author: EaKIN, J.:

text:
    Chrisman vs. Carney.
    1. Venue: Change of in civil cases.

    The provisions for change of venue contained in section 13, chapter 177, Gould’s Digest, were repealed by the adoption of the Civil Code in 1868. .
    2. Pleading : Forms of action.

    Forms of action being abolished, the actions of trespass and case may be joined; but the requisites to constitute the injury, and the proof to sustain it, are the same as formerly.
    3. False Imprisonment : Malice, not necessary to he proven.

    In an action for false imprisonment it is not necessary to show malice, if the arrest was unlawful. One who participates in, or instigates or encourages an unlawful arrest, is liable, however .pure his motives.
    4. Malicious Prosecution : Malice — Probable cause.

    Both malice and want of probable cause must exist to sustain an action for malieious prosecution. Probable cause is a mixed question of law and fact, and may usually be left by the court to the jury, and the mere innocence of the party accused will not sustain the action if the circumstances be such as to induce the prosecutor to suppose the party prosecuted to be guilty.
    5. Agent : Officer, not, of prosecutor — declarations of.

    An officer executing process is not the agent of the prosecutor, so as to make his declarations, even when part-of- the res..gestce, .bind the prosecutor; nor can his declarations be used to prove his agency, or that there was a conspiracy between him and the prosecutor to abuse the process of the law.
    6. Chief of Police; Of Cities of the first class; Power to arrest in other counties.

    Under the facts of this case (see the Op.) the court is of the opinion that the Chief of Police of the City of Little Rook may pursue a person charged with crime in said city, and arrest him in another county, within a few days.
    7. Evidence : Telegrams.

    Telegrams between the parties, and from the defendant to a third party, in regard to the transactions resulting in the plaintiff’s arrest, are admissible in an action for false imprisonment, as a part of the res gestae, for the purpose of connecting the defendant with the arrest.

      8. :-: Of probable cause.

    Where the question at issue was probable cause the prosecutor had for believing the person prosecuted guilty of the crime' of false pretense, false representations made to some one else, without the design that they should reach the prosecutor and influence his conduct, are inadmissible.
    APPEAL from White Circuit Court.
    Hon. J. N. Cypekt, Circuit Judge.

      Goody, Clark & Williams and Benjamin & Barnes for appellants.

      B. jD. Turner and J. M. Moore, contra.

   EaKIN, J.:

Chrisman, a resident of Pulaski County, keeping a hotel at Little Rock, was sued and served with process in White County. The complaint contained two paragraphs.

The first was for false imprisonment in causing the plaintiff to be arrested without any authority of warrant, or process, or oath made before any proper officer, and without reasonable cause to believe that he had been guilty of any crime.

The second paragraph was, in effect, for malicious prosecution, charging that defendant falsely, maliciously, and without probable cause, procured a warrant from a justice of the peace of Pulaski County against said plaintiff, which was delivered to the Chief of Police of Little Rock, upon which he was arrested in White County, brought to Little Rock, and detained by defendant, at his hotel, until he gave up property to satisfy defendant’s claim.

The answer denies malice or want of probable cause generally, and, as to the first count, that he caused or procured the arrest of complainant, otherwise than by giving information to the Chief of Police of the conduct of complainant.

As to the second, it denies that he caused the arrest of complainant falsely, maliciously and without reasonable or probable cause, or for the purpose of extorting from him money or property, and proceeds to set forth the facts which afforded the grounds of the prosecution ; and the circumstances . under which it was made.

Upon these issues the cause was tried by a jury, which found for the complainant, and assessed his damages at $1300. There was a motion for a new trial. Bill of exceptions and appeal. The grounds of the motion will be considered so far as they seem important. The bill of exceptions shows that, by agreement, all exceptions were reserved, which, by virtue of section 4694 of Gantt’s Digest, superseded the necessity of taking them upon the several rulings when made. The bill also makes proper reference to the motion for a new trial, copied in another part of the record.

Before trial, the defendant moved to transfer the cause to the county of his residence. The refusal of the court to do this is made the first ground of the motion. The motion was based on the act of November 30, 1874. (See Gould’s Digest, ch. 177, sec.. 13.) The practice, under this act, had been infrequent in the profession. When the Code of Civil Practice of 1868 was adopted, the Legislature seems to have intended to cover the whole subject of venue in civil cases, prescribing definitely in what counties actions might be brought, and under what circumstances the venue might be changed, omitting the provision in the act of 1840. The rule of construction applies, which, in such cases, implies an intention to repeal provisions not brought forward and repeated.

This becomes more probable from the consideration that the Code provisions having become confused by subsequent legislation, a new act was passed in 1875, which also failed to incorporate the provisions of the act of 1840. The Circuit Judge did not err in the refusal to transfer.

A brief outline of the facts may be necessary to a clear understanding of the points arising upon the trial, and presented by the other grounds of the motion.

It appears, without controversy, that complainant, W. E. Carney, with his nephew, W. E. Carney, Jr., came to Little Eock about the 1st of April, 1875, staid a short time at defendant’s hotel, paid their bills, and went to a private boarding house. Afterwards complainant came back near the first of May, and representing himself to defendant as. a man of property, and as having money on deposit in bank and valuable jewelry in his baggage, contracted for board for himself and nephew. That his attention was called to the notice posted in the office that boarders without baggage must pay in advance ; that he asserted that he had valuable baggage in town, and directed his nephew to have it brought in, and afterwards said, in excuse for the delay, that part of his clothing was out to wash, and he was waiting to bring it all in together; that his representations and pretences were false; that, after a few days, complainant and his nephew left the hotel, and the city, without paying, and without the consent of defendant; that defendant applied to the Chief of Police, representing the circumstances and asking his aid; that, after discovering the place to which complainant had gone, the Chief of Police ■(Blochor) telegraphed the Sheriff of White County to arrest him and his nephew,' which was done. The Sheriff after-wards, doubting his authority, released them. Defendant then made affidavit before a justice of the peace charging complainant and his nephew with having obtained board from him under false pretences. Before doing so, he laid the facts before the justice, who advised him that they would support a prosecution. The warrant was for obtaining money under false pretences. The defendant called the attention of the justice to the discrepancy, but was advised that it was all the same. This warrant, addressed “to any sheriff, constable, etc.., of the State of Arkansas,” as provided in section 1669 of Gantt’s Digest, and otherwise in due form, was placed by the defendant in Blocher’s hands, who proceeded to Searcy, in White County, where complainant and his nephews were, arrested them, and brought them to Little Rock. They were taken as felons, and at first handcuffed, but afterwards treated leniently, and without any unnecessary severity. Arriving at Little Rock in the night, they were taken by Blocher, whether by their request or on his own motion, does not cleai'ly appear, to defendant’s hotel, where they were furnished a room by defendant’s hotel clerk, and remained without any restraint until next morning. When defendant met them next morning, he spoke to them as prisoners in his charge, and refused to assent to their leaving before Blocher should come round to take them. In the altercation and discussion between them, it was proposed and agreed that complainants should make Chrisman secure for his bill and expenses, give him a lien for payment bn a chest of tools, and that defendant (Chrisman), on his part, should dismiss the prosecution, if the officer having the warrant would consent. Writings were signed to that effect. Blocher was advised of it, and the warrant was never returned. After-wards this suit was brought for damages.

The issues raised by the pleadings, to which these facts and circumstances must be applied were, on 'the first count, did Chrisman cause or procure complainant to be falsely imprisoned? And on the second, did Chrisman institute a malicious prosecution against complainant, without probable cause? The first was at common law an action of trespass, and the other an action on the case. The forms of action being now abolished, they may be joined under the class of injuries to the person ; but the requisites to constitute the injury, and the proof necessary to be made to sustain either paragraph of the complaint, are the same as formerly.

The principles which govern these issues have long been well defined, and have been recently announced by this court, in several well considered cases, reported in 32 Ark. (See the cases of Lemay v. Williams, p. 166; Akin v. Newell, p. 605; Lavender v. Hodgens, p. 763.)

With regard to the first issue, if the arrest was unlawful, no malice need be shown. The defendant, if he participated in it, or instigated or encouraged it, is liable for the false imprisonment, however pure his motives may have been. The arrest, however, was not necessarily unlawful because made without warrant. A peace officer or a private person may make an arrest without warrant when he “ has reasonable grounds for believing that the person arrested had committed a felony.” (Gantt’s Digest, sections 1678 and 1679.

But where, as in the second case, the arrest has been made under a warrant in due form, the officer is entirely protected, however groundless the prosecution, and the liability of the prosecutor is upon the case for malicious prosecution, •and not in trespass for false imprisonment. No imprisonment by virtue of a legal warrant in due form is false imprisonment. To have procured the warrant from malice and without probable cause is a distinct civil injury. It must be charged and shown by proof that both malice and want of probable cause existed. If there be probable- cause, no degree of malice will be sufficient to sustain the action. If there be no probable cause, then malice must be shown also ; and in estimating malice the absence of probable cause is only a matter of evidence to be considered, with other circumstances, in determining whether the prosecutor was prompted, in making the charge, by private motives or considerations of the public good. In other words, if there be probable cause, the law will not inquire into motives. “ In general,” says Mr. Chitty, “no action whatever can be supported for any act, however erroneous, if expressly sanctioned by the judgment or direction of one of the superior courts at Westminster; or even by an inferior magistrate acting within the scope of his jurisdiction.” (Yol. 1, p. 181.) And again (on p. 186), “ no person who acts upon a regular writ can be-liable to this action (trespass), however malicious his conduct* but case for the malicious motive and want of probable cause-for the proceeding is the only sustainable form of action.” Both elements must combine to make the cause of action complete. And to like effect Mr. Greenleaf, in his work on Evidence (Yol. 2, sec. 454), says: “The want of probable-cause is a material averment, and though negative in its form and character, it must be proved by the plaintiff by some affirmative evidence.” “It is independent of malicious-motive, and cannot be infeired as a necessary consequence from any degree of malice which may be shown;” and this-probable cause is a mixed question of law and of fact, usually so blended together that the judge may leave the whole question to a jury. (See Greenleaf on Evidence, vol. 2, sec. 454.) Nor will the mere innocence of the party accused sustain the action if the circumstances were such as to induce the prosecutor to suppose the person proceeded against to be-, guilty. “For,” as Blackstone says, “ it would be a very great, discouragement to the public justice of the kingdom if prosecutors who had a tolerable ground of suspicion were liable to-be sued at law whenever their indictments miscarried;” and therefore “ any probable cause for preferring it is sufficient to. justify it.” (See Book III, p. 126-7.) And if there be such probable cause, it is no objection in law (however repulsive it-may be to our sentiment of patriotism and dignity of character) that the prosecutor was impelled by the more sordid motives of recovering his property, or enforcing a civil l’ight. The law does not undertake to compel — however society may respect — a nice sense of honor, by indicting a pecuniary liability upon a person for what he might lawfully and ought to do, because his motives were selfish.. Society has indeed been compelled more or less to avail itself of the energies which selfish motives prompt. By the English law, as modified by statute and adopted here (although not so at common law), persons were encouraged to prosecute offenses against property by the hope of restoration. It was especially so provided in the case of larceny by statute of 21 Henry VIII., ch. II. The policy has been enlarged in later times in England, and many similar acts of more extensive scope were passed in the reigns of the Georges Second, Third, and Fourth, holding out to prosecutors the prospect of recovery of their civil rights. (See citations in IV. Black. Com. 361-2.) The policy of such laws for the protection of society is their sole, but sufficient, vindication, and we must in this view of them repress the natural impulse to hold prosecutions on probable cause to be malicious in law merely because the prosecutor was impelled by the sole motive of recovering money or property.

It yet remains, before returning to the grounds of motion for a new trial, to rule upon the power of the Chief of Police to execute the warrant in White Connty. A sheriff cannot execute a process outside of his own county, as held in this court in Blevins v. State, 31 Ark., 153.

The powers of the Chief of Police of Little Rock, which is a first-class city, are somewhat more extensive, as defined by the act of March 3, 1873, sec. 52. He is one of the officers to whom the warrant is directed in the legally prescribed form under sec. 1663 of Gantt’s Digest. He may by himself or deputies execute all process directed to him. He shall have like powers with sheriffs in similar cases. Amongst other things, he shall have power to pursue or arrest any person fleeing from justice in any part of the State ; and to receive and execute any proper authority for arrest and detention of criminals fleeing or escaping from any other place or State. What constitutes a fleeing from justice depends very much upon particular circumstances. But under the facts as they appear in the case before us, the court is of the opinion that the Chief of Police, for a crime committed in Pulasld County, and the City of Little Rock, might well pursue and arrest the persons charged, within a few days. That the complainant had told Chrisman he méant to go to Searcy before he left, does not alter the case, as Chrisman might well have supposed he meant to make good his representations and pay his bill before leaving.

Applying these principles, we will notice such of the grounds for a new trial as may seem important.

The co.urt, against appellant’s objections, admitted certain telegrams of May the 6th, numbered from one to eight; these passed, some of them, between Chrisman and a Mr. Kellum, concerning Chrisman’s debt; one from Carne}1- to Chrisman, offering to pay a certain small amount and no more ; and some from Blocher to the Sheriff, directing the arrest. At that time no warrant seems to have been sworn out.

The evidence, although it does not positively show that Chrisman directed the arrest, so connects him with the proceedings in his interest as to justify the admission of them as parts of the res gestae to be considered by the jury, as tending to prove that the arrest made by the Sheriff of White County was instigated by Chrisman. Although they tend to show Chrisman’s agency in the arrest, taken in connection with other testimony, and that his principal motive was the collection of the claim, they have no bearing to show want of probable cause to believe the alleged crime had been committed. They were applicable to the first count alone.

It is objected, in the third ground of the motion, that the court allowed declarations made by Blocher, in the absence of Chrisman, during the proceedings on the warrant, to go to the jury to show that Blocher was employed by Chrisman in making the arrest, and was to be paid by him therefor. This was error. A-police officer in executing a warrant acts officially and on his own responsibility. He is not the agent of the prosecution so as to make his declarations, even when part of the res gestae, bind the prosecutor, and his declarations cannot be taken to prove his agency, or that there was a conspiracy between them to abuse the process of the law. Besides, they were historical, and no part of the actual transactions. They referred to what Chrisman had done in promising to pay him money, and were only hearsay. Besides, there was nothing to show an abuse of process, unless it were in handcuffing the complainant. Thai may have been an unnecessary precaution, harsh and humiliating, but we cannot say it transcended the power of the officer when done with a view to security. If Chris-man really had probable cause to believe complainant guilty of the crime, and put the warrant in Blocher’s hands, he would not be rendered liable in this action by offering a reward to the officer to stimulate his exertions.

A number of questions were put- by defendant to a witness, A. T. Carroll, which were excluded by the court. This is made a ground for the motion for a new trial. An examination of these questions shows that the general purport and design of them was to prove divers communications made to witness by complainant about the time of the supposed false representations to Chrisman, and that they were communicated to Chrisman. The question at issue was the probable cause Chrisman had for believing that the complainant had procured his board by false and fraudulent representations to himself. To constitute them such they should have been made to Chris-man himself directly, or through some one else with the intention and design that they should reach Chrisman and influence his conduct. He would have had no right to place any reliance upon light and boastful representations made in general conversations. They would not be criminal if false, and to have admitted them would have given to the evidence entirely too wide a range.

The court gave for the plaintiff fifteen instructions, as asked; which is made a ground of motion for a new trial. They are too long for convenient repetition in full. Their tenor may be considered as a whole.

They correctly lay down the law of false pretense, what is necessary to constitute the crime, and the degree of probability which must have existed in the mind of defendant to justify him in making the accusation and procuring the warrant. The law as to the measure of damages is also correctly stated. But one error runs through and pervades the whole of them, and is made prominent by frequent repetition. It is impressed upon the jury that if the prosecution was instituted solely for the purpose of collecting a debt or extorting money, and was conducted for that purpose until the object was attained and then dropped, the defendant is liable, notwithstanding he may have had probable cause to believe the charge was true. This is not the law. The existence of probable cause is of itself alone a complete and entire defense to all actions for conduct which a citizen may pursue upon probable cause, whether it be to swear out a warrant or arrest without one. The interest which society has in the enforcement of the criminal laws requires this rule. It is wholly independent of any regard for the prosecution. If there be no reasonable grounds nor probable cause for his proceedings, then, and not before, the question of malice becomes important, and his whole conduct may be taken into account; and if, having instituted a prosecution with probable cause and on reasonable grounds, he should convert it into a means of extorting money or property, and •cause it to be dismissed after attaining his wicked ends, he would become himself a criminal and stand amenable to punishment for compounding a felony. But where probable cause existed when the prosecution begun, this action cannot - be maintained. The instructions as drawn took from the jury the consideration of probable cause, provided they should believe the defendant had no other object in view than to collect his debt. Whilst the court holds this to be error, the occasion should not pass for saying that such prosecutions should be jealously watched. It is not well to prostitute the criminal laws of the State for the collection of debts, thereby obtaining, as unscrupulous creditors are wont to do, all the harsh coercive benefits of imprisonment for debt, superadded to the moral terror which a debtor may feel for his good name. The practice is utterly detestable in the sight of every fair-minded man and woman, and it well befits a jury, when such motives are apparent, to see well to it that the belief of the prosecutor was really upon grounds reasonable and probable, and not ■simulated for the purpose. But if they be found so, the law •exonerates him from civil liability.

We have only to add that the refusal of instructions asked by the defendant, and the giving of those upon the court’s ■own motion, whilst correct in the main upon other points, are all infected with the same error. They insist that the defendant cannot excuse himself for the prosecution unless it was undertaken in good faith and for the public good. This is the law only where there is want of probable cause, and where the •question is one of malice ; and it should have been so limited by the instructions that the jury could apply it intelligently.

If the verdict had been rendered under proper instructions ■and a due consideration of all the facts, it would not be so excessive as to evince passion, prejudice, or corruption on the part of the jury; and this court would not interfere on .that account.

Many other questions of law arise upon the record, but it is inconvenient to notice them seriatim, and as they come within the bearing of the principles already herein announced,, will doubtless be correctly ruled on a new trial.

For the errors above indicated, let the judgment be reversed and the cause remanded, with instructions to grant a new* trial.


source: Caselaw Access Project

author: EakiN, J.:

license: Public Domain

text:
    Apperson & Co. vs. Burgett et al.
    1. Parties : Practice in equity.

    Where the court can make a final decree between the parties before it, leaving the rights of others unaffected, it may be done; but where there are outstanding equities in oth rs the future assertion of which -ai ¡an the parties, litigant would cause new equities or revive old ones, a3 between the parties litigating, this will never be done.
    2. Judgment Lien.
    The lien of a judgment is subject to all valid liens on the land at the time it is rendered, whether recorded or not.
    3. Liens: Notice of.

    Notice of all liens and alienations attaching before‘judgment may be.given at any time before sale of land under execution, and will bind the purchaser.
    4. Fraudulent Conveyance : Possession by vendor.

    Whilst possession of real property retained by the vendor will not, as of personalty, raise a prima facie presumption of fraud, it may be a fact tending with others to show a secret trust.
    5. Same : Execution at law.

    The practice of selling under execution at law lands fraudulently conveyed is not to be encouraged
    6. Practice in Equity: Vacating fraudulent conveyances.

    In an equitable proceeding to vacate a fraudulent conveyance of land upon which an execution has been levied, it is not necessary to remit the party to his execution; the court may order a sale for its satisfaction, under its own, directions.
    APPEAL from Crittenden Circuit Court in Chancery.
    Hon. L. L. Mack, Circuit Judge.

      Brown and Rose, for appellant.

      Adams, contra.

   EakiN, J.:

At the June Term, 1873, of the Crittenden County Circuit Court, Apperson & Co. sued the administrators of J. W. Burgett in an action at law to recover a half interest in a body of lands in their possession, which for convenience we will designate as the Home Place.

They answered that they were in possession only as administrators, and denied the title and right of possession of plaintiffs. They also prayed that Pearl Burgett, the infant daughter and sole heir of J. W. Burgett, might be made a party, and with her filed a cross-bill against plaintiffs and John C. Burgett. The object of the cross-bill was to establish an equitable title in said lands by virtue of a purchase by the intestate from said John C., in January, 1867; alleging-payment of the purchase-money, transfer of possession, and continued occupation in the intestate and his representatives ever since ; and to have the title in the heir declared superior to that of plaintiffs, who claim by virtue of a deed from the-Marshal of the United States Circuit Court, upon an execution against John C. Burgett, and a sale thereunder in 1872. The causa was transferred to the equity docket, and afterwards the cross-bill was amended so as to set up an actual deed from John C. to J. W. Burgett at the time of the sale, which had been lost. The plaintiffs responded to the cross-bill, denying that there had been any bona fide sale from John C. to J. W., as alleged, but that the same was pretended and colorable only,, and made in fraud of creditors. ■

At the same term of the Circuit Court at which the action in ejectment had been brought, Apperson & Co. filed a separate bill in equity against John C. Burgett and the representatives and widow and heir of J. W. Burgett, in aid of their remedy against another body of lands bought by them at the :same execution sale ; for which John C. Burgett, on the 4th of .November, 1867, had executed a deed to J. W. Burgett, which had never been recorded until two or three days before the Marshal’s sale, and which they claimed to be in fraud of creditors and without actual consideration. This body of lands we will designate as the “Council Bend” Place. Proper issues were made on these allegations, and the two causes were consolidated and heard together.

In the progress of the causes it was developed by evidence that after the alleged sales to J. W. Burgett from John C., the latter was, in 1868, duly adjudged a bankrupt on his own application. An assignee had been appointed and the property of the bankrupt conveyed to him. Apperson & Co. were the only creditors who proved their debts. Nothing, or very little, came into the hands of the assignee, who was discharged by the court, upon his own application, from all further duties, and the certificate of discharge of the bankrupt was refused. Meanwhile Apperson & Co. had been allowed to withdraw their claim from the bankruptcy proceedings. They afterwards brought suit and obtained judgment in the Circuit Court of the United States for the Eastern District of Arkansas. It was upon this judgment that the execution issued under which they had purchased in both bodies of land. They did not satisfy the debt, aud as to the balance the Marshal returned nulla bona. An alias execution was sued and again levied on the second body of lands, the Council Bend Place, and complainants in their bill pray to be allowed to make a sale of the same under the alias, after the deed from John C. to J. W. Burgett may be declared fraudulent and set aside.

At the hearing of the cause complainants applied to the court to suspend proceedings on account of the disclosure of the bankruptcy of John C. Burgett, that they might have another assignee appointed and made a party, offering to ■stipulate that it should not cause a delay beyond the next term. 'This the court disregarded and proceeded to a decree.

With regard to the Home Place, the court found that the sale on the first of January, 1867, of a half interest had been bona fide made by John C. to J. W. Burgett for a valuable consideration, which had been paid, and that said J. W. Bur-.gett had taken and held possession of it till his death, and his ■administrator after him. That Apperson & Co. had notice, and acquired no title by their purchase at execution sale. 'Title was decreed in Pearl Burgett as heir of Isaac W. Burgett^ her father, subject to debts against his estate.

With regard to the Council Bend lands the court found that the payment of the consideration for the same and their actual occupation by Isaac W. Burgett had not been satisfactorily proven, and that the conveyance from John C. Burgett was in fraud of creditors. That deed was .canceled and the title to all the lands constituting that body contained in the Marshal’s deed confirmed in Apperson & Co., who were also ■decreed to pay all the costs of the suit. Both sides appealed.

The question arises in limine, ought the Circuit Court, on discovery of the bankruptcy proceedings, to have dismissed both causes for want of proper parties, or to have given complainants time until the next term of the court to have made and brought in an assignee ?

It is one of the chief excellencies of equity jurisprudence to do nothing futile or by halves, but to cause all persons interested in the subject-matter of the litigation to be brought in and bound by one decree, adjusting all their rights, and closing all the future litigation with regard thereto. This is not always possible, and to meet the exceptional cases it is provided by the Code that “the court may determine any controversy between parties before it when it can be done without prejudice to the rights of others, or by saving their rights.” (Sec. 4481 Gantt’s Digest.) “But when a determination of the controversy between the parties before the court cannot be made without the presence of other parties, the court must order them to be brought in.” This is indeed but an affirmance of the former practice, and affords the correct criterion for determining when the court will decline to exercise any jurisdiction whatever, or may, in its discretion, proceed to a partial settlement of the matters in controversy amongst the parties actually before it. This will never be done when there are outstanding-equities in others the future assertion of which against the. parties litigant would cause new equities, or revive old ones as to the same matter between themselves. If so, the decree could, in its nature, be only provisional. But where it can be made final as far as it goes, the court may for convenience proceed, leaving the rights of others unaffected.

The case before us seems to come within the discretional class. The decree as to the title to the lands, subject to the claims of any future assignee, would be final between Apper-son & Co. and Isaac W. Burgett’s heirs and representatives i and would not be disturbed or give any new equities between themselves upon the assertion of these claims. Nevertheless* it would not have been prudent to proceed without making the. assignee a party, if there had been any assignee in existence* or any proceedings in bankruptcy kept alive for the administration of John C. Burgett’s effects. But such was not the case. All the effects which came to the assignee had been administered, and he had been finally discharged. The certificate of the bankrupt had been denied. Everything seemed to have been done that was intended under those proceedings* The complainants were the only creditors who had proved their debts, and their withdrawal of their claim, and their proceedings in the Federal and State courts upon the same claim, might well be taken as an election not to revive the proceedings, in bankruptcy. No one else had an interest to do so. The •court did not err in proceeding at once to final decree.

In passing, it may be well to indicate that, in the exercise of this discretion, the court is not confined to the view of the interests of parties disclosed by the pleadings and put in issue. It seems the better practice, and more in accordance with the spirit of equity proceedings, that the court should take notice of any equities brought to its notice, in the course ■of the proceedings, which it may believe to be bona fide, and not interjected for the purpose of confusion and delay. It would be difficult, and this court will not attempt, to lay down any definite rule as to this point. It depends upon sound discretion under the circumstances of each case.

With regard to the home place, the onus was upon Pearl Burgett to show that an actual sale of the place, for valuable consideration, had been made by John C. Burgett to her father at the time alleged. This she did by testimony clear, certain, and unjmpeached, proving not only the date but the execution ■of a deed which had been lost. She proved further that her father had remained from that time in undisputed possession, claiming the whole interest, until his death, and that his administrators had so remained in possession until the action at law for possession was begun. This shifted the burden upon defendant in the cross-bill, to show that the sale was fraudulent. The preponderance of proof is greatly in favor of its fairness, that the consideration was paid, and that Apperson & Co. had such notice of it, not only by the possession of Isaac W. Burgett, but actually at the Marshal’s sale, as to put them upon inquiry, and subordinate their judgment lien to the equity (or in view of the last deed), the legal title of Isaac W. Burgett’s heirs. There is no error in the decree as to this body of land.

With regard to the other, or Council Bend Place, the complaint admits the execution of the deed from John C. Burgett. to Isaac, on the 4th of November, 18(57, which was recorded a, few days before the Marshal’s sale. This under our decision, in the absence of fraud, gave a legal title superior to the lien of a judgment obtained after the sale, and to the title of a. purchaser at execution after the deed had been recorded. The whole onus of showing fraud was on complainants.

The principal evidence bearing upon this point tends to. show:

That Isaac Burgett died intestate leaving a large estate and five heirs, to wit: John C., Henry E., Peter N., Isaac W.,. and Nancy P. Burgett, the last of whom afterwards intermarried with Grider. The estate was but little embarrassed, and administration was taken out only for the partial purpose of' closing some business with his merchants. The heirs undertook amongst themselves to divide the bulk of the estate,, especially the lands, of which there was a large quantity. In the course of this adjustment, Henry, Isaac W., Peter, and Nancy, on the 18th day of October, 186(5, by deed conveyed to John C. their interest in the Council Bend lands, being-four-fifths. The deed purports to have been made from their desire to make partition, and for the sum of $19,277, expressed to be paid. It was about the same time that the adjustment of the interests in the Home Place had been made. The-Council Bend lands embraced a tract of about three or four thousand acres, composed of fractional sections and parts of' sections. It was in a wild state, having only about forty acres, cleared. This deed seems never to have been recorded.

On the 4th of November, 1867, John C. Burgett by deed,, for the expressed consideration of $5,750 to him paid, conveyed the Council Bend lands (or what was meant to be that tract) to Isaac W. Burgett. But there is a discrepancy here which runs through the whole case, and which seems to have escaped the notice of counsel and of the court below. The Council Bend lands lay in a compact body, in two ranges ; some on the-eastern side of range 6 east, and some on the western side of range 7 east. They were correctly described in the deed from the other heirs to John C. This is obvious to any one-who will attempt to make a plat. But in the deed from John C. to Isaac W., of the 4th of November, the distinction of' ranges is not preserved. All are stated to be in range 6 east,., whereby some nine hundred acres or thereabouts are conveyed,, to which probably John C. had no title, and all the lands in range 7 east are left in himself.

The mistake is patent, but would require the interference of' a court of chancery, if necessary, to effectuate the intention.. This deed was duly acknowledged at the time, but not recorded. John C. Burgett remained in possession, lived upon the place and cut cordwood for sale. The evidence shows that, he did so under an arrangement with Isaac W. by which he-was to hold as Isaac’s tenant, and pay for the wood cut at a. rate per cord, but fails to show satisfactorily that any payments, were ever made for rent or on account of wood.

After this transaction John C. Burgett, on November 9th,. 1867, executed to Henry Burgett his note for $11,564, due-May 15th, 1868. This was.assigned by Henry to Apperson &. Co., on the 28th of November, 1867. They proved it in the bankrupt proceedings against John C. on the 11th of December, 1869 ; withdrew it on the 8th of March, 1870; brought suit in the Federal Court June 16th, 1871; recovered judgment April 16th, 1872 ; levied their execution on the lands on the 28th May, 1872 ; sold and purchased under execution August 7th, 1872 ; and, counsel says, obtained the Marshal’s, deed on the 20th January, 1873. The execution had been levied on the Home Place also. Before the sale the administrators of Isaac W. Burgett, on the 5th of August, 1872, had. Caused the deed of the Council Bend Place from John C. to Isaac W. to be recorded ; and at the sale they caused it to be announced publicly to the bidders present that all the lands included in the levy were claimed by the estate of Isaac W. The levy of the Marshal omits the east half of section 1, in range 7 east, which was in the Council Bend tract as conveyed to John C., and intended to be conveyed by him to Isaac. The proper numbers appear, however, in his certificate of purchase, dated of the day of sale.

According to the principles established in this court nearly a quarter of a century ago, and since maintained without question, the lien of the judgment was subject to all valid liens upon the lands at the time of the rendition, whether recorded or not. It bound only what the debtor then had, and was effective only to prevent future alienations or incumbrances. Aud it was further held, upon mature deliberation and examination of authorities, that notice of all liens or alienations attaching before the judgment might be given at any time before the sale of the lands under execution, and would bind the purchaser. (See Rogers et al. v. Engles, 16 Ark., 543.) Audthisno-tice might be actual, or by recording, or by the possession of the former grantee, (Ib.) The convejumce from John C. Burgettto Isaac W., of the 4th November, 1867, gave title superior to that acquired by Apperson & Co., uiiless the former can be held voidable for fraud.

The circumstances relied upon to establish fraud are the relationship of the parties, the secrecy of the conveyance, the continued possession of the vendor, the eve of bankruptcy, the inadequacy of the consideration, and the confusion and uncertainty of the proof as to payment.

The English rule, adopted under the lead of Twyne’s case (2 Coke, 80 a), and followed in America with some modifications — that the possession of property retained in the vendor is prima facie fraudulent, did not apply to the conveyances of real estate. Possession was not, as in case of personalty, a presumption of absolute ownership — or at least not so strong, and it was supposed that prudent purchasers or incumbrancers would look beyond that to the actual title. Yet possession of real estate would naturally afford some presumption of a pos-sessory right, and in connection with other fraudulent circumstances, has been held proper for consideration. Whilst possession retained by the vendor will not, as in case of personal property, raise the prima facie presumption of fraud, it may oe a fact tending, with others, to show a secret trust. This is intimated in a note to Twyne’s case, referring to 1 Roll Rep. 99(3, an authority which we have not at hand. See also on this point, Paulding v. Sturgiss, 3 Stew. 95; Noble et al. v. Coleman & Gunter, 16 Ala. 77; Ogden Morell v. Scherrick, 54 Ill. 269; and so a secret conveyance of land has been held in this State a badge of fraud. Noble et al. v. Noble, 26 Ark. 317. The fact, too, that John C. Burgett appears to have been greatly embarrassed in his circumstances, and that a few months afterwards he was adjudged a bankrupt, although, of itself, no badge of fraud, may be properly considered in estimating his intentions, in connection with other ciroumstances.

The consideration of $5,750 as the whole price of a large body of lands, for four-fifths of which he had a year before agreed to pay over $19,000, is, making the utmost allowance for’shrinkage, grossly inadequate. If there were other considerations, they were not expressed nor shown n 1th any satisfactory degree of clearness in the proof. The court is aware of the heavy decline of planting lands which followed the abolition of shivery and the prostration of the war, but the effects of this had been already experienced in October, 1866, and it does not account for so great a disparity in value between that date and the 4th of November, 1867. The Supreme Court, of Missouri, in the case of Ames v. Gilmore et al., 59 Mo. 537, which was brought to set aside certain deeds as fraudulent, remarked: “It is a rule in considering such cases that while a slight inadequacy of price alone is very weak evidence,, if the inadequacy is gross, it becomes a badge of fraud which may-be considered by a chancellor, and becomes a controlling-force when coupled with other circumstances tending; to prove fraud.”

Considering all the circumstances together, the condition of John C. Burgett at the time, the relationship between the-parties, the inadequacy of the price and the unsatisfactory nature of the evidence of its payment, the failure of J. W. Burgett to record the deed or to take visible and notorious, possession, the execution by John C. Burgett of his note for over $11,000 within four days afterward, and his petition in bankruptcy within seven months, the meager assets which were given up to the assignee, showing his utter destitution at the time, and thus raising the presumption that the deed to Isaac-conveyed all his remaining property, we can not say that the-Chancellor erred in decreeing the Council Bend lands subject to the claim of complainants.

The relief granted, however, went beyond the prayer of the bill, and beyond what reason and justice would dictate. Complainants very properly asked that the deed to Isaac W.. Burgett of the Council Bend lands might be canceled and the-lands left free for sale under their alias execution. This was-in accordance with the views of this court heretofore expressed, that it is the better practice, in attaching fraudulent, conveyances by creditors, to first get judgment and a levy upon the lands, and then apply to a court of chancery to remove impediments in the way of the sale of a clear title before the sale is made. By this course the interests of the debtor are better protected, inasmuch as he is enabled to get credit for the full value of his lands upon a clear sale, whilst otherwise, in the face of prospective litigation regarding the fraudulent conveyance, the lands are generally bought by the creditor for a trifle, and the debtor left burdened with almost the whole of his debt. Whilst a purchaser at execution sale may afterwards file a bill to cancel previous fraudulent conveyances, the practice of making such sales is not to be encouraged. In this case the complainants have seemed to desire a re-sale, and it was obviously proper. There is no necessity, however, for leaving complainants to pursue their remedy by execution. The Chancery Court having jurisdiction of the subject-matter, and of all parties in interest, may complete the business, take notice of the judgment, and order a sale under its own directions, for its satisfaction, first sweeping away the cloud raised by the fraudulent conveyance and making all necessary corrections in the description of the lands.

The matter of costs was in the discretion of the Chancellor, which does not appear to have been abused.

Let so much of the decree as applies to the Home place be affirmed, designating the lands which compose it, and also let the decree be affirmed as to the costs of the court below, and let the costs of this court be adjudged against appellants, Ap-person & Co.

Reverse so much of the decree as relates to the lands conveyed by John C. Burgett to Isaac W. Burgett, and known as the Council Bend lands, and as to that part let the cause be-remanded, with instructions to proceed therein in accordance with the law and practice in equity and not inconsistent with this opinion, to subject said lands to sale for the satisfaction of complainant’s judgment at law, and for such rulings as to future costs ap to the court may seem meet.


author: TURNER, S. J.:

text:
    Schearff et al. vs. Dodge.
    1. Mortgage : Lien of, discharged by payment or tender at the law day. Payment or tender of payment at the time mentioned in the condition of the •mortgage, or payment before then, saves the breach of the condition, and discharges the lien and revests the legal estate in the mortgagor.' In cases of tender, the debt still subsists as a personal liability against the mortgagor. But in the case of a sale by title bond, neither tender nor payment of the purchase-money divests the legal title of the vendor, nor does tender extinguish his lien on the land.
    2. Termer: In bill for title, tender must be kept good.

    A v. ndee under a title bond asking a decree for title, must tender and bring the unpaid purchase-money into court before he can obtain a decree for title.
    APPEAL from Pulasld Chancery Court.
    Hon. J. R. EakiN, Chancellor.

      Duffee & Hill, for appellants.

      Dodge & Johnson, contra.

   TURNER, S. J.:

This is a suit in equity to enforce a vendor’s lien on a title bond.

The complaint states that the plaintiff, R. L. Dodge, being the owner of the south half of block No. 246, west of the Quapaw line, in the City of Little Rock, did on May 1, 1868, sell the same to the defendant Charles- Schearff, for the sum of $800, and thereupon executed to the said defendant a bond for title thereto, conditioned that upon the payment of the purchase-money as agreed and specified in said sale, and the building of a house upon the property as stated in the title bond, together with all future taxes thereon, then in that case the plaintiff bound himself to execute and deliver to the defendant a deed of conveyance in full of the legal title to the property.

That the defendant Schearff has paid to the plaintiff the sum of $550, part of the purchase-money, leaving still unpaid his last note, dated May 1, 1868, for $250, with interest at ten per cent per annum from date until paid, no part of which has been paid except the sum of $25. That the defendant Augusta W. Lange purchased from her co-defendant Schearff all or part of said premises with a full knowledge that he had not paid the balance of the purchase-money. That demand has been made on the defendant Lange for the balance of the purchase-money and a deed tendered her as agreed upon and promised in the title bond, but that the defendant Schearff is nowhere to be found, and the defendant Lange has refused to pay said money. That the plaintiff has a vendor’s lien upon the premises, wherefore he prays judgment against the defendants, Schearff and Lange, for the sum of $700, with costs, and in case of default of the payment thereof, that the premises may be sold, and the equity of redemption foreclosed.

With the original complaint is exhibited and made parts thereof a copy of the title bond, also of the note for the balance of the purchase-money and of the deed tendered to the defendant Lange.

The defendant answered, alleging that on the-day of December, I860, she purchased from her co-defendant Schearff the real estate in the complaint mentioned, and admits that the plaintiff sold the land to her co-defendant Schearff for the sum of $800, and executed to him a title bond therefor of the tenor and effect as described in the complaint; that the amount of purchase-money was divided into four payments, evidenced by the writings obligatory of the defendant Schearff, bearing interest at the rate of ten per cent per annum from May 1, 1868, until paid, all of which have been paid except the fourth and last installment for $250, which was due May 1, 1871; that on May 3, 1869, the sum of $25 was paid upon said last installment, being one year’s interest; and that on May 1, 1871, the day on which the fourth and last payment became due, the defendant, by A. W. Lange, her husband, tendered to the plaintiff the full amount thereof, with all interest due thereon, in legal-tendér notes, and demanded of the plaintiff that he receive the same and deliver to her a deed for the land, as provided for by the title bond. That she kept the money deposited for a long time with John Reigler, in the city of Little Rock, with the full knowledge of the plaintiff, as a continuing tender, but that plaintiff refused to accept the same or make her a deed to the land, giving as a reason for his refusal that the defendant Schearff had sold the land before full payment, and had neglected to put up thereon a residence and other improvements. But- that afterwards, on February 2, 1876, the plaintiff tendered her a deed for said land, conditioned that she would pay him the said last installment for $250, with interest from May 1, 1868, until said February 2, 1876, at the rate of ten per cent per annum, which defendant refused to do ; whereupon plaintiff refused to deliver the deed.

The defendant further alleges that when she offered to pay said last installment in full, and demanded a deed for the land, it was worth $2,300; at which time she was offered said sum in cash for the land provided she would procure a deed therefor, and that in consequence of the plaintiff’s refusal to make such deed she lost said trade and the $2,300 offered for the land. That the land has depreciated in value, until now it is not worth more than $1,000, and could not be sold for more than that amount even on long time. Wherefore she alleges that she has by said refusal of the plaintiff been damaged to the amount of $1,300, with interest thereon from May 1, 1871.

Defendant further alleges that all taxes were duly paid up to and including May 1, 1871, at the time of the tender, and since, including the year 1873; that she is advised that the plaintiff, by reason of his refusal to accept the tender, lost whatever lien he might have had on the land for the payment •of the purchase-money and has no equities to be enforced.

Defendant further insists that if mistaken in this, she is at least entitled to an abatement of interest on said last-mentioned installment from the time of the tender of payment until the tender of said deed, February 1, 1876, and that she is entitled to all of her damages occasioned by reason of plaintiff’s refusal to make the deed on May 1, 1871. Wherefore defendant prays the court to ascertain the true amount of damages to which she is entitled, and the actual amount due on said land, •and that plaintiff be required to make the defendant a warranty deed for the same.

The plaintiff filed an amended complaint making Augusta W. Lange a defendant to the suit, and the defendant filed an amended answer averring the tender of payment to have been made on May 1, 1871, instead of April 30, 1871, as averred in the original answer; and these were the only material changes in the original complaint.

The plaintiff demurred to defendant’s amended answer, and for cause of demurrer to the second paragraph, wherein the defendant sets up a counter-claim or set-off, the plaintiff says :

1. That the said second paragraph does not set up facts sufficient to constitute a good cause, counter-claim, or set-off; and,

2. There is no equity set up in said paragraph.

And for cause of demurrer to so much of the first and second paragraphs as alleges that the said E. L. Dodge, by his Tefusal to receive the purchase-money when due and tendered, lost his vendor’s lien mentioned in said bill, plaintiff says:

1. That the same does not set up facts sufficient to constitute a good cause of defense ; and,

2. Because there is no equity in said defense.

And plaintiff demurs generally to the defendant’s amended answer, for the want of equity.

At the September term, 1876, of the Pulaski Chancery Court, this cause, by consent, was submitted to the court on the demurrer to the first and second paragraphs of the answer whereupon the said demurrers were sustained by the court.

And at the same term of the court (January 13, 1877), the-parties appeared by their solicitors, and the defendants electing to stand on their answer so demurred to, and demurrer sustained by the court, and defendant refusing to answer further, the court adjudged and decreed that the plaintiff:, R. L.. Dodge, have and recover from the defendant Charles Sehearff the sum of four hundred and forty-two and 42-100 dollars for his debt, with interest at the rate of ten per cent per annum, as damages, and all costs expended in the suit; and further-ordered, adjudged, and decreed that the said sum as specified, be declared a lien upon the following lot of land, to wit: “The south half of block No. (246) two hundred and forty-six, west of the Quapaw line in the City of Little Rock, bounded on the north by the north half of block 246, east by Izard street, on the south by Sevier street, and on the west by Chester street, situated in the City of Little Rock; and that unless said debt, damages, and costs be fully paid and discharged on or before-the first day of June, 1877, that all right, title, interest, claim, and equity of redemption of the said Charles Sehearff, Augusta. Lange, and A. W. Lange be forever barred and foreclosed herein, and that John W. Callaway, who is hereby appointed, a commissioner of this court in this cause for that purpose, shall advertise the said lot of land for sale for at least four weeks’ insertion in some weekly newspaper published in the City of Little Rock, to be sold at the front entrance to the building in which this court is held, on a credit of three months, the purchaser to give bond and. approved security for the purchase-money ; and the said commissioner shall make report of his proceedings in writing to this court as soon as possible thereafter, and all the rights and equity of redemption of said defendants Charles Scliearff, Augusta Lange, and A. W. Lange to said real estate are hereby barred and foreclosed. • To-which decree defendants excepted and appealed to this court.

The demurrers question the sufficiency of both the first and. second paragraphs of the defendants’ answer.

The demurrer to the first paragraph raises the question as to-the sufficiency of the tender. Was it a good tender? and, if so, how did it affect the debt and interest? or, if not good, did it retain the plaintiff’s lienor interest in the land sold?' As we have seen, this suit is founded on a sale of real estate by title bond, a mode of conveyance long in use not only in this State, but it is believed in most of the States in the¡ Union-Such a sale has been likened unto a mortgage, the vendee occupying the relation of mortgagor, and the vendor that of mortgagee. Not in form it is true, but in substance, a mortgage, with the usual incidents of a mortgage. This court has repeatedly so decided, and so have the courts of Tennessee, Alabama, Mississippi, and other States. These decisions recognize the contract of sale by title bond as having the legal effect of creating a mortgage lien upon the estate sold, for the security of the unpaid purchase-money, as effectually as if the vendor had first eonvejmd the whole estate by deed, and simultaneously had the same reconveyed to him by mortgage-deed. See Smith et al. v. Robinson, 13 Ark. 533; Harris v. King, 16 Ark. 126; Moore v. Anders, 14 Ark. 628; Hall v. Denckla,, 28 Ark. 506; Johnson et al. v. Nunnelley, 30 Ark. 153.

But notwithstanding the resemblance by implication of such a contract of sale to a mortgage, the analogy is not in all things complete.

At common law a mortgage is regarded as a conveyance in-fee, the legal title vesting in the mortgagee, while the equity of redemption remained in the mortgagor ; and this construe"tion has been thought best adapted to give to the creditor full protection in pursuing and enforcing his security, while the ■mortgagor is secured in his right to redeem.

This is the doctrine of the English courts, and, we think, a 'majority of the American States, including Arkansas, have ■adopted the same construction of the law. Some of the States .have modified it to some extent, mostly by statute, it is be-dieved, so that a mortgage is regarded in those States merely -as a pledge, the rights and remedies under it being wholly •equitable.

In the case of a sale by title bond, the vendor does not con'vey the legal estate to the purchaser, as in the case of a mort.gage, but reserves and retains it in himself, as a security for the payment of the purchase-money, and he is only bound by the express terms of the contract to convey the legal title to the purchaser upon the payment of the purchase-money, or the doing of some other act required to be done by the terms •of the contract.

In the case of a mortgage, payment, or tender of payment, -at the time mentioned in the condition of the mortgage, or payment before the day named in the condition, saves the breach of the condition and discharges the mortgage lien, and Invests the legal • estate in the mortgagor without any recon-"veyance, by the simple operation of law; but the debt subsists ■as a personal liability in cases of tender, after the estate is digested, and may be recovered as such by an action at law. See 2 Jones on Mort., secs. 891, 892, 886; 34 N. J. 496.

But in the case of a sale by title bond, the payment, or tender of payment, at the time mentioned in the bond, or at any other time, does not divest the legal title of the vendor, •and does not by operation of the law, or otherwise, vest any legal or other title in the purchaser (mortgagor) than that which he previously had ; but if the vendor fails to make the purchaser a legal title to the premises sold, upon payment, or tender of payment, properly made and demand therefor, he -can then successfully appeal to a court of equity for relief and ask its decree for the legal title to the premises. In the meantime, the purchaser must keep his tender good, and bring the money into court before it will decree him a legal title.

In this cause it is contended by learned counsel that inasmuch as the defendant Lange, who had succeeded to the lights of her co-defendant, Schearff, tendered to the plaintiff ■full payment of the principal and interest of the last installment of the purchase-money on the day when due, that therefore, by analogy to the case of a common-law mortgage, the lien is discharged. Can this conclusion be true?

"W e have seen that by the terms of the contract of sale there is no binding obligation on the vendor to make title to the pui’-•chaser until the whole of the purchase-money is paid. If this be so, by what process can the purchaser acquire a legal title to the premises ? It can only be done through the aid of a court of equity, consequent upon the payment of the purchase-money, or a good tender and refusal, and demand of title from the plaintiff, and until this is done the legal estate remains vested in the vendor. It was reserved in the vendor by the contract of sale as a security for the purchase-money, and can only be divested by the decree of a court of equity or by his voluntary conveyance.

The learned counsel for the defendants admit that if the defendant Lange had sought the aid of a court of equity, setting up her tender and demanding a deed, the court would have decreed her a title upon payment of the amount called for in the bond, abating the interest from the date of the tender of the money until tender of the deed by plaintiff.

True the defendant does not come into a court of equity asking a decree for title to the real estate sold, but the plaintiff comes into equity, making the defendants parties to the suit,, seeking to enforce the vendor’s lien on the real estate sold, to-secure the remaining balance of the purchase-money. The-parties were all before the co.urt, each claiming certain equitable rights ; and the court may well take cognizance of the whole case and adjust the equities of all the parties to the suit and render such decree in the premises as the principles of equity-may seem to warrant, and this without doing violence to the oft-quoted equity maxim, that “he who goes into a court of equity aslcing equity, must do equity.” Assuming that the contract, of sale by title bond is to all intents and purposes a mortgage, and governed by the rules of law applicable to a common-law mortgage, was the tender, under the circumstances of this case,, such a tender as would discharge the vendor’s lien? We think, not. Referring to the title bond exhibited with the original complaint and the answer, we find the following proviso embraced in the bond, and constituting a part of the contract :• “Provided, however, that said Charles Schearff shall not dispose of said property, or an}’- part thereof, until he has fully-paid for it, or until he has put up a residence theron and made-such other improvements as his means will allow, within three-years from date.”

Before the purchase-money was paid, or the tender made,, the defendant Schearff sold the land to his co-defendant, Lange, nor is it protended that the defendants, or either of' them, ever put up a residence on the premises or made other-improvements thereon, as required ., by the terms of said proviso, and therefore the plaintiff may have well refused to accept the payment tendered, because of the failure of the defendants to comply with .certain provisions of the contract intended for the benefit of the plaintiff. It may have been unwise for the plaintiff to refuse the money when tendered, but we think he had a right to do so without compromising his-. lien upon the real estate sold. Applying, then, the most rigid rules of law applicable to the common-law mortgage in their bearing on the effect of tender at the law day, the lien, we think, remains in full force.

If the tender of payment had been made when the last installment became due and the other provisions of the title bond had been complied with, still the vendor’s lien would not be affected. The legal estate being in him, the purchaser has merely an equity of redemption in the laud, and no act of his can possibly affect the vendor’s title, nor can he in any way be divested of it except the purchaser fulfill his contract, and by that means become entitled to a conveyance. If then the vendor refuses to convey the legal estate to the purchaser, he «an appeal to a court of equity and ask that the legal title be decreed to him according to the terms of the contract.

The effect of a tender properly made is to stop interest on the debt tendered, and to relieve the party making the tender from the burden of all costs subsequently made in any proceeding to redeem or foreclose the mortgage, but in this case it can have no such effect.

The defendant having failed to pay the last installment of the purchase-money, the plaintiff . tendered the defendant Lange a deed for the land, and demanded payment of the remaining purchase-money, with the interest due thereon, which being refused, the plaintiff instituted this suit for the foreclosure of the title bond.

The view we take of the matters of defense set up in the first paragraph of the answer disposes of the counter-claim for damages set up in the second paragraph ; for if there has been no payment of the last installment of the purchase-money, and no valid tender of the money, certainly the defendant Lange can have no legitimate claim for damages because of the plaintiff’s failure to do a thing which, under the circumstances, be was not bound to do, and we do then deem it wholly profitless to indulge in speculations concerning the depreciation in the value of the real estate sold, since the alleged’tender of payment.

We think the demurrers to the first and second paragraphs-of the answer were rightly sustained ; and as we find no error-in the Chancellor’s decree, it is in all things affirmed.