text:
    Lewis vs. Faul.
    Attachment: Judgment ly defmlt against a garnishee.

    It is error to render judgment by default against a garnish.ee, without proof, or on examination of him.
    APPEAL from Pulaslci Circuit Court.
    Hon. John Whttock, Circuit Judge.

      Yonley & Whipple for appellant.
   Williams, Sp. J.

Appellee brought suit in the Pulaski circuit court by attachment against W. B. Ragland, wherein appellant and one Lewis, who was not served with process were summoned as garnishees, being named as such in the writ. Appellant and Ragland were served with process. Judgment was rendered against Ragland in the principal case, and .judgment by default was rendered against appellee for the full .amount of the principal judgment, without answer, compulsory process to compel a discovery, or proof of the amount he owed Ragland, or that he owed him any thing. The record states that he failed to appear, or answer, and for that reason, proceeds .to judgment against him. This was the practice before the code was adopted. But this suit was instituted after the ■code went into effect, and wherever it established a rule of practice in the courts, it was not cumulative, but exclusive, by its express provisions. Therefore we must look to the civil code for the rules to guide us to our conclusions. Sec. 220, civil code, provided the mode of service on a garnishment; •sec. 245 provided for the manner of appearance; sec. 246 provided for the examination of the garnishee; sec. 247 provided for compulsory process to compel the garnishee to appear .and answer, and on default, provided that proof should be taken of any debt, or property owing, or held by the garnishee for the defendant, and authorized the court to make such orders in relation thereto, as if what is so proved had appeared •on the examination of the garnishee; sec. 248 provided, that the plaintiff, if not satisfied with the answer of the garnishee, might contest it in the mode pointed out, i e., by filing a complaint and issuing a summons against the garnishee. The remedy by attachment, and garnishment in connection therewith, to subject the property and credits of a debtor, wherein the defendant, at least temporarily, is deprived of the possession and control of his property upon the ex parte statement of plaintiff and without trial, is at best, an extraordinary and harsh remedy, in derogation of the common law, dependent upon positive legislation for its existence, and he who invokes it must follow the law, at least in substance.

Appellant at the time he was served, on reading the code, had a right, even if he owed nothing, to presume that nothing •would be proved against him ; and if plaintiff desired to examine him, he would take the steps to do it as directed by the code. There was nothing in the code to lead him to believe .that this judgment would be rendered without answer, examination, or proof, or that he would be made liable for another man’s debts.

Finding error in the proceeding of the Pulaski circuit court, in thus rendering judgment by default, against appellant, the same is reversed, and the case is remanded to said court with instructions to proceed therein as the law directs.

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


source: Caselaw Access Project

author: Williams, Sp. J.

license: Public Domain

text:
    Bailey et al. vs. Gibson et al.
    1. Chancery Jurisdiction: To render a decree for damages on an injunction bond.

    Under the statute a court of equity may, upon dissolution of an injunction, assess the damages and render a decree therefor against the plaintiff; and such assessment will be conclusive against the sure- - ties on the bond, but the court has no jurisdiction to render a decree against them.
    2. Practice in Supreme Court : Wherre there was no jurisdiction in the-court below.

    This court will review a chancery cause brought into it by appeal, whether the court below had jurisdiction or not.
    3. Stay Bond: When it creates a merger of the judgment.

    Under the provisions of the code, the execution of a stay bond merges; the original in the statutory judgment as to the defendants who; execute the bond, if not to all of them; but if the original judgment be void all the subsequent proceedings based thereon are equally so* and this rule will not operate.

      APPEAL from Boone Circuit Court.
    Hon. J. H. Huckleberry, Circuit Judge.
    Before the Hon. Hon. William M. Harrison, Judge.
    Hon. S. W. Williams and J. L. Witherspoon, Special Judges.
    On motion by appellees to dismiss the appeal.

      Brown & Ford, for appellant.

      TJ. M. Rose, contra.

   Williams, Sp. J.

In this case there was an injunction granted on a bill presented by one Hart, who sued as a citizen and tax payer of Boone county, for himself and others; and J. M. Bailey and about twenty others signed an injunction bond to defendants in the injunction suit, to wit, John J. Jones, sheriff and collector of Boone county; W. W. Jernigan, county judge; John C. Phillips, associate justice of the county court; J. W. Doubleday, county attorney; N. B. Cramp? clerk, and J. J. Thompson, commissioner of public buildings.

The suit was for an injunction to restrain the collection of taxes for a public building at Harrison, on the ground that the county site of Boone county had not been located legally there. The suit was brought by Hart as a citizen and tax payer in behalf of himself and others. The injunction bond was in the usual statutory form, binding the parties in the sum of one thousand dollars, to pay the damages which might be sustained by reason of the injunction, if it was finally decided that it ought not to have been granted. This bond was executed upon the granting of a temporary restraining order; afterwards it was ordered by the judge of the circuit court that a larger bond be filed, and in default, that the temporary restraining order be set aside; afterward, in term time, there is an order finally dissolving the injunction on this ground, and the case is continued for the assessment of damages. Hp to this point the cause is entitled:

“G. Hart et. al., Citizens and Tax Payers of Boone Co., Ark., plaintiffs, against J. J. Jones et al., defendants.” At a subsequent term appears in the transcript the following order under the following title: “ J. M. Bailey et. al., plaintiffs, No. 9, against Joseph K. Gibson et. al., defendants.” Now, on this day, this cause comes on to be heard for the assessment of damages, for which purpose this cause was heretofore continued, and the court, sitting as a jury, after hearing all the evidence in the case, and being sufficiently advised in the premises, doth find’ that Joseph K. Gibson, James 0. Nicholson, W. S. Allen, John .J. Jeffreys and' Thomas E. Layton of the firm of Layton & Jeffreys, Henry C. Green and John D. Edwards of the firm of Green & Edwards and Henry C. Green, are damaged in the sum of five hundred and forty-seven dollars, by reason of the injunction heretofore wrongfully granted in this cause. It is therefore considered that the said Joseph K. Gibson and the other above named persons (naming them) do have and receive of and from the bondsmen, J. M. Bailey (then follow the names of all the persons on the bond in the Hart case, in the order of their signing), the sum of five hundred and forty-seven dollars and eighty cents for the damage, etc.”

The proceedings were doubtless a continuance of the Hart case, which the coincidence of the names of the bondsmen and other statements in the record tend to establish. The record should have shown how and why the change of parties occurred.

This judgment was rendered against securities in an injunction bond immediately after assessing damages on dissolution of the injunction and was a part of the same, and was rendered on the bond against the securities.

The statute authorizes, on dissolution of an injunction, the court of chancery in which it is pending, to assess damages by jury or otherwise (Gantt’s Dig., 3482); and on this assessment to render a decree against plaintiff, because he is before the court and personally subject to its jurisdiction, and this assessment is conclusive against the security. Gantt’s Dig., sec. 8485.

But in the absence of a statutory provision, a court of equity could not take jurisdiction of the bond and render judgment on it. Hence the action of the circuit court of Boone county, in the above proceeding, was without jurisdiction and void. At law we would dismiss this appeal, and leave the parties to their appropriate remedy. Baxter v. Brooks, ante, p. 173.

In chancery causes the rule is different, because in such causes there is no other mode of invoking the superintending control of this court. It has been long settled in this court, that chancery causes shall be reviewed here on appeal, whether the court below had jurisdiction or not.

The appellees have pleaded in abatement of this appeal the existence of a stay bond which appellants had executed below, claiming that it had merged the judgment. This would be true under our code as to those of the defendants who signed the stay bond, if no more, and under the old ideas of common law unity prevalent before the code, would have merged the entire judgment as to all the original parties. But to have this effect, it was always necessary that there should be something to merge. This judgment being void, the execution was void and the stay bond a nullity. We do not have the stay bond before us, but presume ample relief can be secured against it by application to the circuit court of Boone county, which, in the exercise of that superintending control, which all courts ordinarily have over its juries and officers, will quash this stay bond, or any execution that might be issued upon it. We have before us the original judgment, and find no statutory provision authorizing a court of equity to render judgment against securities in an injunction bond, but that the remedy is adequate and complete at law. Fowler v. Scott, 11 Ark., 675; Scott v. Fowler, 14 id., 427; Hunt v. Burton, 18 id., 188 ; Lizer v. Anthony, 22 id., 465; Blakeney v. Ferguson, 18 id., 347.

Let the judgment of the Boone circuit court in this cause be annulled, vacated, and set aside, and a decree be entered here to that effect, with cost, leaving the defendants in the Hart suit to take such steps as they may see proper as to assessment of their damages against the plaintiff and collecting the same by suit at law on the bond.

Hon. E. H. English, C. J., and Hon. David Walker, J., disqualified in this case.


author: English, C. J.

text:
    Pettus & Glenn vs. Wallace et al.
    1. Tax Deed : When void.

    TJnder the provisions of sec. 118, ch. 148, Gould’s Dig., a tax collector was required to sell each tract of land separately, and a tax deed which shows on its face a violation of this provision is void.
    2. Tax Sale : When tender of the taxes, penalty, etc., to the purchaser dispensed with.

    W. sold and conveyed the land in controversy to G. & Co., who sold and conveyed to the appellants; the latter neglecting to pay the taxes, the land was sold, and a tax deed, void on its face, was executed to G. & Co., as assignees of the tax purchaser. Appellants being out of possession brought suit against W. to recover the land, to which an equitable answer and cross bill was filed, making the appellees, W.’s vendors, parties; the latter also filed a cross bill for the foreclosure of their lien for the unpaid purchase money. Without any motion to dismiss, or other pleading raising the question, it was objected in this court for the first time that the appellees had not filed an affidavit of tender under secs. 7 and 8, ch. 106, Gould’s Dig., before commencing this cross suit. Held, that under the circumstances the objection was not well taken.

      APPEAL from Phillips Circuit Court.
    Hon. W. H. H. Clayton, Circuit Judge.

      Garland, for appellant.

      Palmer & Sanders, contra.

   English, C. J.

Thomas E. Pettus and Mary E. Glenn brought an action, on the law side of the Phillips circuit court, against Benjamin E. Wallace, for the N. E. frl. qr. of sec. 2; part of the S. E. qr. of sec. 2, and the N. W. frl. qr. of sec. 1, township 2 S., range 2 E., containing as alleged in the complaint, 490 acres.

Wallace filed an answer containing a number of paragraphs, denying the plaintiffs’ alleged title and right of possession, pleading the statute of limitation, and setting up an equitable defense and counterclaim, which may be briefly stated as follows:

That on the 27th of May, 1862, he sold to Richard P. Glenn and Elias R. Carr the lands described in the complaint, and an additional tract, (S. W. qr. sec. 1, T. 2 S., R. 2 E.), making 650 acres, for $27.20 per acre. That for the three tracts described in the complaint, they paid him $13,328, in confederate money, and he executed and delivered to them a deed, which was recorded, but he retained possession of the lands, which he had never surrendered. That the consideration for the sale was illegal, and the deed void; and that plaintiffs purchased the lands of Glenn and Carr with knowledge of that fact. That having purchased the additional tract (160 acres) of one Nath. S. Turner, but obtained no deed therefor, he procured Turner to execute to Glenn & Carr a bond to make them a title on payment of the price agreed on, being $27.20 per acre, which they had never paid. He prayed that Glenn & Carr, Turner and plaintiffs be made defendants to his counterclaims, that the deed executed by him to Glenn & Carr for the three tracts described in the complaint be surrendered and canceled, and that he have a decree for the amount due on the additional tract. After the coming in of the answer of "Wallace setting up his equitable defense, and counterclaim, the cause was transferred to the chancery side of the court; and demurrers were interposed to some of the paragraphs of the answer, and ruled out, but no question grows out of them on this appeal.

To the paragraphs of the answer of Wallace, setting up his equitable defense, etc., the plaintiffs replied that they purchased the lands described in their complaint, in good faith, of Glenn & Carr, on the 25th of April, 1866, for $18,475, cash, and took their deed therefor of that date, without any knowledge of the equitable matters set up by Wallace.

Carr answered the counterclaim of Wallace, admitting that he and Glenn purchased the four tracts of land of Wallace in May, 1862, paid for the three tracts described in the original complaint in confederate money, and took his deed therefor, and the title bond of Turner for the additional tract. Avers that Wallace had a crop planted on the lands at the time of the purchase, and it was agreed between the parties that he should remain on the lands until he gathered his crop in the following fall, but that in the meantime respondent and Glenn were to have access thereto, etc. Respondent went east of the Mississippi intending to make arrangements for moving on to the lands the next year, but was prevented by the war from returning until after its close. On his return, he claimed rent of Wallace, but he insisted that the care and protection he had given the place during the war were worth the rent, and it was arranged that he should remain on the lands as a tenant of respondent and Glenn; and they never heard of his setting up any adverse claim to the lands in dispute, until after they sold and conveyed them to Pettus and Glenn. Respondent had been ready to pay for the additional tract but could get no deed therefor.

Wallace demurred to the reply of plaintiffs, and the answer of Carr to his counterclaim, and the demurrers were overruled.

Nathaniel S. Turner, who was made a defendant to the counterclaim of Wallace and Bart. Y. Turner, who was made a party thereto on his own motion, filed an answer and crossclaim.

They admit that Wallace sold the four tracts of land to-Glenn and Carr, and that they paid him in confederate money for the three tracts described in the original complaint, and took his deed therefor; as alleged.

But they aver that they, as executors of Edmond Turner, deceased, sold the four tracts of land to Wallace, under an order of the probate court of Phillips county, about the 1st of January 1860, .for $12.75 per acre. That he paid them one-third of the purchase money 1st of March following, and was to pay them one-third 1st March 1861, and the remaining-third, 1st March 1862, but had made but the one payment, and that the other two-thirds of the purchase money, being-$2,762.50 each, with interest from the time they severally matured, remained due and unpaid. That Wallace was let into possession of the lands at the time he so purchased them, and remained in possession until the 9th of January 1872, when he surrendered possession of three-fourths of the lands to Nathaniel S. Turner, for himself and Bart. Y. Turner, and Palmer & Saunders, their attorneys in this case, and that Nathaniel S. Turner was still in the actual possession of three-fourths of the lands, by metes and bounds, as agreed between him and Wallace. That they (the Turners) never made Wallace a deed or title bond for any part of the lands, or took his notes for the unpaid purchase money, nor was there any written contract of sale between them. They admit that when Wallace sold the lands to Glenn and Carr, being an entire sale of the four tracts, making 650 acres, Nathaniel S. Turner became a party to the contract, so far as to execute a bond to make them a title to the S. W. qr. of sec. 1, on payment of the purchase money, as alleged by Wallace; and that they (the Turners) would have made Glenn and Carr a title to this tract, if they had paid the purchase money; but they would not do so because they could not pay it in confederate money.

That the three tracts conveyed by Wallace to Glenn and Carr embraced all the improvements, and were the most valuable of the lands; and that the original plaintiffs were not innocent purchasers, etc.

They make the original plaintiffs, and Wallace and Glenn & Carr defendants to their crossclaim, and pray a decree for the balance of purchase money, with interest due to them from Wallace, and for satisfaction by sale of the lands.

It appears from the exhibits made part of the crossclaim of the Turners, that Edmond Turner, by his will, appointed his sons, Nathaniel- S., and Bart. Y. Turner, the crossclaimants, his executors, and directed them to sell his lands for one-third cash, and the remaining two-thirds on a credit of one and two years, without interest. That by an order of the probate court of Phillips county, where the will was probated, made upon the petition of the executors, they were directed to sell the four tracts of land in controversy in this suit, at public sale, on the 28th November 1859, on the terms indicated in the will, to pay debts of the estate. That the executors made a written report to the court, in which they stated that they had accordingly offered the lands at public sale, and no one offering what was deemed their fair value, they bid them off for the benefit of the estate; and that they had afterward sold them at private sale to Wallace for $12.75 per acre, one-third in cash, March 1, 1860, and the remainder on a credit of one and two years, without interest; and they prayed that the sale be confirmed, and they authorized to make a deed, etc. On the 25th January 1860, the probate court approved and confirmed the report of the sale, and ordered it spread upon its record.

Glenn & Carr filed an answer to the crossclaim of the Turners. They admit that Wallace purchased the lands of the Turners, at the price and upon the terms stated in their pleading; but they deny that he had only paid them one-third of the purchase money as alleged. On the contrary,they aver that when they purchased the lands of Wallace, they paid him for the three tracts described in the original complaint, $18,828 in confederate money, in the presence of Nathaniel S. Turner, who then and there received from Wallace the balance due from him to the Turners on said lands, and delivered to him a deed therefor, and executed to respondents a title bond for the additional tract; and that Wallace then executed to them a deed for the three tracts described in the original complaint. After they purchased the lands of Wallace, he remained in possession as their tenant •etc., but they knew nothing of his surrendering possession of three-fourths of the lands to the Turners, etc.

They aver that on the 9th of March 1868, said lands (the three tracts described in the original complaint) were sold for the nonpayment of the taxes assessed thereon, for the year 1867, and were purchased by James 0. Tappan, who after-wards assigned the certificate of purchase to them, in good faith, for a valuable consideration; and the said lands not having been redeemed, they procured from the clerk of the county court of Phillips county a deed therefor, on the 17th October 1872, which is made an exhibit. That although Wallace, in tbeyears 1866 and 1867 acknowledged that he held said lands as their tenant, yet he refused to pay rent, and before said tax sale, and ever since, had claimed to hold said lands adversely to them and to original plaintiffs, and so they say if the sale made by Wallace to them was void, they acquired a good and valid title to said lands under said sale for taxes, as they had never received any of the rents and profits arising from said lands; which title enured to the benefit of plaintiffs in the original suit under the conveyance made by respondents to them. '

The substance of the tax deed, made an exhibit to this answer, will be stated below.

By consent of parties, the answer .of Glenn & Carr to the crossclaim of the Turners, was taken as the answer of the original plaintiffs. The Turners demurred to the answers, on the ground, amongst others, that the tax deed was void upon its face, and the court overruled the demurrer.

Wallace filed an answer to the crossclaim of the Turners, admitting that he purchased the lands of them, paid them one-third of the purchase money, and that the other two-thirds remained unpaid, for which he had given them no note, and that they had executed to him no bond for title or deed to any of the lands. That he was let into possession of the lands January 1, 1860, and had continued in uninterrupted possession thereof until the 9th of January, 1872, when he surrendered the possession of three-fourths of the lands to Nathaniel S. Turner, in the manner and for the purposes stated in the crossclaim of the Turners, and that the legal title to all of the lands was still in them under the will of their father. In other words, he admitted to be true the allegations of their crossclaim.

The deposition of Bart. Y. Turner was taken. He stated in substance, that Wallace had made no payment upon the lands, but the cash payment of $2,762. 50, and that there still remained due to him, and his coexecutor, from 'Wallace for balance of purchase money, $5,525, without calculating the the interest due thereon.

That neither deponent, nor his coexecutor had ever made Wallace a deed to any part of the lands. Deponent was present at the tax sale, and was acting as sheriff. When he reached the lands described in the tax deed, he told General J. 0. Tappan that he did not want the lands to sell; that he was interested in them. Tappan replied that he had a claim on the lands, and desired to protect his interest; and from this deponent inferred that he would not take a tax title, and did not bid on the lands. Tappan was the purchaser at the sale. He did not know who paid the taxes on the lands for the years 1866 and 1868; but it was his impression that Tappan and Hornor were the agents of the original plaintiffs in this suit, for the taxes of 1868. The tax sale occurred March 9, 1868, at the court house in Helena, and he mentions the names of a number of persons who were present when he made the sale.

The court found, on the hearing, that the lands in controversy were sold by Wallace to Glenn & Carr, and paid for in confederate money; that Wallace made them a deed, which was recorded, but never delivered to them possession of the lands. That Glenn & Carr conveyed the lands to the original plaintiffs (Pettus and Mrs. Glenn), but that they had never been in possession thereof. That Wallace never had any deed to the lands. That it appeared from the pleadings and evidence that on the 1st of January, 1860, the Turners sold the lands described in the original complaint, and the additional tract, above described, to Wallace for $12.75 per acre, who paid in cash, March 1, 1860, one-third of the purchase money, and agreed- to pay the remainder one and two years thereafter, with six per cent, interest; that said second and third payments, amounting to the sum $2,762.50 each, were still unpaid, and Were a lien upon all the lands ; and that the ta-x title sought to be set up against said lands [three of the tracts] by said original plaintiffs and Glenn & Carr, as shown by the deed, was void, etc. The court then proceeded to render a decree in favor of the Turners, for $9,445.55, which was declared to be a lien upon all of the lands, and directed a sale of the lands for the satisfaction thereof.

The decree was rendered 2d July, 1873. The original plaintiffs appealed from the decree.

I. The matters in controversy between appellants and Wallace, the original parties,‘and between Wallace and Glenn & Carr and appellants, on the counterclaim of Wallace, etc., were overriden by the crossclaim of the Turners for purchase money, etc., and the first question to be decided on this appeal is, whether the tax deed set up to defeat their claim is valid, or void on its face.

The appellees (the Turners) insist that the tax deed is void, because it shows upon its face that the three tracts of land were sold en masse for the taxes, etc., charged upon them, instead of by separate tracts. The deed recites that “ the N. E. qr. of frl. section 2, part of the S. E. qr. of section 2, and the N. W. qr. of frl. section 1, in T. 2 S., R. 2. E., containing 490 acres, lying in the county of Phillips, etc., were listed and assessed for taxes, etc., in the names of Pettus & Glenn, who were nonresidents of the county, agreeably to the laws of the state, etc., for the year 1867,” etc. That the lands were returned on the delinquent list, with the penalty added, •etfj., etc. That neither the owners thereof, nor any person for .them, having paid the state, school, and county taxes assessed thereon, amounting to the sum of $29.40, due on said lands for the year 1867, etc., and there being no personal estate of said Pettus & Glenn, known to the collector, whereof to levy and make distress, etc., W. L. Martin, the collector of said county, etc., did proceed to advertise and give at least four weeks previous notice, according to law, etc., that he would sell at public auction, on Monday the 9th day of March, 1868, at the court house, etc., said lands, etc., or so much thereof as would be sufficient to pay said taxes, together with the penalty, costs and charges due thereon for the year 1867, etc.

“ That on the 9th day of March, 1868, the said taxes, penalty and costs on said tracts of land still remaining unpaid, the said W. L. Martin, collector as aforesaid, did proceed to sell at public auction at the court-house door, etc., the said tracts of land, or so much thereof as would be sufficient to pay the taxes, penalty, and costs due thereon as aforesaid. Whereupon, James G. Tappan bid and offered to pay the taxes, penalty and costs due on said tracts of land for the whole thereof, and no other person bidding or offering to pay the same for a less quantity, the same was struck off to the said James 0. Tappan ; which said state, school, and county taxes, with the penalty and costs thereon, did amount to the sum of $42.50, and the said James 0. Tappan having paid to said W. L. Martin, collector as aforesaid,Ithe sum of $42.50, the receipt whereof is hereby acknowledged, and the term of twelve months having expired since the day of sale, and the said lands being unredeemed, and there being now produced to me, clerk of said county, the certificate granted by the collector, etc., to said James 0, Tappan, etc, which was assigned to Eichard P. Glenn and Elias E. Carr, by the said Tappan, for a valuable consideration, and the said Glenn & Carr requiring of me a deed,” eta

The clerk then proceeds to convey the lands, for the said consideration of $42.50, so received by said collector, eta, to Glenn & Carr.

There can be no doubt, from the recitals of the deed, that the collector offered for sale, and Tappan purchased, the three tracts of lands en masse, for the aggregate amount of taxes, penalty, and costs charged upon them, instead of offering and selling the tracts separately for the taxes, etc., properly chargeable upon each.

By the statutes in force when the lands in controversy were assessed and sold, the owner was required to give a description of all his lands, by township, range, section, quarter section, tract, lot, or part thereof, and the number of acres in each particular tract or subdivision thereof. Gould’s Dig., ch. 148 sec. 14; and each tract or town lot had to be valued separately, .etc. Id., 16. The sheriff was required to make similar lists of the lands of nonresidents failing to furnish lists, by the best means in his power. Id., secs. 23, 25, 29, etc.

The collector was required to offer for sale, separately, each tract of land and town lot contained in such list, and on which the taxes and penalties had not been paid. Id., sec. 118, etc.

The person offering to pay the taxes and penalties charged on any tract or lot, for the least quantity thereof, was to be the purchaser thereof. Id., sec. 119, etc.

In the case before us, three tracts, two of them in' section two, and the other in section one, were offered and sold en masse, for the amount of taxes, penalty, etc., assessed upon all three of them.

Such sale was illegal, and the tax deed void. Walker v. Moore, 2 Dill., 256 ; Ferguson v. Heath, 21 Iowa, 439; Byam v. Cook, id., 392 ; Harper v. Sexton, 22 Iowa, 442; Ackley v. Sexton, 24 id., 320 ; Boardman v. Bourne, 20 id. 134; Blackwell on Tax titles, p. 330; Wallingford v. Fiske, 24 Me., 390 ; Willey v. Scoville’s Lessee, 9 Ohio, 42 ; Morton v. Harris, 9 Watts, 319; Bonnell v. Roane, 20 Ark., 125 ; Biscoe et al v. Coulter et al. 18 Ark., 435.

II. It is objected for the appellants that the Turners did not file in the office of the clerk of the court below, an affidavit that they had tendered to the tax purchaser, or his assignee, etc., the amount of taxes, penalty, etc., paid for the lands at the tax sale, with the premium thereon, etc., as required by secs. 7, 8, ch. 106, Gould’s Dig., p. 750.

As to this objection, it may be remarked :

First. That the Turners did not commence this suit for the possession of the lands in question, but the appellants, who were not in possession, brought the suit against Wallace to recover possession of the lands. The Turners were made defendants to the counterclaim of Wallace, and filed an answer, and set up their crossclaim for purchase money as against Wallace, Glenn & Carr, and the appellants, who claimed title under Wallace, and in their crossclaim the Turners alleged that they were then in possession of three-fourths of the lands by agreement with Wallace, and that he was in possession of the remainder.

In Chaplin v. Holmes, 27 Ark., 417, Mr Justice Harrison said : “ It will be seen by a reference to the statute, that such an affidavit is required only in actions'for the recovery of the land, or for the possession thereof.”

iSecond. But if it be conceded that the Turners should have filed with the clerk below such affidavit before, or at the time of filing their crosspleading asserting their claim for unpaid purchase money, how are we to know that it was not done? No motion was made in the court below to dismiss their cross suit for failure to file such an affidavit, as was done in Craig v. Flanagin et al. 21 Ark., 319. No plea in abatement was filed setting up such failure, as was done in Pope et al. v. Macon et al. 23 id., 644, nor was the objection made in any mode in the court below, but is raised for the first time in this court by the brief of the counsel for the appellants.

Third. Pettus and Mrs Glenn are the only appellants. Glenn & Carr, and Wallace, did not. appeal from the decree of the court below. Why should the Turners have tendered to the appellants the taxes, etc., before they commenced their cross-suit ? They were under no obligation to pay the taxes on the lands for the year 1867, unless they had thought proper to do so to preserve their lien for the unpaid purchase money. They sold the lands to Wallace in 1860, and let him into possession. Wallace sold them to Glenn & Carr, in 1862, for confederate money, and made them a deed ; and in 1866, they sold and conveyed them, by deed containing statutory covenants of title, to the appellants; and the lands were assessed for taxes in their names for the year 1867, and it was for these taxes that the lands were sold in March, 1868. They claimed to be the owners of the lands as against Wallace, and it was their failure to pay the taxes that caused the attempt of the tax collector to sell them. Had the sale been valid, the tax deed made to their vendors would, perhaps, have enured to their benefit, as they claimed under the covenants of the deed made to them by their vendors, who had not the legal title to the lands when the deed was made, the legal title being in the Turners. Gould’s Dig., ch. 37, sec. 4; and it may have been with the view of perfecting their title as against, the Turners and Wallace, that appellants neglected- to pay the taxes of 1867, and permitted the lands to be sold.

Be this as it may, we think that the objection made here,, that the Turners did not file the affidavit of tender of taxes, etc., in the clerk’s office before commencing their cross-suit, is-not, for the reasons above stated, well taken.

The decree of the court below must be affirmed.


text:
    Pack vs. Crawford et al.
    1. Tax Sale : For a la/rger penalty than the law imposes, void.

    Under the provisions of the revenue act of July S3,1868, which was continued in force for the purpose of collecting 'the taxes of that year, twenty-five per cent, was the penally imposed for the nonpayment of taxes on land, and a sale for a larger penalty was void.
    S. Tax Deed : When void.

    Under the provisions of the revenue act of 1868, and the act of February, 1869, supplemental thereto, a tax collector was required to sell each tract of land separately, and a tax deed which shows on its face a violation of this provision is void.
    3. —Cannot be validated by introducing the recitals.

    Where, in such a case, the tax deed is relied upon as evidence of title, its invalidity cannot he cured hy evidence aliunde, contradicting the recitals contained in it.
    4. Attorney : His right to purchase client's land at tax sale.

    The mere fact that a purchaser of land at a tax sale was, during the life of the deceased owner, his attorney in some suits, did not cast upon him the duty of paying the taxes or redeeming the land, or affect his right to purchase.
    APPEAL from Saline Circuit Court.
    Hon. John Whttock, Circuit Judge.

      .Garland, for appellant.

      J. M. Smith, contra.

   English, C. J.

The original bill in this case was filed in tbe Saline circuit court, by Wm. M. Pack, as administrator of Leonidas H. Bean, deceased, against the widow and heirs at jaw of his intestate. The object of the bill was to procure an order of court to sell the W. 1-2 of the N. W. 1-4 of sec. 13, and the E. 1-2 of the N. E. 1-4 of sec. 14, T. 1 N., R. 18 W., situated in Saline county, to pay debts probated against the estate of Bean, and of which he was alleged to be the owner at the timé he died in Texas.

The minor heirs of Bean filed a cross-bill, in which they claimed title to the lands in themselves, and other heirs of their maternal grandfather; made Crawford and Smith defendants, and prayed for partition of the lands, etc.

Crawford and Smith answered, and also filed a cross-bill, in which they alleged that Crawford purchased the lands at tax sale, obtained a deed, and conveyed an undivided half of the lands to Smith. In the answers to this cross-bill, the tax title was assailed for alleged fraud and illegality.

The court decreed the lands to Crawford and Smith, subject to the right of some of the minor parties to redeem two-sevenths of them; and Pack, as administrator of Bean, appealed. The tax deed made an exhibit to the cross-bill of Crawford and Smith, and relied on by them for title, is in substance as follows:

The deed was executed by the county clerk to Wm. A. Crawford, bears date 25th of September, 1871, and recites that, “ Whereas, on the 6th day of October, 1868, E. H. Vance jr., assessor in and for the county of Saline, did file in the clerk’s office of said county an assessment of all the lands and town lots in said county, in manner and form as provided bylaw. And whereas, on the 1st day of February, 1869, James A. Mills, clerk of said county, did deliver to the collector of said county the tax books for the year 1868, embracing all of said lands and town lots, with the amount of taxes levied duly extended thereon, together with the warrant for the collection of said taxes as prescribed b}r law.

“ And whereas, the following tracts of land, viz: The west half of the northwest auarter of section thirteen, and the east half of the northeast quarter of section fourteen, in township one north, of range eighteen west, containing 160- acres, dying in said county, were entered, listed and assessed for taxation, in the name of Howald & Bean, for the year 1868, and neither the owner, nor any person or persons for said owners, having paid the taxes levied as aforesaid, amounting to the sum of twenty-three and dollars. Wherefore, William M. Pack, as such collector, did, on the 7th day of June, 1869, return said tracts of land as delinquent; said delinquent lands were duly advertised, and notice given by publication as provided by law, that the collector would sell at public auction at the court house door in said county, on Monday, the 20th day of August, 1869, the said tracts of land for the taxes, together with 50 per cent, penalty, and costs thereon; and said collector did, on the date last mentioned, proceed to sell said lands; whereupon William A. Crawford bid, and offered for said lands, the sum of twenty-five dollars, and having paid to the collector the said sum of twenty-five dollars, and the term of two years having expired since the day of sale, and the said lands being unredeemed, and the certificate of purchase being now produced by said William A. Crawford, he now demands a deed for said lands. Now, know ye, that I, James A. Mills, clerk as aforesaid, pursuant to the provisions of sec. 129, of an act regulating the assessment and collection of the revenue of the state of Arkansas, approved March 25,1871, and in consideration of the sum of twenty-five dollars, paid to the collector as aforesaid, do hereby grant, bargain and sell unto said William A. Crawford, his heirs and assigns, the before described tracts of land, etc.”

I. It seems from the face of the deed that the lands were advertised and sold for the taxes, and fifty per cent, penalty thereon for nonpayment. By sec. 44 of the act approved July 28, 1868, entitled “ An act to assess and collect taxes, and for other purposes ” (Acts of 1868, p. 278), a penalty of twenty-five per cent, was imposed for the nonpayment of taxes assessed on real property within the time fixed by the act. So by sec. 10 of the act of February 19, 1869, entitled “ An act to aid in assessing and collecting taxes for the year 1868,” Acts of 1868-9, p. 49, it was provided that if the taxes on real property should not be paid within the time prescribed by sec. 8 of the act, they should be deemed delinquent, and a penalty of twenty-five per cent, added thereto.

The lands in question were sold on August 2, 1869, for the taxes of 1868. It may be that the penalty of fifty per cent, was imposed under some provision of the act of April 8,1869, entitled “An act regulating the assessment and collection of revenue,” which was not published in the pamphlet acts of 1868-9, but in a separate pamphlet. But sec. 159 of this act, being the last section, declares: “ That an act entitled an act to assess and collect taxes, and for other purposes, approved July 23,1868, and all acts supplemental thereto, are hereby repealed, but shall remain in full force and effect for the purpose of making the collection of taxes for the year 1868.” We have been able to find no act imposing a penalty of 50 per cent, for the nonpayment of taxes of 1868 on lands. The sale for a larger penalty than was imposed by law was illegal and invalid. Huse v. Merriman et al., 2 Greenl. (Me.), 376; Blackw. on Tax Titles, p. 192, and cases cited ; Doe on dem., etc., v. McQuilkin, 8 Blackf., 335; McQuilkin v. Doe on dem. Stoddard, id., 581; Mason v. Roe, etc., 5 id., 98 ; Scott et al. v. Watkins, 22 id., 556.

II. It also appears from the face of the deed that the collector sold the two tracts of land together, and not separately.

Sec. 78 of the act of July 23, 1868, required the auditor to make out and forward to the county clerk a complete list of all lands subject to taxation in their respective counties ; the list to show in whose name the original entry or purchase was made, the date of the entry, a description of each tract or parcel arranged in each township according to the numerical order of the sections.

The auditor was also required to furnish the clerks with assessment books, tax books, plats, etc. Id., sec. 79. Section 31 of the same act required the clerk of each pcounty to make out and deliver to the assessor an assessment roll of lands and town lots within his county, to be compiled from the books in his office, containing a description of each tract and lot of real property in his county subject to taxation, and the number of acres or quantity of land contained in each tract, except town or city lots, with the name of the owner thereof, if known ; and in making out such assessment roll, to place each separate parcel of land in each township, according to the numerical order of the sections, and each town or city lot according to the numerical order of the lots and blocks, etc. Each assessor was required to ascertain and set down opposite each tract of land in the assessment roll furnished him by the clerk, the value thereof, etc. Id., sec. 7, 25, 26. The lands in question were assessed under the provisions of this act. The tax deed shows that the assessor of Saline county returned his list October 6, 1868, for that year. The collector was required to offer for sale at public auction, separately, each tract of land or town lot contained in the advertisement, etc., on which the taxes, penalty, and costs had not been paid. Id., sec. 50. So by the supplemental act of February 19, 1869.

By sec. 50 of the act of July 23, 1868, the person offering at the sale to pay the taxes, penalty, and costs charged on a tract or lot for the least quantity thereof, was to be the purchaser of such quantity, as under former statutes. But by the supplemental act of February 19, 1869, when the proceeds of the sale of one or more tracts taxed to any person were sufficient to pay the taxes, penalty, costs, etc., charged against the delinquent lands of any such person, and he had still other tracts more than necessary to pay such taxes, etc., the excess was not to be sold. Sec. 16, etc.

In the case before us, there were two half quarters, one of them in sec. 13, and the other in sec. 14. They were clearly two distinct tracts within the meaning of the acts above referred to; and should have been offered for sale separately, and not together. And it appearing from the face of the deed that they were sold together, the salé was illegal and invalid, as held in Pettus and Glenn v. Wallace. The deposition of the appellant Pack was taken on the part of parties claiming adversely to Crawford and Smith, and seems to have been made upon the hearing without objection. He deposed, in substance, that he was sheriff at the time the lands were sold, and made the sale. That Crawford bought the lands for $25. That he paid $12 for one tract, and $13 for the other. That the taxes, penalty, and costs, on each tract was $11.71, to the best of his recollection. Prom this deposition, it would seem that the tracts were sold separately. If they were so in fact sold, the clerk might properly embrace both tracts in one deed, but he should have shown by the recitals of the deed that they were separately sold, and not have recited, as he did, that they were sold together, for the gross amount of taxes, etc., charged on both tracts. Sec. 22, act of February 19, 1869. Bonnell v. Roane, 20 Ark., 122.

In Walker v. Moore, 2 Dillon, 256, which was an action of ejectment for lots purchased at tax sale, it was held, that a tax deed, showing by its recitals that two or more separate town lots were sold, en masse, for a gross sum, was void on its face, and that evidence to contradict the recitals, and show that the lots were sold separately, was inadmissible.

. Possibly the clerk, in making the deed, made a mistake in reciting the penalty imposed for the nonpayment of the taxes, as well as in reciting that the tracts were sold en masse. The deed recites that the “ taxes,” amounted to $23.42 on the tracts, and that they were advertised and sold for the taxes, together with 50 per cent, penalty and costs thereon.”

Pack deposed that the taxes, penalty and costs on each tract were $11.71, which added, make $23.42, just the sum that the deed recited the taxes to be.

Whether, where such recitals are, in fact, mere mistakes of the officer drafting the deed, they can be contradicted by other evidence, on a bill properly framed and brought for the purpose of correcting the mistakes, we need not decide in this case. The crossbill of Crawford and Smith was not framed or brought for that purpose. They set up the tax sale and deed, by general averments, as regular and valid, and rely on the deed as their title to the lands; and we have held above, that upon its face it is invalid, showing, as it does, an illegal sale.

There was an attempt by the pleadings and evidence on the part of the appellant, to show that- Smith, who purchased an undivided half of the lands of Crawford, was the attorney of Bean, and under obligations to redeem the lands from the tax sale, and that other parties interested in the lands, relying upon his doing so, let the time for redemption run out.

The allegations on this subject were denied by Crawford and Smith, and we think the weight of the evidence, as far as it' appears of record, sustained their answer. Smith was the attorney of Bean in some cases during his- lifetime; but was paid no fees. None of the parties interested in the lands made him an agent to pay the taxes nor was he furnished with any means to pay them or redeem the lands, nor does it appear that he undertook to do so.

Pack knew of the sale of the lands for taxes, because he made it. He became the administrator of Bean, October 1, 1870 and before the tax deed was made to Crawford. It appears that the lands were improved, valuable, and that, claiming that they belonged to the estate of his intestate, he had control of the rents and profits, and it was his duty to redeem the lands from the tax sale. He did not, therefore, stand in a very good attitude to impute neglect or bad faitb to Smith. Any of the parties interested in the lands could have gone to the clerk and redeemed them at any time before the time for redemption expired. They failed to do so, or to furnish, or to offer to furnish Smith with means to redeem them.

The decree of the court below must be reversed, because the court decreed the lands to Crawford and Smith, upon a tax deed appearing on its face to be invalid, and the cause remanded for such further proceedings as the parties may think proper to take in the case, not inconsistent with law, and this opinion.


author: Walker, J.

text:
    Newman, Ex’r, vs. Henry.
    1. Payment : Privity essential to.

    To constitute payment, there must be privity between the parties. And so where A. delivered his note to B., under an agreement that it was to be received in discharge of a prior note executed by A. to B., which the latter had assigned without A.’s knowledge, it did not discharge the original note.
    2. Assignment: Of promissory note when insufficient to pass tide.

    And where, in such case, the subsequent note was transferred by the payee to the assignee of the original note, the latter having knowledge of the facts and circumstances, and refusing to surrender the original note, he acquired no title to the subsequent one.
    APPEAL from Desha Circuit Court.
    Hon. John E. Bennett, Circuit Judge..
    Garland, for appellant.

      Palmer & Sanders, contra.

   Walker, J.

Suit was brought by Newman, as executor of •the estate of Walworth, on a note executed by Henry to Eel-lows & Co., who assigned it to Walworth before maturity.

The defense interposed by Henry is want of consideration. The case was submitted to the court sitting as a jury, who, after having heard the evidence, found the facts to be: That Henry was indebted to Fellows & Co., $4,380.85, evidenced by note dated March 10, 1861, due ten months after; that after the note became due, Henry, at the request and by agreement with Fellows & Co., executed the $4,000 note, which was to be substituted for and in payment of the note for $4,380.85, the difference between the notes to be settled between them in another way; that the note for $4,380.85 had before that been transferred to Walworth, of which Henry had no notice; that after Fellows & Co. received the note of $4,000, they transferred it to Walworth, notifying him-•of the manner in which they held it; that Walworth never •surrendered the note for $4380.85, and that the same is now in suit, and that Walworth’s representative is now seeking to collect both notes.

And upon the state of facts so found, the court declared the law applicable to the case to be:

1. That to constitute payment, there must be privity between the parties, and an extinction of the original debt.

2. That Walworth could acquire no rights in the $4,000 note, without positively surrendering the $4,380.85 note.

3. That Fellows & Co. had no right to put the $4,000 note in circulation without taking up the note for $4,380.85.

4. That Fellows & Co., if the agent of Henry, were such for a specific purpose, and could not bind Henry by any act outside of their authority.

5. That if the note sued on was without consideration, or the consideration had failed, in whole or in part, or if it was fraudulently put in circulation, the plaintiff, to protect himself against the equitable defense of the defendant, must show that he acquired it before it became due; that he had no-notice, express or implied, of the equities of the maker, and that he received the paper in the course of trade.

To which finding of the evidence and rulings of the law,, the plaintiff excepted. Judgment was rendered for defendant,, and plaintiff appealed.

After a careful examination of the evidence, we think that .the finding of the facts by the court are correct, but if doubtful, we should not, upon a question as to the weight of evidence, distrust the finding or the judgment rendered upon it on that account.

The rulings of the law by the court were not only correct,, but had a direct application to the state of case presented by the evidence.

The evidence shows that the note for $4,000 was sent toEellows & C-o., by Henry, to be received as payment for the-first note executed by him to them; that before that time,, and without the knowledge of Henry, Eellows & Co. had assigned the note for $4,380.85 to Walworth, after which a payment to Eellows & Co. would not have discharged the= assigned note. Block v. Kirtland, 21 Ark., 393. There had ceased to be a privity of contract between Henry and Eellows- & Co. And therefore, the first ruling of the law by the court was correct.

The second, third and fourth rulings of the law, considered together, are: That if the note was placed in the hands of Eellows & Co. for a specific purpose, and under instruction, that Eellows & Co. could not, in any disposition of them, bind. Henry beyond the scope of such instructions or authority; that-they had no right to put the $4,000 note in circulation without first taking up the $4,380.85 note, and that Walworth, by 'the assignment, with a knowledge of the facts, acquired no-greater authority to withhold the note for $4,380.85, or over the note for $4,000, than Eellows & Co. had. The proof upon this point is, that the note of $4,000 was sent by mail by Henry to Eellows, with instructions to be used and applied for a particular purpose.

Henry deposed that Eellows & Co. proposed^ by letter, that he should renew his note for $4,380.85, by giving them a new note for $4,000, in payment of the first, the difference between the notes to be settled otherwise between them. Henry accepted the proposition, and forwarded the note to Eellows & Co., supposing at the time that they were still the holders of the note for $4,380.85, with the express understanding that the first note should be delivered to him. It is shown, that at the time the note for $4,000 was received by Eellows & Co., they had parted with the first note, and in fact, held no debt against Henry, had no right to the note, and could neither receive satisfaction of it nor deliver it to Henry, and as a consequence their power and control over the $4,000 note ceased, or in fact never existed. It was to become their note upon a condition, which they did not comply with, and in fact had not the power to comply with. According to the evidence of Logan, one of the firm, it was expressly agreed between the firm and Walworth, that Walworth, to whom they assigned the note for $4,000, would receive it in payment of that much of the $4,380.85, but was to hold the latter note until Eellows should pay to him a note for $2,687.49 they owed to him, which agreement was in direct violation of the terms upon which Henry placed the $4,000 note in the hands of Eellows & Co.; all of which was well known to Walworth.

And it was under this state of case found to exist, that the court gave the fifth ruling, to the effect that Walworth, the assignee of the $4,000, could only protect himself as a holder of the note received in the course of trade, as an innocent holder for a valuable consideration.

In this ruling of the court there was no error.

No one by the mere act of assignment can transfer a greater interest than he has, nor make that good which is vicious and unlawful. The assignment, whether by indorsement or delivery, but conveys the legal title and gives the right of action, and does not itself bar the equities. The rule which cuts them off is a rule of commercial policy, to facilitate trade and sustain commercial credit, and applies only where the note or bill has passed by indorsement or by delivery, into the hands of the assignee in the due course of trade, upon a consideration, and without notice of the existing grounds of defense as between maker and payee. Bertrand v. Barkman, 13 Ark., 150; Coddington v. Bay, 20 Johns., 638; Edwards on Bills and Notes, p. 56.

It appears from the evidence that the executor of Walworth has brought suit upon the first note for $4,380.85, which, so far as is disclosed by the evidence in this case, was received in the course of trade, and upon which he may have his recovery.

Finding no error in the proceedings and judgment in this case, the same is affirmed.


text:
    Payne, Huntington & Co. vs. Flournoy.
    1. Practice: When too late to object to an answer for want of verification.

    After replication, trial and judgment in the court below, it is too late to raise the objection for the first time in this court, that the answer is not verified.
    S. Executor : Oannot appropriate assets to pa/rticular debts.

    An executrix, to whom notes are executed for personal property and rent of the land of her testator, holds them in her fiduciary capacity as a part of the general assets of the estate, and has no power by assignment as collateral security or otherwise, to appropriate them to the payment of one creditor to the exclusion of others.
    3. Agency: Principal’s right of revocation not affected by the disposition to be made of the proceeds, etc.

    Where the payee of a note indorsed and left it with a member of a firm to which she was indebted, for collection, and directed Mm to apply the proceeds to the payment of her indebtedness, it was a mere direction to an agent, and did not impair the right of the payee to collect the note or change the direction at pleasure.

      4. Notice: Of facts apparent on negotiable paper.

    The fact that a note is made payable to an executrix, and by her indorsed in her representative capacity, is notice that it is assets in her hands.
    5. Pleading and Pbooe: Must correspond.

    A fact that is proven, but not averred in the pleadings, can avail nothing.
    APPEAL from Arkansas Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      Pindalls, for appellants.

      Gallagher & Newton, contra.

   Walker, J.

The defendant Thomas C. Elournoy executed to Elizabeth J. Elournoy, the executrix of the estate of Thompson B. Elournoy, on the 2d day January, 1867, his note for $7,000, due the 1st of December of that year, and two other notes, dated 8th of January, 1867, one for $3,100, the other for $1,300, both due the 8th of December of that year. The first of these notes was given for the rent or lease of a plantation belonging to the estate of Elournoy, and the other 4wo for stock and farming utensils, which also belonged to the estate. The notes were made payable at the office of L P. Harrison & Son, in New Orleans. With these notes there was also an agreement of defendant with the payee, Elizabeth J. Elournoy, that he would ship cotton to the house of I. P. Harrison & Son, to pay the notes as they became due.

The estate of Thompson B.°Flournoy was indebted to the firm, of Payne & Harrison to the amount of $40,000, and soon after the notes were executed, they were indorsed in blank by Johnson, as agent for the payee, and placed in the hands of I. P. Harrison, one of the firm of Payne & Harrison, for collection. The blank indorsements were filled up, making the notes payable to Payne, Huntington & Co.

On the 14th of July, 1869, Jacob Payne, George W. Huntington and William H. Dameron, partners doing business under the name and style of Payne, Huntington & Co., brought their suit in the circuit court of Arkansas county against T. C. Flournoy, the payor of the notes.

The defendant filed his answer, in which he admitted the execution of the notes, but denied that they were assigned to plaintiffs for a valuable consideration; that the notes were left with I. P. Harrison merely for collection, and were indorsed for that purpose only; and that afterwards and whilst the notes were the property of the payee, that he had fully paid them.

This answer was not sworn to, as required by our code of practice, and for this defect might have been stricken out, but as no exceptions were taken to it for this cause, it is too late after replication and trial before a jury, and final judgment, tó raise the objection, for the first time, in this court.

The case was submitted to a jury and a verdict returned in favor of the defendant. The plaintiffs moved for a new trial which was overruled, exceptions were taken and an appeal to this court.

• Exceptions were taken to several instructions given at the instance of the defendant, as well as well as to those refused by the court when asked by the plaintiffs, which, from the conclusions at which we have arrived as to the law governing the case, will be disposed of in the further consideration of the case.

It is contended on the part of the plaintiffs, that the notes in suit left with Payne & Harrison, as collateral security for bhe payment of a debt due by the estate of T. B. Elournoy to them, and, being indorsed in blank, Payne & Harrison had a right to deliver the notes to Payne, Huntington & Oo., the plaintiffs in this suit.

On the part of the defendant, it is contended, that the notes were not placed in the hands of Payne & Harrison as collateral security, but were in fact left with I. P. Harrison, a member of that firm, for collection, with instructions to apply the money when collected to the payment of the debt which the estate of Elournoy owed to the firm of Payne & Harrison, and the indorsement on the notes was made to facilitate collection •and for no other purpose.

In the investigation of the question of the ownership of ■these notes, and as to whether they did or did not pay to the plaintiffs by assignment, and vest in them a right of action against the payor, the defendant in this action, it will be im-’ portant to inquire, not only whether from the facts as disclosed in evidence, an assignment of the notes was made, up■on such consideration and under such circumstances as to divest the payee, Mrs. Elournoy, of her title to them, but also as to whether she, holding them as she did, as a trustee, to be ■collected for the benefit of the creditors of the estate of T. B. Elournoy, and for his heirs and distributees, had the power to ;sell, or to assign the notes which were held by her as the executrix of the estate as assets to be distributed under the provisions of the statute.

These notes were executed to the payee, as the executrix of the estate of Elournoy, and given in consideration of rents and personal estate of the testator, T.. B. Elournoy, sold and rented to the defendant, who executed the notes in suit. .Jilson P. Johnson, the agent for the payee, deposed that, at the request of the executrix, he went to New Orleans, to see Payne and Harrison concerning the indebtedness of the estate to them. That he took with him $4,000, and the notes in suit for the purpose of making an arrangement with them to take the money and notes in part payment of the debt which they held1 against the estate of T. B. Elournoy, deceased; that Payne, with whom he was trying to make the negotiation, positively refused, under any circumstances to receive the notes in part payment of any part of the debt, and refused to have anything to "do with them, even as security for the debt. That after repeated efforts to effect this purpose had failed, he abandoned all hopes of effecting this arrangement. He agreed with Payne to pay $4,000 on the claim against T. B. Elournoy’s estate; and as two of the notes were payable at the house of I. P. Harrison & Son, he would leave the notes there for collection, subject to any arrangement he, Johnson, might make with T. C. Elournoy concerning them. Witness states that he saw I. P. Harrison, one of the firm of Payne & Harrison, and told him that he had been unable to make any arrangement with Payne to receive the notes as part payment for the debt, or even as security for the debt, and left the notes with Harrison for collection — his object being, in the indorsement of the notes, simply to give authority to collect them.

I. P. Harrison deposed : That the notes were handed to him in January, 1867, by Jilson P. Johnson; that I. P. Harrison & Son, of which firm he was a member, were at the time the merchants of T. C. Elournoy; that the estate of T. B. Elournoy was not doing business that year.

The circumstances under which the notes came into the possession of Payne & Harrison were, that Jilson P. Johnson called, and asked Payne & Harrison to credit the account of the estate of T. B. Elournoy with the amount of the notes, and with $4,000 cash. Witness says he told Johnson that he could not do so without the consent of Payne. Johnson went down stairs to consult with Payne, and when he returned, said that Payne refused. The notes were then put into his, Harrison’s, hands, with the statement that when the notes were collected, the account of the estate of T. B. Flournoy with Payne & Harrison would be credited with the amount collected. That witness made no arrangement with Johnson except to collect the notes, and to credit the account of the estate with the amount when collected. Witness says, this was all that took place at the time the notes were placed in his hands. But further states, that Johnson conferred with him, as a member of the firm of Payne & Harrison, and that he had nothing to do with his other business, and that when Johnson came back from his conference with Payne, he said Payne had refused to take the notes in payment, but had agreed to receive them to be credited, when collected, on the debt against the estate. He recollected nothing said about collateral security. The notes were left to be collected, and proceeds applied to the credit of the debt of the estate to Payne & Harrison.

Payne, the other partner of that firm, says that he did refuse to receive the notes when offered by Johnson in part payment of the firm debt against Flournoy’s estate, .but that he agreed to receive them as collateral security for the debt, and to credit Payne & Harrison’s claim ag ainst said estate out of the proceeds of said notes as collected —still holding the estate responsible for so much of the debt as was'not credited, and that Johnson agreed to deliver the notes upon the terms thus stipulated, and that he directed Johnson to leave the notes with Harrison.

Evans, the clerk of Payne & Harrison, deposed that he wrote the following receipt, which was read in evidence:

“ New Orleans, January 17, 1867. — Received of Mr J. P. Johnson, agent for Mrs T. B. Flournoy, executrix of the estate of Thompson B. Flournoy, deceased, $4,000 in currency, and the following notes (describing them). The $4,000 currency now to be applied, and the above described notes to be applied, when collected, to the payment of the indebtedness of T. B. Flournoy’s estate to Payne & Harrison, as described in a transcript from the record of certain allowances made at the March term, 1866, of the probate court of Desha county, Arkansas, against the estate of Flournoy, and in favor of Payne & and Harrison. (Signed) Payne and Harrison.”

Evans states that he entered these notes upon the books of Payne & Harrison, as notes for collection and not on the books as notes which belonged to the firm. .

The following letter was also given in evidence, written in answer to one by J. P. Johnson, dated November 27, 1867, requesting I. P. Harrison & Son to return' the notes left with them for collection, to which they replied:

“ Your fayor of 27th ult. is received, requesting us to return you Mr. T. C. Flournoy’s notes which you handed to us to be applied in payment of a debt due by the estate of T. B. Flournoy to Payne & Harrison. Payne & Harrison gave you their receipt for these notes, and we are not authorized to return them whilst their receipt is out. Be pleased to send the receipt to us, and we will use our influence with P. & H. to send the notes to you. We have not the power to do it; but suppose they will not object. * * * (Signed) I. P. Harrison & Son. Written by I. P. Harrison.”

Harrison admits in evidence that he wrote this letter, but assumes that he was not very sincere in making his statements, for considerations of policy.

T. C. Flournoy states that he was in New Orleans in 1869, he thinks, before suit was brought against him. He says : I. P. Harrison sent for me to come and see him, and when I went, he asked me if I had said anything to Mr. Payne about his giving up my notes ; I answered that I had not, hut that I intended to do so; and he told me not to do it. He said, I will do it myself; I do not want you to say a word to him; let me manage him. I can get him to give them up to you, but you could do nothing with him, he is a very contrary man. Mr. Harrison then said it is an outrage upon you, and he ought to give the notes up to you, and if he does not, and should sue you, have me summoned, and my testimony would settle it, and that I would have nothing to pay. I saw Mr. Harrison again the next day, and he again insisted that I should not speak to Mr. Payne, that he was working it through Mr Huntington, and that I should soon get the notes. He also stated to me that the notes were only left with them for collection, but the proceeds to be applied to the payment of the debt due by Flournoy’s estate to them. Harrison also remarked to me that if all the money I had paid to Mrs Flournoy had been applied to the payment of the debt due Payne & Harrison, there would have been no trouble about the notes.

This is all of the evidence material to the question of assignment, which is denied in the first paragraph of defendant’s answer.

The first question to be determined is: Had the executrix power to appropriate the assets of the estate to the payment of one of the creditors in preference to others ? Edwards, in his work on Bills and Notes, p. 244, says: The transfer of notes and bills being a contract, it is of course necessary that the payee or holder of the instrument should, in the first place, have a legal capacity to do the act.” Had the executrix of the estate of Thompson B. Flournoy this power ? "We must hold that she had not. She was a mere trustee, and derived all of her power and authority, either from the provisions of the will, or from the law. Under the statute, she is required to take into her possession the whole of the estate of her testator, to charge herself with it, and, annually, to report to the probate court, the whole amount of the estate which has come to her hands, the amount of cash collected, the amount paid in expenses, and the balance of cash on hand. The sum so ascertained by the court upon settlement is held as a common fund for the payment of the debts of the estate. All creditors are required to present their claims to the court for allowance and classification. No claim is to be paid until thus presented and classed, and an order for payment made by the court, giving preference in payments to claims of prior right to satisfaction according to class.

If an administrator or an executor makes payment without an order for that purpose, he does so at his peril, and will not upon settlement be allowed credit for the money so paid. McPaxton v. Dickson et al. 15 Ark., 41. Nor can an executor or administrator set off a debt contracted by his testator or intestate, against one contracted with themselves as such. Because this would disturb the equitable course of administration by appropriating part of the assets which properly belongs to the common fund for distribution, to the satisfaction of a single, debt, which may be of lower grade than others. Bizzell v. Stone et al. 12 Ark., 378.

The power of an executor or administrator' to assign notes and bonds belonging to an estate, as provided in sec. 96., ch. 4, Gould’s Dig., 120, relates to the payment to creditors, legatees and distributees, whose claims have been allowed and classed and an order for their payment made, and is in effect a substitution of debts for money, should the creditor or distributee choose to receive them, and gives no power to sell, assign or dispose of debts, part of a common fund, in payment of the debts of creditors before, upon settlement, it is ascertained how much is due them. So far from conferring a general power to assign notes and bonds of estates, this enactment, conferring power for a special purpose, negatives the presumption that any such general power exists.

A fiduciary agent cannot transfer assets of an estate without an order of court for that purpose. Burbank, Curator, v. Payne & Harrison, 17 La. An., 15. In the case of Nickolson v. Chapman, 1 La. An., 222, where a syndic made an indorsement of a note which belonged to the estate of which he was syndic, it was held that his mere indorsement of the note as syndic was notice that the note belonged to the estate, and could not be discounted without an order of court; and, that the assignee who took the note thus assigned, acquired no right under it, adverse to the party to whom it belonged.

In the case of Miltenberger v. McGuire, 15 La. An., 486, where a commercial firm were the holders of notes and remitted them before maturity to another firm to be collected, and the money, when collected, to be applied in payment of a debt in favor of the latter firm, and was indorsed to render the collection more easy, it was held that the firm so receiving the notes are to be considered agents for the collection of the notes, and that the original holder of the notes had never ceased to be the owner of them.

When a person to whom an agent transfers negotiable paper is unacquainted with the agency, it is his duty to ascertain the extent of the agent’s authority, and he can acquire only such interest as the agent is authorized to convey. Edwards on Bills and Notes, 252.

These authorities fully sustain us in holding that the executrix of the estate of T. B. Flournoy held these notes in her fiduciary capacity as part of a general fund out of which to pay the debts against the estate, and had no power by assignment, or otherwise, to appropriate them to the payment of the debt of one creditor to the exclusion of others.

But if such was not the case, we think the evidence falls far short of showing a valid transfer or assignment of the notes. It shows no sale absolutely, or as collateral security. They did not pass into the hands of I. P. Harrison & Son, nor to Harrison for Payne and Harrison, in the due course of trade for a valuable consideration; there was no contract between these parties, no consideration passed, no remedies parted with, no debts delayed or postponed. But the weight of the evidence tends to show that the notes were left with I. P. Harrison by the agent of the payee for collection. This was the voluntary act of the payee, without consideration, and as a matter of convenience. The fact that the payee directed that the money, when collected, should be paid to Payne & Harrison in satisfaction of that much of their claim against the estate of T. B. Elournoy, was a mere direction to an agent as to the disposition of the money when collected, The payee had a right to change this direction at pleasure.

The mere act of placing the notes in the hands of an agent, for collection, in no wise lessened or impaired her right to collect the debt and apply the money received differently, if she chose to do so. And this, as appears from the evidence, she has done.

If these notes had passed by assignment to the plaintiffs in the ordinary course of trade for a valuable consideration, as innocent holders, without notice of the facts attending this transaction, the authorities would go far to sustain plaintiff’s right of action. But such is not the case. The fact that the notes were made payable to the executrix of the estate of Thompson B. Elournoy, and that they were indorsed in her representative capacity, was notice that the notes were assets -in her hands. Plaintiffs were members of the same firm, with one of whom the notes were left for collection, and from whom the notes came into their hands. They knew that the notes did not pass into the hands of Harrison, or of Payne & Harrison, in the course of trade, or upon a consideration. And for this reason, as well as because there was, in fact, no valid assignment of the notes, their action must fail.

It may be, as Payne, one of the firm deposed, that the plaintiffs, under a new firm name, are in fact the members of the firm of Payne & Harrison. Admit all that Payne says to be true, and that the new firm have succeeded to the assets of the late firm of Payne & Harrison, this fact can avail nothing, because there are no averments in the complaint to that effect, and the evidence consequently has no application to the case as made by the pleadings. If the plaintiffs have in fact succeeded to the assets of the late firm of Payne & Harrison, and are, in fact, the same parties, they may have the full benefit' of their judgment against the estate of Thompson B. Elournoy in the probate court upon settlement, and an order for the payment of the debts of the estate. In which settlement the executrix is required to account for the money which she received in payment of these notes, and of which the firm of Payne & Harrison, or these plaintiffs, if their successors, will receive their distributive proportion, which is all to which they are entitled.

Thus considering the law applicable to the case, the instructions given to the jury were substantially correct; in fact, more favorable to the plaintiffs than they should have been.

As regards the exceptions taken by the plaintiffs to the decision of the court in permitting certain letters to be read in evidence, it may suffice to remark that the record simply shows that the plaintiff excepted to the introduction of certain evidence at the time the same was offered; but there appears to have been no bill of exceptions taken or signed by the judge, or made part of the record upon the overruling of the motion for a new trial, under the practice, as held in Lennox v. Pike, 2 Ark., 14; Brock v. Saxton, 5 id., 708. But if otherwise, from the view which we have taken of the question of assignment, to which the evidence admitted over the objections of the plaintiffs was intended to apply, it could in no wise have changed the result.

There was other evidence introduced which showed clearly that the defendant paid and fully discharged these notes to Elizabeth J. Elournoy, the executrix, and fully sustained the second paragraph of defendants’ answer which averred payment.

Finding no error in the proceedings and judgment of the court below, the same is affirmed.