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    Sale and wife vs. McLean et al.
    1. Chancery Jurisdiction : To remove cloud upon title, etc.

    The rule heretofore adopted by this court that a bill in chancery to remove a cloud upon the title cannot be entertained where the plaintiff is out of possession, approved ; but if the case presents other grounds of equitable jurisdiction, or the remedy at law is inadequate, the court will take jurisdiction, notwithstanding the defendant is in possession.
    3.— Where (he grounds of jurisdiction appear.in a woss-bill.

    If there should be a defect of jurisdiction under the original bill in a chancery proceeding, and the defendant files a cross-bill founded upon matters of equitable cognizance, it will cure the defect.
    3. Fraudulent Conveyance : Proceedings to set aside.

    Where a judgment creditor seeks to subject land which the debtor has conveyed fraudulently, the proper practice is to exhaust the process of the court, and apply to a court of equity for aid before a sale. And. if he should levy on and purchase the land at execution sale before seeking the aid of the court, he might well be denied relief, unless the proceedings were in all respects fair and regular.
    4, Evidence: To establish a trust in favor of the wife.

    Where a wife sets up in a cross-bill, in opposition to the creditors of her husband, a trust in land alleged to have been purchased by him with her means, she will be required to make clear and satisfactory proof of the facts upon which the alleged trust is founded.

      5. Resulting Trust : By the payment of purchase money.

    In order to create a trust in favor of one who pays the purchase money for land conveyed to another, the payment must be made at the time of the purchase, so as to make it one transaction. And if a husband, after the purchase of land in his own name, applies his wife’s money to the payment of advances of purchase money made by others, it creates no trust or equity in her favor.
    APPEAL from Phillips Circuit Court in Chancery.
    Hanley, for appellants.
    Garland, contra.

   Walker, J.

The appellees, William McLean, Benjamin May, Charles L. Moore, Robert C. Moore, and John J. Horner, filed their bill of complaint in the Phillips circuit court, against the appellants, in which they alleged that' complainant, William J. McLean, on the 22d June, 1866, recovered judgment in the Phillips circuit court against the appellant, William E. Sale, for $2,000 debt, and $724.35 damages, with 8 per cent, interest thereon, and that complainant, May, fdr the use of the Bank of West Tennessee, on the 8th of January, 1867, recovered judgment in said circuit court against said William E. Sale, for the sum of $13,822.58 debt, and $982.40 damages, with interest at the rate of 6 per cent. That upon their judgments, executions were issued and levied by the sheriff upon the lands- in controversy, as the property of the defendant in the execution, William E. Sale; that the lands were regularly sold by the sheriff to the defendant Horner, as agent for his co-complainants, to whom upon the payment of the sum bid, deeds were duly executed.

It is further alleged that before the rendition of the judgments under which they purchased, the defendant, Ann E. Sale, wife of William F. Sale, by her next friend, on the 8th day of February, 1866, filed her bill in chancery in said court against her husband, William E. Sale, in which she alleged that in 1857, she married the defendant in the state of Alabama. That at the time o'f her marriage, she was possessed of a tract of land, situate in said state, of 1,140 acres, about 20 negroes, and other personal property. That about the 1st of" October, 1857, her husband sold the land to Tweedy for $15 per acre, and that complainant ratified said sale, upon the express assurance of her husband that the amount received from the sale of the land should be invested by him in other land in the state of Mississippi or Arkansas. That she and her husband moved to Arkansas in January, 1857, where they have all the while since resided. That soon after their removal, her husband purchased from one Cooper & Pettis, the land in, controversy, for which he paid $17,600. That the money so paid by her husband was the money received for the lands sold by him in Alabama, and other property owned by her in her own right. That the title to the lands bought in Phillips county, Arkansas, was taken in the name of her husband, with a prayer for a decree that the title to the land be vested in complainant, the wife. That process was served upon 'William. E. Sale, the husband, but that he failed to answer or make defense, and on the 26th of June, 1866, a final decree was rendered in favor of complainant, vesting the title to the lands in her, to be held by the defendant for her sole use and benefit.

Complainants charge that beforehand at the time this suit by the wife against her husband was brought, and when the decree was rendered, the husband was greatly involved in debt beyond his ability to pay. That this fact was known both to the husand and wife. That the creditors were not made parties ; that the suit was brought by the parties, husband and wife, to defraud the creditors, and prevent the lands from being sold to pay the debts. That William E. Sale well ¡knew that the statements in the bill of his wife against him were not true, but made no defense, and permitted a decree to •go against him for the express purpose of defrauding his creditors. They charge that it is not true that $17,600 was the price to be given for the lands; that they were purchased of Pettis alone, and for the sum of $18,880. That the land so purchased was not paid for with money, the proceeds of the ■sale of the wife’s lands in Alabama; that. only the sum of $4,600 was paid in cash, as appears from the deed, and that the balance was secured to be paid on time by notes thereafter to become due. That S. O. Nelson & Co., of New •Orleans, were commission merchants and cotton factors, and, :at different times, advanced to William E. Sale large amounts •of money, and paid for him the notes given by him to Pettis for the lands, out of their own money, and charged the same with other moneys and advancements due, and that the notes given by Sale for the balance due are the notes sued upon, •and upon which judgments were rendered in favor of William •J. McLean and Benjamin May, complainants herein, and were given in consideration of such payment. That William E. Sale shipped his cotton from said plantation in his own name, and that the payment of the notes executed by Sale to Pettis,'as well as other advancements of money and supplies made to .Sale by S. 0. Nelson & Co., were made upon the faith and •credit given to Sale as the owner of the lands in controversy.

That the decree rendered in favor of Ann E. Sale is fraudulent and void, but is a cloud upon complainants’ title, which prevents them from selling the same at a fair price.

The prayer of complainants is that decree under which Ann E. Sale claims may be declared void and set aside, as being a •cloud upon their title, and that they be put into possession.

The defendant, William E. Sale, failed to answer, and as to Mm, the allegations in the bill are to be taken as true.

The defendant, Ann E. Sale, files her answer in which she denies all fraudulent combination with her co-defendant, and 'sets up in her answer by way of cross-bill, that she was the owner of lands in Alabama, and consented to the sale of them with an understanding that- the money arising from the lands sold should be applied to the purchase of other,lands in Mississippi or Arkansas. That her husband bought the lands in controversy with her money, but that her husband took the title to the lands in his own name, not to defraud her, but to give himself credit, and prayed that the title to the lands be decreed to her, or she be decreed a lien on the lands for the money found to- h'ave been paid. She also claimed that her husband and herself resided on the land, that he was the head of the family, etc.; and 160 acres of the land was their homestead, and not subject to execution sale, with a prayer that her right' of homestead be declared by the court and set apart to her. '

A demurrer was filed to the original bill of complainants upon the ground that the state of case as presented by the bill was such as a court of equity could take no jurisdiction of.

The demurrer was overruled and the cause submitted to the-court upon the state of case made by the pleadings and evidence. Upon consideration of which, a decree was rendered in favor of the complainants, setting aside the decree rendered in favor of defendant,' Ann E. Sale, in her suit against her husband, and affirming the title of complainants in all of the land in controversy, except 160 acres, which was decreed to the defendant, Ann E. Sale, as being exempt from sale under the homestead act.

Prom this decree the defendants, Sale and wife, appealed.

The first question to be considered is, Has a court of chancery jurisdiction of the case?

Chancery courts, as well as courts of common law, have well defined subjects over which they exercise jurisdiction, and which are to be no more disregarded in the one court than in the other, and yet the pleader has a wider range in combining and presenting the facts which may entitle him to equitable relief than the common law courts have, ánd the facts are so complicated that each case must, to some extent, be determined upon its own merits, and yet all of them must be engrafted upon some one of the distinct subjects of the jurisdiction of the court.

Story says: “ There are certain fixed principles on which courts of equity act, which are well settled. Courts of equity exercise no more discretionary power than courts of law. They may decide upon cases as they arise by the principles on which former cases have been decided, and may thus illustrate or enlarge the operation of the principles. But the principles are as fixed and certain as the principles on which the courts of the common law proceed.” 1 Story’s Eq., 22. In Dugan v. Cureton, 1 Ark., 31, it was held that the primary and original object of the suit must be one clearly within the jurisdiction of the court; and in Keatts v. Rector, id., 410, Lacy, Judge, said : “ The rules in chancery are doubtless far more liberal and comprehensive in their character, and in many respects infinitely more just and equitable, but they are not on that account less obligatory upon the parties or the court.”

Under the guidance of these rules, when applied to the case under consideration, the facts presented show that it was evidently the intention of the pleader in this case to base his right to the equitable interposition of the court upon the grounds of fraud, a subject of the concurrent jurisdiction of courts of both law and equity ; and as a reason why the complainants do not resort to a court of law for redress, that they have the junior legal title, with such superior equities as entitle them to be heard in a court of equity. In this case, the complainants-say that one of the defendants owed them debts. That he owned a tract of land at the time their debts were contracted; that the debts were contracted upon the faith that he was the owner of the lands. That, in fact, the debts were for money paid for him to Pettis in payment of the purchase money for these lands. That the defendant not only purchased the lands, but took a deed for them in his own name. That he cultivated them and shipped the products of the plantation to S. 0..Nelson & Co., in his own name; that the wife, the other defendant, never set up or asserted any claim to the lands, but that all the while from 1857 to 1866, they were held and claimed by the husband to be his individual property ; that before and at the last date, he was largely in debt, was insolvent, and unable to pay his debts, and that for the purpose of defrauding complainants and hindering and preventing them from having satisfaction of their debts, the defendant, William F. Sale, combined and cooperated with Ann E. Sale, his wife, and upon the false and fraudulent pretense that the lands had been bought by the husband with the money of the wife, procured a decree to be rendered in favor of the wife for the property, which decree was fraudulent and void as against the creditors of the husband. That they obtained judgments for their debts, upon which executions were issued, the land levied upon and sold, and that they by their agent, became the purchasers.

That the lands are in the possession of defendants, and that the fraudulent decree is a cloud upon their title.

These are the grounds of equity set up in the bill, and which defendants contend do not present a case for jurisdiction.

The objection is not that this court has not jurisdiction of a question of fraud, and to remove-a cloud upon the title of complainants, but that being out of possession and tbe defendants in possession, the complainants have a clear remedy at law, in which the question of fraud may be inquired into, and complete redress afforded them, and, in support of this position, we are referred to the case of Miller v. Neiman and wife, 27 Ark., 233, as well as to a carefully considered opinion of one of the judges of this court, in which, however, two of the judges presiding declined to render any opinion upon that particular question. Apperson v. Ford and wife, 23 Ark., 746.

The opinion delivered by Judge Fairchild in that case, although not authoritative as the opinion of the court, seems to have been carefully considered with a reference to numerous authorities, which would seem to establish the position assumed by defendant’s counsel, which is, that in order to maintain an action to remove a cloud upon the title of property, the party who brings his case into a court of chancery for that purpose should aver that at the time of bringing the suit, she was in possession of the land. But it will also be seen that all of these cases are decided upon the ground that if the defendant is out of possession he has a clear remedy in a court of law, by ejectment against the defendant, who is in possession, and in which the question of fraud can be inquired into, and full and complete justice done. But as the jurisdiction in cases of fraud is concurrent, where the rights of the party cannot be asserted at law, or in cases where it can, when the remedy is not complete at law, the party may sue in equity, where complete and ample justice may be done, because it is the peculiar province of a court of equity to aid in administering the law in cases in which, by the rules of the common law, complete justice cannot be done, but in no case to interfere with the jurisdiction of the courts of the common law in cases in which that court has power to afford adequate relief ; and it is for this reason that when a party out of possession has a superior legal title, lie shall be held to resort to his action of ejectment to get possession; and it would seem that he should do this even when there is a cloud upon his title which' he seeks to remove, which seems to be so well settled by adjudicated cases as well as by our own previous decisions (Miller v. Neiman and wife, 27 Ark., 233), that under the state of case under which they were made, we must give them our approval.

But it is equally clear, that if for any other cause the court of law should be found incompetent to do full and complete justice, and particularly in case of concurrent jurisdiction, a court of equity may rightfully take jurisdiction, and render that full and complete justice which the courts of common law may, because of the more stringent rules which control its action, be found incompetent to do. Thus, in Branch v. Mitchell, it was held that although the complainant was not in possession, if no one else was in possession, there being no one in possession to sue in ejectment, the party seeking to get possession and to remove a cloud upon his title, might resort to a court of equity for redress ; and it was also held in the same case, that as the complainants held the junior legal title with superior equities, he might for that reason also resort to equity for redress.

We may here remark that in the case under consideration, the title of the complainants is the junior title, but as they contend with superior equity to the title of the defendant, Ann E. Sale, which is the senior title. It may be a matter of doubt whether the complainants may raise the question of fraud in the court of common law, and if fraud be found to exist, set aside the fraudulent senior title and assert his as the superior and only valid title, and one which we will not undertake to settle in this case.

There is also another ground of objection taken to the jurisdiction of the court, upon the ground that the lands were sold without first having applied to a court of equity to set aside the title of Mrs. Sale as fraudulent. It has been settled upon authority by this court in Meux v. Anthony, 11 Ark., 411, that when a creditor comes into a court of equity to set aside a sale of property which has been conveyed in fraud of his rights as a creditor, he must show that.he is in a position to receive the benefit of the auxiliary aid of the court; that is, he must have obtained judgment, and by process have been unable to get satisfaction out of the unincumbered estate of the debtor.

We are satisfied that this is the proper practice, and if not pursued by the creditor, as in this case, and he should levy upon and sell the property without first having settled the question of title, and buys it in, and thereafter finds it necessary to ask the aid of a court of equity, unless the proceedings were fair and equitable in all respects, he might well be denied relief in equity. Without wishing to be understood as asserting that’in no case and under no circumstances, a valid sale might be made without first settling the question in equity, we do not hesitate to declare that it is a practice which should be discouraged. But in this case, whether the complainants did or did not make a case in their bill in which the court of equity would take j urisdiction, there can be no doubt of such jurisdiction since the defendant, Ann E. Sale, filed her cross-bill, in which she sets up a distinct title to the property in controversy, upon the ground that although the legal title is prima facie in her husband,_that in fact he bought the lands with money, the proceeds of the sale of a tract of land which belonged to her, was hers before her marriage, and to which she consented to make sale, with the understanding that her husband would buy other lands with the money arising from the sale of her lands; that he did make the purchase of the lands in controversy.

This .is substantially the case made by' her. The case is one of implied trust over which this court has undoubted jurisdiction. By her cross-bill she makes this the forum before which both parties present themselves. The complainant has nolonger the right to dismiss her bill. Allen v. Allen, 14 Ark., 666; Jacoway v. McGarrah, 21 id., 347. Story, in his work on equity pleading, p. 452, says : “ A cross-bill being generally considered as a defense to the original bill, or as a proceeding necessary to a complete determination of the matters already in litigation, the plaintiff is not, at least as against the defendant in the original bill, obliged to show any ground of equity to support the jurisdiction of the court.”

In the case of Cockrell v. Warner and wife, 14 Ark., 346, this court held that when a defendant filed his cross-bill founded on a matter clearly cognizable in equity, the cross-bill supplies any.defect in jurisdiction, if any existed, and placed the court in possession of the whole cause, and imposed the duty of granting relief to the party entitled to it; the original and cross-bill being but one cause.

We think these authorities conclusive of the question of jurisdiction.

The next question to be determined is, Was there in fact an impliéd trust in favor of the defendant Ann' E. Sale, in the purchase of the lands by her husband of Pettis ? And this question is really narrowed to the fact, as to whether the lands were or not purchased ,by the husband, with the money of the wife; for unless this fact is made to appear, there can be nothing in the transaction out of which a trust could arise.

Ann E. Sale, in sher cross-bill, claims that she owned lands in Alabama, which were sold by her husband, and that it was the money, the.proceeds of this sale, with which the land was bought. Turning to the cross-bill we find that she alleges, and in her answer admits, that the land in controversy was purchased in the latter part of November or first part of December, 1856, but the deposition of her husband and the exhibit to Cooper’s receipt, which she makes part of it, show that the purchase, made by William E. Sale of Pettis, of the lands in controversy, must have been as early as the first of November, 1856. The receipt of Cooper who seems to have acted as agent for Pettis, and which is made evidence on the part of Mrs. Sale, is as follows: “This is to show that the note of Wm. E. Sale, in the hands of Drusy May, Esq., payable to myself, is credited on the first of this month, December, 1856, of $48.33 1-3 cents. The note is for $50, due some 18 months past. This credit grows out of a transaction this day had between William E. Sale and ¡myself, as of the first of this month, Wm. P. McMahon, Esq., being intervening party for Mr. Sale, this 6th December, 1856. William Cooper, Oourtland, Alabama.

“ William E. Sale has this day paid through his friend, Wm. P. McMahon, the sum of $6,500 as advanced, which James T. Pettis holds on him as first installment on the purchase of land made by said Sale of James T. Pettis, of the Blackfoot or Pillow place near Helena, Arkansas. This money was not strictly due until first of January, but I have credited Mr. Sale on a fifty dollar note I have of his in the hands of Drusy May for the sum of $43.33 1-3, being one month’s interest on the $6,500, to procure him to pay it now, as of the first of this month. Test my hand this 6th day of December, 1856. And I guaranty this payment to me to be all valid, and as good as if paid to James T. Pettit. The above means furnished on the means of John J. McMahon, and William P. McMahon acts as his agent in this matter. Wm. Cooper.”

We have deemed it best to give this receipt at length, as it furnishes evidence, not only of the time when the land was purchased of Pettit, but also of the terms upon which the purchase was made. Cooper' agreed with Sale to credit a fifty dollar note which he held on Sale to the amount of the interest due on the note up to the 1st of December, 1856, which amounted to $43.33 1-3. The interest, if calculated at 10 per cent., the highest interest permitted by statute, would make the date of purchase, supposing it to have been the time when the note was given, about the 1st of November, 1856.

. It may be remarked that there is no other evidence showing the time when -Sale purchased the land of Pettit. Sale, in his deposition, attempts to explain why it was the deed bears date May 29, 1857. He says that his recollection is, that the execution of the deed was postponed because Mrs. Pettit was absent from the state at the time, and that the date of the deed was probably as of the time when she executed it; and as regards the discrepancy between the $6,500, taken in connection with the three other notes executed by Sale to Pettit, and the three notes given for the last payments, and the.sum set forth in the deed as a cash payment. Sale is not certain, he states, that at the time he bought the land, he also bought of Pettit hogs, cattle, and 1,000 bushels of corn, but does not remember whether he paid for them in cash or not. It is not very important in this case to determine here how .this matter was, but it is probable that in the $6,500 note for the first payment on the lands, was included also the amount to be paid for the hogs, cattle and corn. The price agreed to be given for the land was $18,380. The recitals in the’deed in regard to the consideration are as follows:

“That the said Pettit has this day, for, and in consideration of, the sum of $18,380 principal, and interest being $780, $4,600 of this sum has been paid in cash. For the balance, said Sale has executed his’three notes; one, and the first note, dated January 1, 1857, due one year after date, for $4,333.33. The second note, bearing same date, due two years after date, for $4,333.33. The third and last note, bearing same date, due three years thereafter, for $5,113.33, all payable to James T. Pettit.” And the lien clause of the deed is as follows:

Eor the punctual payment of said notes the said Pettit retains a lien upon the lands herein described, and sold and conveyed to William E. Sale.”

It will be seen that the three notes described in the deed bear date the first of January, 1857; but in view of the other testimony, this does not fix the time when the purchase of the land was in fact made, because we find a note for $6,500 in existence on the 6th day of December, with an accumulated interest of $43.33-¡-, which was on that day taken up by McMahon and described as a note “ which James T. Pettit holds on him as first installment on the purchase of land made by said Sale of James T. Pettit, of the Blackfoot or Pillow place, near Helena, Arkansas.”

Whether the other three notes were dated as of the 1st of January, 1857, although made in November, or whether other notes were executed- at the time the note for $6,500 was executed, and afterwards given up and the time of payment altered, is not important.

The real question being as to when the purchase was in fact made, and whether upon a money consideration paid, or upon a credit; and, upon a careful consideration of the evidence, we are satisfied that the purchase of the land was made in November, 1856, and most probably early in that month, and in fixing this as the date of the purchase, there is really no very material difference from the allegations in the cross-bill of Mrs. Sale. She says: “It was late in November or the first of December of that year.” No reference whatever is made in the deed to Mrs. Sale, or of any interest she may have in it, none whatever with regard to the ownership of the means out of which the purchase money is to he paid. It was a purchase by Sale on time, by different installments, the first of which was to be paid on January 1, 1857; that $6,500 was the first installment, and most likely there was included in it the price to be paid for the hogs, cattle and corn, no money whatever was paid. It was a purchase by Sale in his own name, upon his own credit, secured by a lien on the land. The deed was made to him. The cross-bill alleges that this purchase was made with Mrs. Sale’s money, the proceeds of the sale of land which she held, and that the land was sold with the understanding that the money arising from the sale of the land should be invested in other lands, in Arkansas or Mississippi. This is an affirmative allegation, of which she is required to make clear and satisfactory proof.

After a careful examination of all the evidence, we find no direct or positive evidence as to the time when the wife’s lands were sold. The husband testifies fully and at length upon the sale of the Alabama lands. It is proven that the lands were sold to Tweedy for the price of $17,149.39, to be paid by installments on time, one-third to he paid March 1, 1857, the balance in one and two years after. In the fall of 1856, but what time in the fall is not given, Sale states that he then went to Arkansas and bought the land in controversy. But there is evidence which tends to show that the sale of the lands in Alabama was made after the purchase of the lands in Arkansas. We have seen that on the 6th of December, 1856, McMahon assumes the payment of $6,500, the first installment due on the purchase of the lands in Arkansas, and on the 13th of December thereafter, Tweedy, who purchased the lands in Alabama, gives his note tp McMahon for the sum of $5,716.44. This note, it is to be inferred, was given at the time Tweedy purchased the Alabama lands. William E. Sale says: “ William M. Tweedy executed his note for the purchase money for my wife’s lands in Alabama; one, and the first, to J. J. McMahon for $5,716.44, due the 1st of March, 1857. This was to secure McMahon to the amount of the note for the sum of $6,500 advanced by him to me, and by me paid to William Cooper, agent for J. T. Pettit, as first installment on the land in controversy. Said payment was made in December, 1856. My recollection is that he gave the notes, the first payable as above stated to McMahon, the others to myself. One of which, the second installment, due March 1, 1858, was afterwards divided, one to J. B. Goons, the other to myself. My recollection is, this was done to raise money of Coons to meet a payment falling due on the land in controversy.”

The note referred to by this witness as having been executed by Tweedy to McMahon, is made part of the evidence in the case, and is as follows:

“ COURTLAND, Ala.

“On or before the 1st day of March next, we, or either of us, promise to pay to the order of John J. McMahon, the sum of five thousand seven hundred and sixteen and dollars, for value received.

“ Witness our hands and seals this 13th day of December, 1856. (Signed)

“ J. M. Tweedy, (L. S.)

“ Thomas Lighteoot, (L. S.)

“T. T. Tweedy. (L. S.)”

This note, it will be seen, bears date of the 13th of December 1856. William E. Sale says the sale of the land to Tweedy was on time, one-third to be paid on March 1, 1857, the balance in installments of one and two years. The first was given to McMahon, the other two to himself. We have seen that McMahon arranged tbe payment of Sale’s note with Cooper, on the 6th of December, 1856; and, if Tweedy executed the notes for the purchase money at the time of his purchase, then the purchase of the Alabama lands was made after the purchase of the lands in Arkansas. Without attempting to reconcile these apparent inconsistencies which, after all, do but leave the question of the time of the sale in doubt as conflicting with the statement of witness Sale, who says, that after he sold the lands in Alabama, he came to Arkansas and made his purchase of Pettit,” it still leaves the evidence clear and conclusive that the lands were bought by William F. Sale upon a credit. That the first note was taken up and paid by McMahon, and the other three notes were taken up and paid as they fell due by S. O. Nelson & Co.; and that they charged William F. Sale, in their general account with him, for the same. The accounts show credits by receipts of cotton and moneys received, and it is equally clear from the evidence that at the time these payments were made, Sale had no money in their hands, either his own or his wife’s. The witness Thomas Nelson, one of the firm of S. 0. Nelson & Co., states positively that the amount of shipments of crops by Wm. F. Sale did not pay his indebtedness as it accrued. That witness could not state definitely the indebtedness of Sale at any one time, but that at the end of any one season it was greater than the amount of the notes given to Pettit for the lands, and paid by the firm. That on settlement in 1865 or 1866, Sale was indebted to S. 0. Nelson & Co. between fourteen and fifteen thousand dollars, besides notes to the amount of between five and ten thousand dollars. That a settlement was made, and notes given by Sale for between fourteen and fifteen thousand dollars. That the notes wer¿ transferred. to Ben. May in 1866. That the inducement for making the advancements to Sale was the property which he owned, and particularly the lands in controversy.

The proof shows, that after the land had been purchased, and alter Sale had executed notes for the payment of the purchase money, on the 6th of December, 1856, he borrowed money from McMahon with which he paid the first installment note of $6,500 to Pettit, $4,600 of which sum was applied to the payment of the lands which he had bought* and most likely, the balance to pay for cattle, hogs and corn, purchased of Pettit at the same time that he bought the land. To secure McMahon for this borrowed money, after-wards, on the 13th of December, 1856, he caused Tweedy, who bought the land which belonged to his wife, to execute his note to McMahon for $5,716.44. This note was part of the proceeds of the sale of the land, and was to be paid March, 1857, and was, during that year, paid to McMahon to satisfy the debt which William E. Sale had contracted with him for borrowed money. It is also in proof, that a considerable sum of money was remitted by William E. Sale, either directly or indirectly, to S. 0. Nelson & Co., and Sale himself deposes, that it was a sum sufficient or nearly sufficient to pay the notes which Sale owed to Pettit, and which S. O. Nelson & Co. had taken up and paid. Witness says, that the money sent to S. 0. Nelson & Co., was money received from the sale of his wife’s land. Concede all this to be true, and yet the testimony shows with like certainty, that the notes were taken up and paid before these remittances were made, and had been charged in a general account against Sale. Sale gave no direction as to how these remittances should be placed to his credit. S. O. Nelson received and applied the money as a credit upon the general account of Sale, which, in the absence of special instructions, they had clearly a right to do. An outstanding balance is, upon settlement in 1865 or 1866, shown to have been nearly $14,000, for which Sale gave his note.

Such is substantially the evidence, and upon which we are Called to decide, whether the evidence is sufficient to raise an implied trust in favor of the wife, upon the ground that the land was purchased with her money.

The law is, “ that if a purchase of property be made, and the deed is taken in the name of one party whilst the consideration is given or paid by another, a resulting trust, immediately arises by virtue of the transaction, and the person named in the conveyance will be a trustee for the party from whom the consideration proceeds.” Hill on Trusts, |91. And “ this doctrine is strictly limited to cases where the purchase has been made in the name of one person, and the purchase money has been paid in another.” 2 Story’s Eq., 631. “And where the trust does not arise on the face of the deed itself, the parol evidence must prove the fact of the advancement of the purchase money very clearly.” Leading Eq. Cas., 265.

The purchase money must be paid or secured by another at the same time or previously, and, as part of one - transaction. Buck v. Pike, 11 Me., 9; Boyd v. McLean, 1 Johns. Ch., 582; Adam’s Eq., 330 and 331.

It is evident from these authorities, that the trust must immediately arise by virtue of the purchase, and of the consideration paid, as said by Hill, above cited; and if it is to arise out of such payment, then, of course, the payment must be made at the time' the purchase is made, as held in Buck v. Pike, and other authorities above cited. If no trust was created at the time of the purchase, none can arise afterwards, because the rights of the parties must, of necessity, become then fixed.

In the case under consideration, it has-been argued, that if the money of the wife was, after the purchase made by the husband in his own name, and, upon his individual credit,, paid to those who had advanced money with which the bus-band had paid his notes given for the purchase of the land, such payment, though not directly, was indirectly, a'payment of the purchase with the money of the wife.

It seems however to us, that in this case, it was but in fact an application of the money of the wife to satisfy debts which Sale had contracted, no doubt, to enable him to pay for the lands purchased. But ice this as it may, this was most clearly no purchase of land with the money of the wife, for no money was at that time paid, certainly not of hers, for at that time she had received none from the sale of her lands. Such being the case, there was no implied trust raised in the wife’s favor upon the lands.

This disposes fully of the case as made by her bill. It is the only ground set forth for equitable jurisdiction, and one she has failed to sustain in proof.

But as the prayer for relief is alternative, that is, that if she fails to establish a trust, she should be entitled to a decree for a lien upon the land to the extent of the money of hers which was applied to the purchase of the land, we will see upon what grounds her claim for relief rests.

We have already made sufficient reference as to how, and for what purpose, her money was in fact expended. But then if, as we hold, there is no trust created in her favor, upon what grounds of equity can she rest her case for the interposition of this court to enforce a lien ? If the fact of this indirect payment entitles her to an equitable lien on the lands, we are at a loss to see why S. 0. Nelson & Co. might not also have asserted their right to a lien upon the land, because their payment of the purchase money was made directly to Pettit, and out of their own money. We have looked carefully into the authorities to see whether, under the ancillary powers of the court, a decree might not be rendered in the wife's favor in consideration that the money (conceding such to have been the case) was paid for the debts contracted for the purchase of the land, but have failed to find an authority, or an adjudicated case to sustain such a decree. Cases frequently occur in which from oversight, negligence or prodigality, or even when revolutions produce disaster and ruin, but the court, however conscious that such is the case, cannot depart from the well established principles upon which equity jurisdiction is founded to afford relief in exceptional cases of hardship.

The husband has failed to answer; the debts were his, founded upon a meritorious and valid consideration. Judgments have been rendered, the property levied upon and sold, and bought in by the creditors; there has been carried out of their purchase 160 acres as a homestead, embracing the buildings and, doubtless, the best improved and most valuable land. The right of homestead claimed in the amended cross-bill, in right of the husband and wife, who were actual residents upon the land with their family, seems to have been conceded by the parties in an agreed state of facts, signed by the counsel of both parties, and was decreed to them by the court, and in regard to which in any event we have nothing to do. The complainants have not appealed and have submitted to the whole decree. So far as regards the 160 acres decreed as a homestead, the decree will stand, and as regards the 80 acres sold by Sale and wife, the decree, under the agreement of the parties, in affirmance of such sale, was proper, and when we apply the law as we hold it to be, and as applicable to the equitable rights of the parties, the decree in affirmance of the title of complainants to the residue of the land in controversy was also correct.

Finding no error in the proceedings of the court below and in the decree rendered therein, the same is in all things affirmed.


source: Caselaw Access Project

author: Walker, J.

license: Public Domain

text:
    Booth vs. Goodwin et al.
    1. Homestead : Infant cannot abandon.

    Minors are incapable, by act or declaration, of waiving or abandoning tbe homestead right.
    2. — Nature of the occupancy required, of infants.

    It is the duty of the guardian to take possession of the homestead and. rent it for the benefit and support of the ward, and this is the occupancy contemplated by the statute. (Act of 1852.)
    S. —Effect of the act upon the rights of creditors.

    The effect of the homestead act of 1852 was to suspend the rights of creditors until the child or children should become of age, at which time the creditors would be entitled to satisfaction out of the homestead.
    4. — Ejectment will lie for tlw recovery of.

    During the existence of the homestead right, the children have such an estate and right of possession as will enable them to maintain ejectment for the recovery of the land.
    APPEAL from White Circuit Court.
    Hon. John Whytock, Circuit Judge.

      Ooady & McBea and Turner & Moore, for appellant.

      Pomeroy and Isbell, contra.

   Walker, J.

E. C Goodwin, tbe father of defendants, resided with his family, consisting of a wife and four children, upon a tract of 160 acres of land, in the county of White, of which he was the owner. He was a citizen of the state, the head of a family, a householder, and an actual resident upon the land with his family, at the time of his death, which took place in January, 1864. His widow and children continued to reside upon and occupy the homestead place until the summer of that year, at which time she diéd, leaving the defendants, her minor children, the oldest but fourteen years of age, upon the place. Jones, the uncle of the children, who resided on an adjoining tract, took the children to his house to be taken care of, and provided for them, and for two years after, cultivated the land as a means of support for the children.

In the fall of the year 1865, Hicks was appointed administrator of the estate of Goodwin, and took the homestead place with other lands, into possession, and rented them for several years, and, under an order of the probate court, sold them to the appellant, Booth, and made him a deed for them. Booth entered upon the lands and claimed them as his. He was notified at the time of his purchase that the heirs of Goodwin claimed a homestead right upon the lands.

The heirs, by their next friend, brought suit for the possession of the 160 acres of land, under their homestead claim.

The defendant, in his answer, does not controvert the fact that Goodwin was, in his lifetime, entitled to a homestead upon the land, or that the plaintiffs were and are minors, but positively denies the actual occupancy of the children, charges that they had abandoned the homestead place, and that he, Booth, had bought and paid for it under an order of the probate court. That the lands were unoccupied when he bought them; that he entered upon them in good faith, and has made valuable repairs.

Upon this issue the jury found a verdict for the plaintiffs, upon which judgment in their favor was rendered.

The questions of law and the evidence were properly preserved by bills of exceptions, and present but one important question for our consideration, which is : Is it necessary that the minor children of a deceased parent, who was entitled to a homestead exemption upon land, should also actually reside upon and continuously occupy the same, in order to protect their homestead right to it; or, in other words, should the same construction be given to the statute which requires actual occupancy of the father and of the mother to protect them from creditors, be also extended to the minor children ?

All of the questions likely to arise under the homestead act have heretofore been settled by our former decisions, in the cases of Tumlinson v. Swinney, 22 Ark., 404; Norris v. Kidd, 28 id., 485; Chambers v. Sallie et al., ante 407; and Johnston’s Heirs v. Turner, Adm’r, ante 280. The two last were decided at the present term of the court.

In the case of Johnson’s Heirs v. Turner, Adm'r, the facts were that the administrator, as in this case, had taken possession of the real estate of the intestate, upon which, however, the heirs had at no time resided. It was held that the domicile of the parents was also the domicile of the children ; that an abandonment of the homestead place by the mother, whether by marriage and removal to the residence of her husband, or otherwise, could in no wise affect the homestead rights of the minor children. And it was also held that no temporary absence of the head of the family amounted to such abandonment as would deprive minors or her, of their homestead rights.

The question of abandonment is one of fact, to be determined by the acts and declarations of parties competent to act for themselves, and the evidence which would establish an abandonment by adults competent to act for themselves, must fall far short, indeed, must entirely fail to visit a like consequence upon minors, who, it has been seen, can make no home for themselves, but are subject to the control of parents or guardians, and, when the statute says: “That the homestead shall be exempt from sale or execution during the time it shall be occupied by the widow, child or children,” should we give it the same construction that we would in a case involving the homestead rights of the father or the mother, who may, at their pleasure, continue to occupy or not, we would, in most instances, utterly defeat the provisions of the statute in favor of the rights of children.

The intention of the legislature evidently was to extend to the child or children the same protection of the property from sale by the creditor, which had been extended to their parents, and as it is our duty, as far as possible, to carry this intent into effect, we must - necessarily give to the term “occupied” such a liberal construction as will uphold, not defeat, the humane intent of the legislature; and must hold that an infant is incapable, either by act or declaration, of abandoning or waiving his homestead right; not to do so, would be to defeat the provisions of the statute as to them. Actual occupancy of the infant upon the homestead place is not necessary, is not required of an infant. It is the duty of his guardian to take possession of the homestead place, and to rent or lease it for the benefit of his ward, as a means for his support and education, and this must have been the possession and occupancy contemplated by the legislature, because it is the only one consistent with the condition of the minor child or children.

It is true that there may be cases in which a friend, a relation or a guardian may remain with the children upon the homestead place. But in such cases as the present, when children are too young to take care of themselves, a relative or a guardian may well take them from the prémises to reside with them, and take care of them, and in doing this the infants could lose no right whatever, and such removal was no evidence that they had abandoned or relinquished their right of homestead. The effect of the homestead act was to suspend the rights of the creditor until the child or children became of age, and are presumed to be capable of taking care of and of supporting themselves, at which time, and not before, the rights of the creditors to satisfaction out of the estate may be asserted.

It has been contended that these children have no such title to the land or the possession thereof, as will entitle them to sue in ejectment. In this we think the counsel mistaken. It is true that the homestead act confers no title to the land, but merely a protection from sale whilst occupied, and to this extent suspends the rights of the creditors; but the land remains all the while the estate of the father, in which, until it is found necessary to dispose of it to satisfy the creditors of the estate, the children and heirs have such an estate, coupled with their right to immediate possession, as entitles them to sue for its recovery.

This view of the effect of the homestead act and of the rights of the plaintiffs under it, in effect,- disposes of all the other questions presented for consideration. Upon the whole case, the decision and judgment of the court below is correct.

Let the judgment be affirmed.


author: Williams, Sp. J.

text:
    Jones et al. vs. Minogue et al.
    1. Chancery Pleading : Certainty requisite.

    A bill in chancery, filed for the purpose of recovering the assets of arc estate, and praying the appointment of a receiver, which fails to describe the property, is demurrable.
    2. Keceiver : Subject matter of Ms trust should be designated.

    A receiver should not be appointed to take charge of property without a sufficient description to enable him to ascertain the subject matter of his trust.
    3. Decree : For distribution, certainty in.

    A decree for the distribution of an estate should set out specifically the property to be distributed.
    4. Alien : Capacity to talce and transmit land.

    Under our statute, aliens may take and transmit land by inheritance or otherwise; and they could, at common law, take by devise.

      •5. Chancery Pleading : Answer and demurrer under the Oode.

      A demurrer may be reserved in an answer under the Code pleading, but must be disposed of before the hearing, unless it goes to the jurisdiction of the court, or the sufficiency of the cause of action; and, in compelling the defendent to elect between-his demurrer and answer, and after overruling the demurrer, rendering a decree for the plaintiff without proof, while material allegations of the com' plaint were denied by the answer, the court below erred.
    ■6. — No departure from the original purpose allowed.

      A complaint in equity which is insufficient to obtain the particular purpose for which it was designed cannot be used for any other purpose.
    7. Jurisdiction : In suits between citizens and aliens.

    The state courts have concurrent jurisdiction with the federal courts over controversies between citizens and aliens.
    .APPEAL from Sharp Circuit Court.
    Hon. R. H. Powell, Special Judge.

      Hhtglish, for appellants.

      Hose, contra...
   Williams, Sp. J.

The appellees filed their bill in the circuit court of Sharp county, chancery side, in which they averred in substance that they are citizens of the county of Tipperary, Ireland. That a number of years ago, William Minogue, a brother of complainants, left Ireland and came to the United States, and was here naturalized, and made a citizen as the law directs. That he settled in Lawrence county, Arkansas, in that part which is now in Sharp county, being naturalized, and having acquired considerable real and personal property. That he made a will about the 9th of April, 1861, and departed this life.

That the will was duly probated before the clerk of Lawrence county, a copy of which is exhibited. , :

That excepting two small bequests named in the will, William Minogne bequeathed and devised all his property, real and personal, to appellees, and appointed Daniel Williams and James Ledford executors, who qualified as such, and took upon themselves the burden of performing the trust. That they paid off all the debts of the estate, and paid off and discharged all the specific bequests of the will, leaving an unadministered balance. That Williams died, leaving Ledford surviving executor. That appellees are the sisters and brother of William Minogue, and are the identical persons mentioned in the last will of William Minogue, and to whom he willed his property.

That the distance between Sharp county, Arkansas, and Tipperary, Ireland, is so great, and the common intercourse by mail and otherwise between the two countries was so cut off and broken up by the late war between the states of the United States, that although William Minogue died in April, A. D., 1861, appellees heard nothing of his death until the spring or summer of 1870.

That Ledford, the surviving executor, was and is a good and trustworthy man, of good property, and responsible individually, for the entire estate of William Minogue, and had given a good bond as executor, and had made no waste or mismanagement, and the estate was safe in his hands.

That while the estate was in this situation, and no one having set up claim thereto as residuary legatee or devisee, appellants James P. Jones, James Manning, Young McCain and William Davidson, united, combined and confederated together to cheat, defraud and swindle the heirs, devisees and legatees of William Minogue out of the estate, and to seize and appropriate it to their own use, or the use of some of them. That these frauds were intended to be carried out in a great measure by a series of orders made in the probate court of Sharp county, where the estate was, so that the perpetration of the contemplated fraud on appellees might seem to have the approval of a court of justice and the sanction of the laws, when in fact the orders themselves were violations of the law, and perversion of justice.

The first of a series of orders that tend to deprive appellees of their right is, that on the 10th day of March, 1870, Young McCain, without ever having been appointed public administrator of Sharp county by the probate court thereof, or by any authority whatever, presented to the probate court of Sharp county his bond, dated January 3, 1870, signed by the securities, and in the usual form. That the said probate court approved the bond, although McCain had never been appointed public administrator; that McCain was irresponsible, had little or no property, and nothing could be made out of him by law; that the securities in the bond were irresponsible; that on the entire bond of ten thousand dollars there could not be recovered the sum of two hundred dollars; and the entire obligors, if even disposed, were not able to pay the amount of the estate of William Minogue, which facts were well known to appellants, the community, and the probate court of Sharp county, which approved the bond. That on the 11th day of March, 1870, when the estate of William Minogue was safe and well secured in the hands of Ledford, appellant Davidson, without giving any notice to Ledford, or alleging any default or mismanagement by him, pretending to act as attorney for Sharp county, but really, as charged, for the sole purpose of placing the estate in irresponsible hands, and swindling and defrauding these complainants, obtained in the probate court of Sharp county, an order on Ledford to turn over the estate to the public administrator, and that he take proper steps to escheat the estate, no heirs having appeared as recited in the order.

The public administrator was ordered to report his proceedings, and make out an inventory of the estate and sell the real estate, and invest the proceeds in United States bonds. That Davidson well knew the effect of this order would be to take the estate from Ledford, a responsible man, and place it in the hands of irresponsible and untrustworthy parties; and it is charged, in effect, that he so intended; that the probate court of Sharp county afterwards made an order directing the public administrator, Young McCain, to turn the estate over to appellant, James P. Jones, as agent of one Manning, who professed to be a representative or assignee of Martin Minogue, one of the devisees of William Minogue (he claiming that the two sisters were dead, and Martin was now the sole devisee) ; that the order was made without any proof of Manning’s rights, or, indeed, that there was such a person in reality; that McCain did not resist this order, and Davidson, instead of doing so as county attorney of Sharp county, connived at it, and stopped his proceedings to escheat the estate to the state, in order that Jones should have no difficulty or obstacle to contend with in getting his claim as agent of Manning before a willing court, and in order that every impediment might be removed, that Davidson withdrew his proceeding to have the estate escheated.

That after the order was made for Young McOain to turn over the estate to Jones, be went forward and collected notes, and that he had reduced some of the notes to cash, and had converted it to his own use, or to that of some of his confederates, and had wasted the same.

That this was the condition of the estate when appellee’s agents were first enabled to look into it, and the estate was being rapidly wasted, and was tending to utter ruin, and was liable to be at any time paid to, or turned over, under, an order of the probate court, to Jones, who is only an agent of James Manning, an entire stranger to all the community, if he be a real person; and such was the imminent danger of the entire estate being lost and destroyed, that complainant had no adequate or full remedy at law or in equity, except by injunction, and a bill was filed in the probate court to restrain McCain from paying over the estate to Jones, which prayed that a receiver be appointed to take charge of the estate. That the probate judge of Sharp county, on presentation of the bill, granted an order of injunction, restraining McCain from paying over the assets of the estate to Jones or Manning, etc., and restraining Davidson from further prosecuting the claim of Manning to the estate in the probate court of Sharp county, until appellees had reasonable time to prove heirship, or right and title to the estate, and Perry West was appointed receiver of all the assets. That afterwards, by consent, this order of the probate judge was so far modified as to allow McCain to collect the assets, and on the promise of appellants that no waste should be committed, at their request the order for a receiver was set aside. The prayer is, that as appellees were without remedy at law, and the probate court of Sharp county had no jurisdiction, etc., appellants Jones, Manning and McCain be made defendants (Davidson is omittted in the prayer, although made a defendant in the caption). That defendants be required to discover whether Manning is a real or pretended person. Then follows a long special prayer in the nature of special interrogatories. The relief prayed is, that the injunction which had been granted by the probate court of Sharp county, restraining McCain from paying over the assets to James Manning, or to any person for him, be made perpetual, and for the appointment of a receiver, and that the order vesting assets of William Minogue in James P. Jones, for use of James Manning, be declared void for fraud; that appellees be declared devisees and legatees, and that the pretended assignment of Martin Minogue (which is averred in the bill to be a fraud and forgery) be set aside as a forgery, and for distribution or division of the estate among complainants, and for general relief.

No injunction seems ever to have been granted on this bill, though it seems that a receiver was appointed by the circuit judge. And in passing, we may as well here notice a point that has been made here, that the bill was defective, and the demurrer hereafter mentioned should have been sustained to it, because no property, real or personal, was described or specified in the bill, except by the general description, of the estate of William Minogue. This objection, we think, is well taken. The bill is remarkable for its vagueness. While equity is tolerant and not rigidly technical as to the form or mode of stating a case, yet certainty to a common intent, the lowest form in common law pleading should be observed, and vagueness is a defect for which a demurrer will lie. See Story’s Eq. Pl., secs. 240, 241, 242. And it was left to inference, even by this general description, whether the estate consisted of real property, personal or mixed, whether of a mere liability of a wasting administrator or of substantial property e And upon this bill the court below appointed a receiver.

A court should never appoint a receiver and direct him to take charge of property, without a description of the same with reasonable certainty, such as will enable the receiver to ascertain and take charge of the subject matter of his trust. And before appointing the receiver the court below, of its own motion, even without a demurrer, should have required plaintiff to be more specific. Neither should the court, after overruling the demurrer, have proceeded to order distribution of the estate among complainants, without specifically setting out the property to be distributed, and not, as seems to have been done, left plaintiffs to go out and find what has been awarded them as best they could.

The plaintiffs were not entitled to greater relief than the case made in the bill showed them entitled to. 13 Ark., 89 ; id., 189; 14 id., 45; 17 id., 120.

Young McCain filed his separate answer, denying that' he had confederated with the other defendants to cheat, etc. ; denies any fraudulent intent, and avers that he received the estate by authority of the probate court, for the benefit of the devisees and legatees of William Minogue, offers to- surrender the assets at any time to a receiver, and joins in the prayer of the bill for the appointment of one. He returns no inventory and adds nothing to the description of the property. It is still the estate of William Minogue, nothing more.

James P. Jones, James Manning and William Davidson filed their joint answer, Manning, however, not in person. Appellees made some effort to force Manning’s personal appearance, having questioned the reality of his existence; the effort either failed or the matter was dropped; at least the record does not show his personal appearance. The first paragraph of the answer denies the identity of Martin Minogue with the legatee and devisee of the will of William Minogue of that name. The second paragraph denies that William Minogue was ever naturalized in the United States. As this raises substantially the same question which was raised by the demurrer, involving the rights of plaintiffs, we will discuss and settle it here.

It was not material whether William Minogue was naturalized or not; neither was it material that plaintiffs were unnaturalized. To say nothing of our statute, which enables aliens to transmit an inheritance, which has been the law since the revised statutes of 1839, and before (see R. S., ch. 49, sec. 6; Gannt’s Dig., sec. 2167) it is well settled that an alien may acquire an estate in land which will be good against all the world, except the state, and against it until office found. 1 Washb. Real Prop., pp. 48, 49, and note; Governeur v. Robertson, 11 Wheat., 332.

At common law, when a party dies leaving issue who are aliens, the latter are not deemed heirs at law, but the estate descends to those who have inheritable blood. But an alien may take by purchase. Orr v. Hodgson, 4 Wheat., 453. The word “purchase,” in the above case, is used in its enlarged sense, which includes every other mode of acquiring property as distinguished from descent, and of course includes acquisition by devise. 4 Kent Com., pp. 373, 374 (marginal); id., 441 (marginal page). Land devised to an alien does not escheat until office found. Taylor v. Benham, 5 How. (U. S.), 233; Knight v. Duplessis, 2 Ves., 260; Co. Lit., 2-6; Powell on Devises, 316; Hubbard v. Goodwin, 3 Leigh, 512; 3 Wheat., 589.

In the further progress of this cause, even if we are wrong as to the common law, the question becomes immaterial. Eor the state, which alone has the right of escheat, if the property cannot descend to aliens, or be devised to them, has waived that right, or made its existence impossible, by act approved December 15, 1874, which amends section 235 of Grannt’s Digest, so as to enable aliens to take lands by inheritance, will or deed, and transmit by deed, will or descent; and removes all disabilities of alienage in favor of heirs and devisees.

The 8th paragraph states that Manning is the owner of the estate, as assignee of Martin Minogue, who survived Bridget and even the other devisees of William’s will. This paragraph, with the first, presents a material issue.

The 9th and 11th paragraphs deny the confederation and fraud in reference to the probate court orders. This also presents a material issue.

The 12th paragraph denies the averment of the bill, to the effect that there was no evidence before the probate court upon the application to turn over the estate to Jones.

The answer concludes as follows:

“And these defendants, not waiving any of their causes of demurrer herein, do demur and say :

“ I. That this court has no j urisdiction of this cause of action or subject thereof.

“ II. That plaintiffs have not capacity to sue.

“III. That there is another action pending between the same parties in the probate court for the same county.

“IY. That there is a defect of parties plaintiff.

“ Y. That the complaint does not state facts sufficient to constitute a cause of action.

“ YI. That the bill of complaint is on its face multifarious, intricate and prolix.

“ YII. That said bill does not show any consideration or amount in controversy between the parties herein.

“ Yin. That there is no relief prayed for, whereby or upon which, this court can grant any relief.

“Defendants therefore pray to be discharged,” etc.

The record shows that the appellees moved to strike out the answer and demurrer, because they had answered and demurred to the same cause of action; or to compel defendants to elect whether they would abide by said answer or demurrer, and the same was submitted to the court.

This motion the court sustained, and. defendants excepted to the ruling in thus compelling them to elect, and noted the same on the record, and they then elected to stand upon and abide by their demurrer. The court overruled the demurrer, or rather the demurring clause or reservation of the answer, and the defendants declining to answer “ further,” a final decree was rendered against them; they appealed to this court.

The answer presents but few material issues. The other paragraphs, not mentioned, are either admissions of allegations in the bill, or do not present anything material for us now to notice. But those we have indicated above are quite sufficient to have put the appellees upon proof, if the appellants were entitled to the benefit of their answer. Conceding that McCain’s answer presented no issue except as to costs, which was personal to himself and concerns his own conduct only, and denied no material allegation of the bill, we cannot thus overlook the answer of the other defendants, if they had the legal right to it, and the court erred in compelling an election.

Section 136, civil code, authorized the filing of a demurrer with the answer, which demurrer was required to be presented for consideration of the court, at or before the calling of the cause for trial, after the filing of the same; or failing, the demurrer is regarded as being waived as to all points except the jurisdiction of the court, and that the pleadings demurred to do not state facts sufficient to constitute a cause of action or defense. This was substantially the practice in chancery in this state before the code went into effect, and it was customary to conclude an answer with a general demurring clause by way of reservations of the questions of law, and the conclusion of the old form of answer was much like the general demurring clause of this answer, with the further prayer that this reservation of the causes of demurrer might be taken at the hearing with like effect as though the same had been raised by demurrer specially.

This court has decided such reservation good in the old practice. Meux v. Anthony, 6 Eng., 411; Sullivan v. Hadley, 16 Ark., 150; Lovette v. Longmire, 14 id., 339. And this general mode of reserving the general question of the legal sufficiency of the bill prevailed under the English chancery practice. Says Mr. Daniel: “ At the hearing, the defendant will in general be entitled to all the same advantage of this mode of defense (speaking of the demurring clause of the answer) that he would have had if he had adopted the more concise mode of defense by demurring.” 2 Daniel Ch. Pl. and Pr., 819 ; Wray v. Hutchingson, 2 M. & K., 235 ; Milligan v. Mitchel, 1 Milne & Craig, 433. It follows from these authorities. as well as the code, that in so far as the general sufficiency of the bill and the jurisdiction of the court were raised by the demurrer, which was the concluding part of the answer, the defendants had a right to insist upon it at the hearing; and in so far as any special causes of demurrer were raised, which did not go to the very right of the matter as set forth in the bill, or the jurisdiction of the court, by the civil code, if not presented in due time, the same were waived.

We find, therefore, that the court erred in overruling the demurrer, and that it should have sustained it, because of the vagueness of the description of the subject matter of the suit. The bill could not be sustained as an original bill for relief; and although the charges of fraud were well and distinctly put, and the interrogatories well and pointedly propounded, we cannot sustain this as an ancillary bill for stay of proceedings, in aid of another suit, or as a bill of discovery: 1. Because the rules of equity pleadings do not allow us to so dissect a bill. It must be good for the object it proposes, in the same aspect presented, or not at all. 1 Daniel Pl. and Pr., 381; 1 Story Eq. Pl., 303-401. 2. The plaintiffs do not aver the existence of any suit, of which the discovery or staying of proceedings in the probate court is in aid; nor do they promise or profess to intend to bring one; on the contrary, they pray the relief here. 3. The vagueness in the description of the property is a defect in the bill, which affects it in every respect, in this, that plaintiffs thereby failed to allege, with sufficient certainty, any substantial right, as to which they have suffered wrong. He who complains of an injury must describe the matter as to which he has been injured, as well as the mode or manner of the injury, and the name of the wrong doer; the two last named elements the pleader here has observed well, but neglected the first.

The court erred in compelling defendants to elect between their answer and demurrer; it erred when, after overruling the demurrer, it disregarded the answer and granted relief on the admission implied from the demurrer, without proof, while material allegations of the bill stood traversed and denied.

The defendants have argued here, that as plaintiffs are subjects of Great Britain, our courts have no jurisdiction to redress their wrongs, because the constitution of the United States conferred jurisdiction of suits between foreigners and citizens of the United States upon the United States courts. That constitution also provides, in the Xth amendment, that the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. Most of the powers prohibited to the states by the federal constitution, if not all, are enumerated in the 10th section of article I. of the constitution, and the power of extending the ordinary comity, which no civilized state on earth denies to the subjects or citizens of other states, that of applying to her courts for redress of wrongs, is nowhere prohibited to the states, either expressly or by implication, in the federal constitution. The provisions of section 2, article III, no more create an exclusive jurisdiction in the federal courts, in cases between citizens of the states and foreigners, than the same section creates an exclusive jurisdiction, in the same courts, in cases between citizens of different states, or between citizens of the same state claiming lands under grants of different states, or any other of the enumerated classes, excepting those cases in which from their nature the jurisdiction must be exclusive, as admiralty jurisdiction is held to be, the jurisdiction of the state and federal' court is concurrent. This is especially so in cases of aliens. If it were not so prior to the judiciary act of 1789, they were without remedy, and are now, when the amount in controversy is under $500. Conkling’s Treatise, 138, 139, note. For it has been decided that without congressional legislation, the constitution alone conferred no jurisdiction. See case cited by Mr. Conlding.

For these errors, let the decree of the circuit court of Sharp county, in this cause rendered, be reversed, and the cause be remanded to said court witb instructions to sustain defendants’ demurrer to plaintiffs’ bill, and allow them to amend the same, if they can do so and so desire, and if amended, to proceed with the cause as the law directs, and on failure of plaintiffs to amend their bill, that the same be dismissed, and to proceed in all things in accordance with law as herein directed.

Hon. E. H. English, C. J., did not sit in this case.


text:
    Stidham and wife vs. Matthews et al.
    1. Married Woman: Conveyance, or relinquishment of dower by.

    Under our statute, an acknowledgment, upon privy examination, is requisite to the validity of the wife’s conveyance or relinquishment of dower, and the husband must join in the deed.
    2. —Cannot contract to convey land.

    A married woman cannot, under the statute, execute a title bond or executory contract to convey land.
    3. Vendor and Vendee. Becitals of vendor's deed are notice.

    A vendee is affected with notice of the recitali contained in the deed of his vendor, whether it is of record or not.

      4. Statute oe Limitations : In case of dower.

    The statute of limitations runs against the widow’s right of dower, in favor of a stranger, from the time of the husband’s death.

      APPEAL from Lincoln Circuit Court
    Hon. Wm. S. McCain, Special Judge.

      Harrison & Jones, for appellant.
   On the 2d day of February, 1872, William S. Stidham and Emma C., his wife, filed their complaint in equity in the circuit court of Lincoln county, against the three children of John I. Matthews, who were minors, and John H. Fry, in which they allege that about the 18th day of January, 1859, Emma 0. intermarried with John I. Matthews, and lived with him as her lawful husband until his death, on the 11th day of February, 1864, who died intestate, leaving Emma C. his widow, and the three minor defendants his heirs at law.

That Emma 0., on the 24th day of March, 1868, intermarried with William S. Stidham. That “ during the coverture of the said Emma 0. and John I. Matthews,” he was seized and possessed of an estate of inheritance in certain land described in the complaint, lying in Lincoln county, Arkansas, containing two hundred acres. That Emma C., as widow of John I. Matthews, never had dower assigned to her in the real estate, or in any other property of John I. Matthews, deceased, to which she had a right as such widow. That the three minor defendants, Willie Gr. Matthews, Ida B. Matthews and Mattie J. Matthews, are heirs at law of John I. Matthews, deceased.

That defendant Fry is in possession of the land, and holds the same under some pretended title not known to complainants. But if he derived title by virtue of any deed of conveyance from said John I. Matthews, they averred that the right to dower had not been relinquished in the land by Emma C., either by deed or otherwise. Prayer that Fry and the children of Matthews be made defendants, etc., and that dower in the land be decreed and set apart to Emma C.

The minor defendants having been served with process, a guardian ad litem was appointed for them, and he answered in thé usual form, asking that their interest might be protected by the court; that by reason of their tender age, they knew nothing of the matters claimed in the bill.

Defendant Fry answered, admitting the marriage of Emma C. with John I. Matthews, and that she was his widow as alleged in the complaint, and that John I. Matthews departed this life as stated (February 11, 1864). Denies that John I. Matthews was ever seized and possessed of the lands. That he purchased the lands in the year 1863, from said John I. Matthews, and has fully paid the entire purchase money for the lands; that the title to said lands was in Stephen Matthews, the father of John I. Matthews, and the last of the notes for the purchase money of said land was transferred to said Stephen Matthews, and respondent paid the same to him and received from said Stephen and his wife an absolute deed in fee simple for said lands; that respondent was informed by Stephen Matthews that he held the title to said lands, and had never conveyed the same to the said John I. Matthews, and the plaintiff’s claim of dower was a fraud upon respondent’s rights. Again, positively denies the seizin of John I. Matthews, and states that there was no record evidence of title to said lands in the said John I. Matthews, in the county of Bradley, plaintiff well knowing all the time that defendant took actual possession of the lands in the year 1863, and has had continuous, uninterrupted and adverse possession of the same, from the time he first took possession of the land to the time of answering. Claims the benefit of the statute of limitations, seven years adverse occupancy since plaintiff’s dower right accrued. The answer concludes with a demurring clause.

The facts proven, and as to which there was testimony tending to prove, are: That plaintiff’s, Stidham and wife, were married before the suit was brought; that Mrs. Stidham was the wife of John I. Matthews, and never lived on the land in controversy, where Ery now lives; that Fry has lived there seven or eight years; that Stephen Matthews had stated that he had sold the land to John I. some time in 1862 ; that John I. Matthews and his wife moved off the land, giving Fry possession, after selling it to him, and moved to the Lucas place in Drew county. This occurred about eight months before the death of John I. Matthews; that Mrs. Stidham knew of Fry’s possession of the land all the while, he remaining in possession from his purchase from John I. Matthews until-now. Fry took possession in 1863, having purchased the land of John I. Matthews (a witness, Barnett, says) from John I. Matthews and his wife. This witness states that he wrote the title bond also, that he has no distinct recollection of the contents of the title bond, or how it was signed. Does not recollect whether Mrs. Matthews signed it or not. But John I. Matthews called on witness to write an instrument of writing connected with this land, and after he wrote it he thought John I. Matthews signed it, but does not recollect whether Mrs. Matthews signed it or not; it was an ordinary title bond to secure purchase money on land. This witness stated that he had been Mrs. Matthews’ agent to pay her taxes for two years after her husband’s death, and paid taxes on her lands. She never claimed dower in Fry’s land. Mrs. Stidham denies ever signing the title bond. No witness even pretends that she ever relinquished dower by signing, and upon privy examination by a proper officer, acknowledged it, and as she could relinquish dower in no other mode, we shall not further comment upon the testimony, as to whether she signed the title bond or not, of which the testimony of Barnett is the strongest specimen.

It is proved, by the exhibition of the deed, that Stephen Matthews and his wife, on the 4th of March, 1862, conveyed these lands in controversy by deed, with covenants of warranty, to John Isaac Matthews, Mrs. Stidham’s former husband. This deed was duly acknowledged before O. P. Scudder, a justice of the peace, but was not recorded or filed for record, until the 18th day of January, 1872, when it was filed for record in the office of the recorder of Lincoln county, Arkansas, and in point of fact, when they purchased the land first and took possession under John I. Matthews, the title by which he held was unrecorded.

W. S. Stidham and his wife both testified in the case. Stidham details a eoversation with Fry, in which he demanded of Fry his wife’s dower. That Fry claimed to have a bond for title from Mrs. Stidham and John I. Matthews, her former husband. Stidham told him his wife denied ever making him a title. The witness then states, “ He then asked me if she denied selling him five acres of land- there. (The conversation was detailed as having occurred at Fry’s house on the land.) I answered him that she did not deny it; I told him that Stephen Matthews persuaded her to let him have the five acres; my wife says that she thinks that she signed some kind of a paper relating to that five acres. Mr. Fry then said that my wife was more anxious to sell the whole place to him than John I. Matthews was; I answered Mr. Fry that she said she refused to sell it.” John H. Fry, the defendant, testified that he purchased the land of John I. Matthews, in the year 1863, except five acres of the same tract, gave fifteen hundred and forty dollars for the whole amount of land involved in this, suit, paid one thousand and forty dollars down in cash, and gave his note for the balance to John I. Matthews, payable the Christmas following• — -Christmas, 1863. Before the note fell due, John I. Matthews came to the witness and told him he had traded the note to his father, Stephen Matthews, and he told witness the title to his land would come through his father. Witness paid the note to Stephen Matthews, and received from him what the witness calls a deed, which he exhibits with his deposition, in words following :

State of Arkansas — Bradley County — Received of John H. Ery, one thousand dollars, in full payment for the northeast quarter of northeast quarter of section thirty-three (83), and the southwest quarter of the southeast quarter of section twenty-seven (27), and the northwest quarter of section thirty-four ; and the southeast quarter of northeast quarter of section thirty-three, all in township nine south, of range ten (10) west, containing two hundred acres, more or less, according to the United States surveys, the title of which we warrant good to John H. Ery, his heirs and assigns, etc., forever, to which we bind ourselves, heirs, assigns, etc., and hereto set our hands and seals this 10th of May, 1867.

Stephen Matthews, [seal.]

Kezia Matthews, [seal.]

This paper had an informal certificate of acknowledgment, which states that Matthews and his wife appeared and “ each and severally acknowledged that they executed the foregoing deed in good faith, and she saith, that she was not influenced thereto by threats or fear of her husband.” The paper was recorded. The deed is copied literally above, as is the substantial part of the so-called acknowledgment. Were this paper material in the case, we would feel called upon to scrutinize the certificate of acknowledgment with more care. We do not wish our silence to be construed into approval. It is worthy of remark too, that while this paper really describes two hundred and eighty acres of land, it calls it two hundred.

It is further remarkable, that Stephen Matthews’ deed to John I. Matthews, above referred to, of March 4, 1862, conveys only a part of the 'land described in this receipt of Stephen Matthews to Ery, to-wit: northwest quarter of section thirty-four, 160 acres; and the northeast quarter of the northeast quarter of section thirty-three; that is the description of the land for dower in which Mrs. Stidham sues. Perhaps that additional eighty acres in Stephen Matthews’ paper, may explain the statement of John I. Matthews to Ery, that the title must come from his father: be that as it mny, if John I. Matthews was seized of the land, he could not convey his wife’s dower by deed, much less admit it away in a loose conversation.

Ery further testifies that when he bought the property, John I. Matthews and his wife, the plaintiff, Mrs. Stidham, were residing on it. That-he took possession of the property on June 23, 1863, and had remained in continuous possession of it ever since, and paid all taxes, and claimed it as his own, and never recognized any other’s right. That Mrs. Stidham knew of this possession, for she moved out as witness moved in, and was at his house frequently, and was staying within a mile. The title bond which witness received from John I. Matthews and his wife for the land, he gave up to Stephen Matthews when he took the deed exhibited with this deposition, and since his death it has been looked for, and cannot be found.

Ery further testifies that he purchased five acres of the land in controversy, in February, 1863, and received from Mrs. Matthews, now Mrs. Emma C. Stidham, and “ Stephen Matthews,” a title bond for the five acres. He returned this title bond to Stephen Matthews when he made the deed witness speaks of. The consideration for the five acres was forty dollars, which witness paid John I. Matthews when he came home; he was in the army when his wife signed the title bond for the five acres.

Mrs. Stidham testifies that she recollects when the land was sold to Ery ; but does not recollect signing any papers in regard to the transfer of the land, and knows she never did sign any paper to m'ake a transfer of that land; if she had, she certainly would have remembered it. Prior to the sale of the place, recollects signing some kind of paper, but does not know what it was, but supposes that the paper signed was connected with the sale of the five acres of land sold to Mr. Ery. This was some three or four months prior to the sale of the land by John I. Matthews to Mr. Ery. This land in controversy was witness’ home at the time it was sold, and was the property of her former husband. She was not willing for the place to be sold; was bitterly opposed to it.

As to the five acres of land spoken of by the witness, as to which Mrs. Stidham is admitted to have signed a title bond, we might consider that separately, and' except' it from the decree. But as the proof utterly fails to show, even Ery himself does not swear, that she was ever examined as to the execution of it, separately and apart from her husband, we cannot regard it.

Our statute on the subject of relinquishment of dower and conveyance of the wife’s land is as follows: “ A married woman may relinquish her dower in any real estate of her husband by joining with him in a deed of conveyance thereof, and acknowledging the same in the manner hereinafter prescribed. Gantt’s Dig., secs. 838, 839. Gantt’s Digest provides that the wife may convey her lands by deed executed by herself and husband, and acknowledged in like manner. Sec. 849, Gantt’s Dig., provides that the conveyance of any real estate by any married woman, or the relinquishment of dower in any of her husband’s real estate, shall be authenticated, and the title passed, by such married woman voluntarily appearing before the proper court, or officer, and, in absense of her husband, declaring that she had of her own free will executed the deed or instrument in question, or that she had signed the relinquishment therein contained and set forth, without compulsion or undue influence of her husband.” •

1. It is not the executing a relinquishment of dower, or deed, that passes dower or title in the wife’s lands alone, it is the privy examination which gives the act validity, as well as establishes its execution; however, this acknowledgment is not good without joining her husband in the deed. Witter v. Biscoe, 13 Ark., 423.

2. We cannot' regard it, because the answer nowhere sets up this matter, or relies upon it. While we adhere to the rule announced in Hanks v. Harris, ante, p. 323: That where the proof shows a party is entitled to relief, and the pleadings are defective, where the point is for the first time made in this court, we will regard the pleadings as having been amended, as it could have been done below, if the objection had been made in apt time; still we cannot regard this title bond, for, according to the proof, an amendment could not have been made of avail, for the reason first above given.

Furthermore, it is shown to be a title bond, which is an ex-ecutory contract, and the statute which authorizes married women to execute deeds of conveyance and relinquishment of dower is an enabling statute, but in derogation of the common law, and must receive, if not a strict, at least a liberal construction. The statute does not authorize married women to make executory contracts for future conveyances; that is at war with the letter and the spirit of the statute, which intends, while removing a common law disability to convey, to throw around a married woman its protection from the duress, or undue influence of her husband.

If she was- allowed to make and acknowledge such a contract as this, when does her title pass ? Must she be privily examined when she promises to convey in future, or when she conveys, or both? If on-both occasions, when does title pass ?

Even after the death of the husband, and before assignment of dower, the widow cannot transfer her dower to any one, except to one having the legal title. Carnall v. Wilson, 21 Ark., 62. Here, if we were to give effect to this title bond for five acres, we would have the legal title in the husband, and the possibility of dower relinquished to a stranger by his wife.

The statute requires that the wife shall join the husband in the deed. Here she joined Stephen Matthews, the father, in a title bond as to the five acres. We cannot give effect to any mode of conveying a wife’s interest in real estate, not in substantial accord with the statute. Although a substantial compliance with the statute is sufficient, it must exist. Tubbs v. Gatewood, 26 Ark., 128.

Without joining in the deed, the acknowledgment alone will not be sufficient to effect a relinquishment of dower. See Biscoe v. Miller, ubi supra. So where the wife joins the husband in the deed but does not acknowledge it, no title passes. Elliot v. Pearce, 20 Ark., 508; Harrod v. Myers, 21 id., 601.

The claim of the defense that John I. Matthews’ deed was not upon record is futile. We do not deem it necessary, where it is established that the husband was seized during the coverture, to inquire whether or not there can be such a thing as an innocent purchaser without notice, where the husband’s deed is not of record, and there is nothing to put the purchaser on inquiry, for the question does not arise here.

Ery, as he admits, himself, found John I. Matthews in possession ; he bought from him, paid near two-thirds of the purchase money down, took-possession under him. In such case where the vendor holds by deed, the purchaser is affected with notice of that deed, with all it contains of material recitals. 3 Washb. R. Prop., 86 (mar. page 467), sec. 24, and. cases cited in note 2.

Mr. Washburn says: “So a party who traces his title through a regularly executed deed of conveyance is concluded by its recitals.”

In Carver v. Jackson, 4 Pet., 79, the supreme court of the United States held that the recitals of a lease in a deed of release estop all persons claiming under the parties to the deed of release from denying the existence of the lease, or the possession under it, which is necessary to give the release its intended operation. See also Scott v. Douglass, 7 Ohio, 362; 5 id., 194; Jackson v. Ireland, 3 Wend., 99 ; Tartor v. Hall, 3 Cal., 263.

Both parties here trace their title to Stephen Matthews. Even if we should regard the paper Erv relies on as a deed from Stephen Matthews, and that very peculiar certificate as sufficient evidence of its execution, still being junior by some years, it must yield to the elder deed.

The only remaining ground of defense is the statute of limitations. As it is the duty of the heir to assign dower, his possession is never regarded as adverse, for he cannot be allowed to take advantage of his own wrong; and at common law the ordinary statute of limitation did not apply to dower. 4 Kent Com., 70.

But as to strangers or a purchaser, it has been held that the statute of limitation may be pleaded against a dower right, and this latter rule was adopted as law in this state, in Danley v. Danley, 22 Ark., 263, and we are not disposed to review it if we doubted its correctness, for decisions affecting real estate especially, become laws of property, and a rule when once established affecting titles to property should be left to legislative change where the effect will be prospective.

In point of fact, Mrs. Stidham was not barred; for seven years had not elapsed since her cause of action accrued, deducting the period from the 11th day of February, 1864, the date of her husband’s death, until the war ended, which we have decided must be done. Metropolitan Bank v. Gordon, 28 Ark., 115 ; Randolph v. Ward, ante, p. 238.

The court below having on -the hearing dismissed complainant’s bill, the decree of said court is reversed, and the cause will be remanded, with instructions to decree to complainant, Emma C. Stidham, her dower in the lands described in the bill, and for further proceedings as the law directs.

Hon. Wm. M. Harrison did not sit in this case.


author: Harrison, J.

text:
    Cairo and Fulton R. R. Co. vs. Hecht & Stephens.
    Constitutional Law: Corporations, service of process on.

    The provisions of a charter of incorporation, regulating the manner of serving process on the corporation, relates alone to the remedy, and a subsequent general enactment, prescribing the manner of serving process in such cases, operates as a repeal of the charter provision.
    EEEOE to Clayton Circuit Court.
    Hon. W. F. Henderson, Circuit Judge.

      Rose & Winfield, for appellant.

      J. M. Moore, contra.

   Harrison, J.

This was an action brought in the circuit court ofv Clayton county, by Hecht &• Stephens against the Cairo and Fulton Eailroad Company, to recover damages for injuries done to the plaintiffs’ oxen by the locomotive of the defendant, through the negligence of its servants and employés.

The summons was served in Clayton county, by copy left with the defendant’s clerk, there being no chief officer of the company in the county.

The defendant failing to appear and answer, the plaintiffs’ damages were assessed by a jury, and judgment taken by default against the defendant for the amount.

The defendant has brought the case here by writ of error, and seeks to reverse the judgment upon the ground that there was no valid service of process.

Section 4515, Gfantt’s Digest, provides that, “ where the defendant is a corporation created by the laws of this state, the service of the summons may be upon the president, mayor, chairman of the board of trustees, or other chief officer; or if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent.”

The plaintiff in error was incorporated by a public act of the general assembly, entitled, “ an act to incorporate the Cairo and Fulton Railroad Company,” approved 12th January, 1853 ; and by section 13 thereof, all the rights and privileges, immunities and franchises contained in the charter of the Mississippi Yalley Railroad Company, not restrictive or inconsistent with its other provisions, were extended to and conferred upon it.

The Mississippi Yalley Railroad Company was incorporated the same session, also by a public act, entitled “ an act to incorporate the Mississippi Yalley Railroad Company,” and the 24th section of it is as follows: “ Process on said company shall be served on the president, by leaving a copy to his address, at the principal office of the corporation, in the hands of any of its officers. The said corporation shall have power to establish a principal office at such place as they may see fit, and the same to change at their pleasure.”

The plaintiff in error insists that the foregoing provisions of the charter of the Mississippi Valley Railroad Company were, by the said 13th section of its own charter, transferred to and incorporated therein, and contends that section 4515 of Gantt’s Digest, which is a provision of the code of practice, subsequently enacted, and in accordance with which the service was made, is within the prohibition of the clause of the constitution of the United States, which declares no state shall pass any law impairing the obligation of contracts.

Admitting that the provisions of the 24th section of the charter of the Mississippi Valley Railroad Company were incorporated into the charter of the plaintiff in error by its 13th section, a question not necessary for us to determine, that in relation to the service of process was not the concession of a right which, as such, would be irrevocable by the legislature» nor indeed any concession at all; but a provision for the remedy of wrongs and injuries in eases where the company was a party, and it is now a well established doctrine that the legislature may change the remedy of one of the parties to a contract without in the least impairing its obligation. Newton v. Tibbets, 7 Ark., 150; Woodfin v. Hooper, 4 Humph., 13; Stocking v. Hunt, 3 Denio, 276; James v. Steel, 9 Barb., 483; McLaren v. Pennington, 1 Paige, 107; Howard v. Kentucky Mutual Insurance Co., 13 B. Mon., 282 ; Bank of Columbia v. Okely, 4 Wheat., 235.

The supreme court of the United States, in the case of the Bank of Columbia v. Okely, held that the provision in the act by which the bank was incorporated, which gave a summary process for the recovery of notes indorsed to it that were made negotiable at it in their creation, was no part of its corporate franchise ; but as the mere remedy and not the right, might be repealed or altered as the legislature might will. In their opinion in that case the court say: “ In giving this opinion, we attach no importance to the idea of this being a chartered right in the bank. It is the remedy and not the right, and as such, we have no doubt of its being subject to the will of congress. The forms of administering justice and the duties and powers of courts as incident to the exercise of a branch of sovereign power must ever be subject to legislative will, and the power over them is unalienable so as to bind subsequent legislation.”

In the case of Howard v. Kentucky and Louisville Insurance Co., the act creating the corporation required all suits by members of the company against it for losses by fire, to be brought, in the circuit court of Jefferson county; but the code of practice of Kentucky, subsequently enacted, authorized suits against banks and insurance companies to be brought in the county in which there was a branch of the bank or agency of the company, when the same arose out of a transaction of such branch or agency, and the court held that the company did not acquire a right under its charter to be sued alone in the county of Jefferson that could not be divested by subsequent legislation.

There was due service of process, and the judgment must be affirmed.

FT. B. This cause has been removed to the supreme court of the United States by writ of error.