text:
    NORWOOD and WIFE v. HOLLIMAN, Adm’r., etc.
    Descents and Distributions. — J. H. died, leaving surviving him six children, one of whom was E. H.; an administrator was appointed; E. H. married and diedj leaving surviving him his wife, Harriet L., and one minor child; the child died, leaving the said Harriet D. her sole heir, who afterwards intermarried with O. N. On petition in the Probate Court by the said C.N. and Harriet L., malting the administrator of J. H. party defendant, and asking- that the said Harriet L. be declared entitled to one sixth interest in all the real and personal estate of which the said J. H. died seized, and that the administrator be ordered to turn over the same to the said Han-iet L.: Held, on general demurrer, by the administrator:

      First. That if Harriet L. was entitled to the estate descending to her from her former husband, it ought to come to her through his administrator, freed from his debts; and that the Probate Court had no power to declare that one sixth of the real estate of the said J. H. should be turned over to the said Harriet L., as the administrator only holds the estate for the payment of debts.

      Second. That the petition for distribution should have affirmatively, shown the condition and liabilities of the estate of the said J. H.;. what, if anything, remained for distribution after the payment of the debts; that all the distributees should have been made parties defendant and should allege a tender of bond as required by law. . ®

      APPEAL FROM OUACHITA CIRCUIT COURT.
    IIon. George W. McCown, Circuit Judge.

      English English, Leake and Garland for Appellants.
    "We submit:

      First. That the demurrer in the court below should have been overruled, as being general and not specifying the grounds of objection to the complaint. See section 112, Code of Practice.

      Second. That the bond to refund, to be given by an heir and distributee, under section 2, p. 49 Chapters Digest, is not'a prerequisite, but is discretionary with the administrator to demand, and the court to order such bond given.

      Third. That, under chapiter 56, Goidd’s Digest, appellants were noj only entitled to the personalty claimed in the petition, and dower in the interest of Holliman in the lands owned by his father at the time of his death, (one sixth) but, under chapter 10, “ Chapters Digest,” to the land absolutely..

      U. M. Pose, for Appellee.
    The demurrers confessed everything stated in the petitions, but nothing not therein stated. They were properly sustained, because:

      First. It did not appear that the Probate Court had any jurisdiction in the premises, it not appearing that the letters in either case had been issued by the Probate Court of Ouachita county.

      Second. It did not appear, with any degree of certainty, what the estate was that was to be distributed.

      Third. It did not appear that the debts were paid, and that the estate was in a condition for distribution.

      Fourth. Mrs. Norwood and her husband could not bring these suits as heirs, or claiming as such. Take the first case for example. They could not sue in their own names for the distributive share of Elijah B. in the estate of his father. Tliis could only be done by the administrator of Elijah B. So that the assets coming to him might be first applied to the payment of his debts. By this proceeding the applicants would have intercepted the estate, and cut off the creditors, which cannot be done. Pryor vs. Byburn, 16 Ark., 672 ; Slocomb vs. Blackburn, 18 Id., 319 ; Atkins vs. Guice, 21 Id., 179; Lemon vs. Bector, 15 Id., 436; Pope vs. Boyd, 22 Id., 535 ; Anthony vs. Peay, 18 Id., 30; Worsham vs. Field, Id., 448.

      Fifth. The petitioners should have tendered a refunding bond, as required by statute. Gould’s Big., ch. 4, sec. 150; Chapters of Digest, p. 48 ; Keith § Jolly, 26 Miss., 131; Cannon vs. Benson, Id., 395 ; Logan vs. Bichardson, 1 Penn., S. B., 372.

      Sixth. No one was made defendant except the administrator, whereas all parties in interest should have been brought in, and should have had ten days’ notice of the application i Gould’s Dig., ch. 4, sec. 154 ; Chapters of the Digest, p. 49, sec. 6 ; Murff vs. Frazier, 41 Miss., 418 ; Valentine vs. Wetherill, 31 Barb., 655;' Cargile vs. Harrison, 9 B. Mon., 518 ; Haiokins vs. Craig, 1 Id., 27 ; Boyettvs. Kerr, 7 Ala., 9 ; Porter vs.- Porter, 7 How.,'(Miss.) 106; Shattuck vs. Young, 2 S. M, 130 ; Bobinson’s Appeal, 1 Chip., (Vt.) 357

      Seventh. This being an ancestral estate, on the part of the father, certainly as to lands under the statute of descents contained in Goidd’s Digest, on the death of Eugenie Maria it went “to the line on the part of the father, whence it came, not in postponement, but in exclusion of the mother’s line.” Kelly vs. McGuire,-lb Ark., 555.
   McClure, C. J.

In November of 1868, James Holliman died, leaving surviving him six children, one of whom was Elijah B. Holliman; the names of the other five do not appear of record. The estate, real and personal, of James Holliman, deceased, seems to have been worth $25,000 or $30,000. In February of 1869, Richard T. Holliman, the appellee in this suit, was appointed administrator on the estate of James Holliman, deceased.

In January, 1871, Charles M. Norwood, and Harriet L., his wife, filed their petition in the 'Probate Court of Ouachita county, asking that the said. Harriet L. Norwood be declared entitled to a one-sixtli interest in all the real and personal estate -of which James Holliman died seized, and that the administrator of said estate, Richard T. Holliman, be ordered to pay and turn over to the said Harriet L. Norwood, one sixth interest of said estate of James Holliman, deceased. The administrator,'Richard T. Holliman, is made a party defendant to this complaint, and it alleges that Elijah B. Holliman was a son of James Holliman, deceased; that in December of 1868, said Elijah B. Holliman died, leaving surviving him his wife, the said Harriet L. (the present appellant) and one child, Eugenia Maria Holliman; that said child, Eugenia Maria Holliman, died in August, 1870, leaving the said Harriet L. her sole heir; that in December of 1869, she, the said Harriet L., intermarried with her present husband, Charles M. Norwood. These are the facts upon which she bases her complaint, and upon which she bases her claim to the relief asked. In the Probate Court the administrator filed a general demurrer, which was by the court sustained. An appeal was taken to the Circuit Court; the demurrer was again sustained, •and an appeal taken to this court.

Section 112 of the Code, in declaring the effect of a demurrer, says: “ The demurrer shall distinctly specify the grounds of the objection to the complaint; unless it does so, it shall be regarded as objecting, only, that the complaint does not state facts sufficient to constituté a cause of action.” It is in this light we shall examine this case. . •

The question presented, then, is : do the facts stated entitle the appellants to the relief asked? A response to this inquiry involves the examination of two statutes. The first of which is the tenth section of the statute regulating descent and distribution, as found in Gould’s Digest (page 422), which is as follows: “ In cases where the intestate shall die without descendants, if the estate come by the father, then it shall ascend to tlie father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs; but if the estate be a new acquisition, it shall ascend to the father for his lifetime, and then descend, in remainder, to the collateral kindred of the intestate, in the manner provided in this act; and in default of a father, then to the mother for her lifetime; then to descend to the collateral heirs, as before provided.”

The estate in this instance -was not a “ new acquisition;” it came by the “ line of the father.” The facts alleged by Harriet L. Norwood, in her complaint, would not allow her to the relief asked under this statute, and there could be no error in sustaining a demurrer to the complaint, for the facts stated do not, to use the language of the code, “ constitute a. cause of action.”

The counsel for the appellants urge that the line of descent and distribution, as fixed by the section just quoted, has been, superseded, and that the facts alleged in the complaint entitle her to the relief asked tinder the provisions of section one of the chapter in the new digest (page 65), regulating the descent and distribution of the property of deceased persons, dying intestate. The section thus alluded to is, in substance, as follows — that the property shall descend :

First. To his children, or their descendants, in equal parts.

Second. .If there be no children or their descendants, then to Iris father, mother, brothers and sistei’s, and their descendants in equal parts, etc.

Under the provisions, of this section the appellants claim that at the death of Elijah 13. Ilolliman the one-sixth interest of the estate of James Ilolliman, deceased, which, by the law, passed to tlié said Elijah B., descended to Eugenia Maria Holliman; and that at the death of the said Eugenia, there being no children, or their descendants, or father (living), that this one-sixth interest in the estate of James Holliman passed to Harriet L. Norwood, the mother of said Eugenia Maria Ilolliman, as her sole heir.

Counsel for tlie parties .to this suit insist that the question thus presented involves the validity of tho chapters of what is called the “new digest.” While wc have no disposition to evade a question presented by the record in this ease, wo think it better to first examine the question presented by the demurrer, and see if the complaint would be sustained under either of the statutes from which we have quoted; for if it shall appear that the complaint does not state facts sufficient to constitute a cause of action under either statute, it might he claimed, that so much of the decision as related to the constitutionality and validity of the statutes was a mere obiter dictum. This being true, and the validity of the chapters of the digest being a matter of some doubt in the mind of the profession, we prefer to settle the question of their legality in a case where the opinion of the court would not be regarded as mere dictum.

From the beginning to the end of the complaint there is nothing in it which advises the court of the condition of the estate of James Holliman, deceased. It is true that the complaint states that the estate was worth some twenty-five or thirty thousand dollars; but what its liabilities were, is nowhere stated, nor is it’ alleged that the administrator had, or would have, a single dollar to distribute among the heirs of James Holliman, deceased, after the payment of his debts. Without these facts appearing affirmatively, the court below could not do otherwise than sustain the demurrer.

Counsel for the appellee urge that Mrs. Norwood and husband cannot bring the suit, on the ground that the toleration of such a practice would intercept the estate of Elijah B. Holliman, deceased, and cut off Ms creditors. In this we agree with Mm.

Mrs. Norwood had no right to bring such an action. If she was ' entitled to the estate descending to her former husband, it ought to have come to her through his administrator, freed from Ms debts. The Probate Court had no power to declare that one-sixth of the real estate should be turned over to Mrs. Norwood, as the administrator only holds the estate for the payment of debts.

Section one of the chapters of the new digest (page 48) declares that an executor or administrator shall not be compelled to make distribution until one year after the date of his letters. Section two of the same chapter declares that an administrator shall not be compelled to make distribution within two years after the date of his letters, unless-ordered to do so by the court, until bond and security be given by the legatee or distributee, etc.

Counsel for the appellee insists that the complaint should recite a tender of the bond required by section two, before he is entitled to an order for distribution. In this view-we agree with him. The complaint, as has been stated, does not mention the names or residences of any one of the •other distributees. This, we think, it should do, as section six of the chapter, now under discussion, declares that the distributees not applying for distribution, shall be notified in writing of such application ten days before any such order shall be made, etc. The thirty-third section of the same chapter also shows conclusively that the other distributees should be made parties, as it provides that guardians ad litem should be appointed for such of the heirs as are not residents of the county. There are many reasons why the other distributees should be made parties to any suit or proceeding which has for its purpose the distribution of the effects of an estate. The order of distribution, when made by the court, is in the nature of a judgment, and ought to settle the rights and interests of all the distributees. If this proceeding had been for the partition of an estate, the distributees would have had to have been made parties defendants, and we can see no reason for the relaxation of such a rule where the complaint asks for the distribution of an estate. "That portion of Gould’s Digest, page 129, which relates to legacies and distribution, is very similar to the chapter of the new digest on this subject; and so far as the old or new digest, on the subject of administration, is concerned, the complaint does not come within either. These things being true, the discussion of the constitutionality or the unconstitutionality of the chapters of 'the new digest becomes unnecessary, and all argument upon that subject, from this point onward, would be nothing but dictum, and treated as such by the profession. While it might, to some extent settle conflicting opinions, held by members of the bar, it is our experience that dictums, upon questions not necessarily before the court, seldom give the universal satisfaction as though the opinion had been prepared in a case where the question was directly involved.

The judgment of the Ouachita Circuit Court is affirmed.


source: Caselaw Access Project

author: Gregg, J.

license: Public Domain

text:
    GARIBALDI v. JENKINS et al.
    'Tax Titles — Where residents lands sold as non-resident. — A resident’s lands wore assessed to anon-resident; the taxes were not paid; the lands were advertised and sold as non-resident lands: On hill- by purchaser to confirm ■his title, Held, That under the law then in force, Gould’s Digest, Chapter 148, the resident owner had a right to redeem, and approving Gossett, et al t vs. Kent, et al., 19 Ark., 602. Kinsworthy, et al vs. Mitchell and wife, 21 Ark., 145.
    APPEAL EROM PULASKI CHANCERY COURT.
    ITon.-T. D. W. Yonley, Chancellor.

      Gallagher, Newton $ Hempstead, for Appellant.
    It makes no difference in wliose name land is assessed, if. the taxes are unpaid the sale is valid. The name of the owner is unimportant. The particular land taxed stands liable for it, no matter who may be the owner. See Merrick $ Fenno vs. Hutt, 15 Ark., 331.
    Defendants being residents of Pulaski county, are not entitled to redeem. Section 145, GoulcVs Digest, (which was the law when and under which this sale was made).. Chapter 148,. 953.

      Farr § Fletcher, for Appellees.
    Ve submit tliat tlie lands being assessed and sold in the name of a non-resident of Pulaski county, the law which governs the sale of a non-resident’s lauds, for the non-payment of taxes, must govern in this case; and therefore, it follows that tlie party, having the legal or equitable interest in the lands sold for the non-payment, of taxes, can redeem them at any time within twelve months from the date of the sale. See Gossett ct al. vs. Kent, 19 Ark., 603; Kinsworthy et al.. vs. Mitchell and wife' 21, Ark., 145. Any person having the-legal or equitable title in lands sold for taxes can redeem.. Merrick § Fenno vs. Unit, 15 Ark., 341.
   Gregg, J.

The appellant filed his petition, in the Pulaski Chancery Court, praying to have his title confirmed to certain described lands situate in said county, which he alleged had been duly assessed to B. M. Griffith, a non-resident, returned delinquent and sold to appellant for the taxes of the year 1867, and that after the expiration of one year therefrom, they had, in due form of law, been deeded to him.

Upon appearance and petition, the appellees were made-parties defendants, and they responded that, as the widdw and heirs of Ilezekiah Jenkins, deceased, they were the lawful owners and entitled to the possession of said lands. They admitted the assessing; advertising and sale as alleged; (only as to one forty acre tract on which the taxes had been paid); they admit their residence in the county, and that they had not paid taxes on the remainder of the lands. They repeat the allegation in the bill, that the lands were assessed to-a non-resident, and they aver that within less than one year after the sale, they offered to redeem all of said lands, and tendered the appellant more than the amount of taxes, penalty and. costs, with one hundred per cent., and that lie-refused to accept the money and allow them to redeem, and they bring the amount into court and tender the same, etc.

The parties filed an agreed state of facts : “That the lands. were assessed to Griffith, a non-resident; that the.taxes were not paid; that the lands were advertised and sold as nonresident lands ; that appellant bought and paid for them and obtained a deed as alleged; that the appellees who resided in the county were the true owners of the lands, and that they tendered the money and offered to redeem as stated in the answer, and that the appellant refused to accept the money or relinquish his claim.”

The cause was submitted to the court upon the pleadings and facts, and the Chancellor found in favor of the appellees, and decreed that the petition be dismissed and that the complainant pay costs, from which decree he appealed to this court.

The appellant contends that the appellees had no right to redeem, because they were residents of the county in which the lands were situate, and the- law, then in force, did not provide for the redemption of a resident’s lands when sold for taxes.

It is true, the law then in force (Gould’s Digest, Chapter 148) made no provision for the redemption of a resident’s lands after tax sale, but all the lands under that law were classified in assessing; they were to have a fixed status, and certain requisites were 'prescribed before declaring the resident in default and fixing liability upon his lands. The law provided a different mode of assessing, of advertising, and a different time and manner of selling non-resident from a resident’s lands.

The personal property of the latter was first to be resorted to and, if not paid, a personal demand was to be made, and in default, then the lauds were to be levied upon and sold without right of redemption. The non-resident lands were proceeded against by advertising, and if no payment was made, by sale at a fixed time and place, and one year thereafter was allowed for redemption ; the owner had but constructive notice, but was thus favored, in time, to clear up his titles.

If the resident’s lands were improperly placed in the lists of non-residents, and he wanted to have his personal property convei'ted for the payment of his taxes, or to have the notice prescribed by law, (and each has a right to all the delays the law sanctions) his lands might bo sold without any notice to him, and without the privilege of redemption.

To repeat, sales of resident and non-resident lands were at different times and conducted in a different manner, and to 'work a forfeiture, the officers must proceed against the lands in the manner prescribed by law.

It is said to be immaterial whether the lands are assessed in the name of the true owner or not, so the taxes are unpaid, etc., but be that so, the law proscribes the channels through which proceedings must pass in order to produce a valid tax .title. And as has been held, by this court, in Gossett et al. vs. Kent et al. 19 Ark., 602, there must be a point at which it is determined whether or not the lands are liable as residents or non-residents, and it was there held that upon the assessment lists being returned to the County Court for correction and confirmation, and being passed upon and approved, became a matter adjudicated, and after such judgment was passed upon the assessment lists, the status of the lauds must be regarded as a.thing determined, and all parties concerned were, thereafter, bound by such determination, and the lands were then subject to advertisement, sale and redemption, according to their status on the assessment lists. And the law declares sales valid whether the lands are assessed in the name of their true owner or not, and sufficiently empowers the collector to make valid sales of all assessed lands, provided he pursues the mode indicated by the status of the lands upon the lists.

This doctrine, so well settled in this case, was approved and again .affirmed in Kinsworthy et al. vs. Mitchell and wife, 21 Ark., 145, and we arc not now inclined to disturb these •decisions.

Let the decree be affirmed.


text:
    ACKERMAN v. DESHA COUNTY.

      Mandamus — When will not lie. — Where the duty imposed by law-upon an officer has, from some cause or other, become impossible to be performed, man-damns will not lie.
    PETITION EOR MANDAMUS.

      T. D. W. Yonley, for Petitioner.

      Pindalls, for Respondent.

      Mandamus is an extraordinary remedy, and to entitle a party to this remedy, he must show a clear- right in himself, and a corresponding obligation on the part of the officer, for if the right or the obligation be doubtful, the court will not interfere by this process: Asbury vs. Beavers, 6 Texas, 473. Same principle, State ex. re. vs. Jacobus, 2 Dulcher’s (A. J.) R., 135. Draper vs. Notewear, 7 Cal., 279, ions refused because of a casus omissus in the law. In Rawlevs. Colley Tp., 29 Penn. S. R. 121: Held mandamus will not be granted when it is not an effectual remedy. Nor, if when granted, it would be nugatory in accordance with the maxim, tar non cogit inutilia. Com’rvs. Comr. A. Co., 20 Md., 461.
   Gregg, J.

On the 17th day of May, 1870, Ackerman filed in the court his petition for a mandamus against the justices composing the Oounty Court of Desha Count}'!

He alleged that he was the holder and owner of certain levee bonds issued by said county, under the acts of the Legislature of theTGth of February, 1859, and 15th of January, 1861, and the 8th of April, 1869, against levee districts No. 5, 6 and 7, and to be paid out of taxes to be collected therefrom; that said bonds were issued in lieu of certain scrip which had been issued by levee inspectors of said districts; that, by the act of April 8th, 1869, the County Court of said county was required to hold certain terms, and to levy a tax on the respective districts to pay the levee bonds issued under said acts; that he had presented his bonds for payment, and had caused them to be registered according to the provisions of-said last act; but that the County Court had refused to pass upon his rights, and utterly neglected and refused to levy any tax whatever for- the payment of said bonds.

To this petition, the justices of the County Court answered, in which they admit that under the acts first referred to there were levee districts laid oft', of which there were districts numbered 5, G and 7; that selectmen and levee inspectors were appointed ; levee work was done and certificates issued; that in some districts the lands, subject to taxation, were selected and reported, etc., and taxes collected for one or two years; that a proper record book was kept, in which were recorded the orders and proceedings of the court in reference to levees, including the description of the districts and the lands included, the reports of assessments, etc., warrants issued, etc., the sums collected, etc., and the same was kept nowhere else, and that in 1865 said book was destroyed by a detachment of Confederate soldiers, and that in 1863, the office of the clerk of said county was forcibly broken open by some United States soldiers, and all the original papers relating to said levee matters were destroyed, and that there now remains no evidence or records upon which respondents could levy the tax as prayed for by the petitioner; that the county of Desha is not liable for such taxes; that they can be assessed and collected only from particular lands, in particular districts, in unequal proportions, and by a standard of valuation, fixed upon the benefits derived from the levees by each particular tract of land, and that the respondents have no information or knowledge of the lands so selected, nor of the valuation at which .they were assessed, nor of the proportion of such indebtedness to which they wore subject, and they cannot obtain such information or knowledge; that the magnitude of the indebtedness renders it impossible that the taxes should pay any considerable portion of the interest of the bonds issued, etc., etc.

The cause has been submitted upon this petition and answer, and upon the question whether mandamus will issue-upon the facts stated in the bill and answer. This proposition seems not difficult. If, as stated in the answer, the officers composing the Comity Court of said county had no knowledge or information, and no means by which they could find what lands composed the respective districts, or the extent of the benefits derived by the levees to any particular tract of land, or the amounts assessed against such tracts respectively, it was not possible for them to assess a tax against the lands according to the provisions of the law; and it the petitioner would force a levy, he should aver and show that they had or could acquire such information, or else he should, by some means, designate the particular lands liable ’ to such assessments, because it is clear that a mandamus will not lie against an officer requiring him to do what he cannot possibly perform: Tapping on Mandamus, 15; 12 Barb. 220, and Ib., 617.

Be the applicant’s means of redress what it may, it is evident he has not shown facts which authorize a mandamus. The question of jurisdiction, and others'argued, need not be discussed.

The writ is refused.


author: Bennett, J.

text:
    HALLIBURTON et al. v. SUMNER.
    Unlaywctl Detainer — Circuit Courts have jurisdiction in. — The provisions of the Code of Practice, respecting jurisdiction in actions of unlawful detainer, are not to be construed as taking from the Circuit Courts jurisdiction in those actions.
    Same. — -Lands were sold by an administrator by order of the Probate Court; but previous to the time of confirmation and.subsequent to the time of sale, the same administrator, with the approbation of the Probate Court, rented the lands to 'another party. On unlawful detainer brought by the purchaser at the administrator’s sale: Held, That the purchaser was entitled to the possession from the time of ratification of the sale, and he was not deprived of any of his rights by virtue of the lease.
    APPEAL FROM ARKANSAS CIRCUIT COURT.

      Garland ‡ Nash, for Appellants.
    We submit that, by the purchase of the appellant at the administrator’s sale, the relationship of landlord and tenant was created between him and the appellee holding under the lease. 1 Washb. Real Prop., 445. This being true his action was properly brought and his case fully made out. 13 Ark., 448; 18 Id. 284-304. That the Legislature could not take away the jurisdiction of the Circuit Courts in such action; 4 Ark., 147; 7 Id. 173. But if the act attempting to take away jurisdiction is of any validity, not repealing expressly the jurisdiction in the Circuit Courts, it leaves the jurisdiction concurrent; 25 Ark., 567, et seq.; ■Delafield vs. State, 2 Hill (N. Y.) 159, et seq.

   Bennett, J.

W. II. Halliburton and William A. Sample brought an action of unlawful detainer against Jacob B. Sumner, in the Arkansas Circuit Court, at the May term 1870, for the recovery of the possession of certain lands in that county.

The issues joined, in the court below, wore submitted to a jury which found for the defendant. Erom which verdict and • judgment the plaintiffs appealed.

But two questions are presented in the motion for a new trial:

First. Had the Circuit Court jurisdiction in an action of unlawful detainer?

Second. Was there such a relationship of landlord and tenant existing between the plaintiffs and defendant as to maintain an action of unlawful detainer upon the part of the plaintiffs; and if so, were the plaintiffs entitled to possession on the merits ?

The question of jurisdiction was settled by the act of the Legislature, approved December 16, 1868. Sec. 1 par. 11, says :' “ In actions of forcible entry and detainer and unlawful detainer, justices of the peace shall only have concurrent jurisdiction with the Circuit Courts.” • Whatever doubts may have been thrown upon the question by the wording of the Code, have been removed by this latter enactment.

As to the second proposition,, the evidence produced at the trial shoAvs that Sevier, the administrator of Jordan’s estate, obtained, an order of the Probate Court of Arkansas co'unty, on the 13th day of January, 1869, to sell certain portions of the lands belonging to the estate, for the purpose of raising money'to discharge its indebtedness. The lands said to be Ainlawfully detained, by the defendant, were included in the order of sale. In obedience to the above order, the administrator offered the lands for sale. At a term of the Probate Court held on the 13th day of October, 1869, the administrator produced his report of the sale and asked that it- be approved and confirmed; Avliich Avas accordingly done. By this report, it appears that one J. B. Ricks was the purchaser at the sale, but he afterAvards, with the assent of the administrator, transferred, assigned and relinquished his bid to William II. Halliburton, avIio accepted it and agreed to become the purchaser of the lands in place of said Ricks. It also appears that on the 16th day of October, 1869, it being one of the days of the regular terms of the Probate Court, the order confirming the sale of lands, as approved in the administrator’s report, Avas set aside, and further action on the report Avas postponed. On the 13th day of January, 1870, the Probate Court finally confirmed the sale as made by the administrator. A bond for title was given by tlie administrator to W. II. Halliburton, but no date appears upon it, nor was it over acknowledged. The evidence also discloses the fact, that the defendant Sumner was a tenant of the administrator for the years 1868-69 and that, at a public rentiugj by order of the Probate Court,' on the 4th day of January, 1870, he rented the lands in controversy for the year 1870, and that the Probate Court, on the 11th day of April, 1870, confirmed said lease of lands.

We think the question has been settled in the cases of Bradley vs. Hume, 18 Ark., 284, and Frank vs. Hedrick, 18 Ark., 304, that an action of forcible detainer, under our statutes, will lie at the suit of a purchaser of land which, at the time of the purchase, was in the possession of a tenant under a lease from the vendor, upon demand after the expiration of the term for which it was leased, although the purchaser has never been in actual possession of the land.

The evidence, in the case under consideration, ’ shows that Halliburton bought the land at an administrator’s sale, about the 1st day of October, 1869, which sale was confirmed on the 13th day of'January, 1870. It, also, appears that previous to the time of confirmation, and subsequent to the time of sale, the same administrator, with the approbation of the Probate Court, had rented the land to the defendant for the year 1870. Now was Halliburton the purchaser at the sale of October 1,1869, of Sumner, the lessee of January, 1870, entitled to the possession at the commencement of this suit?

It is undoubtedly true that a contract of sale, made between the court as the vendor of property, through its agent or trustee, and the purchaser, is never regarded as consummated until it has received the sanction and ratification of the court. In the case of ex parte Minor, 11 Ves., 559, it was determined “ That a purchase before the master is not complete, before confirmation of the report.” Still, whenever the ratification of the sale takes place, the sale becomes absolute from the day of sale and the right of the purchaser begins from that time. In the case of Wagner and Marshall, vs. Cohen, 6 Gill 102, the court say: “ Although this is the character of the imperfect right acquired by a purchaser at a sale of this kind, yet, it gives to him an inchoate and equitable title, which becomes complete by the ratification of. the court. When this is accomplished, the ratification retroacts, and he is regarded by relation as the owner from the period of the sale. He is, as such proprietor, entitled .to the intermediate rents and profits of the estate ; he cannot escape from the sale because he may believe it to be disadvantageous, and is bound to pay interest on the purchase money from its date; and has, therefore, a direct and strong interest in protecting the property from injury and rendering it as productive as possible.” In the case of Jackson ex dem. Noah vs. Dickerson & Thompson, 15 Johnson, 315, the court say : “ The subsequent delivery of the deed, being mere matter of form, must have relation 'back to the time of purchase at the sheriff’s sale.” In the case of Jackson vs. Warren, 32 Ill., 342, the court say : “ In England the practice is to keep the biddings open, at a master’s sale, so that any person may advance on a bid received by the master, which he reports to the court, so, until a final confirmation of the sale, no one can be considered a purchaser but a mere bidder; but under our practice, at- such sales, a valid and binding contract of sale is made when the hammer falls. In the absence of fraud, mistake or some illegal practices, the purchaser is entitled to a deed upon payment of the money.”

Although the confirmation of the sale in the case before us was not made until after the premises were leased to the defendant for the year 1870, we must hold that, upon its confirmation, the purchaser, the plaintiff, was entitled to the possession of the premises from that date ; and he being no party to the leasing of the same to the defendant, is not deprived of any of his rights by virtue of the lease. Therefore, the motion for a new trial was improperly overruled, both as to the question of jurisdiction and upon the merits.

The cause is reversed and remanded to be tried anew, not inconsistent with this opinion.


author: Searle, J. Gregg, J.

text:
    WORTHINGTON et al. v. WELCH, Administrator.

      Practice.' — Motions for new trial; when not necessary. — Where the proceedings excepted to, as erroneous, appear in the records proper of the court, and the errors can. be examined into and ascertained by simply reviewing such records, such cases may be brought to this court by writ of error or by appeal without a motion for a new trial.

      When necessary. — Where the errors complained of are, in their nature, extrinsic of the records proper of the court, or where the proceedings objected to appear in the records proper, but the errors cannot be ascertained without considering the proceedings in relation thereto,- that are extrinsic of such records, such proceedings or matters must bo saved by bill of exceptions.
    APPEAL FROM CHICOT CIRCUIT COURT.
    ]Ion. IIenry B. Morse, ’ Circuit Judge.

      Garland § Nash, for Appellants.

      Bell Carlton, for Appellee,
   Searle, J.

This was an action of ejectment brought, in the court below, by the appellee, against the appellant, for the recovery of certain lands situated in Chicot county. The issues were made up and submitted for trial to the court sitting as a jury. The finding and judgment were for the plaintiff, from which this appeal was taken.

»The transcript of the record presents us with the evidence introduced upon the trial, to the introduction of which no exceptions were taken; also, certain propositions of law, as declared by the court, to some of which exceptions were taken; also, certain propositions of law asked by the appellant to be declared by the court, but which the court refused to declare, and to which refusal exceptions were taken.

It appears the above proceedings and facts were brought upon the record by a bill of exceptions, but nowhere appears that a motion for a new trial was made. Was such a motion necessary in the case before us? To answer this question, it is only necessary to reiterate, in brief, the general principles so clearly enunciated in the case of Sleck vs. Mahar, 26 Ark., 536, and re-affirmed in the case of Merriweather vs. Erwin, decided at the last term, and which seem so certainly to be contemplated by our code of practice (see articles iv and v, pages 118-19-20-21, Civil Code of Practice) namely: “In any case where the proceedings excepted to as erroneous appear in the records proper of the court, and the errors can bo examined into and ascertained by simply reviewing such records, such case may be brought to this court for review “by writ of error, or by appeal, without a motion for a new trial.”

On the other hand, in all cases where the proceedings, complained of as erroneous, are, in their nature, extrinsic of the records proper oj: the court, or when the proceedings objected to appear in the records proper, but the errors complained of cannot be ascertained without considering the proceedings in relation thereto, that are extrinsic of such records, such proceedings or matters must be saved by bill of exceptions. And the only method known to the law by which they may be so saved is, that they be tendered to the judge, upon his overruling a motion for a-new trial, and' signed and ordered filed by him. In the case before us, all the proceedings or matters objected to Sn the trial below, were, in their nature, extrinsic of the record proper, and, therefore, could only be brought upon the record by a bill of exceptions, in a legal manner tendered, signed, etc.

There having been no motion for a new trial, the bill of exceptions cannot be -regarded as having been legally tendered, signed, etc., and the matters therein contained can not be regarded as being legally before us. We must presume, therefore, that the court below committed no error in its proceedings or judgment.

Let the judgment be affirmed.

Gregg, J.

Dissenting, says: This important case goes' out of court upon a question uf practice.

As heretofore announced, I hold that when the court below is asked to declare the law, and the decisions upon the questions of law are properly excepted to*, and all the facts or findings before that court are, by bill of exceptions, brought upon the record, such questions of law ought to be heard in this court without a motion for a new trial.

Where no motion is made for a new trial in the court below, the facts or findings in that court are conclusive and cannot be here examined, but the law held applicable to such findings may, under our civil code of practice, be questioned in this court. But we argued this same question in the case of Merriweather vs. Erwin, decided December Term, 1871, and we refer to that without repeating arguments and references to authorities in this.


author: McClure, C. J.

text:
    MARTIN, Ex parte.
    Municipal Corporations — No power to tax auctioneers. — Under the act of April 9, 1869, entitled, “An act regulating the incorporation of municipal corporations,” the power to tax and regulate auctioneers is not conferred upon municipal corporations. ■<.

    PETITION EOR HABEAS CORPUS.

      English, Gantt ‡ English, for Petitioner.

      First. "We submit that all powers not expressly granted by The charter of a mujiicipal corporation, or necessary to carry out these powers, are denied. The corporation can take nothing by implication. Abb. Eig. Corp., p. 487, secs. 48-49 ; lb., p. •517, sec. 380; Booth vs. Town of Woodbury, 32 Conn., 118; lb., 131; Alley vs. Inhabitants Edgcomb, 53 Maine, 440;' Leavenloorth vs. Norton, 1 Kansas, 432 ; Parker vs. Parker, 1 Clarke, Ch. 223; Kyle vs. Malin, 8 Ind., 34; Hooper vs. Emery, 14 Maine, 375. And these powers should be strictly construed. Abb. Eig. Cop., p. 517, Sec. 380; 2 Kent. Com., 298, (2d Ed.) 9 Oranch, 127 ; Wheaton 680 ; 4 Peters, 152.

      Second. The power to license auctioneers and to take bond for their good behavior, not being one of the incidents to a corporation, must be conferred by. an act of the Legislature, and in exercising it the corporate body must conform to the act. Eowle vs. Com. Council Alexandria, 3 Peters, 399 ; Abb. Eig. Corp., 513, Sec. 333.
   McClure, C. J.

On the 23d of December, 1870, the petitioner was convicted before the Police Court, of violating an ordinance of the city of Little Rock, which reads as follows:

“ That no auctioneer shall be allowed to sell any goods, wares or merchandijfe at any public sale, except to the highest bidder only; any person acting as auctioneer, violating this section of this ordinance, shall, upon conviction .thereof, by the court of this city, be fined in any sum not less than ten nor more than twenty-five dollars for each offense.”

The evidence adduced at the trial, discloses that the auctioneer took an article of merchandize from one of his shelves, and offered it forthree dollars; no one bidding that price, the same was offered for two dollars ; no one bidding that price, the same was finally offered at one dollar ; no one bidding that price, the article was laid back on the shelf as not sold.

The object of the ordinance seems to have been to compel the auctioneer to put the articles up and allow the bidders to start the same, and that the bidding from that time forward should he upward, and that the same should be sold to ■ the highest bidder. *

On conviction, Martin was sentenced to pay a fine of ten dollars and costs, and in default of payment he was committed to the city prison to work upon the streets, etc. Whereupon he filed his petition in this court for habeas corpus.

There are other questions and issues raised in argument, than has been stated,' but the sole question presented by the record is, could the city council, of Little Rock, legally pass and enforce such an ordinance? We shall not at this late day enter into an argument to prove that a municipal corporation must confine its legislation within the scope of the power conferred.

Under the 16th section of the act of December 12, 1866, entitled, “ An act to reduce the law incorporating the city of Little Rock, and the several acts amendatory thereof, into one act and amend the same,” the power to tax and regulate auctioneers, was fully given to said city. The ordinance alluded to was passed December 8, 1870, and whilst the city was being governed by the provisions of the act of April 9, 1869, entitled, “An act regulating the incorporation of municipal corporations.”

Upon an examination of the last recited act, the power to tax and regulate auctioneers is not conferred upon municipal corporations. The only mention that is made of auction, in the act under which and from which the city of Little Rock derives its authority and power, is found in the seventeenth ■section of said, act, and is as follows : “ They shall have pow”er to regulate or prohibit the sale of all horses or other domestic animals, at auction, in the streets, alleys or highways.” It is clear that this language does not confer the power to regulate the sale of merchandize within' an auction room, as was contemplated by the ordinance, and it is equally clear, that if the power to regulate auctions and-auctioneers is not granted to the city, that it cannot be exercised.

The act of April 9, 1869, was a grant of power to municipal corporations, and a revocation of all power not therein ■enumerated.

' The petitioner will be discharged.


text:
    STATE v. CARSON.

      Pardos: — Will not restore to office — C. while holding tho office of probate and county judge, was convicted in the Circuit Court of a felony; he appealed; during tho pendency of the appeal he was pardoned by the Governor.. On quo warranto, he pleaded his pardon; Held, That a judicial officer forfeits his office by conviction of a felony and that no pardon can restore him. •
    QUO WARRANTO.

      Montgomery, Attorney General, for the State.
    Persons convicted of malfeasance in office, or crimes punishable by law with imprisonment in the penitentiary, cannot hold office in this State. Constitution, 5th clause, Sec.. 3, of Art. 8; Sec. 4, page 383 Gould’s Digest.

    Every attempt to exercise the functions of an office, after conviction, is an usurpation. The Commomoealth ts. Fugate,2 Leigh (Va. R.) 724, and cases there cited.

    A pardon does not restore offices forfeited, or property, or interests vested in others, in consequence of the conviction - and judgment. JESx parte Q-arland, 4 Wallace, 333, and cases there cited.

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

Carson was probate and county judge of Craighead county, and, prior to the filing of the information, was convicted of a felony, and sentenced to confinement in the penitentiary. Erom the judgment of the Circuit Court he appealed to this court. During the pendency of the causein this court, Carson obtained a pardon from the Governor, and pleaded the same in bar to the suit then pending. The Attorney General confessed the pardon and its truth, and Carson was 'discharged..

After these proceedings were had, Carson returned to his home and continued to exercise the duties and functions of' the office of probate and county judge, whereupon the Attorney General filed quo warranto.

To the writ of quo warranto, the defendant pleaded his commission and qualification. To this plea the Attorney General responded, that since the issuing of the commission and qualification, as alleged, the defendant had been convicted of a felony, which judgment has not been reversed. To this reply 'the defendant filed two pleas.

First. “ That he was not indicted and convicted in manner and form as therein stated, and of this he puts himself on the country, etc.

Second. That after the time of said. supposed conviction, to wit: on the 12th day of December, 1870, the Governor of Arkansas issued and granted unto the defendant, under the seal and in duo form of law, a full pardon for the said offense, etc.

The Attorney General, moved to strike the first plea from the files for the reason that it raised an issue of fact, and was not sworn to. This motion was overruled.

T.o the second idea, the Attorney (3-eneral demurred on the ground that the facts stated in the plea do not contain facts sufficient to constitute a defense.

We will dispose of the question of law presented by the demurrer, before discussing the question of fact.

Section 3, Article VIII, of the Constitution of this State, among other things, declares that “those who have been convicted of treason, embezzlement of public funds, malfeasance in office, crimes imnishable by law with imprisonment in the penitentiary, or bribery, shall not be permitted to register,■- or vote or hold office.”

Section 4, of part X, of Gould’s Digest (383) is as follows:“Every person convicted of bribery or felony, shall be excluded from every office of trust or profit, and from the right of suffrage in this State.”

Section 9, of Article VI, of the Constitution, gives the Governor power to grant reprieves, pardons and commutations after conviction.

The question now arises, does the Governor’s pardon restore the office of probate and county judge to Carson, or does it only restore him to certain civil rights ? In ex parte, Garland (4 Wall, 381) the Supreme Court of the United States, in speaking; of the effect of a pardon said: “It does not restore • to offices forfeited, or property or interests vested in others, in consequence of the conviction and judgment.” 4 Blackstone’s Commentaries, 402; 7 Bacon’s Abridgement Title, Pardon.

In this case there was a trial, verdict and sentence. The appeal did not set aside the judgment of the Circuit Court, it merely suspended judgment, or rather, the. execution Of the judgment. Section 327, Criminal Code, page- 329.

One of two things must be true in this case, either that Carson was tried, convicted and sentenced to the penitentiary, or that the Governor had no right tó pardon him. The power of the Governor to pardon, by the terms of the Constitution, is limited to cases after conviction. If an examination of the record, in the Circuit Court of Craighead county, in the case of the State against this defendant, should disclose tlie fact tliat no conviction was had, then the pardon which he pleaded when the case was here on appeal, and the one which he now pleads is a nullity, having been granted before conviction. State vs. McIntire, 1 Jones Law (N. C.) 1.

On the other hand, if it appears that a conviction took place before pardon, then it clearly follows, that tlie defendant cannot assume to exercise the functions and duties of the office of county and probate judge. In the case of the Commonwealth vs. Fugate, (2 Leigh, Va., 724) a justice of the peace was convicted of a felony, and afterwards pardoned' by the Governor. On his return home, he resumed the exercise of the office of justice of the peace. A rale was made upon him to show cause why an information, in the nature of quo warranto, should not be filed against, him, etc. To the rule,- he •pleaded liis .commission, qualification and pardon, as is done in this case. In disposing of the. case Brockenbrough, J., said': “The courtis decidedly of opinion that such judicial officer forfeits his office by conviction of a felony, and that no pardon can restore him.”

This case is very analagous to the one at bar, the only difference being that no appeal was taken. Carson was either convicted or he was not convicted. Instead of combating his case upon its merits in this court, he relied upon his pardon, and was allowed to depart from it — not upon.a judgment of acquittal, but by tlie terms of a pardou, by which his guilt and conviction had to be acknowledged before it could be obtained. The pleading the pardou was a virtual abandonment of the appeal, and Carson now stands in no better light before the court than though he had not appealed.

The pleas in this case are contradictory; the first denies conviction, and the second pleads he was pardoned; but inasmuch 'as the demurrer to the second plea is well taken, we will pass to the first without comment.

With the papers submitted in this case, is a certified transcript record of the case of the State of Arkansas vs. James Carson, which clearly shows Carson to have been convicted of a felony and sentenced to tlie penitentiary. The judgment and 'sentence of the Craighead Circuit Court has not been set aside. The record showing a conviction, it is incumbent on the defendant to rid himself of the record or accept the consequences which follow its introduction as evidence.

The defendant having failed to show a continuing right to exercise the office of probate and county judge, a judgment of ouster will be entered.


author: Gregg, J.,

text:
    STATE ex use etc. v. BAILEY.
    Equity Jurisprudence — When no cognizance of a suit in rem. — Equity jurisprudence, independent of a statute for that purpose, has no cognizance of a bill brought in rem against real estate to foreclose a mortgage given thereon.
    APPEAL FROM PULASKI CHANCERY COURT.
    Hon. T. D. ~W. Yonley, Chancellor.

      Montgomery, Attorney General, for Appellant. ,

      Clark cj- Williams, for Appellee.
   Gregg, J.,

announced the following opinion delivered by the chancellor in the court below, as the opinion of the court, to-wit:

“The bill in this case is brought by the State of Arkansas on behalf of herself and the holders of the bonds issued by the State, under the provisions of the act of the General Assembly incorporating the. Real Estate Bank of the State of Arkansas, to enable that bank to obtain banking capital, as well as on behalf of the creditors of the bank to foreclose a mortgage given by John Dillard upon certain lands therein described, to secure the payment of a stock bond executed by him to the Real Estate Bank, dated “the 27th day of October, 1838, for the sum of fourteen thousand eight hundred and ninety-six dollars.

The bill in this' case is not brought against Dillard, his heirs, executors, administrators or assigns, or any other person claiming by, through or under him, or against any person in possession of the property, but is brought directly against the land itself, and is, to all intents and purposes, a proceeding in rem.

To this bill, Joseph II. Bailey has interposed a demurrer, assigning, among other causes not necessary to be mentioned under the view -that I take of the case, that neither the said John Dillard, nor his executors, administrators or heirs, nor any person claiming _any interest in the lands mortgaged, nor any other person, is made defendant to said bill of complaint, nor is the said bill a proceeding against any jjerson, but against the lands in rem, and that by the Constitution and laws of the United States,' and of the State of Arkansas, •the said mortgage cannot be foreclosed, and all equity of redemption be barred as against any and all owners of said •equity by a proceeding in rem against the lands.

After mature reflection, I am well satisfied that, this cause of demurrer is well taken. It is argued, however,'that under the 13th and 14th sections of chapter 28, Gould’s Digest, this court has no jurisdiction of the subject matter of this suit, and that Bailey having appeared, claimed the land, and interposed a demurrer, is estopped from questioning the sufficiency of the service, and that Bailey having thereby entered his appearance, the court now has jurisdiction of both the person of Bailey and of the subject matter of the suit, and ought to proceed to a final decree in this case. This argument is fallacious, and is sustained by neither reason nor authority.

This case is not claimed to be within the provisions of the act of January 16th, 1861. That act provides for the foreclosure of the mortgages given under the 13th section of the act 'establishing the Real Estate Bank of Arkansas, approved October 28th, 1836, and for the. forclosure of none others.

The object of these foreclosures was to provide a fund for the payment of the fif/een hundred and thirty bonds originally issued by the State to the Real Estate Bank.

The mortgage to foreclose which this bill is brought, is not comprehended within the terms or meaning of that act; it belongs to a different class of mortgages altogether. Such being the case, the inquiry .is reduced to tlie simple question : Can a bill, independent of a statute for that purpose, be brought in ran against real estate to foreclose a mortgage given thereon.

¥e would seek in vain for an authority warranting such a proceeding, both in the equity jurisprudence'of England and America.

It is certainly true that the act of January 16th,-1861, relates entirely to the remedy and not to the right. It provides a remedy for the foreclosure of certain mortgages, of which the mortgage now in question is not one.

The mortgages, included within the statute, may be foreclosed in pursuance of the statute, but those which are beyond its provisions, must be proceeded upon according to the established rules of equity jurisprudence, that is to say, by a. proceeding in personam, and not a proceeding in rein.

Indeed the difficulty in this case is not about the service only ; the trouble is of a decidedly more serious character.

Had this suit been brought against the parties in interest as defendants, then their general appearance to the bill would have dispensed with service, or cured á defective one. But this bill is brought against the land, and is wholly without the sanction of law.

The demurrer questions not the sufficiency of the service, but attacks the validity of the whole proceeding, and denies the right of the court to take cognizance of a suit brought in this manner, and to render a decree of foreclosure thereon, which, in law, would have the effect to bar the equity of redemption of the parties in interest. It asserts that the suit is brought in violation of the rules of'equity jurisprudence, and, therefore, is without a locus standi in a Court of Chancery.

' These objections are well taken, and seem to me to be beyond controversy.

If the State can, without the aid of a statute, proceed in rem to foreclose this mortgage, why cannot every mortgage be foreclosed by a like proceeding?

The State is here merely a suitor, and in this, as in every other suit brought by her, she must proceed according to the known rules of the law, or otherwise must fail. There is, in a legal point of view, no suit here.

To constitute a suit in chancery, except in a few cases that may be proceeded in exj>arte, there must be a party complainant and defendant, and every departure from this rule must depend upon some statute law for its sanction. The appearance of the claimant does not help the matter. There is no suit pending in this court against Bailey, to which he can enter his appearance as a defendant. The proceeding is against the land of which he claims to be the owner. lie comes into court and says he owns the land, and by his demurrer objects to the legal right of this court to take cognizance of the cause brought in the manner it is, or to render any decree whatever in the premises. Denies, in fact, the jurisdiction of the court to decree a foreclosure of the mortgage given by Dillard under the form of proceedure adopted in this case.

Having appeared, cannot take away his right to do this. Every defendant can do this, whether he has voluntarily appeared to the action, or been brought into court by the due service of process.

At common law the defendant could enter his appearance and then demur to the form of the action, as that debt has been brought when the action should have been assumpsit. And it would have been no answer to have said that the court had jurisdiction of the subject matter, and that by reason of the defendant’s appearance the court has acquired jurisdiction of his person.

The objection is to the form of the action, and, if well taken, p>uts an end to the suit.

It is certainly true there never were any forms of action in equity proceedings necessary to be adopted to enforce particular rights, or redress particular wrongs. Yet there arq certain well fixed rules to which every proceeding in chancery must conform, and among them is the rule never departed from, to my knowledge, that suit in chancery must be a proceeding in personam. Certainly a Court of Chancery may, as incident to a suit brought, lay hold of property and hold it subject to the final result of the suit, but can, according to the rules of equity jurisprudence, never proceed directly against property as a party to the suit.

This case not being within the act of January 16,1861,' and being a proceeding against the land itself, brought without the sanction of law, is not a proceeding of which this court can take cognizance, and must, therefore, be dismissed.”

The decree of the Pulaski Chancery Court is in all things affirmed.


author: Greco, J.

text:
    COLLIER et al. v. DYER.

      Set-oee — Must be mutual. — To authorize a set-off the debts must he mutual and due to and from the same parties; there is no such mutuality between an individual and firm account.
    APPEAL PROM YELL CIRCUIT COURT.
    Hon. W. N. May, Circuit Judge.

      J. F. Cravens, for Appellants.
   Greco, J.

Tliis action was commenced by appellants before a justice of the peace of Yell county.

The appellee filed a plea of set-off, claiming a larger amount for medical services rendered one of tlie appellants than tbeir demand against him.

A trial was had; verdict and judgment against the appellants for $36 40 and costs, from which judgment they appealed to the Circuit Court.

In the Circuit Court a like finding and judgment was had, only for a smaller sum; the appellants moved for a new trial; their motion was overruled and they appealed.

This court has long since holden that to authorize a set-off, the debts must be mutual and due to and from the same parties. Field, vs. Watkins, 5 Ark., 672; Bizzell vs. Stone, 12 Id. 378; Brown vs. Houstin, 23 Id. 333.

Under this ruling, the appellee could not set-off an individual account on Wilson W. Collier, against the firm demand of E. G. & W. W. Collier. And some of the instructions given by the court, in behalf of the appellee, were clearly erroneous, being abstract and not supported by sufficient evidence, but as these were not excepted to, or made grounds in the motion for a new trial, we are not called upon to consider them here.

The evidence, on the trial, certainly failed to show a mutuality of accounts between the appellants and the appellee, and, consequently, his plea of set-off could not have entitled Mm to a recovery, and if the evidence was such as satisfied the court that he had a valid and subsisting defense, in payment of the whole, or a part of the plaintiff’s demand, under Cheep. VIII, Title VII, of the Civil Code, he might have allowed the appellee to have amended his pleadings in such manner as would have worked no prejudice to the rights of the appellants. But we do not wish to be understood as intimating that the court, on its own motion, should suggest or make changes in a litigant’s defense, where the ends of justice do not absolutely require such suggestion.

If the court had been satisfied, by proof, that the Colliers as a firm, had agreed to accept medical services of the appellee rendered ~W. ~W. Collier in part payment of the appellant’s bill for lumber delivered, and upon á proper issue the jury had so found, we would not attempt to weigh the evidence or disturb the verdict, if there was evidence tending to support such finding. But there is clearly no such promise, as,, under our statute, could have rendered E. Gr. Collier, or the firm of E. Gr. & "W". "W". Collier, liable for future services to be rendered W. W. Collier as an individual; and not the slightest evidence that E. Gr. Collier ever, in any way, became liable to pay the appellee the excess of his medical bill, rendered against W. W. Collier, and if the pleadings had been changed, or acted upon by the court as if amended, and if there had been sufficient evidence to have sustained appellee’s claim in part, the finding to the full extent was certainly unauthorized by either law or evidence, and in such cases a Circuit Court should always exercise its sound discretion and grant a new trial.

The judgment is reversed and the cause remanded to be proceeded in according to law.


text:
    COOK ex. use v. BAXTER.

      Mandamus — Where affidavit filed under Section 760, Amended Code. — Where suit was pending in the Circuit Court, the defendant filed an affidavit under Section 760 of Amended Code; the circuit judge refused to proceed further with the trial of the case; on petition for mandamus by the plaintiff, Held: That the filing of the affidavit disqualified the judge, and that the clerk of the circuit court should have made an order changing the venue as in -such case provided by law.
    PETITION EOR MANDAMUS.

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

At the October term, 1871, of the Jackson County Circuit Court, there was pending and duly entered on the civil law docket therein, a suit entitled C. C. Cook, for the use of Theodore IJ. Phillips vs. John N. Loftin as administrator of Publius S. Windom. After various interlocutory proceedings were had therein, at previous terms of said court, at that October term, the defendant, John N. Loftin, filed his affidavit to the effect that he verily believed that the lion. Elisha Baxter, judge of the Jackson County Circuit Court, in which court the action was pending, would not give him a fair and impartial trial. Afterwards, during the same term, the plaintiff' C. C. Cook, etc., moved the court to call the case, the same having been reached in its regular order on the docket, and proceed to the trial thereof, which motion was overruled, and the judge (the lion. Elisha Baxter) refused and still refuses to take any farther action in regard to the case. Therefore, the said C. C. Cook, for the use of Phillips, files his petition in this court for a mandamus,, commanding the judge to proceed to the determination of the above suit.

On the 14th day of June, 1872, an alternative writ was issued from this court, directed to the Hon. Elisha Baxter, to show cause why a peremptory mandamus should not issue as prayed for.

July 2d, Judge Baxter filed his response, and among other .things says: “At the November term of the Jackson Circuit Court, 1871, the defendant, in the suit mentioned in the petition, filed an affidavit in said cause under Section 758 of the Civil Code.”

To this response the petitioner filed a general demurrer.

Is the response sufficient in law to justify the judge in refusing to further proceed with the cause ?

. Section 758 of the Code of Practice, was repealed by an “Act entitled an Act to amend the Code of Civil Practice,” approved March 27,1871. Therefore, as far as that section is concerned, the response would not be good; but the Legislature incorporated a section in the Act, above referred to, which says : “Whenever a party to any civil action, in the

Circuit or Chancery Court, verily believes that the judge of the court, in which the action is pending, will not give him a fair and impartial trial, he may file with' the' clerk of such-court an affidavit to that .effect, verified as pleadings are required to be verified, whereupon the clerk shall make an order changing the venue in such case to the most convenient county in an adjoining circuit,”- etc. Section 760, Amended Code.

The petition for mandamus states that “the defendant filed an affidavit stating he verily believed that the Hon. Elisha Baxter, Judge of the Jackson Circuit Court, in which court said action was pending, would not give him a fair and impartial trial thereof.”

Whenever such an affidavit is filed, it is the duty of the-clerk of the court to make an order, changing the venue in¡ such case to the most convenient county in an adjoining-circuit.

The filing of the affidavit disqualifies the judge from making an order or further proceeding in the case.. Hpon the general doctrine that, upon demurrer, the court will examine the whole record and give judgment to the party who, on the whole, is entitled to it, we must say the petition, upon its face, shows that the defendant is not entitled to a writ of man-damns against tlie judge of the Jackson County Circuit-Court. .

Wherefore, the petition will be dismissed and mandamus refused.


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    CLOPTON v. BOOKER et al.

      Executors — Jurisdiction of foreign courts over, etc. — While an executor, as such, cannot be held to an account and settlement before a foreign court, or the ' court of a different State from the one granting such letters, yet, on bill for that -purpose, he may be held in such court to disclose with what, and the character of the funds with which he has purchased property, and whether he holds the same as trustee, and for what uses and trusts.

      Lands- — Title, etc. to, determined by local courts.- — "Where the title of lands and the right of possession thereto come in litigation, whether the contract affecting the same be express or implied, direct or in secret trust, the same must be determined by the courts of the State wherein the lands lie.
    APPEAL ER0M PHILLIPS CIRCUIT COURT.
    Hon. M. L. Stephenson, Circuit Judge.

      Palmer § Sanders, and U. M. Bose, for Appellants.
    If it be true, as was charged, that the executor had used the means of the estate to purchase these lands, and had taken the title in her own name, there is no doubt that a triist would result in appellant’s favor. Wallace vs. Duffield, 2 S. Sf B., 521; Buck vs. Ulrich, 16 Penn. S. B., 499-, Claussen vs. LeFranz, 1 Clarke, 226; McCrory vs. Foster, 1 Clarke {Iowa) 271; Harper vs. Archer, 28 Miss., 212; Schaffner vs. Gh'utzmacher, 6 Clarke, 487; Seaman vs. Cook, 14 111., 501; Garrett vs. Garrett,! Strobh. Hq.,96; Williams vs. Hollingsworth, 1 Id. 103; Caplinger vs. Stokes, Meigs, 175; Lee vs. Fox, 6 Dana, 171; Pugh vs. Pugh, 9 Id., 132.

      The court below placed its decision on the ground that the' suit should have been brought in Tennessee, where the testator lived, and where the letters were issued. But now that the hurry of the assizes is over, certainly no one will contend that any court in Tennessee can, by any proceeding whatever, • affect the title to lands lying in Arkansas. Sto. Gonfl. Latos, section 543; Me Goon vs. Scales, 9 Wal., 23; Reclfield on Wills, 398 and note. See also for a full discussion of this subject, Wharton’s Confl. of .Laws, section 273, et seq. It is extremely ■clear that if the suit could not be. brought here where' the land lies, it could not be brought at all, and yet the bill was ■dismissed because the plaintiff had gone into the wrong forum. As to immovables, the property in each State constitutes -a different succession.'Burbankvs. Payne, 17 La. An. 15; Scolder vs. Knapp, 1 Braclf., 241; Atkinson vs. Rogers, 14 La. An., 633. Where land was in possession of aforeign executor, it was held ■that he might be sued for it in the State where the land lay; Id. And a foreign executor has no right to hold land in this State. Naylor vs. Moffatt, 29 Mo., 126; Crusoe vs. Butler, 36 Miss., 150; Gilman vs. Gilman, 54 Me., 453; Normand vs. Grognard, 2 Green (N.'IL) 425; Mason vs. Nutt, 19 La. An., 41. A foreign •executor leasing lands lying in this State could only be regarded as the agent of the heirs and devisees, and his tenant would hold under them. Rutherford vs. Clark., 4 Bush, 27; Succession of Ruffignere, 21 La. An., 364. A suit here will lie against a foreign executor touching any assets in this State. McNamara vs. Lwyer, 7 Paige Chy., 239; Tunstcdl vs. Pollard, 11 Leigh, 6; Gtdick vs. Gtdick, 33 Barb., 92; Jones vs. Gooch, 6 Jones Kq., 190; .Olney vs. Angelí, 5 R. I., 198.

      ■Tappan $■ Horner and A. H. Garland, for Appellee.
    An administrator can only lie held to account to the jurisdiction granting, his administration: Goodwin vs. Jones, 3 Mass., 513; Stevens vs. Gaylord, 11 Mass., ,256; Dawes vs. Boylston, 9 Mass., 337. The final distribution of the estate belongs exclusively to the jurisdiction where probate of’will was originally granted: Dawes vs. Boylston, 9 Mass., 837; Davis vs. Estig, 8 Pick. 475 ; Clark, aclm’r. vs. Holt, 16 Ark., 257;■ Williams on Executors, Vol. 1, 377; Vol. 2. 366.
    The fact that a portion of the property was moved by the executrix to Arkansas, does not give jurisdiction to require account: Story on Conflict of laws, Sec. 514, B. The same rule-applies as between States : Jackson vs. Johnson, 34 Ga., 511; Davis vs. Estig et al., 8 Pick., 475.
    The assets received by a foreign executor or administrator in the State where the testator resided, are to be administered' in that State: Fay Judge vs. Hazen, 3 Metcalf, 109; Jsham vs. Gibbins, 1 Brad. N. Y., 69'; Farmers Savings’ Bank vs. Brewer, 27 Conn., 600; and generally as to the doctrine here-contended for: Story Confl. Daws (Pedfield’s Edition), 513 et seq.; Probate Court (Law and Practice) by Chilton 212, et seq. Judy vs. Ffllly, H Nfe. 211.
   Gregg, J.

The appellant filed his bill in Chancery, in the Phillips Circuit Court. ■ He alleged that in 1846 James G-. Booker died in the State of Tennessee, seized and possessed of a large estate there and in Mississippi; that he left the*appellee, Eleanor M. Booker, his widow and executrix; that she took posession of his estate, and received large sums descended to him and his heirs from his father’s estate; that she has kept and controlled the whole amount over twenty-four years, up to this time; that she has received large incomes from crops, from the labor of hands, from the sale of some valuable plantations and other property; that she was guardian for all the children of said James Q-. Booker; that she was not required to give any security as such executrix or guardian; that the whole estate was passed into her hands in trust for the heirs of. said James (reserving certain portions for her use during life) to be distributed among said heirs upon their*arrival.at a certain age; that said Eleanor, as such executrix and guardian, had filed no inventory or sales bills; that she had made no settlement whatever with tlie proper court; that she had made no distribution among ■s.aid heirs at the time or in the manner directed in the will of said James Gr. Booker, but that she had kept,' used, disposed of and controlled all of said property as if it were her -own individual estate, except • that she had educated the children and paid the debts of the said James. That, with the effects belonging to the estate, she had bought a large and valuable plantation for herself, a homestead now worth $50,000; that she had sold certain plantations of the estate .and, with the proceeds of one, she had purchased the Phillips ^county plantation of about seven hundred acres, and, without authority, took the title in her own name; that the said Eleanor was only entitled to a life estate in the lands of the said James Gr., and in those since purchased by her with the trust funds in her hands; that all the heirs of the said James Gr.,’ deceased, died, intestate and without issue, except the wife of B. Drake Clopton; that the appellant had intermarried with Ellen, one of the daughters and heirs of the said James; that she died in 1869, but before her death, and during coverture, she and the complainant made a deed of con■veyanee, or settlement in trust, to "William B. Gordon, whereby all the property and estate of the said Ellen were to be held for her use during life, and, in default of issue, with remainder to her said husband, the complainant; that by virtue of the will of said James G. Booker, and the decease of all his heirs (except the said Mary) without issue, and the provisions in said deed of trust and settlement made to the said Gordon, for the use aforesaid, the complainant is entitled to the one-half of all the real estate of the said James, and also .that bought by the said Eleanor with the effects of the said estate, as aforesaid,' and held in trust for the heirs as aforesaid; that in the year 1869, said Phillips county plantation, by the consent and agreement of the said Eleanor, was divided by and between this complainant and wife, and. said B. Drake Clopton and wife, but after the death of Ellen, the appellee Eleanor withdrew her consent to such division; that complainant is still in the possession of about one half of said plantation, and that the title of right is held in trust for him and the said Mary.

The. appellant prayed that the appellees might be compelled fully to answer all the allegations in his bill; that the said Eleanor be required to discover and file a full statement of her action as executrix of James Gr. Booker, showing what assets came to her hands, and how she disposed of them; what debts she had paid; what property she had sold; what incomes she had received; what amount she received for the plantations in Mississippi; whether or not she had made any distribution of said estate among the heirs, and what disposition she had made of the assets of the estate, and where she obtained the money to pay for said plantation in Phillips county, etc. "With a final prayer that the said Eleanor be declared a trustee of the said Booker plantation, in Phillips county, for the said Mary Clopton and the appellant ; that the division of the same as heretofore made be approved and confirmed, and the appellant quieted in his possession thereof, and for all proper relief.

The appellee, Eleanor, appeared and demurred to the bill, because it shows her executorship to be in the State of Tennessee, and seeks an account in Arkansas; because she cannot be compelled to account in Arkansas, etc.

The court below sustained the demurrer, dismissed the bill and rendered a decree against the appellant for costs, from which he appealed to this court.

"We think the law is well settled that an executrix, as such,, cannot be held to an account and settlement before a foreign court, or the court of a different State from the one granting such letters: Story’s Confl. Laws, Sec. 514 and note; Jackson vs. Johnson 34, Geo., 511; Davis vs. Estig, 8 Pick., 475; Boston vs. Boylston, 2 Mass., 384; Burbank vs. Payne & Harrison, 17 La. An. 15.

On the other hand, it seems as well settled that the title of' lands, and the right of possession thereto, must be determined by the courts of the State wherein the lands lie: Story’s Confl. Laws, Sec. 543; McGoon vs. Scales, 9 Wal., U. S., 23; Burbank vs. Payne & Harrison, 17 La. An. 15.

Contracts may be made and obligations pass at points quite remote from the lands intended to be effected thereby, but whenever litigation must be had to test the validity of the claim to such lands, whether the contract be express or implied, direct or in secret trust, resort must be had to the local laws and local courts.

Hence the principal question, in this case, seems to be to determine the object and purpose of this bill — its legal bearing. Does the complainant seek to subject the defendant, Eleanor, to an account of her executorship, and to fix responsibility upon her as such, or does he only seek to have determined who is the owner of the Phillips county plantation, and who is entitled to the possession thereof, is the question ?

The appellant goes into a lengthy detail of James G-. Booker’s estate, and of the conduct of the appellee, Eleanor, as his executrix, and perhaps with unnecessary particularity, described the various funds that came into her possession, and the manner in which they were used and disposed of, but we find no allegation in the bill made against her as.executrix.

The allegations that she, without security, was allowed to. receive and control this large estate, to pay debts, educate the children, and hold the remainder in trust for a given time, and then distribute the same among the heirs of the deceased; that she had failed to make such distribution ; that she had received and kept large sums, and had sold large amounts of said trust property, and invested the proceeds in other property, etc., might, with propriety, be made to show that the property now held is a trust fund resulting in favor of the heirs, as well as such allegations might be used as a foundation upon which to seek an account of such administration.

And when we go one step further and consider the prayer of the complainant, we see no reason to doubt as to the object and intent of the bill — at least its legal purport and bearing. The appellant asks no general account for the purposes of a distribution of the estate; asks no decree fixing the extent of her liability, or allotting to him his share in the estate; and hence we must conclude he does not seek an account from her as an executrix, further, than to show that the Phillips county plantation was purchased with funds now properly belonging to the heirs of said estate, and that she holds in trust for their use. And his only relief, specifically prayed for, is that she be declared a trustee for them, and that his title be. confirmed and quieted to this Arkansas land according to the division heretofore made.

"We therefore hold that the demurrer was not well taken ; that the appellant may call upon the appellee to know if she, as a trustee, does not hold that land for the use of him and said Mary Clopton, and to answer such pertinent interrogations as show how she became seized of said-plantation.

The decree of the court below is reversed, and the cause remanded with- directions to proceed not inconsistent with this opinion.


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    BLOOM Sr. v. LEHMAN, NEWGASS & CO.
    Answer— When want of distinctness in statement of defenses in, will not prejudice. — Of the several defenses that may be relied on in an answer, under the Code, although the answer may be so unskillfully drawn as not to distinguish between them, yet, if it contains sufficient facts to show a defense under either, the defendant will not be prejudiced by reason of his not making the proper distinction between the kind of defenses.

      Counter-claim — Nature of. — The defense of counter-claim; under the code, is but the plea of recoupment under the old practice and, in general, is to be ■governed by the same doctrines, except where the defendant’s demand exceeds that of the plaintiff he may be entitled to a judgment for the excess.

      Same — When applies. — The defense of counter-claim only applies to breaches of stipulations, fraudulent or otherwise, growing out of the contract sued upon, and not upon entirely separate and distinct causes of action.

      Set-oee — Nature of, not extended or enlarged by the code. — The language of the Code of Practice, respecting set-off, is declaratory and does not extend or enlarge the nature of the demand that may be used as a set-off; it merely recognizes the law as it existed when the code was adopted.

      Damages — When cannot be pleaded as set-off. — In an action ex contractu the defendant cannot rely upon damages sounding in tort as a set-off for the plaintiff’s demand.
    APPEAL EROM JEEEERSON CIRCUIT COURT.
    Hon. Henry E. Morse, Circuit Judge.

      A. II. Garland, for Appellant.
   Bennett, J.

This action was brought against the appellant on a note for fourteen hundred dollars. The answer, by way of defense, alleges:

First. A partial payment to the amount of $>566 06.

Second. Says he is entitled to two thousand dollars as damages due him from appellees, by reason of the false and fraudulent suing out against him of a writ of attachment, whereby they seized upon and attached the property of the appellant and damaged him in his goods, wares and merchandize, and good name and credit as a merchant, in the sum of two thousand dollars, which sum he offers to set off and make a counter-claim, against any surplus due on said note, and prays a judgment in Ms favor for any balance found due.

The appellees filed a general demurrer to the plea of set-off or counter-claim. The court sustained the. demurrer; the plaintiffs admitting the plea of payment, judgment was rendered against the appellant for balance of note sued on. Erom the judgment on demurrer, the appellant has appealed to this court. .Was the demurrer properly sustained?

There are three kinds of defenses that may be relied on, in an answer, under the code :

First. Matter which, by the common law, was usually pleaded in bar of actions.

Second. Counter-claim.

Third. Set-off.

Although the answer may be so unskillfully drawn as not to distinguish between the three, yet, if it contains sufficient facts to show a defense under either, the court will not permit the defendant to be prejudiced by his not making the proper distinction, in his answer, between the kinds of defenses.

It is not claimed by the "appellant that the plea demurred to was a defense which could have been pleaded under the common law, but it is insisted, in the body of it, to be a Counter claim or set off; therefore, we are not called upon to decide what pleas would be proper under the head of general denial or general issue, but our attention is more directly .called to the requisites of a counter claim or set off under the Code. The Code defines a counter claim to be a cause of action in favor of the defendants, or some of them, against the plaintiffs or some of them, arising out of the contract or transactions set forth in the petition, as the foundation of the plaintiff’s claim, or connected with the subject of the action.” Section 117, Civil Code.

A counter claim, eo nomine, was unknown in the former system of pleading; but the subject matter of such a plea was, in , actions ex contractu, often available under a plea which might be styled recoupment. Ohitty, in his work on Pleadings, on page 563, says: “At common law, and independently of the statutes of set off, a defendant is, in general, entitled to retain, or claim by way of deduction, all just allowanees or demands accruing to him, or payments made by him in respect of the same transactions or account which forms the ground of action. But this cannot be termed a set off, in the strict legal sense of the word, because it is not in the nature of a cross demand or a mutual debt, but rather constitutes a deduction, rendering the sum to be recovered by the plaintiff so much less.”

The general principles governing a plea of recoupment have been well defined and laid down in the case of Desha vs. Robinson, 17 Ark., 245, wherein the court say: “When one brings an action for a breach of contract between him and the defendant, and the latter can show that some stipulation, in the same contract, was made by the plaintiff which he has violated, then the defendant may, if he chooses, instead of bringing a cross action, recoup his damages arising from the breach committed by the plaintiff, whether those damages be liquidated or not. The idea being that all'cross actions or claims arising out of the same contract, shall compensate each other, and the balance only be recoverable by the plaintiff.”

The defense termed counter claim, under the Code, as defined, is but the plea of recoupment under the old practice, and, in general, is to be governed by the same doctrines, except, under the provisions of Sections 418 and 419, Civil Code, if the defendant’s demand exceeds that of the plaintiff, he may be entitled to a judgment for the excess. This defense only applies, however, to breaches of stipulations, fraudulent or otherwise, growing out of the contract sued upon, and not upon entirely separate and distinct transactions. The plea before us is defective as a counter claim, inasmuch as the matters alleged are separate and distinct from the cause of action.

Hut it may be contended that it is a valid set off and made so by the Code. The Code defines a counter’ claim with precision, but it gives no definition of a set off. It, however, restricts the use of a set off to such actions as are founded on contract and to such demands as arise on contracts, or have been ascertained by a decision of a court. See Section 119. The demands which could be relied upon as a set off, at the time the Code was adopted, were designated by law,, and what demands constituted a valid set off was a matter well understood. See Gould’s Digest, 1019. It was not necessary to give any explanation in the Code, at. the time of its adoption, of the meaning of a set off, explanatory of its nature or qxtent. If a radical change, on the subject of set off, was intended by the adoption of the Code, the reasonable .presumption is, that such an intention would have been clearly • indicated. Such being the case, we are not at sea upon the question as to what is a good set off to an action. The language of the Code of Practice,'declaring that a set off must be a cause of action arising on a contract,' does not extend or enlarge the nature of the demand which may be used as a set off; it merely recognized the law as it existed when the' Code was adopted. In any event, neither before nor since the adoption of the Code, can a defendant, in defense to an action founded on contract, rely upon a trespass to his person or property, or injury to his character as a set off for plaintiff’s demand. It must be some cause of action for which, under the former system, an action of assumpsit, debt or covenant might have been maintained.

The plea before us endeavors to set up a damage, as defense, which might accrue to him by reason of the wrongfully suing out of a writ of attachment, whereby he says he was injured in property, moneys and good name to the amount of two thousand dollars. This he very evidently cannot do, as the damages, if any, are due by reason of tort, trespass or wrong doing of the plaintiff, and are not arising from matter of contract, nor have they been before determined by a court, or in any manner liquidated or ascertained. Therefore, the court did not err in sustaining the demurrer.

Judgment affirmed.