author: Searle J.

text:
    Mahar vs. The State.
    Indictment: Against constable for witholding school fund.

    An indictment against a constable for failing to pay over fines, penalties and forfeitures collected by him as a part of the school fund, : need not allege that the same was withheld willfully or with a fraudulent intent, nor need it be denominated as a part of the school fund.
    APPEAL from Jefferson Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.
    T. D. W. Yonley. Attorney General, for appellee.
   Searle J.

The appellant was indicted in the Jefferson criminal court, January term, 1872, for malfeasance in office, and was tried and convicted. Judgment being rendered against him, he moved for a new trial upon the following grounds, to wit:

“ 1. That the court erred in overruling the demurrer to the indictment.
2. That the court erred in overruling the defendant’s motion to exclude the evidence introduced by the state to est-ablisb the indebtedness of the defendant to the state or common school fund as set forth in said motion.
“ 8. That the verdict is contrary to the law and against the evidence as adduced on the trial of this cause.”

Said motion being overruled the appellant excepted and appealed to this court.

The indictment upon which the trial was had reads as follows :

“ State op Arkansas against James N. Mahar. Malfeasance, etc. Jefferson County Criminal Court, January Term, A. D. 1872 :
“ The grand jury of Jefferson county, in the name and by the authority of the state of Arkansas, accuse James N. Mahar of the crime of malfeasance in office committed as follows, to to wit: The said James N. Mahar, in the county aforesaid, on the 8th day of January, A. D., 1872, did then and there have, and before and at that time, receive a large amount of money, he the said James N. Mahar being a duly commissioned and qualified constable in said county and state, ' and acting as such, the said money, to-wit: Seven hundred and sixteen dollars, being paid to him as such officer on account of fines, forfeitures and penalties levied by magistrates in said county, and the said James N. Mahar still continues willfully, unlawfully and designedly, to fail and to refuse to pay over the same to the proper officer with intent to defraud the state out of said amount of money, contrary to the statute in such case made and provided, etc.
“ H. King White, Pros. Atiy.”

To this indictment appellant demurred upon the following grounds:

“1. That said indictment alleges no charge against the defendant which he is required, under the constitution and laws of the state, to answer in this court.
“ 2. That it is nowhere charged in said indictment that the the defendant defrauded or attempted to defraud the school fund of the state of Arkansas.”

Said demurrer was overruled, to which appellant excepted. The act, in pursuance of which this prosecution was instituted, is “ an act to provide for the more efficient collection of the public school fund of the state of Arkansas,” approved March 23, 1871. Acts 1871, p. 81, especially sections 4, 5, 8 and 9.’

The indictment, inartistically drawn, substantially charges facts sufficient to constitute a public offense under the act •above mentioned. Indeed it charges more than was necessary ; for it charges that the appellant withholds the funds “willfully, unlawfully and designedly” and “ with the intent to defraud,” etc. This was unnecessary, and these words may be regarded as surplusage. The offense is complete under the statute when the officer, whose duty it is to collect such funds, collects the same and refuses or neglects to turn them over according to section five of said act.

A further remark is necessary, particularly in relation to the second cause of demurrer. It is stated there that “it is nowhere charged in the indictment that tbe defendant defrauded or attempted to defraud the school fund of the state,” etc. So far as the charging of the intent is concerned, that is sufficiently answered. So far as alleging more specifically the character of the fund withheld is concerned, we think that is unnecessary. The law provides that fines, penalties, etc., “shall constitute a part of the general school fund of the state;” hence it may be designated as the “general school fund of the state.”' But, while it may be thus designated, it is, nevertheless, a part of the “public fund of the state,” and may be so denominated in the indictment. The fact that it is a “ part of the general school fund of the state ” does not necessarily constitute an ingredient in the offense. The chief in-gradient of the offense is, that as a part of the public fund of the state, it is withheld contrary to law.

The character of the fund is set forth with sufficient explicitness, and the offense was sufficiently charged. The court, therefore, did not err in overruling the demurrer.

The second exception saved relates to the evidence introduced upon the trial. The appellant’s counsel moved the exclusion of certain evidence from the jury, touching the indebtedness of the defendant to the state or school fund, and for reason stated “ that the evidence is secondary, it being the statements of magistrates that they had filed official transcripts in accordance with section four of the act of 1871, approved March 23, 1871, * * * * and the statement of the clerk of the county, that by said transcripts it appeared that the defendant was indebted to the state in the sum of seven hundred and sixteen dollars; whereas, by the rules of evidence, said transcripts should have been introduced in evidence as the original records of the magistrates, as being the best evidence, it being admitted that said transcripts were in existence.”

White, the county clerk, stated that, by the transcripts of the justices, it appeared that the defendant was indebted to the state in the sum of $716.50.

The justices of the peace, Nordman and Wheat, stated that their official transcripts, on file in the clerk’s office, were correct copies of their records. Erom the record before us, it appears that the magistrates’ transcripts, referred to by White and the magistrates, were exhibited to the jury in evidence of the defendant’s indebtedness, etc.

The testimony of the magistrates as to the genuineness of their transcripts was unnecessary, as their genuineness or correctness had not been attacked. They, the transcripts, offered prima facie evidence of the fines, etc., collected by the defendant. Such testimony, however, though unneccessary, was not illegal, and the appellant had no grounds of complaint on account of it. Nor should any importance attach to the objection to the testimony of White, when he stated that the appellant was “indebted to the state $716.50 on account of fines, * * * * as appears from transcripts of justices,” etc., for the transcripts themselves were produced to the jury in evidence. The rights of the appellant clearly were not prejudiced by the statement of the county clerk, White, though such statement was inadmissible as evidence. And more certainly must this be our conclusion when we remember that the court instructed the jury, at the request of the appellant, “not to consider the secondary evidence,” etc. The judgment, therefore, ought not to be reversed on this account. See Criminal Code of Practice, sec. 345.'

Being satisfied, upon review of the whole record of this case, that the verdict of the jury, and the judgment in pursuance thereof, is in accordance with the law and the evidence, and that no substantial error was committed, the judgment must be affirmed.


source: Caselaw Access Project

author: Gregg, J.

license: Public Domain

text:
    Jones et al. vs. Johnson et al.
    Betterments : When may he set off against rents and profits.

    Where a person, -without individual right, with his children who are part of the heirs, lawfully comes into possession, and voluntarily holds possession of the inheritance, while he cannot lawfully demand payment for betterments put thereon without the consent of the other heirs, yet in right of his children as heirs, he and they can hold the possession of the same until partition is made, and while thus tacitly holding, may be allowed to set off improvements against rents and profits; but improvements, not made with the knowledge and consent of the other heirs, cannot be charged against the body of the estate.

      APPEAL from Yell Circuit Court.
    Hon. W. N. May, Circuit Judge.

      Fay Hempstead, for appellants.
   Gregg, J.

On the 29th of March, 1869, the appellants brought their complaint in equity in the Yell circuit court.

They alleged that they and the appellees were heirs of Lewis D. Johnson; that he died in March, 1860, seized and possessed of three hundred and twenty acres of land and considerable personal property, situate in said county, and of the aggregate value of several thousand dollars. That Nelvina and her children then resided on the premises of Lewis; that they retained possession of the lands and converted the personal property to their own use, without administration or in any way accounting for the same. That complainants were nonresidents, and before their rights could be secured, all communication was cut off by the war of 1861; after the close of which, the appellees claimed to be the owners of the whole of Lewis Johnson’s estate.

They prayed that the defendants be required to make answer, etc., and abide, etc. Nelvina and several of her childred answered jointly, and admitted the relationship of the parties as alleged, the residence and death of Lewis D. Johnson, the death of his brother Robert A., and her possession and use of the property of which they died possessed, and that no administration was ever had; that Lewis came to Arkansas in 1858, as alleged, and that about one year thereafter he purchased of Hollowell the lands in litigation, but they deny that he died seized and possessed thereof, and aver that he came to Arkansas as the agent of his brother Robert A., the husband of Nelvina, and purchased these lands for him and with his money. They do not deny that Lewis improved the land, but aver that, after his death, they improved them to the value of three thousand dollars. They declare that Lewis’ personal estate was worth about $250 or $300, and that there were debts against it of about equal value, and that for the good of the estate Nelvina assumed and paid off the debts, and retained the personal property.

Nelvina set up title to the land under a deed from Hollowell, and in addition to that they claimed a right to both real and personal estate by limitation, possession and adverse claim for many years, etc. A general replication to this, and the minor’s answer interposed, and proofs were taken.

Whether Lewis Johnson, in the purchase of these lands, used his own money, and acted for himself, or used Robert Johnson’s means, and acted as his agent, is the real controversy ; hence the voluminous depositions in this cause may be eliminated of about all that relates to parties, description, possession, improvements, values, etc., and further, we may assume, though the testimony is not without conflict, that the liabilities of Lewis’ estate and the personal property thereof are about equal.

We will,-therefore, endeavor to confine our quotations of testimony to such as bear upon the main points in issue, except where the general tenor of the proof seems necessary to show its full weight, or where statements contradictory have been made tending to affect the credibility of some of the witnesses.

The death of Lewis and Robert Johnson, of Hollowell, and the mother of Lewis, shut off important avenues to direct and satisfactory proofs ; the delays caused by the war, and important papers being in hands that do not preserve and produce them in evidence, tend also to increase the difficulty in finding the facts.

Luise testified that soon after Lewis Johnson died, Nelvina said to him there would have to be an administration.on Lewis’ estate, and she wanted him at the proper time to assist in appraising it; after that she said there would be no necessity to administer, as her children were Lewis’ only heirs, and that Mr. Hollowell had made arrangements for her to get title to the land by paying the balance due on it.

Thaddeus Johnson testified on the part of the appellants: That exhibit X, No. 1 (a letter dated February 4, 1861), was in his handwriting and signed by him, and to exhibit X, No. 2 and No. 3 he recognized his mother’s name ; that No. 3 was in his handwriting, and No. 2 might be also, but as to that he could not state positively; that he was in the habit of writing letters for his mother to North Carolina in 1860 and 1861; that he wrote in different hands ; that at the time of Lewis’ death, his mother was living; that the letter dated June 19, 1860 (exhibit X, No. 2), contained about a correct statement of the personal estate of Lewis ; that he did not know whether the place where Lewis lived and died was his or not.

Thomas Graves testified that he lived on the premises and worked for Hollowell; that Lewis Johnson came there and said he had bought the lands, and afterwards Hollowell told him he had sold the place to Lewis.

Samuel S. Kimball testified that in 1858-9 and ’60, he was a merchant at Dardanelle, Arkansas, and that he never cashed any checks for Lewis D. Johnson.

Eglebright testified that he knew from Lewis D. Johnson and Hollowell that Lewis bought the land now in controversy at $6.25 per acre, in the fall of 1858 ; that in the spring of 1859 he saw a deed from Hollowell and, wife to Lewis; that he heard Hollowell speak of an occurrence that took place, as he said, the day he made Lewis a deed, and he heard Lewis say he had paid up every dollar he owed and had a little money left; that he heard Robert A. Johnson say he would not be able to purchase a home and provisions for his family and would have to rely on what Lewis had; that Robert and Lewis went to the IT. S. land office and, as they said, entered the Grid. Underwood place, which joined Lewis,’ and Robert said he was going to build on that; that in 1860, Thaddeus and Berry Johnson both admitted that Lewis owned the lands whereon he died; that in the spring of 1859, he saw a letter from Robert to Lewis, in which he wrote he had collected $1,900 for Lewis, and inclosed checks for the amount, which checks were- cashed by Samuel Kimball, a merchant of Dardanelle; that before he left home in Iowa, he received from Mrs. Jones $50, and since coming here, $15 more, to pay him for coming as a witness, and was to be paid all his expenses coming down and returning ; that he offered to come for $100 if she gained the case, but she did not accept or reject that offer; he wrote her that he had seen the deed from Hollowell to Lewis; that he was positive that Ellen E. Hollowell signed the deed, and that it was for 320 acres; that Lewis told him that he was purchasing the lands for himself, and with his own money; that witness did not come here for the money, but to see his kin, when he could get his expenses paid.

Mrs. Ricks testified that formerly she was the widow of Henry Johnson; that in 1859, Robert Johnson several times told her he was the agent for Lewis to collect money for him in North Carolina; that he had made collections of a part or all and remitted the same to Lewis, who had purchased lands in Arkansas and used the money in paying for the same ; that iu 1869, she got of C. B. Killebrew, of North Carolina, two letters purporting to have been written by Nelvina Johnson, at Dardanelle, Arkansas, in the year 1860, concerning the estate of Lewis Johnson, that she took copies and returned them to Killebrew, and mailed the originals to D. H. C. Moore, an attorney at Dardanelle, Arkansas.

John Neflea testified that he was judge of the county court in Edgecombe county, N. C., and clerk of the supreme court; that he had lived in said county fifty-one years ; that several of the complainants had been raised near him; had known the family well twenty-five or thirty years; before Lewis Johnson left North Carolina he was employed as an overseer by wealthy cotton planters ; that he was a man of industrial, frugal habits ; that good overseers on large farms then obtained from $400 to $800 per annum; that he had known Bobert Johnson for twenty-five years ; that in 1857-8 and ’9, he had several conversations with him in reference to Lewis Johnson and his business; that Bobert said that he was Lewis’ agent, and had his notes and claims to collect for him from persons in North Carolina, who owed him for borrowed money and for overseeing; afterward, he said he had collected the notes and asked advice as to the manner of remitting the money to his brother. In one conversation, he said his brother Lewis had purchased lands in Arkansas, and wanted the money to pay for them, and he advised Bobert to remit in drafts on New York, and he thereafter showed him the drafts purchased for that purpose ; that Bobert never spoke of sending any money of his own ; that Bobert was a man of poor health, had a large family, cultivated poor land and never had but little money over what was absolutely necessary to support his own family until he sold to leave the state, and that he moved in a few weeks after selling; that the record of deeds shows he conveyed his lands December 13, 1859. Shortly before this sale and several months after, he spoke of Lewis’ purchase of lands. Bobert said to him, he had determined to sell and remove to Arkansas where his brother Lewis was, and that he had so written to him and requested him to buy a piece of land for Mm near Lewis’ own land.

L. C. Pindar testified that Bobert Johnson had bad health, a large family, lived on poor land, and never made but little, if any more than a bare support; that he had known the parties a great many years; that he never knew or heard of Robert selling any property until just before leaving North Carolina; that for several years before Lewis Johnson removed to Arkansas, he was employed by wealthy cotton planters as an overseer, and received good wages therefor; that he saved money, was of good habits, etc.

C. B. Killebrew testified that he had lived in Edgecombe county over fifty years; had intimately known the parties for 20 or 30 years — several of them from their infancy ; that he was intimate with Robert A. Johnson, was a witness to his deeds when he sold his lands; that he was his agent to settle his outstanding business in North Carolina to collect the notes he had left, etc.; that Robert made but little money, etc., and sold no property until just before removing; that he talked to witness about Lewis Johnson having bought lands and settled in Arkansas, and said he was going to sell and move where Lewis was, but never spoke of having purchased lands himself; that from his knowledge of Robert’s business affairs he knew he could not have purchased lands before he sold. That Robert told him that he was Lewis’ agent to collect for him, etc. ; that in 1860, by the ordinary course of mail, witness received two letters from Nelvina Johnson, in reference to Lewis Johnson’s estate, one dated June 19th the other August 16th, which letters he turned over to Mrs. Mary Ricks; that he was of kin to none of the parties unless it was by being a third or fourth cousin to Mrs. Ricks, who was the mother of Henry Johnson’s children.

The complainant, Elizabeth Jones, testified that in 1850, she heard her brother Lewis estimate his property at from five to six thousand dollars; this included a piece of land he had inherited. That her brother Robert acted as Lewis’ agent in North Carolina. At his house in Dec. 1858, she saw him with a thous- and dollars, that he said was Lewis’ and asked her husband how he had best send it, and said there was a good deal more due Lewis; that Lewis had bought land and wanted money to pay for it; that she then saw a letter from Lewis to Robert requesting him to send all the money he had collected; that he had bought land, etc ; that she knew exhibit X, Nos. 1 and 4, No. 2, attached to the depositions of Lewis and others to be in the handwriting of Thaddeus; that she received three letters from Lewis in 1859, exhibits Nos. 3, 4 and 5 ; that Nel" yina Johnson was illiterate, and Thaddeus Johnson was accustomed to write.for her; that Robert Johnson had a wife and nine children to support; was pressed in money matters and he said he was in debt the year before he removed to Arkansas ; that in North Carolina Robert owned a two story frame house, two negro women and two children, several horses, two mules, a lot of hogs, some cattle, some smith and carpenters’ tools, etc.

Lewis Johnson before leaving North Carolina said he was tired of overseeing ; that he had money enough to buy him a good home and was going to Arkansas, etc., and several times, thereafter, he wrote her he had bought lands, but did not ever intimate that he had bought any for Robert; that in 1861, she saw different letters in Thaddeus Johnson’s handwriting, in which he stated that Lewis Johnson’s mother was entitled to all his estate and estimating its value at two thousand dollars. In 1861, Thaddeus wrote to North Carolina that Lewis Johnson’s estate was insolvent; that she knew his handwriting; that she had not seen him write for ten or twelve years, and that he wrote in more hands than one.

Adam Thomas testified that he lived with Lewis Johnson part of the year 1859, and heard him say he had bought the land on which he lived; that he exhibited to witness a paper which he told him was a title bond for his land ; heard him say he had made a payment on the land, but could not say that he said the land was his own, or that it was for any one else; he spoke of improving it.

The letters marked exhibits 3, 4, 5 and 6, purporting to have been from Lewis Johnson, with much other matter, contained the following in effect: They were all dated Dardanelle, Arkansas. No. 6, Nov. 20, 1868: said he had bought 320 acres of land on Delaware Creek, two miles from the Arkansas river, it lies on Stage road, * * * could send anything to New Orleans and not haul over two miles * * * he was boarding with Mrs. Englebright and building him a house, * * * two rooms 18 feet square, etc. ; that he would try this country and did not know that he would ever see them again, * * * he might sell out next fall, etc. No. 5, April 7, 1859. He said he was in great trouble; that he had directed Robert" to send him all his money, and in January he wrote that he had done so, and it had not been heard from, and he never expected to get it; that he bought the land with a view of getting the money and paying for it; went to work in November and worked here to get it fixed up; had a nice frame house, nice garden, had worked harder than ever before, and now if he lost it all, he never wanted to see his relatives again, etc.; that his place was a pretty one, and he would be right well pleased if he could get his money aud have something to go upon.

No. 4. May 25, 1869. He spoke of the money having come; said he had good water and a very pleasant place to live; had ten acres of corn planted, fifteen more cleared to plant; that he was tolerably well pleased with his land and place, and did not know that he should ever go back, etc.

No. 3. October 24, 1869. He speaks of his new ground crop, barn, garden, etc.; said Robert was to come out in the fall, and if he did not, they need not be surprised to hear of his being married in the winter, etc. ; said he would be satisfied to live here if some of his kin and acquaintances were near; that he had a piece of good land, etc.

Exhibits Nos. 1, 2 and 3, except some matters as to the health of the family, etc., not important to state, are as follows :

Exhibit'No. 1. Dardanelle, Ark., February 4, 1861. Letter from Thaddeus to his grandmother. * * “ The reason why we settle the estate without administering is, because it costs so much to administer here; we did it in your favor, not in our own. If I was to administer it would cost you two hundred dollars, and as it is, it will not cost you anything unless you see proper to give us something for our trouble. If we had got any other'person to have settled it in the same way, it would have cost you right smart, for it was right troublesome. I can’t tell you what the lawyers will charge for the writing. I have seen two letters stating, they did not believe it all went to you; the first one was from aunt Elizabeth Jones ; said she did not believe it all went to you ; the other one was from aunt Mary J. Peel to Hollowell, stating she wanted her share of the property, when she knows we wrote, it all went to you, and you could do as you pleased with it. But it looks to me like, they did not want you to have it all. I will speak for myself; I am and have been all the time willing for you to have it, and mother says she is perfectly willing for you to have it,” etc. “ Thaddeus Johnson.”

Exhibit X., No. 2. Letter from Nelvina to C. B. Kellebrew, June 19,1860. * * “I will answer your letter according to your request as well as I can. I cannot tell you all about it, for I do not know myself. Lewis did not have any will at all, and for the land, it was not appraised at all, for he had not paid for it all; there was a note of $500 on it, bearing ten per cent, interest, and the land was held for security until it was paid, and he had not received a deed, so I take up that note and pay off the same as Lewis did for it, and by doing so, I can hold the land. I have to pay over $2,000 for the 320 acres of land, but there is only $1,500 of it to go to his mother, the balance of it on that note and the interest; it has been on interest ever since he bought it. Here is what the property was valued at: Improvements, $181.50 ; one mule five years old, $80; one mule two years old, $55 ; one cow and calf, $12; lot of hogs, $8; corn, 100 bushels at 75 cents per bushel, $82.50; Irish potatoes, 10 bushels, 50 cents per bushel, $5 ; fodder, 800 bundles, $1.50 per cwt., $12 ; one shot gun, $15; for household furniture, he had none; there was a family living with him and he used their things; the $2,000 checks, as my husband sent him he only paid $1,500 of it on the land, and the balance he had to live on it last year and buy his stock. For the meat, we paid for that after we got here; he had sold some of his corn before we got here, for 50 cents per bushel, and he owed over $200, besides his doctor’s bills. I don’t know how much that is ; the doctor has gone to the Baltimore convention ; his store account for last year was $66.45 at one store; at the other store he paid his account himself. We have paid up nearly all he owed except the doctor’s fee. We would not pay the first accounts until we had them sworn to, and taken a receipt for them all. We go by the advice of our lawyer, and he will see as it is all done right. We are bound to work by the law of Arkansas in settling that business. * * Please write me soon as you get this; whether you get it or not, I have your receipt. Yours truly. I will write again in a few days. Nelvina Johnson.”

Exhibit No.. 3. A letter between the same parties, dated Aug. 16, 1860, in which the business of Lewis’ estate is referred to at great length, detailing the reasons for, and amount of his indebtedness, the amount he had paid on the lands, the probable amount of personalty, over the debts of the estate, and showing chat there would be $l,6o0’clae to his mother as heir; stating why she desired to hold the land ; how she proposed to wind up the estate, and how she desired to have certain funds transferred to his mother in discharge of the liability of the estate, etc., not necessary ¡to copy at so great length here.

This is the substance of all the proofs introduced by the appellants on the main issues.

On the part of the appellees, Thaddeus Johnson testified: That the deed exhibited was the deed made by Hollowell to his mother; that she had been in quiet, peaceable, uninterrupted and continuous possession, from the date of the deed up to the present time, holding and claiming adverse to claimants and all others; and that no one had claimed any interest whatever therein until the institution of this suit. That Nelvina paid taxes for the year 1860, and back taxes during the war, and taxes since the war, etc.

That in the year 1858, Lewis D. Johnson, at the request of Bobert A. Johnson, came to Arkansas to hunt up a location for Bobert, and about one year thereafter, he "wrote to witness’ father and mother that he had found a place he thought would do, describing the lands in controversy, and requested Bobert to send out $2,000 to pay for the lands, which amount he sent in drafts; that witness wrote the letter for his father, and two or three months thereafter Lewis wrote that he had received the money and paid $1,500 on the land, and had to use $500 to buy stock and provisions, and to make improvements on the land; that he, Lewis, had no means of his own. That Lewis Johnson did not claim the lands as his own, but when they arrived here, told witness’ father that this was the land he had bought for him, and as soon as he could get up the balance of the money, he had better go down and get a deed from Hollowell. That it was the full understanding in the family, that these identical lands were paid for out of Robert A. Johnson’s money, and the deed was to be made to Nelvina, because her lands had been sold in North Carolina. That Lewis Johnson was a poor man and not able to buy lands; that Lewis stated m a letter that he did not have” means to buy even provisions. That to the best of witness’ recollection he was not authorized by Nelvina Johnson to write that Lewis Johnson or his mother owned or claimed any interest in these lands; he might have stated such a thing in some of his letters to his grandmother, but if so, it was contrary to the facts as they existed then and as they exist now. It might be possible that he intended to state such as a rumor in this country, being young, wild and thoughtless. That he did not recollect ever to have written anything about the property of Lewis D. Johnson; probably he did so as he was a rattling young man. That he was in the habit of writing letters for his mother in 1860 and 1861, and signing her name to them; sometimes he read them over to her, but often he did not do so; that he and his mother paid debts, etc.

Nelvina Johnson testified the same, and fully stated all facts necessary to a defense.'as they were given by Thaddeus; that she never authorized Thaddeus or any one else to write or state to the mother of Lewis, or any one else, that she or Lewis ever had or was entitled to any interest in said lands; that she never knew any such letter was written until a short time ago ; that she never told any one that she and Hollowell had arranged for her to get a title to the land upon the payment of the balance of the purchase money, nor had she ever represented that her children were the only heirs of Lewis Johnson; that in 1860, she paid Hollowell $500 and interest thereon, of her own money; that at Lewis’ death he had no money; that he was poor, etc.; that she never had any letters written to any one in North Carolina about Lewis’ estate; that her children wrote what they chose to write without authority from her, and some of them may have written about family matters; that C. B. Killebrew was her husband’s agent in North Carolina to collect his notes, etc., there, and if she ever got any letter from him she did not recollect it.

Green B. Johnson testified, substantially, to the very same facts deposed to by Thaddeus and his mother. He states that when Lewis left North Carolina he had no money and only one old buggy, one saddle and sixty or sixty-five acres of land; that Lewis was poor, etc., that he came to Arkansas as agent for witness’ father; bought the land with his money, etc., etc., the same as stated by Thaddeus.

. William D. Jacoway testified that he heard Lewis Johnson say his brother Bobert desired to buy a farm in Arkansas to move to, and when Lewis examined the lands in controversy, he heard him say he would write to his brother and give him a description of the lands and terms of sale, and he thought the place would suit him, and if so, his brother would send him the money to purchase the land, and afterward he said his brother had concluded to take the land, and afterward again he said he had bought the land for his brother Bobert. After the purchase, he knew Lewis recognized the land as Bobert’s, and frequently spoke of it as his, and expressed an anxiety for him to arrive, so a deed could be made to him. Witness regarded Lewis as a man of very limited means; that he went poorly clad, and died in debt.

Mrs. Ellen E. Gulley, the sister of witness Jacoway, and formerly the wife of Hollowell, testified to having heard Lewis D. Johnson making statements -in regard to the lands substantially the same as those deposed to by her brother. She testified that she never joined with her husband, Hollowell, in making any deed to Lewis Johnson, but she and her husband deeded the lands to Nelvina Johnscin.'

And this was, in substance, all the appellee’s proofs upon the contested points. Upon which pleadings and proofs the court found against appellants, and decreed that their complaint be dismissed for want of equity, and that they pay costs; from which decree they have appealed.

The examiners wrote down with the testimony, some matters of hearsay, statements in letters, etc., too remote to have any weight here, and the record shows such illegal evidence had none with the chancellor below.

The case exhibits the passion and prejudice of family quarrels, and presents the delicate duty of weighing testimony not reconcilable.

At law, where the facts are found by the jury, the appellate court is relieved by the. rule that verdicts will not be disturbed when there is evidence to support them; reasons exist for this rule; witnesses are there brought face to face before the jury; they can see their demeanor, learn of their intelligence, hear them examined and cross-examined, judge of passions and prejudices that may prompt them to act, that corrupt their statements or bias their conclusions, and thus will determine the knowledge, fairness and integrity of each witness.

This rule cannot apply in a court of equity. All the testimony is committed to writing and submitted to that court in the same form and the same words that it is to this; hence the appellate court must pass upon the admissibility and weight of the testimony in the same manner that it should have been considered by the court below.

Mrs. Jones denied all ill feeling toward Nelvina Johnson, but the tenor of her testimony tended strongly to show that she believed that she had strong grounds of complaint. In speaking of Lewis Johnson acting as an agent, she expressed herself in terms stronger than the facts demanded, and many of her details were more particular than fairness required; hence allowance may be made for prejudice in the case.

The testimony of Englebright was clearly subject to severe criticism. He asserts facts as well known, about which it seems he could not have had absolute knowledge. He showed a readiness to disclose everything that favored the appellants, and detailed statements as facts not consistent with experience. He admitted he had been paid $65 for coming, etc. He asserted positively that Hollowell and wife executed to Lewis Johnson a warranty deed, but he only saw the word warranty in the caption and the signatures at the conclusion, and while he read this he was riding on a trot; yet he says he is positive the deed conveyed 320 acres 'of land; he is' positive Ellen E. Hollowell signed the deed; she swears positively she did not, and it seems Lewis never wrote he had a deed, and no one else pretends’he had one, and Thomas testified that Lewis showed him a paper that he said was a title bond to these lands, a fact not consistent with a statement that he then had a deed. Englebright said Lewis told him he owed nothing, had paid for his land, and had money left; no other witness corroborates this; several contradicted it; and the circumstances tend to show it was not true. He asserts that Kimball cashed the checks; Kimball testified that he did not. In other things, he states strongly, and his evidence is entitled to very little weight.

The testimony of Mrs. Ricks is not marked by striking inconsistencies with much other testimony or established facts, yet is? hows a diligence perhaps for the good of her children, about equal to those directly interested, and like Mrs. Jones, she is elaborate in details of admissions made by parties then in interest and hence may not be free from bias.

Eor the defense, Nelvina Johnson and her sons set out with a declaration y>f title in her and an assertion of actual, continturas, uninterrupted and adverse possession in phraseology more like an attorney’s pleading than the statement of witnesses illiterate as some of them are shown to be, and, on material points, they all state very strongly and use words nearly the same. She testified she had such possession from the first of the year 1860, when Lewis did not die until in March of that year. One of the others testified that no one ever disputed their right or possession up to the present time, etc. They state very fully, that Lewis came to this state as Robert’s agent to buy land; that he bought with Robert’s money; that he wrote different letters to Robert, concerning the purchase, etc. They produce none of these letters nor do they "account for their absence. They all state that it was the full understanding in the family that Lewis acted only as Robert’s agent; that the whole $2,000 sent was Robert’s ; and that the lands were exclusively his, but no one else is produced whoever heard this mentioned among the family; and, except their lawyer and his sister, no one testifies to any declaration of Lewis or Robert, either before or afterward, tending to establish such facts. Why did no friend or neighbor, before or immediately after their deaths, hear this, and if so, why not produced when strong proof is offered to destroy that hypothesis? They say, only $1,500 of that $2,000 was paid on the land ; yet no claim is set up for the other $500, or for the supplies and stock said to have been purchased with it, and the stock by Nelvina’s direction was appraised as a part of Lewis’ estate. In different ways they swear tó the value and liabilities of Lewis’ estate, and no one of them pretends to charge that estate with any part of that $500, nor do they show that Robert ever claimed or received any part of it back, and, indirectly, they show that he did not, because they show that Lewis was poor, had no money at and before the time they came here; that he wrote Robert that he did not have means even to buy provisions. They assert that Lewis was poor, but, except the statement of Green that when Lewis left North Carolina he had nothing but an old buggy and saddle and 60 or 65 acres of land, which it appears was unsold, they do not state what he had, or why they regarded him as being poor. They assert that the $2,000 was Robert’s, notwithstanding that is emphatically denied, and proof made to show that he was unable to pay so much. They make no attempt to show that he had money, or how, when or where he procured that large amount. If Robert handled very little money, as strongly stated by the opposing testimony, he could not usually have raised $2,000 without making traces that could have been testified to. The proof clearly shows that he made no sale of his own property until several months after the payment was made to Hollowell, and is almost conclusive that he did not have the money of his own, and if, by borrowing or other extraordinary means, he procured it, it is strange no proof of such fact appears.

One of the appellants testified that Lewis probably had $5,000 in means, and they produced Neflea, Pindar and Killebrew, who had lived fifty years in the neighborhood of the family connection, and seem to be men of character, who testified that Lewis was of good habits, frugal and industrious, and that for several years before he left North Carolina he was employed at high wages as an overseer, and the defendants in no way show what became of his means, but assert he was poor.

Appellants not only swear directly against appellees, as to Robert being agent for Lewis to collect money, etc., and that the $2,000 sent was Lewis’ money ; but they show by these old citizens, who seem disinterested, intelligent and credible, that Robert many times asserted that he was collecting for Lewis, and that this was Lewis’ money, and he asked advice as to remitting, etc., and claimed no interest in himself.

■ The appellees assert that Lewis wrote to Robert and wife that he had contracted for land for them, etc.; that he had no money; that they must send money to pay for the lands, etc., and important as such letters must have been, none are produced or accounted for, and no one outside of themselves ever saw them.

In addition to the testimony of Neflea, Pindar, Killebrew and others as to Robert’s admissions, that he had no sufficient means, etc., there are the powerful admissions of appellees made soon after Lewis’ death, in part testified to by witnesses, but more strongly shown by letter. Nelvina’s letter to Killebrew, and Thaddeus’ letter to his grandmother, state what they then considered their liability to Lewis’legal representatives, giving it at the value of the personal estate over the debts and the $1,500 paid on the land, equal to $1,650. They seemed fully under the impression that the title of the land was vested in Nelvina, but that she would have to repay the $1,500 Lewis bad paid on the lands, and in corroboration of the statements made in the letters, it was proved that Nelvina had the personal property appraised, and said there would have to be an administration, etc., that she had arranged for title to the land, etc.

Nelvina and sons testify that Lewis did not claim the lands ; this is contradicted by several letters written by Lewis to his near kin, by the testimony of Graves, Englebright and Thomas, as well as the admissions in those letters as to what Lewis had paid. Nelvina denies knowing that any letter was ever written in her name concerning Lewis’ estate. Thaddeus denies any recollection of ever writing such letters; when the letters are produced he admits his handwriting in some; as to one he does not fully admit or deny- — there is proof of the handwriting, and that the letters were received soon after their date by due course of mail. The strongest of these letters were to Killebrew, who wrote for information, and who was the friend and selected agent of Bobert'Johnson. ' Thaddeus was in the habit of writing for his mother in 1860 and 1861, and these letters written at that time on such business, and some of them in response to inquiry, raise a strong presumption of their genuineness; but a stronger evidence is that they contain statements of facts, circumstances and business transactions, as they likely would have occurred; what is written of the estate is consistent with all the testimony since produced, except what is in defendants’ depositions as referred to, and Nelvina’s explanation is inconsistent with ordinary experience in such cases. She admits the plaintiffs are heirs of Lewis Johnson, and that she undertook to settle his estate by taking his property and paying his debts without authority from any court, but says she never had any letters written to any one in North Carolina concerning his estate. Now we cannot suppose that any one, who was designing to deal fairly with the other heirs, would dispose of the property and pay out some hundreds of dollars of debts and never write to those concerned, or answer inquiries made by them. We cannot assume that she did not wish to- disclose the facts, because she denies all fraud and concealment, and declares that she was acting for the good of the estate. To further avoid the force of the letters produced, she says her children wrote what they •pleased, and “ they may have written about family matters.” This reads like a subterfuge.

Thaddeus still lived in the family; was accustomed to write her letters; he must have understood the claims of the family to property as she spoke of them. If he stated what was understood in her family, she ought not to complain; if he thus stated falsehoods, when he knew they- yrere. such, he not only inj ured his mother, but convicted himself of such deliberate lying as to render him unfit to be a witness. But to suppose that a son, who always had the advice and’ confidence of a mother, would falsely and deliberately write that the mother had effects to which she was not entitled, and thus stir up ill feeling and trouble between her and his grandmother, and to the damage of both, would be so inconsistent with nature, humanity and common experience, that while any other conclusion can be had, we cannot so believe.

Nelvina says, to the best of her recollection she never wrote to Killebrew, who was their agent, etc.; this is not only contrary to business experience, but contrary to what Killebrew .swears.

In further avoidance, Thaddeus deposes that to the best of his recollection, he was not authorized by Nelvina to write that Lewis or his mother ever had any interest or claim in these lands; that he did not remember ever to have written anything about Lewis’ property, but he might have done so, as he was a rattling young man ; ” that he was in the habit of writing letters for his mother in 1860 and 1861, and he sometimes read them over to her, and often he did not. Now whether he means to convey the idea that he was in the habit of forging his mother’s name to what he had written, that was not directed or approved of by her; or whether he wrote what she requested him to do, and then signed her name without reading to her, is not so clear. If the latter, it was as much her letter as if she had penned it with her own hands; if the former, he was guilty of such crime as would disqualify him in court. He admits his handwriting in the letters, but virtually denies what is contained in them; yet he says he may have stated in some of his letters to his grandmother that she had an interest in these lands, but if so, it was contrary to the facts as they then existed, and as they now exist; being young, wild and thoughtless.” Now, how a boy, and much less a man, could be so “ wild and thoughtless,” as to ■deliberately write to his aged grandmother that which he knew to be absolutely false, especially when what he was writing was calculated to involve both his grandmother and his own mother in trouble and costs, seems to us more than “wild thoughtlessness ” could produce; and in that same letter he declares to the grandmother that he was and always has been her friend, and in favor of her having all the property of Lewis’ estate, and so also was his mother. These things were evidently written; admissions are made that put their forgery out of the question. If true, they should abide by them; if untrue, they were stranger than all fiction — deep dyed falsehoods, with all reason to the contrary.

Upon a careful searching out of all that relates to the questions finally at issue, and weighing it by all the tests known to the law, we are of opinion the evidence greatly preponderates in favor of the appellants.

We do not seriously doubt whose money paid for the lands; the testimony of Nelvina Johnson and her sons is so strangely contradicted by their own letters, by Lewis’ letters, by the appellants’ and much other testimony, and they have no corroborating testimony to give them support, except that of Jackoway and his sister, who testify what they understood from Lewis’ conversations. Their evidence is entitled to weight, but standing entirely alone, except as .above stated, with full credit, it is not sufficient to balance the mass of testimony produced by the other party upon the same points. This evidence (and so of some of the appellants) is of a class weak in itself — a statement of the memory or opinion of one upon casual conversations is never to be regarded as powerful evidence, and upon this point, more witnesses declare Lewis claimed the lands, and a number of his letters, written to those who were entitled to his confidence, set up his ownership in the lands, and they must prevail over the oral declarations as understood by Jackoway and sister.

Whether limitations run between these parties need not be discussed, as this suit was, in any event, brought in due time.

The supreme court of the United States, in more cases than one, have held that limitation did not run during the late civil war. Hunger v. Abbott, 6 Wal., 542; The Protector, 9 id., 687; Levy v. Stewart, 11 id., 244; id., 493; id., 508. And this court in the case of the Metropolitan Nat. Panic of N. Y. v. Anderson Gordon, not yet reported, followed that ruling.

So after a most careful consideration, we have arrived at a different conclusion from the léarned chancellor who tried the cause below.

The defendants sufficiently show that the debts of Lewis’ estate, paid by them, were about equal to his personal property. That property was not administered according to law, and they were liable in law to its conversion. Yet the appellants acquiesced therein for a long period, and then called the parties to account only in a court of equity, where equity must be done as well as demanded; therefore, without scrutinizing closely for small differences, the personal estate of Lewis will be set off against the debts paid by appellees.

It appears that the improvements by Nelvina and her family, made upon the lands, were over the value of the rents and profits; in fact the case is very loosely made in alleging and proving rents and profits. The counsel appears to have lost sight of this in establishing a right to the land. Nelvina voluntarily held possession of the lands, without right, only in so far as her children were heirs of Lewis Johnson; she cannot lawfully demand pay for betterments put thereon without the knowledge and consent of the other heirs, but as her children had an interest in these lands, remained thereon, and she and they did not unlawfully enter into possession, they could hold the same until partition was made, and while thus tacitly holding, they may be allowed to set off improvements against rents and profits, but improvements not made with the knowledge and consent of the other heirs cannot be charged against the body of the estate.

And inasmuch as Nelvina saw fit to complete the payment for the lands under Lewis’ purchase, the title executed to her must be considered as held in trust for Lewis’ heirs; and upon the strongest equitable construction in her favor, she cannot be allowed more than the $500, advanced by her as a part of the purchase money, and the interest that had accrued thereon before it was paid; and this cannot, thereafter, bear interest, because the $1,500 paid by Lewis would be equally entitled to interest, and both will be treated as an investment.

We find that these lands were purchased by Lewis D. Johnson, for his own use; that $1,500 of the consideration was paid out of his own money, and that $500 and interest thereon from date of sale until April, 1860, was paid by Nelvina, out of her money, and that the deed wms executed by Hollowell and wife to her in trust, etc.; that the lands cannot equitably be divided, etc.

The decree of the court below is reversed and the cause remanded with directions to that court to decree the title of the lands to the heirs of Lewis D. Johnson according to their respective inheritance, under the statute laws of this state; that a commissioner be appointed and ordered to sell said lands upon such reasonable time as may be deemed best, not less than is given for redemption in ordering judicial sales; that purchasers be required to give good security and the title withheld until full payment is made. That next after the payment of costs of sale, that $500, and what interest accrued thereon up to April, 1860, be paid to Nelvina Johnson, except the reservation of the costs decreed against her, and all the remainder distributed according to the interest of the respective heirs of Lewis D. Johnson. That all the costs of this suit, to this date, be decreed against the defendants; and such commissioner be required, under sufficient bonds, to faithfully demean himself, make due reports, settlements, etc.


author: Stephenson, J.

text:
    Pence vs. Sandford et al.
    Swamp and Overflowed Lands : What certificates not a sede of.

    Certificates issued by tbe board of swamp land commissioners, under ordinance nine, were not a sale of tbe land, but simply evidence of an application to purchase, which the commissioners might subsequently accept or reject, and such certificates secured to the holders no right as against any other purchaser who adopted legal means in securing his lands.
    APPEAL from White Circuit Court.
    Hon. John Whytock, Circuit Judge.

      Coody and Gallagher, Newton & Hempstead, for appellant.

      B. D. Turner, for appellee.
   Stephenson, J.

This suit was brought on the chancery side of the White circuit court, at the fall term, 1859, by Robert W. Sandford, the father of the present appellees, to set aside and cancel the patent certificate by virtue of which the appellant claimed and held possession of the northeast quarter of section five, township five north, range six west, and for possession thereof.

The title which the Sandfords are attempting to assert rests upon the patent certificate of the state land agent of the Little Rock district, issued on the 15th of April, 1859. To enable them to succeed, however, it is incumbent upon them to get rid of a similar certificate issued to Pence, by the same office on the 12th day of April, 1859. This they attempt by showing that Robert W. Sandford, the original complainant, on the 28th day of January, 1858, filed an application with the sub-commissioners of the swamp land offices at Pine Bluff and Helena to purchase the lands, by virtue of which application he obtained a priority of right which in a court of equity can be successfully asserted against the certificate of Pence — on the ground that, although the certificate he produces is three days the junior of that of Pence, vet by relation his right to the land dates to January 28, 1853, the date of his application to the subcommissioners of the swamp land office. In order to understand fully the character of this equitable claim of the Sandfords, as well as to learn why and how the land agent should issue two patent certificates for the same land, we are necessarily compelled to go at some length into that bundle of confusion known as the swamp land laws.

The congress of the United States, on the 28th of September, 1850, granted to the state of Arkansas all the swamp and overflowed lands of the state, to aid in constructing the necessary levees and ditches for their reclamation. The act also directs the secretary of the interior to ascertain the lands em-raced within the grant and report the same to the governor, and at the request of the governor therefor, direct that a patent shall issue. To enable the state to avail herself of the benefits of this grant the legislature passed the act of January, 1851, which provides for a board of three swamp land commissioners, and defines their duties to be: First, to fix the price of the swamp and overflowed lands donated to the state under the act of congress ; second, to determine the locality, extent and dimensions of the necessary drains and levees, in order to reclaim the lands; third, to classify said lands, and to let out the making of said levees and drains by contract.

Sections 4,'5 and 6 provide the mode of payment for work done, which shall be in lands reclaimed, or in scrip, representing quarter section tracts, which the contractor or his assignee might locate on any unappropriated swamp lands the contractor or his assignee might select. These selections being made and the numbers reported to the board of commissioners, it was made their duty to give to the locator a certificate, upon which the governor was directed to issue a patent.

Pursuant to the above act, and the supplementary act of January 15, 1851, the commissioners proceeded to lay off the state into land districts and open an office in each, for the dispatch of the business enjoined upon them. For the regulation of the board, as well as to guide those having business with them, they adopted a series of ordinances, by which their operations were governed. These ordinances run through and cover the transactions of the board from March 6, 1851, to July 25, 1855.

Ordinance 6, adopted October 14, 1851, provided for the opening of an office in each land division of the state, for the sale of the swamp lands, and the appointment of a subcommissioner to take charge of the same. Among the other prescribed duties of the subcommissioners, they were required to fill up certificates for purchasers, “ to which certificates the name of each individual commissioner must be affixed in his own proper handwriting, and the same countersigned by the subcommissioner; and the certificate, when so signed and countersigned, shall entitle the purchaser to the land so bought and sold.”

This ordinance is a substantial compliance with the sixth section of the act under which the board was proceeding. The law required the board to issue to the locator a certificate, upon which the governor should issue a patent. The additional requirement of a countersigning by the subcommissioner neither added to nor diminished the value of the paper. Ordinance 6 was, on the 9th of January, 1852, repealed by No. 9, which provides that the secretary of the board, or the commissioner in charge of any division, “ shall' issue certificates to all persons who may apply for lands at their office, where the scrip or a duly authenticated account for work done is filed with the same,” Upon the presentation of which certificate to the board of swamp land commissioners, when the lands therein described are confirmed to the state, if said certificate is found correct, the holder thereof, being the original applicant, shall receive a full certificate of purchase for the lands described in said.certificate.”

Sandford’s certificate of 1853 was evidently issued in pursuance of the provisions of this ordinance. Was it such a compliance with the law governing the commissioners as would entitle the holder thereof to the land embraced in it, to the exclusion of all other persons ?

It would seem from the act creating the board of swamp land commissioners, that the chief use the state had for them was to construct levees and ditches, in order to reclaim the swamp and overflowed lands granted her by the general government. To carry out this object they were vested with plenary powers and large discretion. The mode of payment for the work is only incident to the chief object in view; and although that devolves by the act • on the board, the legislature have prescribed specifically how it is to be done. It re-requires the performance of a purely ministerial act, with no discretionary powers, and must consequently be strictly pursued. Hempstead v. Underhill, 20. Ark., 358.

The state entrusted to them the selection of the lands, the location of the levees and drains, the amount of work necessary to be done, the letting of contracts, etc. It was their duty to perform all of these things in such manner as in their judgment would best promote the interest of the state; they were also to see that the work was properly constructed according to contract. That done, their discretionary powers ceased. The law required the commissioners to give the certificate of location, and they alone are authorized to give such a paper as would entitle the holder to take the land, to the exclusion of another. Phillips v. Cheutham, 23 Ark., 87. The board, however, by ordinance nine, provides for a certificate wholly unknown to the law under which they acted. The certificate, which they propose to be given to the applicant, in no way answers the purposes of the act. It is simply an application to purchase, which must be presented to the board after the lands have been confirmed to the state; when, if found to be regular, a “full certificate,” as contemplated by section 6 of the act of January 6, 1851, should be issued. Gaster's Heirs v. Gaines, 23 Ark., 713. It may be presumed, in favor of the board, that their object, in making this provision, was to prevent hardship and confusion, in case any of the lands selected should not be confirmed by congress. But this desire to avoid trouble cannot be held to be such an excuse as would justify a ministerial officer in setting'aside the plain letter of the statute; and it must follow that the holder of a certificate, issued under the provisions of this unauthorized attempt at legislation on the part of the board,, secured no rights as against any other purchaser who adopted legal means in securing his lands.

The right to postpone the issuance of their certificate until the lands should be confirmed to the state can no where be inferred from the act. Indeed, the history of the law, as well as its text, directly contradicts any such presumption. The act was passed, and all the machinery for the construction of levees and drains, and the sale and disposition of the land, set in motion before the confirmation. In fact one of the duties of the board itself (section 15, act of January 6, 1851) was to ascertain the lands confirmed, and it is very clear to our minds that the legislature intended that the work of reclamation and the sale of the lands should proceed independent of the confirmatory act of the general government. We can very readily see, as the board seems to have done, that serious conflicts would in all probability arise should any of the lands so sold by the state fail to be confirmed as swamp and overflowed lands, but it was no more the business of the board then to provide against such a collision than it is ours now.

If they acted at all, they must do so under the law creating them a board and prescribing their duties. They were not clothed with power to legislate a remedy for evils growing out of the execution of the law. Deloach v. Brownfield, 22 Ark., 348.

Ordinance No. 9 has not been without its full fruitage of mischief, and this is not the first time this court'has been called upon to settle contests arising from it. The legislature also — doubtless with a view to secure the lands to the citizen who in good faith had deposited his money or scrip in this way — has attempted, as far as it could be done without trenching upon the rights of others, to cure the evil. By the act of January 20, 1855, it is provided that “ All persons holding any certificate or certificates which may have been issued by the swamp-land commissioners or any one of said commissioners, or by any one acting under and by authority of any such swamp-land commissioners, shall present such certificate or certificates granted as aforesad for any tract or tracts of swamp and overflowed lands to the land agent for examination; and should the said land agent find by examination of the records of his office, that the tract or tracts designated in said certificate so presented have been confirmed to the state, as part of the grant of swamp and overflowed lands, and that the proper number of acres has been paid for, and there is no conflicting claim thereto, to issue a patent “ certificate to and in favor of the original holder of the surrendered certificate.”

It is very evident what the legislature intended by this act. It simply means that any holder of the certificates mentioned shall present the same to the agent, and upon proof from his books that the land has been confirmed to the state, the proper number of acres actually paid for, and that there is no conflicting claim thereto, he shall be entitled to a patent certificate without again paying for the land. In other words, that they will allow the person who has in good faith paid his money to the board, or any one of them, or any one acting by or under their authority, to purchase the laud without additional cost, provided the land has been confirmed, paid for, and there is no conflicting claim thereto.

It is contended by appellees’ counsel that, granting the certificates of Secretary Butts and Subcommissioner Walker do not give the Sandfords a vested right to the lands, the irregularity of their issue is cured by the act quoted above, and those of January 15, 1857, and February 17, 1859. We do not think they can be made to bear that construction. The first of these acts includes within its provisions not only the irregular certificates, but those of the board issued in accordance with law. Now it is clear to our minds that the holder of a certificate from the board, issued by them in conformity to the 6th and 8th sections of the act of January 6, 1851, secures a vested right to the lands which cannot be taken away by the legislature, provided there is no pre-existing claim to the land. We do not, however, controvert the right of the legislature to provide a limitation of the time in which these certificates shall be presented for a patent.

• It seems to us that the more probable reason for the passage of the act of January 15, 1857, was to correct this error in the act of 1855, which includes these regular certificates of the commissioners issued in conformity to law.

The act of January 15,1857, is as follows: “ That the entry of swamp and overflowed lands, made in accordance with 'the fifth section of an act to provide for the reclaiming of the swamp and overflowed lands donated to this state by the United States, approved January 6, 1851, be, and the same is hereby, confirmed ; and in all cases where such lands were entered before the old board of swamp land commissioners under said section, and are still unconfirmed to the state, the person or persons so entering or holding the certificates by assignment or transfer shall have a preference right, provided the holder be a citizen of the state, to reenter said lands as soon as the same shall be confirmed to this state for the space of sixty days from and after public notice is duly given of said confirmation by the jrroper land agent for the district in which such lands are situated, and not thereafter.”

This is no more of a curing act than that of 1855, above quoted. (Deloach v. Brownfield, supra.) Neither was it intended to be, its obvious intent being to fix a period of limitation beyond which, in case of a failure on the part of the holders of certificates issued, in accordance with the sixth section of the law of January 6, 1851, the right to dispose of the lands should revest in the state. It is very clear that the holder of a certificate, issued in conformity with law, needed no curing statute to enable him to take the land; and as no other class is mentioned in the act, we must conclude, to give the statute airy meaning at all, that it intended to do just what it does — prescribe a limitation to holders of legal and valid certificates.

If the legislature intended by this act to cover all certificates issued prior to its passage by the board or either of them, or any one acting by or under their authority, why did they not use language as broad and ample for that purpose as that used in the act of 1875 ? "Why particularize the entries made in accordance with the fifth section of the act by and before the board under said section?

The act of February 17, 1858, has no applicability whatever to this case. It provides a course of procedure for the applicant for lands which have not been confirmed at the time of said application. From these conclusions it must follow that the application of Sandford made to the officers at Pine Bluff and Helena secured to him or his assignee no right which could avail him as against the homestead of Pence made in 1856. The time when this homestead was proven up is not definitely shown by the proof, but we must- presume that it was done within the time allowed by law, as he appears subsequently to have been allowed a patent certificate on it; and the granting of this certificate by the land agent on the 12th day of April, 1859, three days before the grant of a like certificate to McCauley, must be held superior to the latter.

When we consider the confused state of the business pertaining to the landed interests of the state prevailin g at the time, we can see how easily the agent could commit the error of granting two certificates for the same land. The law directed him to take the books and plats furnished him by the audit- or as his guide in issuing patent certificates. These books contained a description of all the swamp and overflowed lands of the state, and, as appears from the proof, at the time Pence made his application, these books showed the land subject to entry. A copy also of the report of the commissioners of lands disposed of by them was furnished him by the auditor, which report contained the same tract reported sold to Sand-ford. Yet going by the auditor’s books, as required by law, he issued the certificate to Pence. Upon the application of McCauley, and the presentation of the Butts and Walker certificates, lie directed bis inquiry to a different channel, and, without the precautionary act of examining both sets of books, be was led into the error of issuing a second certificate.

The decree of the White circuit court must, for the reasons we have stated, be reversed, and tbe prayer of the appellant’s cross bill granted. It will be decreed by this court that tbe patent issued by the governor, on the — day of — , 1859, to the heirs and legal representatives of Robert W. Sandford, the original complainant herein, be set aside and held for naught; that .the appellant be quieted in his title and possession of the northeast quarter of section 5, township 5 north, range 6 west ; and that the appellees pay the costs of this. suit.


text:
    Oats vs. Walls.
    Register Laws : What constitutes filing under, ete.

    To secure a party his full rights under our registry laws, the substantial act to be done is to take the writing or instrument and cause it to he placed on file, for record, in the office where such instruments are to he recorded, and to pay the fees allowed by law for recording, and such deposit may he made with the person in charge or custody of the office ; and being so deposited, with one having the control of the office for the time being, it does not devolve on the party to show that his deed or instrument was put in the hands of the recorder or a regular deputy; the one in charge, and performing the duties of the office, has sufficient authority for such purpose.
    APPEAL from Monroe Circuit Court.
    Hon. M. L. Stephenson, Circuit Judge.

      Rose & Green, for appellant.

      Hughes & Smith, for appellee.
   Gregg, J.

Oats brought replevin for certain cotton in the possession of Walls; the particular cotton, its value, its possession by Walls, etc., were agreed upon. The only question was the rights of the parties under certain mortgages from Aleck Bennett.

In June, 1870, said Bennett duly executed a deed of mortgage to the appellant Oats, upon the cotton in controversy.

On the 28th of that month the appellant took this and certain other mortgages of his to the proper clerk’s office to have them recorded. He found Calvert, a young man, alone in charge of the office; he did not know the clerk or his deputy, and supposed Calvert was the proper person to receive deeds for record; he made no inquiry as to his authority or about the clerk, but stated he wanted his mortgages recorded. The young man took them, indorsed on them the date of the filing, signed the clerk’s name thereto, made up the amount of fees for recording, which appellant paid him; he put the mortgages in the place in the office where unrecorded deeds were kept for record. The appellant supposed all was right, and left; and made no further inquiry about his mortgages’ until about the last of January or the first of February, 1871, when he sent by one Jackson for his mortgages at the clerk’s office. Jackson returned a package enveloped, and told him those were his deeds, which he placed in his desk without examination, supposing thej^ had been recorded and returned to him.

In April following, appellee told appellant that he had no valid mortgage on Bennett’s cotton, etc., when appellant for the first time examined the package and found there was no certificate of record upon the mortgage that included Bennett’s cotton. He then took it out of the package brought by Jackson and sent it back to the clerk’s office for record, if not already recorded. On the day following, the 11th of April, he applied in person to the clerk to enquire into the matter, and the deed was lost or mislaid, and after repeated searches it was not found for ten or twelve days; the clerk then recorded it on the 22d of April, 1871, and indorsed the usual certificate of record that the mortgage was filed for record on the 28th day of June, 1870, and recorded on the 22d day of April, 1871, etc. And he also wrote on the deed a certificate, not under seal but signed by him, that “ this deed of mortgage was taken out of the office and was not recorded on that account and not returned by Mr. Oats until the 10th day of April, 1871, at six o’clock in the evening.”

In January, 1871, the appellee went into the clerk’s office and inquired if there was any mortgage recorded or on file, from Bennett to the appellant; the recorder examined and could find none, and the appellee did likewise ; afterward on the 11th of January, 1871, Bennett duly executed to him a deed of mortgage embracing this same cotton, which mortgage on the next day was filed in the office of the clerk for record, and duly recorded and certified to on the 10th of April, following ; on that day he again inquired and had search made and the clerk told him there was no such mortgage recorded or on file.

The appellee then bought the cotton from Bennett for $387, which Bennett owed him, took a bill of sale for the cotton and took it into possession.

On the same day the clerk gave him a certificate under the seal of his office, that the mortgage given by Aleck Bennett (colored) to John T. Oats was left in his office by the said Oats, and as soon as filed, he, the said Oats, called for the deed and took the same from the office, and that there was no such mortgage on file or of record in his office, etc.

On this same day the appellee told appellant that he had no valid mortgage, etc; that appellee had bought the cotton, etc.

It appeared that young Calvert was a stepson of the clerk; that he had been employed to write in the clerk and recorder’s office since January, 1869; but that he had never been appointed a deputy, and he was not authorized to mark the filing of papers or to sign the clerk’s name; that be was alone in the office when the appellant brought the mortgage in, etc.

' The appellant’s mortgage never came into the hands of the clerk or his regular deputy, and neither of them knew it was ever filed in the office until the 10th of April, 1871.

Both appellant and appellee had.valid subsisting demands to the full worth of the cotton, against Bennett, and the question is one of diligence — who had priority of right.

By section 2, chapter 117 of Gould’s Digest, p. 799, “Every mortgage, whether of real or personal property, shall be a lien upon the mortgaged property, from the time the same is filed in the recorder’s office for record, and not before, which filing shall be notice to all persons of the existence of such mortgage. ”

Upon this law and the state of facts as given, we are called upon to decide wlnx — Oats or Walls — first obtained a lien upon the cotton in controversy.

Our own court, through Justice Bennett, in the case of Harrison & Stewart v. Lewis, Commissioner, 27 Ark., 154, said:

“ The certificate of entry now before us was issued in strict conformity to the above enactment, with the exception of making a note of such entry on his township maps, and in his books to be kept for that purpose. It is a well established principle that when an individual, in the prosecution of a right, does everything which the law requires him to do, and he fails to obtain his right by the misconduct or neglect of a public officer, the law will protect him.” Lytle v. The State, 9 How., 333.

In the United Stales v. Castillero, 2 Black, 97, the supreme court of the United States say: “ Besides, it is a universal rule that omissions, by a public officer, in the mode of complying with forms prescribed to him as his duty, are not permitted to affect the party.” Nichols v. Reynolds, 1 R. I., 36.

In 5 J. J. Mar., 558, it is said the mistake of the officer ought not to prejudice the rights of the parties. To the same effect, see Merrick v. Wallace, 19 Ill., 486; 3 Pet., 338.

That the grantee was only bound to properly file his deed for record, and thereafter it was the duty of the clerk (for the performance of which the clerk alone is responsible) to note the filing and enter it upon the record, is in effect held by the above and other cases. In the case of Merrick v. Wallace, supra, the court said: “ But assuming the deed was not properly recorded in the first instance, we then say it was sufficient the deed roas left for record by the grantee; he performed his whole duty by so leaving it with the recorder,” etc. They-say: “The statute law in force at the time required that the deed be filed for record in the county where the lands lie. * * To the statute alone must we look for a purely statutory right. All that this law required of the grantee in the deed was, that he should file his deed for record in the recorder’s office, in order to secure his rights under the deed. When he does that, the requirements of the law are satisfied, and no right to claim this forfeiture can be set up by a subsequent purchaser.”

The next question is, Was Oats’ deed legally filed for record —• filed at the proper place and with the proper person ?

This court in the case of Bettison v. Budd, 21 Ark., 580, declared that “ the filing of a paper does not consist of the marking put on it by the clerk, but in placing it as a permanent record in the office or case where it belongs.” See also 12 Ark, 64; 7 id., 469; and 6 id., 210.

In these cases it is clearly held that the filing of a deed consists in placing it where it should be for recording; what is thereafter to be done to complete the record is the clerk’s duty, and, as above shown, is not to go to the prejudice of the deed. 1 Root Con., 500.

Did the failure to note the filing and to spread the mortgage upon the record cut off the statutory and constructive notice to subsequent purchasers, and thereby give such purchasers a good title, and leave the responsibility of the failure between the clerk and the first mortgagee ?

In case of Merrick v. Wallace, supra, the court said: “ If it (the mortgage) was not properly recorded after the grantee-had left it to be filed for record, and, by reason thereof a subsequent purchaser is misled, he surely has no right to say the first purchaser shall suffer by this omission of the recorder to perform his duty. * * He must seek his remedy against the recorder.”

In the case of Bosley v. Ellis & Allen, 1 Randolph, 106, in speaking of recording a mortgage, the supreme court of Virginia say: “If there is any defect in the notice when searched for, the subsequent purchaser, perhaps, has his remedy against the clerk, if it was his duty to make it perfect. * * The appellant being compelled by the act to lodge it with the clerk, his loss of it would more properly subject him to the action of the subsequent purchaser in the event he sustained damage.”

Finally, was the delivery made to Calvert a sufficient filing?

In the case of Bosley v. Forquar, 2 Blackf., 63, the supreme court of Indiana held the court below was correct in charging the jury that, “ if they believed from the evidence that Bindley did act generally as the deputy of Bosley, and with Bosley’s knowledge and consent, that Bosley -was responsible for his acts.”

In the case of Bishop v. Cook, 13 Barb., 327, where there was a vacancy in the office, the court said: “ One Estee had the keys of the office, and the mortgage in question was placed among the chattel mortgages in the office on the day mentioned, and indorsed by him, filed October 20, 1845. * * The statute is that the mortgage shall be void as against creditors, etc., unless the mortgage or a true copy thereof shall be filed in the office of the town clerk. Estee, who appears to have had charge of the office, * * received the mortgage, marked upon it the time, and placed it among the chattel mortgages in the office. This, in my opinion, was a filing of it, within the meaning of the statute. * * The filing consisted in presenting the mortgage at the office and leaving it there, and depositing it in the proper place with the papers in the office.”

In Cook v. Hall, 1 Gil., 575, where the agent of the holder took the deed to the recorder’s office and handed it to one Hague, who was not a deputy, but had charge of the office at the time, and who entered the date of the filing, the supreme court of Illinois held that this was a good filing for record.

And in’ the case of Dodge v. Trotter, 18 Barb., 202, the supreme court of New York says: “The objection to the reading of the mortgage in, evidence, and the motion for a non-suit for reasons that the mortgage was filed by a person other than the town clerk, and that it was not numbered, were not well taken. The filing by a clerk in the store of the town clerk, in charge of the town clerk’s office in the absence of that officer, was sufficient. It was the duty of the town clerk, and not of the mortgagee, to number the mortgage. The rights of the mortgagee could not be impaired by the omission to perform that duty.

From these authorities as well as from our own reflection and reasoning upon our statute, its origin and purposes, we find that the substantial act to be done by a mortgagee to secure his full rights under our registry laws was to take his mortgage and cause it to be placed on file for record, in the office where such instruments are to be recorded, and to pay the fees allowed by law for recording; and that such deposit may be made with the person in charge of the office. And when r deposited with one who has control of the office for the time being, it does not devolve on the mortgagee to show that his deed was put in the hands of the recorder, or a regular deputy. One in charge and performing the duties of the office has sufficient authority for such purpose. The clerk is responsible for the acts of one thus placed in possession of the keys and papers in his office.

If in the absence of the clerk a mortgagee was required to file his mortgage with a regular deputy, that would involve the necessity of examining into the validity of his appointment, oath of office, etc., a practice not reasonable or ever contemtemplated in such cases.

In this case, Oats took his deed to the proper office, placed it in the hands of the person there in charge, and paid the fees for recording — this was all he was required to do. And any acts thereafter to be done to perfect the record and make the notice full to all subequent purchasers, etc., devolved upon the clerk, and could not operate to the prejudice of the mortgagee, as shown, by the above authorities.

Other things being equal, the maxim is: he who is prior in time is prior in right; or the rule as given by the supreme court of the United States, “that when an individual in the prosecution of a right does everything which the law requires him to do, and he fails by the misconduct or neglect of a public officer, the law will protect him,” is applicable here.

"We then have authority and justice for sustaining the rights of him who first took the necessary action to secure his debt out of this property. And if Wall, the subsequent mortgagee and purchaser, used due diligence by having the records examined, etc., and was led to 'the purchase of the property by reason of finding no record of Oats’ mortgage he has his remedy against the recorder individually, or upon his official bond.

One who seeks public favor, and is entrusted with position honorable and lucrative, must assume the responsibilities necessary for the public good, and a part of the county clerk’s duty is to remain in his office or keep some competent representative therein, at reasonable hours to perform all such official duties as the exigencies of business may require, and when he fails to perform such duties as the law demands of him he must meet the responsibility consequent thereupon.

It is no excuse for him to say a deed was filed and afterward lost, and hence not recorded. When a deed is placed in his office for record he becomes its custodian. If such grantee or other person demands the contents, he can furnish a copy, for which he is entitled to ample pay.

And, officers ought to realize that these 1 ucrative positions are not created merely to enrich their holders, but for the public good, and that’these high emoluments carry with them a high responsibility.

The declarations of law and the finding upon the evidence in the court below should have been for the appellant.

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

Stephenson, J., being disqualified, did not sit in this case.

Hon. C. C. Farrelly, Sp. J.


author: Searle, J.

text:
    Mangum et al. vs. Cooper, Adm’r.
    Circuit Courts: May appoint administrator pendente lite.
    Where a paty plaintiff or defendant dies pendente lite, tlie court before which such cause is pending, has power to appoint a special administrator to conduct or defend the cause.
    APPEAL from Phillips Circuit Court.
    Hon. M. L. Stephenson, Circuit Judge.

      J. C. Palmer, for appellants.

      A. H. Garland, for appellee.
   Searle, J.

This cause was tried at a former term of the Phillips circuit court, and judgment rendered in favor of Ephraim E. Cooper, who was then plaintiff. The appellants, who were then defendants, appealed to this court. Upon the hearing of the cause here, the judgment of the circuit court was reversed and the cause sent back with instructions, etc. While the cause was pending a second time in the circuit court, Ephraim E. Cooper, the plaintiff, died, and upon motion of the counsel of the plaintiff, T. Gf. Cooper was appointed by the court as special administrator of said plaintiff, deceased, to conduct the cause in said court to final judgment, etc. Judgment was rendered in favor of the appellee in conformity to the instructions from this court, and the appellants again appealed to this court. No exceptions whatever were taken by appellants to any of the proceedings or ruling of the circuit court during tbe last trial. No errors are, therefore, pointed out of which we can take cognizance. But it is claimed here, for the first time, that the circuit court erred in appointing a special administrator, etc. If it were proper that such an assignment of error, made at such a time, should be noticed, we would remark, that the appointment of a special administrator by the circuit court was not erroneous. The special adminitrator was appointed under the provision of sections 9 and 10, chapter 1, Gould’s Digest, and this court declared in Wade v. Bridges, Adm’r ad litem (24 Ark., 572), that the circuit court had power, under these sections, to appoint such administrators. There is nothing in the present administration law in this respect different from or inconsistent with the law in Gould’s Digest, and this section has never been repealed.

Finding no error in the proceedings of the court below, the judgment is affirmed with costs and ten per cent, penalty.


author: McClure, C. J.

text:
    Seymour, Adm’r, vs. Jefferson County.
    County Scrip: When bonded under act July 23,1868, by whom cancelled.

    It is tlie duty of the county cleric and not the county judge, under the provisions of the act of July 23, 1868, “ authorizing the funding of a floating debt in certain cases,” to receive and cancel county scrip and warrants presented to be funded, and to give the person presenting the same a county bond for the amount.
    APPEAL from Jefferson Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      Bell & Carlton, for appellant.
   McClure, C. J.

In August, 1869, tbe county court of Jefferson county entered up an order allowing one John De Baun five hundred dollars for taking care of and preserving the county records of said county during the war. This amount was issued to De Baun in five one hundred dollar warrants. Bagg, the appellant, was the sheriff and collector of the county, and received four of these warrants in payment of county taxes. The treasurer of the county refused to receive any one of these warrants, upon the ground that a military order had been issued commanding him not to receive any of said scrip for county taxes; thereupon Bagg, in making his settlement with the treasurer, was compelled to furnish other scrip or money to the amount of four hundred dollars.

Sometime afterward, the county issued an order providing for bonding the outstanding debt of the county. The four warrants issued to De Baun, and held by Bagg, were presented to the county judge to be bonded, and the same were rejected ; thereupon Bagg applied to the circuit court of that county for mandamus to compel the county court to bond his warrants. In response to an alternative writ, the judge of the county court, admits that the county court issued the warrants to De Baun for the consideration stated, but alleges that before the said scrip came into the possession of the complainant, there was an order issued by the proper military authorities commanding in the district of Arkansas, ordering the county officers not to take any of said scrip in payment of any debts to the county ; that an order was issued providing for bonding the outstanding indebtedness of the county, but denies that the scrip held by the complainant was embraced in said order.

To this answer or response, the complainant filed a demurrer, which was by the court overruled, and the peremptory writ was denied, and che complainants appealed.

If mandamus would lie at all upon the showing made in this case, it certainly will not against, the judge of the county court. Under the provisions of the act “ to authorize the funding of a floating debt in certain cases,” approved July 25, 1868, under which the county of Jefferson bonded a portion of her debt, it is no portion of the duty of the county judge to exchange bonds for scrip.

The fifth section of the act declares that “upon the presentation of such warrants or scrip, said clerk shall cancel the same by writing across the face of each warrant: Funded by--’ (naming tbe person presenting tbe scrip), and give the person presenting the same a county bond for the same amount, bearing interest at tbe rate of six per cent, per annum, payable annually.” In this case tbe relator presented bis scrip to the county judge, instead of tbe county cleric, and the county judge refused to give him bonds for bis scrip. Tbe law did not place tbe bonds to be exchanged for scrip in the custody of tbe county judge ; it placed tbe bonds in tbe bands of tbe county cleric for exchange, and to this person be should have applied. The county judge seems to have been somewhat officious as to this particular scrip.; but bis officiousness could not change tbe law. If tbe scrip bad been presented to tbe county cleric, where the law directed it should be presented, instead of the county judge, it is not at all improbable that tbe relator would have received bonds for tbe same; but, be this as it may, under no state of tbe case ought mandamus to have issued against tbe county judge.

Let tbe judgment be affirmed with costs.