text:
    Johnson & Goodrich vs. Anderson, assignee.
    1. Payment: Appropriation of.

    A payment on a running account, in the absence of appropriation, should be applied to the earliest item of debt until the whole is extinguished.
    2. Same: Election, Qivil law, etc.

    By the common law, in the absence of instructions from the debtor, the creditor may elect to which of two or more debts he will apply it; by the civil law it will be imputed to the most onerous debt; the doctrine of election does not apply unless there are separate debts.
    3. Mortgage : Cannot be enlarged by parol.

    A subsequent parol agreement that subsequent advances shall be covered by a mortgage is inoperative.

      APPEAL from Drew Circuit Court in Chancery.
    Hon. A. C. Jones, Special Judge.

      S. R. Cockrell, for appellants.
    A mortgage may be given in a specific sum to secure future advances, and future balances on settlements. Bank, etc., v. Finch, 3 Barb. Ch. Rpts., 303, 297; Shirras v. Caig, 7 Cranch. U. S., 50; McK. v. Babcock, 26 N. Y., 378; Langston v. McKinney, 16 Johns., 105; Truscott v.King, 2Seld., 157; 1 Hill. Mort., p. 206, secs. 58 et seq., and parol testimony is admissible to show the intent. Cases supra, and 2 Wash. R. Property, 144; Hurd v. Robinson, 11 Ohio St., 232; 2 Hill. Mort., p. 303; sec. 18; Johnson v. Clark, 5 Ark., 321; 7 ib., 305; 18 ib., 49.
    Appellee is not a purchaser without notice. Burrell As., 484, and authorities cited.
    The answer admits the mortgage was made to secure future advances, which was alleged in the bill. This is conclusive. Wieder v. Clark, 27 111., 251.
    - The parol agreement that the mortgage should cover subsequent advances was valid. 2 Wash. R. P., 143 ; Jocelyn v. Wyman, 5 Allen, 62; Stone v. Laen, 10 Allen, 74. Surely this would be true of the insurance policies. 2 Hill. Mort., 286, sec. 56; James v. Johnson, 6 Johns’. Ch. Repts.

      U. M. Rose and James A. Jackson, for appellees.
    The mortgage could not be held as a security for future debts. Hooper ex parte, 19 Yesey, 477; Walker v. Snediker, 1 Hoff. Ch., 146; Tarscott v. King, 2 Seld., 161; Kent. 4th Com., 176; Whiteney v. Beebe, 12 Ark., 581; Nolly v. Rogers, 22 Ark., 230; Jordan v. Fenno, 13 id., 598; 3 Parsons on Cont., 13; Benj. on. Sales, 148; Peltier v. Collins, 3 Wend., 459.
    Credits are to be applied in order of time to the oldest debts. 1 Story’s Eq. Ju., sec. 459; 2 Parsons Cont., 633, and this is the rule whether the first items are secured or not. 44 Me.. 121: 28 Yt., 498; 31 Me., 497; 10 Burt., 189; 3 Denio, 293; 22 Me., 138; 9 Watts, 386; 9 Wheaton, 737; 10 Conn., 175. In Louisiana to the most onerous debt. Forstall v. Blanchard, 12 La., 1.
    There can be no election unless there be two or more debts existing at the time of payment. 5 Graft., 357; 3 Sumner, 112; 41 N. H., 166; 31 Yt., 701; 5 Leigh, 329.
    The creditor cannot make or change appropriations after controversy. 9 Wheaton, 720, 737; 12 Yt., 246, 249; 10 Conn., 183; 31 Yt., 706; 31 Me., 500.
    Nor after presentation and approval of the accounts. Notes to Clayton’s case in Lead. Case in Mer. and Mar. law, p. 22; 11 Barb., 80; 3 Denio, 291; 2d Barn & Cress, 65; 2 Wash. C. C., 47; 5 Watts, 544, 545. See also in point here. Harrison v. Johnson, 27 Ala., 445; Clayton’s case, 1 Mer., 608; 2 B. & A., 39; 2 Brod. & Bing., 70; Story’s Eq., sec. 459.
    The account books of appellants are conclusive against themselves. 5 Denio, 470.
   Walker, J.:

Anderson, as the assignee of Samuel F. Arnett, filed his bill of complaint in the Drew Circuit Court, to enjoin the sale of certain real estate, before then mortgaged by Arnett to Johnson & Goodrich, to secure the payment of certain notes which he alleges have been paid.

Upon the state of case made by the pleadings and proofs, the court below perpetually enjoined the sale of the lands so mortgaged, from which defendants appealed.

It is alleged in the bill, that, on the 27th April, 1871, Arnett executed to Johnson & Goodrich four notes for $5,000 each, payable, respectively, on the first days of November and December, 1871, and the 1st and 15th of January, 1872, with eight per cent, from maturity. That on the same day the notes were executed, Arnett executed to Johnson & Goodrich a mortgage upon several tracts of land and lots of land, to secure the payment of the notes. .

That a subsequent mortgage was -executed, to release one of the lots embraced in the first mortgage and to substitute other .lands in its place.

That in order to pay off the notes, Arnett, in September, 1871, and at other times, shipped to defendants ninety-five bales of cotton, the nett proceeds of which was $7,782.46. That he also transferred three life policies on his own life for $5,000 each. That Arnett soon after died, and that Johnson & Goodrich collected and appropriated this money, which, with the proceeds of the cotton, amounted to the sum of $22,782.46, which paid and more than paid, the notes so executed, for the payment of which rtke mortgage was executed.

Arnett, before his death, assigned all of his estate to Anderson to pay his debts.

The answer of the defendants does not controvert the fact of the execution of the notes, the mortgage given to secure the payment of them, or that the amount of money was received upon the cotton shipped and upon the life policies. But the defendants insist that there was an open account outstanding before the execution of the mortgage, and kept up until 7th May, 1873. That no direction was given by Arnett to the defendants as to the disposition of the sums received, and they were all duly credited on the general account, which, on the 7th May, 1873, left ■a balance due from Arnett to defendants of $3,581.65. Defendants make an exhibit of an account stated, in which this balance .appears due, and say that the account was shown to Arnett in his lifetime, and that he did not question its correctness.

The real question at issue is as to the proper application of the ■payments. If applied to the extinguishment of the mortgage debts, then the mortgage is satisfied and the property mortgaged is released. And if a balance should be found due defendants,, they must seek satisfaction against the estate conveyed in trust,, or against the estate of Arnett in the hands of his administrator. If not, and provision was made in the mortgage for its payment, the mortgage property should be held liable for the payment of the balance due defendants.

It appears that between the year 1870 and the 26th April,. 1871, the defendants, cotton factors, of the city of New Orleans,, had opened an account with Arnett, a merchant of Drew county, Arkansas, and, as stated by defendants in their, answer, and as appears from the evidence, there was, on the 27th April, 1871, a balance due from Arnett to defendants of $19,430.66. It was at this time that Arnett executed to defendants his four notes for $5,000 each, and also executed to defendants a mortgage upon real estate to secure the payment of the notes. No reference is made in the deed of mortgage to any other indebtedness, none to-future indebtedness or advancements. The notes are set forth in the deed, and the express conditions are that- when the notes and interest are paid, the deed shall be inoperative.

Whether the notes were given to secure the payment of the balance then due, does not appear. It may be observed that the-notes were only for a few hundred dollars more than the balance then due defendants, and such may have been intended.

It is averred in the bill, and admitted in the answer, that,' at the time the notes were executed, Arnett assigned to defendants three life insurance policies, of $5000 each, which were paid, but not until after the notes had matured, arid that in September, 1871, and thereafter Arnett shipped to defendants cotton, which was sold for the net sum of $7782.46 — -with the life policies-making a total payment of $22,782.46.

Plaintiff says this money was paid in satisfaction of the notes-; that it was enough, and more than- enough, for that purpose. Defendants say that this amount was placed to Arnett’s credit upon his general indebtedness.’

In the absence of any instructions as to the application of the money as a credit, the rule in the case of running accounts, such as defendants assert in their answer to have existed, and such as the proof shows to have existed, is, that when there are various items of debt' on one side, and of credits on the other, accruing at different times, and no special appropriation of the payments is made by either party, the successive payments or credits ai’e to be applied to the discharge of the items of debt, in the order of time in which they stand in the account, or, in other words, each item of payment or credit is applied in extinguishment of the earliest items of debt standing in the account, until the whole payment or credit is exhausted. 1 Story Equity, sec. 459; 2 Parsons Cont., 633.

If this was properly a question of election of payment of different debts, then, in the absence of instructions as to how the credit should be applied, the creditor could, under the common law rule, have applied the payment to the one or the other debt at pleasure. There can be no election unless there are more debts than one. Law v. Southerland, 5 Gratt., 357.

The rule under the civil law, which was in force in Louisiana, where this debt was payable, is, that payment is, in the absence of instructions, to be made on the debt most onerous to the debtor. Forstall v. Blanchard, 12 La., 1. Under this rule the mortgage debt, being at interest, should have been first extinguished.

The defendants rely upon proof to show that the payments were applied to the general account with the knowledge and approval of Arnett. Upon this point the evidence conduces to prove that as early as 1870, Arnett entered into an agreement with defendants to ship cotton to them as cotton factors; that witness was cashier of defendants at New Orleans, and was ordered by defendants and Arnett to keep the accounts in the name of S. F. Arnett, and to place all cotton received from Arnett, or White and Arnett, to the credit of Arnett alone.

The first account current was rendered to Arnett in the month of April, 187.1. He then owed a little over $19,000, as shown by the first account current. At that time, in order to secure Johnson and Goodrich for his then indebtedness, he executed a mortgage, and also assigned to defendants three policies of life insurance for $5000 each on his own life. Arnett examined the first and second accounts current — the second was in August, 1871- — and made no objection.

Arnett was in the city in the spring of 1872. Witness says: I rendered him an account then, as I had done in the fall of 1871; he was in the city a month or two before his death, and then gave instructions, or remarked that the above mortgage and life insurance policies should be held against his account, which he had failed to cover or meet by shipments of cotton. He remarked that if he did not ship sufficient cotton to cover his account, his life insurance policy, and the mortgage on his property, would amply cover the advances made, or indebtedness due the defendants. Advances were made, after the maturity of the mortgage notes, to Arnett by defendants, because they considered the mortgage and life policies sufficient security in their hands; at least believed so, because Arnett represented that they should be secured for such advances, the mortgage having been executed and assigned for such purpose.

Arnett said that he was satisfied with the accounts rendered in April, 1871; and August, 1871. When in the city in February or March, 1872, he made no objection to the account.

This is substantially the evidence with regard to the manner of keeping the accounts. The first account was rendered before the mortgage was executed, and, of course, can have no bearing upon the question of credits, and that in August, 1871, was rendered before the credits were given for the policies and the cotton shipped, or even if such had not been the case, the manner of ..keeping the accounts was not by any means inconsistent with the liquidation of the mortgage debt by the credits as entered. Take all that the witness deposed together, and we think that parties understood the payments.which had been made went to. the liquidation of the notes, for the payment of which the mortgage was given.

The evidence is, that on April 22d, 1871, Arnett was in New Orleans; his account was then made out and presented to him ; the amount due was $19,430.66, or, as witness stated, was over $19,000; that Arnett, in order to secure defendants for the amount of his indebtedness, executed the mortgage and assigned the policies of insurance ; that witness heard Arnett remark, that if he failed to ship cotton to cover his account, the mortgage and the policies would amply cover the advances made, and that advances were made after the notes were executed. Nothing is said about the debt, for the payment of which the notes were executed, remaining unpaid, but the expectation and belief were that the mortgage would hold good as an indemnity for subsequent advancements made upon the faith that they were secured by the mortgage.

If the mortgage had been executed, as well to secure the payment of future advancements, as for the payment of the notes,, the expectations of the defendants might have been realized, but this .they failed to do, and no parol declarations, as to what was. supposed or intended to be its effect, can come in aid of this fatal defect.

It is true that defendants, in their answer, assume that the deed was executed for the purpose of covering a balance that might, be found due on final settlement, but there is nothing in the deed to sustain such a presumption.

The estate mortgaged is only charged with the payment of the debt, to secure which the deed is executed. In Hooper, ex parte, 19 Vesey, 477, where an attempt was made to extend the mortgage lien, so as to protect a debt not expressly provided for, Lord Eldon said: “There never was a case where a man having taken a mortgage by a legal conveyance, was, afterwards permitted to hold the estate as further charged, not by a legal contract, but by inference from the possession of the deed.”

In Walker v. Snediker, 1 Hoff. Chy. 146, the court said: “It is certain that a mortgage cannot be rendered available for future liabilities by subsequent parol agreement.”

Where a deed of trust has been executed to indemnify a party against a specific liability, the amount of indemnity thus designed to be secured cannot be reduced by proof of and other distinct claims against the cestui que trust. Nolly v. Rogers, 22'Ark., 227.

The security afforded in a deed of trust or mortgage only extends to debts set forth in the deed. Whiting v. Beebe, 12 Ark., 428.

In the case of Harrison & Robinson v. Johnson, 27 Ala., 445, a question much like the one we are considering, arose. An account current was kept, in which part of the indebtedness was claimed to have been extinguished by payments. The Circuit Court gave the following instruction to the jury: “If the plaintiffs were commission merchants of Friend, and as such kept a general running account with him, and entered the notes on both sides of his account as above stated, and rendered an account to him on the 2nd of April, 1853, showing a balance against him of $5,750 and that Friend afterwards made said payments of $2,882 and $2,680 without directing their application, then the plaintiff had the right to make the application of them, and that if they failed to make any application of said payments, but entered them generally to the credit of Friend on the general account current, which included these notes, then the jury must apply said payments first to the aforesaid balances rendered by plaintiffs to said Friend, and plaintiffs were entitled to cover the difference between the amount of said balance $5,750 and the amount of said payments, after making an accurate computation of interest.” Goldthwaite, Judge, when considering the correctness of this instruction, said: “The evidence shows that the appellants were the factors and commission merchants of Friend, and that there was a running account between them, * *• * and in the absence of any application of the payments by the parties, the law applies them to the charges, in the order of time in which they accrue, without reference to the fact that one item may be better secured than another, * * * upon the principle that such an appropriation is most consonant with the instruction of the parties.”

Conceding the facts to be that the account kept by defendants was a running account, in which balances due were brought forward, and that Arnett was apprised of the fact, and did not object to the manner of keeping the accounts, still, if the credits were applied as they should have been, in the absence of instructions, (and it is not claimed by the answer that any were given) to the payment of the debts in the order and time stated in the account, the notes given to secure the payment of the old indebtedness were paid.

By reference to the account current, it will be seen that within less than two months after the execution of the notes, two of them, or $10,000, are charged against Arnett, and credited to him less discount of $137.09 as of the same date. Here then at the outset was a settlement of two of the notes, less the $137.09. In September 18th, 1871, another of these notes of $5,000 is charged, which sums with the $7,782.46 greatly exceed the amount of the notes, without taking into account various other payments made in 1871, and the $15,000, less expenses, upon policies of insurance received in June, 1872.

The appropriation of the insurance money was made after the death of Arnett, and, of course, without his sanction. Independent of this it has not escaped our notice that the interest account, as well as a charge for damages alleged to have been sustained by reason of the failure of Arnett to ship as much cotton as by the terms of his contract of 1870, he had agreed to ship annually, was not brought up and charged until after Ar-nett’s death, the latter item amounting alone to $955.46, when all considered would leave but a very small balance due upon the general account.

There was, therefore, no mortgage debt due, if indeed any debt whatever.

There is no claim in the answer that the credits were placed by the direction of Arnett. The most that can be drawn from it is, that he made no objection to the manner in which the account was kept, and therefore all of the evidence tending to prove such direction on the part of Arnett is outside of the case made by plaintiffs, and there is no margin within the state of case made by the pleadings upon which it can rest..

If we take the case as presented by the defendants, and the evidence introduced by themselves, it is apparent that in point of fact the mortgage debts were paid, but that after such payments advances were made to Arnett, which it is claimed were intended to be secured and covered by the mortgage, as there were no provisions made in the deed which could cover such subsequent indebtedness, and which could be aided by a parol agreement to that effect, we must hold the lands mortgaged not bound for such advancements. That as the mortgaged debts were paid, the lands mortgaged were no longer encumbered, and that the sale of the lands for the payment of a balance of indebtedness upon the account stated, was properly enjoined.

Let the decree of the Drew Circuit Court be in all things affirmed.


source: Caselaw Access Project

author: Walker, J.:

license: Public Domain

text:
    Alter vs. Kinsworthy, adm’r.
    1. Olaims Against Estates: Probate of.

    The probate of a claim against an estate, made before a justice of the peace of another State, whose official character is not authenticated, is insufficient.
    2. Same: Amendment, etc.

    The affidavit proscribed by law', fir the authentication of claims against estates is a prerequisite to the right of action against the administrator, which he cannot waive, and may be taken advantage of at any time before trial and final judgment; nor can an insuficient affidavit be cured by amendment.
    ERROR to Lafayette Circuit Court.
    Hon. Myron D. Kent, Circuit Judge.

      Gallagher and Newton, for plaintiff.
    The defect, of want of affidavit, was waived by appearance and answer to the suit. Motion to dismiss was a thing in abatement. This case comes within the principle of Borden v. Fowler, adm’r, 14 Ark., 471; Grimes, adm’r, v. Bush, 16 ib., 647; Maddin, adm’r, v. State Bank, 13 ib., 276.
    J. M. Moore, for defendant in error.
    The motion to dismiss and order of dismissal are brought up only as part of the bill of exceptions. Nothing is before the court. Ark. Rep. 1, 360; 10, 448; 17, 535 ; 21, 454 ; 13, 482; 4 Howard U. S. (297). The affidavit is informal, 1 Mete. (Ky.), 598; 17 Md., 92. The official character of the justice of the peace, in another State, is not authenticated. 26 Ark., 528. Affiidavit made after suit brought, not good. 7 Ark., 84. Administrator could not' waive the defect. 10 Ark., 254; 14, 251; 21, 519; 5, 325; 25 Miss., 501.
   Walker, J.:

This suit was commenced in the Probate Court of Lafayette county, by filing the transcript of a judgment, with a claim predicated upon it, against the estate of Robert H. Wynn, of whose «state Kinsworthy was the administrator. There is appended to the claim what purports to be an affidavit taken before a justice of the peace in the State of Louisiana, unaccompanied with any evidence that the person before whom the affidavit purports to have been taken, was an officer of that State, and, for this defect, as well as that it was not, in terms, a compliance with our statute, is wholly defective.

At the calling- of the case in the Probate Court, Kinsworthy objected to the affidavit as being insufficient, but his objection was overruled. And thereupon he interposed a defense which questioned the validity of the claim.

Subsequently, upon leave granted for that purpose, the plaintiff filed another claim, for a much larger amount, based upon the same judgment, which was duly authenticated. This amended claim was allowed to be filed, over the objections of the defendant. Upon the hearing of the case in the Probate Court, the claim of Alter was disallowed, and judgment rendered against him for costs, from which judgment he appealed to the Circuit Court.

When the case came up to be heard in the Circuit Court, upon appeal from the Probate Court, the defendant filed the following motion:

The appellee, B. H. Kinsworthy, as administrator of the estate of R. H. Wynn, deceased, by attorney, moves the court to dismiss the suit of appellant, Charles E. Alter, upon the following grounds:

First — Because it does not appear that the appellant, or any person for him, exhibited his supposed claim herein, before the commencement of this suit, by delivering to the administrator of said deceased a copy of his supposed claim with the assignment and credits thereon, if any, duly and properly authenticated by his affidavit, or the affidavit of any other person for him, and by exhibiting the original.of said supposed claim to such administrator for allowance or disallowance.

Second — Because it does not appear that any such affidavit as required by law, for authenticating claims against deceased persons, was made to such claim herein, prior to the commencement of this action.

Third — Because the affidavit to the supposed amendment herein was made after the commencement of this action.

The Circuit Court sustained the motion to dismiss, and rendered judgment against Alter, to which he has sued out a writ of error.

This objection is in its nature matter in abatement, which it is contended for appellant was waived by the appearance of the defendant to the action in the Probate Court; appellant also insists •that the defendant waived this objection before the trial in the Probate Court.

It appears from the transcript that the defendant waived all notice of the time, -place and court, where the claim was to be presented, and the service of a copy of the claim, but not of the affidavit.

It is not inconsistent with the duties of the trust reposed in the administrator, to waive notice of time and of a copy of the claim. But we apprehend .that if he had waived the affidavit required to accompany the claim when presented for allowance, that such waiver would have been beyond his duty as administrator.

The statute requires that the party who presents his claim for allowance shall append to such claim an affidavit: “That nothing has been paid or delivered towards the satisfaction of the claim, except what is credited thereon, and that the sum demanded is justly due.” Sec. 107, Gould’s Digest, p. 122, provides : “ That if the affidavit required for the authentication of claims against deceased persons be not produced in an action against the executor or administrator for a debt against the deceased, the court shall, on motion, enter a judgment of non suit against the plaintiff. And the affidavit must appear to have been made prior to the commencement of 'the suit.”

In the case of Burns & Burnside v. Imboden, adm’r, 14 Ark., 240, this question was presented, under circumstances in some respects like the one before us. In regard to which Mr. Justice Scott, who delivered the opinion of the court, said: “ It also appears by the transcript of the proceedings of the Probate Court, that the case was twice continued in that court by consent of parties, before it was finally heard and determined there; and upon the latter ground it is insisted here, that the want of authentication (if this court should hold the affidavit insufficient) was matter in abatement, and therefore the motion for non suit, after the continuance, was out of time; and remarked, that in the case of Ryan, et al., v. Lemon, adm’r, 2 English, 78, it was held that this motion might be made at any time prior to final judgment; and in the case of Walker v. Byers, 14 Ark., 246, it was held, that the objection for want of authentication might be taken either by plea, or motion by way of objection to the admissábility of evidence offered to establish the claim.

The correctness of these decisions, made in the earlier days of the court, has never been questioned, and yielding our assent to them, we must hold that the filing of the required affidavit, verifying the claim presented for allowance, with the claim, was a prerequisite to the right of action, one which is necessary to entitle the party to present his cause of action in court, and which may be taken advantage of at any time before final judgment.

It is claimed for the appellant that conceding the claim, as first presented, defective for want of an affidavit, the amended claim, with a valid affidavit, cured this defect, and that the motion to dismiss should not have been entertained.

But it máy be remarked in the first instance, that the claim presented, and to which an affidavit was attached, was another and a different claim from, that first filed for allowance, but upon the same record. But if the amendment had been made, only by attaching a valid affidavit to the original claim, we think it would not be permitted, because the filing of the affidavit was a condition precedent to the right of action.

The statute required that the claim, properly authenticated, should be presented in the first place to the administrator for his approval and allowance; if approved by him, all litigation is waived: until rejected by the administrator the claimant was not required to present his claim for probate to the court. No amendment of an affidavit, or the filing of an additional affidavit, could cure the defect, it reached back to the inception of the action.

Under the state of case presented we think the motion to dismiss was properly sustained.

Let the judgment be affirmed.


text:
    Atkinson vs. Hulse et al.
    Pbooebding to becovbb sdmmaey judgment: What the judgment must show.

    In a proceeding hy notice and motion to recover summary judgment against a sheriff and his sureties for failure to serve process, the notice must show that the fees and mileage to which the officer was entitled, was paid or tendered.
    APPEAL from Nevada Circuit Court.
    Hon. James K. Young, Circuit Judge.

      Smoote & Kelso for plaintiff.
    By accepting summons, the sheriff waived his right to a fee in advance. Officers should be held to a strict accountability. Hill v. Seioell, 27 Ark., 19.
   Walker, J.:

This was a summary proceeding had by Atkinson against Hulse, as sheriff, and the securities upon his official bond, for failing to execute two writs of summons directed to him to be executed, but which, as alleged, he failed and neglected to execute and return.

Without setting out the notice, which it may be conceded was sufficient, in all other respects, to charge the sheriff for a neglect of official duty, if it had been set forth that his fees had been tendered him, the question is whether, in the absence of such averment, the notice was sufficient to charge him with a neglect of official duty. The demurrer to the notice, which was sustained by the court below, brings this question before us.' By section 2852, Gantt’s Digest, it is provided, “That no sheriff, coroner, constable, or other officer, shall be compelled to execute any writ or process, except in criminal cases where the State is plaintiff, unless the person in whose favor such writ or process is issued, his agent or attorney, shall first tender to such officer a sufficient sum of money to pay the costs of such service and mileage from the court house to the usual place of abode of the defendant, or other person named in the writ or process. Nor shall such officer be liable in any manner whatever for failing or refusing to execute any writ or process until the fees thereof be first tendered.”

The notice was fatally defective in not setting forth that payment of such fees and mileage had been made or tendered.

The demurrer was properly sustained.

Let the judgment be affirmed.


text:
    State, use, etc. vs. Brown et al. .
    Payment: For School Land during the tear.

    A purchaser of school land paid for the same and received a patent from the State during the war. Held; that the payment was good.

      APPEAL from Pulaski Chancery Court.
    Hon. John R. Eakin, Chancellor.

      Hughes, Attorney General, for appellant.

      Rose, contra.

   Walker, J.:

The State brought this suit to subject certain school lands in Cross county to sale, to pay for the purchase money which it is alleged remains unpaid.

It is alleged that the State was the owner of the north half of section 16, township 9 north, range 3 east, containing 320 acres, situate in Cross county, which on 15th day of July, 1860, the State, by its officers, sold to the. defendant Brown, for the sum of $640 for the payment of which he executed his bond payable in five years with eight per cent, interest. That defendant Stanley has, or claims to have an interest in the land, and prays that he be made a party, and alleges that if, in fact, Stanley has such right it is subsequent to the rights of the State. That profert of the bond cannot be made because the money was paid to the State authorities in 1862, and the land taken up. That no part of the purchase money has been paid, and prays that the land be sold to pay the same.

Stanley appeared to the action and filed his demurrer to the bill, and also his answer, in which he says that, in 1861, or the first of the year 1862, the purchase money for the land was paid, and that on the 20th of March, 1862, a patent was issued by the Governor of Arkansas to defendant, as assignee of Brown, by force of which he is legally possessed of the lands. A patent in due form from the Governor of the State to Stanley is exhibited.

The only question at issue is as. to the validity of the payment made to the State after the passage of the act of secession.

• • If there was a State government competent to receive, money due to the State, and make grants of lands belonging to the State,, then there is no doubt but that the State has been paid, and the land parted with.

That for all the ordinary purposes of administering the affairs of the State government, such was the case, has been so repeatedly decided, as now to be considered a settled question, as well by the repeated decisions of this court, as by an express act of the Legislature, approved 22nd March, 1867, which provides that “all patents executed during the late war for 16th sections of school lands, are hereby ratified, confirmed and made valid.” This act was intended to put at rest a question as to the existence of the State government of Arkansas during the rebellion, so far as regarded the sale of school lands, but which was questioned by the judiciary of this State as then organized, but which by the recent decisions of the United States Courts, as well as of this court, has been definitely settled.

The Chancellor, in a very well considered opinion, held the answer of Stanley sufficient and denied the relief asked by the State.

Let the decree be in all things affirmed.


text:
    Bradford, Rainwater & Co. vs. Toney.
    Parties: Joinder, eta.

    Where two or more parties are jointly bound by contract, a party may sue one or more, or all, at his election.
    ERROR to Ouachita Circuit Court.
    Hon. James K. Young, Circuit Judge.

      Rose, for plaintiff in error.
    Payee may sue one or more makers of a note at his option. Gantt’s Dig., secs. 4479, 4480, 572, 3587, 4702, 4704. Besides it has long been the law in this State. Hamilton v. Burton, 6 Ark., 24; Burgen -v. Dwinal, 11 ib., 320; Hides v. Manees, 9 ib., 701; Hides v. Branton, 21 ib., 191; Walker v. Walker, 7 ib., 543.
   Walker, J.:

Bradford, Rainwater & Co. brought an action of debt against J. R. Toney upon a promissory note executed to plaintiffs by the defendant (and James M. Toney who was not sued) under the name of J. R. Toney & Co.

The defendant demurred to thé declaration and assigned as cause for demurrer that James M. Toney, who was jointly liable with the defendant, was not joined as a party to the suit.

The demurrer was sustained and judgment rendered against the plaintiffs for the costs.

The case is brought before us upon writ of error.

When two or more parties are jointly bound by contract, the action thereon may be brought against all, or any of them at the plaintiff’s option. Gantt’s Dig., sec. 4480.

The question raised by this demurrer has been so often decided in affirmance of the right of the payee in a note to sue one or more of the payors at his election, that it is a matter of surprise that the court below should have sustained the demurrer. Hambleton v. Burton, 6 Ark., 24; Walker v. Faulkner & Walker, 7 Ark., 542; Burgen v. Dwinal, 11 Ark., 314.

Let the judgment of the Circuit Court be reversed and set aside and the cause remanded for further proceedings.


text:
    Lee County et al. vs. Lackie.
    1. Paupers: Duty of the County Court and officials in regard to.

    Sheriffs, Coroners, Constables and Justices of the Peace are, bylaw, charged with the duty of ascertaining who are in needy and suffering circumstances, and reporting their condition to the County Court, and it is the duty of the court to inquire into the condition of such persons, whether brought to its notice by such officers or otherwise, and determine whether r not they are paupers.

      2.--: When the County becomes liable for the support of paupers.

    In order to charge the county with the support and maintenance of destitute persons, they must first be adjudged paupers by the County Court.
    APPEAL from Lee Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Rose, for appellants.
    Mere poverty does not make a pauper. Brem v. Ark. Co., 9 Ark., 243.
    See Gantt’s Dig., secs. 669, 676, and for definition of pauper. Bouvier L. D.
   Walker, J.:

Lackie, a practicing physician of Lee county, presented a bill for medical services rendered to a young man, a resident of the county, who was in indigent circumstances, without means to pay his doctor’s bill. The sum claimed for such services was $90. The claim was presented to the County Court of Lee county, to be allowed as a county charge. After having heard the evidence, the County Court allowed $50 as a charge against the county, and Lackie appealed to the Circuit Court. The case was tried in the Circuit Court, by the judge, sitting as a jury, by consent of parties.

The evidence set forth in the bill of exceptions presents the following state of case :

That Alexander Brasher, a resident of Lee county, about twenty-one years of age, who, until taken sick, was a strong able bodied young man, who hired as a laborer, and in February, 1875, was hired by, and living with, a resident citizen of the county, was taken sick there, and required medical attendance, for which he was unable to pay, that he was visited, and attended upon whilst sick, by Doctor Lackie, a regular practising physician; that the services were rendered and the charges reasonable; that it was not claimed that Brasher was a pauper, or that Doctor Lackie attended him as such; that Brasher was never reported by any officer, whose duty it was to make report to the County Court; that no charge was made against the county at the time the services were rendered ; that Brasher was getting well.

Such is substantially the evidence.

The court was asked, in view of the state of facts, to make the following declarations of law applicable to the case:

First — A person who is ordinarily strong and able bodied, though he may fall sick, and have no means with which to procure medical aid, cannot be called, under our statute, a pauper, and an allowance made by the County Court to a physician for medical aid rendered to such person is contrary to law.

Second — An allowance cannot.be made by the County Court for the benefit of poor persons, until such persons have been presented by the officer, whose duty it is to report poor persons to the county, and declared by such court to be paupers.

Third — A pauper is one who is destitute of means, and physically unable to labor for a living, and this destitution and physical disability must be grave and of long standing, or so continued as to make the subject necessarily, from humanity, a charge upon the county.

The first two declarations of law were refused, and the third, qualified by adding the law to be: “That it is the duty of each

county to provide for the paupers therein, such as the sick who are unable to support themselves, and have no. sufficient estate of their own.”

And the court, upon the state of case made by the evidence found, that Brasher was a pauper; that Lackie, as physician, rendered the services,' and. that they were worth $90, which the county of Lee was bound to pay.

Judgment was rendered against the county, a new trial asked and overruled, exceptions taken and the case brought before us by appeal.

The question of law presented is: Was Brasher a pauper, or poor person, for whose medical attendance the county should be charged?

The statute, Gantt’s Digest, section 678, provides that every county in this State should relieve, maintain and support its own poor, such as the lame, the blind, the sick, and other persons who, from age and infirmity, are unable to support themselves, who have no sufficient estate of their own, and who have not removed from another county for the puiqmse of imposing the charge of keeping them on any county other than the one in which they last lived.”

Section 669 provides for the establishment of a poor house, in which the poor and indigent are to be kept.

Section 671 provides for the appropriation of means for building a poor house.

Section 672 provides for letting out the building to some suitable person, whose duty it is to take charge of the poor, to furnish clothing and medical attendance.

Section 674 makes it the duty of sheriffs, constables, coroners and justices of the peace, to give information of such persons as they may ascertain to be paupers, and the court, if satisfied that they come within the character of persons contemplated by the act, "shall, from time to time, provide for such poor persons at the expense of the county, and for that purpose may draw orders on the treasury of the county; and, finally,

Section 676 provides that “ all paupers reported to the County Court under the'provisions of the preceding sections shall, upon the court being satisfied-that they are paupers, be, by order of court, delivered over to the keeper of the poor house by the sheriff of the county,to remain there under the care of the keeper until discharged by order of the court.”

The question of making provision for the care and support of the poor in every community, particularly in cities, and all densely populated countries, is becoming of increased importance. Appeals are frequently made for assistance to the individual public, and is more or less responded to according to the ability and charitable disposition of those to whom it is made.

In order to provide some general means for giving protection to that class of poor persons termed paupers, our Legislature has imposed the duty of providing a home for such upon the County Courts of each county, whose duty it is made to determine who are, or are not, proper objects of care and expense. Sheriffs, coroners, constables and justices of the peace who- reside in, or are required in the discharge of their official duties to pass frequently over every part of the county, are charged with the duty of ascertaining who are in destitute and suffering condition, and to report them to the County Court, whose duty it is made to examine into the circumstances and condition of persons so reported, or brought otherwise to their notice, and to determine Avhether they are or not paupers.

In a general sense, all poor persons may be said to be paupers, but not in the statute meaning of the term. A pauper is defined to be a poor person, particularly one so indigent as to depend upon the parish or town for support. Whether the poor person is so indigent, so infirm, sick or disabled as to become an object of public care and support must be first passed upon by some competent tribunal.

As a general proposition, the court was certainly correct in declaring the law to be, that -it is the duty of each county to provide for the paupers therein.” But the court, by refusing to declare that it was necessary for the County Court to pass upon or determine the condition of those persons who were to become a charge upon the county for support, in effect assumed that all poor persons, whether ascertained by the County Court to be paupers er not, should, when supported or cared for at individual expense, became a public charge upon the community, to the extent of paying for the care, protection and support thus given.

We are sensible of the difficulty that must arise upon emergencies, and before time and opportunity can be afforded for the court to act, and that some who deserve protection and care may, for a time, be left to suffer, or left to the charitable in the vicinity where they may be found.

But unless this question of support and care is determined by some tribunal, and is not left open to be determined by the person called upon to give support or relief, it is evident that a greatly increased and unnecessary charge may be made upon the county, in which such poor person resides.

The law seems to have' made provision, not only for the protection and care of the paupers of the county, but has provided a tribunal to ascertain who are the proper subjects of public charge. It has, moreover, charged a class of its officers with the duty of giving information of all such known to them. This duty may be hastened by individuals calling the attention of these officers to such as may have escaped their observation; or any citizen may bring the facts to the knowledge of the County Court, whose duty it is to pass upon the condition and circumstances of the subject presented for its consideration, and if found to be a proper subject of charge upon the county to make the necessary order for that purpose.

Looking at the evils which may result in individual cases from delay on the one hand, and the increased burdens which may be imposed upon the county on the other, by extending the right of charge for care and support, to all who are supposed to be poor and in need, without the object of such care being first adjudged by the court a pauper, and a fit subject for public charge, we think it safest and most conducive to the public good, and in accordance with the and intent of the to hold that in order to charge the county with the expenses of the care and support of paupers, they should first be declared such by the County Court. Such was our decision in the case of Bren v. Arkansas County, 9 Ark., 240.

Private individuals, as well as physicians, may upon emergencies be called upon to give temporary relief to sufferers from sickness or other cause, before the court can be called to act upon the case.

Perhaps physicians, more than any other class of citizens, are the largest contributors of relief. The pages of their account books, if examined, would no doubt disclose a very large sum charged for professional services, to those who were not at the time’the services were rendered able to pay, and which, if charged to the county, would impose an enormous tax.

In the case before us, it appears, that a young, active laborer was taken sick in the county of his residence. Medical aid was necessary, and was bestowed upon him; that the charge was a reasonable one. The young man had not been, and perhaps upon an appeal to the County Court would not have been, declared a pauper. The services of the physician were not rendered at the instance of the county or any one in charge of the paupers of the county.

Under this state of case the court should have ruled that Brasher was not a pauper, and that services rendered to him while sick was not a charge upon the county.

We think the court erred in its rulings of the law applicable to the case, and for this error the judgment and decision of the court below must be reversed and set aside, and a new trial granted.


author: Harrison, J.:

text:
    Palmer vs. Rankins et al.
    1. Pleading: Bill to subject wife’s separate estate, requisites of.

    A complaint filed for the purpose of subjecting the wife’s separate property to the payment of debts contracted in relation to it, should clearly show her interest, and either make her trustee a party, or show that she' had none.
    2. Wife’s Separate Estate in Land: Gannot be sold to satisfy a charge.

    The wife’s separate estate in land cannot be sold to satisfy a charge against it, only the rents and profits will be applied to the satisfaction of the charge.
    3. Practice : Amendment. Dismissal, etc.

    Where, upon a complaint in equity, it appears that there is merit in the plaintiff’s case, though defectively stated, it should not be dismissed absolutely, but leave should be granted to amend, or the cause should be dismissed without prejudice.
    APPEAL from Phillips Circuit Court iu Chancery.
    Hon. L. H. Mangitm, Special Judge.

      John C. Palmer, for appellant.
    As to liability of the wife, on her separate property. Dobbins & Wife v. Hubbard, 17 Ark., 189; Stilwell & Wife v. Keatt, ex’rs-, 29 id., 346. ,
    The act of April 1873, was not retrospective and.does not apply. Previously she could only bind herself and be sued in equity.
    If brought on the wrong side of the court the suit should have been transferred. See Code.

      Tappan & Hornor & J. Cole Davis, for appellees.
    The lien for services, or benefits rendered the wife could not attach to property afterwards acquired by her.
    There was in this ease adequte remedy at law. Gantt’s Digest, sections 4194, 4199, 4197; Black v. Bowman, 9 Ark., 501. No lien on lands for professional service. Hanqer & Wife v. Fowler, 20 Ark., 667.
   Harrison, J.:

This was a suit in equity in the Phillips Circuit Court by John C. Palmer against Robert P. Rankins, Mary C, Rankins, his wife, and E. Richardson.

The complainant in substance alleged : That a suit in equity having been brought in the Phillips Circuit Court by Leonidas Campbell against the defendants Robert P. Rankins and Mary C. Rankins and others to enforce a vendor’s lien on certain lands known as the Rankins’ plantation, which the said Robert P. Rankins had conveyed in trust for the said Mary C. Rankins and others, but who, was not stated, and of which she was in possession as her separate property, the said Mary C. Rankins, retained and employed the plaintiff as her solicitor to make defense for her thereto, and to conduct and manage the same, and that he accordingly appeared for and represented her in said suit and conducted and managed her defense until the case was finally determined in this court.

That no agreement was made as to his fee, but that the lands were valuable, worth at least $25,000, and the rents and profits during her possession the preceding seven years, amounted to $20,000, and his services were reasonably worth $2,500, which sum, with the exception of $410 remained unpaid, and was a charge upon the said Mary C. Rankins’ separate estate.

That the plaintiff rendered other services for the said Mary C. Rankins, as her solicitor in another suit in equity brought by Peyton A. Key against her and the said Robert P. Rankins, for the settlement of a partnership between the parties in a crop of cotton and corn raised on said plantation, also without any understanding as to his fee, but which was reasonably worth $250 and which likewise was a charge upon her separate estate. And that on the 19th of February, 1870, he sold her for the use of said plantation a mule for $175, for which she executed, to him her note, with her husband, the said Robert P. Rankins, as security, payable on the 1st day of November, 1870, which also was a charge on her separate estate.

It is alleged that the suit of Campbell being determined against her, and the lien established on the lands and sale thereof for its satisfaction decreed, after the creation of the said several charges on her separate estate, a compromise was effected between the said Mary C. Rankins and the defendant E. Richardson, who had becoihe the assignee of Campbell and subrogated to his rights nnder the decree, and an instrument of writing of some kind was executed between them by which she became the equitable owner as her separate estate, of an undivided half of the lands; the said Richardson owning the other half.

The prayer of the complaint was that her interest in the lands should be sold to satisfy the plaintiff’s demands. .

Richardson entered his appearance, but made no defense.

The other defendants filed a joint and several answer, and also a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

The court, upon the consideration of the demurrer, sustained the same, and dismissed the complaint. The plaintiff appealed.

No question is made as to the power of a married woman to charge her husband’s estate with debts contracted in relation thereto, but it is contended for Mrs. Rankins that the estate she had in the lands when the debts were contracted, was divested by •the decree in the Campbell suit, and she acquired another by the .subsequent compromise and agreement with Richardson.

This, however, was not the case. Campbell asserted no title to the lands, and only sought to enforce his lien as vendor, and there was no adjudication as to Mrs. Rankins’ title.

The complaint is too vague and indefinite for us to understand .the real interest she had under the conveyance from her husband, as it appears to have been made in trust for others as well as herself, but who, or what interest they had, is not shown. But,, whatever it was, was unaffected by the decree, except as .to the establishment of the lien on the lands, and is the same in the undivided half secured to her by the compromise and disencumbered by the vendor’s lien, it was before the compromise was made.

The complaint was defective also, because the trustee of Mrs. Rankins was no’t made a party, or it did not show she had none.

Her equitable interest in the lands could not be sold. “Courts do n it,” says Mr. Perry, “ use any direct process against the separate estate of the wife, and the manner of reaching her separate property is by decree to bind the trustees to apply the personal estate in their hands, and the rents and profits of the real estate, .according to the justice of the engagement to be carried into effect.” 2 Perry on Trusts, sec. 662.

But though it is, for the reasons stated, apparent that no decree could be rendered on the complaint, yet as it plainly appears that the plaintiff’s case is not without merits, and he might be entitled to relief if it was more definitely stated, and all necessary parties were before the court, it should not have been dismissed absolutely, but leave should have been given him, if he desired to do so, to amend his complaint, so as to show with certainty the interest Mrs. Rankins had in the lands at the time of the compromise with Richardson, and make her trustee, if there be one, and, if necessary, others, parties; or, if he did not, to dismiss it without prejudice. Newm. Plead, and Prac., 215,454; Jones v. Minogue et al., 29th Ark.,”637.

The decree of the court below is therefore reversed and the cause remanded to it, with instructions to permit the defendant if he shall desire to do so, to amend his complaint so as to show the interest Mrs. Rankins had in the lands under the conveyance from her husband, and at the time of the compromise with Richardson, and to make her trustee, if there be one, and, if necessary, other persons parties; but should he not choose to do so, to dismiss his complaint without prejudice. .


text:
    Reed and Wife vs. Ash and Wife.
    1. Dower: Widow may relinquish.

    Though a widow cannot transfer her dower before assignment, she may relinquish to one holding the legal title.
    2. Administrator: When his interest in the land of his intestate ceases.

    Where the records of the Probate Court show that there are no debts against an estate, and the administration has been practically closed and dropped from the probate records, but no formal order entered discharging the administrator, he has no such contingent interest in the lands of the intestate as will affect the title of the heirs at law.
    APPEAL from Pulaski Chancery Court.
    Hon. John- R. Eaiiin, Chancellor.

      Benjamin and Barnes, for appellant.
    Striking the case from the docket of the Probate Court was no settlement of the administration. Gantt’s Digest, secs. 136 to 141.
    Widow cannot convey her dower interest until assigned. Car-nail v. Wilson, 21 Ark., 63; Jacobs v. Atkins, 14 Mass., 378; Wallace v. Hall, 19 Ala., 372; Pennington v. Yell, 11 Ark., 212; Graham v. Moore, 5 How. (Del.), 318; Nason v. Allen, 5 McC., 479.

      John Fletcher, for appellees.
    Our statute does not change the common law rule that on the death of the ancestor lands .vest in the heir, at least only sub modo, for payment of debts. Hills, adm’r, v. Mitchell, et al., 5 Ark., 608; Menifee’s Adm’r v. Menifee, 8 ib., 9; Carnatt, adm’r, v. Wilson, 21 ib., 63; Kiernan v. Blackwell, adm’r, et al., 27 ib., 235.
    • There were no debts, and there was ample personal estate. No occasion to apply to the Probate Court for sale, and no authority to order it. Gantt’s Digest, secs. 168-170.
    Vendee cannot resist payment of purchase money on account of apprehended defect of title. Bolton v. Branch, 22 Ark., 438; Worthington v. Curd, ib., 277; Walker v. Towns, 23 Ark., 147-150.
    Dower does not become a vested estate until assignment. 2 Scribner on Dower, p. 26-37. It cannot be conveyed to a stranger but may be released to one having legal title. Ib., 40 et seq. In equity a contract for transfer of dower will be enforced. Ib., 43.
    The mistake in the Christian name of the vendee cannot affect the deed. 3d Wash, on E. Prop., 239.
    No fraud specifically alleged nor shown. Yeates v. Pryor, 11 Ark., 66; Seaburn v. Sutherland, 17 Ark., 603; Johnson v. Walker et al., 25 Ark., 196.
   Harrison, J.:

This was a suit by Jacob Ash and Sarah B. Ash, his wife, against Moses Eeed and M. G. Eeed, to enforce a lien on land for the payment of a note given for purchase money, reserved in the deed of conveyance.

The complaint alleged:. That the plaintiffs and W. N. Slack and Sarah A. Slack, his wife, on the 1st day of November, 1871, sold to the defendant M. G. Eeed certain lots, in the city of Little Eock, for the price of $8,000; that $2,000 were paid in cash, and for the remainder the said M. G. Eeed and the defendant, Moses Eeed, executed to the plaintiff, Sarah B. Ash, their three promissory notes of that date, for $2,000 each, payable respectively January 1st, 1872, November 1st, 1872, and November 1st, 1873, with ten per cent, interest from date until paid. That the plaintiffs and said ~W. N. Slack and Sarah A. Slack at the same time executed to said M. G. Eeed a deed of conveyance for the lots, but reserving therein a lien for the payment of the notes, which deed was acknowledged and recorded.

That the defendants had paid the first two notes, but that falling due on the 1st day of November, 1873, then past, was still unpaid, and that they were in possession of the lots.

The defendants in their answer admitted all the allegations of the complaint. But they averred that the plaintiffs never had any title to the lots j that they belonged to John M. Eoss at the time of his death, whose widow the said Sarah B. Ash was; that Eoss died intestate, and that said Jacob Ash was the administrator of his estate, which had never been settled.

That at the time of the purchase the plaintiffs fraudulently represented to the defendants that they had a good fee simple title, and that, confiding in their representations, they had paid them the $6,000. That Jacob Ash conveyed the lots in his own right, and not in his capacity of administrator and without ány order or authority of the Probate Court, and that Sarah B. Ash only relinquished her dower; and they averred that the plaintiffs were insolvent.

They made their answer a cross complaint, to which they made Slack and wife also defendants, and prayed that the plaintiffs and Slack and wife be required to make said M. G. Eeed a good and sufficient title to the lots, or, in default, that the contract of purchase be rescinded, and the plaintiffs compelled to refund to them the $6,000 they had paid, with interest, etc., and that, after deducting the rents and profits during the time the defendants had been in possession, the balance due them be declared a lien on' the lots, and for a sale thereof.

The plaintiffs answered the cross complaint, and admitted that the lots belonged to John M. Ross at the time of his death; that he died intestate; that Sarah B. Ash was his widow, and that Jacob Ash was appointed his administrator; but they denied that the administration was still unsettled and said that said Jacob Ash was administrator on the 14th of July, 1858; that no demands had ever been exhibited against the estate; and although the administration had not been formally discharged by order of the court, it had been virtually long since closed and dropped from the records of the court.

They denied that they made any fraudulent representations to the defendants, but averred that the defendants had a full understanding and knowledge of the title, and that the said Sarah A. Slack was the sole heir of John M. Ross, and that the plaintiff, Sarah B. Ash, was his widow, which facts the defendants well knew; and they averred that their deed did convey to them a good and sufficient title in fee simple.

Slack and wife also answered the cross complaint, and their answer was substantially the same as the plaintiffs’.

The cause was heard upon the pleading, and an admission of record that Sarah A. Slack was the sole heir of John M. Ross, and a transcript of the Probate Court in the matter of the administration of John M. Ross’ estate. The court dismissed the cross complaint for want of equity, and upon the original complaint decreed a foreclosure of the lien and a sale of the lots. The defendants appealed.’

It was proven by the record from the Probate Court that there were no debts against Ross’ estate, and that Jacob Ash became administrator thereof on the 14th day of July, 1858,. and that the administration had been, since 1872, dropped from the. records of the court. It is therefore apparent that the administrator if the administration might be considered as still opened, had no contingént interest in the lots. '

But it is insisted by tbe plaintiffs that there had been no assignment of dower to Mrs. Ash, and the conveyance or release of her interest was for that reason inoperative, and her dower is still outstanding, and we are referred to the case of Carnall, adm’r v. Wilson, 21 Ark., 63. No question as to the assignment of the dower was raised by the pleadings, and no evidence in regard thereto was- before the court, but if there had been, such a question would have been wholly immaterial, for the case referred to is an authority directly in point, that though a widow may not transfer her dower before assignment, to a stranger, she may relinquish it to one holding the legal title.

By the deed from Mrs. Slack and her husband, the appellants, M. G. Reed became seized of the legal title, and by Mrs. Ash and her husband joining with them in the deed, her dower, whether assigned or not, was relinquished. Stedham and wife v. Mathews et al., 29 Ark., 650; 2 Scrib. on Dower, 40, et seq.

The decree of the court below is affirmed.


author: Darrell Hickman, Justice.

text:
    Billy Joe HENSON v. STATE of Arkansas
    CR 89-70
    775 S.W.2d 896
    Supreme Court of Arkansas
    Opinion delivered September 18, 1989
    [Rehearing denied October 30, 1989.]

      Greene Law Offices, by: Bill Luppen, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.

      Dudley, J., not participating.

   Darrell Hickman, Justice.

This is the second appeal in this case. In Henson v. State, 296 Ark. 472, 757 S.W.2d 560 (1988), we reversed the appellant’s convictions for aggravated robbery and theft of property because the trial judge failed to give an instruction on the lesser included offense of robbery. On retrial, Henson was convicted of theft of property.

On appeal the appellant argues the trial court erred in not granting his motion for directed verdict because there was no substantial evidence to support his conviction for theft of property. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989). Substantial evidence is that which compels a conclusion one way or the other with reasonable certainty. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). There was sufficient evidence to support the appellant’s conviction for theft.

The manager of the Sweden Creme testified that the appellant came to the Sweden Creme asking for directions to another business. He later found the appellant crouched down at the safe. The appellant jumped up and said, “You’ve caught me. Here’s the money.” He then put his hand in his jacket, and the manager thought he had a gun. Then the appellant fled. The manager testified that he knew there was between $700 and $800 in the money bag the appellant took from the safe because he had put that amount in the bag. The appellant argues the testimony was speculative in that the proof did not show over $200 was taken. We find the argument meritless.

Affirmed.

Dudley, J., not participating.


author: Robert H. Dudley,

text:
    Jim KING v. STATE of Arkansas
    CR 89-88
    775 S.W.2d 897
    Supreme Court of Arkansas
    Opinion delivered September 18, 1989

      Henry C. Morris, for appellant.

      Steve Clark, Att’y Gen., by: David B. Eberhard, Asst. Att’y Gen., for appellee.
   Robert H. Dudley,

Justice. Appellant was charged in one information with seven (7) counts of delivery of a controlled substance. Appellant was aware, at least from the date of arraignment, August 10, 1988, to the date of trial, October 31, 1988, that all counts were joined in the one information. Yet, during that time, he did not make a motion to sever the offenses. At trial, after the jury had been selected and sworn, and opening statements had been made by the State and waived by the appellant, he moved for a severance on the basis the charges were unrelated. The trial court denied the motion. We affirm.

We need not decide whether appellant had a right to severance of the offenses as he argues, see A.R.Cr.P. Rule 22.2(a), because, even if he had such a right, he waived it. A.R.Cr.P. Rule 22.1 provides in pertinent part:

(a) A defendant’s motion for severance of offenses or defendants must be timely made before trial, except that a motion for severance may be made before or at the close of all the evidence if based upon a ground not previously known. Severance is waived if the motion is not made at the appropriate time.

We have previously interpreted Rule 22.1 as it applies to the facts of the case now before us. In Owen v. State, 263 Ark. 493, 565 S.W.2d 607 (1978), we wrote:

Appellant’s objection came after the jury was selected and sworn. A motion for severance must be timely made before trial, unless it is based upon a ground not previously known. . . . Since the objection was not made before the trial commenced, there was a waiver of severance, even if the objection is considered to be a motion for severance.

Affirmed.


author: Steele Hays,

text:
    William R.C. EDWARDS v. STATE of Arkansas
    CR 89-129
    775 S.W.2d 900
    Supreme Court of Arkansas
    Opinion delivered September 18, 1989

      Harold W. Madden, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Steele Hays,

Justice. Appellant William R.C. Edwards was charged with (1) possession of cocaine with the intent to deliver, (2) possession of marijuana with the intent to deliver, (3) possession of drug paraphernalia, and (4) possession of dilaudid. The jury convicted Edwards of possession of cocaine and possession of drug paraphernalia and imposed sentences of fifteen years and six years respectively. The trial judge ordered the sentences to be served consecutively and Edwards appeals. We find no merit in the five assignments of error and, accordingly, we affirm.

First, the appellant argues that the trial judge abused his discretion in ordering that the sentences be served consecutively. The appellant assumes a heavy burden of showing that the trial judge failed to give due consideration to the exercise of his discretion in the matter of consecutive sentences. Blair v. State, 284 Ark. 330, 681 S.W.2d 374 (1984); Patton v. State, 281 Ark. 36, 660 S.W.2d 939 (1983). Both Ark. Code Ann. § 16-90-109 (1987) and Ark. Code Ann. § 5-4-403 (1987) provide that the choice between concurrent and consecutive sentences rests with the discretion of the trial judge.

The appellant, in addition to these drug offenses, had been convicted of transporting a stolen vehicle in interstate commerce, escaping from prison, and possessing stolen property. The trial judge could have concluded that the appellant had a proven record of an inability to abide by the law, and therefore may well have concluded that the interests of society demanded consecutive sentences. The appellant further contends that because the prior felonies were not serious offenses consecutive sentences should not be imposed. This argument was not offered as a basis for the objection at trial and thus cannot be raised for the first time on appeal. Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Finding no abuse of the trial judge’s discretion in ordering consecutive sentences, we affirm on this point.

Secondly, the appellant asserts that the trial court committed reversible error in denying his motion for a mistrial. The prosecutor asked Officer Gary Sipes if he recalled seeing a beeper on the appellant. Officer Sipes answered affirmatively, and the prosecutor then asked if Dial-A-Page beepers are used by drug dealers. Appellant’s counsel objected and the trial court sustained the objection, but refused to declare a mistrial. The manner in which the question was asked may have been improper, but we note that the jury acquitted appellant of possession of marijuana with intent to deliver, providing some indication that the jury was not prejudiced by the question. Mistrial is a drastic remedy and rests with the discretion of the trial judge. It should only be granted when the prejudice is so manifest that the trial court cannot injustice continue. Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985). The appellant fails to demonstrate any manifest prejudice.

Thirdly, the appellant alleges that Ark. Code Ann. § 6-64-403 (1987), the drug paraphernalia law, is void for vagueness. A law is void for vagueness if it lacks ascertainable standards of guilt such that men of common intelligence must necessarily guess at its meaning and differ as to its application. Garner v. White, 726 F.2d 1274 (8th Cir. 1984); Winters v. New York, 333 U.S. 507 (1948). Recently, we upheld the drug paraphernalia law in Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988), and the same rationale applies here. The drug paraphernalia law defines not only the kinds of materials which constitute drug paraphernalia but also lists twenty terms which describe the activities prohibited in connection with drug paraphernalia. The Court of Appeals for the Eighth Circuit upheld the constitutionality of our statute in Garner v. White, supra.

As a fourth point the appellant maintains that the evidence was insufficient to sustain the convictions. To determine the sufficiency of the evidence we need only consider that evidence which supports the verdict. Hurvey v. State, 298 Ark. 289, 766 S.W.2d 926 (1989). On appeal, we review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support it. The evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion or conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989).

The jury convicted the appellant of possession of cocaine and possession of drug paraphernalia. The evidence viewed in the light most favorable to the state is as follows: Police officers arrived to execute a search warrant at 822 West Kiehl Avenue in Sherwood. Upon their arrival, the officers noticed the appellant working under the hood of a car parked outside the residence. When the appellant saw the officers approaching, he removed a small metal canister from his rear pants pocket and tossed it aside. Officer Sipes examined the container and discovered eight packets containing a white powdery substance, later found to be cocaine. This evidence supports the appellant’s conviction for possession of cocaine.

The appellant also contends that there is not sufficient evidence to convict him of possession of drug paraphernalia. However, a small vial containing cocaine residue was discovered on the appellant’s person. Ark. Code Ann. § 5-64-101 (y) (12) (f) (1987), the Uniform Controlled Substances Act, defines the term drug paraphernalia as specifically including cocaine vials. Therefore, sufficient evidence exists to support the appellant’s conviction for possession of drug paraphernalia.

Finally, the appellant maintains that the trial court erred in denying his motions to suppress evidence. In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling was clearly against the preponderance of the evidence. Cooper v. State, 297 Ark. 477, 763 S.W.2d 70 (1989). We affirm the trial court’s ruling.

The appellant contends that the search warrant was improperly issued based upon the magistrate’s finding of reasonable cause, rather than probable cause, to search. Hence, he maintains, all the evidence seized thereunder should be suppressed. Official commentary to Article IV to the Arkansas Rules of Criminal Procedure states that the term “reasonable cause” rather than “probable cause” has been used throughout this article. Arkansas drafters chose reasonable cause in preference to probable cause to avoid any suggestion that the facts must be more probable than not. The commentary notes that most courts find no substantive distinction between the terms. Clearly, Arkansas drafters expressed a preference in selecting the term “reasonable cause,” but intended no substantive distinction.

In issuing the search warrant, the magistrate followed the dictates of A.R.Cr.P. Rule 13.1(d) in finding reasonable cause based upon the statement of a police officer that he had conducted a controlled buy at appellant’s residence on Kiehl Avenue and had received reports of drug sales at these premises. Considering the totality of the circumstances, the decision to issue the search warrant was proper. Toland v. State, 285 Ark. 415, 688 S.W.2d 718 (1986). Therefore, all evidence recovered pursuant to this warrant was properly before the court.

The appellant also argues that the small canister discarded by the appellant was improperly seized evidence. However, when the appellant abandoned the article, he abandoned any rights under the Fourth Amendment. Cooper v. State, 297 Ark. 478, 763 S.W.2d 645 (1989); State v. Tucker, 268 Ark. 427, 597 S.W.2d 584 (1980). We affirm the trial judge’s denial of the appellant’s motions to suppress evidence.

AFFIRMED.


text:
    Charles PRICHARD v. STATE of Arkansas
    CR 89-8
    775 S.W.2d 898
    Supreme Court of Arkansas
    Opinion delivered September 18, 1989

      Matt Keil, for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   Steele Hays,

Justice. Charles Prichard was charged with possession of a controlled substance with intent to deliver and possession of marijuana, third offense. He was convicted in a bifurcated trial and, as an habitual offender, sentenced to thirty years and fifteen years on the respective offenses. He asks us to overturn his convictions on two grounds: first, the trial court should have suppressed evidence seized in a warrantless search of his vehicle and, second, the trial court should have granted his motion for a directed verdict challenging the sufficiency of the evidence offered by the state. Finding no error, we affirm the judgment of conviction.

Pursuant to a warrant to search the premises, police officers called at the residence of Charles Prichard on October 7, 1987. Melanie Adams, Prichard’s girlfriend, answered their knock and, recognizing one of the officers from a previous search, said, “It isn’t here; Charles is gone in it.” After searching the dwelling and finding drug paraphernalia, the officers waited at a nearby location and later saw Prichard and a companion, Charles Garrett, drive toward the house. Both men were felons and were believed to carry weapons. In the process of stopping appellant’s vehicle, the officers observed Garrett bend down as though he were placing something under the seat. After the vehicle was stopped, the officers found an automatic pistol under the passenger’s seat. In the back of the vehicle they saw an open zippered bag or kit from which hypodermic needles were protruding. The bag, which was searched at the police station, contained four syringes, white powder and marijuana cigarettes.

Appellant concedes that the police had probable cause to stop the vehicle, but he contends that once he was arrested and the suspicious container was immobilized, exigent circumstances disappeared and the officers were prohibited under the Fourth Amendment from opening the zippered bag until they had obtained a search warrant. Appellant relies on Moore v. State, 268 Ark. 171, 594 S.W.2d 245 (1980), and Sanders v. State, 262 Ark. 595, 559 S.W.2d 704 (1977).

We need look no farther than the plain-view doctrine to affirm the trial court’s refusal to suppress this evidence. The zippered bag, its contents partially visible, was lying in plain sight in the back of appellant’s vehicle. Since the initial stop was admittedly proper, the officers had the right to seize any contraband in plain view without a search warrant. Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987); Berry v. State, 263 Ark. 446, 565 S.W.2d 418 (1978). That circumstance renders this case distinguishable from the Moore and Sanders cases, where the contraband was inside a shaving kit hidden in a fender well of the vehicle (Moore) and concealed in a suitcase in the trunk of a taxicab (Sanders).

Turning to the remaining point, the state rested its case without proving two prior convictions for possession of marijuana, whereupon appellant moved for a directed verdict. The motion is not abstracted, but we take the argument to be that the state should have proved the two prior convictions during its case in chief, that is to say, appellant contends the prior convictions were elements of the crime which only the jury could consider. We reject the argument as we believe the trial court correctly followed the procedure established by Act 252 of 1981 [Ark. Code Ann. § 5-4-502 (1987)]. Under that statute the jury hears the evidence on the current charge and decides guilt or innocence. At that point the trial court, away from the jury, determines the number of prior convictions and instructs the jury accordingly. The jury then retires again to fix the appropriate sentence.

We have held that the determination of prior convictions for purposes of enhancement of sentence is a question of law rather than fact [Graham v. State, 290 Ark. 107, 717 S.W.2d 203 (1986); McGirt v. State, 298 Ark. 7, 708 S.W.2d 620 (1986)], and we have upheld the constitutionality of this procedure. Shockley s. State, 282 Ark. 281, 668 S.W.2d 22 (1984).

It should also be pointed out that Ark. Code Ann. § 5-1-103 (1987) makes the bifurcated procedure followed in this case applicable where multiple offenses are involved, “unless otherwise provided.” Since the Uniform Controlled Substances Act, under which appellant was charged, is silent as to procedures for enhanced sentencing, § 5-1-103 applies.

The judgment is affirmed.

       The State of Arkansas petitioned for certiorari in the Sanders case, which the Supreme Court granted and affirmed. Arkansas v. Sanders, 442 U.S. 753 (1979). Both the Moore and Sanders cases must be read in light of the later case of United States v. Ross, 456 U.S. 798 (1982).


author: David Newbern,

text:
    Michael AARON v. STATE of Arkansas
    CR 89-58
    775 S.W.2d 894
    Supreme Court of Arkansas
    Opinion delivered September 18, 1989

      Priscilla Karen Pope, for appellant.

      Steve Clark, Att’y Gen., by; David Eberhard, Asst. Att’y Gen., for appellee.
   David Newbern,

Justice. This appeal is from a rape conviction. The appellant, Michael Aaron, was sentenced to life imprisonment. His contentions on appeal are that the evidence was insufficient to support the conviction and that the court erred in refusing to suppress testimony about a document found in Aaron’s possession when he was arrested. We affirm because no argument was made in the trial court on the sufficiency of the evidence and because the defense offered the very evidence with respect to which it had earlier sought to suppress testimony.

The victim testified she met Aaron at the Countryland Club at Springdale on the night of May 6,1988. He told her his name was Mike and that he had been living in California and Illinois but was now living in Arkansas. He asked her to dance and for a ride home. She refused. When she left the club at approximately 1:30 a.m., May 7,1988, Aaron confronted her at her car, forced her into the car, and raped her in the car following a struggle. She testified that he knocked four of her teeth loose by hitting her in the mouth with his fist. She hurt her shoulder in the struggle, and at one point she was unable to breathe because of blood from her mouth choking her.

The victim worked with the police to make a composite drawing of her attacker. She said she had gotten a good look at him while they were in the club. She noted that he had a tooth missing in the front of his mouth and gave a description which fit Aaron in other details fairly closely as well. She positively identified Aaron at the trial as having been the person who attacked and raped her.

Aaron’s defense at the trial included an alibi witness as well as testimony suggesting that someone who saw the victim shortly after the incident allegedly happened did not notice that she looked beaten up. He also attempted to show that one of the police officers who investigated the allegations thought it had been reported at first as something other than a rape and that the victim had not identified Aaron at the first lineup she viewed, although she had identified him at a second lineup.

1. Sufficiency of the evidence

The sufficiency of the evidence was not questioned at the trial. No objection was made on that basis, and there was no motion for a directed verdict. We do not consider arguments made for the first time on appeal. In Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988), we held the failure to raise the issue of insufficiency of the evidence at trial was fatal to an attempt to raise it on appeal. Citing Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), we pointed out that the only instances in which we will consider possible error not brought to the attention of the trial court, in addition to death penalty cases, are:

(1) where error is made by the trial judge without knowledge of the defense counsel, (2) where the trial court should intervene on its own motion to correct a serious error, and (3) where evidential errors affect a defendant’s substantial rights although they were not brought to the court’s attention.

None of the exceptions applies here.

2. Suppression of evidence

The state presented the testimony of Officer Clark who arrested Aaron without a warrant while he was investigating the rape allegation. Clark testified he arrested Aaron not for having committed the rape but for having failed to return to the Springdale jail where he was supposed to have been spending his nights as the result of a DWI conviction. Aaron had admitted to Clark that he had not reported to the jail on the evening of May 6, 1988, because he had been drinking and feared he would lose his work privilege. He had called in to the jail to say he had to stay late on his job.

As Clark began to testify upon direct examination about having seen Aaron’s driver’s license at the time of the arrest, counsel for Aaron objected on the ground that the arrest was warrantless and thus illegal, and he moved that testimony about the driver’s license be suppressed. The motion was denied.

Upon re-cross examination of Clark, defense counsel asked him to examine a crumpled “I.D. card” with Aaron’s name and a California address. The officer said, “ [t] hat item, if I have seen it before, was not in that condition.” The card was admitted into evidence as a defense exhibit.

The only possible prejudice to Aaron’s case which could have come from Clark’s testimony was the corroboration of the victim’s testimony about her attacker being named Mike and having been in California. By introducing the I.D. card, the defense effectively waived whatever objection it might have had in this respect. When a defendant places in evidence that to which he had previously objected, a waiver occurs. Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986).

3. Rule 11(f)

The state’s brief contains no assurance that all of the objections ruled upon adversely to the defendant have been abstracted. Rather than take the time to ask the attorney general for that assurance, we have reviewed the record. The state has abstracted the record in compliance with Arkansas Supreme Court and Court of Appeals Rule 11(f). We find no prejudicial error in any of the court’s rulings.

Affirmed.