author: Bennett, J.

text:
    PATTERSON v. TEMPLE.

      Legislature — When cannot create separate county courts. — While the legislature may create judicial districts, and define the power and jurisdiction of the courts therein created, yet, it has no power to create, for a single specified county, two separate and distinct county courts, clothed with all the powers and duties appertaining to such tribunals, when the justices of the peace are selected from townships, whose area consists of less than six hundred square miles.
    Constitutional Law — Act, approved, March 28, 1871, unconstitutional. — The Act, approved March 28, 1871, to “establish separate courts in the county of Sebastian,” is in derogation of Section 12, Article XV, and Section 2, Article X, of the Constitution of the State of Arkansas, and is null and void.
    Construction or Statutes — Act, approved. March 16, 1869, construed. — The Act, approved March 16, 1869, amendatory of an Act approved July 21, 1868, entitled “am Act to repeal Chapter 44, Gould’s Digest," is not to be construed as an attempt, on the part of the legislature, to place a judicial construction on the Act of 1868, but the intention was, only, to allow a county seat to be removed by the expressed will of the electors.
    County Court — •Cannot set aside its judgment after lapse of term. — A county court loses power over its judgments, on the lapse of the term at which they were rendered, and cannot set them aside at a subsequent term.
    Prosecuting Attorney — Caiinot bring suit in behalf of the people. — There is no law authorizing a prosecuting attorney to bring suit “in behalf of the people of the State of Arkansas,” and a suit so brought should bo dismissed for the Want of proper parties.
    APPEAL EROM SEBASTIAN CIRCUIT COURT.
    IIon. E. D. Ham, Circuit Judge.

      Gallagher, Newton Hempstead, for Appellant.
    For more than four years previous to the year 1860, Greenwood wa's the county seat of Sebastian county, as it was for many years afterwards.
    By Section 20, Chapter 44, page 297, Gould’s Digest, county sites, established over four years, cannot be removed but upon paying inhabitants for their lots, etc. This is still in force by Article VI, Section 15, Constitution of Arkansas.
    In 1860, two Circuit Courts were established in Sebastian county, one to hold at Greenwood — county site — the other at Fort Smith. Acts of 1860, page 432.
    By Act of 1868, page 135, provision was made by the legislature for removal of county site. The proposition had to-be submitted to the voters, and had to receive a majority of votes of qualified electors of the county. An effort was made to remove county seat from Greenwood to Fort Smithy it failed, so county court' adjudged. Contestants appealed.
    By Act of the Legislature of Arkansas, 1868 and 1869, page VI, the Act of 1868 was amended so as to admit county site removed, by vote of majority of qualified electors voting, and made 'to apply tp elections held under said act of 1868. "We say the legislature had no authority — but three members of the county court removed county seat to Fort Smith. This action was void, no notice was given, the term passed. See Rose’s Digest, page 145; Code, Sections 5V0, 5V1 and 572.
    ”~On the 28th of March, 1871, the Legislature, by an Act, divided Sébastian county into districts, etc. It is considered, by appellee, that this act was void, if so, no court can be holden at Fort Smith. The county seat is still at Greenwood, and everything, judicial, rendered by any pretended court,at Fort Smith, is coram non.

      Du Val & Cravens, for Appellee.
    Bid the court below err in sustaining the demurrer of appellee to the petition for mandamus ? If the act of the General Assembly, approved March 28, 1871, to amend “ an act to establish separate courts in the county of Sebastian,’’ is constitutional, then there can be no question that it erred, but if unconstitutional, then there was no error. We submit that-the law was unconstitutional.
    The act in question purports to provide for two separate and distinct judicial districts, within the limits of Sebastian county, but in fact creates two separate and distinct counties within the circuit of one, which, by the pleading's, is admitted to have had less than the constitutional number of square miles, (see transcript, page, -¡-,) at the time of the adoption of the present Constitution of Arkansas. See Section 12, ¡Article 15 ; 1 Blk. Comm., 113; Art. 10, Sec. 2, Const., 1868 ; Fletcher •vs. Oliver, sheriff, etc.., 25 Ark., 295.
   Bennett, J.

On the 17th day of April, 1871, Newton J. 'Temple, Prosecuting Attorney for the third judicial district, filed, in the Circuit Court of Sebastian county, .an application for a mandamus to compel "William Patterson, as Clerk of the various courts of said county* to omit removing any of the books, records, papers, etc., to Greenwood, in said county, as he was required to do, under the act of the General Assembly, approved March 28, 1871, alleging said act is void, because its various provisions are in violation of the Constitution of the United States.

Said application, also, alleging that Eort Smith is the only county site of Sebastian county, and the only legal place to hold courts.

Defendant filed an answer with a demurrer clause. . The answer sets up the act of the General Assembly; denies the jurisdiction of the court, and denies that Fort Smith ever was the county seat of Sebastian county; sets forth the facts in relation to said county seat history, and filed copies, duly authenticated, of the orders and judgments of the County Court in relation to the same.

The plaintiff filed a demurrer to the answer of the defendant.

Upon the hearing, the court overruled the demurrer to the application, and sustained the demurrer to the answer,, and granted mandamus as prayed for.

Defendant appealed.

The principal question in the case is, whether the act of the General Assembly, entitled an “act to amend an act entitled an act to establish separate courts in the county of Sebastian,” is unconstitutional and void.

The act, above entitled, provides for two separate and.distinct judicial districts within the limits of Sebastian county p provides for the holding of two separate and distinct Circuit Courts, one to be styled “ the Circuit Court of the county of Sebastian, for the.Fort Smith district,” the other to be styled, “the Circuit Court of the county of Sebastian, fo^tlio Greenwood district;” and provides that judgments rendered in each shall only be liens upon the real estate in the district where such judgments and decrees are rendered.

It also provides for separate Probate Courts, and the-organization of two County Courts ; that papers and records of the estates of deceased persons, within the territorial limits-of each district, shall be kept, either at Greenwood or Fort Smith. The fact, as to which place such record shall be kept,, to be determined by the former residence of such deceased person ; provides for the separate assessment of property, the-separate levying and collection of taxes; provides for a division of the indebtedness of the county in proportion to the taxable property of each.district; provides for separate and distinct records of all matters pertaining to the public welfare,, in each district; also, provides that a change of venue may be taken from one district to the other in the same manner as-though these districts were separate and distinct constitutional counties of the State.

It is claimed, upon the part of the appellee, that the act 'of the General Assembly has effectually and completely abrogated the corporate existence of the county of Sebastian, and has, in fact, created two counties, each of which is less in territorial area than six hundred square miles, and is therefore in derogation of Sec. 1, Art. 15,' of the Constitution, which says: “ No county now established by law shall ever be reduced by the establishment of any new county or counties to less than six hundred square miles ; nor shall any new county be hereafter established which shall contain less than six hundred square miles.”

In the consideration of the case, now before us, we are to-set out with the presumption that every State statute, the objects and provisions of which, are among the acknowledged powers of legislation, is valid and constitutional, and that presumption is not to be overcome unless the contrary is clearly demonstrated. Fletcher vs. Peck, 6 Cranch, 87; Ex parte McCollum, 1 Cowen, 564; Morris vs. The People, 3 Denio, 381.

According to our republican theory, the whole power of government resides primarily in the people of the State. This power is usually denominated legislative, judicial and executive or administrative ; the power to make laws, to interpret, them and judge of their application, and to execute or administer them when thus made and interpreted.

The people, .by their organic or fundamental law, have transferred these powers and distributed them into three departments. By this organism of government, each department has annexed to it, in the exercise of its functions, certain restraints and limitations, a violation of which renders their acts, to the extent of the violation, inoperative and void. When the legislative power is exercised, (and it has its several duties marked out and prescribed by the law to which they owe their origin,) it is not only essential that the will of the law-makers be expressed in due form of law, but that they should have expressed their determination in the mode and within the prescribed limits, as pointed out by the instrument which invests them with that power.

With the foregoing considei’ation in view, we will proceed to the examination of the objections urged against the law in question, which aré founded upon its 'supposed incompatibility with the Constitution, the first of which is stated as above.

Blackstone defines a. county to be a civil division of a State or kingdom for political and judicial purposes, formerly governed in England by an earl or count, from whom it derived its name. 1 Blk. Com., 113, 116.

Kent says: “A county is a public corporation, created by the government for political purposes, and invested with subordinate legislative powers, to be exercised for local purposes connected with tbe public good, and -such powers are in general subject to tbe control of tbe Legislature of the State.” 2 Kent Com., 275.

The county court was sometimes, anciently, termed the county. United States Digest — County.

' The territory of a State, for its more .convenient jurisdiction and government, has been divided into counties, towns, and villages, to each of which has been delegated portions of. the political and civil power of the State. They have been organized into separate and distinct communities or bodies politic, and are clothed with extensive authority, legislative, executive and judicial, for the purposes of local government. The amount of political authority so delegated, its distribution and arrangement fin the different communities, vary. The powers and privileges conferred upon counties are more limited and simple in their operation than upon towns. But though the amount and distribution differs, the nature of the power conferred on each, and the object of granting them, are the same. They belong exclusively to the class that relate to the general concerns of the people, in. their public, civil and political interests, in a word, to the good government of the place. It is only necessary to look into the internal organization, of the counties, villages and cities, as defined and regulated by law, to confirm the general correctness of these observations. It will then be seen that in order to simplify and facilitate the administration and execution of these various powers, counties, as well as towns and cities, have been constituted bodies corporate, and expréssly invested with all the essential attributes of the same. Gould’s Digest, 287. The portion of sovereign authority, thus specially conferred upon these several, civil divisions of the State, is granted by the Legislature, by general statutes, and is applicable to and is common to all countries. But, in each, a large mass of power has been left to the exercise of the discretion and judgment of the several heads of-these bodies politic. Thus, in cities, large discretionary power is vested in the mayor, aldermen and council; in towns, usually to trustees; in counties, in the county court. The county court represents the civil and political power of the county, its rights and obligations. It is through this medium that the county, in its municipal character, as a corporation, may be acted upon, for there is no other court’ or officer known in its organization that can or should represent it.

' While the people, in their sovereign capacity, have not proscribed the area of a town or city, they have deemed it of sufficient importance to say that there should be no portion of the territory of the State created into a county, unless it contained at least six hundred square miles.

Under the general statute providing for the more efficient organization of counties, and denning who should be the representative of this political sub-division, it will be seen that a body consisting of the justices of the- peace of the various townships within -their territorial limits, of two of them, selected for that purpose, at an election in which all justices of the county may participate, and presided over by the judge of the county, shall be the head, of the county.

Then, if a county is a public corporation, which the people, in their organic act, have said shall not consist of less than six hundred square miles, and within whose boundaries the people are invested with the powers of certain local matters, pertaining alike to all the persons within those defined limits, and to whose judgment and discretion the vital powers and.interests of all the people, as their agent, the county court, are entrusted, can the General Assembly create, for a single specified county, two separate and distinct county courts, clothed with all the powers and duties appertaining to such-tribunals, when the justices of the peace are selected from townships whose area is admitted to consist of less than six hundred square miles, as is the case now at bar? We think. not.

The enactment, under consideration, attempts to divide ¡Sebastian county into two judicial districts, creates two Circuit, two Chancery, two Probate and two County Courts, and provides that each “shall be as independent of, and distinct from each other, and shall hold the same relation to each other as if they were courts of different constitutional counties of this State, and shall be deemed, for all purposes of this act, separate and distinct counties, with original and exclusive jurisdiction within their respective territorial limits.

Thus it will be seen that the Legislature is providing for all the attributes of .a county, and creating all the essential features of. these public! corporations as effectually as though each sub-division was called Fort Smith and Greenwood counties. The individuality, so to speak, of Sebastian county, is entirely destroyed and obliterated, and is only recognized in the fact that the official existence of the sheriff, clerk, treasurer and county judge is allowed to remain as monuments to mark the spot where now lies the defunct body of Sebastian county.

And these are the only officers which the Legislature has said may perform the duties of their respective offices, the duties and powers of which are determined by the territorial limits of each of these two districts, as much as though they were two separate and distinct constitutional counties. The county judge must preside over the County Court of Greenwood district, consisted of only justices selected within the townships of that district, and at a' different time and place from that of the Fort Smith district. The same in the Fort Smith district. ^

The sheriff is prescribed in his duties the same as though there were two counties. The clerk must keep two offices, one in each district, and all matters of public record pertaining to either must be kept separate and distinct. So with the treasurer ; although nominally treasurer of Sebastian county, he is required to keep two offices, and all financial affairs of either must be kept apart. "What more could have been required had the General Assembly provided for the election of these officers in each district ? While, in name, they may be officers of Sebastian county, they are, in fact, only sheriffs, clerks, treasurers, and judges of these two districts.

But, it may be said, the General Assembly can create judicial districts and define the powers andjurisdiction ofthe courts therein created. While we may accede to that proposition, taken in its general sense, we emphatically deny that it can do so for Sebastian county, as a county, and thereby destroy all its corporate existence in that indirect way, and virtually make two counties under the name of districts. That this was the evident intention of the legislature, there can be no doubt, as the act, in several instances, expressly states that these several subdivisions shall be considered as independent of each other, as “constitutional counties,” thereby endeavoring to destroy the separate existence of Sebastian county, and deprive it of the power to act in its capacity as one of the counties of the State of Arkansas.

Again, See. 2, Article A, of the Constitution of the State of Arkansas, says: “Laws shall be passed taxing by a uniform rule all money credit, investments in bonds, joint stock companies or otherwise ; aird also all real or personal property, according to its true value in money. ***** Real estate shall be appraised at least once every five years.” * * *

This court, in the case of Fletcher v. Oliver, 25. Ark., 295, has said that “ taxing by an uniform rule means by one and the same unvarying standard; uniformity not only in the rate of taxation, but uniformity in the mode of assessment, by-which the value is ascertained. There must be an equality of burden. This uniformity must be co-extensive with the territory to which it applies. If a State tax, it must be uniform. all over the State, if a county * * * * it must be uniform throughout the extent of territory to which it applies ; the property within these legal subdivisions, established by law for the convenience of the people, must all pay hopaage to the one uniform rule.”

The Comity Courts, of the respective counties, are the financial controllers of their respective counties. They are the-only mediums through which a county tax can be levied or assessed on the property of the county. There cannot be two-tax assessing or levying powers, within the limits of any one county, for county purposes. Yet this act declares “that the County Court of each district shall have the same and like-duties and powers in every particular, in relation to the assessment, levying, adjustment, and correction of the tax list,, and in all matters and things in relation to levying, assessing, and collecting the moneys of said districts, as is conferred upon other constitutional counties'.” And further provides, that these districts shall only pay the county expenses arising within the limits of these respective districts, and all claims against each shall be audited, allowed and disposed of by the County Court of each district; even the maintenance and support of paupers, and the establishment and supervision of public ■ highways, are made to depend upon the action of each of these separate County Courts, each of which is to act in like manner and form as required by law for other counties.

That these two tribunals, composed of separate individuals, and dividing the indebtedness of the county into two parts, in proportion to the property of each, each making separate items of indebtedness in their respective capacities, can audit, allow, and dispose of them, by one “uniform rule of’taxation,” would be to suppose an impossibility. The general tenor of the Constitution of the State, is in favor of general legislation, and to discontinue special enactments. In fact, in many instances, special legislation is expressly forbidden. And while constitutional restrictions are imperative, where expressly stated, we think the intention of the people may be looked to, in at least so important a matter as the one unde.r consideration, and can say that, the unity of a county cannot be so severed as to make two out of one, each being, in all respects, equal with the other, and they,- in common, alike to all other counties of the State, without violating constitutional restraints. In fact, the constitutionality of this act is admitted by counsel for appellant and appellee, but that fact would not warrant us in deciding it so. This duty is one from which any judge, conscious of the fallibility of human judgment, will shrink, when he can conscientiously and with due regard to his official oath, decline the responsibility. But being required to declare what the law is, in the cases which come before them, they must enforce the Constitution as the paramount law. Still, it may be said that parts of this enactment may be void, because repugnant to the Constitution, and the balance may be good law* Cooley,' in his work on constitutional limitations, 177. says: “Whether the other parts of the statute must be adjudged void because of the association, must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder.”

Now the objects of this law were to create two separate and distinct districts in Sebastian county, with all the powers and immunities of any constitutional county of the State, the area of each being less than six hundred square miles: which object, if carried out, would destroy the identity of Sebastian county. This, we say, cannot be done. Upon an examination of the whole act, each section is interwoven with the other in such a manner that no court could separate them without destroying the whole fabric and, with the fall of'one, the whole enactment must be declared void.

Another question is then presented in the case, which we deem of vital importance to the people of Sebastian county. Where is the county seat of that county ?

Eor many years piior to the 21st day of January, 1861, (more than six years,) the county of Sebastian was established in the State, and its county seat was located at Greenwood, which remained the county seat of said county, without any doubt or dissent, up to the month of April, 1870.

Erom the time of the location of the county seat of Sebastian county, at Greenwood, up to the 21st day of January, 1861, all the courts, circuit, chancery, comity and prohate, were there holden at the times and as required by law.

On. the 21st day of January, 1861, the legislature of the State, by an act thereof, approved on that day, divided the .county of Sebastian into two judicial districts, called .respectively Greenwood and Fort Smith districts. See Acts of the Legislature of the State, 1860-1, entitled, “An Act to establish separate courts in'tlie county of Sebastian.” Probate Courts of Sebastian county were to be holden at the times then prescribed by law. (3d Mondays January, April, July, October. Gould’s Digest, 311, Sec. 11.) Pro'bate Courts in the Fort Smith district, on the first Mondays of those months. (Sec. 9.) But County Court was holden at Greenwood, inasmuch as the same was retained as the county seat. And in fine, as to all matters not within the provisions of said act, the county of Sebastian retained its organization as an entire county. Sec. 2 of this act, in speaking of the place where the circuit, chancery and probate courts shall be held, says, that.these courts, “in and for the Greenwood district, shall continue to be held at the county seat at Greenwood.” Hp to the passage of the act of the Arkansas legislature, approved the 21 st of January, 1861, there was but one place of holding any of the courts of said county, and that was at Greenwood, the county seat.

By an Act of the General Assembly, entitled “an Act to repeal Chapter 44, of Gould’s Digest,” it was, among other things, enacted that whenever one third of the qualified elec- ' tors ot any county should petition the County Court for the removal of the seat of such county to any other designated place, the court should order an election, etc., etc.; and if it should appear by such .election that a majority, of the qualified electors, of said county, are in favor of the removal of said county seat, then that court should appoint commissioners * * * * and that whenever such election should be so held, if successful, the county seat could not be again removed for the space of ten years, and in case the proposition did not receive such majority, then no other proposition for such removal should be submitted for the space of five years thereafter. See Acts of the Legislature of Arkansas, session of 1868, 185, approved, July 21, 1868.

Under the provisions of this Act, at the October term, 1868, (to wit: on the 12th day of November, 1868) a peti-. tion of many citizens was presented to the county court of Sebastian county,'at Greenwood, the county seat, praying for an election to be ordered to remove the county seat of said county from Greenwood to Fort Smith, and the court being satisfied that said petition was signed by more than one-third of the qualified‘electors, ordered an election, under the above mentioned Act, last aforesaid, to take place on the 26th day of December, 1868.

Said election was accordingly held, and the same reported to said County Court, at its January term, 1869, and on the 12th day of January, the court found that the proposition, to remove the county seat of Sebastian county, did not receive the support and votes of a majority of the qualified electors of said county, and it was therefore lost; seven of the members of said court so deciding, and three voting contrary.

On the 12th day of April, 1869, upon a petition to have the County Court appoint three commissioners to selecta site, in the city of Fort Smith, whereupon to locate county buildings, the court refused to appoint such commissioners,'because a majority of the qualified electors of the county had not voted for the removal of the county seat.

By an Act of the Legislature of the State, entitled “an Act to amend an Act to repeal Chapter 44* of Gould’s Digest, and for other purposes,” approved March 16, 1869, it .was among other things provided, that whenever one-third of the qualified electors of a county should petition for an election to remove the county seat, it shoul’d be ordered by the County Court; notice given and election held, and “if it shall appear by such election that a majority of the qualified voters, voting at such election in said county, are in favor of the removal of the county seat of such county, then the County Court should appoint commissioners etc.;” and it was further enacted “that •any election which may have been held, under the provisions «of an act of which this act is amendatory, shall be deemed, to have been held according to the provisions of this act, and shall be as valid as if this act had been in force at the time of howling this election.” Acts of'session of 1868 and 1869, 75.

On the 10th day of January, 1870, James E. Bennett, William Patterson and David A. McKibben presented a motion to the County Court of Sebastian county, which, by the court was sustained, and the court, in pursuance thereof, then and there declared the orders and judgments made and rendered, on the 12th day of January and 13th day of February, 1869, null and void, and then and there declared that under and by virtue of said election, had and held on the 26th December, 1868, the county seat was removed from Greenwood to Fort Smith, and proceeded to appoint commissioners fo select suitable buildings, which were accepted, and the records*and papers, etc., were removed to Fort Smith.

There can be no doubt the county seat of Sebastian county was at Greenwood up to the time of the enactment of 1860, which created the county into two districts; nór does that law attempt to say that Greenwood is not the county seat, but only provides that certain courts may be held at Fort Smith. Section two, on the contrary, says Greenwood is •the county seat. Therefore, up to the time the proposition was submitted to the people by the County Court, under the Act of 1868, that question must be considered settled. But, by the facts as above stated, it will be seen that the County Court twice declared, in a solemn adjudication of the question properly brought before them, that the proposition of the removal was not carried by the people.

After nearly a year had elapsed, and both terms, at which these final orders were entered up, had finally adjourned, the County Court, composed of different justices of the peace from the previous County Court, attempt, in this summary manner, to set aside tlieir final orders, without notice, and say they shall be held for naught.

This court has repeatedly held that courts have no control over judgments and final orders, after the'adjournment of the term at which such final order or judgment was rendered. Smith vs. Dudley, 2 Ark., 66; Walker vs. Jefferson, 5 Ark., 23, Ashley vs. Hyde, 6 Ark., 92. All proceedings had in ¿he-cause, subsequent to final judgment, after the close of the-term, must be considered a coram. non judice. Mayor & Aldermen of Little Rock vs. Bullock, 6 Ark., 282.

A County. Court loses power over its judgments on the lapse-of the term at which they are rendered, and cannot set them aside at a subsequent term. Reiff et al vs. Conner, 10 Arkansas, 241.

If the rule, as laid down in the above cited cases, has been changed by the Code in Section 571, page 176, then a judgment or final order can only be set aside on notice, upon complaint filed, etc., as provided in Section 573, which was not done in the case before us. Again, if the action of *the last-County Court was based on so much of the Act of March 16, 1869, as made the provisions of that law apply to elections-held under the law to which that was amendatory, it certainly cannot be upheld. That provision of the law, if good, must work a great hardship upon the voters of Sebastian county. It, in fact, is but downright fraud upon them. An election is held in pursuance of legislative authority, upon a proposition that requires a majority of all the electors-in the county to carry it.

All persons are presumed to know the law under which they are required to act. At the election now under 'consideration, it was not required that a single vote be cast against the removal of the county seat at Greenwood, but there must have 'been a majority of all the qualified voters of the county who voted in favor of the removal. Those who were opposed to the removal could have stayed at home, or if' voting, could have voted against, and either would have the-same effect. Not so tinder the amendatory law. Under that one, a majority of the votes cast were' sufficient to carry the election. The elector who did not vote was one vote lost upon the proposition. Whatever may have been the intention of the Legislature in this respect, we can indulge in no presumption which would recognize the attempt of the Legislature to place a judicial construction on the Act of 1868. The intention, no 'doubt, of the Legislature, was .to allow a county seat removed by the will of the electors. To ’construe Section 17, of the Act of March 16, 1869, so as to cause a removal, without the expressed will of the people, would place it in antagonism to the body of the Act, and it would be nugatory.

We are also of the opinion that all the proceedings of the County Court of Sebastian county, on the 10th day-of January, 1870, in so far as it attempts to set aside the judgments or final orders of the previous County Courts, in relation to the county seat elections, and the assumption of. jurisdiction of the matter, and making different orders, must be considered as null and void.

Thus, it must be seen that neither by the act of 1868, nor the subsequent act of 1869, amendatory thereto, was the action of the County Court of Sebastian county, in attempting to remove the county site from Greenwood to Fort Smith, of any validity whatever. Greenwood remains the county seat to-day.

Another question arises upon the face of the record, which we deem of sufficient importance to notice; in fact the solution of this question would have saved us the many pages of this opinion, hut, tfie question in the case being one of great public interest'to all the people of Sebastian county, we would have been guilty of dereliction of duty, if we had avoided' an adjudication of it upon a technical question of practice as to who were the proper parties to have brought this suit.

The petition is styled Newton J. Temple, Esq., prosecuting attorney for the State in behalf of the people, etc., vs William Patterson, as clerk of Sebastian county.

The petition then sets oat and says: “Newton J. Temple, prosecuting attorney for the State of Arkansas for the fifth judicial circuit, in behalf of the people of the State of Arkansas, states, etc.”

We know of no law that authorizes Newton J. Temple, as prosecuting attorney, to bring any suit “in behalf of the people of the State of Arkansas.”

The State is not an infant, nor is it insane, so as to need a guardian to represent it in any of its courts. It can appear by itself as the “State of Arkansas,” and sue and be sued, restrain and enforce, by its own name, any judgment for or against itself.

Therefore, the petition should have been’ dismissed for the want of proper parties in the court below. Eor this error, the judgment of the Circuit Court of Sebastian county is reversed and cause remanded, with instructions to dismiss, the petition at the cost of the petitioner.


source: Caselaw Access Project

author: McClure, C. J.

license: Public Domain

text:
    NORWOOD AND WIFE v. HOLLIMAN, Adm’r.
    APPEAL E110M OUACIIITA CIRCUIT COURT.
    Hon. Georse W. McCown, Circuit Judge.

      English & English, Leake and Garland for Appellants.

      U. M. Pose, for Appellee.
   McClure, C. J.

-This cause comes here on a question of law, and the same question having been decided in the case of Norwood and wife v. Holliman, ad. ante, the judgment of the Ouachita Circuit Court is affirmed.


author: Harrison, J.

text:
    BUCKNER v. SESSIONS et al.
    Foreclosure oe mortgage — Where estate assigned, what averments, ate.. — In a bill to foreclose a mortgage, where the estate has been assigned, the mere allegation that the defendant is the assignee of the mortgage, is not sufficient; the mortgagor should be made a party, and the assignment should be as fully and distinctly stated as any other averment in the bill.

      Same — Who necessary party. — In a suit for foreclosure of mortgage upon real estate, the .occupier of the premises must be made a party, and the omission to do so, without showing some adequate reason therefor, is not only a good ground of demurrer, but a valid objection at the hearing.

      Same — Party wishing to redeem, etc. — A party holding an outstanding title to mortgaged premises cannot affect the complainant’s right to a foreclosure and sale by being made a party defendant and offering to redeem. If he wishes to redeem, he should file a cross bill for that purpose.

      Practice — Where merits in hill, hut want of proper averments. — Where it clearly appears that there are merits and equity in a bill, the bill, for want of proper averments, should not be absolutely dismissed, but the court should direct the proper averments to be made, or dismiss the bill without prejudice to the complainant to file another bill.
    APPEAL PROM CHICOT CIRCUIT COURT.
    IIon. Henry B. Morse, Circuit Judge.

      Garland § Nash, for Appellant.

      We submit:

      First, There are no answers or denials from Sessions as to the debt due B. & Co., and this default admits it as alleged, and a decree pro covfesso on that, binds them and all their privies : Cunningham v. Steele, 1 Litt, 58; 2 J. J. Marsh, 136; 6 Mon., 192; 8 Porter, Ala., TP)-, 4 Hen Munf, 476; Stoi-y Fcq. Pis., (by Redfield) 789-94 and notes. The pretended liens of the appellees, Carlton & Hartsook, are subsequent to the Buckner claim, and they are in the wrong element in coming into this- cause: Whitaker ex., v. Griffin’s admr. and heirs.

      Second, On the part of the appellant the exhibiting of the notes and the mortgage made his case, and the issue of payment made, by Carlton & Hartsook, put the burden upon them as they averred it: 6 Paige, 583 ; 3 Dana, 439.

      The rules of evidence in equity are the same as they áre in law: 17 Mass., 303; 2 Bibb., 5 ; Qresley Bq. Bo., 1 et seq. ■

      Third, If these appellees really had equities, and had any just suspicion that Buckner had not rendered a fair accounting, and. was claiming unjustly what he was not entitled to, they should have so answered, and made their answers a cross bill, and asked to have these accounts properly stated, and B. come to a fair and full settlement of all matters as between the creditors of S. for themselves and all others, and ■not merely deny B.’s rights, and stand on their sales and purchases, and demur to B.’s showing. The court of equity in this inquiry would have taken the account, and marshalled these debts and paid them off in their regular order: 1 Story Bq. Jurisp., 64-7, and cases cited in brief in the Richard Sessions (“Luna”) case by us. The court would have seen that all necessary parties, with their claims and securities were before it: Story Bq. Pis., 135, et seq. The court would shape and mold its process, and if needed, make a new writ to do justice between all parties: Story Bq. Pis., 389-402. It would, having jurisdiction, see that justice was done at once, and without delay, without accumulation of costs, and without multiplicity of suits: Authorities Sup.; 12 Peters, 655-75.

      Bell ‡ Carlton, for Appellee.
    "We submit that, from the facts in the case, it is clear that Buckner, after the dissolution of the firm, had no right to make debts with the defendant, D. II. Sessions, and debit the firm of Buckner, Newman & Co. with them; for it is a principié of law that no one can be made a creditor of another, without their consent. See Bertrand vs. Byrd, 5 Ark., 651.
    Eurtherihore, there was no such firm in existence, according to the proof, as Buckner, Newman & Co,, when the items of the account in Exhibits C and A, making the sum of four thousand two hundred and fifty-eight dollars and fifteen cents, that was transferred to Buckner & Co., were formed. Beyond all question, if those advances were made to D. H. Sessions, they were made by Henry S. Buckner on his own responsibility, and the firm of Buckner, Newman & Co. had nothing to do with them. As to the decree, “pro confesso, ” against D. H. Sessions, it is true that decree is conclusive, if this case was between Buckner and Sessions, but upon this submission, as against Carlton and Hartsook, the decree, pro confesso, is entitled to no weight. It is true, as to final decrees, all parties to it are concluded by the facts contained in it. That in decrees “pro confesso” the parties are not so concluded, but.only in final decrees. See Trammell vs. Thurmond, 17. Ark., and Hannah vs. Carrington, 18. Ark., 85.
   Harrison, J.

This was a bill filed in the Chicot Circuit Court, to the October term, 1868, by Henry S. Buckner against William B. Street, by the description of assignee of Daniel IT. Sessions, Placid Forestall, as administrator of Henry A. Rathbone, deceased, John S. Whitaker, Daniel J. Hartsook, and John R. Fowler, to foreclose a mortgage. The bill alleged, in substance, that Daniel H. Sessions was, on the 21st day of February, 1866, indebted to Buckner, Newman & Co., cotton factors and commission merchants in New Orleans, of which firm the complainant was a member, by two promissory raptes of that date, for $17,448 50, and $5,482 05, respectively, each to become due in ten months after date, and bear eight per cent, interest after maturity, payable to his own order and assigned to them by his blank endorsement; to secure the payment of which, he executed to them a mortgage on two plantations in Chicot county, known as the Brinkly and Linwood plantations, of like date with the notes, which mortgage was, thereafter, duly recorded in said county, on the 16th of June following; that the firm of Buckner, Newman & Co. was, on the 31st day of August,' 1866, dissolved, and upon a settlement between the members of the partnership matters, certain assets were set apart and transferred to the other members, in full satisfaction and discharge of their interests, and the remainder, including the notes and mortgage in question, were transferred and assigned to the complainant, and he was then the sole owner of the notes and mortgage. That it was also agreed between them, that he should assume the payment of the debts and liabilities of the firm, and the liquidation and settlement of its business; that only a part of the money, called for by the notes, had been paid, and that there remained due on them, on the 20th day of June, 1868, the sum of $10,081 60, and nothing had since been paid. The bill then charged that the said Hartsook claimed title to the plantations by a pretended sheriffs deed, which deed, if he had one, it averred, was subsequent to the mortgage; that the said Whitaker, also, set up some sort of claim to them, the real nature of which was unknown to the complainant, but which, if in fact he had any valid title or claim, was, like the other, acquired subsequent to the execution of the mortgage; that said Forestall, as administrator of said Rathbone, claimed a vendor’s lieu upon the Brinkley plantation, for what amount, or when or how created, was not stated; and that said Fowler was in the occupancy and possession of the Linwood plantation. Whitaker disclaimed any' title or interest; Street, Forestall, and Fowler made no defense; Hartsook answered the bill. lie claimed to be the owner of the plantations, by a purchase at a sheriff’s sale, under an execution upon a judgment against Sessions, and a deed for the same from the sheriff; but whether the purchase or judgment was before or after the execution of the mortgage, was not stated. The notes and mortgage, he insisted, were given to Buckner, Newman & Co. merely as security for advances they had agreed to furnish Sessions in the year 1866, and that he had paid them for all that he obtained, and nothing was due upon the notes. Charles TI. Carlton, claiming an interest in the suit, was, on his application, made a defendant, and answered the bill, and claimed also to be a purchaser at a sheriff’s sale, made, as he alleged, under an execution upon a judgment recovered against Sessions, in the Circuit Court of Chicot county, on the 5th day of December, 1867, and to have a deed for the property from the sheriff. He admitted the making of the notes and mortgage by Sessions, but asserted they had, been paid, and offered, if anything was due, to pay the same and redeem the mortgage. Replications were filed to the answers, and the cause was heard at the April term, 1870. The court dismissed the bill for want of equity, and the complainant appealed.

We will state the substance of the evidence, Henry S. Buckner, complainant, deposed: That Sessions, being indebted to the house of Buckner, Newman & Co., at the date of the notes and mortgage, by an account of long standing, in the sum of $17,445 50, closed the sáme by the notes, mentioned in the bill,- for that amount; the smaller note, or the one for $5,482 05, was given to bo discounted to obtain advances and supplies for the year 1866, and the mortgage was given to secure their payment. The proceeds of the note was $5,125, which was placed to his credit and Sessions was paid the same in advances and supplies, as he applied for them. The firm of Buckner, Newman & Co. was dissolved in August, 1866, and at the time of the dissolution, Sessions had overdrawn the money to his credit, several hundred dollars. The deponent was charged with the liquidation and settlement of the business and Sessions continuing to draw on the house, he paid his drafts and charged them to the same account. In September of the same year, the deponent, with certain other persons,' established the house 'of Buckner & Co., with which Sessions also had dealings that year, and at the end of the year, he owed that house $5,229 17, and Buckner, Newman & Co., or the deponent, $4,258 15. The latter account was then transferred to his account with Buckner & Co., but because of some dissatisfaction on the part of one of the parties, it was afterwards transferred back, and the account with that house was also transferred to the books of Buckner, Newman & Co., and Sessions’ account with Buckner & Co. was cleared. In the early part of 1867, Buckner & Co., by directions from Sessions, paid deponent the proceeds of' certain assignments of cotton, amounting to $23,982 56, which satisfied his account, and the balance stood as a payment upon the notes. The witness exhibited, as a part of his deposition, a detailed statement of Sessions’ account, embracing the transactions with Buckner,. Newman & Co., 'those with himself, after their dissolution, and also those with Buckner & Co., showing the facts stated, and that, allowing interest on both, the debits and credits, there was due on the notes, on the 20th day of June, 1868, the sum of $10,031 60, no part of which, he said, had since been paid. Daniel IT. Sessions deposed, that when, he gave the mortgage, he and. Buckner, Newman & Co., had an account of $17,445 50, .of several years standing, and that they agreed, at the time, to make hint advances, for that year, to an amount which would make his entire indebtedness about twenty-two thousand dollars. That he gave them his notes, but did not, according to his recollection, which, however, was not perfect, give any for the advances, and did not think . he only gave one note for the account, and that he owed, on the notes, on the 20th day of June, 1868, as alleged in ¡he bill, $10,031 00, no part of which had since been paid.

From the evidence in the case, which most conclusively establishes Session’s indebtedness, we should have no hesitancy, were the bill properly framed, and all necessary parties before the court, in deciding that the complainant was entitled to the relief he prayed.

It is the general doctrine, of the Coui’ts of Equity, that all persons, whose interest arc to be affected or concluded by the decree, ought to be made parties to the suit. But Sessions, the mortgagor, was not made a party in the bill, nor was it shown, by any allegation or averment, that lie had ever parted with his interest in the plantations. A transfer or assignment of the estate was not implied in the character in which Street was sued, and we are hot able to understand from the loose and indefinite phrase, as assignee of'Daniel H. Sessions, used in the bill, as descriptive of that, the interest he may have had in it, and whether he was assignee in bankruptcy, or for the benefit of creditors, or was an absolute purchaser. The assignment, if there was any, should have been stated as fully and distinctly as any other allegation in the bill.

It is expressly required by Sec. 4, Chap. 17, Gould’s Digest, that in a suit for a foreclosure of mortgage, upon real estate, the occupier of the premises must be made a party; and the omission to do so, without showing some adequate reason therefor, is held, not only a good ground of demurrer, but a valid objection at the hearing. McLain & Badgett vs. Smith, 4 Ark., 244; Fletcher vs. Hutchinson, 25 Ark., 30.

The occupant, Fowler, of one of the plantations only, was made a defendant, and it was not shown that there was no one in the occupancy of the other; this, therefore, was another defect in the bill.

The offer made by Carlton, 'in his answer, to redeem the plantations from the mortgage, if his title as purchaser, at sheriff’s sale, had been proven, could not affect the complainant’s right to a decree for a foreclosure and sale, if his ease had been properly presented to the court. If he wished to redeem, he should have filed a cross bill for that purpose.

Though, for the reasons we have stated, no decree could, at the hearing, be rendered for the complainant, yet, as it clearly appeared that there were merits and equity in the bill, it should not have been absolutely dismissed, but the court should have directed, according to Section 155 of the Code, the proper amendments to be made, or have dismissed it without prejudice to the complainant’s right to file another bill. The decree of the court below is therefore reversed, and the cause remanded to it with instructions to allow the complainant, if he wishes, to amend his bill, and to bring other parties, if necessary, before the court, and if in the further progress of the cause, nothing to the contrary is shown by the parties, who may hereafter be brought in, to render a decree in his favor for the balance alleged in the bill to have been due on the .notes, upon the 20th day of June, 1868, with eight peí* cent, interest from that date, and for a foreclosure and sale as prayed in the bill; but if the complainant should not see proper to amend his bill, to dismiss the same without prejudice to his right to bring another suit against proper parties.


text:
    McDERMOTT v. SCULLY.

      Collectors — Authority of, to sell property for payment of taxes. — The collector of taxes has not a general authority to sell property, liable hy law to he sold for the payment of taxes, hut to sell only at the time and in the manner prescribed hy law.

      Tax-title — Deed when void for want of recital, etc. — Where the law requires ' an order of court for-the sale of property for the non-payment of taxes, and that the sale he made at a specified time, the omission of the sheriff’s deed to recite that the sale was made in pursuance of such order, or at the time required, renders the deed void, and such defect cannot he aided hy evidence aliunde.

    APPEAL PROM SEBASTIAN CIRCUIT COURT.
    Hon. E. D. Ham, Circuit Judge.

      Clark Sf Williams, for Appellant.
    The deed was properly executed. It is in due form and recites all the prerequisites necessary to be contained in a tax deed.
    The statute, Gould’s Digest, Chap. 148, See. 112, makes such deeds good and valid titles, in law and equity, and evidence of the legality and regularity of the sale of such lands until the contrary appears.

      BewT. DuVal, for Appellee.
    The court did not err in excluding the deed from the jury.

      The authority of the collector in the sale of lands for the non-payment of taxes due thereon is special, and he can only .sell such, lands as are liable by law to be sold for taxes,, and only in the manner prescribed by law; the authority of the officer must be strictly pursued. Hogins vs. Brashears, 13 Ark., 242. The recitals in the deed fail to show this.
   Harrison, J.

This was an action by William McDermott, .against Michael Scully, to recover the possession.of a parcel of land, containing five acres.

The answer of the defendant denied the plaintiff’s title, and that he withheld the premises from him.

Upon the trial, the plaintiff offered in evidence a deed to him, for the land in controversy, from the sheriff and collector of taxes of Sebastian county, executed and acknowledged on the 26th day of February, 1870, but the. court refused to allow it to be read to the jury.

The deed, among other things recited: That the north-west •quarter of the north-west quarter of section thirty-three, in township eight north, in range thirty-two west, of which the parcel, in controversy, is a part, was in the year 1859, assessed, in the name of James Watson, for taxation, as the property of a non-resident — that the taxes not having been paid within the time prescribed by law, the same was advertised for sale, on the 30th day of April, 1860, and on that day, ten acres, in the south-west corner of the tract, including the said five acres, was sold to George S. Birnie, for the taxes, penalty and costs, and that the said Birnie, afterwards, assigned the certificate of purchase to William McDermott, the grantee. The said deed contained no recital of any order of the County Court authorizing and directing the collector to make the salé on that day, but, it further recited that the said James Watson was, at the time of both the assessment and sale, a resident of the county, and that he had no personal property upon which the collector might have levied and distrained for the taxes. No other evidence being offered, the verdict was returned for the defendant. The ' plaintiff moved for a new trial, assigning, as ground therefor, the exclusion of the deed from the jury, and his motion being overruled .he appealed.

The collector of taxes has not a general authority to sell property, liable by law to be sold for the payment of taxes,, but to sell only at the time and in the manner prescribed by law. Black, on Tax Titles, 46; Hogins vs. Brashears, 13 Ark., 242; Merrick & Fenno vs. Hutt, 15 Ark., 331; Patrick vs. Davis, ib. 366; Bonnell vs. Roane, 20 Ark., 114.

Ey the law in force, when the sale was made, the second Monday in March was the time appointed in each year for the sale of land for taxes, and the collector had no authority to sell on any other day, unless, upon a failure to offer the lands of non-residents, the County Court, for good cause shown, should have ordered a sale of them on some other day designated by it. Sections 108, 136, Chap. 148, Gould’s Digest. The deed, as • we have said, contained no recital of such an order, and as it affirmatively appeared, upon its face, that the sale was made in violation of the statute, which required the sale to be on the second Monday in March, was void, and could not have been aided by evidence aliunde, if any had been offered at the trial. Bonnell vs. Roane, supra; Hogins vs. Brashears, supra.

The recital, in the deed, that the sailf. James Watson, in whose name the land was assessed, was a non-resident of the county, and had no personal property to be levied on and distrained for the taxes due upon it, if true, could not obviate the objection to the sale, for the second Monday in March was the day fixed, by law for the sale of the lands of residents as well, as those of non-residents. As to that matter, howevei', the tax. book was conclusive,, and the statute required the collector to proceed against the land as it was assessed. Merrick & Fenno vs. Hutt, supra; Kingsworthy vs. Mitchell, 21 Ark., 145; Gossett vs. Kent., 19, Ark., 602.

The deed was propérly excludéd from the jury, and the judgment-is therefore affirmed.


author: Bennett, J.-

text:
    HECHT v. SPEARS, Adm’r.
    "V endoe’s Lien — Nature of — Not transferable or assignable. — It is indispensably ' necessary to the existence of a vendor’s lien that the parties should stand in the relation to each other of vendor and vendee; it arises out of, and is incident to the purchase, and is founded upon an implied trust between the vendor and purchaser, and the law does not authorize the vendor to transfer this lien with the note taken for .the purchase money, even though he ■expressly professes to do so.
    APPEAL ER0JI RANDOLPH CIRCUIT COURT. ‘
    Hon. Elisha Baxter, Circuit Judge.

      Watkins § Bose, for Appellant.
    It is settled law that a vendor has a lien for the purchase money, though he make the purchaser an absolute deed, reciting the receipt of the purchase'money; and this, as against the vendee or a person purchasing with notice that , the purchase money is unpaid. Scott vs. Orbison, 21 Ark., 202; Harris ■vs. Hanks, 25 Id., 510. Also, that the mere assignment of the note, under such circumstances, does not carry with it the vendor’s lien. Shall vs. Biscoe, 18 Ark., 162; Simpson vs. Montgomery, 25 Id., 372.
    Whether the parties intended to abandon the lien, by the .assignment, is a matter of fact to be gathered from the evidence and the nature of the transaction. . Qriggsby vs. Hair, 25 Ala., 327.
    The lien of the vendor is not confined to himself alone. 2 Sto. Eq. Jur., sec. 1227,1226.
    It has been held in many States that the mere assigriment ■of the notes carries the lien with it. Lagon vs. Badollet, 1 Blackf., 416 ; Boper vs. McCook, 7 Ala,, 318; Willis vs. Bryant, .22 Md., 373; Wells vs. Morrow, 38 Ala., 125; Bakestraw vs. Hamilton, 14 Iowa, 147; Adams vs. Cowherd, 30 Mo., 458; Terry vs. George, 37 Miss.,. 539; Murray vs. Able, 19 Texas, .213; McAlpin vs. Burnett, Id., 497; Kern vs-. Hazlerigg, 11 Ind., 443; Moore vs. Baymond, 15 Texas, '554; Sanders vs. Aldrich, 25 Barb., 89.
   Bennett, J.-

-Levi Hecht brought his complaint, in chancery, against the administrator of John Dodd, deceased, and against the widow of Dodd and her husband, she having-married after Dodd’s death.

The complaint alleges that one Campbell had sold Dodd’ a tract of land, for which Dodd gave Campbell his note for-five hundred dollars, for one-half of the purchase money Campbell giving a deed for the land. Afterwards, Campbell transferred the note to Hecht, the complainant, by an indorsement in words and figures as follows

“For value received, I assign and transfer -the within note,, together with the vendor’s lien and my equities to and upon the following lands: South of the southeast jjr of section 31, township 19 north, range 3 east; and the northwest £ of’ section 6, of township 18 north, of range 3 east, to Levi Hecht. [Signed] C. F. Campbell.

Randolph county, April 23, 1870.”

The complainant seeks to have a vendor’s lien declared and enforced.

Defendants demurred to the complaint — the demurrer was sustained and the plaintiff appealed.

It is settled law that the vendor has a lien for the purchase money, though he make the’purchaser an absolute deed, reciting the receipt of the purchase money; and this, against thevendee or a person purchasing with notice that the purchase-money is unpaid. Scott vs. Orbison, 21 Ark., 202; Harris vs. Hanks, 25 Ark., 510.

Also, that the mere assignment of the note, under such circumstances, does not carry with it the vendor’s lien. Shall vs. Biscoe, 18 Ark., 162; Simpson vs. Montgomery, 25 Ark.,, 372. But the question arises in the case at bar, can the vendor’s lien be .transferred, by an express assignment, as legal-rights may be ?

It seems to be settled, that if a debt is secured by an express, lien, as where there is a mortgage, or when the vendor has. not parted with the'legal title, an assignment of the debt entitled the assignee tdthe benefit of the pledge. Graham vs. McCampbell, Mass., 52; Eckridge vs. McClure et al., 2 Yerger, 84; Farmer vs. Hicks et al., 4 S. & M., 294; Norvell vs Johnson, 5 Humph., 489.

But a vendor’s equity or implied lien is not necessarily governed by the same principle. “The lien of a vendor for the purchase money,” says Story, J., in Gilman vs. Brown et al., 1 Mason 192, “is not of so high and stringent a nature as that of a judgment creditor, for the latter binds the land according to the course of the common law; whereas, the former is a mere creature of a court of equity, which molds and fashions according to its own purposes. It is, in short, a right which has no existence until it is established by a decree of a court in the particular case, and is then made subservient to all the other equities between the parties, and enforced in its own peculiar manner and upon its own peculiar principles. It is not, therefore, an equitable estate in the land itself, although sometimes that appellation is loosely applied to it.”

If then, a vendor’s lien “is a right which has no existence until it is established by the decree of a court,” how can it be assigned before its existence? That which does not exist cannot be parted -with. A vendor’s lien is a lien of a peculiar character. It is not like the common law lien of factors, innkeepers and others, associated with and entirely dependent upon actual possession of the property on which it is a tie; it is not like a general judicial lien, which springs into existence in favor of a party who obtains judgment, which enables him to take the lands of the defendants in execution, and continues, as such, until the judgment is satisfied; nor is it altogether like a common mortgage, although it operates and is treated in many respects as a mortgage. It differs from all these in this, that if it exists at all, it must originate with, and be an incident of the purchase itself. This doctrine, in relation to these liens, it is said, has been probably derived from the civil law as to goods. Mackuth vs. Symmons, 15 Ves. 344; Walker vs. Priswick, 2 Ver., 622. - And it seems tliat such a lien, upon goods, is a personal right which cannot be transIerred to another. Danbegny vs. Du Val, 5, 7 R., 606.

'It is indispensably necessary to the existence of such a lien, that the parties should stand in the relation towards each other of vendor and vendee' of real estate, the purchase money of which has not been paid. The pure relationship of debtor and creditor, or of borrower and lender, is incompatible with the existence of this species of liens.

In the case of the purchase of real estate, this lien arises as an incident thereto, and can only exist together with it. In the case of a loan, the debt is the principal, and the bond, note or mortgage are only the accidents to it. A purchase' may be made or a debt may exist without an equitable lien or a bond, note or mortgage as its incidents. A bond, note or mortgage may, however, be executed, as being, in itself, the creator,- evidence and incident of a debt;-but a vendor’s lien cannot be thus made and executed apart from, and independently of a contract of purchase. It is an incumbrance on land which can only be held by a vendor or his legal representative ; and though assets may be marshalled, so as to put a vendor altogether upon his equitable lien, for the benefit of other creditors, yet, no third person can, as assignee of the vendor, derive any benefit from such lien, nor can it, like -a bond or mortgage, be assigned, because it is not expressed in writing, or in any separate contract, but exists only as an inseparable equitable incident of the contract of purchase; and, as is seen from the above quotation from Judge Story, is only to be raised by construction of equity, in favor of the vendor only. “This lien would, no doubt, pass, on- the death of the vendor, to his representatives, but it is not the subject matter of sale and transfer by contract. Keith vs. Horner, 32 Ill., 526. “Such a lien is not assignable, even by express language.” Richard vs. Seammy, 27 Ill., 431; Keith et al vs. Horner, 32 Ill., 526.

A vendor’s lien being founded upon an implied trust, between the vendor and purchaser, we are satisfied that the law does not authorize the vendor to transfer'this lien with the note taken for the purchase money, even though he expressly professes to do so, and we are not inclined to make a law to enable him to so do.

The decree must be affirmed.


text:
    MILLER v. NEIMAN AND WIFE.
    Cloud upon Title — To remove, what bill must allege. — A party, when asking for equitable relief in removing clouds from his title, must be in actual possession of the lands, or they must be unoccupied or not in the actual possession of another; otherwise his remedy is complete at law.
    APPEAL PROM DREW CIRCUIT COURT.
    TIox. Henry B. Morse, Circuit Judge.

      Garland & Nash, for Appellant.

      English & English, for Appellee.
   Bennett, J.

This was a bill, in chancery, brought by Miller against Neiman and wife, in the Brew Circuit Court, to quiet title to lands. The cause was heard on the bill, answer and agreed statement of facts; the bill was dismissed for the want of equity, and Miller appealed to this court.

Miller was a non-resident and never in actual possession of the lands. They were sold by the collector of Brew county, on the 31st of May, 1867, for taxes of 1866, and purchased by German C. Berry.

The only evidence adduced on the hearing, as appears by the transcript, was an agreed statement of facts, which statement affords no proof whatever as to which party was in actual possession of the land' at the time of bringing the bill. If it is clearly shown that the defendant was in actual possession of the land, the plaintiff has an adequate and complete remedy at law. The bill does not allege that fact, but on the contrary does say, “that said lands are wild and unimproved and have never been held in actual possession by any one * * * * but that he had constructive possession of the same.”

The answer of the defendant states that, after the sale and purchase of the lands, as mentioned in the bill, “ the said German C. Berry took possession of them and exercised ownership over them aiid paid taxes on the same up to the time of. his death, and that the said Stephen Berry, after the death of the said German C. Berry, took possession of said lands and held them up to the time of his death, after which defendants have held and possessed said lands, and still hold and possess them,” in actual possession, and positively denies that the plaintiff has any right, claim, title, or possession in or to said lands.

A party, when asking for equitable relief in removing clouds from his title, must be in actual possession of the lands, or they must be unoccupied, or not in the actual possession of others ; otherwise his remedy is complete at law.

In the case before us, the complainant alleges these lands “ wild and unoccupied,” but the defendant-positively denies that fact and puts the “ onus probaridi, upon the complainant to'prove this allegation, which has not béen done. .Consequently the court below did not err in dismissing the bill.


author: Warwick, Spec. Sup. Judge.-

text:
    KIERNAN v. BLACKWELL, Adm’r., et al.
    Equity Practice — When demurrer considered waived. — Where a cause has .proceeded to final adjudication, without judgment of the court upon demurrer filed in same, the demurrer will be considered to have been waived.

      Executors — What interest in intestates’ lands. — -The executor has no interest in the lands of an intestate or control over them, save as it may be necessary to subject them to the payment of general creditors.

      Purchasers — When not relieved in equity. — When the purchase money or notes, given for the, purchase of land, have not been fully paid off, the purchaser can have no relief, in a court of equity, in seeking a decree for title.

      Foreclosure — Who necessary parties. — It is error to render a decree for the sale of lands, or foreclosure for the purchase money, without 'making the heirs at law of the deceased vendee,, parties defendant.

      Chancery — Should notice deject in parties. — -Where the heirs at law of a ’deceased vendee are not made parties defendants to a bill seeking a sale of land or foreclosure for purchase money, the court below, on its own motion, should notice this defect of parties; and this court, in chancery, will protect the estate and heirs at law, who are not made parties, whether the objection is or is not made.
    APPEAL FROM JEEEERSON CIRCUIT COURT.
    Hon. William M. Harrison, Circuit Judge.

      Watkins $ Bose, for Appellant.

      Bell $ Carlton and Garland § Nash, for Appellees.
   Warwick, Spec. Sup. Judge.-

-At the spring term 1867, of the Jefferson Circuit Court, Milley E. Blackwell, administratrix of the’ estate of James J. Blackwell, deceased, filed her bill of complaint, in chancery, against Bedelia F. Kiernan, Peter A. Finnerty and Anthony A. C. Rogers, complaining and representing that, oil the 23d of December, 1859, her intestate purchased of said Bedelia F. Kiernan, certain lands, lying in the county of Jefferson, for which, by written contract, he was to pay her 113,000 pounds of cotton; that he executed to said Bedelia F. his four several bonds, in which he bound himself to deliver to her, or her agent, in the town of Pine Bluff, on the first day of January, 1861-2-3 and 4, sixty.-th.ree averaged sized bales of cotton, of the aggregate weight of 28,350 pounds. That by written contract, under seal, between said intestate and said Bedelia E., a lien was retained on the lands for'the purchase money, “ as will more fully appear by reference to a certified copy of the deed, signed by Bedelia E., and the said James J. Blackwell, herewith filed and marked Exhibit “ A,” which exhibit is not in the record. The bill further avers that the first three writings obligatory were fully paid off and discharged by her intestate, and herself as the administratrix; that the fourth is in the hands of A. A. C. Rogers. ■

The bill then charges that the land did‘not belong, in point of fact, to Mrs. Kiernan, but to Peter Einnerty and were held by her to defraud. the creditors of said Einnerty, and that said Einnerty pretended to, and did act, and was the agent of Mrs. Kiernan, and had power of attorney to receive the said cotton for her.

"We do not conceive said Einnerty as having any interest in this suit, or a necessary party, and is not to be considered, • except as the record shows • him to have been the agent of Mrs. Kiernan.

The bill avers that the said Peter A. was the person from whom, on final payment, a deed should have been received, but does not aver any legal title in him to convey. The complainant avers payment of the last or fourth bond to Einnerty, as agent of Mrs. Kiernan, by receipt of cotton, at the gin house of complainant. The prayer of the bill is, that the bond in the hands of Rogers bo cancelled, and that the said Kiernan, Einnerty and Rogers be divested of all title and interest in said lands, and the same be vested in the heirs of said Blackwell deceased, and other proper relief. At the fall term Messrs. Bell & Carlton, attorneys, entered the appearance .of all of said defendants, (Kiernan, Finnerty and Rogers,) and filed a demurrer to the bill. This cause having proceeded to a final adjudication, without judgment of the court on demurrer, it must be considered to have been waived and cannot now be considered by this-court.

At the same term, Rogers, by Bell & Carlton, his attorneys, filed his answer, admitting the purchase of the land; denying all knowledge of the payment of the three first bonds, and avering the fourth to be in his possession, and his property, and that he had brought suit to recover the same, in the Jefferson Circuit Court, denying that it (the first) had {ever .been paid.

Mrs.-Kiernan filed her answer and made it a cross-bill against Mrs. Blackwell and Rogers, claiming the third and fourth bonds to be outstanding, unpaid and her property and, without making the heirs at law of James Blackwell, deceased, parties, prays that the amount due her be ascertained, arid the same declared a lien on the lands, for foreclosure, etc. Rogers answered the cross-bill of Mrs. Kiernan, and in' turn made it a cross-bill against Mrs. Blackwell and Mrs. Kiernan, claiming to own the fourth bond by purchase, etc., and without making the said heirs parties, he prays that it be ascertained what amount is due him on the said fourth bond; that it be declared a lien, and for foreclosure, etc. This is all of the pleadings that we deem it necessary to notice.

On the foregoing pleadings, testimony was introduced, which in the view of the case we have taken, need not be noticed. On the final hearing, the court found in favor of Rogers, on the fourth bond, due the 1st of January, 1864, and that there was due on the same $4000 ; declared the same to be a lien on the lands and ordered foreclosure and sale of the lands to pay the amount so found due.

We observe first: that on the final hearing at least a portion of the original purchase money was unpaid; hence Milley E. Blackwell could not have the relief she prayed for. Second: that neither Mrs. Kiernan or Rogers who, both claiming relief against the land for purchase money, do not make the heirs at law of James J. Blackwell, deceased, parties defendant, but proceed alone against the administratrix, and the court, without having them brought. in, renders a -final decree against Mrs. Blackwell, as administratrix, and declares the sum found, due Rogers, a lien on the land and orders its sale. That in a proceeding to foreclose a mortgage or vendor’s lien on lands, the heirs at law are necessary parties, without whom no final decree can he entered, seems to us not to require discussion.

The executor of an estate has no interest in the lands of an intestate, and no control over them, save as it may be necessary to subject them to the payment of general creditors. It was the duty of the chancellor, in the court below, to'have noticed the defect of parties on his own motion; it is equally our duty in. chancery to protect the estate and heirs at law, who are not made parties, whether the objection is or is not made.

The court erred in rendering a decree for the sale of the lands, without requiring the heirs at law of James J. Blackwell, deceased, to be made parties, defendant. "We cannot pass this case without noticing at least one point in the record, complained of by appellant. On the trial of the cause, the written statement of one Brewer, not under oath, was read in evidence, under an agreement signed by the attorneys for Mrs. Blackwell and Rogers, and against the objections of solicitors for Mrs. Kiernan. This statement was wholly against the interest of Mrs. Kiernan, and we know of no rule by which this statement could be considered as evidence against the objection of Mrs. Kiernan. The notes not having been fully paid, Mrs. Blackwell, the original complainant, could have no relief; the heirs at law of James J. Blackwell, deceased, not having been made parties, neither Mrs. Kiernan or Rogers could have had foreclosure. The court should have dismissed the original bill of Mrs. Blackwell, and also the cross bill of Mrs. Kiernan and Rogers. Eor these reasons, the decree of the court below is reversed, and the said original bill of Mrs. Blackwell, the cross-bill of Mrs. Kiernan, the cross-bill of A. A. C. Rogers, are severally dismissed without prejudice to the rights of either. Ordered by the court, that each of the several parties pay their own costs.


author: Hon. W. I. Warwick, Special Judge.

text:
    HOLMES & SALMON v. COOPER.
    Judgments in Attachments. — Liability of Securities. — Under the act oí March Vlth (Acts of 1866-7) the liability of the securities, in an attachment bond, can only be for the amount of the appraised value of the property attached, and in case the verdict or damages found should be for an amount 'greater than the appraised value of the property, the court should render judgment against the principal and securities for the amount of the appraised value of the property, and against the principal for the balance.
    APPEAL EROM PHILLIPS CIRCUIT COURT.
    II011. M. L. Stephenson, Circuit Judge-

      Palmer Sf Sanders, for Appellants.
    The only evidence, before the court, of the property seized by the sheriff, is his return. It is the record evidence of the fact, not to be contradicted. Pose vs. Ford, 2 'Ark., 26; Dawson vs. State Bank, 8 Ark., 505; Stewart vs. Houston, 25 Ark., 311; Tucker vs. Bond, 23 Ark., 268; Ayres vs. Dupuy, 27 Tex., 593; Carr vs. Commercial Bank, 16 Wis., 50.
    Estoppels are odious in law. 1 Serg. and Pawle, 444.- They are not admitted in equity against the truth. The insertion of the recital in the bond of “1 Gin Stand $200 00,” is clearly a mistake of the draftsman, as the whole record shows.
    The transcript also shows another error, which i? cause for reversal.. The affidavit sets out the debt due, at seven hundred and fifty dollars. This verdict and judgment is for eight hundred dollars. This cannot be allowed. The sum sworn to, will be taken as the true sum due. Heard vs. Lowry, 5 Ark., 522.

      A. H. Garland, for Appellee.
    A motion for new trial was made and overruled, but there is not an exception saved as to law or evidence, and nothing' is presented for this court to review at all. Pose Dig-., p. 559, Sec. 45. New Trial.
    If any point is made on the judgment being rendered against the sureties, it is null and distinctly met by this court in Ward vs. Carlton, 26 Ark., 662. See act of 1867, March 7. Acts of 1866-7, p. 294, et seq.

   Hon. W. I. Warwick, Special Judge.

This is an action of covenant, commenced by attachment,. under the act of March 17, Acts of 1866-7, and was commenced at the May term, 1868, of the Phillips Circuit Court. -The attachment was levied upon certain property, and the property was appraised, as required by the act, at $750 00. Defendant to the suit, William A. Salmon, entered into bond, with L. II. Mangum and John D. Parish as securities, and the property was returned to him; all of which is made to appear by the return of the sheriff on the writ of attachment. The bond for the return of the property is in the sum of $1,500 00, being double the amount of the appraised value of the property levied upon, as appears from the sheriff’s return, but in the recitals of the bond, among other property, is mentioned, “1 Gin Stand $200,” as having been levied upon by the sheriff, which’does not appear on the sheriff’s return as having been levied upon, nor is it on the list, made out by the appraisers, accompanying the sheriff’s return. The defendant filed a special plea, and, on trial of the cause, on the 1st day of July, 1871, the jury returned a verdict in favor of Cooper, for $800 00. Cooper, in his declaration, lays his damage at $1000, and in the affidavit for writ of attachment, made on the 3d of February, 1868, avers the defendant was indebted to him in the sum of $750 00. The court gave judgment on the verdict of the jury, for $800 damages, with a provision in the judgment, that if the same be made out of the securities, Mangum and Parish, they might satisfy the same by the payment of $750, as the appraised value of the property seized by the officer, in case the judgment and costs should exceed .that amount.

Defendants filed a motion for a new trial, assigning five causes, which was overruled by the court; the first four of which cannot be reviewed by this court, inasmuch as the record does not show any of the evidence produced on the trial, or the instructions of the court. The fifth cause assigned is, “Because the judgment rendered on said verdict is .unwarranted by law.”

It is urged that the judgment against .the defendant Salmon is excessive, for that the affidavit for attachment sets out the debt due at $750, which, it is insisted, must be taken as the true sum due.. There appears, on the transcript, an entry of remittitur by Cooper of $50, in vacation. This being no part of the record, in this case, cannot be considered. The affidavit was made on the 3d day of February, 1868; the verdict of the jury and the judgment of the court on.the 1st of July, 1871. The jury might well add interest to-the amount due Cooper on the 3d day of February, 1868, and as the judgment does not exceed the amount stated in the affidavit in a sum greater than the legal interest, we find no error.

The Statute (acts of 1866 — 67, page 296, Sec. 5) under which 'the bond for the return of the attached property was given, is as follows:

“Whenever, hereafter, the defendant in any attachment suit shall give bond, whereby the attachment shall be dissolved, as now provided by law, and on the trial of such suit, ■ judgment shall be given against such defendant, jiidgment shall also be entered against the securities in such bond, jointly with the principal, for the amount recovered of said defendant; Provided, that no greater amount shall be recovered of the said securities, than the appraised value of the property seized by the officer.”

The liability of these securities is fixed by this statute, and not.by any subsequent law, and could only be for the amount of the appraised value of the property. It is a general rule of law, applicable to this case, that the return of an officer is conclusive on all parties to the suit. In this case, the sheriff returns that he levied upon certain property; the list made by the appraiser describes the same property, and the aggregate value fixed at $750. No mention is made of the gin stand, and we can but conclude that its recital in the bond is a clerical error. If actually levied upon, it might have been made to appear by amended return of the sheriff.

The judgment against Mangum and Parish, being for more than the appraised value of the property, is erroneous. The judgment of the court below is reversed, and the cause remanded, with instructions to the Circuit Court of Phillips county, upon the finding of the jury herein, to render judgment against the defendants, Salmon, Mangum and Parish, for , seven hundred and fifty dollars, part of the plaintiff’s damages so assessed, and against defendant, Salmon, for the fur- ■ ther sum of fifty dollars, the balance of his damages so assessed, and his (appellee’s) costs expended in the court below.


author: Gregg, J.

text:
    O’CONNER v. THE AUDITOR.
    Donated Lands. — Lands were donated to W. C. afterward applied to the Auditor to purchase the sg.m'S, tendering the taxes, penalty and costs due thereon ; and also offered to return 'the donation deed, with the written statement of "W. that he could not comply with its conditions, and that he relinquished to the State all his rights in favor of O. Held: That the Auditor couid not accept a return of the deed and cancel the entry.
    PETITION EOR. MANDAMUS.

      James II. O’ Conor, for Petitioner.

      Montgomery, Attorney General, for Respondent.
   Gregg, J.

The petitioner applied to the Auditor of the State to purchase the west half of the northwest of section twenty, township three south, range three east, as forfeited lands, and tendered the amount of taxes, penalty and costs due the State thereon.

The Auditor refused to sell, because the lands had been ¿granted to J. L. Waterhouse as a donation, and hy the Auditor, under Chapter 1Ó1 of Gould’s Digest, deeded to him; but “the petitioner offered to return that deed, with a written .statement from Waterhouse that he had not, and could not -comply with its conditions, by paying for the improvements ■which were on the lands, and that he relinquished to the State all his rights in favor of the petitioner.

Upon this, the Auditor refused to cancel the deed, ■or sell and convey the lands to the petitioner', and to -compel him to make such sale and conveyance is the object ■of this petition.

The chapter referred to provides for donation of certain State lands to citizens upon condition of settlement, etc. Section 19 provides that if any individual obtains a donation to a tract of improved lands, such person shall, within three months, pay to the owner of such improvements double the value thereof, and if he fails so to do, he forfeits his donation, .and the owner of the improvements may purchase the lands, including his improvements, hy paying all arrearages of taxes, etc.

Section 17 provides that donated lands shall not be exempt from taxes. Section 25 provides for the collection of taxes on such lands, and Section 26 makes them subject to the same penalties, forfeitures, etc., as other taxable lands.

‘These are the only methods pointed out hy law for divesting the donee of title if he fails to comply with the conditions of his purchase, or to meet the accruing taxes. .

The Auditor is hot authorized to transact all manner of business for the State at discretion, hut, like' other State offi■cers, he is empowered to do certain acts for and in the name ■of the State, hut he is of the class of peculiar special agents who can exercise no authority except what is evidently embraced within the lawful grant.

Then, without authority of law, he could not accept a return of the deed and cancel the entry, nor could he do so upon any written acknowledgment that the donee had forfeited his entry.

The owner of the improvements, upon filing the' proper-proofs, might be allowed to purchase the land by paying all taxes, etc., but if no such application is made, the lands must go upon the tax books, and take such course as other individual lands.

Therefore, without discussing the question of jurisdiction,, we hold'that the petitioner is not entitled to mandamus, and Ms petition is dismissed with costs.