author: HarrisoN, J.:

text:
    Farris vs. State, Use of Sawyer.
    1. Attachment : Duty of Officer.

    It is the duty of an officer who seizes property under attachment to retain control of it, so he may return it, if required.
    2.-: Exemption, Supersedeas, etc.

    The fact that a Justice of the Peace was directed by a writ of mandamus, issued from the Circuit Court, to issue to the Constable a supersedeas against the sale of property seized under attachment, and claimed by the defendant as exempt, did not authorize the Constable to restore the property before the supersedeas was in fact issued.
    3. Pleading : Judgment on defective complaint:

    Trial and verdict for plaintiff, judgment reversed because the complaint shows no cause of action.
    APPEAL frm Lonolce Circuit Court.
    Hon. J. W. MartiN, Circuit Judge.

      Hdllum, for Appellant.

      Trimble and Ohapline, contra.

   HarrisoN, J.:

This was an action by the State for the use of R. L. Sawyer against N. J. Farris and his securities, W. E. Dempsej and W. Harris, on the bond of said Farris as Constable of Lonoke Township.

The breach complained of, was the failure of said Constable to deliver up or restore to said Sawyer, a horse seized under an attachment against him, after the filing by him with the Justice of a schedule of his property, including the horse, which he claimed to be exempt from sale under the execution.

Farris, only, made any defense. He filed an answer which denied, none of the allegations of the complaint and set up no other defense than that the horse was placed by him in a livery stable, and that the expense of his keeping not being paid, he was sold therefor by the keeper of the stable, and it was, consequently, impossible for him to return him.

To this answer a demurrer was sustained ; and although he filed an amended answer, and the sufficiency of such defense is ■ not before us, we deem it not inappropriate to remark, that it was clearly’the duty of the Constable so to have kept the property attached, that he could return it, if its return was required If he saw fit to keep the horse at the livery stable he should, himself, have paid for his keeping. The statute is plain : “The Sheriff, Constable, or other officer, shall safely keep all property, taken or seized under legal process and shall be allowed by the court the necessary expense of doing so, to be paid by the plaiutiff and taxed in the costs.” Sec. 2,851 Gantt’s Digest.

In his amended answer, he answered that he offered to return the horse to Sawyer, but he refused to go to the stable to receive him, and he denied that he ever refused to return him.

The jury returned a verdict foi the plaintiff, and assessed the damages at $190, for wbicb judgment was entered.

All the defendants appealed.

The appellants insist that no cause of action is shown by the complaint.

The complaint, which is very loosely drawn, and defective in its averments, alleges that the Justice of the Peace was directed by a mandamus from the Circuit Court to issue to the Constable a supersedeas against the sale of the horse, but does not allege or show that such supersedeas was in fact issued. Until the supersedeas was issued, it was the duty of the Constable to keep, and retain possession of the horse, and there could be, before then, no breach of the condition of his bond by the request to return or the non-delivery of him.

The averment that the supersedeas was in fact issued, is therefore, a material one, and its omission fatal to the action.

The judgment is reversed and the cause remanded to the Court below, with instructions, to permit the plaintiff, if so advised, to amend his complaint, and for further proceedings.


source: Caselaw Access Project

author: EaiciN, J.:

license: Public Domain

text:
    Brewster vs. Clamfit.
    1. Mortgages to Secure Future Advances.

    If bona fide and sufficiently definite are valid. When the amount intended to he secured is in its nature indeterminate, or where it may be easily ascertained outside of the mortgage, the failure to set it out, will not vitiate.
    2. MORTGAGE; Mis-descnption, collection, etc.

    Where a tract of land is misdescribed in a mortgage or trust deed, the equity of the mortgagee or grantee to have it corrected is equal, and prior in point of time to that of a subsequent judgment creditor.
    3. Stay oe Execution : Effect upon Judgment Lien.

    The voluntary stay of execution by the judgment creditor, does not destroy the lien of the judgment.

      APPEAL from Crittenden Circuit Court in Chancery.
    Hon. L. L. Mack, Circuit Judge.

      Randolph, for appellant.

      Adams, Contra.

   EaiciN, J.:

On the 18th of April, 1871, the complainant Brewster, recovered in the Crittenden Circuit Court, a judgment against Wm. Clamfit, for the sum of $3,992, and costs, in which judgment it is recited that plaintiffs thereupon ‘ ‘ order a stay of execution herein for six months.” This judgment was based upon a transcript of a Tennessee judgment rendered in the year 1865. There was execution upon the Arkansas judgment, and return of no property found. The greater part of it remains unpaid.

Complainant Brewster, brought this suit in the nature of a creditor’s bill against defendants, Clamfit, J. C. Terry, and a number of other parties, holding title to, or claiming interest in divers tracts of land, in order to reach equitable interests of Clamfit in the different parcels, or to claim and enforce equities as a creditor, against vendees affected by fraud. In the progress of the suit the bill has been dismissed as to many of the parties and much of the lands. So far as it has been retained it charges:

That on the 24th day of September, 1868, said Clamfit conveyed by trust deed to O. P. Lyles, a quantity of lands in Crittenden County, of which he was the legal owner, together with the crop of cotton and corn growing thereon, with some personal property such as is usually found upon plantations. This deed recited that Clamfit was indebted to the firm of Price & Terry, in the sum of - dollars, “for cash advanced, supplies furnished, and for further sums of money to be advanced to and for said Clamfit, upon acceptances this day arranged and agreed upon,” and to certain other parties named in the deed “ in various sums evidenced by judgments in the Circuit Court of Crittenden County, Arkansas ; and which judgments after payment of the sums for labor on said place, and the sums so due to Price & Terry, are to be paid in equal annual installments, * * * as far as possible out of the proceeds of said crops to be shipped to Price & Terry.” On default the trustee was authorized to sell all the property. Meanwhile the judgments mentioned were to remain in full force, with their liens reserved ; and execution might issue for any balances the property might fail to pay. No sums were mentioned as due to any of the parties. With the exception of the account of Price & Terry, (which seems to have been intended to depend upon acceptances then agreed upon, and future advances) the amounts could have been ascertained by reference to the records of the Court.

It further appears from the bill and exhibits that the trustee afterwards, on the 13th of August, 1872, in pursuance of his powers, sold the lands and other property, and that they were purchased by J. C. Terry, for the sum of $13,000, which amount was credited upon the debt of Clamfit to Price & Terry, to which Terry had succeeded.

This deed of trust and these proceedings, are attacked by the bill as fraudulent for uncertainty, and as gotten up by collusion amongst Clamfit, Terry, and the other creditors named therein. Also, because personal property to be consumed in the use was to be left in possession of the vendor.

Further; it is alleged that on the 16th day of February, 1872, Clamfit conveyed to said Terry, a certain forty acre tract, reciting that it was intended to be included in the deed of trust,' but had been misdescribed, and so left out; and which was also the ‘ ‘ chosen and selected homestead ’ ’ of said Clamfit; also an additional eighty acre tract, which it is not recited was intended to be conveyed in the deed of trust, but together with the other, is described as the chosen and selected homestead. These tracts it is claimed, are subject to the judgment lien of complainant.

Pending the suit Wm. Clamfit died ; his administrator and hiers were brought in, and together with all parties interested in the matters for which the bill was retained, answered :

The purport of the answer is in general to deny the fraud charged in the deed of trust, to- show that the debts mentioned therein were bona fide ; that in accordance with the intention of the parties, they have been taken up by Price & Terry, or by Terry, who succeeded to the business ; and that these payments, together with future advances in accordance with the deed, amounted to more than was bid at the sale; that the mistake was properly corrected ; that the land subsequently conveyed was a homestead, and the conveyance passed the property free of the lien of the judgment.

The cause was heard upon the pleadings, exhibits, admissions of counsel and evidence, whereupon the Chancellor denied the prayer of the bill regarding the lands and property contained in the deed of trust; and allowed the conveyance to stand with correction of the mistake as to, the forty acre tract; but held the eighty acre tract, conveyed on the 16th of February, 1872, subject to the judgment lien, and ordered a sale of it for that purpose. From this decree Brewster appealed : and afterwards a cross appeal, for defendants, was granted here.

Mortgages for future advances, if bona fide and sufficiently definite, are valid. In this case, the deed of trust failed to specify the amounts then due, either to Price and Terry, or to any others of the creditors to be secured. In the case of Price & Terry that was not important, as the indebtedness, whether much or little, was to be mingled with future advances, in their nature indeterminate. The deed was sufficient to put all persons, interested in the property, upon inquiry, and they might have ascertained the whole amount due Price & Terry at any time, by application to the firm. The other debts were judgments of the Circuit Court of Crittenden County, and easily ascertainable. It would have been better if the deed of trust had set out, at least approximately, the several amounts then due the several creditors ; and the failure to do so, accompanied by marked indicia of fraud in other respects, might have been important. But the proof shows the entire bona fules of the whole transaction; and there is no uncertainty in the deed sufficient to vitiate it. No one seems, in any respect, to have been misled by it. As for the complainant, all his rights against Clamfit then rested upon the judgment of another State, concerning which we must presume the parties to the deed entirely ignorant.

The proof further shows that, at the time of the sale under the deed, defendant Terry, or the firm of Price & Terry, to the rights of which Terry had succeeded, had paid off all the other creditors secured, or nearly all, and that Ms account for these payments and advances, since the execution of the deed, amounted to a sum greater than that bid at the sale, and greater than the value of the prop, erty. As to the forty acre tract, which had been plainly mis-described, the equity of the vendee or grantee in such cases, to have such a mistake corrected, is certainly equal, and prior in time to that of a judgment creditor, who neither acquires a specific lien by his judgment, nor advances any new consideration. His lien is general upon all the real estate of the defendant in the county, but upon such only as he has ; and in the condition in which he then has it — subject to prior equities, until, by sale to a bona fide purchaser, for valuable consideration, said prior equities be lost. The deed to correct the error should more properly have been made to the trustee ; but as it was made to the chief beneficiary, who afterwards became the purchaser of all the lands, the same object was reached.

It is contended by counsel for Terry, that by the voluntary stay of the execution, the lien of the judgment was lost. We have examined the authorities cited on that point, and find that they do not go to the full extent of holding that a stay of execution destroys the lien. Whether or not a voluntary stay of an execution suspends the lien during the stay, it is not necessary here to decide, as in that time no intervening rights accrued to anyone. Suffice it to say that the stay does not destroy the lien.

The eighty acre tract conveyed to Terry by deed of February 16th, 1872, which was not in the deed of trust, was properly found subject to'the judgment lien. There is no proof that it ever had been used as a homestead, only that together with another forty acre tract, (Vhich the plat would show to be nearly a mile away) it had been chosen and selected as such. The proof fails to show actual residence on either tract.

Let the decree be affirmed.


author: ENGLISH, C. J. :

text:
    Rogers vs. James.
    1. PURCHASE Money for Land. When Security for passes to Assignee. 'Vendor’s Lien not assignable.

    Where a vendor of land retains the title as security for the purchase money, , and afterwards assigns the land note, the security for its payment passes to the assignee as an incident to the debt. But where the land is conveyed by an absolute deed, reciting the payment of the purchase money, the vendor has no security for its payment but a vendor’s lien in equity, which is not assignable either by an assignment of the note or by express transfer or assignment of the lien.

      2. VENDOR’S Lien. When note reassigned by Assignee to Vendor, he may enforce the lien.

    When an assigned note for the purchase money for land, is reassigned to the vendor, or when the vendor takes up the note upon the failure of the vendor to pay it, the debt and lien become reunited in him, and he can enforce the lien in equity.
    3. Mortgage.
    A note for the purchase money of land, the title to which is retained by the vendor as security for its payment, reciting that the land “ is to stand as collateral security for its payment,” is not a mortgage nor in the nature of one.
    4. Assignor and Assignee. When Assignor Liable. Pleading.

    When the complaint of an assignee against an assignor does not allege that the note was duly presented to the maker for payment, that payment was refused and that the assignor had due notice thereof, it shows no cause of action.
    APPEAL from Dallas Circuit Court in Chancery.
    Hon. T. F. Sorrells, Circuit Judge.

      Compton, for appellant.

      Duffeo <& Hill, Contra.

   ENGLISH, C. J. :

This was a bill to enforce a vendor’s lien, tiled on the Chancery side of the Circuit Court of Dallas County, by James J. Rogers, against Jefferson James, and by an amended bill, William P. Rogers was also made defendant.

A demurrer to the bill as amended, filed by the defendant James, was sustained by the Court, and the plaintiff, James J. Rogers, appealed to this Court.

The material facts alleged by the amended bill, are as follows:

On the 24th day of October, 1873, William P. Rogers sold to Jefferson James, the South-West Quarter of the Southeast Quarter, and the South-East Quarter of the South- West Quarter of Section 21, Township 10, South Range 17 West, containing eighty acres and situated in Dallas County, for $400, of which James paid him $100 in cash, and gave him the following obligation for the balance :

“ By or before the first of -, one thousand eight hundred and seventy-five, I promise to pay W. P. Rogers, ox-bearer, the sum of $300.00, with ten per cent, interest from date until paid, for and in consideration of a certain tract or parcel of land, to-wit: the South-East quarter, the NorthEast quarter, North-West quarter, South-West quarter of Section 21, Township ten, (10), seventeen West, for which said land is to stand collateral security for the same.

October 24th, 1873.

“JEFFERSON JAMES, [SEAL.] ”

That by the contract of sale, the note for the unpaid pur-chaso money was to be payable on the first of Januax-y, 1875, but by inadvertance, the month of its matuxity was omitted in the note, in which also, the land was misdesci-ibed by mistake.

That on the first of January, 1874, W. P. Rogers, the vendor, executed to James, at his request, a deed for the land, which was written by James, and which was absolute on its face, reciting the payment of the purchase money, but upon the understanding that the land was to be still bound for the payment of the note.

That on the 6th of February, 1874, William P. Rogers, being indebted to the plaintiff, James P. Rogers, for the purpose of paying and satisfying said indebtedness, assigned to him the note by the following endorsement thereon :

“ I do assign over all my right and interest to the within note to James J. Rogers, for value received of him this 6th day of February, 1874.

“W. P. Rogers.”

The bill alleged that the note had not been paid, and prayed a decree against both defendants for the amount of the note, that the vendor’s lien (which plaintiff insisted had been transferred to him by the assignment of the note) be enforced, and the land condemned and Bold for tbe satisfaction of the decree, etc.

When William P. Rogers sold the land to appellee, and took bis note for the purchase money, he retained the title to the land as security for the debt, and had he then' assigned the note to appellant, the security would have followed as an incident to the debt. See cases cited and reviewed in Campbell v. lian-Jcin, et al., 28 Ark., 407.

But before the assignment of the note to appellant, William P. Rogers conveyed the land by absolute deed, reciting the payment of the purchase money to appellee, after which he had no security for the payment of the note, but a vendor’s lien in equity. The note was not a mortgage upon the laud, nor in the nature of a mortgage.

It was decided by this Court upon full review of authorities, in Shall, ad’mr. v. Biscoe, et al., 18 Ark., 142, that the vendor’s equitable lien is personal, and does not pass to an assignee by assignment of a note for purchase money, and this case has been repeatedly approved and followed.

In Hecht v. Spean, adm’r., 27 Ark., 229, the vendor in an assignment of a note for purchase money, expressly attempted to transfer his equitable lien upon the lands, describing them, to the assignee, but this court held that the lien could not be so transferred.

Had the note been re-assigned to William P. Rogers, or had he taken it up on failure of appellee to pay it, the debt and lien would have been re-united in him, and he could have maintained a bill to enforce the lien. Bernays v. Field, 29 Ark., 218 ; Turner, use, etc. v. Hornor, adm’r., Ib. 440. But such is not the case made by the bill.

There are no allegations in the bill to charge William P. Rogers, who was made defendant. It is not alleged that the note was duly presented to the maker for payment, that payment was refused, and that he had due notice thereof. Adams, adm’r. v. Boyd, MS.

Decree affirmed.


author: ENGLISH, C. J.:

text:
    McCracken vs. Moody.
    1. CONSTITUTIONAL Law : School Warrants; re-issue and cancellation of.

    The first section of the Act of November 80th, 1875, providing for the cancellation and re-issue of county and district school warrants, provides that the holders of school warrants previously issued should, upon ninety days’ notice, submit the validity of their warrants to a tribunal composed of the County Judge and Clerk, whose decision should be final. If the warrants were not presented, or if presented and rejected, they were to be void; if pronounced valid, the holders were to surrender them and take in lieu thereof a warrant against the school disti-ict issued by the County Clerk. Held, that the section imposed conditions upon the holders of the warrants not provided for by the law in existence at the time they were issued, and was unconstitutional, as impairing the obligation of the contract. CSee also Parsel vs. Barnes Brothers, 26 Ark., 261, from which this case is distinguished. ReD.)
    APPEAL from Nevada Circuit Court,
    Hon. J. K. YouN.g, Circuit Judge..

      Henderson and Oaruth, for appellant..

      Smoote and McRae, contra.

   ENGLISH, C. J.:

Petition for Mandamus, Nevada Circuit Court, June term, 1877, substance of tlie petition :

That on the 9th of June, 1873, T. K. Edwards, trustee of school district No. 4, Nevada County, issued to H. W. Eich-ardson the following warrant :

“ No. 1, Township School Fund, District No. 4.

June 9, 1873.

Treasurer of Nevada County, Arkansas, pay to H. W. Richardson or order the sum of $50.98 out of the school fund.

T. K. Edwards, Trustee.”

Witness, J. Y. Hulse.

That the warrant was assigned to petitioner, Benjamin F. Moody, for value, before the filing of the petition.

That after the delivery of the warrant to him, he, on the 7th of August, 1873, presented it to Wm. L. McDaniel, Treasurer of Nevada County, for payment out of any moneys in his hands belonging to said school district No. 4, and the Treasurer endorsed it “ not paid for want of funds.”

That on the 25th of Septetaber, 1875, McDaniel, as such Treasurer, published a notice, stating that he had in his hands, to the credit of said school distinct No. 4, the sum of $200, and requiring all persons who held warrants against the district to present them within thirty days for registration ; and accordingly on the 12th October, 1875, petitioner presented the above warrant to him for registration, and the same was duly registered as required by law.

That afterwards petitioner presented the warrant to defendant James B. McCracken, then treasurer of the county, for payment oui of any moneys in his hands belonging to said school district, and payment was refused, though he had in his hands funds amply sufficient to pay the same.

Prayer for mandamus to- compel him to pay the warrant.

McCracken, the Treasurer, filed a response to the petition, stating in substance, that he could not, if he had funds, pay the warrant of petitioner, because in pursuance of an act of the General Assembly, of 30th of November, 1875, the County Court of Nevada County provided a book in which all scrips and indebtedness, as in said act mentioned, should be recorded, and that said County Court, at its January term, 1876, made an order requiring all persons holding such scrip ■or indebtedness (and the warrant of petitioner was such as was contemplated and embraced by said act), to present the same within ninety days from the date of said order for cancellation and re-issue; and caused the said order to be published in the Prescott Banner, a newspaper published in said county; and that the petitioner did not within said ninety days, nor at any time, present said warrant to said court, nor to the Clerk thereof, for inspection, examination, cancellation and reissue, as by law required, etc.

The petitioner demurred to the response, on the ground that the act relied on was unconstitutional and void.

The Court sustained the demurrer, and awarded a peremptory mandamus as prayed, and McCracken appealed to this Court.

In Parsel v. Barnes & Bro., 25 Ark., 261, the scrip holders did not bring in their county scrip to be examined, classified, cancelled and re-issued within the time fixed by an order of the County Court, and it was held that the scrip was barred, because at the time it was issued there was a statute authorizing the County Court to make such calls, and the scrip holders took their scrip subject to the exercise of that power by the Count}1' Court; that the statute providing for such calls was part of the law of the scrip contracts, and their obligations were not impaired by enforcing the law.

At the time the school warrant in question was issued, there was no statute authorizing the County Court to make an order imposing upon the holder the duty, at his peril of presenting his warrant to the County Judge and Clerk within a fixed time, to be examined and condemned, if deemed by them illegal, and issued by them in a new form, if found to have been legally issued.

The law providing for the issuance and payment of district school warrants, in force at the time the warrant in question was issued, and which was the law of the contract, is embraced in Chapter 120, and in Chapter 37, (Section 1040) Gantt’s Digest.

The substance of so much of the law as it is necessary to notice in this case follows :

Each county is required to be divided into school districts, and each district is made a corporation, capable of holding property, making contracts, sueing and being'sued, etc.

The electors of a district are empowered at an annual meeting, to elect a trustee and vote a limited school tax, etc., and the trustee is required to report the tax voted to the Clerk of of the county, and he to extend it upon the tax book to be collected by the Collector as other taxes, and paid to the County Treasurer to be kept by him, and disbursed on the-warrants of the trustee, etc.

The trustee is made the contracting officer of the corporation, and empowered to purchase and provide property for school purposes, to employ teachers, etc., and to draw orders on the Treasurer of the countjr for the payment of wages due teachers, or for any other lawful purpose; stating in every such order the services or consideration for which the order is drawn, and the name of the person rendering such services, etc. (Section 5435.)

When a school trustee’s warrant, properly drawn, is presented to the treasurer, he is required to pay the same out of any funds in his hands belonging to the district specified in the warrant, and in case there are no funds with which to pay such warrant, to endorse it not paid for want of funds, stating the date of presentment, etc., after which it is made to bear seven per cent, interest until paid. (Section 1040.)

When the warrant in question was issued, the law then in force required no duty of its holder, and imposed no terms or Conditions upon him, but to present it to the treasurer for payment etc., as above shown.

The first section of the Act of November 30th, 1875, Acts of 1874-5, page 30, relates to district school warrants previously issued, and provides in sbstance:

That the County Court of each county shall at its first session after the passage of the act, provide for the cancellation and re-issue of all outstanding school warrants in each school district, etc., and for a uniform system of registering the same, etc., etc.

That the Couj't shall provide a book in which shall be kept a separate record of the financial condition of each district.

That the Court shall publish in a newspaper in the county, (or by posting, if no paper, etc.), a copy of its proceedings, requiring all persons who hold school warrants or any other certificate of indebtedness against any school district, etc., to present them within ninety days from the publication of said notice, for cancellation and re-issue, and providing if any person fails to present his school warrant within the above specified time, it shall be rejected, and all rejected warrants shall be null and void. '

That upon the presentation of warrants, each piece shall be critically examined by the County Judge and County Clerk, who shall determine the validity of said warrants, and for the purpose of which investigation the County Judge may summons witnesses when the validity of any warrant is in doubt. If they shall determine that it has been legally issued, a new warrant shall be issued by the County Clerk against the district where it was given and numbered, and registered in the book provided for that purpose. If any warrant is rejected, it shall be so registered in the same book on a separate page.

The clerk, sheriff and witnesses to be paid their fees by the county.

The second section of the act relates to school warrants issued after the passage of the act.

Thus it will be seen that the first section of the act required the holder of a district school warrant previously issued, to present it for cancellation and re-issue within ninety days from publication of the notice, and on his failure to do so, the warrant was to be rejected as null and void.

He was required to submit his warrant to the examination of a tribunal composed of the County Judge and Clerk, who were to pass upon its validity, and their decision was to be final; if rejected by them, it was to be null and void.

If they found it to be legally issued, he was required to surrender the warrant issued by the trustee of the school district and take in lieu thereof, a warrant to be issued by the County Clerk.

It is insisted that the first section of the act impaired the obligation of appellee’s contract, as holder of a warrant issued by the contracting officer of the . school corporation, and was therefore in conflict with the clause of the Constitution of the United States, which forbids a State to pass any law impairing the obligation of contracts.

On the 10th of February, 1865, a Nebraska act was passed, providing for the funding of the warrants of Otoe County, by which it enacted that all Otoe County warrants bearing date prior to January 1st, 1864, and outstanding, should be presented and bonded before the first day of December, 1865, or be forever barred, and that such warrants should thereafter be null and void. The bonds to be issued in lieu of the warrants were to be payable on or before January 1st, 1873, and bear a less rate of interest than the warrants.

Brewer, who held county warrants issued before the passage of the act, and who failed to present them for funding within the time prescribed by the act, sued the county upon them, and the county insisted that he was bound by the funding act. The Court held the act invalid as impairing the obligation of the contract, but that the action would not lie upon the warrants. Brewer v. Otie County, 1 Nebraska, 373.

A California act required holders of county warrants to present them for registration by a day fixed, and on failure the warrants to be forever barred. A holder of a -warrant failed to present it to the Auditor of the county for registration as provided by the act, and afterwards applied for a mandamus agaist the County Treasurer to compel him to pay the warrant. On appeal, the Supreme Court held the act void, as impairing the obligation of the contract. Justice BuhNELL, who delivered the opinion of the court, said:

“As the law enters into the contract, and forms a part of it, the obligation of such contract must depend upon the law existing at the time the contract was made. The contract being, then, complete and operative, the Legislature cannot, by a subsequent act, impair its obligation, by requiring the performance of other conditions, not required by the law of the contract itself. The rights, as well as the intentions, of the parties, are fixed and ascertained by the existing law. Therefore, to require the performance of other conditions, to make the contract operative, is to impair its obligation.

“The power to impose conditions, after the contract is once complete and perfect, is nothing but the power to impair its obligation, and this the constitution has prohibited. Robinson et al. v. Magee, 81 California, 9. See, also, McCauly v. Brooks, 32 Ib. 16.

By a California act of 18th March, 1868, providing for the funding of the unfunded indebtedness of San Diego County, a Board of Commissioners was created whose duty it was made to examine into and pass upon the legality or illegality of all outstanding warrants, etc., etc., and to allow or reject them; and the act declared that no warrant, etc., should be a legal and valid claim against the county, or be paid, until passed upon, audited and allowed by the Board. Rose was the holder of certain warrants, issued by the Auditor of the county, which had been duly presented to the Treasurer for payment, and endorsed not paid for want of funds, prior to the passage of the act. He had done all the law in existence at the time the warrants were issued required him to do.

He did not submit his warrants to the examination of the Board of Commissioners, but demanded payment of them by the Treasurer from moneys properly applicable thereto, which was refused ; and he applied to the Supreme Court to compel him, in the exercise of its original jurisdiction, by mandamus.

. The court ordered a peremptory mandamus upon the County Treasurei to pay the warrants, holding that so much of the act as required holders of warrants to submit them to the Board of Commissioners, to be examined, allowed or rejected by them, to be void as impairing the obligation of the contracts. Rose v. Estudillo, 39 California, 270.

The first section of the act of 30th November, 1875, was unconstitutional for two reasons

First — It requires the holders of district school warrants to submit their validity to a tribunal composed of the County Judge and Clerk, within ninety days from public notice, and made their decision final; the warrants were to be null and void if not presented within the time fixed, or if presented and rejected. This was imposing a duty upon the holders of warrants, and a condition of payment not provided for by any law in existence at the time they were issued.

Second — The warrant holders were required, if their warrants were pronounced valid by the Judge and Clerk, to surrender them — surrender the contracts of the school corporation — and take in lieu thereof warrants issued against the school districts by the County Clerk.

The second section of the act relates to school warrants issued after its passage, and warrant holders take them subject to its provisions, and of course must conform to them.

We have not overlooked the fact that the warrant in question was not issued in compliance with section 5435, Gantt’s Digest, which requires, as above shown, the school trustee to state in every warrant drawn by him upon the County Treasurer, the services or consideration for which the order is drawn, etc., and section 1040 requires the Treasurer to pay such warrants as are properly drawn only. But the Treasurer in his response, sets up no objection to the warrant — makes no defense — other than that appellant failed to present it for cancellation and re-issue, etc., as required by the act of 30th November, 1875. Had he made the defense in the court below that the warrant was not drawn in the form required by the statute, the court might possibly have permitted the appellee to call before it the officer who issued the warrant, and amend it according to the facts.

Judgment affirmed.


text:
    Gregg vs. Gregg.
    ADMINISTRATION: Sale of Seal Estate far Payment of Debts.

    An order of the Circuit Court, while it had probate jurisdiction, for the private sale of the real estate of a decedent for the payment of debts, made •without notice was erroneous.
    EEEOE to Lincoln Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      L. A. & X. J. Pindall, for plaintiff in error.
   HarrisoN, J.:

Edmond P. Gregg, administrator de bonis non, with the will annexed of James L. Govee, deceased, applied by petition to the Circuit Coui't of Lincoln County, then, October term, 1874, having original jurisdiction in matters of administration, for an order authorizing and empowering him to sell at private sale to E. M. Apperson & Co., at the price of $24,000, a plantation known as the Home Farm, belonging to his testator’s estate, for the payment of the debts of the estate.

The petition stated that the claims — the time for the presenting of which had expired — presented and allowed against the estate, had amounted to $6230, the whole of which except some small portion, not exceeding the interest, remained unpaid ; and that in addition thereto, there had been created by Mary E. Govee, the late executrix, who had continued the cultivation of the plantation, a debt to E. M. Apperson & Co., of $10,012.95 ; and that there was no personal property with which to pay the debts of the estate.

That said'E. M. Apperson & Co. were willing, and proposed if the court would authorize the sale, to purchase the plantation at the price of $24,000, and out of which pay the probated debts, and satisfy the indebtedness to themselves, and the remainder they would pay over to the widow, said Mary E. Govee, and the heirs of the testator; and that the widow and the heirs, who were Lucie G. Gregg, Mollie Govee, and James L. Govee, all of whom were of age, had assented to the proposition, and in writing contracted with said E. M. Apperson & Co., to sell the plantation upon those terms.

Whether or not any provision in respect to the plantation was made in the will, in no manner appears.

The widow and heirs did not join in the petition.

No notice of the intended application was given.

The court granted the order, and James L. Govee, one of the heirs, has brought the case here by writ of ■ error.

The widow and heirs had, if no provision as to the plantation was made in the will, most unquestionably the right to sell it and pay the debts of the estate, but it is clear that the court could oixly direct a sale in accordance with the provisions of the statute concerning sales of real estate for the payment of the debts of the estate, none of which were in this case complied with, and as so provided at public auction. Sections 168 — 180 Gantt’s Digest.

The order of the Circuit Court is therefore reversed and set aside, and the cause is remanded with instructions to transfer the same to the Court of Probate of Lincoln County, for such proceedings as may be had in accordance with law.


text:
    Matthews vs. Lanier.
    1. Evidence: of-parties.

    When the parties to a suit testify as to matters within the knowledge of both, and material evidence of one party is not contradicted by the other, it must be presumed to be true.
    2. Upon motion for new trial on the ground of surprise at the trial, and want of opportunity fo produce evidence, the new evidence should be incorporated in the bill of exceptions.
    APPEAL from Mississippi Circuit Court.
    Hon. L. L. Mack, Circuit Judge.
    Palmer, for appellant.

      Lyles, contra.

   HarrisoN, J.:

This was an action by the appellee against the appellant on an accouixt for rent.

The complaint alleged that the plaintiff leased to the defendant a plantation-for the year 1876, at -seven dollars an acre rent for the cleared land, of which there were 337 acres ; and admitting a credit of a merchandise account with the defendant of $86.60, demanded the sum of $2272.60.

The defendant, in his answer admitted the leasing of the plantation, and at the rent stated, but denied that there were more than 308 acres of the cleared land, or that the rent amounted to more than $2156, whifeh sum he admitted he owed; and he claimed and pleaded a set-off of $1933.03, the particulars of which were stated in the following account:

Felix R. Lanier to John Matthews : Dr.

Dec. 16, 1875: To balance due on settlement.$1319 43

“ “ “ “ sight draft on Brooks, Neely & Co., for. 350 00

Nov. 10, 1876 : To cash paid James Anthony for survey in land. 24 90

“ “ “ “ interest on $1669.43, 10 months and 28 days at 10 per cent. 152 10

“. “ “ “ merchandise as per bill rendered. 86 60

$1933.03

He, also, exhibited with and as part of his answer, the written contract for the lease, which was as follows :

“This agreement, entered into this 8th day of January, 1875, between Felix R. Lanier of the first part, and John Matthews of the second part, witnesseth: That the said Felix R. Lanier has this day rented, leased and delivered to the said Matthews, his farm in Bend Thirty four, in Mississippi^County, Arkansas, for the present year of 1875, at seven dollars per acre for all of the land owned by the said Lanier under fence on said plantation. The land to be measured, and the exact number of acres to be ascertained. And the said Matthews agrees to clear up and put one hundred and fifty acres more of the old field back of the levee in cultivation, clearing all the timber off of tbe said one hundred and fifty acres, and fencing the same with good rails ; but is to have the privilege of using the cotton-wood poles growing on the land to be cleared up. The land to be cleared at the cheapest rate possible and charged to the said Lanier, and advanced by said Matthews out of the rent of the land now under fence, supposed to be about one hundred and sixty acres. It being understood that the said Matthews is to pay rent on the land now under fence only ; but is to cultivate all now under fence, and one hundred and fifty acres additional, which he is to clear up, but is to pay no rent for the new cleared land.

It is further agreed by the parties, Felix E. Lanier and John Matthews, that, in the event the said Lanier shall desire it, the said Matthews is to be bound to cultivate the whole land fenced under this contract, including the old and the new ground, inthe year, 1876, and pay the said Lanier seven dollars an acre for all of said land, which will then be about three hundred acres ; but the contract for renting the land for 1876 is to be subject to the wish of the said Lanier, the said Matthews being bound to cultivate said land on said terms for the year 1876, if said Lanier desire him to do so.

In the event of a disastrous overflow by which the land could not be cultivated, the said Matthews is not to be liable for the rents exceeding the cost of clearing up the new ground and fencing the same as heretofore specified.

Felix E. LaNiee, JohN Matthews.”

A replication to the set-off appears to have been filed, but is not in the transcript.

Upon the trial Benjamin Castleman testified for the plaintiff, that he had a short while before surveyed for him all the land in the plantation inside the fence. That there was two fields, one of which contains 185, and the other 168.96 acres, together 353.96 acres.

The plaintiff testified that the field containing according to Castleman’s survey 168.96 acres, was the land cleared up and fenced by the defendant. Mrs. Dunavant he said, had some land in his field not inclosed in Castleman’s survey, and for which he did not claim rent. He denied the correctness of the charge m the defendant’s set-off of $1319.43 ; “balance due on settlement,” and said the correct amount was $942, and upon which he had agreed in writing to pay ten per cent, interest from the date of the settlement. He said he had a settlement with the defendant on the 16th of December, 1875, of matters pertaining to the estate of J. H. Edrington, and as to those he was found indebted to the defendant, $1319.43.

At the same time he had a settlement with him concerning the rent fot 1875. The defendant paid him on the rent $350, by the draft charged in his set-off, and after being allowed his ■ account for the clearing and fencing, which was $575, he owed $377, which it was agreed the plaintiff should receive a credit for on his indebtedness to the defendant.

The defendant read to the jury a survey of the land by James Anthony, the County Surveyor; made after the suit was commenced, according to which there were 166 1-2 acres in one field, and 158 1-4 in the other — in both 324 3-4 acres— and that there were 17 acres in the sand blow.

Dr. Dunavant, a witness for the defendant, testified that his wife owned about 17 1-4 acres in the plaintiff’s field, the line between which and the plaintiff’s land had been run, and for which he said the defendant had paid him rent.

John B. Driver, another witness for the defendant, testified . that he was Sheriff of the county, and had had in his hands a writ of possession in favor of Mrs. Dunavant against the plaintiff for the 17 1-4 acres, which he had executed.

The defendant testified that on the 16th day of December, 1875, he had a settlement with the plaintiff of the matters between them pertaining to the estate of J. H. Edrington and the plaintiff was found indebted to him $1319.43, upon which he agreed in writing to pay ten per cent, interest; and that he gaye the plaintiff the draft on Brooks, Neely & Co, for $350, charged in the set off.

He further testified that after making the contract with the plaintiff for the lease, they went to examine the land and he found a sand blow of about 18 acres made by a break in the levee, from one to two feet and a half deep, and he objected to putting it in ; but the plaintiff insisted that he should clear it off and cultivate it, and said he would charge no rent for it. He testified also that he had paid rent to Hr. Dunavant for Mrs. Dunavant’s 17 1-4 acres by the plaintiff’s consent.

The jury returned a verdict for the plaintiff for $999.75.

The defendant moved for a new trial, which was not granted.

One of the grounds of thé motion for a new trial, was the giving of certain instructions, to the jury, for the plaintiff.

As these instructions related only to the inquiry as to the number of acres, which as very clearly appears to us, the jury found to be as claimed by the defendant, or even less, we deem it unnecessary to notice them. The answer admits there were 308, and that there was due for the rent $2156.

The number of acres, according to the survey of the County Surveyor, introduced by the defendant, was 324 3-4, and if 17 are deducted for the sand blow, (whether it was included in the 324 3-4 acres or not, does not appear,) there remains 307 3-4, within a fraction of an acre of the number admitted in the answer.

The testimony of the plaintiff, in relation to the first three items in the defendant’s set off, was, although he was also a witness, uncontradicted by the defendant and must therefore be presumed to be true. Miller v. Jones, adm’r, 32 Arkansas, 337 ; and there was no proof as to the other items of money paid the County Surveyor.

The defendant’s set off, then, according to the evidence, stood thus:

Balance due on account of estate of Edrington, after deducting credit of $377. $942.43

Interest on same from December 16th, 1875, to time of trial, eleven months, at 10 per cent. 85.67

Merchandise Account. 86.60'

$1114.70-

This amount, and the $999.75 found due the plaintiff by the verdict, make $2114.45 — less by $41.55 than the rent admitted in the answer to be due and is for only about 302 acres.

Another ground of the motion for a new trial was that the defendant was surprised upon the trial by the plaintiff’s going into the question of the rent of 1875, and he had no opportunity of bringing in his account of that year against the plaintiff.

In his affidavit in support of this ground of his motion, the defendant swore that only his account of admitted balances, and not his entire account, was before the jury, and that if a new trial was granted he would be able to prove that the plaintiff owed over and above the admitted balances that year, $196.45. What is meant by “admitted balances ” we are not able to understand. If there was other evidence than as we have stated it, the bill of exceptions failed to preserve it.

The question of the rent of 1875 was not gone into by the plaintiff further than to show that items in the defendant’s set off were not just.

His testimony in regard to those items was not disputed or' contradicted by the defendant when testifying himself, and he did not in his motion or affidavit in the least impeach it.

The defendant does not propose to show that the draft charged in the set off was not in fact given to the plaintiff as-a payment on tbe rent, or that there was not a balance of $377 of the rent, which was to be credited on the plaintiff’s indebtedness of$1319.43.

The motion for a new trial was properly overruled.

The judgment of the court below is affirmed.


author: EakiN, J.:

text:
    Woodruff vs. McDonald, et. al.
    1. FINDINGS OF THE Court SITTING as a Jury: When conclusive.

    The findings of a court sitting as a jury, are in the nature, of a special verdict, and are conclusive as to the facts of the case when the evidence is not set forth in full, and exceptions taken to the findings.
    2. Consideration : Burden of proof.

    A written obligation for the payment of money imports a consideration, and upon an issue of want of consideration the burden of proof is on the defendant.
    3. -: Adequacy.

    Where there is any consideration for a contract, its adequacy cannot be questioned at law.
    4. Corporation: Stock subscriptions, etc.

    Subscriptions to the capital stock of a corporation were made on a loose sheet of paper which was put in a bound book used as a record of the company, and the contents of the paper, with the names of the subscribers and amounts subscribed, were entered in the book by the commissioners appointed to open books of subscription; Held, that this was a sufficient subscription to the stock of the company. (See the opinion as to the effect of irregularities, as between assignee and assignor of the stock. Rep.)
    APPEAL from Pulaski Circuit Court.
    Hon. T. C. Peek, Special Judge.

      Rose, for appellant.

      Yonlcy and Whipple, Kimball, Faust, Benjamin and Barnes, contra.

   EakiN, J.:

Appellant sued McDonald, and a number of other defendants, who had joined in the alleged purchase, from him, of certain shares of stock in the Little Rock Bridge Company; chartered by special act of the General Assembly March 5, 1867.

This act, by section 2, appointed commissioners to superintend the opening of books for stock subscriptions ; and also (when $30,000 should have been subscribed) to call a meeting for the purpose of electing five directors, to organize and conduct the affairs of the company. By section 4 it was made the duty of the President and Directors, upon the payment of the capital stock of the company, or any part thereof, to issue certificates of stock to the stockholders, specifying the number of shares to which each might, be entitled. These certificates were made transferable under such rules and regulations as the President and Directors might adopt.

The complaint set up four written obligations executed jointly by defendants, on the 14th day of January, 1873, for $1250 each; in favor of complainant, Woodruff; due respectively at 9, 15, 18 and 24 months. These notes, each, recited that they were given in part payment for the assignment and transfer to the makers, by Woodruff, without recourse, of his two hundred and fifty shares in the capital stock of the Little Rock Bridge Company.” Taken altogether, they provide that if default be made in the payment of the first, when due, all shall become payable and bear an increased rate of interest. Such default, it is alleged, was made ; and judgment demanded for the whole $5000, with interest as stipulated.

The answer of the defendants is lost; but it is here agreed to have been, substantially, the same as that set up in another case now submitted with this, and, so taken, would show, that they admitted the execution of the several agreements in writing, as alleged. But they denied that either of them had received any assignment or transfer of any shares of stock. They denied that complainant had subscribed for any shares of such stock, or had paid anything for them to the company, or in short, had any; and further denied any consideration for the notes. They charged fraud and misrepresentation upon complainant in claiming to own said shares, when that was false, and alleged that the certificates which complainant pretended to assign and transfer, and which purported to be for paid up stock, had in fact been issued by collusion between complainant and the Directors of the company, when nothing had been paid thereon.

The case was submitted to the court, without a jury, which found for the defendants, and rendered judgment against plaintiff for costs. Motion for a new trial overruled and appeal granted.

The bill of exceptions shows that the court found the following facts:

First — The passage of the special act of incorporation approved March 5th, 1867.

Second — A book purporting to be the record book of the company, showing that the original stock had been taken by plaintiff and others named, each taking $25,000 of eapital stock. The entry, to this effect, was in the handwriting of Peter Hanger, one of the Commissioners to open books, and signed by plaintiff and A. M. Woodruff, two others of said Commissioners. The subscribers of stock did not subscribe in this booh, but had affixed their signatures to a form of subscription on a loose paper, which had been kept in the book, and passed with the book into the hands of defendants, but was not now produced. There was no proof that the Commissioners were qualified as such.

Third — Certificates of stock were issued on the 30th of May, 1867, to those who were shown by the books to have been subscribers.

Fourth — A Board of Directors of said company was organized and proceeded to do business.

Fifth — No part of stock was ever paid in.

Sixth — The note in suit was given as part payment for a transfer of said stock. The defendants bought all of the stock at the same time, knowing that nothing had been paid on the subscription — and for the avowed purpose of getting the fi-anchise of the company. They paid for the whole in cash $2500, and gave notes for the remainder. The whole purchase price amounted to $25,000. The:certificates were regularly transferred at the time of the sale. The defendants expressed the intention to go on with the company, and did actually act afterwards in an assumed corporate capacity, but after a while ceased and allowed the privileges of the charter to expire.

Upon this state of facts plaintiffs asked the court to declare the law to be, that there was a consideration sufficient to uphold the contract sued on, and that the finding should be for the plaintiff. This the court refused to do, but found as a conclusion of law: “ That said company was never legally organized, that the said certificates of stock were void, and that there was a total want of consideration to uphold the notes sued on, and that the finding should be for defendants.” To this refusal and declaration, the plaintiff excepted, and, as no evidence is brought up, this is the only matter now presented to this court upon appeal.

It is the prevailing doctrine of the Federal and State courts, in some of which it is fixed b}r statute, and in most adopted as resting upon reason and sound principle, that the finding of a court sitting without a jury, is in the nature of a special verdict, and conclusive as to the facts of the case, where the evidence is not set forth in full and exceptions taken to the findings as not supported by evidence. This court has recognized this practice in the case of Obermier & Co. v. Carr, Thompson & Co., 25 Ark., 562.

The written obligations import a consideration, and upon the issues made, the burden was on defendants to show that there was none. See Richardson v. Comstock for authorities collected, 21 Ark., 69. Do the facts, as found, show that?

This is not like a case of an action by the company against a subscriber to enforce payment of his subscription. In such case, if there be anything so irregular, informal, defective, or illegal in the subscription, that the company itself would not be bound if it had chosen to repudiate it, it might perhaps be well contended that for want of mutuality the contract was void. Nor is this like a case of a proceeding against the company for an abuse of its powers, or for acting without power, or in an unauthorized manner. Such proceedings are on behalf of the State, and in many cases the State alone can proceed to have the acts of corporations declared void.

The question here is, did the defendants acquire by the contract any advantages they would not have had without it, or did the plaintiff suffer any inconvenience, detriment, or loss. In either case the consideration would be good, and in an action at law, its adequacy is immaterial.

It appears from the facts, found by the court, that the subscriptions were made and signed upon a loose sheet of paper, which was put in a bound book appropriated to the records of the company, and the contents of the paper, with names and amounts of the subscribers were entered in the book, by the Commissioners appointed to open books. This was a sufficient compliance with the statute. The subscriptions do not appear to be invalid, and the burden of showing that, if true, was upon the defendants.

The issuance by the company of certificates, .before any part of the subscription was paid in, was not expressly authorized by the act; and if it had been done by collusion between plaintiff and the officers of the company, without' the knowledge or assent of defendants, it would have been siich a fraud in the sale of the stock, as would have authorized the defendants, upon discovery of the facts, to rescind the contract, or to recoup the amount of the payments on the stock. That, however, would have been because of the fraud, and not strictly for want of consideration. It was not, strictly speaking, the certificates which the defendants purchased. Tt was the stocky and the certificates were only evidence that the holders were entitled to hold the stock and transfer it.

The company seems, voluntarily, and for its own convenience 5 and that of its members, to have issued these certifieates prematurely. We are not prepared to say from the facts that it did so fraudulently, or that its action therein was void. It was certainly done with the full concurrence of all parties interested, including these defendants, and, unless the State should complain, or some creditors, perchance, be misled, we see no reason for interference on the part of the courts.

The plaintiff, and all others of the subscribers, selling together and taking separate notes, or written agreements, denuded themselves of all rights they had as subscribers. These rights were valuable. They gave the subscribers the control of the franchise, which then, it is evident, was considered of great value. It enabled them to proceed and build a bridge over a large river at the capital city of the State, and take tolls, which might have been, and it was expected would be, very profitable. These advantages the vendors relinquished. If they had not sold them to defendants, they might have sold them to others, or gone on and built the bridge and taken tolls.

On the other hand, these advantages were acquired by the defendants, and so far as appears, fully enjoyed without let or hindrance from plaintiff or his original associates, or the State, or creditors of the company, or anyone else. The purchasers became the company, and for a while assumed to operate it. They knew the capital stock had not been paid in. If it were important that it should be, they had a right to pay it, and cure any defects. Whatever may have been the cause of their failure to avail themselves of the advantages acquired, the plaintiff is not shown to have had any agency in it.

Doubtless it turned out that the speculation was a bad one. We may presume that a change in the financial affairs of the community, or changes in the facilities otherwise afforded for crossing the river, caused the bridge to be abandoned. The money paid was a dead loss, and it is natural that the defendants should feel the hardship, and indulge the sentiment that their contract was without consideration. We think, however, that the court below erred in declaring that the facts as found, showed no consideration for the contract.

Let the judgment be reversed and the cause be remanded, with instructions to grant a new trial, and that the cause proceed in accordance with law, and not inconsistent with this opinion.


author: ENGLISH, Ch. J.:

text:
    Brady vs. Hamlett.
    1. Decree: When it becomes absolute.

    A final decree becomes absolute upon the expiration of the term at which it is rendered, and the court cannot of its own motion, or by consent of parties, open it at a subsequent term, for rehearing;; an order entered at the term at which the decree is rendered, granting leave to file a petition for rehearing at the succeeding term, will not keep it within the control of the court. The decree should be opened and the cause continued.
    APPEAL from Bradley Circuit Court.
    Hon. Peter Moseley, Special Judge.

      McCain, for appellant.
   ENGLISH, Ch. J.:

John Brady brought ejectment against Thomas F. Hamlett, for possession of two forty acre tracts of land, in the Circuit Court of Bradley County. He claimed title'under Auditor’s tax deeds, which recited that the lands were forfeited to the State for non-payment of taxes of 1863. Hamlett filed an answer and cross-complaint in the nature of a quia timet bill, alleging that he paid the taxes charged on the lands for the year 1863, and that they were returned forfeited by mistake, and praying that the Auditor’s deed be cancelled, and he quieted in his possession. On his motion the cause was transferred to the equity side of the court; heard upon the pleadings and evidence at the September Term, 1875, and decree in favor of Hamlett as prayed in his cross-complaint.

After the decree was entered, an order was made that Brady have leave until the first day of the next term to enter a petition for re-hearing.

On the first day of the March Term, 1876, Brady asked for further time to file a petition for re-hearing, and was granted leave to file it on any day of that term.

At the same term there is an entry stating that, by consent of parties, the court ordered that the decree rendered at the previous term be opened for rehearing, and the cause continued.

The cause was again heard at the September Term, 1876, and the same decree was rendered as on the former hearing, and Brady appealed.

The evidence introduced upon the hearing, and put upon record by bill of exceptions, conduced to prove that Hamlett paid to the Collector the taxes charged upon the lands, for the year 1868, but we cannot consider the merits- of the case on this appeal.

The decree rendered in the court below at the September Term, 1875, was final. If the court desired to grant appellant time until the next term to file a motion for a rehearing, it should have opened the decree, and continued the cause, so as to prevent the decree from becoming absolute on the expiration of the term, and kept it within its control. But this was not done, and hence on the close of the term, the court lost its power over the decree, and could not, of its own motion, or by consent of parties, open the decree for a new hearing, at a subsequent term of the court; hence all of the proceedings subsequent" to the decree rendered at the September Term, 1875, were coram non judice.

Mayor etc., v. Bullock, 6 Ark., 282; Rawdon v. Rapley, 14 Ark., 203.

Appeal dismissed.


author: English Ch. J.:

text:
    Gibbs vs. Dickson.
    1. Record : Demurrer part of; judgment, etc.

    A demurrer when filed, becomes a part of the record, and a judgment upon it should be shown by a record entry, and not by bill of exceptions.
    2. Pleading: Complaint.

    A declaration or complaint on a lease which begins in debt, and concludes in covenant, is not for that reason, demurrable under the code.
    3. Agent, Contract by : Right of action on, eta. Private Seals.

    A lease executed by an agent in his own name, from the body of which it is obvious that he intended to bind his principal and not himself, will be treated as the contract of the principal, and he may maintain an action on it. The distinction at law between sealed and unsealed instruments in this respect, has ceased to exist since the abolition of private seals.
    4. Pleading : Joinder of causes of action.

    Under the code, a count or paragraph on a written lease, may be joined with one on a verbal account stated.
    5. Exceptions : Motion for new trial, etc.

    No advantage can be had of exceptions reserved at the trial and not made grounds of a motion for new trial.
    6. Set Off : Practice on failure to reply to plea of.

    Upon the failure of a party to file a reply to a plea of set off, the adverse party should move for judgment upon the plea for want of a reply; and when he fails to do so, but goes into trial as if the issue were made up, he will not be allowed the advantage of it in this court.
    APPEAL from Crittenden Circuit Court.
    Hon. L. L. Mack, Circuit Judge.

      M. Peters, of Memphis, for appellant.

      Lyles, contra.

   English Ch. J.:

This action was brought in the Circuit Court of Crittenden County by William Dickson, against Thomas Gibbs, and founded upon the following lease, which is set out in the complaint, made a part of, and filed with it:

“CoiJNTY OK CRITTENDEN, STATE OF ARKANSAS.

This agreement and contract made this 18th day of February, 1874, between John L. Strong acting for William Dickson of the County of Colbert, in the State of Alabama, party of the first part, and Thomas Gibbs, of the County of Crittenden, Arkansas, of the second part, witnesseth: That said Strong for said Dickson, hath this day rented, and by these presents doth rent, unto the said Thomas Gibbs, his plantation known as Holly Grove, in said County of Crittenden, to farm for the year 1874, the said Dickson renting, and the said Gibbs accepting the said plantation on the following terms and conditions :

First — That this agreement is confined to the year 1874, and expires on the 31st day of December, 1874, at which time possession shall be given to William Dickson. A notice of ten days shall he given to said Gibbs requiring possession. If said Dickson shall rent the said lands after the year 1874, then he shall name a price to be paid as rent for the same, and the said Gibbs shall have the refusal of said plantation at the price named.

Second — For the use of the plantation for the year 1874, the said Gibbs agrees to make the following improvements, to-wit: a fence around the plantation ten rails high, the rails to be good substantial rails. On the front of the plantation, commencing at the corner of said fence on the road leading to Malone’s, which is the corner nearest the Malone plantation, and ending at the corner below the old Hine house, which corner is that nearest the Ball place, the said Gibbs shall place stakes and riders in the manner customary in the country, the stakes to be well and firmly set in the ground. If the old cotton press now on the place can be repaired at a cost of $50, then the said press shalb.be repaired by the said Gibbs, otherwise he may provide his own press and remove the same at the expiration of his lease. The said Gibbs agrees to build the chimneys to all the cabins above the roofs. Whatever additional improvements may be necessary to the comfort and convenience of the tenant, will be at his own expense, and not chargeable to the landlord. The said Gibbs agrees to cultivate all the land which has heretofore been in cultivation, except such as he may be prevented from cultivating by reason of high water overflowing it; to clear the same of bushes and grubs that have grown upon it by reason of the neglect of former tenants, and to leave the same in good condition for another crop. The said Gibbs further agrees to pay all taxes that may be assessed upon the lands of William Dickson lying in township 8 south, range 8 east, for the year 1874, which may be due and payable in the year 1875, and to preserve the improvements from destruction and decay, except such as may result from wear and use, and to turn them over in good order at the expiration of this lease. It is mutually agreed between the parties that in the event the said Gibbs shall not have gathered and removed his crop at the expiration of his lease, he shall be allowed a reasonable time thereafter for that purpose.

In testimony whereof, the said parties of these presents have hereunto set their hands and seals the day and year first above written.

John L. Strong, [seal.]

For William Dickson.

Thos. Gibbs. [seal.]”

The complaint is in substance as follows’:

“First Paragraph — The plaintiff, William Dickson, states that the defendant, Thomas Gibbs, is justly indebted to him in the sum of $1000 damages, sustained by the plaintiff for and on account of the non-performaiice of the obligations, stipulations and covenants on the part of said defendant of the certain written contract, covenant and agreement made ■and entered into by and between the plaintiff and defendant, at etc., on the 18th day of February, 1874, (the original agreement is herewith filed marked exhibit A, and made part of this complaint,) in and by which agreement and covenant in writing, the said defendant rented and leased from the plaintiff (through John L. Strong, plaintiff’s agent,) the certain plantation of the plaintiff known as the Holly Grove plantation in said county, to farm the same for the year 1874, the said defendant and plaintiff covenanting and agreeing upon the following terms and conditions, to-wit:

(Here the stipulations of the lease are copied.)

‘ 4 Second Paragraph — And the plaintiff avers that under and in virtue of said covenant in writing the said defendant did enter in and upon the lands so leased, and did use, have and enjoy the same for the whole length of time specified and agreed upon, and that plaintiff on his part hath in all things performed his part of the covenants aforesaid.

4 4 Third Paragraph — But the plaintiff avers that the said defendant hath not kept and performed his part of the covenants and stipulations aforesaid, but on the contrary the said defendant hath failed, neglected and refused to keep and perform his covenants and agreement, and hath broken the same in this, that the said defendant failed, refused and neglected to make the fence above stipulated for, and to place the fencing around the place as by contract he was bound to do ; and the said defendant hath also failed to clear the land of bushes, grubs, etc., and to cultivate the land in the manner stipulated for, together with other and further breaches of his said covenant by non-performonce of the same, by reason of all of which the plaintiff hath sustained damages to amount of $1000, which amount the plaintiff believes he ought to recover of and from the defendant.

Fourth. Paragraph — And the plaintiff further states, that after the making of said special contraet in writing, and after the said defendant had used, occupied and had the benefit of said lands and premises under the lease and covenant, to-wit: on the-day of-, 1875, he, the said plaintiff, by John L. Strong, his agent, and the said defendant'did settle and adjust all of the said matters above complained of, which resulted in a balance due the plaintiff of the sum of $1000, which the said defendant agreed to pay, but afterwards refused. And so the plaintiff avers that there is due him from the defendant the sum of $1000 as aforesaid, for which amount he prays judgment against the defendant, and for general relief,” etc.

The defendant demurred to the complaint, assigning the following causes of demurrer:

First — The complaint does not state facts sufficient to constitute a cause of action.

Second — The contract sued on is too indefinite and uncertain, and without consideration.

Third — The second count is irregular and insufficient.

There is a record entry in the transcript, showing that the demurrer was taken up and argued, but not how it was disposed of. It only appears from the final bill of exceptions taken on the overruling of the motion for a new trial, that the demurrer was overruled.

The defendant filed an answer with two paragraphs :

First — Covenants performed.

Second — Set-off, alleging that plaintiff was indebted to him in the sum of $1,541.85, over and above his indebtedness to plaintiff, as per bill of particulars filed.

The cause was finally submitted to a jury, and verdict rendered in favor of plaintiff for $498.

Defendant moved for a new trial on the grounds :

“First — Error in amount of recovery, the same being too large.

“Second — Verdict not sustained by sufficient evidence, or contrary to law.”

Motion overruled, final judgment for plaintiff, bill of exceptions, and appeal by defendant.

I. The overruling or sustaining of a demurrer to a complaint, or answer, should be shown by a record entry. The demurrer, when filed, like other pleadings, is part of the record, and the judgment of the court upon it should be entered of record, and not left to be shown by a bill of exceptions.

No doubt the court below overruled the demurrer to the complaint, as stated in the bill of exceptions, and the clerk neglected to make the proper record entry, showing it, or failed to copy the entry into the transcript sent here on appeal.

The complaint is arbitrarily or fancifully paragraphed. It contains, in the Code sense, but two paragraphs, one upon the lease, and the other upon an alleged account stated between the parties.

The paragraph (or count, to use the Common Law and better phrase), upon the lease, sets out and exhibits the instrument, alleges the performance on the part of the plaintiff, assigns specific (as well as general) breaches on the part of the defendant, and lays the plaintiff’s damages at $1000.

The objection that it commences in debt and concludes in covenant, is not valid under the Code pleading, which abolishes the Common Law classification of actions. It alleges, substantive facts to show a cause of action.

The specific objections taken in the demurrer, that the contract sued on is too indefinite and uncertain, and without consideration, are not well founded.

The lease expresses very clearly the subject and terms of the contract, and the use of the plantation was the consideration for the defendant’s covenants to make improvements, etc.

The lease sued on was executed in the name of the agent for the principal, and a deed so executed might not be valid at law as the deed of the principal. Story on Agency, 8 ed., sec, 148, and notes. State v. Jennings, use, etc., 10 Ark., 446.

But the rule is not so strict in relation to unsealed instruments. If it can upon the whole instrument be collected that the true object and intent of it are to bind the principal and not the agent, courts of justice will adopt that construction of it, however informally it maybe expressed. Story on Agency, 8th od., sec. 154.

In this case it is manifest from the body of the lease, that the plantation belonged to Dickson, and that Strong, in executing the lease, was acting as agent for him, and intended to bind him, and not himself, and private seals being abolished, the lease was not of a higher grade, or more solemn in its character than a parol instrument.

Moreover, the complaint shows that the contract was executed on the part of Dickson. Gibbs was let into the possession of the plantation under the lease, and enjoyed the use of it for the year and this suit is brought against him by Dickson for failure to perform the covenants which he assumed on his part in the lease.

By the Common Law the plaintiff would have been obliged to bring the action of covenant upon the lease, because it was under seal, and the damages of the plaintiff for the failure of the defendant to perform his covenants, unliquidated. And in such action he could not add a count upon an account stated, because covenant would lie only upon contract under seal, and not upon a verbal admission, of a sum due by the defendant. 1 Chitty Plead., 199-358.

Private seals being abolished, assumpsit would lie on the lease in question, and a count upon an account stated might well be added, if the Common Law system of pleading prevailed in this State ; and it surely might be done, as in this case, under the Code pleading.

The count upon the lease is upon a written contract, and the count upon the account stated, upon a verbal contract or admission of the defendant, that a sum of money was due by him to the plaintiff; and the counts (or paragraphs, to use the Code term), may be joined in the same complaint. Gantt’s Digest, sec. 4550.

The count upon the account stated is in good enough form. It follows that the court below did not err in overruling the demurrer to the complaint.

II. The bill of exceptions shows that during the trial, appellant excepted to several rulings of the court, on objections made by him to the admission of evidence offered by appellee, and to the giving of one of the instructions to the jury, moved on behalf of appellee, but none of these exceptions were made grounds of the motion for a new trial, and hence by a well settled rule of practice, were waived or abandoned. Graham v. JRoarJc, 23 Ark., 19.

III. The evidence introduced on the trial is conflicting, both as to the claim of the appellee and the set-off of appellant.

The testimony of appellee and his witnesses, conduced to prove that appellant failed to make the improvements which he covenanted in the lease to make as compensation for the use of the plantation for the year 1874, and the probable value of such improvements.

The testimony of appellant and his witnesses tended to prove that the improvements were made, etc.

It appears from the evidence that appellant rented of ap-pellee the Holly Grove plantation and other lands, called the Rhea place, for the year 1875. -

The bill of particulars filed with the plea of set off was made up principally of charges for repairs and improvements made by appellant upon the two places during the year 1875, and the bill of exceptions states that he proved the items charged in the bill of particulars.

On the contrary appellee introduced evidence conducing to prove that he rented the two places to appellant for the year 1875, for an agreed price to be paid in money, and made no agreement to pay for improvements or repairs ; and that the parties accounted together about the rents for the year 1875, and the charges made against the rents, and it was proved that there was a balance due the appellee.

It may be that the preponderance of evidence was against the verdict, but it was not without evidence to sustain it, and it was the province of the jury to judge of the weight of the evidence, and the Circuit Judge, who saw the witnesses, and heard their testimony, having refused a new trial, it is the well settled practice of this court not to overrule his judgment in such cases.

IV. We have above disposed of all the points made in the court below, and properly reserved of record, but the counsel for appellant makes the point here, for the first time, that ap-pellee did not file any reply to appellant’s plea of set off in the court below, that the plea stood confessed, and that appellant was entitled to judgment upon the plea.

If appellee did not in fact reply to the plea of set off, or take issue to it in short upon the record by consent, which is frequently done in our practice, appellant should properly have moved for judgment upon the plea before going into a trial before the jury. (Wing & Co. v. Dugan, 8 Bush, 583, Scott & Co. v. Wilson, 2 Ib., 603.) Had be made such motion, the attention of the counsel for appellee would have been called to the fact that no reply was in, if such was the fact, and he, by permission of the court, might have cured the omission.

The parties manifestly went into the trial under the impression that the issues were made up ; the bill of exceptions taken by the counsel for appellant, after stating the pleas interposed by appellant, states that issues were taken to the several pleas, and the cause submitted to a jury, etc. Both parties introduced evidence as to the claim of appellee, and as to the set off of appellant, and instructions were asked as to both, all showing that the plea of set off, as well as the claim of appellant was regarded by the parties as at issue.

Moreover it appears by a record entry that during the pen-dency of the cause in the court below, papers in the cause were lost or mislaid, and by consent, the parties were given leave to supply them. What particular papers were supplied, under the order, does not appear. It may be that a reply to the plea of set off was in, and lost, or mislaid and not supplied.

Be this as it may, it would be bad practice to permit appellant to avail himself of the want of a reply when, after having failed to move for judgment in the court below on the ground that his plea of set off was confessed by failure to put it in issue, and going into tr.al, and making a contest before the court and jury as if the plea was at issue. Such a surprise in practice is not to be favored here.

Upon the whole record the judgment must be affirmed.


text:
    Hornor vs. O’Shields.
    'Certioraei : Practice in.

    The better practice in certiorari, is tor a transcript of the record to he exhibited with the petition, and a writ regularly issued and returned. And where it does not appear that the record sought to bo quashed was before the court, it did not acquire jurisdiction.
    APPEAL from Phillips Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Tappan <& Hornor, for appellants.

      Palmer, contra.

   HarrisoN, J.:

R. L. O’Shields, administrator of Isaac O’Shields, deceased, applied to the court below for a writ of certiorari to the Probate Court, to bring up the record and proceedings in the matter of allowance of two .claims against the .decedant’s estate, in favor of John J. Horner.

The petition stated that W. E. and C. L. Moore, on the 1st day of June, 1867, in the Phillips Circuit Court, recovered judgment against said Isaac O’Shields for $503.04 and 10 per cent, interest thereon, from that date until paid ; and Charles L. Moore and Robert C. Moore, also, the same day, in said court, recovered judgment against him for $202.95, and 10 per cent, interest thereon from said date until paid; and that they afterwards assigned and transferred the judgments to said Hornor.

That on the 5th day of January, 1876, Hornor exhibited certified transcripts of the judgments to P. O. Thweat, who was the petitioner’s attorney, and Thweat, at his request, made the following endorsement on them :

“Examined and not allowed. Notice and copy waived.

R. L. O’Shields, Adm’r,

per Thweat, Att’y.”

And at the January Term, 1876, he presented the judgment so endorsed to the Probate Court for allowance against the decedant’s estate, and that the Probate Court, allowed the claims and ordered that they be paid as claims of the third class. That Thweat, though the petitioner’s attorney in other matters, had no authority from him to make the indorsement upon the claims, or to waive notice of their presentation; that the claims had never been exhibited to himself, and he had had no knowledge of the allowance of the claims, until the time in whichhe might have appealed therefrom, had elapsed ; that there had been no revival of the liens of the judgments, and that the exhibition of the claims to Thweat was not within one year from the date of the letters of administration.

Hornor filed an answer to the petition. He admitted all its. statements, except those denying that the claims had ever been exhibited to .the petitioner himself, that Thweat had authority to make the indorsement on the claims, or to waive notice of their presentation, as to which he declared that the claims were duly exhibited to the petitioner himself, and that he waived the copy and notice of the presentation, and that the endorsement was made by Thweat at his request.

The record says, that Hornor waived the issuing of the writ, and that the record of the Probate Court was brought in, and it was agreed by the parties that the answer of Hornor should be considered as a return to the writ, and that the cause was heard upon the petition, answer, transcript from the Probate Court, and the testimony of witnesses.

The court affirmed the allowances of the claims, but quashed the classification of them.

No copy of the orders and proceedings of the Probate Court appears to have been made an exhibit with the petition, as properly should have been done, and no such record, if the same was really before the court below, is in the transcript before us.

The court in the case of McKay et al. v. Jones et al., 80 Ark., 148, says : “The greatest extent to which we have gone in sustaining the jurisdiction of the Circuit Court in cases of certiorari, has been to permit the parties, by consent, to waive the necessity of a writ, and try the case upon the transcript filed.”

The better practice, however, is for a transcript of the record to be exhibited with the petition, and that the writ be issued and regularly returned.

A record imports absolute verity, an attribute, the'agreement of the parties could not impart to Hornor’s answer, and in certiorari to inferior courts, the record alone is the subject of consideration, and so far as it extends conclusive.

As therefore the orders and proceedings of the Probate Court were not before the Circuit Court, it acquired no jurisdiction over the subject matter of the controversy.

The judgment of the court below must therefore be reversed, aud the cause remanded to it, with instructions to grant leave to the appellee, if so advised, to amend his application by filing as an exhibit to his petition a certified transcript of the orders and proceedings of the Probate Court; and for further proceedings according to law.