author: English, Ch. J.:

text:
    Bozeman et al. vs. Browning et al.
    1. Evidence: Production of instrument, when dispensed with.

    The execution of a bond for title, relied on by one of the parties to a suit, may be proved without producing it, where the evidence shows that the party relying on it is not entitled to possession of it, and that it is not within the jurisdiction of the court.

      2. --: Of transactions with party, since deceased.

    In a contest for title between the devisees of a party deceased, and others claiming the land under a title bond executed by the testator, which is begun after the administration is closed, any of the parties to the suit are competent to prove such transactions with or statements by the deceased as are relevant to the issues.
    3. --=-.
    This court will not reverse a cause for the admission of incompetent evidence, where its admission does not prejudice tho opposite party.
    4. Contract of Infants.
    The contract of au infant is not void, but merely voidable. No one but his legal representative after his death, or his privies in blood, entitled to the estate upon the avoidance of the contract, can disaffirm it.
    5. --: Disaffirmance.

    An infant who sells real estate, and places his vendee iii possession, must if he desires to disaffirm the contract, do so wúthin the period of limita tion after he becomes of age, and if the statute begins to run during his. life, it will continue as against his representatives. Upon a bill in chancery to disaffirm the contract and recover the land by the infant or his representatives, the purchase money must be tendered back to the purchaser.
    6. Proceedings in rent void xohere there is no jurisdiction of the subject matter.

    A decree rendered in a proceeding in Alabama by constructive service against parties in the State, for the confirmation of a sale of lands situate in this State, is not binding as a proceeding in rem.

    7. Statute op Limitations.
    Where the statute of limitations has begun to run during the life of thedevisor, no disability in the devisee will arrest it.
    APPEAL from Clark Circuit Court in Chancery.
    Hon. John A. Kingston, Circuit Judge.
    Garland, for appellant.

      Gallagher & Newton, and J. M. Moore, contra.

   English, Ch. J.:

About the year 1836, John Browning, a resident of Alabama, furnished his son, Joseph A. Browning, a young man about eighteen years of age, with $1,000, and sent him to Arkansas to purchase lands, directing him to take the title to the lands in his own name. It seems that he entered lands with the money in Clark County, and obtained patents therefor from the United States. He made appellant, Michael Bozeman, who had married his sister (of the whole blood) Lucy Ann, and settled in Clark County, his agent, to take charge of and pay taxes on the lands, they being situated in his neighborhood, and returned to Alabama. These are the lands in controversy in this suit.

It seems that, on the 5th of February, 1839, Joseph A. Browning, when still a minor, sold the lands to appellee, David M. Browning, an older brother, and gave him a bond for title, acknowledging the full payment of the purchase money, $2,500, and binding himself and his heirs to make him a good and lawful title to the lands by the 1st of September then following, when *he would be over twenty one years of age.

On the 10th of September, 1839, Joseph A. Browning made a brief will, by which, in general terms, he bequeathed all his property, both real and personal (after payment of his debts), to his father, John Browning, during his natural life, and after his death to his mother, Nancy Browning, and, at the death of them both, to be equally divided between his brothers and sisters of the whole blood.

He died on the 15th September, 1839, in Talladega County, Alabama, where he resided previous to his death.

He owned some land, negroes, and personal property where he resided.

There is some evidence that he expressed a desire during his last illness, to make a deed to his brother, David M. Browning, for the Arkansas lands, but was advised not to attempt to do so by his physician.

On the 4th of November, 1839, his will was probated before the Orphans’ Court of Talladega County, Alabama, and his father, John Browning, was appointed administrator of his estate, with the will annexed, and qualified as such.

It appears that, on the 6th of February, 1839, David M. Browning wrote to Michael Bozeman, informing him that he had purchased the lands in question of his brother, Joseph A. Browning, and requesting him to take charge of them as his agent, pay the taxes, sell the lands, etc.

On the 9th of March following, Bozeman answered the letter, consenting to act as his agent, as requested; and, it appears, did so act, until David M. Browning, about March, 1840, removed from Alabama to Clark County, and settled on the lands, at the urgent solicitation of Bozeman, and upon his representations that the lands were good and valuable, but that he was unable to sell them.

On the 4th of November, 1839, the same day on which the ■yvill of Joseph A. Browning was probated, and his father appointed and qualified as administrator of his estate, David M. Browning filed a petition in the Orphans’ Court of Talladega County, stating that, on the 5th of February, 1839, he had purchased the Arkansas lands (describing them) of Joseph A. Browning; paid him therefor $2,500; that he had executed to him a title bond, which, was on file in the clerk’s office; that he had died without making him a deed for the lands, as he had obligated himself to do by the bond; that John Browning had been appointed his administrator, etc., and prayed that he be ordered to come before the court and convey to petitioner title to the lands described in the bond, according to the understanding of his testator, etc.

The court made an order that notice of the petition be published in a newspaper, etc., once a month for three months successively ; and that a citation be issued to John Browning, administrator, etc., to appear before the court, etc., on the first Monday of March, 1840, when and where all persons interested might attend and show cause, if any they could, why the prayer of the petitioner should not be granted, etc.

On the 2d of March, 1840, the Orphans’ Court ordered the deed to be made.

The record entry of the order is as follows :

“ Whereas, upon the reading of the petition (which petition has been duly published for three months successively in the Patriot, anterior to this time) of David M. Browning, and upon an inspection of the bond, which has been (and is now) on file in this office for said period of time, which was executed by Joseph A. Browning, in his lifetime,«.conditioned as therein stated, and upon the hearing of all the evidence in and about the same; it is, therefore, by the court ordered, adjudged and decreed that John Browning, as administrator, etc., etc., of Joseph A. Browning, etc., make, execute and deliver to David M. Browning, the petitioner, a good and sufficient title to the following described lands,” etc. (here follows a description of the lands as in the bond for title, which is part of the transcript of the record and proceedings of the Orphans’ Court, exhibited with the pleadings of the parties to this suit); then follows a judgment against John Browning; as administrator, etc., for costs, etc.

On the second day of March, 1840, the same day on which the order was made, John Browning, administrator, etc., executed to. David M. Browning a deed for the lands, in accordance with the order, reciting the sale of the lands by Joseph A. Browning, etc., the execution of the bond for title, the order of the court, etc. The execution of the deed was acknowledged before the clerk of the County Court of Talladega County, by John Browning, as administrator, etc., authenticated by the judge of the court, etc.

David M. Browning left Alabama and removed to Clark County, Arkansas, before the deed was executed; but after its. execution, John Browning (with his wife Nancy) removed also to Clark County, bringing the deed with him, delivered it to David M. Browning, and, on the 30th of May, 1840, it was registered in the office of the recorder of Clark County.

David M. Browning, and all persons holding under him, by conveyances, continued in possession of the lands until the commencement of this suit, 12th of January, 1870.

John Browning died in Cl'ark County, May 3d, 1844, and his wife Nancy died July 3d, 1868.

The bill was filed on the chancery side of the Clark Circuit Court by Michael Bozeman, and wife, Lucy Ann, a sister of Joseph A. Browning, of the whole blood, and Gustavus A. Sessions and David May, sons of Elizabeth Browning, who was also a whole blood sister of Joseph A. Browning, and had died after having been several times married.

The other living brothers and sisters of the whole blood of Joseph A. Browning, the heirs of such as were dead, and persons in possession of the lands, under successive conveyances from David M. Browning, were made defendants..

The bill prayed that the lands be decreed to be the property of the. plaintiffs and defendants alleged to be the brothers and sisters, etc., of the whole blood of Joseph A. Browning, and for an account of rents and profits as against the defendants in possession of and claiming the lands.

It seems that the brothers and sisters, etc., of Joseph A. Browning who were made defendants, declined to join as plaintiffs in the bill.

The cause was finally heard on the pleadings and evidence, the bill was dismissed for want of equity, and plaintiffs appealed.

I.

The bill alleges that the bond for title was not, in fact, executed by Joseph A. Browning, but that it was entirely a fabrication, etc.

These allegations are denied by the answer of David M. Browning, upon his personal knowledge, and by the answers of other defendants, claiming the lands through him, upon information and belief.

David M. Browning testified, in substance, that he purchased the lands of Joseph A. .at the urgent request of his father, who was opposed to his leaving him and going to Arkansas to settle on the lands, and wished him to remain with him, and manage his business in his old age, Joseph A. being his youngest and favorite son.

That at the time of the purchase, and for some time before, Joseph A. was and had been doing business for himself. That witness paid him $2,500 for the lands, part in a negro woman, and the balance in money, and that he executed to him the bond for title, with the understanding that the deed was to be made when. he became of age. That his father, John Browning, was a subscribing witness to the bond. That witness filed the bond, with his petition above referred to, in the Orphans’- Court, etc.

Francis J. Browning, brother to Joseph A. and David M., who was made defendant to the bill, but set up no claim to the lands under the will of Joseph A., testified that he saw the bond for title, that it was shown to him by David M., that he did not read the paper but recognized the signature of Joseph A., etc. He also testified that his father, John Browning, told him that he persuaded David M. to trade for Joseph’s Arkansas lands, for the reason that he wanted Joseph to remain with him in Alabama, etc.

We cannot believe, upon all of the facts disclosed in the trans-script, that this bond was a mere fabrication, a fraud, a forgery. The character of David M. Browning is unimpeached in the record. The bond, apparently subscribed by his brother Joseph A., and attested by his father as a witness to its execution, was filed in the Orphans’ Court on the very day that the father was appointed and qualified as the administrator of his lately deceased son, and he was cited to answer a petition which the bond accompanied, alleging the execution- of the bond, and praying an order ■upon him to make a deed in accordance with the condition of the bond; and the purpose of the petition was made public through a newspaper. He made no defense to the petition, and executed the deed as directed by the court. Would he have acted thus, had he known the bond to be a mere fraud upon his deceased son, whose administrator he was ? And if the bond was a fabrication, he must have known it. It is shown in the record that he was a man of undoubted integrity of character.

(ci) Appellants moved to suppress so much of the depositions of Erancis J. and David M. Browning, as related to the bond for title, because the original bond was not produced, and the court below overruled the motion.

These depositions were taken in Arkansas more than thirty years after the time when the bond purports to have been executed. The original bond was never in possession of any of the appellees who claim the lands, through David M. Browning, adversely to appellants. It was filed in the Orphans’ Court of Talladega County, Alabama, with the petition of David M. Browning, and became and remained, it seems, a part of the records of that court. It was part of the transcript of the record of the Orphans’ Court, in the matter of the petition, made an exhibit to the bill, and also to the answer of David M. Browning. David M. Browning was not entitled to possession of the bond, after the deed was executed under the order of the court. If any person could rightfully have withdrawn the bond, by permission of the court, after the execution of the deed, it was John Browning, the administrator of Joseph A. Browning. The court below could not, upon the application of appellees, have issued a snbpoena dieces tecum to the clerk of the Orphans’ Court of Alabama, requiring him to produce the bond, because the clerk was not within the jurisdiction of the court.

Under all the circumstances, the absence of the original bond was sufficiently accounted for to authorize appellees to prove its execution without producing it. Trammell et al. v. Thurmond et al., 17 Ark., 203. 1 Greenlf. Ev., secs. 91, 503, 506, 507, 557.

(b) Appellants also moved to suppress so much of the deposition of David M. Browning as related to transactions with or statements by Joseph A. Browning, etc., and the court overruled the motion.

By sec. 22, art. 7, Constitution 1868, which was in force when this cause was heard below, “there shall be no exclusion of any witness in a civil action because he is a party to, or interested in the issue to be-tried, etc.: Provided, that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statements by the testator, intestate or ward,” etc.

This is not a suit by or against the executor, administrator or guardian of Joseph A. Browning. It is a suit in which appellants claim lands owned by him, in his lifetime, as devisees under his will, and some of the appellees claim the lands under a bond for title, the execution of which, by him, was put in issue by the pleadings. Long before the institution of the suit, the administration of his estate was closed, and his administrator dead. No judgment could be rendered in this suit for or against his administrator. David M. Browning, though a party to the suit, and interested in the issues of the cause, was a competent witness under the general rule prescribed by the section of the-Constitution above copied, and the portions of his deposition objected to are not within the exception contained in the proviso. Any of the parties to the suit, not otherwise disqualified, were competent to prove such transactions with or statements by Joseph A. Browning, as were relevant to the issues in the cause, and admissible by the rules of evidence.

(c) Appellants also moved to suppress so much of the deposition of Francis J. Browning as related to the declarations of John Browning, etc., which the court overruled.

Witness stated that John Browning told him that he persuaded David M. to buy Joseph A. Browning’s Arkansas lands, etc. When this conversation occurred between witness and his father does not appear. The testimony bore remotely upon the issue as to the execution of the title bond — whether the bond was a fabrication or genuine. The fact that John Browning persuaded David M. to purchase Joseph A. Browning’s Arkansas lands was directly proven by David M. Browning.

The declarations of John to Francis J. Browning on the subject are not shown to have been made at a time, or under circumstances to render them competent (1 Greenlf. Evidence, sec. 198 etc.), but the error of their admission was not materially prejudicial to appellants.

II.

Appellants further alleged in the bill, that, if mistaken in the averment that the bond for title was a fabrication, etc., Joseph A. Browning w.as an infant, under the age of twenty-one years, when he executed the bond, and that the Orphans’ Court of Talledega County, Alabama, was without jurisdiction to decree specific performance, etc.

The answers admit that Joseph A. was under age when he made the bond. It appears that he lived about twenty-five days after he was -of age.

The bond for title was not void, because of the infancy of the obligor. Modern decisions have established the rule, that an infant’s contracts are none of them absolutely void, that is, so far void that he cannot ratify them after he arrives at the age of legal majority. Vaughan, adm’r, v. Parr, 20 Ark., 608.

The sale of the lands seems not to have been improvident. It was made in accordance with the wishes, and with the approbation of the father, and it is not shown that the price paid for the lands was not a fair one.

As a general rule, no one but the infant himself, or his legal representatives, executors and administrators, can avoid the voidable acts, deeds and contracts of an infant, for while living, he ought to be the exclusive judge of the propriety of the exercise of a personal privilege intended for his benefit; and, when dead, they alone should interfere who legally represent him. Gullett and wife v. Lamberton, 6 Ark., (1 Eng.) 118; 1 Parsons-on Contracts, 329; Tyler on Inf. and Cov., 69.

It does not appear that the contract in question was disaffirmed by the infant, after he was of age. There is no inconsistency between his will and the bond for title. The will makes no reference to the Arkansas lands, described in the title bond. The devisor devised, in general terms, his real and his personal property. It is shown that he owned both real and personal property in Alabama, at the time he made his will; and there is some evidence that he expressed a desire, during his last illness, to make a deed to his brother, David M., for the Arkansas lands, which he had sold and contracted to convey to him, but was restrained by his physician, who advised him to be quiet, and not to be disturbed with business transactions, which might prove detrimental to him.

Had he expressly devised the Arkansas lands, it would, perhaps, have been a disaffirmance of the previous contract of sale, made while he was an infant. Hoyle v. Stowe, 2 Dev. & Batt, 322; Breckenridge’s heirs v. Ormsby, 1 J. J. Marsh, 249.

The administrator of Joseph A., did not, certainly, disaffirm the contract; on the contrary, so far as he could, he afifirined it. He submitted, without objection, to the jurisdiction and order of the Orphans’ Court, directing him to make a deed to David M. Browning, in accordance with the bond for title. He executed the deed, brought it to Arkansas, and delivered it to David M. Browning, who was then in possession of the lands under the bond for title. He set up no claim ■ to the lands, during his life time, as devisee under the will. It seems that he sold the Alabama lands to Joseph A., and that the remainder devisees under, the will made quit claim deeds to the purchaser. There is some evidence that he brought the negro woman which David M. let Joseph A. have in part payment of the lands, to Clark County, and sold her, and that at some time after his death, so much of Joseph’s estate as remained, was distributed to his devisees.

The appellants attempted by their bill, after the lapse of over thirty years, to disaffirm the bond for title, on the ground of Joseph’s infancy, and to recover the lands from his vendee, and those holding under him, claiming the lands, as remainder devisees, under general expressions of his will.

The rule seems to be, that the privilege of disaffirming an infant’s contract, extends to his legal representatives, after his death, or his privies in blood, entitled to the estate upon avoidance of the contract, but not to his surety, endorser, or any strangers, or his assignee, or other privy in estate only. 1 Chitty on Contracts, 11 American Ed., p. 222, Note (o).

The rule would extend, says Mr. Tyler (Inf. and Cov., p. 59) to privies in blood of the infant, but not to his assignees or privies in estate only.

The appellants in their bill, claim the lands not as the heirs or privies in blood of the infant, but solely as devisees under his will, and they claim to exclude all others, except his brothers and sisters, of the whole blood, and their descendants. In other words, they claim as devisees under the will, as any stranger might do, if a devisee, though not an heir or privy in blood. They place themselves, in their bill, on the ground only of privies in -estate.

Had Joseph died intestate, possibly his Arkansas lands might have gone to his father, who furnished the money to purchase them, and on his death, to the heirs of the father generally; but, if the lands were a new acquisition, they would have gone to the father for life, and in remainder to the collate-ual kindred of Joseph. Gantt’s Digest, sec. 2161. Kelly’s heirs, et al, v. McGuire et al, 15 Ark., 555.

David M. Browning paid for the lands, took the bond for title, and went into possession of the lands under it. Had Joseph A. lived, he would have been obliged to disaffirm the contract within the period of limitation, which commenced running at his majority, or his right to disaffirm would have been barred. He certainly could not have maintained this bill, after the lapse of thirty years, to disaffirm the contract, and recover the lands of his vendee, and his grantees; and the statute having commenced running against him during his life time, we do not see that appellants, who claim under his will, are in any better condition than he would have been, had he lived and brought the bill himself. Cresinger v. Lessee of Welch, 15 Ohio, 195; Hughes v. Watson, 10 Ohio, 134; Drake v. Ramsey, 5 Ohio, 252; Bool v. Mix, 17 Wend., 119; Blankership et al v. Stout, 25 Ill., 132; Tyler on Inf. and Cov., 67: Moreover, had Joseph lived, and brought this bill to disaffirm his contract, and recover the lands in apt time, the court would not have granted him the relief prayed, without his paying back to David M. Browning the purchase money which he paid him for the lands.

Yet appellants, who claim the lands under Joseph’s will, seek, by their bill, to disaffirm his contract, and recover the lands, and do not- tender or offer to refund any part of the purchase money.

It was well said by Chancellor Kent, that the .privilege of infancy is to be used as a shield, and not as a sword. 2 Kent Com., 240; Tyler on Inf. and Cov., 77. Strain v. Wright, 7 Georgia, 570; Jeffords, adm’r, v. Ringold et al, 6 Ala., 544, (in which it was also held that the executor or administrator of an infant could ratify the contract of an infant, without any new consideration). Badger v. Phinney, 15 Mass., 359; 1 Parson on Con., 320; Womack, adm’r, v. Womack, 8 Texas, 597; Bailey v. Barnberger, 11 B. Mon., 113; Weed v. Beebe et al, 21 Vermont, 495.

III.

It may be that the Orphans Court of Alabama had jurisdiction to decree, and order John Browning, the administrator of Joseph A. Browning, to make to David M. Browning a deed for the lands, and in accordance with the bond for title, it appearing to the court that he had purchased and paid for the lands, and the administrator being within and subject to the jurisdiction of the court; but appellants having been made parties to the proceeding by the publication only, two of them, at least, (Bozeman and wife) bring non-residents of that State, no personal decree could be rendered against them, and the lands being in Arkansas, and not within the jurisdiction of the court, the decree was not binding upon appellants as a decree in rem. Story Conflict Laws, sec. 544-5; Barkman v. Hopkins, 11 Ark., 157; Inglehart v. Moore, 16 Ark., 55; Kimball v. Merrick, 20 Ark., 12.

IV.

The appellees relied, also, upon the statute of limitations, and that appellants5 claim to relief was stale, etc., to defeat the bill.

The answers allege, and the proof conduces to show, that David M. Browning, and the appellees who claim under him by conveyances, were in the continuous occupation of the land, from a time shortly after he purchased from Joseph A., and took his bond for title, down to the time of the commencement of this suit.

Possession under the bond for title, for the full period of limitation, (to say nothing of the deed executed under the order of the Orphans’ Court) would bar judgment, and certainly is a good defense in equity. Stirman et al v. Cravens et al, 29 Ark., 559 ; Newsom v. Williams, 27 Ark., 622 ; Cunningham v. Brumback, 23 Ark., 336; Moore et al v. Anders, 14 Ark., 629.

Appellants submit, in avoidance of the statute of limitations, that they are devisees in remainder under the will of Joseph A. Browning, and that they had no right of action, until the termination of the intermediate life estates of John and Nancy Browning, and that this suit was commenced within the jjeriod of limitation, after the death of the latter, who survived the former about twenty-four years.

If there was nothing in this case but the will, and if appellees had entered upon and held the lands under the tenants for life, or as devisors, the action of appellants would not have been barred, because the statute does not commence to run against a remainder man, until the termination of the intermediate estate. Vaughan v. Parr, 20 Ark., 600.

But, David M. Browning entered upon the lands, and he and his vendees held them, under the bond for title, which was executed anterior to the will, and which, as we have seen, was not disaffirmed by Joseph A. Browning in his lifetime, nor by his administrator, or any legal representative of his after his death; on the contrary, his administrator, in effect, affirmed the contract. Jeffords, adm’r, v. Ringold et al, 6 Ala., 544.

Moreover, David M. Browning went into possession of the lands by his agent (Bozeman), and a tenant let into some houses on the lands by his agent, under the bond for title, and while Joseph A. was yet an infant. But for the infancy of Joseph A., the statute of limitations would have commenced running against him at the time David M. took adverse possession of the lands under the bond for title, and it did commence running against him on his reaching his majority, and was running at the time of his death, which occurred about twenty-five days after he was of

Appellants attempt to use the will of Joseph A., as the means of creating in them an additional or cumulative disability to sue, and thereby to interrupt the running of the statute. Such additional disability was unavailing to stop the running of the statute, as repeatedly held by this court. Aikin v. Baily, 10 Ark., (5 Eng.) 582; Brown as adm’r v. Merrick et al, 16 Ark., 612; Biscoe et al v. Madden, adm’r, 17 Ark., 539 ; Angel on Limitation, sec. —, p. 206, 520 and note.

There are harsh expressions in the pleadings and depositions of some of the appellees, against Michael Bozeman, for bringing this suit; but we have not failed to observe that his deposition is manly, frank and truthful, tending, in some of its features to defeat, rather than maintain his side of the cause.

Upon the whole record, the decree of the court below, dismissing the bill for want of equity, is affirmed.


source: Caselaw Access Project

author: Walker, J.:

license: Public Domain

text:
    Ball et al. vs. Fulton County.
    1. Pleading: Common Law Forms.

    The Code has made no change in the substanial allegations necessary to constitute a cause of action, and resort may still be had to the common law forms of pleading. In this case, a complaint, in the form of the common count of indebitatus assumpsit, for money had and received, etc., held good.
    2. --: How defects in pleading should be taken advantage of.

    If the complaint omits to state a fact which is essential to the cause of action, objection should be taken by demurrer. If it state the necessary facts in a defective, uncertain manner, objection should be taken, by motion to make it more definite.

      APPEAL from Fulton Circuit Court.
    Hon. J. M, Butler, Circuit Judge.

      Rose, for appellants.

      J. M. Moore, contra.

   Walker, J.:

The county of Fulton, for the use of public building and road fund, filed a complaint at law against the appellees, for a sum of money collected from the tax payers of said county, for building and road purposes, to which a demurrer was filed and sustained, and leave given plaintiff to amend her complaint, and an amended complaint in indebitatus assumpsit for money had and received, was filed.

The defendants interposed a motion to strike the amended complaint from the files of the court, because it did not state facts sufficient to constitute a cause of action, and because, by the amendment, the form of action was changed ; and at the same time filed a demurrer to the declaration, upon the ground that the court had no jurisdiction, and that the facts stated do not constitute a cause of action.

Both the motion and the demurrer were overruled by the court. Defendants declined to answer further, and judgment for want of answer was taken against defendants, and under the provisions of the Code Practice, a commissioner was appointed to take proof,' and assess the plaintiffs5 damage; the commissioner was sworn (as the record states), according to law, and the witnesses, to give evidence before the commissioner, were sworn in open court. The report of the commissioner was, that the defendants were indebted to the county of Fulton for the use of the public building fund $950, and for the use of the road fund $389.91, for which sums the court rendered judgment in favor of the plaintiff.

Defendants excepted, and appealed to this court.

Counsel for appellants insists that the demurrer should have been sustained that the complaint was under the common law form in indebitatus assumpsit, and stated no facts but mere conclusions of law, and was a departure from the Code form in stating a cause of action.

The question thus presented is, whether the common law form of pleading, when all the facts necessary to charge the defendants with a legal liability are stated, is not such a statement in ordinary and concise language as would constitute a cause of action under the Code form of pleading.

The plaintiff states that the defendants are indebted to her for the use of public building fund $1,600, and for the use of the road fund of said county $500, for so much money by said defendants before that time, at the special instance and request of defendants, had and received to and for the use of the plaintiff, and. being so indebted, said defendants, in consideration thereof, thereafter undertook, and faithfully promised to pay said plaintiff, for the use of said public building fund, $1,600, and for the use of the road fund $500, when requested to do so; that they were so requested, and failed to pay the same, to plaintiff’s damage, etc.

If, in fact, the money was received by defendants, at plaintiff’s request, and was her money, the law raises an obligation upon defendants to pay to her.

These statements of facts were distinctly made in the declaration, and were sufficient to fix an obligation upon the defendants, to pay, without reference to the formal part of the count, which may be treated as surplusage.

It was this formal matter that was intended to be abolished by the Code Practice. Harper v. Harper, 10 Bush, 457.

Whether, under the common law or under the Code form of pleading, the pleader is required to state every fact necessary to-enable the plaintiff to recover, and make every material averment required to make a good declaration under the common law form of pleading. Louisville and Portland Canal Company v. Murphy, 9 Bush., 525.

In the case of Eldridge v. Adams, 54 Barbour, 417, Mr. Justice James said : “ Although all the forms of action were abolished by the Code, the principles by which the different forms of actions are governed, still remain, and now, as much as formerly, control in determining the rights of parties.” The Code makes no change in the law, which determines what facts constitute a cause of action, it does not authorize a recovery upon a state'ment of facts which did not constitute'a cause of action in some form before the Code was adopted, and therefore the form of precedents, rules and adjudications may be resorted to as authority, except so far as they relate to the distinctions between the different forms of action, or to merely formal or technical allegations. Holt v. Barnett, 14 B. Monroe, 83.

In a still later case, Marshall, Chief Justice, said : “The Code makes no change which determines the cause of action; forms have been abolished, but the substance of the common law rules of procedure remains, except when they conflict with the spirit of our statute regulations upon the subject of pleadings and practice. Richmond & Co. v. Rogers, 7 Bush, 532.”

The case of Chesbrough v. The N. Y. and Erie Railroad Company, 26 Barbour, p. 9, cited by counsel, as well as that of Brake v. Crochford, 1 Abbott, 203, do not sustain him in the position. assumed. In Chesbrough v. The Railroad Company, the complaint was, that plaintiff, at defendants' request, rendered defendants services as agent, for which he was entitled to have, as a fair compensation, $50, and also for work, labor and services done, and materials furnished by plaintiff for defendants.

This allegation was held to be insufficient, indefinite and uncertain, but the court also held that it was not ground for demurrer, but might be reached by motion to strike out, or that the complaint be made more definite.

This “ work,” and these “ materials furnished,” under the common law form of pleading, would have been presented under quantum meruit and quantum valebant counts, and, when presented under the Code form, according lo this decision, should have stated the kind of work performed, and described the materials furnished and their value; o.r, in the absence of such definite description so as to enable the defendant to make full answer to the complaint, he might, by motion, require the plaintiff to amend and make a fuller statement of the facts.

In the case under consideration, the complaint was, in form, indebitatus assumpsit, for money had and received by the defendant for the plaintiff, which he failed to pay; these were the material facts, and were sufficiently stated, but, if otherwise, instead of demurring, the defendants, under the Code Practice,. Ch. 8, sec. 155, which provides, that when the allegations of a pleading are so indefinite or uncertain that the precise nature of the claim or defense is not apparent, the court may require the pleading to be made definite and certain by amendment. The defendants should have filed a motion requiring such amendment to be made, so that, conceding the complaint to have been uncertain or indefinite (which we think was not the case), the defect could not be reached by demurrer.

The distinction between a failure to state a necessary fact to enable the plaintiff to recover, and a defeciive and .uncertain statement of facts, should be kept in view. For the first cause, the defendant should demur; but for the second, he should move to make that more perfect and certain which was imperfectly stated. Pomeroy, in his work on Remedies and Remedial Rights, paragraph 548, says: “ The Code clearly intended to draw a broad line of distinction between an entire failure to state any cause of action or defense on one side, which is to be taken advantage of either by demurrer, for want of sufficient facts, or by the exclusion of all evidence at the trial, and the statement of a cause of action or defense in an insufficient, imperfect, incomplete or informal manner, which is to be corrected by a motion to render the pleading more definite and certain by amendment.”

The true doctrine from all the cases is, that if the substantial facts which constitute a cause of action are stated in the complaint, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect or indefinite, such insufficiency, pertaining to the form rather than substance, the proper mode of correcting it is not by demurrer, or by excluding the evidence at the trial, but by motion, before the trial to make the averments more certain. This practice is sustained by numerous decisions in all the States where the Code Practice has been adopted, and in view of which we think that the demurrer was properly overruled.

We have seen that the complaint in this case was in the common law form of indebitatus assumpsit, and, by reference to numerous decisions in the States where the Code Practice has been adopted, tUe common law form of pleading in indebitatus assumpsit has been held to be a substantial compliance with the Code Practice. Pomeroy, paragraph, 542, says: “Whether the complaint or petition, substantially the same in its form and its allegations with the old common or general count in assumpsit, is in accordance with the fundamental principles of the new procedure- and can noAv be regarded as a good pleading, the courts have almost unanimously answered the question in the affirmative, and have held that such complaints or petitions sufficiently set forth the cause of action in the cases where the declarations which they imitate would have been proper under the form of practice.” Citing as authority Allen v. Patterson, 7 N. Y., 476; Magher v. Morgan, 3 Kan., 372; Clark v. Tinsley, id., 389 ; Carroll v. Powell’s ex’rs., 16 Mo., 226; Brown v. Perry, 14 Ind., 32; 10 id., 199; 17 N. Y., 232; 28 id., 438; 39 id., 377; 21 Wis., 395; 19 Barb., 416; 52 Mo., 342; 48 Cal., 364; 32 id., 172; 39 id., 559, with many other decisions to the same effect.

In the case of Allen v. Patterson, above cited, the action was for the price of goods, the complaint was in form of indebitatus assunipsit for goods sold and delivered. Jewitt, judge, who delivered the opinion of the court, said: “The Code requires that the complaint should contain a plain and concise statement of the facts constituting the cause of action. Every fact which the plaintiff must prove to enable him to sustain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred or stated. The rule of pleading in an action for a legal remedy is the same as formerly, in this, that facts and and not the evidence of facts must be pleaded,” and, after an analysis of the complaint, reaches the conclusion that its averments are in conformity with the general principles.

In Granis v. Hooker, 29 Wis., 65, the complaint was like the one before us, in form a common count for money had and received. When considering the legal sufficiency of the count, Cole, justice, said: “It is contended by defendant that all the facts in respect to the fraud should have been stated in the complaint, otherwise, the plaintiff* is not entitled to prove them ; on the other hand, it is claimed that all it is necessary that the complaint should contain, is substantially an allegation that the defendant has received a certain amount of money to the use of the plaintiff, as in the old form of declaring in indebitatus assumpsit.

We are inclined to sustain the latter view, and to hold that the facts which, in the judgment of the law, create the indebtedness or liability need not be set- put in the complaint.

In yielding our assent to this great weight of authority, and in holding the complaint in this case sufficient, we do but affirm the principles settled in the case of Lincoln & Maupin v. Benedict, and Williams v. Rivercomb et al., delivered at the present term of this court, in the first of which we held a complaint in trespass for taking property, in the common law form, sufficient, and in the second, the sufficiency of a pleading in replevin, in like. form.

Conceding the merits of the Code Practice for its enlarged privileges of amendment from the inception of the action to final judgment, and of its provisions in dispensing with the mere forms and fictions in pleading, and the advantages of adapting the pleadings to the evidence m the case, as well as in several other respects, it has not escaped our observation that the effort made to abandon the common law forms of pleadings, and to substitute a simpler statement of the facts necessary to sustain the action, has fallen so far short of realizing the benefits anticipated, as strongly to incline the courts in several of the States in which the Code Practice has been adopted, to hold many of the common law forms a substantial compliance with requirements of the Code Practice.

The disadvantage of having no established form of pleading, .•and no settled adjudications upon the construction to be placed ■upon them, is made manifest in most of the courts where the form of pleadings have been changed, in the increased litigation ■consequent upon such change, in which every pleader is left to ■determine for himself what facts should be stated to sustain an action.

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


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    Boone County vs. Keck.
    1. JSxuitáble proceeding to enforce satisfaction of judgment, etc.

    In a bill filed under the provisions of sec. 2713, Gantt’s Digest, by an execution creditor, for the purpose of subjecting the property of a defendant in execution, the latter must be made a party, to entitle the plaintiff to discovery and relief.
    2. Gabnishment:
    A county is not subject to the process of garnishment.
    APPEAL from Boone Circuit Court.
    Hon. J. H. Huckelbery, Circuit Judge.

      P. O. Dooly, for appellant.

      J. M. Moore, for appellee.
   Walker, J.:

Minerva A. Keck filed what is stated to be a complaint in equity, in which she alleges that, at the October term, 1874, of the Boone Circuit Court, she obtained judgment against Jacob R. Keck for $2,050, upon which execution was issued, and returned unsatisfied for want of property upon which to levy. That she is informed, and believes, that Boone County is indebted to Jacob R. Keck, in the sum of $1,500, in public buildings scrip of said county.; that a suit of garnishment has been served upon N. B. Crump, clerk of the court of said county, requiring him to appear and disclose the indebtedness of Boone County to Jacob R. Keck, with a prayer that if, upon investigation of the relation between Boone County and Keck, it should appear that the county is indebted to him, the clerk of Boone County be ordered to issue scrip for the same, and place it in the hands of the sheriff, to be subjected to the satisfaction of the plaintiff’s judgment, and for other equitable relief.

A demurrer was filed by Boone County to the complaint, which was overruled.

The county also filed an answer; evidence was heard, and judgment rendered against the county for $2,000, and an order made that the clerk issue scrip to that amount, and deliver it to the sheriff.

The county appealed.

The sufficiency of the complaint, and the liability of the county (a public corporation) to the process of garnishment, are the material questions to be considered. The Code of Practice provides for a proceeding by a writ of garnishment at law, under the provisions of sec. 2991 Gantt’s Digest, and sec. 2713 provides for an equitable proceeding by bill for a discovery of property, money, or debts due to the defendant, or in his possession, and in such action against the defendants for a discovery, “ persons indebted to the defendant in execution, or holding money or property in which he is interested, or holding the evidences or securities for the same, may be also made defendants.”

We may suppose that it was under the latter statute the plaintiffs seek relief. But no discovery is sought against the defendant in execution, no relief is sought against him, nor is he made a party to the action; nor is Boone County made a party. There were’ no parties defendant. It is true, that Boone County did appear,0 and filed both a demurrer and answer; concede that thereby she did make herself a party; still, ás no complaint was filed against the defendant in execution for a discovery, a proceeding to which he was not made a party, and did not appear, no foundation was laid for calling upon “personsindebted to the defendant in execution to answer.” It is a mere waste of time to detail the numerous errors in this proceeding; the complaint is so defective that, if no answer had been filed, and all of the facts thereby taken as confessed, no valid decree could have been rendered. The demurrer should have been sustained.

The remaining question is, was Boone County, a public and political corporation, liable to garnishment for debts contracted by her. It is true, that she may sue and be sued, plead and be impleaded, but, because this may be done in ordinary proceedings, it does not necessarily follow that she may be garnisheed for the debts which she has contracted as a corporation and for corporate purposes; that her means for payment shall be diverted from their legitimate purpose, and taken to pay liabilities not contracted by her. The Code has made no provision for garnisheeing public corporations, nor does the provision for taking the rights and shares in the stock of banks and of insurance companies, and other corporations, when properly construed, extend to other than private corporations. Such was expressly held to be the proper construction to be given to the statute which authorized cc an attachment or judgment, to be levied on the lands of any person or persons whatever, corporate or sole.” The court held that these terms do not include municipal corporations; that they are exempt for reasons of necessity. Mayor of Baltimore v. Root, 8 Maryland, 95.

The language of our statute is, that “ persons indebted to the defendant may be required to answer,” and our statute also provides (sec. 5625 Gantt’s Digest) that the word persons includes a corporation, as well as a natural person. In this respect, the Alabama statute is like ours. But in the Mayor and Aldermen of Mobile v. Roland & Co., 26 Ala., 498, it was held, that it did not so control the sections giving the process of garnishment against any person” indebted, etc., as to authorize a garnishment against a public municipal corporation. Chilton, Ch. J., when considering this statute, said: The statute, it is true, authorizes any person to be summoned as a garnishee, and sec. 1 of the Code declares that the word person, when used in it, includes a corporation as well as a natural person; but this must be understood only of such provisions as will allow this signification to be given without violating its evident sense and meaning. When, by the context, it is clear no such meaning was intended, and when, by thus construing the word persons, it would render the Code, which must be taken as a whole, incongruous, we must depart from the letter to give effect to the spirit and manifest intention of the Legislature.

“The provisions of the Code are, the garnishee must be summoned to appear and answer on oath, he must file his answer in three days, and he may be examined orally in presence of the court. This clearly shows that the statute of garnishment can not be applied to corporations, which, from their impersonal, artificial character, cannot be sworn.”

The 2714th sec. Gantt’s Digest requires, that the answer shall be sworn to in person, not by an agent or attorney; and, therefore, as the county cannot, in person,” make the required oath, and as she is prohibited from doing so by an agent or attorney, it necessarily follows that the answer must be received without oath, or that the municipal corporation was not intended to be liable to the process of garnishment.

In this connection,' it may be well to look to the purposes for which public corporations are created, and the powers and duties imposed upon them. Kent, in his Commentaries, vol. 2, page 275, says: “Public corporations are such as are created by the government for public purposes, and town, cities, counties and villages, and the whole interest in them belongs to the public.. The corporation contracts alone for the public good, and can only make such as are necessary to uphold and maintain the corporation, or for the public good.”

' The corporate existence of the county as a local municipality to a great extent, depends upon her payment of debts contracted for the public benefit, and out of funds drawn by the corporation from the revenues of the corporators for a specific purpose (as in this instance), to pay for a public building, a court house or a jail, without which the corporators (the people) would be inconvenienced.

In the case of Burnham v. City of Fond du Lac, 15 Wis., 193, the precise question now under consideration was presented. That is, whether a municipal corporation is liable to be garnisheed for its debts to an individual, and it was held, upon principle and public necessity, that they could not.

Besides the authorities cited, the case of Hawthorne v. City of St. Louis, 11 Mo., 59, 23 Mo., 239, 7 Mo., 439, all bear upon the question before us, presented under different circumstances, and sustain us in the conclusions at which we have arrived,' viz: That, whilst private corporations are subject to the process of garnishment under our statutes, public municipal corporations are not subject to such process.

Public policy, indeed, public necessity, requires that the means of public corporations, which are created for public purposes, with powers to be exercised for the public good, which can contract alone for the public, and whose only means of payment of the debts contracted is drawn from the corporators by a special levy for that purpose, should not be diverted from the purposes for which it was collected, to satisfy the demands of others than the parties contracted with.

The remaining question need not be considered, because, from the view which we have taken of the case, the foundation upon which it rests is altogether untenable. No amendment to the complaint can avail the plaintiff.

The judgment of the court below must be reversed and set aside, with costs, and the case dismissed.


text:
    Barber vs. Peay, as adm’r.
    1. Lien : Not displaced by the debtor’s death.

    Where a creditor lias acquired a specific lien on particular property of this debtor during his life time, it may be enforced after his death, and the creditor need not resort to the general assets of his estate through the Probate Court.
    2. Execution, Levy, etc. lAen of, may be enforced after debtor’s death.

    An execution was issued and levied on land during the life of the debtor, after his death the judgment was revived against the administrator and a writ of vend. ex. issued to sell the land levied on: Held, that by the levy a specific lien was fixed on, the land which could be enforced by a sale under the vend. ex.

    APPEAL from Pulaski Circuit Court.
    Hon. R. W. Howard, Special Judge.

      Wasséll & Moore and Bose, for appellant.

      Gallagher & Newton, contra.

   English, Ch. J.:

The material facts of this case are, that on the 9th of January, 1869, Luke E. Barber obtained a judgment in the Pulaski Circuit Court against Henry C. Ashley for a sum of money. On the 18th of October, 1870, an execution was issued on the judgment to the Sheriff of Pulaski County, and levied upon the •interest of Ashley in certain lots situated in the city of Little Rock, and returned, by direction of plaintiff’s attorney, without sale.

Before the expiration of the lien of the judgment, and before the death of Ashley, the judgment was revived, and the lien continued.

Ashley died in January, 1873, and afterwards Gordon N. Peay was duly appointed administrator of his estate; and on the 11th of February, 1874, the judgment was revived against him as such administrator, etc.

On the 24th of July, 1875, a venditioni exponas was issued on the judgment, commanding the sheriff to sell Ashley’s interest in the lots levied on under the original ji. fa.

Peay, as the administrator of Ashley, filed a motion to recall and quash the vend, ex., stating the above facts, etc. Barber demurred to the motion, • or petition, the court overruled the demurrer, and made a final order recalling and quashing the vend, ex., and Barber appealed.

It is insisted that appellant was obliged to have his judgment allowed and classed in the Probate Court as a claim against the estate of Ashley, and look to the general assets for payment, and that he could not take out a vend. ex. and sell the lots after the death of Ashley.

On the other hand it is submitted that the levy of the original fi. fa. on the lots, segregated them from the rest of the estate, and created a specific lien upon them, which could be enforced by sale upon vend. ex. after the death of Ashley, the judgment having been revived against the administrator.

In The State Bank v. Etter, 15 Ark., 268, a fi. fa. was issued upon the judgment, and levied upon land, and after the levy, the defendant in the execution died, and the writ was returned without a sale. Afterwards, and without revivor of the judgment against the administrator of the defendant, a vend. ex. was issued, and the sheriff was proceeding to sell the land taken in execution under the original fi. fa., and the sale was enjoined on the ground that the specific lien created by the levy could not be enforced by sale under the vend, ex., without revivor of the judgment against the administrator of the defendant in execution, etc.

Mr. Justice Walker, who delivered the opinion of the court, said: “If the sale had progressed and been made at the return term of the writ, under which the levy was made, even though the defendant, after levy and before sale, died, there would be strong reason for holding the sale valid, but after the return of the process, we have held both upon principle and authority, that no further process can issue until the judgment is revived by sai. fa. against the parties interested in the estate levied on,” etc.

The judge then proceeds to discuss the question whether after such revivor, the land could be sold on vend, ex., in view of our administration system, but leaves the question undecided, as it was not then before the court.

In this case, the judgment was revived against the administrator, before the vend. ex. was issued.

In Davis v. Oswalt, 18 Ark., 414, the court said: “Such is the effect of our Probate Statutes upon the common law rule, that although a fi.fa comes to the hands of the sheriff before the death of the defendant, and thereby becomes a general lien upon all his personal property, yet, inasmuch as it does not become a specific lien upon any particular property, until the officer makes a levy, etc., the death of the defendant suspends the execution of the process, and it is not regular for an officer to make a levy and sell the property after his death.”

In that case, the decree was a specific lien on property, and the order of sale was issued before the death of the defendant, and the sale made after her death, and the court held the sale valid.

The court further said: “ The lien of the decree, and order of sale in the hands of the sheriff, upon the slaves, was as specific as if a levy had been made before the death of Mrs. Dobbins. The creditor had' acquired, during her life, a vested right to have his decree satisfied out of the particular property named therein, in preference to her creditors generally, and her death did not divert this right.”

So it was held in Arnett v. Arnett et al., 14 Ark., 57, that when slaves were levied upon under an execution against the husband, before his death, his widow was thereby deprived of dower in the slaves. But not so where the execution was in the hands of the sheriff, but not levied before the death of the husband. James v. Marcus et at., 18 Ark., 421.

In Frellson v. Green, as administrator, 19 Ark., 376, an attachment was levied on the lands and goods of the defendant,, and after the levy he died, and his administrator, being substituted as defendant in the suit, moved to quash the levy, on the ground that it would interfere with the usual and ordinary course of administration of the estate of the deceased. The court sustained the motion, dissolved the attachment, released the property, and permitted plaintiff to take a judgment against the administrator for the debt; and on error, by the plaintiff, this court held that the levy of the attachment, during the life of the defendant, fixed a specific lien on the property, and that, on revivor against his administrator, the plaintiff was entitled to judgment condemning the property to the satisfaction of the debt.

In Doe v. Heath, 7 Blackford (Ind.), 154, the court said: “The first objection is predicated on the proposition that a sale of lands on execution, after the death of the execution defendant, notwithstanding a levy was made in his life time, is a void sale, and passes no title to the purchaser. By the common law lands could not be taken in execution upon a writ of fieri facias, the goods and chattels alone of the defendant being liable to seizure by virtue of that writ. If the defendant died after execution awarded, the writ might be served upon his goods in the hands of his executor or administrator. By statute a fieri facias in this State reaches the lands as well as the goods and chattels of the execution defendant. If the goods and chattels of a defendant be seized, and he die before execution is completed, they may, notwithstanding his death, be sold by virtue of the execution. We see nothing in the statute from which we can infer that a distinction was intended to be made, in this respect, between a levy on the lands, and a levy on the goods and chattels of the deceased. The mode of proceeding is the same in both cases.”

A similar construction was given to the statute of Pennsylvania, by Judge Washington, in Bleecker v. Bond, 4 Wash. C. C. R., 6, and he held that where a fi. fa. had been levied on land during the life of the defendant, a vend. ex. might be taken out after his death, without revivor on scire facias. But this court, as we have above shown, has decided otherwise.

In Caperton v. Martin, 5 Ala., 220, held, that where an execution was levied on the goods of the debtor during his life, his subsequent death and the insolvency of his estate did not displace the specific lien created by the levy, and that it could be enforced, notwithstanding the administration statute, providing for a pro rata payment of the debts of the deceased out of his estate.

In Doe v. Hayes, 4 Indiana, 117, held, that where a fi. fa. was levied on the land of the execution debtor during his life time, and returned without sale, and after his death a vend. ex. was issued, and the land sold, the sale was valid.

So in Jones v. Jones, 1 Bland (Maryland), 449, it was decided that land, levied on in the life of the execution debtor, might be sold after his death. That, in this respect, there was, upon principle, no difference between a levy upon lands, and a levy on goods.

In Kentucky, held, that where an execution was levied ,on defendant’s land, the writ was abated by his death, and the land could not be sold; but that the lien upon the land, created by the levy, was not displaced by the death of defendant, and could be enforced in equity, under a statute. Holeman’s ex’r. v. Hole-man’s heirs, 2 Bush., 519.

In Taylor v. Doe, 13 Howard (U. S.), 268 (on Error to Mississippi), where land was levied on in the life of the debtor, and thereby seized into the custody of the law, a sale after the death of the debtor, on vend, ex., was held valid.

The vend. ex. is but part of and a continuation of the original process of execution, under which the property is seized, and the sale on vend. ex. is the completion of the process.

By our statute, all demands against the estate of a deceased person are divided into five classes, and judgments which are liens on lands, etc,, are placed in the third class, etc. Gantt's Digest, sec. 98, etc.

But it cannot be affirmed that all judgments must necessarily be probated and classed and paid in full, or pro rata, if there is a deficiency of assets, out of the general assets of the estate.

For it is clear, under the decisions above cited, that where an execution has been issued upon a judgment, and levied upon the goods of the defendant, they may be sold after his death to satisfy the judgment, and that the creditor need not resort to a probate of the judgment for payment out of the general assets.

So we have seen that when land is levied on, in the life of the debtor, and he dies, a sale may be made after his death, and before the return day of the writ.

And so we think the adjudications cited, show, that if the writ is returned after the levy without a sale, a vend. ex. may be taken out and the specific lien created on the land by the levy, enforced by sale, after the judgment has been revived against the the administrator.

So when the judgment or decree is a specific lien on property, real or personal, it may be enforced by sale after the death of the debtor.

All such exceptions to the general rule rest upon the ground that when a creditor has acquired a specific lien upon particular property of the debtor, during his life time, it may be enforced after his death, and that the creditor is not obliged, to resort to the general assets of his estate through the Probate Court, as creditors must do who have judgments, or executions in the hands of officers which have not been levied before the death of the debtor, which are general liens upon his real and personal property.

It is suggested that there might be several judgments against a debtor, constituting senior and junior general liens upon his lands, that the junior judgment creditor might take out execution and, in the life of the debtor, cause it to be levied on his lands, thereby fixing a specific lien upon them, which might be enforced by sale, after his death, and that the senior judgment creditors would have to resort to probate'of their judgments, and take the chances of getting them paid out of the general assets of the deceased debtor in the hands of his administrator, etc. In other words, that a junior general lien creditor might, by such diligence, acquire a preference over senior general lien creditors. That is true, but it would result from the neglect of the senior judgment creditors to sue out executions, and cause them to be levied in the life of the debtor, and it is an old maxim that the law favors the diligent.

So it might happen ’that several executions might come to the hands of a sheriff at earlier and later dates, constituting senior and junior general liens on the goods of a debtor, according to the dates of their delivery to the officer, and the junior execution creditor might procure a levy to be made on goods of the debtor before his death, which he certainly could enforce by sale after his death, while the senior execution creditors, though they might hold the sheriff responsible for neglecting to levy their executions, would have to resort to the general assets of the deceased debtor, through the Probate Court, for payment of their judgments.

We have been able to find no case where it has been adjudged that a specific lien fixed upon land or goods, by the levy of an execution, in the life of the debtor, is displaced and destroyed by the death of the debtor, and may not, in some mode, be enforced after his death, unless it is lost by the laches of the creditor.

In Bently et al. v. Cummins, 9 Ark., 487, and in Adams et al. v. Cummins, adm’r., 10 Ark., 541, and in Hornor v. Hanks, 22 Ark., 573, cases relied on by counsel for appellee, no levies were made before the deaths' of the debtors.

So in Yonley v. Lavender, 21 Wallace, 276 (on error to this court), the levy was made after the death of the debtor, on execution from the federal court against his administrator.

Whether the levy be upon lands or goods, the property is seized into the custody of the law, and is a satisfaction of the judgment until disposed of (Trapnall v. Richardson et. al., 13 Ark., 549), and we cannot see, on principle, why the death of the debtor should release the property from such custody, deprive the execution creditor of the benefit of a specific lien acquired by the levy in the life of the debtor, and turn the property over to the administrator, etc., for the benefit of other creditors who have acquired no such specific lien upon it in the life of the debtor.

See Black, adm’r., v. Planters Bank et. al., 4 Humph., 367.

In Dodge, adm’r, v. Mack, 22 Ill., 95, the court, after showing that a statute of Illinois divided all claims against estates of deceased persons into four classes, etc., said: “Thus it will be seen that whether a debt be due by judgment, bond or simple contract, if resort is had to the mode prescribed by the statute for its payment, no preference is given: _ Yet that there are cases where the debt may be collected without filing the claim, and sharing in the distribution of the assets, is undoubtedly true. As where the creditor holds a mortgage on property of deceased, or where property has been pledged to secure the payment of the debt, or where there has been a recovery and an execution issued and levied in the life time of the deceased, in each of these cases, the property thus bound may be sold after the debtor’s decease, in satisfaction of the debt. In each of these cases the creditor has acquired a lien, and the specific property has been appropriated either by the debtor, or by the law, for its satisfaction, and the death of the debtor can in no wise affect the rights of the creditors.”

The judgment must be reversed, and the cause remanded to-the court below with instructions to sustain the demurrer to the petition to recall and quash the vend, ex., and permit appellant to take out an alias vend. ex.


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    Badgett and Wife vs. Keating and Wife.
    Miles Killian, and Elizabeth, his wife, for a nominal consideration expressed in the deed, conveyed certain land belonging to the wife, to Badgett, upon the following trusts: “That the said Killian and wife, for and during their natural lives, respectively, without impeachment of or for an37 manner of waste, should have, hold and enjoy said tract of land, * * and receive and enjoy the rents and profits thereof; and, upon trust also, that the said Badgett, upon the written request of said K. and wife, or the survivor of either of them, may, at any time, and shall, upon such request, mortgage or sell the said tracts of land, or any part thereof; and the said K. and wife, or the survivor, to receive the entire consideration received upon such mortgage or saler And said trustee, or any one that may be appointed, shall have full power to make valid title in such cases, and if no such disposition shall be made thereof, then, at the explication of said life estate, the remainder' shall descend to the heir of'said Elizabeth Killian.” The wife had no children by K., and died, leaving one daughter, the issue of a former marriage; K. married again, and, for a nominal consideration, conveyed the trust estate to one Moore who, on the same day, for the like consideration, conveyed it to K.’s second wife; the trustee died without having executed his trust by mortgage or sale. Held:

      First — That Killian was merely a nominal party to the deed of trust, and not properly a cestui que trust, because the legal estate did not pass from him to Badgett, the trustee, but from the wife, in whom the equitable estate remained.

      Second — K. acquired a life interest in the rents and profits of the land, and, upon sale or mortgage, in the money realized therefrom.

      Third — There being nothing for the trustee to do under the provisions of the deed, but to carry out its directions according to the letter, it created an executed trust: and it seems rather to have reserved the rents and profits to the grantors, than to have entrusted the collection of them to the trustee.

      Fourth — The effect of the deed was to separate the legal from the equitable estate; to vest the first in the trustee; the second in the cestui que trust, Mrs. Killian.

      Fifth — Declarations of trust are construed in the same manner as common law conveyances, and the trust estate is governed by the same rules; the cestui que trust is seized absolutely of the freehold, in contemplation of a court of equity.

      Sixth — A trust once created attaches to the legal estate, and cannot be detached from it and extinguished, except by the union of the two estates in one person, when the equitable, will merge into the legal estate. This rule excludes the idea of the legal and equitable estate uniting in K., he never having been seized of a legal estate, could not, as cestui que trust, hold an equitable estate. The only estate held by him at the time of the execution of the deed to Moore, was the life interest acquired under the deed of trust.

      Seventh — Badgett could not, by denying the validity of K.’s deed, renounce the trust. A trust, once accepted, cannot be renounced by the trustee, or his heirs, upon whom it is cast at his death; nor can he discharge himself of it without the consent of the cestui que trust, or the court.

      Eighth — The power to sell was to be invoked by a request in writing. It must be a request to mortgage or sell, not to ratify a sale made by another As regarded price, and time, and manner of sale, a discretion was vested in the trustee.

      Ninth — Upon proper application, the trustee might have been required to mortgage or sell; but this not having been done during his life, the estate in remainder passed to and vested in the heirs of Elizabeth Killian.

      Tenth — The deed from Killian to Moore was inoperative, and, upon his death, Mrs. K. having died previously, the purposes of the trust were completed ; nothing remained to be done, and the legal estate passed to, and united' with the equitable estate, in the heir of Mrs. K., to whom the estate was limited in remainder.

      APPEAL from Pulasld Chancery Court.
    Hon. John E. Eakin, Chancellor.

      Wassell & Moore, and T. D. W. Yonley, for appellants.

      Pose, contra.

   Walker, J.:

Badgett and wife brought this action in ejectment for the possession of certain lands therein described, to which Keating and wife interpose an equitable defense, asserting title in the wife to the same lands, and, upon their motion, the cause was transferred to the equity court.

The answer was made a cross bill; ’plaintiffs filed an amended complaint, and an answer to the cross bill. The cause was heard before the chancellor upon-the pleadings, exhibits and an agreed state of facts, upon consideration of which, the chancellor decreed in favor of the defendants, from which .decree the plaintiffs appealed to this court.

The facts upon which the respective parties claim title to the land in controversy are, that before the 28th of May, 1861, Elizabeth McLain was the legal owner of the lands in controversy, and continued to own them until the time of her marriage with Miles Killian; that after such marriage, on the 28th of May, 1861, Killian, and his wife Elizabeth, for the consideration of one dollar, and for other good considerations, conveyed said lands by deed to William B. Badgett in trust, that the said Killian and wife, for and during their natural lives, respectively, without impeachment of, or for any manner of waste, should have, hold and enjoy said tract of land, with the hereditaments and appurtenances, and receive and enjoy the rents and profits thereof; and upon trust also that the said Badgett, upon the written request of said Killian and wife, or the survivor of either of them, may, at any time, and shall, upon such request, mortgage or sell the said tracts of land, or any part thereof, and the said Killian and wife, or the survivor, to receive the entire consideration received upon such mortgage or sale; and said trustee, or any one that may be appointed, shall have full power to make valid title in such cases, and if no such disposition shall be made thereof, then, at the expiration of said life estate, the re- . mainder shall descend to the heir of said Elizabeth Killian.

The plaintiff/ Lucetta Badgett, was the only heir of Elizabeth Killian, by a former marriage. So far as appears, Elizabeth had no children by her marriage with Killian, and died in the year 1862.

On the 26th of February, 1866, Killian married the defendant, Ruth A. Keating. On the 28th of February, 1868, for the consideration of one dollar, he conveyed the lands in controversy, by quit claim deed, to James S. Moore, who, on the same day\ conveyed said lands by deed, for a like consideration, to Ruth A. Keating, then the wife of Miles Killian. In less than a month after this Killian died, and, on the 5th of May, 1869, defendant Keating and Ruth, the widow of Killian, were married. William B. Badgett, the trustee, after the death of Killian also died without having executed his trust by either mortgage or sale. The plaintiff, Noah H. Badgett, married Lucetta, the daughter and heir at law of Elizabeth Killian.

It is under this title Lucetta and her' husband assert title to the lands in controversy.

The title set up by defendants is by deed from Miles Killian, executed after the death of his wife Elizabeth.

The title held by Killian, and his right to convey, is a question of paramount importance in determining the issue involved. If the title to the land was in Killian, then the heir, Lucetta Badgett, acquired no estate in the remainder, after Killian’s death. A decision of the case turns upon this question.

That the lands belonged to Elizabeth Killian, and that Lucetta Badgett was her sole heir by a former marriage, and was married to Noah H. Badgett, are conceded facts.

Miles Killian and Elizabeth, his wife, had no children of that marriage, and, consequent^, Killian, at the time of joining his wife in making the deed of trust, had no estate in the lands by courtesy, but only a right to rents and profits during the life of his wife.

The lands were the property of his wife; she alone had power to declare a trust upon them. Washburn on Real Property, vol. 2, p. 270, says : Upon the question who may make a declaration, or create a trust, which shall attach to an estate, it may be stated in the first place, that it must be one who has the legal title in the same ; his act is the source, or origin, of two estates, which flow on afterwards independent of each other, in point of ownership, until they merge by being again united in one person.”

Killian was a mere nominal party to the deed, and was not properly a cestui que trust, because the legal estate did not pass from him to Badgett, the trustee ; it was the wife’s property, and the equitable estate remained all the time in her.

By the terms of the deed, Killian acquired a life interest in the rents and profits of the land, and, also, upon mortgage or sale, the money received for the same. The trust is what is ordinarily termed an executed trust, that is, a trust in which all of the directions for its execution are given, so that the trustee has nothing to do with it but to carry out the provisions of the trust, according to its letter. Perry on Trusts, vol. 1, p. 44 ; 2 Wash-burn, p. 452; and at page 426, Washburn excepts cases where the cestui que trust is a femme covert, and, in illustration, says: “ A grant,, or devise, to A in trust for B, or to permit B to take the i’ents and profits, would be an executed trust in B, unless B was a femme covert, when, in order to carry out the grantor’s or devisor’s intent, it would be a trust to be executed, not executed.”

The deed in this case seems rather to have reserved the rents and profits to the grantors than to have entrusted the collection and payment of them to the trustee. And, as regards the mortgage of the lands, or the sale of them, the grantors reserved the power, jointly if both were living, or singly in case of the death of either, to require the trustee t© act.

The effect of the deed was to separate the legal from the equitable title, the first to vest in Badgett, the trustee, and the second, or equitable estate, to remain in the cestui que trust, who had parted with the legal title, to enable a trustee to execute his trust.

Declarations of trust are construed in the same manner as common law conveyances, when the estate is finally limited by the deed. A trust estate, therefore, is considered, in equity, as equivalent to the legal ownership ; governed, in general, by the same rules, and liable to every change in equity.

The cestui que trust is seized absolutely of the freehold in the construction of a court of equity.

The trust is the land; a declaration of trust a disposition of the land. As a general proposition, trusts conform to the rules of law applicable to legal estates, in respect to their direction and transmission. 2 Washburn, 456.

Where a trust has once been created, it attaches to the estate, and can never be detached from it, and extinguished, except by a union of the legal and equitable estates in one person, the equitable in such case being merged in the legal estate. Ib., 470.

This rule utterly excludes the idea of the legal and equitable estate ever uniting in Killian; never having been possessed of the legal estate, he, consequently, as cestui que trust, held no equitable estate. Indeed, the only estate of any description which he held at the time he executed the deed to Moore, was his life interest, acquired under the deed.

Counsel contend that Badgett, by denying the validity of the deed, in effect, renounced the trust conferred under it. Such, we think, was not the case; the trust, once accepted, could not be renounced; nor could the trustee discharge himself of it without the consent of the cestui que trust, or direction of the court. Ib., 471.

Upon the death of the trustee, his heirs cannot renounce or disclaim it; the acceptance vests the estate in'him, and, at his death, casts it upon the heir, who cannot discharge himself from it by disclaimer. 1 Washburn, 340.

A trustee has not only no power to relinquish his trust, or abandon it, but must execute it strictly in accordance with its terms. Perry on Trusts, vol. 2, 415, says: “The general rule is rigidly adhered to, that the power can only be executed in the mode, at the time, and upon the conditions prescribed in the deed, according to its provisions.”

The power to sell, in this case, was to be invoked, upon written request, by the cestui que trust ; the request must be to do what the deed required of him; to mortgage or sell, not to ratify a sale made by another. As regarded price, time and manner of sale, a discretion in the trustee was necessarily given, because no directions governing the trustee in this .respect were given in the deed.

The trustee is always required to make a fair sale, upon full consideration, and with due regard to the rights of those entitled to the estate in remainder.

The estate reserved to Killian was, at most, an estate for life; upon proper application the trustee might have been required to mortgage or sell, but this not having been done during his life, the estate in remainder descended to, and vested in, the heir of Elizabeth Killian.

A trustee, says Perry, vol. 2, p. 69, is required to act impartially between the tenant for life, and the remainder man. When property is settled upon a trustee, to hold in trust for one person for life, and the remainder over to some other person, it is the duty of the trustee to consult the interest both of the tenant for life, and the remainder man; he must not act so as to give either the advantage, at the expense of the other. A trust is always to be executed in the most faithful and conscientious manner.

The effort of Killian to get the whole estate, worth, perhaps, $5,000 or $10,000, from the child and only heir of his first wife, to whom she had given her lands at the expiration of the life estate, and place it in the hands of his second wife, for the nominal consideration of $1, would not be tolerated i;r a court of equity.

In order to illustrate the real equities of the parties more clearly, let us suppose that after the death of his wife, Elizabeth, Killian had made a written request to Badgett, the trustee, for the consideration of $1, to sell the lands; to prevent the compliance with which, the heir claiming to be entitled to the estate in remainder, had filed a bill, and set forth the facts before us, and that such sale was requested by Killian, to be made for a nominal consideration, not for the purpose of affording him the means of support, but in fraud of the rights of the heir, and, in fact, to place the property in the hands of his second wife, and take from the rightful heir the estate to which she was entitled, as well by deed as by descent. We think, under this state olease, the chancellor would restrain the trustee from making the sale, and it follows, as a consequence, that if the trustee, to whom the power of sale was given, would not have been permitted to violate the spirit of the trust, for still greater reason, Killian, who never owned the land, and,who, by the provisions of the deed, was only entitled to a life estate in it, could not do so. All of the equities of Killian depend upon his title to the land. The court could uot invest him, or those claiming under him, with a better title than was intended to be conveyed, and, in fact, was conveyed, by the deed of trust.

If Killian had been entitled to have this land sold, or mortgaged, and, upon written request, the trustee had refused to sell, a court of equity would have compelled the trustee to execute the trust, or would have displaced him, and had the trust executed by another.

The conceded fact that the land was the property of the wife, and the failure of issue of the marriage, left to the husband only the rents and profits of the land during the life of the wife, after which his title to them would have ceased, and by operation of law, the daughter, Lucetta Badgett, would have acquired an unqualified title; such being the case, had he alone conveyed, by deed in trust, he would have acquired no rights incident to his marriage ; but by joining with his wife in the deed, he acquired the only estate which he then claimed to hold, which, by the express terms of the deed, was limited to the period of his life.

Upon the death of Killian and wife, the purposes of the trust were completed, nothing further remained to be done by the trustee, and, at this point, a question arises as to what act was necessary, on the part of the heir, to vest in her a legal title to the land. Does she acquire it under the provisions of the deed which declares it to be hers after the death of Killian and wife, or by operation of law as heir ? or is it necessary that the legal title, which was vested in the trustee for the purpose of enabling him to execute the trust, when all of the duties which devolved upon him have been completed and are at an end, be reinvested by deed or a decree of court ?

Up m the examination of several authorities directly bearing upon this question, we think that when the purposes for which the trust was executed have been all performed, or when, from death or other cause, the further execution of the trust is rendered impossible or unnecessary, the cestui que trust, if living, will take the legal estate conveyed to the trustee for purposes of the trust, whereby it will again be united with the equitable estate in him; or, if‘conveyed in remainder, it will go to the remainder man. Perry on Trusts, 2 vol., p. 417, says: “But even a discretionary power cannot be exercised after all the purposes of the power and of the trust have been satisfied, as where all of the persons for whom the trust was created .are dead, the property in specie goes to the remainder man.”

In the case of Nicoll v. Walworth, 4 Denio, 386, Thomas Marston conveyed to Francis B. Winthrop certain lands, to receive rents and profits, to be applied by him to the support of Hannah Curry during her natural life, conditioned that the land be not sold during such life, and after the death of Hannah Curry, to Mary B. Marston, and her heirs. Plannah Curry died, and a suit investigating title to the land was commenced, in which the court was asked to charge, that the deed from Mars-ton to Winthrop vested in Mary B. Marston an estate in remainder in the premises for the residue of the term, which estate vested in possession upon the death of Hannah Curry, and under the title thus shown, the defendants were entitled to a'verdict. The court refused to give the instructions, and the defendants brought error.

When the case came to be considered in the court of New York, Jewet, judge, said:

“ The fir§t inquiry is, what estate passed to Winthrop by the deed from Marston, authorizing Winthrop to receive the rents and profits to be applied for the support of Hannah Curry during her life ; it was a trust recognized by the common law; being an active trust, it vested the entire legal estate in the trustee, determinable by the expiration of the term, or the death of Mrs. Curry, whichever should first happen.”
“ The rule of the common law is, that the trustee takes that quantity of interest only, which the purposes of the trust require, and the instrument creating it permits. The legal estate is in the trustee so long as the execution of the' trust requires it, and no longer, and then it vests in the person beneficially entitled.”

In the case under consideration, Lucetta Badgett was the party beneficially interested in the estate, entitled to it in remainder after the death of Killian, and his wife Elizabeth, and, after their death, she took the legal estate, and was entitled to maintain her action in ejectment, to be put in possession of it.

The case has been ably argued by counsel on both sides, and reference made to numerous authorities. Those cited on part of the defendants were to sustain the position assumed by counsel that Miles Killian was a cestui que trust, and held the equitable estate to the lands; and, holding such title, he had a right to convéy the same by deed, and did make a conveyance to Moore, and from Moore to Ruth Keating, under which defendants claim to be the owners of the land in controversy, which we must hold not to be the case.

The judgment and decision of the court below must be reversed and set aside, with costs, and the cause remanded, with instructions that a decree be rendered for plaintiffs, Badgett and wife, the deeds from Killian to Moore, and from Moore to Ruth Keating, be set aside, as creating a cloud upon their title; that the title to the lands in controversy be decreed to plaintiffs, and an inquiry of damages be taken and decreed for the use and occupation of the lands by defendants.