author: English, C. J.:

text:
    Turner v. Vaughan.
    1. Decrue: Final al Expiration of term.

    Afterthe expiration of the term at which a decree is rendered, the Court rendering it cannot sot it aside or modify it except in the manner and for the causes specified in dec. 359, 3602 and 4692 Gantt’s Dig., or by bill of review under the Chancery practice.
    2. HoituSTRAU: Fot lost by fraudulent conveyance if claimed in’fie suit to set' aside the conveyance.

    It seems from the current of adjudications that a conveyance of land set aside for fraud at the suit of creditors, does not stop the grantor from claiming a homestead m the premises conveyed, but he must assert his claim in that suit or he will lie afterward barred.
    3. ChaXCKry Practice. Decree vacating fraudulent conveyance.

    When a debtor purchases land ami Via- it conveyed to another to avoid his debts, a decree in behalf of creditors vacating the conveyance, shonld direct a sale of the land by a commi sionei of the court, and not remit them to their execution at law.
    APPEAL from White Circuit Court in Chancery..
    Hon. J. N. Cyi’ert, Circuit Judge.

      J. M. Moore for appellant.

      Goody, contra.

   English, C. J.:

This was a bill to enjoin a Commissioner in the Chancery from selling lands, claimed as a homestead, under a decree rendered upon a creditor's bill condemning the lands to be sold by the commissioner.

The material facts disclosed in the transcript of the record before us are as follows:

On the 25th of May, 1871, E. D. L. Atkins, being indebted to Blakely D. Turner, drew draft in his favor upon John W. Vaughan, who was indepted to Atkins, for $364.27, payable 1st November 1871, which was accepted by Vaughan.

On the 3d of February, 1873, Turner recoverd judgment against Vaughan before a Justice of the Peace of White County for $347, being for amount due upon the draft after allowing credits, etc.

On the 18th of February, 1873, Turner caused a ft. fa to to be issued upon the judgment; Vaughan scheduled his personal propert, and the constable returned upon the execution nudla bona etc.

Turner the filed, a transcript of the judgment, execution and return, in the office of the clerk of the Circuit, Court of White County, and on the 10th March, 1873, caused an execution to be issued thereon, which was returned by the sheriff, no property found and wholly unsatisfied.

On the 17th of November, 1873 Turner filed a creditor's bill on the Chancery side of the Circuit Court of White county against Vaughan and his wife Amanda, alleging in detail the facts above stated, and further averring, in substance:-

That on the 24th of August, 1871 Vaughan purchased of A. K. Lewis and wife the N.E 1-4 sec. 44, and the S. W. 1-4 of the N. W. 1-4 of sec. 13 T. 10 N. R. S. W. and on the 10th of January, 1873, he purchased of Hagh B. Chandler and wife the S. W. 1-4 of the N. E. 1-4 of sec. 34, same township and range, situate in' White county. That he purchased the said lands with his own means, but to avoid the payment of said debt and other debts owed by him, he fraudulently caused them to be conveyed by the vendors to his wife, Amanda. That at the time of the purchase of said lands, said Amanda had no separate means or estate with which to purchase or pay for them, and that Vaughan purposely caused them to be conveyed by the vendors to his wife to cheat, defraud, hinder or delay his creditors, and particularly Turner, in the collection of their debts against him.

Prayer that said deeds (which were made exhibits) be declared fraudulent, and said lands held to be the property of Vaughan, and decreed to be sold and the proceeds applied to payment of said judgment, etc.

Vaughan and wife answered the bill, admitting to be true its allegations relating to Turner’s debt, judgment, executions, etc.

Vaughan admitted that he purchased the lands of Lewis with his own means as alleged in the bill, and had the deed made to his wife, but denied that he caused the deed to be made to her to avoid the payment of his debts or to defraud his creditors, and averred that he caused the deed to be made to her in good faith, and with a view to secure a home for his family and that it was so agreed and understood at the time.

He also admitted that he purchased of Chandler the other tract described in the bill, and paid for the same with his own means, and caused the deed to be made in the name of his wife, but denied that it was with fraudulent intent or purpose to hinder or delay his creditors.

The cause was heard on the pleadings and evidence at the January term, 1876, and the court found that Vaughan purchased the lands described in the bill with his own means, and caused the deeds to be made to his wife to cheat, defraud, hinder and delay Turner in the collection of his debt, and de■creed that unless Turner’s judgment, interests, costs, etc., should be paid by the 1st of March following, the land should be sold to satisfy the same, and appointed the clerk of the ■court a commissioner to sell the lands under the decree.

On the 21st of June, 1876, Vaughan filed the bill in this suit, in the same court against Turner and A. P. Sanders, the ■commissioner appointed to sell the lands under the above decree.

The bill alleges that complainant accepted the draft drawn by Atkins upon him in favor of Turner on the 25th of May, 1871, that Turner obtained judgment against him on the draft 3d February, 1873, before a Justice of the Peace, that execution was issued and returned nulla bona ; a transcript filed in the office of the clerk of the Circuit Court, and execution issued thereon 10th March, 1873, and returned unsatisfied without levy.

That prior to the acceptance of the draft, complainant bought of A. K. Lewis, and paid for the N. E. 1-4 of sec. 14, and the S. W. 1-4 of the N. W. of section 13, T. 10 N. E. 8 W., 200 acres, which at the instance of complainant was, on the 27th of August, 1871, conveyed to his wife Amanda, by deed duly acknowledged and recorded. That he purchased the lands for a home for himself, his wife and children, and to thaq. ■end he had the deed made in the name of his wife. That since the purchase, in 1871, he and his family had resided, and still resided upon the lands, etc. That the same was his homestead, and he being a resident of the State, and the head of a. family, claimed that he was entitled to 160 acres of said lands upon which were his residence and improvements as his homestead, to-wit: The S. W. 1-4 of the N. W. 1-4 of sec. 13, and the S. 1-2 of the N. E. 1-4 and the N. W. 1-4 of the N. E. 1-4 of sec. 14, T. 10, N. E. 8 W., free from sale under execution or other process, or the lien of any judgment,Of decree of any court, the same not exceeding in value the ¡jgpt of $2,500. • r1

Complainant then gives the history of Turner’s suit agaipst. him and wife, and the decree therein as we have stated ¡^c|ve,. and makes a transcript of the decree an exhibit. _-,|p

Then alleges that having failed to pay the debt, etc.,,,at,Re-time fixed in the decree, the commissioner had advertised, tlje lands claimed by him as a homestead, with the other lancj., condemned by the decree, to be sold on the 24th of June, 1876,,j That he had applied to said' commissioner, claimjng-^e-above described lands as his homestead, and asking thaj; the-sale be suspended and superseded, which he refused. UTh^^f the sale should be allowed, it would be a-cloud uppn . hip. title, etc. , .

Prayer for restraining order as to the lands claime^.a^g, homestead, that said decree be reviewed and modified^-,and that upon the final hearing, the injunction be made perpetuar-on the presentation of the bill a temporary injunction granted. ^ ^

Turner answered the bill at the July term, 1876.

He admits the allegations of the bill relating to hi§ judgment against Vaughan, and the suit of himself .against. n ° r s?! .-Mil Vaughan and wife, and the decree therein rendered, and makes ° . ’ ■ 'Ijl ft/IS a transcript of the pleading in that suit an exhibit to ,1^8 answer. And avers that in that suit neither Vaughan, nór his wife claimed or pretended to claim any homestead right iii st^ijl lands, but rested their defense entirely upon other grounds, added a demurrer to the bill, and prayed that the temporary in ¡unction be dissolved.

The cause was submitted on the pleadings and iphjbiijs, ,and the court announced that it would dissolve the injunctipii, an^I dismiss the bill; whereupon complainant’s solicitor moved the. coui’t to suspend decree until be could consider what further steps he would take in the cause, which was granted.

On the same day of the term, the complainant hied a supplement to his bill, reciting the previous steps in the cause, and alleging that after the announcement by the court, he had filed in the office of the clerk of the Circuit Court a schedule-of the lands claimed by him as a homestead, etc., which was. exhibited, and asked the clerk for a supersedeas, which was refused.

Turner moved to strike out the supplement, which the court refused, atid he entered a demurrer thereto, which with the whole case was submitted, and the court overruled the demui’-rer, and rendered a decree enjoining the commissioner from selling the lands under the original decree, claimed and scheduled by complainant as a homestead, so long as he should, continue to use and occupy them as such.

From this decree Turner appealed to this court.

I. The decree condemning the whole of the lands to be-sold by a commissioner to satisfy Turner’s judgment, was rendered by the court below on Turner’s bill against Vaughan and wife, at the January term, 1876. The decree appealed from, enjoining the commissioner from selling the lands claimed by Vaughan as a homestead, was rendered upon this, bill at the July term following. After the expiration of a. term at which a decree is rendered, the court rendering the decree has no power to set it aside or modify it, except upon application under the statute, and for some cause therein specified, (Gantt's Dig. Secs. 359, 3602, 4692) or by bill of review under the Chancery practice. Jacks v. Adair, M. S.

The bill now before us does not make a case for setting aside-Or modifying the decree condemning the lands to be sold under-either practice, lb.

II. Counsel for appellant submits that if appellee had set up his homestead claim in answer to appellant’s bill it would have been unavailing. That no exemption can be allowed out ■of property which has been conveyed with intent to hinder, ■delay or defraud creditors. That the transfer is valid against 'the debtor, and in attempting to place his property beyond the reach of his creditors, he places his exemptions beyond his ■own reach.

In re Graham, 2 Bissell 449. Graham sold personal property to Hanton, to defraud his creditors, and was afterwards •'adjudged a bankrupt and the sale set aside, and he claimed the property as exempt, under a statute of Wisconsin. The court «aid: “They had no doubt conspired together to place the possession and apparent title in Horton, to defraud Graham’s 'creditors-, and were in the execution of that scheme when they were arrested by the proceedings of this court. And if the bankrupt has by his fraudulent acts deprived himself of the benefit of the exemption laws, it is a just retribution upon him. -A debtor not unfrequently cheats himself in trying to cheat his 'creditors, and his bankruptcy furnishes a striking example of such case. In his anxiety to place his property beyond the Teach of his creditors, he places his exemptions beyond his <own reach.”

It seems, however, from the current of adjudications, that a ■conveyance of lands set aside for fraud, at the suit of creditors, ■does not stop the grantor from claiming a homestead in the premises thus conveyed. Such a conveyance does not constitute an abandonment of the homestead such as opens it to creditors. Thompson on Homestead, see. 408, etc., and cases cited.

If, therefore, appellee had, in his answer to appellant’s bill, not only denied, as he did, that he procured the lands to be conveyed to his wife to defraud his creditors, but, as a further defense, shown that he had impressed the homestead character upon a part of the lands, and ashed' the' court if' it found the canveyance fraudulent and set it aside,, to. decree- to him the benefit of the homestead exemption provided fbr by the Constitution, the court should have so. decreed..

III. But having neglected to mahe such defense, and the court having, by its decree, condemned the whole of the lands to be sold by a commissioner in satisfaction of' appellant’s judgment, had appellee the right, after the decree, to) schedule a part of the lands as a homestead, under- the statute- providing for the scheduling of exempted property, and then upon his bill for that purpose, procure a decree enjoining-the commissioner from selling that part of' the lands claimed by him as a homestead ?

In Norris et al v. Kidd, 28 Ark., 486, the homestead claimant permitted the lands to be sold under an execution issued upon a judgment recovered against him, without scheduling the property, as required by the statute (Gantt’s Dig-, sec, 263 etc.,) and afterwards the homestead claim was set up as a defense to an action of ejectment brought by the purchaser, and it was held to be too late.

In Frits v. Frits, 82 Ark,, 327, the homestead was mortgaged, and to a bill to foreclose the mortgage, the answer set up the homestead claim (under the constitution of 1868) as a defense, and it was held that the defense could be successfully interposed by answer without scheduling the homestead under the statute.

It has been held that where a mortgage has been, made on homestead land, and a bill brought to foreclose, the mortgagor must plead the homestead exemption in defense, and if he neglects to do so, or pleads it, and the defense is overruled, and there is no appeal from the decree, he is barred from after-wards asserting the homestead claim against one who purchases under the decree of foreclosure, Larson v. Reynolds et al. 13 Iowa, 57; Haynes et al v. Meek, 14 Ib., 320; Lee et seq v. Kingsbury, 13 Texas, 68: Tadlock v. Eccles, 20 Ib., 783.

In Hayues etal v. Meek, sup., the court said : If the homestead right ever existed, it was lost to the claimant by his failing to set it up in the foreclosure proceeding, in other words, ho has had his day in court upon this alleged homestead right.

In Illinois the husband cannot alone release the homestead right, but he must be joined by the wife, hence it has been held that a foreclosure against the husband does not bar the wife, and she may interpose the homestead claim after decree. Rut if a writ is brought against her after she has become dis-court involving the homestead right, and she neglects to plead the homestead right, she is precluded by the decree. Wright et al v. Dunning, 46 Ill., 274. Thompson on Homesteads, sec, 715-721.

By our laws the homestead right of the wife does not attach until the death of the husband — she succeeds him in the homestead right, if he has it at his death. He may bar any homestead claim by her, by a conveyance in which she does not join, though he cannot thus bar her right to dower which attaches at the marriage. Johnson et al v. Turner, ad., 29 Ark., 281.

So “Where a judgment creditor brings a bill in equity to set aside a conveyance of certain realty of the debtor, as having been made in fraud of his rights, if the debtor would set up a right of homestead in the premises, he must do it in that suit. If a decree has been entered divesting him of all right and interest in the premises, and directing them to be sold, and they have been so sold, and the purchaser brings ejectment, the debtor cannot, in this action, set up a right of homestead in the premises, he must do it in that suit. The decree in equity cannot be thus collaterally questioned. So, if the bill is taken for confessed, a final decree entered, and the premises sold thereunder, and the defendant refuses possession, claiming to hold under the homestead law, he cannot assert this right in opposition to the granting of a writ of assistance.” Thomp-s'óii tin Homesteads, sec. 726.

Miller v. Sherry, 2 Wallace, 237, was a creditor’s bill, like Türribr’s, and the property claimed as a homestead was sold •under the decree, the debtor having failed to plead the homestead right, in the suit to set aside a fraudulent conveyance. The court, by Justice SwayNE, said : “In regard to the homestead’fight, claimed by plaintiff in error, there is no difficulty. The' decree under which the sale was made divested the defendant ‘of all right and interest in the premises. It cannot be col-Méi-all'y questioned. Until reversed it is conclusive upon the parties,'” etc.

dlh this case the lands claimed as a homestead had nob been sb'ld When the bill for injunction was brought, but the object of tlif^bill was to prevent the sale by the commissioner under the decree condemning- them to be sold.

The lands were as effectually condemned to be sold by the decree as mortgaged premises are upon a decree of foreclosure.

JThe court did not merely set aside the fraudulent conveyances which appellee procured to be made to his wife, and remit appellant'to his remedy by execution upon his judgment at law, {which was in effect the character of the decree, or order of sale in Sears et al v. Hanks et al., 14 Ohio St. R., 298, relied oh by-counsel for appellee) but it directed the sale under its own decree, and could not upon the facts of the case, have done otherwise.

; Tlie title to the lands was never in appellee, Vaughan. ITe purchased'the lands, and procured the vendors to convey them by deeds to his wife. The title to the lands was in her when Turner filed his creditor’s bill against husband and wife, and when the decree in that suit was rendered. Had the decree merely set aside the deeds made to her as fraudulent, and remitted Turner to bis execution on. bis judgment against tbe bus-band, a sale under tbe execution would not bave carried title to» the purchaser; hence it was necessary to condemn the lands, to be sold under tbe decree, in order to carry tbe wife’s legal-title to the purchaser.

Tbe Constitution of 1868, which was in force when the debt,, upon which Turner’s judgment was obtained, was contracted,, provides that the homestead shall be exempted from sale oa execution, or any other final process from any court. Art.. XII, sec. 3; Constitution of 1874, Art.. IX, sec. 9. Yet it, was held in Norris et al v. Kidd,, sup., that the homestead claim was lost if the property was not scheduled before sale under execution. So we think it is lost where there is a bill in-rem to condemn the homestead land to-be sold to satisfy a debt,, and the claim is not interposed before decree, and the decree, becomes final, and passes from under the control of the court rendering it, as in this case.

If it be said that it is a hardship- for- a man to lose his homestead exemption because he failed to- assert it at some particular time, or in some special mode, or in some particular proceedings ; it may be replied, that such is the law in relation to any defense which a man has an opportunity to make, and fails to. interpose it. If sued on a paid, or- barred demand, and he-fails to plead payment or limitation, he is precluded by the judgment, in the absence of fraud, etc.. Conway v. Ellis, 17 Ark., 365.

The decree of the court below must be-reversed,, and a decree-entered here dismissing appellee’s biE for inj.un.eti.on..


source: Caselaw Access Project

author: EakiN, J. :

license: Public Domain

text:
    Jowers v. Phelps, ad.
    1. Possession: Notice of title.

    Actual possession of land is notice to all the world, of the possessor^ title.
    2. Estoppel in pais.
    A party who by his acts, declarations, or admissions, or by failing to act or speak when he should, either designedly or with willful disregard of the interest of others, induces or misleads another to conduct or dealings which he would not have entered upon but for this misleading influence, is estopped to assert his right afterward, to the injury of the party so mislead.
    APPEAL from White Circuit Court.
    Hon. Sam. W. Williams, Special Judge,

      jB. D. Turner for appellant.

      Goody, contra.

   EakiN, J. :

Appellant Jno. J. Jowers bled bis bill in equity against bis son, Goo. A. Jowers, for specific performance of a sale of lands ; alleging purchase, payment of the price, continued possession under the purchase, and valuable improvements. Upon this branch of the cause the proof was clear, and specific performance was properly decreed as against Geo. A. Jowers. Phelps was also made a defendant, against whom it was charged, that, whilst complainant was so in possession, without any deed of record, he had taken a mortgage upon the land from Geo. A. Jowers, in whom the legal title remained. The prayer against him was that the mortgage might be set aside,, and the property relieved.

Phelps answered, denying any notice of complainant’s, equitable claim at the time he took the mortgage, stating that complainant was present when it was executed by Geo. A.. Jowers and set up no claim that the lands appeared on the-assessossment rolls in the county in the name of Geo. A. Jowers who also appeared from the records of the Reorder’s office to be the legal owner. He makes his answer a cross-bill against complainant and his co-defendant Geo. A. Jowers, stating that the lands had been levied upon at the suit of one James A. Huff as the property of said Geo. A., and advertised to be sold upon the 7th day of April, 1873. That said Geo. A., applied to him for a loan of money to pay off the execution, offering a mortgage on the lands. He lent the money and took the mortgage, to secure a note given therefor in the sum of $300, which mortgage was duly recorded. He on his part prays foreclosure. The occupancy of J. J. Jowers at the time of the mortgage is admitted. Complainant J. J. Jowers answered the cross bill, reiterating the grounds of his equitable claim, relying on his possession at the time the mortgage was executed, and denying that it was made with his knowledge or consent, although he does not expressly deny that he was present.

The Chancellor, on this branch, found that J. J. Jowers “knew of the mortgage being contemplated, prior to its execution, but failed and neglected to assert his claim to the land and notify the said Phelps of his title;” and as against J. J. Jowers decreed a foreclosure in favor of Phelps for debt, interest and costs. Erom this portion of the decree J. J. Jowers appealed.

This court has repeatedly held that actual possession of land, with visible indications of occupancy, is notice to all the world of some right or equity claimed by the occupant, so as to put all others who deal concerning it upon inquiry ; and that a mortgage taken under such circumstances from the legal owner, should be subordinated to the rights of the occupant, whatever they may actually be, and whether shown by record or not. The question now raised is whether the complainant has been estopped by his conduct from claiming the benefit of that protection which equity extends to the bona fide occupant.

The evidence on this part is, substantially: that the occupancy of the land by J. J. Jowers, and his claim of ownership was matter of notoriety in the neighborhood. He had been ■over two years in possession, and when the mortgage was made-had a tenant upon it. . Geo. A., had refused to make him a deed in pursuance of the parol purchase. It seems to have been discovered that the legal title remained in Geo. A., and the execution in question was levied upon it as his property, to satisfy a judgment of about $150. Upon the day appointed for the sale, J. J. Jowers, Geo. A. Jowers and Phelps were all at Searcy, the county seat. J. J Jowers had made an arrangement with a neighbor to buy in the land and get a sheriff’s deed to fortify his title, inasmuch as his son refused to convey. He heard that his son intended to mortgage the laud to Phelps to raise money to pay the execution, and advised him not to do so. His sou disregarded his advice, executed the mortgage, paid the debt, and thus defeated the purposes of his father, who was waiting for the sale. J. J. Jowers was advised of his son’s intentions before the mortgage was made, and was informed soon aftrrwards that they had been carried out, but he was not present when the mortgage was executed, nor did he say or do anything to mislead Phelps, the mortgagee. • He seems simply to have declined any active interference, and Phelps on his part seems to have relied upon the fact that J. J. Jowers had no legal title ; and upon his own judgment, that the mortgage was good. There is no proof that Phelps and J. J. Jowers had any conversation on the subject from which the assent or concurrence of the latter, in the mortgage, could be reasonably inferred. In fact, the mortgagee defeated the objects which J. J. Jowers bad in view, and which were legitimate. Phelps-resided about four miles from the land.

Estoppels in pais, depend upon facts, which are rarely in any two cases precisely the same. The principle upon which' the3r are applied is clear and well defined. A party who by his acts, declarations, or admissions, or by failure to act or speak under circumstances where he should do so, either designedly, or with willful disregard of the interests of others,, induces or misleads another to conduct or dealings which he would not have entered upon but for this misleading influence,, will not be allowed, afterwards, to come in and assert his-right, to the detriment of the person so mislead. That would be a fraud. But it is difficult to define special acts or conduct which in all cases would amount to an estoppel. Generally it is said that if the owner of property, with a full knowledge of the facts, stands by, and permits it to be sold to an innocent purchaser, without asserting his claim, he will be estopped. Although this will not embrace all species of estoppel in pais,.. which may be as diverse as are the nature of human transactions, it is, so far as it goes, about as safe and correct a rule as can be formulated. The leading idea is that a person shall not do, or omit to do, anything regarding his rights, which if taken advantage of by him, would work a fraud upon another ; but, in this as in all other cases involving fraud, the exact limits and boundaries of fraudulent conduct, are left undefined, to be applied by the Chancellor to the facts before him.

There are no cases that seem to require the equitable owner of property to be active in seeking one about to take the legal title, for the purpose of advising him against it. He must see to it, at his peril, that by some mode which courts of equity recognize as sufficient, notice of his equity be given to all the world; or that such particular notice be brought home to the purchaser as should put him upon it until inquiries be made, upon which there would devolve upon him the further duty ■of full, frank and explicit explanation. Men are not required to be clamorous in asserting their rights ; nor to be active in •seeking others about to deal concerning them, in order to prevent anticipated mischief. To stand by and see a sale to •an innocent purchaser would be, however, a breach of moral ■duty, unless the owner meant to abide by it.

Upon a view of all the facts in this case the court is of opinion, that the complainant J. J. Jowers might well rest upon the notice of his equity, given to all the world by his «notorious possession, and that hearing of the intended mortgage he was not obliged to seek Phelps and warn him against taking it. The time and opportunity of forbidding the sale, .and asserting his rights iiever occurred, inasmuch as the land was not offered. He did not desire the mortgage to be made, bad no inducement to mislead Phelps, and seems never to have intended by any act of his to encourage Phelps to take the mortgage. He had no influence in the matter over his son ■George A. and as to Phelps, he acted on his own judgment, under the advice and information of others.

So much of the Chancellor’s decree as Confirms the title in the land in complainant J. J. Jowers as against Greorge A. .Jowers, by way of specific performance, with costs, must be affirmed. So much of it as declares the land subject to the mortgage of Phelps, and orders a foreclosure, with costs, against said J. J. Jowers, will be reversed; and a decree will be ■entered here dismissing the cross-bill, and quieting the title of complainant J. J. Jowers against all claim of Phelps under or by virtue of the mortgage. The costs of this court, and so much of the costs of the court below as resulted from the cross-bill, will be adjudged against the defendant Phelps.


author: Eakin, J. :

text:
    Williamson et al v. McCrary Ad.
    Noít-Claim : Statute of did not run during the war.

    The statute of non-claim has all the attributes and characteristics of a statute-of limitations and did not run during the war.
    APPEAL from Sevier Circuit Court.
    Hon. L. J. Joyner, Circuit Judge.

      Compton, for appellant.

      Gallagher & Newton and Rose, contra.

   Eakin, J. :

It appears from the record in this case, which incorporated an agreed statement of facts, used in the court below upon trial, that on the 5th day of January, 1861, Benj. E. Williamson with others, executed a note under seal, whereby he bound himself, on or before the first day of April next thereafter, to-pay George and M. E. Williamson, guardians, etc., $6,961.23.. He died on the 21st day of February, 1863, and on the 3d day of April, 1863, the Probate Court of Sevier county granted letters of administration upon his estate to J. D. Bellah and. Eliza Williamson. The payees of the note were at the time-of its execution, and have since continued to be, residents of' the State of North Carolina, which was in and a component part of-the Confederate States during the'war. During the-year 1863, and on to the close of the war, the Mississippi river was blockaded by the United' States forces ; but citizens of the Confederate States did actually pass and repass frequently.

On the 7th day of June, 1866, the defendant-, McCrary, was by said Probate Court duly appointed administrator de bonis-non of said estate ; and on the 5th day of July, 1867, this-claim, duly verified, was presented to him for payment, and by him disallowed. It had never been presented earlier to either administrator. Upon application to the Probate Court it was allowed, and McCrary appealed to the Circuit Court.

The principal defence, and the only one necessary to notice, was the statutory bar of non-claim. At the February term, 1877, the cause was submitted to the court, sitting as - a jury, which found that the claim was barred by the statute, and disallowed the same, with costs; declaring the law to be, that the statute of non-claim is not a statute of limitation, and was not suspended by the war. The court, further, refused to declare that the residence of the claimant in North Carolina, and the blockade of the Mississippi, affected the operation of the statute between citizens of that State and of this. The claimant appealed.

Soon after the close of the civil war it was held by this court in the case of Hawkins v. Filkins, (24 Ark., 286) that the government of the State had continued to exist de jure during the war, until changed by the convention of 1864 ; and that all its acts up to that period, not in conflct with the constitution and laws of the United States, had been valid and binding. It was further held in the case of Bennett, ad. etc., v. Worthington, (Ib. 487) that as between citizens of the Confederate States the statute of limitations had not been suspended by the war, although in the county of the defendant the courts had been practically closed.

In the Federal courts-, however, it was held, repeatedly, that as between citizens of different belligerent powers the statutes of limitation were suspended. This, upon principles of international law, independent of any exceptions in the. respective statutes of either State. It is not an exception created by the courts. It is the consequence of an imperative mandate of. the law of nations; by which, during the war, all commercial intercourse and correspondence between enemies is interdicted. Brown v. Hicks, 15 Wallace, 182. The matter, however, did not rest wholly upon general principles of international law. By Act of 11th June, 1864, Congress provided that when any defendant could not be served with process, by reason of resistance to the execution of the laws of the United States, or the interruption of the ordinary course of legal proceedings, the time of such interruption should not be estimated in the time limited by law for the commencement of the action; and it was declared in Ross v. Jones, 22 Wallace, 22, without reference to citizenship, to be the established rule of the Federal courts “that the statute of limitation was suspended in the rebellious States during the existence of the late rebellion.”

Afterwards, upon the adoption of the Constitution of 1868, and a change of the members of this court, different views prevailed as to the effect of the attempted secession. It was considered that no legal government existed in this State at all after the act of secession ; and that all acts of soi disant Legislature or courts sitting here were void. That in fact no courts were in existence. And in this view this court adopted in their full scope the principle declared by the Federal Courts, holding that as “-flagrante bello” there were neither courts nor government here, the statutes of limitation became suspended also, even as betwen citizens, from the 6th of May 1861, to the 2d of Apri,l 1866. The legitimacy of this conclusion it is bootless now to discuss. From that time it became a rule of property affecting the dealings of citizens, with regard to a large amount of chose,sj in action then outstanding, and not barred. Hall v. Denckla, 28 Ark., 506.

Another change occurred in our government. This court was reorganized under the Constitution of 1874, and the former views announced in Hawkins v. Filkins came again in vogue. It might have followed from the principles announced in Bennett, admr. v. Worthington (supra), that the statutes of limitations between citizens had continued to run during the war, (except as controlled by action of the State Legislature previous to the Constitution of ¿864). The question arose in the case of Mayo & Jones v. Cartwright et al., 30 Ark., 407. The court, without approving the grounds upon which the doctrine of Hall v. Denclcla was based, considered that the conclusion as to the running of the statute had been so long acquiesced in that it would be a matter of questionable propriety to disturb it. Upon the doctrine of stare decisis it declined to do so, but declined also to make any extension of its application. It held that it would not be used as a defense by a trustee for sale, who had neglected to take possession and sell before the "title of the occupant of the land had ripened by adverse possession of seven years. The court considered that as no suit or action in court on the part of the trustee was necessary, but he might have proceeded in pais, he was not entitled to claim a suspension of the statute against suit inequity, by the occupant who had been more than seven years in possession.

The question now presented is, whether the statute of non-claim is to stand upon the same rule with regard to suspension as the general statute limiting the time for actions.

Gantt’s Digest, chap. 4, sec. 99, provides that “all demands not exhibited to the executor or administrator, as required by this act, before the end of two years from the granting of the letters, shall be forever barred.” This is in express terms a statute of limitations, applicable alone to claims against estates, prescribing the time in which they must be brought to the notice of the personal representative by exhibition. The mode of exhibition may be by revivor of a pending action (sec. 100) or the beginning of a new action against the representative (sec. 101), or by delivery of a copy of the instrument or account upon which the claim is founded. These limitations supersede and take the place of the general statute of limitations, but that is only the change from one system of limitations regulating suits inter vivos, to another governing proceedings, against estates.

The first two modes of exhibition are by proceedings iu court, and are without question actions, as distinct from proceedings in pais.

The last has no efficacy in itself, except as a foundation and preliminary step to proceedings in the Probate Court, either to-obtain the judgment of the court upon the validity of the-claim, or (if that is not controverted), to obtain an order for its payment, for the administrator or executor is not authorized to pay the account upon his own allowance. He may do so, but it is at his peril. He should report his action to the court and await its order. If the claim be disallowed, he need do nothing more, and it devolves upon the claimant to follow the presentation with ’ notice of application to the Probate-Court, when the matter becomes a suit between parties as effectually as if presented in the Circuit Court by either of the-other prescribed modes.

The presentation then must be considered as incidental and preliminary to a judicial proceeding, to establish the claim or direct its payment if not litigated. It is an Act in pais, but done only as a pre-requisite to a suit — not as an act by which alone the object may be effected. It partakes of the. nature of' the judicial proceeding in the Probate Court, to which it is incident. It differs essentially from a .sale under a power,, which may be entirely accomplished without the aid or intervention of any court whatever.

We think the statute of non-claim has all the attributes and characteristics of a,statute of limitations, and that the statute did not run from the 6th day of May, 1861, as held in Hall v„ Denclcla, and in other cases since.

The court below erred in declaring the law otherwise.

Let the judgment be reversed and the cause remanded, with ' instructions to allow and class the claim ; and for other proceedings in accordance with law, and consistent with this opinion.


author: ENGLISH, C. J. :

text:
    Gates et al v. Bennett.
    1. Partnebs: Power of one to mortgage partnership property.

    One partner may make a valid mortgage upon the partnership crop to secure-a partnership debt, but cannot mortgage the individual property of his co-partner without his consent, or acquiescence under su.h circumstances as to create an estoppel.
    2. Evidence: Entiles on docket of Justice of Peace.

    The docket entries of a Justice of the Peace are quasi records, and when certified, receivable in evidence.
    3. Same : Judgments of Justices of the Peace as

    When a Justice has jurisdiction of the subject matter and parties, his judgment, [until reversed] is as conclusive as that of a. court of record and may be.pleaded, and proved by exemplification of his docket entries.
    4. Attachment : None for specific property.

    Attachment is no remedy for the recovery of specific property.
    5. Replevin : Who may have for trust property.

    A trustee may maintain replevin for possession of the trust property, but the-beneficiaries in the trust cannot.
    6. Evidence: In aid of record.

    Where in an action of replevin the defendant pleads former recovery of the same property, from the plaintiff, and in the judgment exhibited by him the description of the property varies from that in plaintiff’s complaint, he may prove it to be the same by parol evidence.
    7.-: Filing papers may be proved by parol; but judgment not varied by.

    The filing of a complaint and affidavit in a replevin suit, and that a writ was issued,. bond executed and return upon the writ, and that they were all in regular form and had been lost or destroyed, may be proved by parol; but it is not competent. to prove that a different judgment was rendered from the one offered in evidence, or that it was entered by mistake in a wrong name.
    8. Judgment : Correction of Etc.

    A judgment of a Justice may be corrected by Ms successor in office, bv’ a nunc pro tunc order, upon proper application.

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

      Ciarle & Williams for appellants.

      Gatewood & Hughes, contra.

   ENGLISH, C. J. :

On the 12th of March, 1875, John Bennett brought an action •of replevin before Justice Booth, of Wattensas township, Prairie county, against David Gates for the following property :

One dark brown mare, five years old.
One sorrel mare filley, two years old.
One red and white pied cow, five years old, and her calf.
One dun cow, six years old, and her calf.
One red cow, four years old.
One white heifer with specks on her neck, etc.

Upon affidavit and bond, a writ of replevin was issued, the •constable seized the property sued for, and upon the execution •of a cross-bond by defendant, he was permitted to retain possession of it.

On application of defendant the venue was changed to Red .River township, and the suit then progressed before Justice ■Stephenson.

To a formal complaint filed by plaintiff, the defendant filed the following answer:

“The defendant, David Gates, says that he does not unlawfully detain the property sued for as described in plaintiff’s •complaint and affidavit as by plaintiff alleged therein, and for an answer states:

First: That one Joseph Bennett and the plaintiff in this action (John Bennett) were partners in raising a crop in the year 1874, and that on or about the — day of —— 1874, said ■Joseph Bennett executed a mortgage or deed of trust to defendant- to secure to Gates, Bro. & Co., certain indebtedness-of himself and said John Bennett, and by said mortgage or ■ trust deed conveyed to defendant as trustee a part of the prop- • erty in question, to-wit: one black mare, one sorrel colt, two-red cows, one dun cow, and one pied cow, as well as other property not sued for in this action, including the crop of cot- ■ ton and corn raised by said Joseph and John Bennett, in the year 1874 ; and that plaintiff in this action was well aware of' the execution of said mortgage, and at no time made any objection to David Gates, trustee, or to Gates, Bro. & Co., until their debt matured. That on and after the maturity of said mortgage, or trust deed, plaintiff in this action (John Bennett) by verbal contract and agreement, agreed to deliver without delay to the defendant, the property conveyed by said mortgage now in controversy in this action, or so much thereof as would be sufficient to pay all the indebtedness of himself' and his brother, Joseph Bennett, then due the said Gates, Bro. & Co., provided said defendant or Gates, Bro. & Co., let him,, the said John Bennett, have and keep the balance of said crop of cotton included in said conveyance. Being willing and desirous to accommodate their customers, the said Gates, Bro. & Co., consented thereto, and defendant avers that plaintiff (John Bennett) did keep and appropriate said crop under said agreement, and afterwards refused to deliver said property notwithstanding his said agreement to do so.

Second: That on the 21st day of November, 1874, in an action by Gates, Bro. & Co., before John Aiken, a justice of the peace within and for Prairie county, Arkansas, against the said Joseph Bennett and the plaintiff in this action (John Bennett) a judgment was duly rendered, given and made in favor of said Gates, Bro. & Co., and against said plaintiff for the property in controversy in this action; and that said plaintiff, John Bennett, "«pealed from the decision of said Sustice to the Circuit Court of Prairie county, in the name of Joseph and John Bennett; and that on the 5th Jay of March, 1875, skid appeal was, by said court, dismissed ; and that the propert3r (a part thereof) sued for in this action was thereafter, by the constable of Upper Surrounded Hill township, in said county of Prairie, 'turned over to this defendant by the order of the Justice before. whom said case was tried and judgment rendered, and that by virtue of the premises he now holds the same as trustee for the benefit of Gates, Bro. & Co., and not otherwise.”

Isaac Gates and Ferdinand Gates, partners under the firm name of Gates, Bro. & Co., applied to be made defendants, on the grounds that they were the real parties in interest, and had immediate possession of the property in controversy, and lhat the possession of defendant David Gates was only constructive.

The justice permitted them to be made defendants, they adopted the above answer filed by defendant David Gates, the cause was tried before the justice, judgment in favor of plaintiff for the pioperty described in his complaint, and defendants appealed to the Circuit Court.

In the Circuit Court the plaintiff demurred to the answer filed by defendant David Gates, before the justice, and adopted by Gates, Bro. & Co., as their answer on being made defendants.

The demurrer to the first paragraph of the answer was upon the following grounds, in substance :

1. Defendants seek to claim the property in controversy by virtue of a mortgage from Joseph Bennett, but do not show that at the time of the execution of the mortgage the property belonged to him, or that he had any authority to mortgage the property to plaintiff.

2. The description of the property in the answer is not responsive to the description of property claimed by plaintiff; and the knowledge of plaintiff that Joseph Bennett had executed a mortgage covering his property does not preclude him from asserting title thereto.

3. Defendants set up a parol agreement with plaintiff to deliver the property in controversy, which if true gives defendants no title thereto, and which parol agreement is at variance with the written mortgage under which they claim and they cannot sustain title under both.

The demurrer to the second paragraph of the answer was upon the grounds:

1. That it sets up a pretended judgment before John Aikin, a justice of the peace, rendered on the 21st November, 1874, against plaintiff and Joseph Bennett in favor of Gates Bro. & Co. without showing that the justice had jurisdiction in the premises.

2. That it shows simply a dismissal of the appeal of plaintiff in the Circuit Court, and no trial on the merits.

3. The property being turned over by the constable to David Gates, confers upon him no right to it.

4. David Gates shows no right in himself to hold the property.

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

The cause was submitted to a jury on the second paragraph of the answer, and verdict in favor of plaintiff for the property described in his complaint, the value of which was found to be $190, and for $22.50 for its detention.

Defendants moved for a new trial on the grounds :

1. The court erred in sustaining the demurrer to the first paragraph of defendants’ answer.

2. In excluding testimony offered by defendants, and in. directing the jury to render a verdict in favor of plaintiff for-want of evidence on the part of defendants to sustain the issue.

3. The verdict is for plaintiff, when it should, by law, have, been for defendants.

The court overruled the motion for a new trial, and defendants took a bill of exceptions setting out the evidence and points reserved at the trial; judgment was rendered for plaintiff, on the verdict, and defendants appealed to this court.

I. We are first to consider whether the court below erred in sustaining the demurrer to the first paragraph of the answer of' appellants to the complaint of appellee, (which question is presented upon the record, and need not have been made ground of the motion for a new trial.).

The substance of the paragraph, or plea, is that appellee,. John Bennett, and his brother Joseph, were partners in making a crop in the year 1874, and that Joseph, with the knowledge-of appellee, exectíted a mortgage or trust deed, to David. Gates, as trustee, upon part of the property in controversy in this suit, and upon the crop of cotton and corn raised by him. and appellee in that year-, to secure a debt which they owed to Gates Bro. & Co. And that after the maturity of the debt, appellee agreed to deliver to the trustee the property in controversy, or so much thereof as would satisfy the debt, provided that Gates Bro. & Co. would let him keep the cotton, included in the mortgage, to which they consented, and he did' keep and appropriate the cotton, etc.

Joseph Bennett could make a valid mortgage upon the partnership crop produced by himself and appellee to secure a debt due from them to Gates Bro. & Co. Herman on Chattel Mortgages, p. 298. He could not mortgage the individual property of appellee to secure a firm debt, without his consent, or acquiescence under such circumstances as to make it operate as an estoppel (Jowers v. Phelps, M. S.) But if the mortgagees released, to him, as alleged, cotton bound by the mortgage,, this was a good and valid consideration for his alleged agreement to surrender such of the property in controversy in this-suit as was covered by the mortgage.

In the facts alleged in the first paragraph of the answer be true, appellee could not recover of the trustee, such of the property in controversy as he had so agreed to surrender for a valuable consideration.

The identity of the property would be a matter to be settled by evidence upon a trial.

The court erred in sustaining the demurrer to the first paragraph of the answer.

II. It appears by the bill of exceptions that on the trial, defendants, to secure the opening and conclusion, admitted the value of the property in controversy to be $190, and damages for its detention to be $22.50, and that the plaintiff had the right to recover unless they could establish the truth of the second paragraph of their auswer (the first paragraph having-been demurred out), and thereupon assuming the onus pro-bandi, they introduced John Aiken as a Avitness, who testified that he was a Justice of the Peace of Upper Surrounded Hill township, Prairie countjp during the year 1874, and for some-years before and after that date. That he Avas uoav out of office, but still retained possession of his docket; that the paper-shown him Avas a true copy of his docket entries in the case therein named.

Defendants then offered to read in evidence the folloAving-transcript:

In Justices Oouiít on Upper SurrouNded Hum ToavNSHip.,

Isaac Gates & Bros., Plaintiffs,

vs. } Affidavit.

Joe Bennett and John Bennett. Defendants.

On this 17th day of November, 1874, comes David Gates-,, trustee for Gates Bros., and filed before me his complaint in writing under oath, stating that the stock and property claimed in this action by Gates Bro’s., is as follows : by mortgage executed by defendandants to Gates Bro’s., six acres of cotton and four acres and a half of corn in cultivation on the Hipper farm, seven acres of corn planted on their own place, one black mare with blaze face, 4 years old, about 14 hands high ; one "black horse with star in forehead, 10 years old, about 15 hands high ; one sorrel colt with white stripe in its face ; two red cows marked crop and underbit in each ear; one dun cow, crop and split in the right ear and swallow fork and undei'bit in fire left ear : one pied cow marked the same as the duu cow; •two yearlings marked swallow fork and underbit in each ear ; ■which sale and conveyance, however, is upon this trust, that is to say, whereas the said Joseph Bennett is indebted to the mercantile firm of Gates Bro.’s for supplies furnished him and ■John Bennett, brother and partner, by a deed of trust and one promissory note bearing even dates together, and unless said property is taken in hand by their creditors there is reason to fear that the debt will be lost or greatly delayed.

David Gates, eor Gates Bro’s.

“On this 21st day of November, 1874, comes John Bennett in open court, and admits service as a party to this suit.

On this 21st day of November, 1874, comes the plaintiff, by David Gates, trustee, and also comes the defendant, John Bennett, and announced themselves ready for trial; after swearing and examining the witnesses, an argument was had by Major A. Boyd; after hearing the evidence and law, the court adjudged that plaintiffs have and recover of the defendant a judgment for all of the stock now in controversy, and all costs in and about this suit expended — whereupon David Gates prayed a delivery of said property ; the said order is issued directed to the constable of said township, this 21st day of November, 1874.

JohN Aiken, J. P.

‘ ‘An appeal was then prayed by defendant to the Circuit ■Court, which was granted.

JOHN AlKEN, J. P.

To which is attached a sworn certificate of John Aiken, Justice of Peace, that the above is a full complete and perfect transcript of the entries made in his docket in the case of Isaac Gates & Bro’s. against Joseph Bennett and John Bennett, including the judgment and grant of appeal.

The plaintiff admitted that the paper offered in evidence was a correct transcript of the docket entries of Justice Aiken, but objected to its introduction on the ground that it did not show that any process was ever issued — no affidavit or bond was ever filed either for replevin or attachment, and that the Justice had no jurisdiction of the subject matter, and no right to enter judgment, and that the judgment was not in favor of the parties set out in the answer.

( a.) The court sustained the objections to the transcript being read, upon the grounds that the only right of recovery Gates, Bro. &Co.,hadin the action as shown from the transcript, was by attachment, and that there appeared to have been no affidavit, no sufficient complaint or cause of action filed, nor any bond given as required by law. To which ruling defendant excepted, etc.

Defendants then obtained leave to amend the second paragraph of their answer by showing that the proceedings and judgment therein referred to, was in fact a writ in replevin in favor of David Gates, as trustee in favor of Gates, Bro’s. & Co. ; and thereupon offered to prove by J. S. Thomas, Esq., an attorney of the court, that on the 17th of November, 1874, he filed with John Aiken, the justice of the peace above mentioned, a complaint and affidavit for an action of replevin in the name of David Gates, as trustee of Gates, Bro’s. & Co. That said suit ivas based upon a deed of trust and note (produced by the witness and offered in evidence, and copied ins-tile bill of exceptions.)

That upon said complaint a regular writ of replevin was issued, and delivered to the constable of Upper Surrounded Hill township, etc., and a bond as required in actions of replevin,, executed and delivered to the officer; and that all things in the-proceedings in said suit conformed to the requirements of chap.. 115 of Gantt’s Digest. That the affidavit contained all the requirements of sec. 5035 of said Digest; that the bond was conditioned as prescribed by law and conformed to sec. 5038, etc,, of the Digest, and that the writ of replevin issued upon the-complaint and affidavit was in regular form, etc.

Defendants also offered said deed of trust in evidence, and offered to prove by John Aikin that the entries in the transcript offered above were made in the suit which was brought by J. S. Thomas, Esq., for David Gates as trustee as aforesaid, and that said suit was prosecuted to final judgment, and that the complaint, affidavit, writ, return thereon and bond were all lost.

(b.) The court excluded the whole of the evidence so offered,, on the ground that the action of replevin could only have been brought in the name of David Gates, and the transcript offered, in evidence did not show any such suit, but was entitled in the caption Gates Bro. & Co., vs. Joe Bennett and John Bennett.

Defendants offered to prove by Aikin that the judgment rendered in said cause was in favor of David Gates as such, trustee of Gates Bros. & Co. mentioned in the deed of trust.

(c.) Butthe court refused to allow such testimony to be given upon the ground that a justice of the peace could not prove by parol what judgment he rendered, different from the one entered on his docket in the proceedings, and the justice being-out of office and not having delivered his docket to another justice, did not change the rule.

Counsel for defendants submitted that Aikin being out of -office and his docket not having been delivered, to another .'justice, there could be no amendment of the judgment by nunc pro tunc order, but the court adhered to its ruling.

Defendants then offered to prove by Aikin this fact, that the entry in his docket was a mistake in the caption or title •of the cause, which should have been David Grates, trustee, etc., v. Joe Bennett and John Bennett, and then to prove all •of the other facts offered in evidence as above.

(d.) But the court overruled the motion.

Defendants then offered to prove by the clerk of the court, :and by its records, that the suit of Grates Bros. & Co. v. Joe Bennett and John Bennett was brought into the court on the -appeal of John Bennett from Justice Aikin’s court, and that no papers except the above transcript, and an appeal bond were filed, and that the appeal was dismissed for want of an affidavit for appeal.

(e.) But the court excluded the evidence on the grounds that it was irrelevant and incompetent.

No other evidence being offered by defendants, the jury .rendered a verdict for plaintiff, as above shown.

(a.) The court of a justice of the peace is not strictly a court ■of record (Faulkner et al v. State, use, etc., 9 Ark., 19), yet a justice is required to keep a docket, and enter judgments, etc., rendered by him, and such entries are quasi records, and, when certified, receivable in evidence, etc., Gantt's Digest, secs. 8723, 2447.

Where a justice has jurisdiction of the subject matter and the parties, his judgment (until reversed on appeal) is as con-•elusive between the parties as the judgment of a court of record ; and the judgment may be pleaded as such, and proven by an exemplification of his docket entries, etc. Arkansas ■Justice, secs. 377-8-9. Vaden et al v. Ellis, 18 Ark., 357.

The second paragraph of the answer of appellants to the complaint of appellee was, in effect, a pica of former recovery, though it does not conclude with a verification, but this was-matter of form and not of substance. State, use of Gibson v. Sadler et al, 6 Ark. 236. Pierson v. Wallace, 7 Ib. 291.

On its face, the transcript offered in evidence shows á judgment in favor of Gates Bros., the plaintiffs, against Joe Bennett and John Bennett, defendants therein, for the “stoelc”' (manifestly meaning the animals described) in controversy in the suit, no judgment being given for the corn or cotton. It appears also that there was a sworn complaint in writing filed,, and that John Bennett (the plaintiff in this suit) appeared before the justice, and admitted service as a party, and announced himself ready for trial.

It appears, therefore, that the justiceliad jurisdiction of the-plaintiffs in that suit, the animals which were subjects of controversy (Constitution sec. 40, art. 7,) and the defendant John Bonnet, who is the plaintiff in this suit, and against¡whom the judgment of the justice is pleaded as a former recovery.

Gates Bros & Co., could not have recovered the animals in controversy by attachment before a justice of the peace. Propei’ty may be seized upon a writ of attachment, and condemned to be sold to satisfy a judgment recovered in the action, but it is no remedy for the recovery of specific property..

Looking at the deed of trust recited in the transcript of the-justice, and offered in evidence after appellants obtained leave-to amend the second paragraph of their answer, we find it was executed 6th of May, 1875, by Joseph Bennett, to David Gates, as trustee to secure a supply note executed by Bennett to Gates Bros. & Co. for $100, payable 1st October following..

The deed conveys the animals, etc., to the trustee, and on default of payment of the debt at maturity, empowers him to-take possession of the properly, and sell it, and apply the proceeds in satisfaction of the debt secured by the deed.

On default of payment of the debt' at maturity, the legal title to the property being in the trustee, he had the right to bring replevin for possession of it. Anderson ad. et al v. Mills exr., 28 Ark., 184. Or ho might have brought a bill to foreclose. Sullivan v. Hadley et al 16 Ark., 143.

So Gates Bros. & Co., had two remedies. They had the right to sue at law on the note secured by the trust deed, or to bring a bill in equity to foreclose, making the trustee, who held the legal title to the property, a party.

But they had no right by virtue of the deed of trust to bring* replevin for possession of the property conveyed to the trustee by the deed. By the terms of the deed he was selected by the parties as a trustee to hold the legal title to the property until default of payment, and then to take possession of it, and sell it for the payment of the debt secured by the deed.

But when appellants offered in evidence the transcript of the judgment of the justice of the peace, pleaded as a former recovery, under the second paragraph of the answer, before it was amended, the deed of trust was not before the court. Nothing was before it but the transcript offered in evidence.

The transcript, however, shows upon its face that the Gates Bros., the plaintiffs in that suit, claimed the property by virtue of a deed of trust executed by the defendants in the suit, to David Gates as trustee, to secure a debt to the plaintiffs; and it may be supposed, and doubtless is the fact, that the deed of trust recited in the transcript is the same that was offered in evidence on the trial in this cause. That being so, if the plaintiffs in that suit showed upon the trial of the case no other title to the property sued for .than the deed of trust, it was an error in the justice to render a judgment in their favor for the property. But such error did not make the judgment-void; it was valid until reversed for the error on appeal. Alston exparte, 17 Ark., 580. Hill v. State, Ib. 440.

The judgment of no court, whether of general or limited jurisdiction, rendered when the court has jurisdiction of the parties and subject matter of the suit, can be treated as void, when brought in question in a collateral proceeding, on the ground that the plaintiff recovered on a bad title. The rendering of a judgment on a defective title, or on no legal 'title to the thing in action, is but an error in the court which must be corrected by a superior court on appeal or writ of error. Boothe v. Estes, 16 Ark., 110.

The suit was not upon the deed of trust as the foundation or subject matter of the action, but for property covered by the deed, and the deed could only be used as evidence of title on the trial, hence this case does not fall within that class of cases in which this court has held that the instrument filed with the justice as the cause of action must show a right of action in the plaintiff, etc. Ib. Latham v. Jones, 6 Ark., 371, Levy v. Sherman, Ib. 182.

The animals sued for in this action are not described in the complaint as they are in the judgment pleaded as a former recovery, but if the court had admitted the transcript in evidence, parol evidence would have been admissible to prove the identity of the animals. 1 Greenleaf Ev., Sec. 532. Smith v. Talbot, ad., 11 Ark., 669.

(b.c.d.) After appellants were permitted to amend the second paragraph of their answer, so as to aver that the judgment pleaded as a former recovery was in fact rendered in favor of David Gates as trustee, in an action of replevin brought by him for the property in controversy, the transcript of the judgment offered in evidence did not correspond with the judgment as so pleaded, and was properly excluded by the court for variance.

It was competent for appellants to prove, by parol evidence, that a complaint, and affidavit were filed in the replevin suit, a writ issued, bond executed, and the return upon the writ, and that they were all iii regular form, and had been lost or destroyed. Davis v. Pitt, 1 Ark., 359. Mason, ad., v. Bull, 26 Ark., 167. But it was not competent for appellants to prove by the attorney who brought the replevin suit, or by the justice who rendered the judgment, or by any witness, that the justice in fact rendered any other or different judgment than that shown to have been rendered by the transcript offered in evidence. Or that the justice by mistake, entered the judgment in the names and in favor of Gates Bros., when it should have been entered in favor of David Gates, as trustee, etc. Butler v. Owen, 7 Ark., 373. Barkman v. Hopkins, 6 Ib. 157. State Bank v. Minikin, 12 Ib. 719. Kimball v. Merrick, 20 Ib. 12, and cases cited.

If the justice in fact made a mistake in entering the judgment — if he entered it in the names, and in favor of Gates Bros., when it should have been entered in favor of David 'Gates, as trustee, etc., the parties relying on the judgment as a former recovery, should have taken the proper steps to have the judgment entry amended, and pleaded the judgment as •amended, and offered in evidence a transcript of the amended .judgment.

It was the duty of John Aiken, when he went out of office, to deliver his docket, and all the books and papers belonging to his office, to his sucessor in office — and he might be compelled by proper proceeding to do so, and the power of amendment would be in his successor, on proper application, notice to parties interested, and proof of the error. Gantt’s Digest, sec. 3711. King et al v. State Bank, 9 Ark., 187. Mitchell v. Conley, 15 Ark., 419.

(1.) Had the transcript been admitted in evidence, as an appeal had been taken from the judgment of the justice to the-Circuit Court, it was competent for appellants in this suit to prove that the appeal from the judgment pleaded as a former recovery had been dismissed, thereby leaving the judgment of the justice in force.

The judgment of the court below must be reversed, and the cause remanded with instructions to the court below to overrule the demurrer to the first paragraph of the answer, and. for trial de novo upon the whole answer.


author: HarrisoN, J. :

text:
    Summers and Wife et al v. Howard
    In June, 1867, a c ■ rater of the estate of infants, by order of the Probate' Court,, sold certain town lots belonging to them, and received and paid over to them the purchase money. Ttte purchaser took possession and made valúa,ble improvements upon the lots with knowledge ■ f the infants who as erted no claim to them until the bringing of the suit. Held
    1st. That the Probate Court cuul i not authorize a curator to sell a minor’s estate, and the sale was void.
    2d. That it would be unjust for the plaintiffs to recover the lots and the rents, and profits without returning to the-purchaser the money received from himand making compensation for the i nprovements made and taxes paid by him; but for such impiovements as were made during their disability they can not be required to make compensation beyond the value of the rents.and profits of the-premises.
    3d. That the rents and profits should he estimated at the rental value of the-lots without the improvements n ado hv the purchaser.
    4th. That the improvements should he estimated at their value at the time of' the recovery.
    5th. That the plaintiffs should be charged with only such of the taxes paidby-tbe purchaser as would he chargeable upon the lots without the improvements.
    APPEAL from Phillips Circuit Court, in Chancery.
    ' Hon. J. N. Cypert, Circuit Judge.

      Tappan & Horner, for appellant.

      J. C. Palmer, contra.

   HarrisoN, J. :

James Summers aud Joanna Summers, bis wife, aud Austin N. Yerby and James H. Yerby, on the 2(5th day of February, 18(52, brought their action of ejectment against William J. Howard, for three lots in the city of Helena, on which were a dwelling house and other improvements

The defendant made his answer a counter-claim, and on his-motion the cause was transferred to the equity side of the court.

Admitting that the lots had been the property of the plaintiffs, Joanna Summers, Austin N. Yerby and James H. Yerby, who inherited them from their father, Henry Yerby, the defendant, alleged that they were, on the 8th day of June, 1867,. under an order of the court of probate, made at the January-term, 1867, offered at public sale, by Lycurgus Cage, who was-the curator of the real estate of said Joanna and James H-Yerby, then minors, and were bid off and purchased by him the defendant, at the price of $1,400, and which was their fair and full value. That according to the terms of the sale, one half was required to be paid in cash, and the remainder in twelve months, but that Cage being willing to discount the deferred payment, $77.50, he paid him in cash and in full of the-purchase money, $1,333.50, and Cage, the same day, conveyed the lots to him by deed.

That Cage made to the court of probate a report of the sale,, and the sale was confirmed by the court, but that, through the negligence and misprission of the clerk, the order confirming the sale was not entered upon the record. That Cage paid over the money he paid him for the lots, after paying the expenses of the sale aud certain charges against them to the plaintiffs, Joanna, James H. and Austin N. Yerby, in accordance with the direction and order of the court. And that, immediately after his purchase, he entered into possession of the lots, and was then and had ever since been in possession of "them.

He further averred, that since he had been in possession of the lots, he had made valuable and lasting improvements on 'them, and with the knowledge, at the time, of the plaintiffs, "who stood by and asserted no claim or title to the property ; •and that the said Austin N. Yerby was of age when the order for the sale was made and joined with Cage in the petition for the same, and the said James H. Yerby became of age, and ■the said Joanna Yerby intermarried with the said James Summers, soon after the sale of the lots to the defendant. And he prayed that the sale be confirmed, and his title quieted, and for ¡general relief.

The plaintiffs filed a reply: They admitted, as alleged in the answer, the sale of the lots by Cage under the order of the ■court of probate ; the purchase of them by the defendant, and the conveyance of the same to him by Cage. They admitted the payment of the price, the said sum of $1,333.50, to Cage, and the payment of the same over to the said Joanna, James H. and Austin N. Yerby, less the said expenses of sale and ■charges — that Austin N. Yerby was of age when the order for the sale was obtained ; that James H. Yerby became of age on the 21st of August, 1868, and Joanna intermarried with James Summers in February, 1868 ; that the defendant went into possession immediately after his purchase, and that he had made valuable and lasting improvements on the lots.

But they denied that the lots were sold for their fair and full value ; that Austin N. Yerby joined in the petition forthe sale ; that the sale had been confirmed, or that Cage ever made a report to the court, and denied that they had, at the time, knowledge of the improvements the defendant was making.

Upon the hearing the court held the sale void, and decreed possession of the lots to the plaintiffs. It directed an account between the parties to be taken by a master, as- to the rents and profits ; the money that came into the hands of plaintiffs which (it found to be $1,100), and interest thereon, the value of the improvements, and the taxes paid by the defendant,, which was done, and a balance was found to be due from the plaintiffs to the defendant of $1,680.74.

The sum so found, the plaintiffs were decreed to pay the defendant, and the same was declared a lien on the property.

Both plaintiffs and defendant appealed.

The master’s account contained three statements as to the-value of the improvements. Their original cost; their value-at the time the account was taken ; and what they might then be made for.

The decree does not state the facts found or upon which it is made, but it would seem from the sum decreed the defend-ant as the balance due him upon the account, that the value at the time of auditing the account was taken by the court as the measure of compensation for the improvements.

With some corrections made by the court, the account, so far as we are able to understand it, stood thus :

Value of improvements. $2,137.58

Money paid in the purchase-$1,100, and interest to

June 8th, 1877, date of decree. 1,760.00

Taxes. 859.89

Total.$4,757.47

Rents and profits. 2,940.00

Balance in favor of defendant. $1,817.47

The discrepancy between the balance above shown and the sum decreed the defendant is very probably owing to an error in calculation.

It was not alleged, nor does it in any manner appear, that Austin N. Yerby, who seems to have received a full share of the money, sold or contracted to sell his interest in the lots to the defendant-.

That the sale by Cage of the interest of the other .two owners was void, though it had been confirmed, of which there was no evidence, admits of no question.

The whole law in respect to curators, as it existed when the order of sale was made, and the sale took place, is contained in the following sections of chapter 81 of Gould’s Digest:

“Sec. 32. If any minor own real estate, and have no guardian, the court of probate may appoint a curator to take charge of such estate, whose powers shall cease on the appointment of a guardian.

Sec. 33. The court shall have power to make such rules and regulations in relation to the curator of the estate of any minor as may be deemed just and proper.

Sec. 34. In such cases the rent of the real estate of any such minor shall be paid by the curator into the court, and the same shall be appropriated for the benefit of the minor.”

The Legislature, it is thus seen, had made no provision for tliQ sale of. a minor’s real estate by a curator, and his power over it extended no farther than to its preservation and management; and the court of probate could confer upon him no authority to sell it. ....

It would be, however, manifestly unjust for plaintiffs to recover the lots, and, as a necessary consequence, the rents and profits, without paying back to the defendant the money received from him and making compensation to him for the improvements made upon them.

. They deny, it is true, that they had any knowledge of the fact, when he was putting the improvements upon the lots, but they knew of the sale ; they had the money, and they must be presumed to have known that he was in possession of them ; and by failing to repudiate the transaction and to assert their title, when they might have done so, were guilty of gross ladies, and should not be allowed to appropriate to themselves, without satisfaction or indemnification, the improvements of the defendants, which by their silence they permitted to be made. Morris v. Terrill, 2 Rand., 6; Barlow v. Bell, 1 A. K. Marsh. 246; Ewing's heirs v. Handley's, exr's. 4 Litt. 171: Janes v. Boisguard, 39 Miss., 796; Douglass v. Bennett, 51 Miss., 680.

A considerable part of the improvements, however, were made, as the proof shows, before the marriage of Mr. Summers, or James H. Yerbjr became of age ; for such they cannot be required to make compensation beyond their shares of the rents and profits, for not then being sui juris no laches can be imputed to them.

But for those made after her marriage, Mrs. Summers, or more properly her husband, Avho has become entitled to her interest in the rents and profits, must make compensation.

It was therefore important, but which was not done, that the value of the improvements made after the marriage of Mrs. Summers, and of those made after James H. Yerby became of age, should have been ascertained.

The defendant was charged in the master’s account, and also in the decree, with rents and profits as enhanced by the improvements. This was also an error. A party who is, under the circumstances of the case, entitled to compensation for improvements, is only chargeable with such rents and profits as the property would have yielded without the improvements ; for if charged with such as arise exclusively from the improvements which he has made, he would pay for the use of that which was his own. Neale v. Hagthrof, 3 Bland’s, Ch,, 591; Hawkins v. Beal, 4 Dana, 4; Taylor v. Bate, Ib. 198; Richardson v. McKinson, Litt. Sel. Ca., 321; Williamson v. Williamson, 3 S. and M., 749.

The rents and profits should therefore have been estimated according to the state or condition of the lots before the improvements were put upon them.

• And by a parity of reasoning the plaintiffs should not have-been charged, as seems to have been the case, with the whole amount of taxes paid by the defendant, but with such part only as would have been paid upon the lots without the improvements.

The plaintiffs were adjudged to account to the defendant for-only |1,100 of the money paid by him — the sum which Cage paid over to them, but the evidence discloses the fact that Cage-paid taxes on the lots, and also redeemed them from a tax sale. These expenditures were as clearly for their benefit, as. the money they directly received, and there can be no reason why they should not account to him for the money so expended. '

The court committed no error, if, as we suppose, in determining the compensation for the improvements, it estimated them at the value when the account was taken.

“Such allowance,” says Chaucellor Bland, in Neale v. Hagthrof, cited above, are made upon the ground that the improvements do in fact pass into the hands of the plaintiff as a new acquisition ; and they can only be a new acquisition to him to the extent of their value at the time he recovers or obtains, possession of them ; and therefore their value at that time is. to oe allowed; and nothing more.” Southall v. McKean, 1 Wash., (Va.,) 336; Green v. Biddle, 8 Wheat, 77.

The decree is reversed and the cause remanded to the court below, with instructions that an account be taken between the-parties as above indicated, and a decree rendered in conformity with this opinion.