text:
    Crisman vs. McDonald et al.
    Bills of Exceptions : Requisites of, where several objections.

    A general statement, in a bill of exceptions, that the party excepted to-the rulings of the court, is not sufficient to have the same considered here, but the bill of exceptions should specifically state and point out • the grounds of objections, whether as to the law, the facts, or to both..

      Same : When not error to refuse instructions, etc.

    It is not error for the court below to refuse instructions asked by counsel, if the court correctly gire the law upon all the points arising in the case.
    Same : Practice on.

    This court will not reverse a judgment, where there is a general objection to the whole number of instructions given, if any one of them, is good.
    APPEAL from Independence Circuit Court.
    Hon. Eliseta Baxter, Circuit J udge.

      A. H. Garlandfor appellant.

      U. M. Rose, for appellees.
   McClure, C. J.

Street & Martin of Batesville, drew a draft on Street, Crisman & Co. of the city of Memphis, Tennessee, which draft was accepted by the last named firm, and of which the appellant was a member, which was allowed to-go to protest. The draft alluded to was drawn in favor of the appellee Logwood, as the agent of the appellee, at the request of W. H. Street and E. B. Crisman, who are also members of the firm of Street, Crisman & Co., went to Batesville to see if Street & Martin would not pay said draft in cotton, and thus take the acceptance of Street, Crisman & Co. up. On arriving at Batesville, Logwood, the agent of Mrs. McDonald, saw Street & Martin, and they agreed to give him eighteen bales of cotton in satisfaction of the draft drawn by them on Street, Crisman & Co., and instead of making an actual delivery of the cotton, the firm of Street & Martin gave to the agent of Mrs. McDonald a receipt of which the following is said to be a copy:

“Batesville, Ark., Dec. 25, 1867.
“ Received of Mrs. M. B. McDonald, to be shipped by first boat from this place, eighteen bales of cotton to be consigned to A. J. Roach & Co. of Memphis, Tenn.”
“ (Signed.) Street & Martin.”

On receiving this receipt, the agent of Mrs. McDonald gave to Street & Martin the draft which had been drawn in her favor, and which was accepted by the house of Street, Crisman & Co. of the city of Memphis. Street & Martin never shipped the cotton. W. B. Crisman, of the firm of Street, Crisman & Co., shortly after the giving of this receipt, went to Batesville, and seems to have assumed charge of the business of Street & Martin. At the time the receipt was given to Mrs. McDonald for eighteen bales of cotton, Logwood testifies that twelve or fifteen bales of the cotton were lying in front of the store, as the cotton which she was to have, and that Street & Martin told him that the balance was at the gin house. The cotton in front of the store was turned over to Buckner & Co. in the payment of a debt of Street & Martin, and for which the firm of Street, Crisman & Co. were liable as acceptors.

Mrs. McDonald brought suit against W. B. Crisman for the value of the eighteen bales of cotton, and recovered judgment in the sum of twenty-two hundred dollars, from which Crisman appealed to this court.

There are thirteen causes assigned in the motion for a new trial, and we will dispose of them in their order.

First. “ Because the court erred in permitting a part of the ■deposition of Logwood to be read to the jury as against the objection of the defendant."

Second. “ Because the court erred in permitting the testitimony of L. O. Gfause to go to the jury as evidence in the ■case over the objection of defendant.”

Third. “ Because the court erred in permitting the testimony of J. J. Martin, the rebutting witness, to go to the jury as evidence in the cause.”

That portion of Logwood’s deposition, which is objected to, is as follows: They (Street & Martin) replied to my demand (for the cotton), that W. B. Crisman had possession of it; that they placed it in his hands with other cotton which belonged to them. When I went back, in April of 1868, Street told me that they had set apart to Mrs. McDonald her full complement of cotton as they had promised me to do, and delivered it to Crisman.” The exclusion of this testimony was asked upon three grounds: first, because it 'is hearsay ; second, that Street & Martin were competent witnesses to establish that fact, and third, because the defendant was not present or a party to said conversation.

The testimony of Logwood, which the appellant objected to, is inadmissible to fix liability on Crisman. It is hearsay, and should have been excluded, but it does not follow, because of this error, that the judgment will be reversed, for it could not have prejudiced the cause of the appellant, as the same facts are substantially testified to by the very witnesses, Street & Martin, whom the appellant admits were competent witnesses.

The testimony of Clause and Martin is also objected to; but the grounds of the objection are not stated, as was done in Logwood’s ease. The code says: “ An exception is an objection taken to a decision of the court upon a matter pf law ” (sec. 365), and the three hundred and sixty-eighth section says: “ Where the decision is not entered on the records, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exceptions to writing and present it to the judge for his allowance and signature.” The object of a bill of exceptions is to present to the appellate court a point of law decided in the court below, prejudicial to the substantial rights of the party appealing. The bill of exceptions states that the appellant objected to the testimony of two witnesses, and that the court overruled his objection; but .what his objection was, or the point of law ruled on, is not disclosed. Under this state of facts, how are we to ascertain whether the court below ruled correctly or incorrectly ? The question in this court is, not whether the testimony of these witnesses should have gone to the jury ; but is, Did the court err in its ruling upon the point of law, or objection presented to it by the counsel for the appellant?

There are various grounds on which'-and for which the testimony of a witness may be excluded. The testimony of a witness may be excluded on the ground that the witness is a person deficient in understanding; or that he is insensible to the obligations of an oath; that it is irrelevant, or that it is hearsay. Suppose a party were to object to the testimony of a witness upon the ground, that he was a person deficient in understanding, and that his objection was overruled, and that he should take his bill of exceptions, as is done in this case, without specifying his ground of objection, and insist that the court erred in admitting the testimony, on the ground that the witness was insensible to the obligations of an oath, or on the ground that it was irrelevant, or hearsay; and suppose we should reverse on either one of the grounds, would we not be adjudicating and reversing a cause upon a ground-not presented to the court below, and in a cause where it had not erred in any of its rulings and decisions ?

Section 367 of the code says the objection must be stated. By this it is not meant that it shall be stated that the party objected, but that his reason or grounds of objection shall be stated.

In the case of Walrath v. Riley, 1 Bush. (Ky.), 268, the appellant offered to read in evidence certain depositions. The appellee excepted and the exceptions were sustained. To the ruling of the court the appellant objected and took his bill of exceptions, but the ground of objection was not disclosed. In passing on this defect, the court said: “ He (the appellant should have stated in the bill of exceptions to the depositions the objections to the depositions, and the grounds upon which they were rejected. Unless the grounds upon which said de positions were rejected were stated and certified to this courtj we must presume the court below decided correctly. The depositions, from anything that appears to us, may have been rejected for want of notice, or some other good and valid reasons besides incompetency, a question which is not now properly before us, and we need not express any opinion in reference to it.”

In the case of Camden v. Doremus et al., 3 How., 530, after each deposition offered in evidence by the plaintiffs, the defendant, so his bill of exceptions states, “ objected, and that his objection was overruled.” Like the case at bar, the ground of objection is not disclosed. Justice Daniel, in delivering the opinion of the court in that case, said : “ With regard to the manner and import of this objection, we would remark, that they were of a kind that should not have been tolerated in the court below, pending the trial of the issue before the jury. Upon the offer of testimony, extended and complicated as it may often prove, it could not be expected, upon the mere suggestion of an exception, which did not obviously cover the competency of the evidence, nor point to some definite or specific defect in its character, that the court should explore the entire mass for the ascertainment of defects, which the objector himself either would not or could not point to their view. It would be more extraordinary still if, under the mask of such an objection, or mere hint at objection, a party should be permitted in an appellate court, to spring upon his adversary defects which it did not appear he ever relied on; and which, if they had been openly and specifically alleged, might have been easily cured. It is impossible that this court can determine, or do more than conjecture, whether it applied to form, or substance, or how far, if any particular view was presented to the court below, the court may have been warranted in overruling it. We must consider objections of this character as vague and nugatory, and, if entitled to weight anywhere, as without weight before an appellate court.”

In the case of Doe v. Natchez Insurance Co., 8 S. & M., 205, Chief Justice Sharkey said : “ It does not appear, from the bill of exceptions, on what ground the evidence was objected to, or for what reason it was ruled out. The objection was general and it was sustained. It is proper, in objecting to evidence, that the ground of the objection should be stated, as in that way only can parties be confined, in this court, to the same ground of objections which was taken in the court below.

In the case of Miller v. Duff et al, 34 Mo., 169, it appears that the statement of an engineer not under oath was offered in evidence. To the reading of the certificate or statement, the defendants objected, and the court overruling the objection, they excepted. The bill of exceptions does not state the ground of objection, and in referring to this point Judge Bates said : “ The objection to the admission in evidence of the memorandum of Peabody is not so saved as to authorize this court to look into it. The ground of objection is not stated at all.” Woodburn v. Caydal, 39 Mo., 222.

This court held in Stillwell v. Cray, 17 Ark., 473, that “ where there is an exception to the instructions given by the court below, and all the testimony is saved by a bill of exceptions, this court will consider the testimony only so far as it may be necessary to do so, in order to test the correctness of the instructions.” It was also held in Carr v. Crain et al, 7 Ark., 250, that “ the province of a bill of exceptions is not to draw the whole matter into examination again, but only the points to which it is taken, and the party taking it must lay his finger on these points.”

In this case it appears from the bill of exceptions, that the appellant asked the court to give six instructions which are set out at length, all of which the court refused, and the appellant excepted. The court, on its own motion, gave ten instructions, to all of which the appellants excepted. The exception is to the entire charge, and is general. The question now arises, what error is presented by tbe bill of exceptions. By excepting to an entire charge, containing ten different declarations of law, does the appellant lay his finger on the error complained of, if any one of the charges are good? The statute of Indiana regulating bills of exceptions is identical with the provisions of our code. In the case of the State v. Bartlett, 9 Ind., 571, the bill of exceptions after reciting the instructions asked and those refused, and those given, concludes as follows : “ At the time the court made each one of the foregoing rulings and decisions, the state by her prosecutor objected and excepted.” In commenting on this practice, the supreme court of that state said: “To say at the close of a bill of exceptions, that the party excepts to the opinion of the court in giving a series of instructions consisting of ten distinct propositions, and refusing to give another series of seventeen distinct propositions, lacks that precision and accuracy so essential in legal proceedings, especially in the higher courts. It violates alike the spirit and the letter of the new practice.”

In the case of Jolly v. Terre Haute Draw Bridge Co., 9 Ind., 419, eleven distinct propositions of law were asked to be charged, which the court refused, and eleven were given to which the appellant excepted, generally, as is done in this case and the court said: “ The error assigned is to the ruling of the court on each set of instructions collectively. This is not a good exception or assignment _under the statute. The assignment of errors relied upon must be specific ”

In the case of Decker v. Matthews, 2 Kern., 313, and in Hunt v. Maghee, 3 Seld., 273, upon a similar state of case as the one at bar, it was held that a general exception to an entire charge could not be sustained, if any independent portion of the charge was correct. These cases are referred to by the supreme court of the United States, in Johnson v. Jones et al., 1 Black, 220, and the court said : “It is well settled, that if a series of propositions be embodied in instructions, and the instructions are excepted to in a mass, if any one of the propositions be correct, the exception must be overruled.”

In the case of Bevier v. Dillingham, 18 Wis., 528, it was held, that it must appear from the exceptions whether the appellant comes here to review the facts or the law ; * * * continuing, the court said : “We have no hesitation in laying it down as a sound rule of practice, that a party filing his exceptions must make them so specific and certain as to show to which class they belong, whether the appeal is to review the facts or the law, or both. * * * This is necessary in order to apprise the opposite party of the objection to be urged in the appellate tribunal; otherwise, the counsel might discuss one point in the court below, and come here to reverse the judgment upon another and quite a different point, not made there, and perhaps not then discovered.”

In Reynolds v. Railroad, 43 N. H., 588, the court said: “ An objection taken to the charge of the court, in general terms, is not sustainable. It is quite too broad. If any part of the instructions to the jury was regarded as objectionable, the exception should be'taken to that specifically.”

The ninth instruction reads as follows: “If you find for the plaintiff, you will say so by your verdict, indicating the amount.” The tenth is as follows: “If you find for the defendant, you will simply say so by your verdict.” Both of these instructions are objected to, and we are at a loss to know why. As has been stated, i't was held in Stillwell v. Gray, 17 Ark., 473, that where there is an exception to the instruction given by the court below, and all the testimony saved by a bill of exceptions, this court will consider the testimony only so far as may be necessary to do so, in order to test the correctness of the instruction, but in that case, the exception was to a single instruction.- That case differs from the one at bar in this, that the exceptions in this case relate to sixteen different propositions of law, while in the case alluded to, the bill of exceptions related to a single proposition. Now, the question arises, Is it the province or the duty of this court to take up the evidence in this case, and examine the instructions one by one, to see if it can pick a flaw, or find an error in any one of the charges ?

Justice Daniel, in Camden v. Doremus, 3 How., 530, said the mere hint at objection should not entitle a party, in an appellate court, to spring upon his adversary defects which- he never relied on in the court below. Our Code says (sec. 365) that an exception is an objection taken to a decision of the court upon a matter of law, and if the exception (sec. 369) is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exception to writing. The grounds of objection to giving the instructions complained of, and refusing to give those asked, do not appear in the record, neither does the bill of exceptions set them out. It may be claimed that the motion for a new trial sufficiently notifies this court of the grounds of objection. The reasons assigned for a new trial cannot be regarded as evidence of the action of the court upon the trial (17 Ky., 317). The real question in this case is, Is this court bound, to take up the six instructions asked by the appellant, and examine the evidence presented by the bill of exceptions, one at a time, to see if any one of them is correct, and, after having done this, take up the ten instructions given by the-court, to see if we can find any objection to them, and, if so, give the appellant the benefit of an error or blunder his counsel has not pointed out ? It strikes us, if we should adopt such a rule, that the labor of counsel would be greatly ameliorated. Were we to do so, would we not be departing from the rule laid down in Carr v. Crain, 7 Ark., 250, that the party taking the exception should lay his finger on the error complained of? We do not wish to be understood as saying that the reason which the court below gave for refusing to give an instruction should be stated in the bill of exceptions. What is meant is, that the exception objected to must be stated with certainty. The reason for this rule is this: that this mode directs the attention of the judge to the wrong complained of, but if you allow counsel to object, generally, to a 'series of ten instructions, nine of which are right, such a course does not call the judge’s attention directly to anything. We have examined the instructions given by the court on its own motion, and while some of them are very general, we can see no objection to them, such as would warrant a reversal. The instructions which the appellant asked, and which the court refused to give, such as are not clearly erroneous, are given substantially, and covered by those given by the court. It is not error for the court to refuse to give instructions asked by counsel. The question is, whether the law of the case, as given by the court, was correctly given, and whether it covered all the points arising in the case.

We feel disposed to lay it down as a rule that, in the future, we will not reverse a judgment where there is an objection to the whole number of instructions given, if any one of them is good. It is hardly possible that in a series of ten instructions, they should all be erroneous, and, hereafter, we shall decline to search through a record, like the one in this case, to find an error, where counsel have excepted, generally to the whole charge. Counsel must elect, specifically, what instructions they, object to, to the end that the precise questions of law presented to the court below may be reviewed here. We do not propose to establish a rule which would allow counsel to take advantage of error, in this court, which never occurred to him in the court below. 5

Judgment affirmed.


source: Caselaw Access Project

author: Bennett, J.

license: Public Domain

text:
    Jones vs. Jones, Adm’r.
    Trust Estates : Not barred by limitations, eta.

    When an administrator takes possession of the property of an estate, he becomes a trustee for the widow and next of kin, and no lapse of time can be pleaded, in bar, as between him, as such trustee, and the cestui que trust or beneficiaries, though the statute of limitations may be pleaded as against creditors.
    Chaucery: Jurisdiction in matters of dower.

    The probate courts of this state are invested with jurisdiction in matters of dower; but courts of chancery are not thereby ousted of their ancient jurisdiction in such matters.
    Dower : Marriage prerequisite to, eta.

    Marriage is a prerequisite to the right of dower, and, in a suit for dower, where the fact of marriage is denied, proof of an actual marriage, either under the forms and solemnities prescribed by the statute, or as prescribed by the common lawi is necessary.
    APPEAL from Sharp Circuit Court.
    Hon. Elisha Baxter, Circuit Judge.
    A. H. Garland, for appellant.

      U. M. .Rose, for appellees.
   Bennett, J.

The appellant filed her bill in the circuit court below as the widow of Elbert Jones, deceased, to compel W. C. Jones, his administrator, to render true and proper accounts of his estate, and to have dower set apart to her as the widow oí the deceased.

The bill charges the marriage of her and the deceased, in Tennessee, in the year 1831; the death of Elbert Jones in 1856; a large estate of lands and personalty; administration on the same by W. C. Jones, and then several matters of waste and misapplication of the funds of the estate; errors and frauds in the accounts of the administration.

The answer of the administrator denies, in the usual manner, all charges of error, waste and'fraud, and denies that appellant was ever married to deceased, and denies that appellant and Elbert Jones were ever husband and wife; pleads the statute of limitations, and asserts his right to the estate.

Upon the hearing, the court dismissed the bill, from which order of dismissal an appeal has been granted.

The order of dismissal does not state for what reason the bill was dismissed: whether for want of jurisdiction, or because the action was barred by the statute of limitations; or, because the complainant was not the widow of Elbert Jones, or because the allegations of fraud, etc., were not made out by the proof.

That chancery courts have jurisdiction in matters affecting-questions of dower has been well settled in the case of Menifee v. Menifee, 8 Ark., 9, and need not be further discussed here.

As to the question of the statute of limitations, we may say, no lapse of time is a bar to a direct trust, as between the trustee and cestui que trust. When an administrator takes possession of the property of an estate, he becomes a trustee for the widow and next of kin, and it would be unjust for the person who takes possession of the property of the intestate, under authority of law, to be at liberty, after more or less years of possession, to set up the statute of limitations as a bar to tbe cestui que trust. Though the statute may be pleaded as against creditors, it can never be pleaded as a bar to the beneficiaries. 3 Johns. Ch., 214, 215; 10 Vesey, 93; 1 Johns. Ch., 316.

Was Delilah Jones the widow of Elbert Jones? This inquiry is an important one, as she is asking the court to award her dower, and marriage is an essential prerequisite to the right of dower. In order to entitle a woman to this provision, she must answer the description of a lawful wife. 1 Scribner on Dower, ch. 3, sec. 1. Marriage, under our statute, is considered in law a civil contract, to which the consent of the parties, capable in law of contracting, is necessary. Marriage has been regulated by legislative enactments, by defining the character and relations of parties who may marry, so as to prevent a conflict of duties and to preserve the purity of families; by prescribing the solemnities by which the contract shall be executed, so as to guard against fraud, surprise and seduction; by annexing civil rights to the parties and their issue, to encourage marriage and to discountenance wanton and lascivious cohabitation ; by declaring the causes and the judicature for rescinding the contract, when the conduct of either party and the interest of the state authorize dissolution. A lawful marriage may be defined to be a contract made by parties authorized by law to contract, and solemnized in the manner prescribed by law. To constitute a lawful wife, there must have been a lawful marriage. It is generally considered, in the absence of any positive statute declaring that all marriages, not celebrated in the prescribed manner, shall be absolutely void, or that none but certain magistrates or ministers shall solemnize a marriage, any marriage regularly made according to the common law, without observing- the statute regulations, would still be a valid marriage. 2 Green! eaf Ev.', 417; 2 Kent Com., 90, 91; Reeve’s Dom. Rel., 196, 200, 290; Parton v. Harvey, 1 Gray, 119; Londonderry v. Chester, 2 N. H., 268; Chiseldine v. Brewer, 1 Har. & McH., 152; Hantz v. Sealey, 6 Binn., 405.

A marriage celebrated in any country, according to its own laws, is recognized and valid in any country whose laws or policy it may not contravene.

The proof of marriage, as of other issues, is either by direct evidence establishing the fact, or by evidence of collateral facts and circumstances from which its • existence may be inferred.

The same strictness of proof is not requisite in civil cases as is required upon indictments for bigamy and other actions of a criminal character. In civil cases it is common to prove marriage by reputation, declarations and conduct of parties, and other circumstances usually accompanjdng that relation. It is competent to show conversations and letters addressing each other as man and wife ; their appearing in respectable society, and their being received as man and wife; their observance of the customs and usages of society peculiar to the entry upon or subsistence of that relation ; their cohabitation also as man and wife is presumed to be lawful until the contrary appears. A like inference is drawn by the acknowledgment and treatment of their children by them as legitimate.

The evidence of marriage may be rebutted by proof that any circumstances, rendered indispensably necessary by law to a valid marriage, were wanting. Thus it may be shown that either of the parties had another husband or wife living at the time of the marriage in question; or that the parties were related within prohibited degrees ; or that consent was wanting, the marriage having been effected, by force or fraud ; or that one of the parties was at the time an idiot or non compos mentis or insane.

Having thus defined what constitutes a lawful marriage and a lawful wife, and what proof may be adduced to substantiate it, as far as is applicable to the case at bar, we will proceed to make the application, and endeavor to ascertain with as much certainty as possible, whether Delilah Jones was the lawful wife of Elbert Jones at the time of his death. Her bill of complaint alleges: “ That the said Elbert Jones, deceased, and your oratrix (Delilah Jones) were married in the state of 'Tennessee, about the year 1831.” It is nowhere stated in what town or county of Tennessee the marriage took place, but she states she lived with Jones as his wife for some fifteen years. The answer of W. C. Jones, administrator, charges “ that said Delilah Jones was never lawfully married to the .said Elbert Jones, as stated in said complaint; that, at the time of said alleged and pretended marriage, said Elbert Jones had a lawfully married wife named Matilda Jones, living in Tennessee, from whom he was not divorced, and who continued to be his lawful wife for more than twelve years after the time said Elbert and Delilah commenced cohabiting together.” The proof introduced upon the issue was as follows: W. R. Holcomb testifies, that he “ was acquainted with Mr. Elbert .Jones during his lifetime. I know that he and complainant recognized each other as man and wife, and the neighbors recognized them as such. I have frequently heard them speak ■of their marriage in the state of Tennessee, during the old man’s lifetime.” W. M. Morgan testifies, “that he has been acquainted with the plaintiff for about 28 years, and was' acquainted with Elbert Jones, deceased, frcm the year 1842 until his death, but does not know anything about their marriage ; they lived, together as man and wife, and were recognized as such by the neighbors, and I think they conducted themselves as man and wife.” Isaac King testifies, “that he ■does not know anything of the marriage of Elbert Jones and Delilah Jones, but they lived together as man and wife, and conducted themselves as such, and were recognized as such by their neighbors generally.” John King testifies, “ that he has known Elbert Jones and Delilah Jones for 20 or 25 years, but don’t know anything about their marriage; they came here some twenty or. twenty-five years ago, and were recognized as man and wife.” 'David Spurlock, testifies: “Have-known Elbert Jones and Delilah Jones some 28 or 24 years. They lived together as man and wife what time I knew them, and conducted themselves as such. At a certain case before-me, when I was justice of the peace, Elbert Jones said that Elbert T. Jones was his son; he was then living with Delilah Jones, the complainant.” John Ogler testifies, “thatwhen he came to this country, they, Elbert Jones and Delilah Jones-were recognized generally by their neighbors as man and wife. In the year 1854-55, I was an acting and duly commissioned justice of the peace, and Elbert Jones swore out an attachment, and in the affidavit he swore that Mrs. Delilah Jones was his wife, and he recognized her as I would my wife, like you, Mr. Davidson, do yours, or like any other man would his wife.” Elbert Jones testifies to the fact that Delilah Jones is his mother, and that Elbert Jones, during his lifetime, recognized him as his son, and Elbert Jones, Sr., always treated Delilah Jones as his wife. John G-. Earman testifies, “ that Elbert Jones always treated Delilah Jones as his lawful wife, and knew of Elbert Jones, during his lifetime, suing-out an attachment for his wife upon her sole contract, and said at the time, he would not have done it if it had been on his own account, but it being his wife’s, he felt it his duty to proceed as he did.”

Upon the part of the defendant,-James M. Jones testifies, “ that he is acquainted with Elbert T. Jones and Delilah Jones, formerly Delilah Harris. Have known Mrs. Delilah Jones since 1827 or 1828; at that time she was known as Delilah Harris. Elbert Jones, deceased, and Delilah Harris lived in my neighborhood until the fall of 1835, in company with Elbert Jones, deceased; but not as his wife. Elbert Jones, deceased, and his wife, Matilda Jones, separated about the-year 1829, but they were never divorced.. Matilda Jones died about twelve or fifteen years after t-h.e separation. Have lived in Bedford county, Tennessee, since 1830.

The above is all the evidence introduced to prove or disprove the lawful marriage of Elbert Jones with Delilah Jones.

The evidence, on the part of the complainant, is but declarations and conduct of parties, and at most, but circumstantial evidence of marriage. The complainant does not endeavor to-prove that her marriage was ever, in any manner, solemnized; or that there was any agreement between her and Elbert Jones to become man and wife. In a suit for .dower, it is clear that an actual marriage, either under the forms and solemnities prescribed by the statute, or as prescribed by the common law, is necessary. It is not one of those cases in which a manís estopped, on grounds of public policy, or private right from denying that he is married to a woman; as where a tradesman-has trusted a woman on the faith of her being married to a man, who has held her out to the world as his wife. In such cases the law will not permit the truth to be proven, because-it would do injustice and work a fraud. But here the person-claiming to be the wife, assuredly has no higher equities than the relations of the deceased ; for if, instead of being married, she lived with deceased as his concubine, it was her own fault, and she can blame herself alone.

The cohabitation and acts of Elbert Jones and Delilah Jones, although extending through many years, did not-amount to marriage, but are facts from which a- marriage might be inferred. They were circumstances on which to ground a presumption of marriage, and on the other hand, might be met with, other circumstances which would entirely ■overturn that presumption.

Delilah Jones says she was married to Jones in 1831, but does not state how or by whom she was married, but only shows acts of cohabitation and holding out to the world that they are man and wife. On the contrary, J. M. Jones, a brother of Elbert, says he was well acquainted with these parties, and in 1831, and several years afterwards, Elbert had unlawful wife living, by the name of Matilda Jones, from whom he was never divorced. No effort on the part of the complainant was made to overturn or weaken this evidence. It is positive, direct, conclusive.

If this was true, Elbert Jones could not have made Delilah Harris, or any woman, his lawful wife in any manner whatever, either by the forms ■ of solemnization required by the .statutes, by acts of cohabitation or otherwise. The proof of marriage must relate to the time alleged in the bill, viz., 1831; .and if, at that time, Matilda Jones was the lawful wife of Elbert Jones, Delilah Jones could not have been. No evidence has been introduced to show that any subsequent marriage has been had; we are clearly of the opinion that Delilah •Jones was not the lawful wife of Elbert Jones at the time of his death, and not being such, she cannot maintain her action ■of dower in his estate, or institute proceedings to inquire into errors or frauds on the part of the administrator, as it is not shown that she has any other interest in the estate except •as a wife of the deceased.

Judgment affirmed.


author: Searle, J.

text:
    McGehee vs. Blackwell et al.
    Pleading : When statute of limitation may be interposed on demurrer.

    It is optionary, under the fifth clause of sec. Ill, Code of Practice, where the cause of action appears upon the face of the complaint to be barred by limitation, to set up such defense, either by demurrer or answer; but if the complaint shows on its face that the cause of action is not barred, when, in fact, >it is barred, the defense can only be made by way of answer.
    Limitations : When vendor assigns note and lien.

    Where the assignee of a note given for the payment of the purchase money of land comes into the possession of the vendor’s lien, by virtue of the assignment, he stands in the same condition, as to his remedies and the period of limitation applicable thereto, as the vendor, except the legal title being in the vendor, he cannot bring ejectment; and in an action upon the note, or in an action to enforce his lien, the period of limitation applicable to the former being five years, and to the latter seven years, though his action on the former may be barred, he still has two years longer to bring his action by virtue of the latter.
    Equity Practice: When tender of deed, etc., may be dispensed with.

    While, in action at law for the purchase money due, where the consid- , eration is the conveyance of the properly sold upon payment of the purchase money, and the covenants between the parties are mutual and dependent, a deed should be tendered, and not merely offered to be tendered, before suit brought, yet, in equitable proceedings, while the rule should ordinarily be observed, the chancellor ¡.may, when deemed promotive of the ends of justice, relax or altogether dispense with the rule.
    APPEAL from Jefferson Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.
    English, Gantt & English, for appellant.

      Bell & Carlton, for appellees.
   Searle, J.

This was an action in equity, brought by the appellant against the appellee, to the November term, 1869, of the Jefferson circuit court, to enforce a vendor’s lien upon certain lands situate in said county, for the balance of the purchase money due thereon.

The material allegations and facts of the complaint, such of them as are necessary in the consideration and disposition of the questions raised in this case, are as follows: That on the 31st of January, 1859, Samuel M. McGehee sold to George L. Blackwell four hundred acres of land, in Jefferson county, and he and his wife executed a bond to Blackwell, covenanting to make him a deed on payment of the notes given for the purchase money; that the purchase money was all paid except one note for $1,398.16, dated on the day of sale, and due on the 1st of January, 1861; that on the 10th of May, 1860, Samuel M. McGehee assigned this note to Thomas F. McGehee, the appellant herein; that by an agreement between Samuel M. McGehee, who acted as agent for Thomas F. McGehee and Blackwell, the latter, on the 23d of April, 1863, paid $362.50, the sáme being indorsed as a credit on the note; that on the 16th of October, 1866, Blackwell assigned the title bond in blank (as to the name of the assignee), but the assignment was believed to be made to John C. Ward or William.'G. Hughes or Emily P. Hughes or all of them, and they are made defendants; that on the 24th of January, 1868, the defendants last named conveyed said land to Jesse R. Powell, and he is made defendant; that on the 16th day of April, 1868, the land was sold under execution against Blackwell, and purchased by Abraham Kahn, Isaac Wolf and Isaac McIntyre, and they are made defendants; Samuel M. Mc-Gehee and wife are made defendants, as also the two tenants; and all the defendants were duly summoned.

The defendants John C. Ward, William G. Hughes, Jesse R. Powell and George L. Blackwell filed a special demurrer to the complaint, in words and figures as follows, to wit:

1. That it appears, upon the face of the complainant’s bill, that the note upon which he sues is and was, at the time of instituting 1ns said complaint, barred by the statute of limitations, and no facts are stated in the complaint sufficient to remove the bar of the statute.

2. The plaintiff’s complaint does not state facts sufficient to constitute a cause of action, and does not show that a deed has been tendered for the lands, nor the plaintiffs offer to have one made.”

The court sustained the demurrer and dismissed the complaint for want of equity; to which the plaintiff excepted, and appealed to this court.

We have two special causes of demurrer set forth in this demurrer, and we will consider them in their order: First. As to the bar of the statute of limitations, and here in the outset, the question is suggested, can the defendants, on demurrer, interpose the statute of limitations? This action was brought after the first day of June, 1869, and all questions in relation to the proceedings thereof must be determined by the Code of Practice. See acts of the adjourned session, 1868, of the general assembly, p. 161. Sec. Ill of the Code, provides for what matters demurrers may be interposed. If the interposition, by demurrer, of the statute of limitations is proper under our code, it must be under the fifth clause of sec. Ill, -which reads as follows : “ That the complaint does not state facts sufficient to constitute a cause of action.” We see nothing in this clause otherwise than permission, at least, of the use of the demurrer in interposing such bar, where the cause of action appears upon the face of the complaint to be barred ; for in.such case, there is in law no cause of action alleged. And this, we believe, is in strict analogy with the old chancery practice. The defendant in such cases has option to demur or set up the bar by answer If he -neither demurs nor sets up the bar in his answer, he waives it. So if the complaint on its face shows that the cause of action is not barred, when in fact it is barred, and the defendant should desire to take advantage of such bar, he can do it only by answer. These, we believe, are substantially the rulings of the supreme court of Ohio, under the provisions of the practice of that state, very similar to the provisions of sec. 111 of our Code. Sturges et al. v. Burton et al., 8 Ohio St., 219. See also Suflitte v. Tinney, 9 Cal., 423; Barringer v. Warden, 12 id., 311; Smith v. Hall, 19 id., 85; Smith v. Richmond, 19 id., 476; Ord v. De La Guerra, 18 id., 67; Grattan v. Wiggins, 23 id., 16; Wisener v. Barrett, 4 Wash. C. Ct., 631; State v. Bird, 22 Mo., 470; Nair v. Lott, 25 id., 182; Maxwell v. Kennedy, 8 How. (U. S.), 210.

We come now to consider the principal question presented by the first special cause of demurrer, namely: Does the complaint show, upon its face, that the cause of action was barred by the statute of limitations ? The above facts, as set forth in the statement of the case, are admitted by the demurrer to be true, and by them it must be determined whether or not the cause of action was barred.

The vendor of the land in controversy, having retained the legal title to the same in himself, and having merely executed a bond for title to the vendee, covenanting to make him a deed when the purchase money was paid, stood in the same attitude as to his rights and remedies, as though he had absolutely deeded the land to the vendee and taken a mortgage back from him to secure the payment of the purchase money due. Had he retained possession of the note and his lien upon the land, he would have had three remedies, namely: one by an action of law upon the note; the second, by an action at law for the possession of the land (called ejectment under the old practice), in order to obtain the rents and profits thereof, for the payment of the debt, and the third, by an action in equity to enforce his lien and subject the land to the payment of the debt. And all these remedies he could have pursued at the same time, or either one of them, at his option, until he obtained satisfaction. Now, since the remedies would have been the same as in the case of a mortgage, we apprehend the periods of limitation applicable to the remedies would have been the same. Hence, in an action upon the note, without reference to the lien, the limitation of five years, applicable to such instruments, would have been the bar. Gould’s Dig., ch. 106, sec. 15. In an action for possession, etc., the limitation of seven years would have been the bar. Gould’s Dig., ch. 106, sec. 2. In an action to enforce a lien, etc., seven years, likewise; such limitation being the period judicially ascertained as applicable in such cases by analogy to the statute of limitation in cases of ejectment, or for possession, in the abr sence of any statutory provisions in relation thereto.

But the appellant, in this case, having come into the possession of the lien by the assignment of the note to him must stand in the same condition, as to his remedies and the periods of limitation applicable thereto, as the vendor, had he retained possession of the note and lien, with this exception, that as his lien rests upon the legal title to the land in the vendor and not in himself, he could not maintain an action for the possession thereof. Erom the above observations, we deduce the conclusion that the appellant had two remedies; one upon his note, and the other by virtue of his lien, and that, while the limitation, applicable to the former, was five years, the limitation applicable to the latter was seven, and that, though his action upon the former may be barred, he could have two years longer to bring his action by virtue of the latter. Smith et al. v. Robinson, 13 Ark., 533; Moore et al. v. Anders, 14 id., 628; Sullivan v. Hadley et al., 16 id., 144; Ewell et al. v. Tidwell, Ex'r, 20 id., 136; Guthrie v. Field, 21 id., 379.

In the case we are considering, tbe note and lien created by the contract of sale, matured January 1, 1861, and the action was instituted on the 3d of September, 1869, from which it appears that a period of more than seven years intervened between the accrual of the cause of action and the institution of tbis suit thereupon. Hence, tbe cause of action was barred, unless tbe complaint discloses facts sufficient to remove the bar. And this question we are now prepared to consider.

The complaint alleges that by virtue of a certain agreement entered into by Samuel M. McGfelree, who was agent for Thomas F. McGrehee and Blackwell, the vendee, and one of the demurrants herein, the latter made a payment on the note, on the 23d of April, 1863, and agreed in writing to make an additional payment, which he- failed to do. The date of this payment, formed a new point from which the limitation began to run anew. Ringo v. Brooks, 26 Ark, 540, and authorities there cited. Seven years had not elapsed from the date of this payment to the time of filing the complaint. The action, therefore, was not barred as to Blackwell, and the defendants wbo held the land under him, by tbe assignment of tbe title bond, on the 16th of October, 1866, could stand in no better condition than be. Among those who so held under him, were the other three demurrants, namely, Ward and Hughes, to whom and Emily P. Hughes, the title bond was assigned, and Powell, who -purchased the land from Ward and William Gr. and Emily P. Hughes.

The second cause of demurrer is, that the complaint does not show or allege that a deed was tendered for the land', or that the plaintiff offered to have one made.

That a deed must be tendered, not merely offered to be tendered, before action, brought, in suits at law for tbe purchase money due, where the consideration is the conveyance of the property sold upon payment of the purchase money, and the covenants between the parties are mutual and dependent, and that such tender must be alleged in the complaint, and if denied by the answer, proved by the evidence upon the trial, are rules well established and of general application. The reason for these rules is manifest and substantial. In such suits, if the plaintiff recover judgment for the purchase money, it must necessarily, from the nature of the tribunal, be unconditional or without terms. But the reasons for these rules, in actions at law, do not apply in actions in equity; for in the latter actions the court has full power to protect the vendee and to make the execution and deposit of a deed in the court a condition precedent to the enforcement of the decree, or to the rendering of the decree, or even to the hearing of the cause upon its merits; besides, the court has full power over the question of costs, and is justified in awarding any costs against the plaintiff which might have been avoided by a prior offer to perform on his part.

The foregoing, we think, are reasons sufficient to show that those rules in equitable suits should be relaxed or even disregarded altogether, according as the chancellor might find most promotive of the ends of justice. Nevertheless, the plaintiff should ordinarily, both before and upon bringing his action, observe them. But failing to observe them, he may be liable, as above hinted, for costs, even though successful in his suit.

In the case at bar, the deed, after demurrer interposed, was tendered in open court. Thus it seems that the plaintiff was not only willing and able to perform, but he performed his part of the contract, under the eye of the court; while, on the other hand, the defendants refused to perform their part of the contract and accept the deed, thereby putting themselves in default. Now, though the complaint did not allege a prior tender, or cause a prior offer to tender, we think it would not comport with equity to drive the plaintiff out of court remediless under such circumstances; and especially since the circuit court has it in its power to award any costs accruing in the case against him for his dereliction before bringing his-action. The tender in open court was sufficient, and the want of the allegation in the complaint of a tender or offer to tender was no ground of demurrer.

In fine, we are of opinion that the complaint states facts sufficient to constitute a cause of action, and that the circuit court erred in sustaining the demurrer; and, for this error, the decree is reversed and the cause remanded to be proceeded in according to law and not inconsistent with this opinion.


text:
    Lamar vs. Wilkins et al.
    Mandamus : When ineffectual, will not be granted.

      Mandamus will not be granted where it would be fruitless and ineffectual to afford the relief sought.
    PETITION for Mandamus.

      Garland & Nash, for petitioner.

      Montgomery, Attorney General, for respondents.
   Searle, J.

This is a petition for a mandamus against Wilkins and others, as registrars of Union county, filed on the 26th of January, 1870.

The plaintiff, after alleging in his petition such facts as to show that he is a qualified elector or 'voter under the law, states, that being found qualified as an elector, his name was placed in the registration books for his voting precinct in Union county by the president of the board of registration ; that afterwards without his knowledge, until after the adjournment of the board of review, his name was erased from said books by the defendants while sitting as such board, etc.; and he prays that a writ of mandamus issue against said defendants as registrars, etc., requiring and commanding them to place his name upon said registration books as a qualified voter, etc.

It has been well settled that a mandamus will not be granted where it would be fruitless and ineffectual to relieve the petitioner. Here we are asked to grant a mandamus against registering officers whose terms of office have expired (they were commissioned in 1870, and held two years under the provisions of the law); whose books are now forever closed, and whose lists of voters, made by them in 1870, cannot now be used by officers of elections in ascertaining the persons legally qualified to vote. It is unnecessary to consider the sufficiency of the grounds as set forth in the petition upon which the mandamus is asked ; for the granting of it now would be clearly unavailing in affording the petitioner the relief sought, even if it were a proper case in other respects for the issuance of the writ. For this reason mandamus is refused and the petition dismissed.


text:
    Isbell et al. vs. Epps et al.
    Executions ekom Justices: On, what a lien, and when commences.

    An execution on a judgment rendered by a justice of the peace is a lien on all goods and chattels of the defendant in the execution( within the limits of the township to which the execution was direct ed, from the time of its delivery to the constable.

      APPEAL from White Circuit Court.
    Hon. S. F. Clark, Special Judge.

      S. W. Williams, for appellants.
   Bennett, J.

This action was instituted to recover the possession of a bale of cotton, said to have been wrongfully detained from the appellee by the appellants. Appellants pleaded non deíiñet, and the cause was submitted to the court sitting as a jury. Judgment was rendered in favor of appellee, and damages assessed at $187.60. The motion for a new trial was overruled, and appeal granted.

The agreed statement of facts, as far as is necessary to decide the points before us, are as follows: Humphries, one of the appellants, was a constable in White county, and had an execution in his hands, issued by a justice of the peace, against •one Montgomery. On the 27th of July, 1866, Montgomery executed to appellees a mortgage on a crop of cotton, which mortgage was recorded on the 3d day of July. The execution was in the hands of the constable before the mortgage was made. Afterwards, the constable levied on a bale of cotton, a part of the cotton crop previously mortgaged to appellees, and sold, and bought by Isbell, one of the appellants, and claimed by appellee by virtue of their mortgage. The sale under the execution took place on the 1st day of December, 1866.

The court declared the law to be, that an execution from a judgment of a justice of the peace, in the hands of an officer of the proper county, is not a lien upon personal property until it is levied thereon.”

In determining the rights of the parties to the suit, the only question was, which had priority of lien ; the execution in the hands of the officer, though not levied, or the mortgage, which was executed afterward.

At common law, the writ of fi.fa. bound the chattels of the defendant from its teste. 3 Bouv. Inst., 573, 574; Archb. Civ. Pl., tit., Execution; 1 Hay (N. C.), 396; 2 id., 57; 2 Hawkes, 232; 3 id., 296. As this had the unjust effect to overreach and defeat sales made even before the writ was delivered to the sheriff, it was remedied by the statute of the 29 Charles I, which made the writ binding from the time of its delivery to the sheriff to be executed.

Under our statute (Gould’s Dig., secs. 35, 36, p. 505), which is nearly a copy of the English statute, an execution becomes a lien upon the personal property of defendant, and the real estate to which the judgment lien does not extend, from the time the writ is delivered to the officer in the proper county to be executed. And whenever the execution is placed in the officer’s hands, the lien commences by presumption of law, the execution thereof is commenced, and it being an entirety, must be consummated. Pettit et al. v. Johnson et al., 15 Ark., 55; Davis v. Oswalt, Ex'r, 18 id., 414; James v. Marcus et al., id., 421.

It may be contended that the general law on the subject of execution, as cited in the above sections of Gould’s Dig., giving or rather restricting the lien to the time of the delivery to the officer, is only applicable to executions issuing from the courts of record, and that statutes relative to proceedings of courts of record are not to be construed so as to extend to courts of limited or inferior jurisdiction.

A writ of execution is a final process in a suit at law; its purpose being to obtain the fruits of the remedy, and to put an end to the proceeding. In general, an execution in a civil case before a justice of the peace is to be issued; its form and requisitions are to be drawn; it is to be directed to the prescribed officer; served and carried into effect, and a return made thereof, strictly in conformity with the provisions of the acts of the general assembly. An execution cannot be issued by a justice of the peace unless it be expressly or impliedly authorized by statute. It is to be considered, however,* that there are certain general principles and rules of law relative to writs of execution issued by the courts of record, and the proceedings thereon, which are applicable to similar process, under the jurisdiction of a justice of the peace. In the examination of the acts creating justices’ courts and defining jurisdiction, there will be found an analogy running between them. There is an analogy which governs in respect to the nature of personal property, as distinguished from real estate; property in possession as distinguished from choses in action, bailments, exemptions, the mode of making a levy, the control of the officer over goods and chattels levied on; the title of the purchaser to property sold on execution; the arrest and commitment of a party, and other incidental matters and particulars.

Chief Justice Savage in the case of Pixley v. Butts, 2 Cow., 421, says: “ The same rules of law which govern sheriffs in the execution of process from the higher courts, govern constables in the execution of a justice’s process, in analogy to the former, except where some statute intervenes.”

Under our statute a party in whose favor any judgment, order or decree is or shall be rendered, made by a court of record, may have an execution in conformity with such judgment, order or decree. Such execution shall be a fieri facias against the goods, chattels and real estate of the party against whom the judgment, order or decree shall have been rendered. Gould’s Dig., secs. 1, 2, p. 499, 500. The form is provided and set out in full in section 6, p. 500. This is the execution provided for in a court of record.

Section 141, ch. 99, Gould’s Dig., says : “ Upon any judgment rendered by a justice of the peace, execution shall be issued by such justice in manner hereinafter prescribed at any time on demand.” Secs. 146, 147, say: “The execution shall be directed to the constable of the township where the justice resides. * * * Such execution shall be against the goods and chattels of the persons against whom, the same is issued.” Sec. 149 prescribes the form. The form of an execution, as provided by statute, is in substance, the same in justices’ courts as in courts of record, except the execution from a justice only reaches the goods and chattels, while executions from courts of record reach “goods, chattels and real estate.” An execution from a court of record is directed to the sheriff of the county; an execution from a justice’s court is directed to the constable of the township where the justice resides. It may also be remarked that some of the provisions of the execution law have always been held applicable to executions from justices’ courts. There is nothing in the law relative to those courts, which exempts any property of the defendant from execution, yet it has never been questioned that property exempt by the general law relative to executions is also exempt from levy and sale under executions issuing from justices’ courts.

By these comparisons we are led to believe that executions issued from a justice’s court are executions with the same power as though issued from a court of reorrd, limited only by the statute as to the extent of territory and the kinds of property over which their lien may extend. As to the territory over which the lien may extend, justices of the peace and constables are township officers. While it may be true that justices of the peace have jurisdiction co-extensive with the county, yet, they are not authorized to act judicially in the bearing and determining of causes beyond their respective townships. Humphries v. McGraw, 5 Ark., 64. A constable is purely a township officer, yet, in certain cases, may execute civil process throughout the county. But these cases are exceptional in their nature, and while acting officially out of the township in which they were elected, are virtually, under our statutes, but constables of the township in which for the time being they are acting. The general tenor of our statutes creating the office of justices of the peace and constables, and defining their jurisdiction, clearly demonstrates the fact that they are but township officers, and any lien created by judgments rendered or executions issued by justices of the peace, cannot be held to extend beyond the limits of the township in which they were rendered or issued. This view is aided by the fact that sec. 152, ch. 99 of Gould’s Dig., requires the justice, when the defendant resides out of the township where the judgment was rendered, or that he has not sufficient goods and chattels therein to satisfy such judgment, the justice shall issue the execution to the constable of the township, where the defendant or his goods and chattels may be.

In the examination of questions as presented by the declarations of law made by the court below, we have been unable to find but two authorities in point; one in New York (Wylie v. Hyde, 13 J. R.), the other in Missouri (Brown v. Burns, 8 Mo.). In the New York case, Judge Yates says: “ The time of making the levy only can control the right to the property, and that alone can create the lien; it then, and not before, is properly in custody of the law.” Justice Scott, in the Missouri case says, in commenting on the Wylie v. Hyde case: “ The court did not deny the existence of the lien prior to the levy, on general principles, but inferred its nonexistence from its incompatibility with other statutory provisions.” We have been unable to find what the statute of New York says directly as to the commencement of the lien. Justice Scott further says: “The extent of the jurisdiction of justice’s courts would disincline us to the opinion that the legislature intended taking away the lien of the execution. Why should the suitors of some courts have so great an advantage over others ? The practical construction of the law has been, that the lien existed from the delivery of the writ to the constable.”

The statute of Missouri on executions is similar to our own, and while the time is not fixed by statute for the beginning of the execution lien in the hands of a constable, the decision in the above case has declared the law of Missouri to be, that an execution hen issued on a judgment rendered in a justice’s court begins when the execution is placed in the hands of the constable, and extends to the goods and chattels of the defendant in the execution within the limits of the township to which it was directed. We have very few, if any, decisions as to what the common law in this country is, because the subject is, in most of the states, regulated by express statute. Thus, in New York, the statute of the 29 Charles is reenacted expressly. Ray v. Burdridge, 15 Denio, 624; 12 Johns., 403. So in Indiana, 7 Blackf., 501; 4 id., 496; 4 Ind., 255. So in Illinois, 13 Ill., 20; 22 id., 93. So in Kentucky, 1 Litt. St., 540; 4 Bibb., 31; 2 J. J. Marsh., 421. So in Florida, 4 Fla., 126; and Maryland, 3 Md., 99; and Alabama, 12 Ala., 71; id 247; 18 id., 387. In Missouri, as between two officers, the first levy holds, though the writ was delivered last. 9 Mo., 492. In California, Ohio and Iowa, by statutes, the lien is from levy only. In North Carolina, where the common law as a body is adopted, the lien is from the teste. 8 Ired., 63, and cases supra. And Tennessee follows North Carolina. 9 Humph., 91; 1 Swan, 304. In New Hampshire, he whose execution was in the hands of the officer first, was entitled to the proceeds. 6 N. H., 70. In New Jersey, the priority according to circumstances is regulated by statute. In Connecticut, no title to lands is acquired until levy and record of levy made in clerk’s office. 5 Day,, 160; 8 Conn., 538. In Georgia, the statute creating the lien is that the property of the defendant is bound from the signing of the first judgment. 26 Ga., 287. In "Wisconsin, a sheriff, having two executions in his hands against the same party, is bound to levy and satisfy them according to seniority in his hands. 18 Wis., 406.

All of the above decisions relate to executions in the hands of the sheriff, and issued from a court of record, and only by analogy would be applicable to constables with executions in their hands from justices of the peace courts. Wo are then left to conclude that a justice of the peace execution in the hands of a constable is a lien from its teste as at common law or only from delivery to the officer. We do not feel bound to adopt the unreasonable and unjust rule of the ancient common law — so unjust, indeed, that it had to be remedied by statute, and in fact we think it would be more in accord with the policy of our laws, and would harmonize with decisions on kindred subjects, were we to hold that the lien did not begin until actual levy. The whole current of judicial decisions has been most wisely against secret constructive liens, especially when these are set up against purchasers. Y et we are unable so to declare the law as it was in Gould’s Digest, and under which the decision is rendered, as this cause of action accrued before the adoption of the code; but we are •of opinion that the execution was a lien on all goods and ■chattels of the defendant in the execution, within the limits of the township to which the execution was directed from the time of its delivery to the constable.

Judgment reversed, and the cause remanded for a new trial.


author: Gregg, J.

text:
    Coffee vs. Gates & Bro.
    Practice : Service of summons by unofficial person, etc.

    Under section. 65, Code of Practice, an unofficial person may be authorized to serve process; but, to make such, service binding, the correctness of the return must be verified by the oath of the party making the same. The mere recital, in the formal part of a judgment or decree, that the defendant was legally served with notice, is not a necessary part thereof; the record made by the official indorsement of return upon the writ is the proper evidence of due service, and, when it appears from such return that no sufficient service has been had, the court acquires no jurisdiction of the person of the defendant.
    APPEAL from Prairie Circuit Court.
    Hon. John Whytock, Circuit Judge.

      Clark & Williams, for appellant.

      A. H. Garland, for appellees.
   Gregg, J.

On the 29th of February, 1872, the appelleés filed their complaint in equity to enforce a trust deed upon certain personal property, alleging the indebtedness of the appellant; the due execution of the trust deed; the lapse of time, and the failure to pay; and that the trustee had refused to execute the trust, etc.

At the return term, the record states that the complainants came by attorney and the defendant came not, but made default, and the cause came on for hearing, upon the bill and exhibits on file, etc. And it further appearing that said defendant has been legally served with notice of the pendency of this action, but has wholly failed to appear and answer, and the court being well advised what judgment to render, etc., decreeing against appellant. After which, the appellant appeared and filed his motion to set aside the decree by default, as he alleged, because the plaintiffs did not show a cause of action ; second, that the decree was not according to law; and, third, that the court had no jurisdiction of the cause or of the person of the defendant, and that he was not properly before the court.

It appears from the return upon the summons, that McClintock, the sheriff of the county, by written indorsement, authorized Kirby E. Penfield to execute the writ. Then follows a formal indorsement of an ordinary return, signed EL E. Penfield, but not verified by affidavit or otherwise authenticated.

Section sixty-five, of the Code of Practice, provides that a summons may be served “by any person appointed by the officer to whom the same is directed, by an indorsement on the summons, whose affidavit indorsed thereon shall be proof of the time and manner of the service.”

This law is a departure from the former practice acts, wherein it confers upon the sheriff authority to cause an unofficial citizen to execute process of the court, and it cannot be presumed that the legislature ever intended that the service of a summons should be binding if the party who made such service was bound by neither oath nor bond for the correctness of his return. McMillan and Wife v. Reynolds, 11 Cal., 378; 6 How. (Miss.), 664; 1 S. & M., 595; 1 Scam. (Ill.), 127.

The formal part of the decree, as entered up by the clerk, recites that the defendant was legally served with notice, etc., but a recital of service was not a necessary part of the decree ;■ the record made by the official indorsement of return upon the writ was the proper evidence of due service, and where it appears from such return, as in this case, that no sufficient service has been had, the court does not acquire jurisdiction of the person of the defendant. If counsel had directed the attention of the court to this fact, the return could have been amended, if Penfield would have made affidavit to the truth of his return; without this, the appellees should not have aslced, nor should the court have rendered, a decree against the appellant.

The decree of the Prairie circuit court must be reversed and the cause remanded; and the appellant, who is now in court, must be allowed to answer if he desires so to do.


text:
    Meyer vs. Quartermous, Adm’x, etc.
    Administrators : When limitation pleaded by, ete.

    Under the code of practice, when courts can exercise equitable and legal jurisdiction, the plea of the statute of limitation by an administrator, in a suit founded on a cause of action accruing in the lifetime of his intestate, fraudulent conversion and concealment by the intestate may be given in evidence in answer to the plea of limitation.
    Same : Claims must be presented to, for allomante.

    Before a creditor can apply to the probate court to allow and class his claim against the estate of a deceased person, he must present it to the administrator for allowance; and upon his refusal to allow the claim, give due notice of his intended application to the probate court.
    APPEAL from Arkansas Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      Rose & Green, for appellant.
   Gregg, J.

On the 11th of October, 1871, the appellant presented to the appellee, as the administratrix of the estate of John G. Quartermous, his account for two hundred and twenty dollars, duly verified, which claim she refused to allow. The account was then presented to the court of probate for allowance and classification. The record recites that she waived notice and the case was continued. At the next term, she appeared and filed an answer containing three paragraphs : First, that neither the deceased, in his lifetime, nor his estate was indebted to the appellant; second, that the deceased did not undertake and promise to pay the appellant the sum demanded, within three years next before the commencement of this action; third, that the appellant did not serve the appellee with a copy of the account sued on, at the time of exhibiting the same for allowancej or at any time thereafter.

Issues were formed ; the court found for the plaintiff, and rendered judgment for two hundred and eleven, dollars and costs, from which an appeal was taken to the circuit court.

The cause was submitted to that court sitting as a jury, and a finding and judgment for the appellee. The appellant filed his motion for a new trial, which was overruled, and he filed his bill of exceptions setting out all the evidence, etc., and appealed to this court.

The bill of exceptions shows that it was proven that, in April 1861, the deceased said he had received, from this appellant, a 160 acre U. S. Land warrant and ten dollars in cash. That afterwards, in 1863, he received ten dollars in. cash to pay taxes on the lands which he had entered with the warrant for appellant. After deceased’s death, no lands could be found entered in appellant’s name; and a demand was made on his representative for the land warrant or its money value. That the account was made out and presented to the administratrix’s attorney, who said he would see her and advise her to reject the claim; and witness understood from the attorney that he would keep the account, and they would waive a copy of the account “ as required by law, and also waive notice and appear in the probate court and resist the allowance of the claim.”

Several witnesses were asked wbat such land warrants were worth in 1861. Johnson testified that they were worth $1.25 per acre in Mississippi, but no witness could say what they - were worth in Arkansas. Upon this pleading and evidence, the court found that the deceased in 1861, received from appellant, the land warrant and ten dollars, and in 1863, ten dollars in addition, and that he was to locate the warrant in the state, and that he had said it -was located in Arkansas county, but no such entry appeared on the books of the county, but for want of proof as to where the location was tobe made, and of the value of the warrant in Arkansas county in 1861, the finding was for the defendant.

Counsel here insists that this finding was clearly erroneous, and that the judgment should be reversed.

It may be true that the proof of the value of land warrants in an adjoining state, which evidence was made without any objection, might show that such warrants had a value, and if not altogether satisfactory as to their true value in Arkansas county, yet, if the appellee, as in this case, made no objection to such proof of value, it might show the appellant’s right to recover; and for the $10 paid over in 1861, and a like sum in 1863, there was a fixed liability to that extent.

If this was the whole case; if all rested upon the nonassumpsit paragraph, the appellant might urge a reversal. But there was an issue on the'plea of three years limitation, and also upon the one denying that a copy of the account had been furnished the administratrix.

As the code of civil practice, sec. 123, requires no replication to an answer, it is urged here, that the deceased was a trustee, and that a fraudulent conversion of the land warrant and concealment thereof could be given in evidence in answer to the plea of limitation; and under the code practice, where courts can exercise equitable and legal jurisdiction, such seems to be allowable. Wal. (U. S.); 4 Black, 80; 1 McLean, 85; 5 Mason, 143; 3 Mass., 201; 9 Greenl. (Me.), 131; 8 Foster (N. H.), 260. On the other issue, the appellant not only failed to show that he furnished the administratrix with a copy of the demand against the estate, but affirmatively shows that he did not, and he seems to rely on what he supposed her attorney would waive, without ever even going to see her; this was certainly not sufficient. A want of such copy may be set up in defense. Borden v. Fowler, 14 Ark., 471; Grimes v. Bush, 16 id., 647; Grimes v. Boothe, 19 id., 224.

In this case we cannot hold that this defense was waived, because the first action taken by the appellee, after entering an appearance, was to file her answer in which this defense was set up. While we are clear that the appellant cannot recover in this action, he may not be remediless, as the records of the government land office certainly show the location of land warrant No. 89,520, which was placed in the hands of John G. Quertumous for appellant’s use.

Upon the whole record now before us, the judgment must be affirmed.


author: English, Sp. J.

text:
    Cooper vs. Green et al.
    Cooper sold lands to be paid for in cotton, by three installments, and took three separate cotton notes therefor, due respectively, 1st January, 1871,1st January, 1872, 1st January, 1873; upon cond tion that if Green (the vendee) should fail to pay either one of the installments as they respectively fell due, the vendor reserved the right and authority to re-enter the premises after the expiration of twelve months from the time the vendee should fail to pay either one oí the installments of cotton as specified; and in case of re-entry by the vendor, any payment that may have been made by the vendee should become forfeited; and the vendor, also, reserved a lien upon all cotton that might be raised on the premises for the term of four years, until the installments were respectively paid.

      Before either of the installments became clue, Green conveyed to one Anderson, in trust for Foster, Kealhofer & Vo., the said lands and the crop grown on a part of the place, to secure advances made and to be made. The lands were sold, under the deed of trust, January-21, 1871, and purchased by Foster, Kealhofer & Co. Cooper brought bill February 9, 1871, to enforce a vendor’s lien, praying judgment for the whole of the cotton; that the same be declared a lien; that the lands be sold, and a receiver be appointed. On demurrer to bill, 1st. Because there was no cause of action at the time of the commencement of the suit; 2d. There was no breach of the condition of the deed; and, 3d. That the right of action to foreclose did not arise until 1st January, 1872: Held, That the trustee and the purchasers at the trust sale, took the lands charged with lien of Cooper for the purchase money; that Cooper had a lien upon the cotton crop produced upon the lands; that the trustee took the deed of trust upon the crop of 1870, subject to the vendor’s lien. 2d. That the bill, as framed, did not make such a case of waste, as would warrant the appointment of a receiver to take possession of the lands. 3d. That the bill was prematurely brought for the relief prayed.
    APPEAL from Phillips Circuit Court.
    Hon. M. L. Stephenson, Circuit Judge.

      A. H. Garland, for appellant.

      Palmer & Sanders, for appellees.
   English, Sp. J.

The bill in this case was filed on the chancery side of the circuit court of Phillips county, by Duncan B. Cooper, against John W. Greer and Foster, Kealhofer & Co., to enforce a vendor’s lien, etc. The deed from Cooper, the vendor, which is the basis of the controversy, is in substance as follows : This deed made and entered into, on the 16th day of February, 1870, by and between Duncan B. Cooper and wife, Florence, parties of the first part, and John W. Greer, party of the second part; all of the county of Phillips, etc., witnesseth, that for and in consideration of five hundred bales of lint cotton, weighing each four hundred pounds, to be nicely handled and neatly put up, and all to be good merchantable cotton, of the classification of low middling, according to the classification at Helena, Arkansas, the said cotton to be delivered by said party of the second part to the said parties of the first part as follows : one hundred and twenty-five bales on the 1st of January, 1871; one hundred and twenty-five bales on the 1st of January, 1873, and one hundred and twenty-five bales on the 1st of January, 1871; the cotton to be delivered on the 1st of January, 1871 and 1872, is to be delivered on the premises hereafter described, and the balance to be delivered in Helena, etc., to the parties of the first part or their agent; the said parties of the first part have this day bargained, granted, sold and conveyed, and by these presents do grant, bargain, sell and convey unto the said party of the second part, the following described lands, etc., situate in the county of Phillips, etc. (here follows a description of the lands. 720 acres), to have and to hold, with all and singular the appurtenances, etc., unto the said party of the second part, and to his heirs and assigns in fee simple forever. But this deed is to be void on this condition, that is to say, if the said party of the second part shall fail to pay to the said party of the first part, either one of the installments above described as they respectively fall due as aforesaid, in which event the said parties of the first part hereby reserve to themselves the right, power and authority to reenter upon the premises above described after the expiration of twelve months from the time that the said party of the second part may or shall fail to pay either one of the installments of cotton as above specified, and •in case of reentry by the said parties of the first part, any payment that may have been made by the party of the second part to the said parties of the first part, shall become forfeit; and it is hereby expressly agreed between the parties to this deed, that a lien is hereby reserved in favor of the parties of the first part, on all the cotton that may be produced on the premises above described, for the term of four years following the date hereof, until they are paid the installments respectively above stated, and to insure said lien, none of the cotton shall be removed from said premises, until the payments aforesaid shall be respectively paid.”

The deed was signed by Cooper and wife, etc. The bill was filed on the 9th of February, 1871. It sets out the contract of sale, recites the provisions of the deed and makes it an exhibit. Avers that, at the time the deed was made, Greer executed to Cooper four cotton notes for one hundred and twenty-five bales each, according to the stipulations of the deed, the first payable the 1st of January, 1871, and the others annually thereafter. The notes were exhibited. The one first due is as follows:

“ On or before the 1st day of January, 1871, I promise to pay to the order of Duncan B. Cooper, one hundred and twen. ty-five bales of lint cotton, of the class of low middling, according the Helena, Arkansas, classification; said bales to weigh not less than 400 pounds each, and be delivered on the plantation in this county (Phillips county, Arkansas), known as the Lucius Polk place, and the payment of this note is secured by deed of trust of this date, February 15, 1875.” Signed by Greer. The other three notes were similar inform.

The bill further alleges that after the execution of tbe deed and notes, and on the 22d of April, 1870, Greer and one Standifer, by their deed of trust of that date, conveyed to one J. Monroe Anderson, as trustee for Foster, Kealhofer & Co., said lands, and the crops grown thereon, for the year 1870, and the crops grown on the Miller place, about 115 acres, to secure the payment of the sum of $800, then advanced, and any farther advances to be made by them. This trust deed is made an exhibit.

The bill further states, that plaintiff Cooper did not know and had no means of ascertaining what sums were advanced by Foster, Kealhofer & Co., to Greer and Standifer, but that Anderson, as such trustee took possession, and disposed of a part of said crops, but plaintiff did not know what sums were realized from the sale thereof. That the trustee, under and by virtue of the authority contained in said deed of trust, advertised the lands sold by Cooper to Greer for sale, and, on the 21st day of January, 1871, sold them at public auction to Foster, Kealhofer & Co., and that they were claiming possession of the lands, and were endeavoring to rent them for the year 1871. That plaintiff had received nothing for the lands so sold by him as aforesaid. That no part of the five hundred bales of cotton agreed to be paid and delivered to him by Greer, had been paid or delivered to him. That the value of the 125 bales of cotton which were to have been delivered to him, on the 1st day of January, 1871, was the sum of $6,500, and the value of the 500 bales is the sum of $26,000, which is wholly unpaid, and which it is impossible for said defendant Greer to pay, since he has lost possession of said lands. That the plaintiff has a vendor’s lien on said lands to secure the payment of said money so due as purchase money on said lands to said plaintiff. That said lands are not now of more than $21,000 in value, and, if exposed to sale, will not bring the sum due to plaintiff. That the defendant Greer is insolvent, and has no property subject to execution, and defendants, Foster, Kealhofer & Co., are nonresidents of the state of Arkansas. Therefore, plaintiff prays that he may have judgment for the value of said five hundred bales of cotton; that the same may be declared a lien on said lands, and said lands may be sold to satisfy and pay said judgment; that a receiver may be appointed to take charge of said property, and rent the same, and hold said rents subject to tbe payment of the debt due to tbe plaintiff, or any balance that may remain after said lands are sold, and that plaintiff may have such other relief as the nature of the case may require.”

On the 9th of February, 1871, the day on which the suit was commenced, the bill was presented to the circuit judge, at chambers, who appointed a receiver, and directed him to take charge of the lands, rent them out, and hold the rents subject to future orders of the court. At the May term, 1871, Foster, Kealhofer & Co., demurred to the bill, on the following grounds: 1. The complaint shows on its face that there was no present cause of action at the .time of the institution of the suit. 2. There had not been a breach of the condition of the deed at the time of the institution of the suit. 3. The right of action to foreclose under the deed in this cause would not arise until the first day of January, 1872, and the suit was brought on the 9th of February, 1871.

The court sustained the demurrer on the first cause assigned, dissolved the injunction, as the record entry states, and directed the receiver to account to Foster, Kealhofer & Co., for the rents and profits of the lands for the year 1871, and the plaintiff declining to proceed further in the cause, the bill was dismissed. Cooper appealed to this court.

The question arising in this case may be considered in two aspects:

1. The deed from Cooper to Greer may be regarded as having vested in the latter an estate in the nature of a common law estate upon condition.

2. Cooper’s lien upon the land, and upon the crops to be produced upon it, under the provisions of the deed, may be regarded as in the nature of a mortgage.

1. An estate upon condition may, in general terms, be defined to be one which may be created, enlarged or defeated by the happening or not happening of some contingent event. A condition is a qualification or restriction annexed to a conveyance, and so united with it in the deed, as to qualify or restrain it. Conditions are precedent or subsequent.

Conditions precedent are, as the term implies, such as must, happen before the estate dependent upon them can arise or be enlarged, while conditions subsequent are such as, when they do happen, defeat an estate already vested. Here, Greer took the estate in fee, subject to be defeated by his failure to perform a condition subsequent — in other words, by his failure to pay for the lands in the manner, and at the time stated in the deed. The deed was, by its terms, to be void on the condition that he failed to pay Cooper either one of the cotton installments specified in the deed, as they respectively fell due, and he was also to forfeit any payment he had made, on. such failure. But the deed fixed and limited the time at which Cooper was to claim the benefit of the forfeiture, by reentering upon the lands, and that was after the expiration of twelve months from the time Greer might fail to pay either one of the cotton installments, and in case of reentry, any payment that had been made was to be forfeited. By the common law, the only mode of taking advantage of a breach of a condition which had the effect to defeat or work a forfeiture of an estate, was by an entry, upon the principle that it required as solemn an act to defeat as to create an estate. And when such entry had been made, the effect was to reduce the estate to the same plight, and to cause it to be held on the same terms, as if the estate to which the condition was annexed . had not been granted. But the right to claim the forfeiture, on the failure to perform the condition, may be waived by him who has the right to assert it. 2 Washb. on Real Prop., p. 2 to 24. No doubt, under the provisions of the deed in question, Cooper had the right, on the common law principles* after the expiration of twelve months from the time the first cotton installment fell due, Greer having failed to pay it, to claim the benefit of the forfeiture, and assert it by an entry upon the lands. Arid so he had the right to -waive it, and resort to a bill to foreclose for so much of the purchase money as was due and unpaid, or to adopt any other appropriate legal remedy to secure his rights, for courts of equity do not favor such forfeitures, and will relieve against them upon a proper showing by the vendee that he has been unavoidably prevented from performing the condition. Id., p. 17; Atkins' Admix v. Rison, 25., Ark., 138. But in this case the first cotton note was not due until the 1st of January, 1871, and, at the time the bill was filed, 9 th of February, 1871, Cooper had no right of entry, the time limited in the deed for him to claim the forfeiture, or to waive it, not having transpired.

2. We have above treated the estate taken by Greer, under the deed from Cooper, as if a technical common law estate upon condition. We will now treat the question as if Greer was a mortgagor and Cooper a mortgagee, under the provisions of the deed. On the face of the deed, it appears that the lands were sold by Cooper to Greer entirely upon credit, the price to be paid by four annual installments in cotton. Cooper had a lien upon the lands, and expressly, by a provision of the deed, upon the cotton crops to be produced upon them — their fruits — for the payment of the installments. This lien was in the nature of a mortgage. An estate created by a mortgage is not, technically, a common law estate upon condition, and yet the estate of the mortgagee is an estate upon condition, subject to be defeated by the performance of the condition by the mortgagor or his assigns. 1 Wash, on Real Prop., 19, 36. If the mortgagor, etc., pays the debt secured by the mortgage within the time limited, the estate is defeated. Id. If there had been no provision in the deed before us, except that the lands were to be paid for by installments, Cooper could have filed his bill to foreclose on the maturity of the first installment, and taken his decree for the sale of so much of the lands as was necessary to pay the installments. 2 Hill on Mort., 189, etc. Under what circumstances the court might extend the decree to a foreclosure for the installments not matured, need not be stated in'this case. But, under the provisions of the deed, Greer was manifestly entitled to the possession of all of the lands for twelve months after his default to pay the first installment on its maturity. Before the expiration of that time, after the default, Cooper could not make an entry upon the lands; he could not dispossess Greer by ejectment, nor by a sale of any part of the lands under a decree of foreclosure for the matured installment. He had placed this limitation upon his rights and remedies in the deed. The default to pay the first installment occurred the first of January, 1871, the bill was filed on the 9th of February following, and prayed a foreclosure and sale of the lands for all of the installments, when the time had not expired, under the limitation contained in the deed, for Greer to be dispossessed of the lands, or any portion of them, by decree and sale even for the matured installment. The bill for decree and sale was therefore prematurely brought. Mooney v. Brinkley, 17 Ark., 358-9.

8. But it is insisted by the counsel for the appellant that the bill was well brought as a bill praying the appointment of a receiver to take charge of the lands, and hold the rents and profits, subject to the payment of the purchase money, on decree of foreclosure, etc. Where the mortgagor, or one holding under him, who is entitled to the possession of the lands until default, as in this case, is committing or permitting waste, the mortgagee may bring a bill for injunction to stay waste, or have the property placed in the hands of a receiver, on a sufficient showing. Wash, on Real Prop., 2d vol., p. 149, sec. 28; Mooney v. Brinkley, ub. sup. So the Code provides: “In an action by a mortgagee for the foreclosure of his mortgage and the sale of the mortgaged property, a receiver may in like manner (as in the preceding section) be appointed when it appears that the mortgaged property is in danger of being lost, removed or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgaged debt.” p. 106, ch. 5, sec. 824.

Now, what are the grounds alleged in the bill for the appointment of a receiver ?

First, that Greer had, in April, 1870, made a deed of trust on the lands, and the crops grown thereon for that year; that the lands had been sold by the trustee and purchased by Poster, Kealhofer & Co., and that the trustee had also taken possession of and disposed of part of the crops. There was nothing in the deed limiting the alienation of the lands. The circumstance of an estate being subject to a condition does not affect it,s capacity of being aliened, devised or descending in the same manner as an indefeasible one, the purchaser, or whoever takes the estate by devise or descent, taking it subject to whatever condition is annexed to it. 2 Wash, on Real Prop., p. 19, sec. 24 and cases cited. The trustee, therefore, and the purchasers at the trust sale, took the lands charged with the lien of Cooper for the purchase money. Cooper had also a lien upon the cotton crops produced upon the lands. The trustee took the trust deed upon the crop of 1870, subject to Cooper’s lien. At the time the bill was filed he had, as the bill alleged, disposed of part of the crop. He had taken no step, in the meantime, so far as the bill shows, to preserve and enforce his lien upon this cotton, nor did he ask, in the bill, any relief as to any portion of the crop of 1870 that may have remained undisposed of. He merely asked that the lands be placed in charge of a receiver, to be rented out, and the rents held subject to the payment of his debt, ete.

/Second. The bill also all eges that Eoster, Kealhofer & Co. were claiming possession of the lands, etc., for 1870. Well, they had the right to the possession of the lands until the 1st of January, 1872, the time fixed in the deed for Cooper to claim the forfeiture and enter upon the lands; and they had the right to rent them out, subject to Cooper’s lien upon any cotton that might be produced upon them. If the bill had gone further, and alleged that the lands would remain idle or be leased to persons who would not cultivate them in cotton, and that Cooper would thereby be deprived of one of the sources out of which, under the provisions of the deed, his debt was to be paid, and one upon which he doubtless relied in making the sale of the lands, there might have been some grounds for the court of equity to interpose and place the lands in the hands of a receiver to preserve the rents for his benefit, in connection with the other averments, that Greer was insolvent, that Eoster, Kealhofer & Co. were nonresidents, and that the lands were not worth his debt.

We think the bill did not, as framed, make such a case of waste as would warrant the appointment of a receiver to take possession of the lands. That the bill was prematurely brought for the other relief prayed, we have stated above.

The decree of the court below must be affirmed.

Stephenson, J., being disqualified, did not sit in this case.