costs first paid was filed, does not preclude the very probable fact, that it was to the tender of those subsequently paid also.

The judgment is reversed and the cause remanded, with instructions to grant the plaintiff a new trial.