text:
    Erb vs. Perkins.
    1. Replevin: Action against assignee of bankrupt.

    An action of replevin against an assignee in bankruptcy for wrongfully detaining the plaintiff’s goods in his possession, cannot be maintained, unless he has given to the defendant twenty days’ notice of the action as required by see. 5056, of the Revised Statutes of the United States. (Sec. 14 Bankrupt Act). Aliter where the action is for taking from the plaintiff’s possession. In such case the assignee is a mere trespasser, and this act does not apply.
    2. Pleading:
    The common law rule that matter in abatement is waived by pleading in bar, is not the rule under the Code, but both may be pleaded in separate paragraphs in the sam'e answer.
    3. Same:
    The averment in the answer of an assignee in bankruptcy that he has no knowledge or information sufficient to form a belief of the plaintiff’s title, is sufficient to put the plaintiff on proof of his title.
    APPEAL from Sebastian Circuit Court.
    Hon. W. W. Mansfield, Circuit Judge.

      Erb, for appellant.
   English, Ch. J.:

On the 17th April, 1873, Newman Erb brought an action of replevin in the Circuit Court of Sebastian County, Fort Smith District, against Charles Perkins, for a lot of merchandize, a schedule of which was attached to and made part of the complaint.

The plaintiff alleged that he was the owner of the goods, and and that they were wrongfully detained by the defendant, etc.

A writ was issued, and upon the execution of a bond by the plaintiff, the sheriff' took the .goods from the possession of the defendant and delivered them to the plaintiff.

The defendant filed an answer containing two paragraphs, in substance as follows:

“First — That in the month of January, 1873, one Adolphus Erb was adjudged a bankrupt on the petition of his creditors, by the District Court of the United States for the Western District of Arkansas, and on the 25th. of March following, defendant was duly appointed assignee of said bankrupt, and qualified as such on the 29th of March. That the property mentioned in the plaintiff’s complaint came to the hands of defendant as such assignee, and that he held the same as such assignee in bankruptcy, as part and parcel of the effects of said bankrupt at the time of the commencement of this writ; and that no notice of plaintiff’s claim to said property, or to any part thereof) was given to him by plaintiff, or by any one for him, at any time before the commencement of this suit, twenty days before then.”

“Second — That defendant held the property mentioned in the complaint at the time of the commencement of this suit as said assignee in bankruptcy of one Adolphus Erb, and that he has no knowledge or information sufficient to form a belief as to whether the said property belonged to said plaintiff or not. That defendant was duly appointed assignee in bankruptcy of one Adolphus Erb, who was adjudged a bankrupt on the petition of his creditors, by the United States District Court for the Western District of Arkansas, by the said court, wherefore defendant claims judgment for a return of said property or the value thereof.”

The plaintiff entered a demurrer to each paragraph of the answer, which the court overruled.

Plaintiff failing to prosecute the suit further, judgment was rendered (March Term, 1876,) against him; a jury was empannelled who found" the goods to be of the value of .$204.83, and assessed defendant’s damages for being deprived of the possession thereof at $30, and final judgment was rendered that plaintiff restore the goods to defendant or pay the value thereof, etc., and for the damages, etc.

Plaintiff appealed.

I. As to the first paragraph of the answer :

Sec. 5056 of the Revised Statutes of the United States (sec. 14 Bankrupt Act), provides that:

“ No person shall be entitled to maintain an action against an assignee in bankruptcy for anything done by him as such assignee, without previously giving him twenty days’ notice of such action, specifying the cause thereof, to the end that such assignee may have an opportunity of tendering amends, should he see fit to • do so.”

This section covers all the acts which the assignee honestly does in the discharge of the trust which the law casts upon him. Brump’s Law and Practice of Bankruptcy, p. 550.

It does not apply to an action of replevin to recover property which the assignee took from the possession of the plaintiff, because in such case he is a mere trespasser. Leighton v. Harwood, 111 Mass., 69.

Nor to a bill in chancery against the assignee to enjoin a judgment at law obtained by the bankrupt against plaintiff. 1 Tenn. Chancery, 526. In this case Chancellor Cooper said: “The very reading of the section shows that the section only applies when the suit is a'gainst the assignee 'for any thing done by him as such assignee.’ The language necessarily implies an action for the wrongful act of the assignee himself, and this is rendered still plainer by the reason given for requiring the notice, namely, that he may have the opportunity of tendering amends for his wrongful act. Of course, the section can have no application to a bill in chancery to enjoin a judgment recovered by the bankrupt by their fraudulent conduct, before the assignee had any thing to do with the business.”

Mr. Blumenstiel in his work on the Law and Practice in Bankruptcy, remarking upon the above section of the Bankrupt Act, says, the object of the notice is. stated in the section, to enable the assignee to settle, if he sees fit, the controversy against him; and commenting on the case of Leighton v. Harwood, above cited, he says: It was held that where the assignee took the property of a third person tortiously, he was not entitled to notice before the commencement of the action against him, for the w'rongful taking. The property in this case was not in possession of the bankrupt at the time it was replevied, and. no doubt, as intimated in that decision, if the assignee fiad recovered the property from the bankrupt, or had found it in his possession, no action could be maintained against him therefor, unless a prior notice of twenty days had been givenp. 237. •

In Rowe v. Page, 54 New Hamp., 191, Page was sued in trover for the value of property which was in his possession as an assignee in bankruptcy, and_ which he sold after the plaintiff had demanded the property of him.

The court held that the action could not be maintained against him without notice before suit, under the above section of the bankrupt act, had he made the objection reasonable; but that want of such notice being matter in abatement, was waived by his pleading in bar.

In the case now before us, appellant did not allege in his complaint that appellee took the goods from- his possession, or place him in the attitude of a mere trespasser, but simply alleged in substance, that he was the owner of the goods, that appellee was in possession of them, and wrongfully detained them.

The substance of the first paragraph of the answer of appellee is that the goods came into his hands as an assignee in bankruptcy, and that he held them as part of the estate of the bankrupt, and that no notice was given him before suit.

We think this was a valid defense to the action.

" A bailee, guilty of no conversion, but holding the goods of ^the bailor, is entitled to demand before suit; and it is'just as reasonable that when goods come into the hands of an assignee as part of the estate of the bankrupt, and not by a tortious taking, ho should have the notice required by the section of the bankrupt act in question, before suit is commenced against him for the goods.

Appellant submits, however, that the defense set up by the. first paragraph of the answer, being a matter in abatement, (1 Tcnn. Ch. R., 526,) was waived by the second paragraph, which was in bar.

By the common law system of pleading, matter in abatement was waived by pleading in bar, but such is not the rule under ■our Code system of pleading, (if it be lawful to call it a system,) but, on the contrary, in the same answer, matter in abatement and matter in bar of the action, may be pleaded in separate paragraphs. Gantt’s Dig., sec. 4569, etc.

II. As to the second paragraph of the answer:

The second paragraph of the answer does not set up the- failure to give notice before the suit, but has relation to the alleged title of apellant to the property. It is alleged, in substance, as in the first paragraph, that appellee held the goods as assignee in bankruptcy, and then stated that he had no knowledge or information sufficient to form a. belief as to whether the property belonged to the appellant or not.

The appellee being in possession as assignee, this was sufficient, under the Code Practice, to put appellant on proof of his title. Gantt’s Dig., sec. 4569, etc.; McCurdy et al. v. Guynn et al., M. S.

The court below did not err in overruling the demurrer to the ■answer.

There is no further question in the case on this appeal.

If appellant was really the owner of the goods, he was- unfortunate in not properly prosecuting his suit.

Affirmed.


source: Caselaw Access Project

author: English, Ch. J.:

license: Public Domain

text:
    Gulledge vs. Preddy.
    1. Mechanic’s Lien: Homestead exemption.

    A homestead was not exempt under the Constitution ol' 1868, from the mechanic’s lien for the value of lumber furnished by the manufacturer from his saw mill, for the improvement of the homestead.
    APPEAL from Drew Circuit Court.
    Hon. Theodoric F. Sorrells, Circuit Judge.

      Me Gam, for appellant.
   English, Ch. J.:

Thomas W. Gulledge ivas the owner of a saw mill and manur facturer of lumber.

Charles W. Preddy was the owner of a block of ground in Monticello, had a dwelling thereon, and resided there with his family. It was his homestead. In the summer of 1874, he made a contract with Gulledge to furnish him lumber from his saw mill to make an addition to his dwelling house.' The lumber was accordingly furnished during the summer and fall, from the mill, to the value of $115.80, and used, by a carpenter employed by Preddy, to build an addition to his dwelling house.

Gulledge filed an account in the office of the Clerk of the Circuit Court of Drew County, and brought this suit, under the mechanic’s lien law, to enforce a lien upon the dwelling and block on which it was situated, for the lumber bill.

He brought himself clearly within the provisions of the mechanic’s lien law (Gantt’s Digest, secs. 4056 to 4078, p. 737, etc.,) but Preddy relied for defense upon the exemption clauses of the Constitution of 1868 relating to homesteads.

On the trial there was no controversy about the material facts, above stated, and the jury, under the direction of the court, returned a verdict in favor of the plaintiff fo.r the amount of his lumber bill, and the court took under advisement, until the next term, the question of law whether a judgment should be rendered upon the verdict, condemning the property to be sold to -satisfy the debt.

At the next term the court held that the defendant Ayas entitled to the benefit of the homestead exemption, and rendered a personal judgment against him upon the verdict, refusing to render any judgment in rem.

The plaintiff took a bill of exceptions, setting out the facts, and appealed.

By sec. 2, art. xii, Constitution of 1868, the homestead could not be incumbered except for taxes, laborer’s and mechanic’s liens and securities for the purchase money.

By sec. 3, the homestead Avas not exempt from sale on execution, etc., for the payment of taxes, for the payment of obligations contracted for the purchase of the premises, for the erection of improvements thereon, or for labor performed for the OAvner thereof, in improving the property.

The tAvo sections must be construed together. Greenwood & Son v. Maddox & Toms, 27 Ark., 648; Parham v. McMurry, MS.

“Mechanic (from the Latin meehanious), one Avho Avorks with machines or instruments; a Avorkman or laborer other than agricultural; an artisan; an artificer; one skilled or employed in shaping and uniting materials, as Avood, metal, etc., into any kind' of structure, machine or other object, requiring the use of tools or instruments.” — Webster.

Appellant appears to have been a mechanic. He had a saAV mill and manufactured lumber. He worked Avith a machine and shaped materials of Avood for building, etc. He was not, it seems, a mere speculator — buyer and seller of lumber. He furnished from his saw mill lumber to erect an addition to appellee’s dwelling on his homestead block, under a contract Avith him, and a carpenter employed by appellee, constructed the building— the improvement — of the lumber.

If the carpenter, who was also a mechanic, had furnished the lumber of which the building was fashioned, he would have had a lien as against the homestead exemption for the value of the lumber as well as for the price of his skill. "Why should not appellant, who was a mechanic, and whose machinery, skill and labor supplied the lumber for the house, have a lion for its value as well as the other mechanic who put the lumber into the building? Both of them contributed to the improvement of the homestead estate.

The framers of the Constitution, while they intended to protect the home of the family, were not unmindful of the meritorious claims of the mechanic and laborer, to whom the head of the family may be indebted for the very improvements that render the home comfortable and convenient.

The court below erred in refusing to render a judgment in rem as well as in personam upon the verdict of the jury.

The ruling of the court in the matter complained of on this appeal must be reversed, and the cause remanded with instructions to the court to render a judgment condemning the property to be sold for the satisfaction of the debt, etc., leaving the judgment in versonam to stand. _


author: Harrison, J.:

text:
    Ponder vs. Rhea.
    1. Shake Cropper: Tenants in Common.

    When one lets land for the purpose of having a sing1 e'crop raised on it, of which the land-owner is to have part for the use of the land, and the cultivator a part for his labor, and there is no evidence that it was the intention of the parties that the relation of landlord and tenant should exist between them, the parties are tenants in common in the crop.

      2.--:
    A agreed to let land to B lor the purpose of raising a crop on it, and to furnish part of the team, and provender and supplies for making the crop, which was to be the property of A; but after a certain portion of the crop had been reserved for rent, and certain indebtedness due from B to A was paid, B was to have what remained; held, that B had no interest in the crop that he could sell or mortgage.
    APPEAL from Lawrence Circuit Court.
    Hon. William Byers, Circuit Judge-.

      Henderson for appellant.
   Harrison, J.:

In this action Ponder sued Rhea for trespass, in taking and converting to his own use 4000 pounds of seed cotton and 200 bushels of corn.

The facts were'these : The defendant let Johnson, in 1874, have twenty acres of ground, in his plantation, to cultivate that year, in corn and cotton, upon the following agreement:

The defendant was to provide part of the team, and feed for the team, and to furnish Johnson with twenty bushels of corn, and 200 or 300 pounds of bacon, and Johnson was to till the land. The crop was to be the property of the defendant; but after he had reserved ten bushels of corn for each acre planted in corn, and one-fourth of the seed cotton, which was to be delivered at his gin, for the rent of the land, had been paid out of it, for the supplies and $ 100 that Johnson owed him, Johnson was to have what remained. The defendant furnished, in accordance with the agreement, part of the team, the feed, and the supplies, and Johnson- cultivated the land, and raised a crop of cotton and corn, of which that in controversy Avas a part.

On the 21st of May, 1874, Johnson, to secure a debt to the plaintiff, and to secure supplies from him, executed to him a mortgage upon the crop, except so much as was due for rent. which was filed for record June 9th, 1874, and on the faith of it the plaintiff furnished him supplies.

About the month of August following, Johnson, to pay his indebtedness to the plaintiff, sold him the- crop, and the plaintiff hired him to assist in picking the cotton when the cotton season arrived, and in October he relinquished his claim upon the cotton to the defendant, in satisfaction of his indebtedness to him.

The defendant, with notice of the sale to the plaintiff, gathered the crop, and refused to let him have any portion of it.

The crop, after the reservation for the rent for the use of the land, was not sufficient to pay the defendant.

The verdict and judgment were for the defendant. The plaintiff appealed.

Where one lets land for the purpose of having a single crop raised on it, of which the lessor is to have a part for the use of the land, and the cultivator a part for his labor, and there is no evidence that it was the intention that the relation of landlord and .tenant should exist between them, the parties are to be considered as tenants in common in the crop. Cro. Eliz., 143; 1 Wash. Real Prop., 496-497; Alwood v. Ruckman, 21 Ill., 200; Foote v. Colvin, 3 John., 216; Bradish v. Schenck, 8 Ib., 151; DeMott v. Hagerman, 8 Conn., 220; Adams v. McKesson, 53 Penn. Stat., 81; Leland v. Sprague, 28 Vt., 746.

And although the share reserved to the owner of the land be called rent, it is, after all,” says Washburne, but another mode of saying that the occupiers shall work the farm for so long, and divide the profits with the owner.” 1 Wash. Real Prop., 26, Putnam v. Wise, 1 Hill, 234; Chandler v. Thurston, 10 Pick., 205.

The case of Alexander v. Pardue, 30 Ark., 359, is not in conflict with this doctrine. There the plaintiff — the land-owner— did not claim an interest, as tenant in common with the defendant, in the crop, and a joint possession with him, but treated him as a tenant of the land, and set up under a parol agreement,-a lien upon his share as in his exclusive possession, and for anything which appears to the contrary there may have been an express agreement against such tenancy in (jommon.

But no such question arises in this case. The crop, by the express agreement of the parties, belonging to the defendant, and Johnson, who was only a cropper, had no interest in it he could either sell or mortgage. Leland v. Sprague, supra.

The judgment is affirmed.


text:
    Gibson’s Adm’r, vs. Armstrong.
    Injunction: Judgment at law.

    It is a general principle that a judgment at law will not be enjoined, when ' there is no evidence of a good defense to the merits, or that it is contrary to equity and good conscience. The judgment sought to be enjoined was based upon the finding of arbitrators, and was entered by consent, under mistake, unmixed with fraud, however, as to the extent oí the inquiry-made by the arbitrators.
    APPEAL from Conway Circuit Court in Chancery.
    Hon. J. M. Smith, Circuit Judge.

      Fletcher, for appellant.

      Wassell & Moore, contra.

   Harrison, J.:

Thiswas.a suit in equity commenced on the 12th day of November, 1871, by-Wilson B. Gibson against Carroll Armstrong, ■ to enjoin proceedings upon a judgment at law. Gibson was afterwards adjudged a bankrupt, and Robert A. Irwing, his assignee, was substituted as plaintiff.

The complaint alleged: That defendant, on the 26th of November, 1872, brought an action at law in that court against Charles A. Carroll for rent of a plantation for the year 1871, and sued out a writ of attachment against the crop, which was levied on the corn and cotton grown upon the plantation, on the 26th day of December, 1871. That the corn and cotton was the property of John H. Carroll, to whom Charles A. Carroll had sub-let the plantation.

That to enable John H. Carroll to cultivate the plantation and . make a crop, the plaintiff had furnished him supplies, to secure payment for which, John H. Carroll gave him a bill of sale of the corn and cotton, and, on the 2d day of March, 1872, the plaintiff claimed the same of the sheriff, and made affidavit of his ownership, and gave bond to interplead, and it was delivered to him.

That, at the April Term, 1872, of the court, an agreement in writing was entered into by the plaintiff, Armstrong, and Charles A. Carroll, that the case should be continued until the next term, and that all the matters in controversy should be submitted to the arbitration of Abner D. Thomas and D. W. Mason, who should meet at Lewisburg on the 6th day ©f May, 1872, and hear the statements of the parties, examine witnesses, books, papers and accounts, and, upon the whole case, ascertain and decide how much was due Armstrong for rent, and how and when the same should be paid; the amount in the plaintiff’s hands from the sale of the property, the expense incurred by him on account of the property, and the amount of his account against John H. Carroll up to the commencement of the suit, and the sum remaining in his hands, after deducting therefrom his said account, expenses and $100 attorney’s' fee, which he was to be allowed to retain; he was immediately after the arbitration to pay over to Armstrong.

That the said arbitrators accepted the appointment, and in pursuance of the submission, met and proceeded in the arbitration, but only to ascertain the sum due for rent, and made their award, ' yet, although they made no inquiry whatever as to the plaintiff's account, they found and directed by their award, that Charles A. Carroll and the plaintiff should pay Armstrong $2000.

That, being led to believe from the remarks of both Armstrong and his attorney, that only the matter of rent could be considered by the arbitrators, the plaintiff did not attend the arbitration, and he was not aware that any sum was found due from, or awarded to be paid by him, until after the award was filed in court. *

That the award was a fraud upon him, the proceeds of the corn and cotton being only $2066.97, whilst his accounts, which according to the terms of the submission, should have been allowed against them by the arbitrators, amounted to $2406.90.

That the plaintiff was absent from the State at October Term, 1872, when the arbitrators filed their award: and that plaintiff's attorney was about filing exceptions thereto, but Armstrong and his attorney, falsely and fraudulently represented to him that the value of the corn and cotton which came into his hands, was as much as $4500, and the $2000 awarded Armstrong was the balance due from him, who, being deceived and imposed upon by such misrepresentations, consented that judgment should be rendered against the plaintiff for the value of the property as ascertained by the sheriff when it was turned over to him and interest thereon from the time the rent became due, or for the sum of $1905.35, and judgment was so accordingly rendered.

Upon application to the judge in vacation a temporary injunction was granted.

The action at law, and the attachment of the property, the ■ claim thereof by the plaintiff in this suit, the delivery of the same to him by the sheriff, the agreement to submit the matters in controversy to arbitration, the arbitration and the award, and the judgment upon the award were admitted in the answer. The defendant denied any knowledge of the alleged indebtedness of John H. Carroll to the plaintiff, and of the bill of sale from him for the corn and cotton attached; and claimed that if there were such, his lien as landlord was paramount and superior to any claim the plaintiff might have on account thereof. He denied that either he or' his attorney made any remarks calculated to create upon the mind of the plaintiff the impression that the arbitrators would consider only the matter of rent, or that either he or his attorney made any false or fraudulent representations to the plaintiff's attorney, by which he was influenced to consent to the judgment, or that there was any fraud either in the award or judgment, or any wrong or injustice done the plaintiff thereby. But on the contrary averred that the plaintiff, who proposed and urged the submission of the controversy to arbitration, to influence the defendant to agree to it, told him that his claim against John H. Carroll would not amount to over $600 or $800, and that after deducting the same, and his charges in relation to the property and his attorney's fee, he would have from the proceeds of the property $1400 or $1500 which he would immediately, after the arbitration pay over to the defendant, and that he was induced by the belief, caused by the plaintiff's statement, that he would, in a short while, receive that sum from him, to consent to the arbitration.

The court, upon the hearing, rendered a decree perpetuating the injunction as to the sum of $405.35, and dissolving it as to the remainder of the judgment, and as to which it dismissed the complaint.

The plaintiff appealed.

It was not denied, and it was also proven, that the arbitrators made no inquiry as to the amount of proceeds of the sale of the-corn and cotton in the plaintiff’s hands nor as to his account against John II. Carroll, or his expenses, as required by the terms of the submission ; but it was in proof that he admitted, when the agreement for the arbitration was made, and to induce the defendant to enter into it, having in his hands from the sale of the property, after paying all he claimed, and which he said did not exceed $600 or $800, $1400, or $1500 tobe paid over to-the defendant. His account against John H. Carroll, if a charge upon the crop, and the evidence shows that the bill of sale was given two months after the attachment was levied, could not avail against the defendant’s lien for rent.

It does appear that the plaintiff’s attorney consented to the judgment uiider the misapprehension that the arbitrators had considered all the matters submitted, to them, and that the plaintiff’s claim had been allowed: but it also as clearly appears that such misapprehension was not occasioned by any misrepresentation or fraud of either the defendant or his attorney, and there is no evidence whatever of any fraud in obtaining the judgment.

It is a general principle that a judgment at law will not be enjoined, when there is no evidence of a good defense to the merits, or that it is contrary to equity and good conscience. High on Injunc., sec. 86; 2 Sto. Eq..Jur., sec. 887.

There was no evidence that the value of the property which came to the plaintiff’s hands was $4500, and there is no room to doubt that it was, after allowing necessary and proper expenses, not less than the judgment, as modified by the decree.

The decree of the court below is affirmed.


text:
    McClure et al. vs. Owens.
    1. Dower in Personalty:
    The wife has uo inchoate right of dower in the personalty of her deceased husband before his death, as she has in his real estate; and he can mortgage and dispose of the same free from dower.

      2. --: Mortgage.

    The widow does not, by the assignment of dower, in personalty which was mortgaged by the husband during his life, acquire a title that she can set up against the mortgage.
    3. Claims against Estates: Mortgage Probate.

      A mortgagee need not probate his claim against the estate of a deceased mortgagor, but may proceed under a power contained in the mortgage, for its satisfaction.
    APPEAL from Conway Circuit Court.
    Hon. J. M. Smith, Circuit Judge.

      Fletcher, for appellant.

      Reid, contra.
   Harrison, J.:

This was an action of replevin by Nancy Owens against Lewis McClure and M. O. Burton, composing the firm of McClure & Co., for one mule, two horses and four head of cattle of the value of $230, commenced before a justice of the peace, and transferred, on application of the defendants, to the Court of Common Pleas.

The defendants denied the plaintiff's title and claimed possession of the property under a mortgage from William Owens, then deceased, who was the husband of the plaintiff and the owner of the property at the time of his death.

The plaintiff recovered judgment in the Court of Common Pleas, and the defendant appealed to the Circuit Court. In the Circuit Court the plaintiff again recovered a verdict, and the defendant, after moving for a new trial, which was refused, and judgment against them, took a bill of exceptions and appealed to this court.

It is sufficient to merely state the facts, as to which there was no controversy.

The property in controversy belonged to William Owens, whose widow the plaintiff is. On the 22d day of April, 1875, he executed a mortgage of it to the defendants to secure a debt he owed them, and containing a power to them, if the debt was not paid on the 1st day of November, 1875, when it fell due, to take possession of the property and to sell it for the satisfaction of the debt.

The mortgage was acknowledged by Owens, but not recorded in his lifetime. Owens died on the 26th day of October, 1875,’ and, on the 28th day of the same month, the defendants filed the mortgage for record. Administration on Owens’ estate was granted on the 26th day of November, 1875, to J. N. Mitchell, who had the property in controversy appraised as part of Owens, estate. The defendants, after the appraisement, took it in possession, and, after they had taken possession thereof' the administrator set apart and assigned it to the plaintiff as her dower in the personal estate.

The defendants presented no claim against Owens’ estate to his administrator for allowance.

The mortgage, though unrecorded, was valid between the parties, and was equally as valid after the death of Owens as before; his death did not in the least impair the rights of the defendants; Haskill v. Sevier, 25 Ark., 152.

The wife, by marriage, has no such inchoate right of dower in the personal estate of her husband as she has in his real estate, and he may sell, mortgage or dispose of the same at his pleasure. Her right of dower in his personal estate does not accrue until his death, and only in such as he then owns.

It was decided in Arnett v. Arnett, 14 Ark., 57, and again in James v. Marcus, 18 Ark., 421, that where an execution is levied upon personal property of the debtor in his lifetime, the officer, by the levy, acquires a special property in the goods, and may proceed to sell them after his death; and that the debtor does not die possessed of them within the meaning of the statute upon the subject of dower, and his widow is not entitled to dower therein.

The lien of the defendant’s mortgage was paramount to the plaintiff’s right of dower, and though the property had been set apart to and assigned her by the administrator, she had no title that she might- set up against it.

The defendants were not required to probate their claim against Owens’ estate, but entitled to proceed under the power given in the mortgage for its satisfaction. Richardson v. Hickman, adm’r, et al., ante; Barber v. Peay, adm’r, 31 Ark., 392; Nicholls & Barrett v. Gee, 30 Ark., 135; Hall v. Denckla, 28 Ark., 506.

The judgment is reversed and the cause remanded to the court below, with instructions to grant the defendants a new trial.


text:
    Henry vs. Blackburn.
    L Attorney ad litem.
    An attorney appointed by the court to defend for a defendant constructively summf'ned, may file a demurrer to the complaint, without its having the effect of entering the defendant’s appearance in the cause.
    2. Chancery Practice: Or failure of defendant constructively served to answer.

    The former practice of taking decrees pro confesso against a defendant served by publication and failing to aDpear, is not permissible under the present statute. It is the duty of t}ie court to see that the complaint shows a cause of action within its jurisdiction.

      •3.---: Demurrer, when not proper-, defect corrected by rule, etc.

    A bill seeking to subject land to the payment oí a debt, should particularly describe it, so the court may lay hold of it in rendering a decree; but a defect in the description is no ground of demurrer, the court should order the bill to be amended. Nor is the failure to exhibit a copy of the defendant’s deed a ground of demurrer, the court should require it to be filed by rule.
    4. Married Woman: Charge upon her separate estate; when implicit.

    When a married woman contracts for the improvement and prfeservation of her separate estate, it will be implied that she contracts upon the faith of the estate, and intends to create a charge upon it.
    •5. ----: Same: How estate applied, etc.

    When the separate estate yields rents that can be applied to the payment of a charge upon it, the court will not have the corpus of the estate sold to satisfy the charge, but will decree payment out of the rents and ofits.
    APPEAL from Desha Circuit Court in Chancery.
    Hon. J. A. Williams, Circuit Judge.

      Weatherford, for appellant.

      Pindalls, contra.

   English, Ch. J.:

On the 7th of December, 1875, Patrick Henry filed a bill on "the Chancery side of the Circuit Court of Desha County against L. P. Blackburn and Julia Blackburn, his wife, alleging:

“That defendant, L. P. Blackburn, is the legal owner in trust, and defendant Julia Blackburn, his wife, is the beneficial owner, under a deed of conveyance dated the —— day of--, 1870, •of a certain plantation in Desha County, Arkansas, containing about 467 acres, situated near Laconia, within what is known as the circle levee; That it, together with the other improved lands within said circle, is greatly benefitted and protected by said levee; to construct, protect and repair which large sums of money have from time to time been expended by the respective owners of said lands. That within- a year or two last past, a considerable nort-ion of said levee, a short distance below Laconia. has been greatly endangered by the caving of the bank of the Mississippi river, threatening great injury to the lands within said circle, including those of defendants; to preyent which and to construct an inner line of levee, for greater security, the property owners in said circle agreed in November, 1874, to assess the property of each other within said circle, and each to pay his or their assessment; and complainant ivas appointed the agent of all to lay off and superintend the work, employ the hands, make the necessary purchases, and generally to do and perform in their behalf whatever was requisite to its completion; of which said assessments the sum proportioned to the property of said defendants was $266, and damages for expense of bringing suit and interest. That he duly notified the said Julia of the facts as above stated, and she approved the same, and promised that she and her said trustee would pay it, and requested complainant to proceed with' the work as above agreed upon, which he accordingly did, and completed said levee as described Avithin the time agreed upon. And in their behalf, and as their agent, he necessarily laid out and expended large sums of his. OAvn money, the pro rata portion of Avhich due from defendants was the sum stated above. That said L. P. Blackburn Avas aware of, and assented to all that Avas done in the premises, and since the said le\ree was completed, promised the complainant to pay him the said sums, but has so far wholly failed to do so, and the same remains noAv due and unpaid, Avith interest from the 1st day of February, 1875. That no compensation was made him for said work, but that he used his credit and time and skill in their behalf and for the general good. That both defendants are nonresidents of the State of Arkansas, and he has no means of compelling them to answer. That the expenditure Avas and'is greatly beneficial to said property, but that being the property of a femme covert, he is advised that he is without adequate remedy except in a court of equity jurisdiction.

“He prays that attachment issue and the property of said defendants be attached, and they required to answer fully all the allegations herein, and without reserve. That a decree be rendered in his behalf, and, unless paid within a time to be stated, that their property be sold in satisfaction thereof, and for general relief.”

Plaintiff filed an affidavit, and executed a bond, such as are required in ordinary actions at law, by attachment, and the clerk issued a writ of attachment, which the sheriff levied on the land. The defendants were, warned by publication, and L. A. Pindall, Esq., appointed attorney ad litem to represent them.

At the March Term, 1876, the attorney ad litem, on leave of the court, filed the following demurrer to the bill:

Comes L. A. Pindall, an attorney appointed by this court, to represent said defendants in this action, and without entering the appearance of said defendants hereto, but upon his own motion as such appointed attorney, demurs to the complaint in this cause, and for cause assigns the following reasons:

“First — There is no equity in said complaint.

“Second — The facts alleged do not constitute a cause of chancery jurisdiction.

“Third — The facts as stated do not constitute a cause of action.

L. A. Pindall,

Attorney of Desha County Bar.”

Plaintiff moved to strike the demurrer from the files, the court overruled the motion, sustained the demurrer, and, plaintiff resting, dismissed the bill for want of equity, and plaintiff appealed.

First — The statute provides that before judgment is rendered against a defendant constructively summoned, and who has not appeared, it shall be necssary that an( attorney be appointed, at least sixty days before the judgment is rendered, to defend for him, and inform him of the action, and of such other matters as may be useful to him in preparing his defense. That the attorney, as appointed, may take any step in the progress of the action, except filing an answer, without it having the effect of entering the appearance of such defendant. Gantt’s Digest, sec. 4727.

Mr. Newman, commenting upon a similar statute of Kentucky, says: An attorney so appointed cannot file an answer or allege new matter constituting a defense, counter claim, set oif, or cross-petition. New. Plead. & Prac., 568.

The attorney is appointed to protect the interest of the absent defendant, and not to give the court jurisdiction of bis person. Thomas v. Mahone, 9 Bush, 125.

As the statute does not prohibit it, we can see no good reason why the attorney may not be permitted to enter a demurrer to the complaint, as it is not an answer, and would not be an appearance for the absent defendant, when filed by virtue of his appointment only, as in this case. It might at least serve as a suggestion to the court that it had no jurisdiction of the subject matter of the suit, or that the complaint failed to show a cause of action. This the attorney might do orally, without filing a written demurrer. But if done in neither mode it would nevertheless be the duty of the court, before rendering a judgment or decree condemning the property of the absent defendant, to see that there was. a cause of action, within its jurisdiction, disclosed by the complaint.

The former practice of taking decrees pro confesso against defendants served by publication, and failing to appear, is not permissible under the present statute. Gantt’s Digest, sec. 2746.

The court is obliged to see that the plaintiff has proven such allegations of the complaint as the statute requires him to prove; and, in so doing, the court would necessarily have to know what the allegations were, and would render no decree upon a bad complaint.

So, if the attorney ad litem had interposed no demurrer, or been refused leave to demur, in this case, the court below should have dismissed the bill for want of equity, if the plaintiff made no case for relief, or could make none by amending the bill. ■

Second — The bill describes the land as “a certain plantation in Desha County, etc., containing about 467 acres, situated near Laconia, within what is known as the circle levee.”

When a bill seeks to charge land with the payment of a debt, it should be more particularly described, so that the court may lay hold of it, in rendering its decree. Williams et al. v. Ewing et al,. 31 Ark., 235.

But such defect in the description of the land might have been cured by ordering the plaintiff to amend the bill, and describe the land more specifically. It was not cause for general demurrer.

An authenticated copy of the deed, which was probably of record, by which it is alleged that the laud was conveyed to the husband in trust for the benefit of the wife, was not made an exhibit to the bill, or is it averred that it could not be procured. It is referred to in the bill in very general terms, and no attempt is made to set out its provisions. It might be necessary for the court to be better informed as to the contents of the deed before rendering a decree. Dobbin and wife v. Hubbard, 17 Ark., 189; Buckner & Co. v. Davis and wife, 29 Ib., 447. But the failure to exhibit a copy of the deed was not, under the Code Practice, ground of demurrer. The court could have required this to be done by rule.

That the wife may bind her separate property in equity for her debts, when she contracts in reference to it, is well settled. Dobbin and wife v. Hubbard, 17 Ark., 194; Buckner & Co. v. Davis and wife, 29 Ark., 447 ; Stillwell and wife v. Adams et al., Ib., 346; Wood and wife v. Terry et al., 30 Ark., 392; Palmer v. Rankins et al., Ib., 771.

In Stillwell and wife v. Adams et al., ex’rs, supra, Mr. Justice Walker quoted with approval the remarks of Mr. Perry: “That, under the old settlements in England, and in a few of the ' states, the general engagements of married women were enforced in equity against their separate estates, although those engagements had no reference to their separate estates, and were not for the benefit of the estates or of themselves personally.” But that “in a majority of the United States, a more limited rule was applied, and the contracts of married women were not enforced against their separate estates, unless these contracts were made in relation to their estates, and were for the benefit of their estates, or for their own personal benefit.” 2 Perry on Trusts, sec. 680, p. 279.

Under this rule it is not enough for the bill to allege that the wife contracted a debt, and that she had a separate estate, but it mast be shown that she contracted in relation to, or upon faith of her estate, and that the contract was for the benefit of the estate, or her personal benefit.

But it has been held that while this rule applies to the general debts of the wife, it does not apply in cases where the debt is contracted for the improvement or preservation of her estate; that in such cases it will be implied that she contracted upon faith of her estate, and meant to charge it. Shacklett v. Rebecca Polk, 4 Heiskell, 112; Cater v. Eveleigh, 4 Dessaussure, 19; James v. Mayrant, Ib., 591 ; Montgomery v. Eveleigh et al., 1 McCord’s Chy., 267; Gardner v. Gardner, 7 Paige, 112; Dyett v. North American Coal Company, 20 Wend., 570; Gardner v. Gardner, 22 Wend., 526 ; Yale v. Dederer, 22 New York, 450.

Mr. Bishop says : It is believed to be universal doctrine, if anything on this subject can be said to bo so, that, when a married Woman contracts for the benefit of her separate estate, and the contract is silent as to the source of payment, it shall be presumed to be a charged on such estate.” 1 Bishop on Married Women, sec. 875, p. 671.

The bill in this case charges, in substance, that the land-owners within the circle of the levee agreed to an assessment upon their lands ratably, to construct an inner line of levee, to protect them from overflow; that the sum apportioned to Mrs. Blackburn’s land was $266, and that being informed of the facts she approved of the agreement, promised that she and her trustee would pay the amount assessed to her land, and requested appellant, who had undertaken to superintend the construction of the levee, to proceed with the work, which he accordingly did, etc.

If the allegations of the bill be true, the construction of the levee was necessary for the protection and preservation of her separate estate. Without it, her plantation might have been greatly damaged by flooding from the river, and rendered comparatively valueless for cultivation.

The bill does not expressly allege that she agreed that the sum apportioned to her land, should be a charge upon it, but the facts alleged bring the’ case within the rule above stated.

Appellant prayed that the land might be attached, condemned by decree, and sold for the payment of the debt. -

It was held in Palmer v. Rankins, et al., supra, that the corpus of the wife’s estate could not be sold to satisfy a debt charged upon it, but her trustees should be decreed to pay it out of the rents and profits.

Whether in any case, where the estate yields no rents, the land could be sold to satisfy a debt charged upon it, we have no occasion to decide in this case.

It docs not follow that because a bill prays too much, that the ■complainant can get nothing.

If the trustee cannot be controlled by decree because be is a non-resident, the estate being within the jurisdiction of the ■court, it may be placed in the hands of a receiver, with directions to apply the rents in satisfaction of the debt charged upon it.

The decree must be reversed, and the cause remanded, with instructions to the court below to permit appellant to amend the bill in the matters above indicated, with leave to appellees to answer.

And appellees having appeared, by their solicitor, in court, and not by an attorney ad litem, they will be regarded by the court below’, on the cause being remanded, as personally in court.


text:
    Little, Trustee, vs. Dodge, Guardian, etc.
    1. Conveyance by Married Woman.
    Any substantial deviation from the form prescribed by the statute for the conveyance of real estate by married women, will render the deed invalid.
    2. -: Acknowledgment.

    A substantial compliance with the statute must affirmatively appear from the certificate of acknowledgment.
    8. Conveyance by Husband and Wire: Acknowledgment.

    The certificate of acknowledgment of a conveyance executed by husband and wife, must slate that the husband acknowledged that he had execu- , ted the deed for the consideration and purposes therein mentioned and set forth, and that the wife acknowledged that she had executed it for thepwrposes therein contained and set forth.

    4. Same.

      ■ The statement in the certificate of the wife’s acknowledment that she acknowledged that she signed said deed freely and of her own consent, but not by the persuasion or compulsion of her said husband, is equivalent to stating that she had “ of her own free will, executed the deed *■ * * without compulsion or undue influence of her husband,” and is a substantial compliance with the statute.

      5. -.
    When the acknowledgtneuL is taken before an officer having an official soai, it should be authenticated by his seal of office.
    APPEAL from Pulaski Chancery Court.
    Hon. John R. Eakin, Chancellor.

      Terry & Vaughan for appellant.

      Compton & Parsons, contra..

   English, Ch. J.:

On the 10th of December, 1872, Robert L. Steele, of Rockingham, North Carolina, acting by an agent, loaned to John W.. Moore, of Little Rock, $2200, for one year, at 20 per cent, interest. The interest for the year, amounting to $440, was added to the principal, and Moore and his wife, Sarah A., made a joint note for $2640, payable at twelve months, bearing" interest at 20 per cent, after maturity. To secure the payment of the note, the wife attempted to join the husband in executing a mortgage to, Robert A. Little, as trustee of Robert L. Steele, upon lot seven,, in block two, E. Q. P. Little Rock, which she inherited from her father, John Robins. The execution of the mortgage was, acknowledged before a notary public, who was, no doubt, ignorant of the law and forms of conveyancing, and who made a very defective certificate of the wife’s acknowledgment, and perhaps failed to authenticate it with his official seal. Afterwards Mrs. Moore died, leaving an infant son, John Slocum, by a former husband, who inherited from her the mortgaged lot. The bill in this case was brought in the Pulaski Chancery Court, against her surviving husband, alleged to be a tenant by the courtesy, and John Slocum, to foreclose the mortgage.

Creditors of John W. Moore were also made defendants, but they set up no claim upon the premises.

An answer was filed for John Slocum, by Moore, as his guardian, putting in issue tlie allegations of the bill.

During the pendency of the suit in the court below, Moore died, the relief prayed as to him was abandoned, and George E. Dodge, who succeeded him in the guardianship of John Slocum, was made defendant.

On the hearing, the Chancellor hold that the mortgage was not executed by Mrs. Moore in accordance with the statute, and hence was as to her and her heir invalid, and dismissed the bill for want of equity.

Plaintiff appealed.

It appears that a former suit had been brought to foreclose the mortgage, and that the papers in the case, including the original mortgage were misplaced or destroyed during the Brooks-Baxter war, some of the soldiers of Brooks having occupied the office of the Chancery Clerk.

A recorder’s copy of the mortgage was made an exhibit to the bill in this suit. The mortgage is in good form. The notarial certificate of acknowledgment is as follows:

“ State of Arkansas, County of Pulaski:

“On this, the 10th day of December, 1872, personally appeared before me, a duly commissioned and acting notary public The said J. W. Moore and his wife, S. A. Moore, grantors in the foregoing deed of conveyance, to me well- known as the parties to said deed, and acknowledged that they had signed and sealed the same as their act and deed, and the said S. A. Moore, and being duly by me privily examined separate and apart from her husband, she says she signed said deed freely, and of her own consent, and not by pursuasion or compulsion of her said husband.

“ Given under my hand and the seal office this 10 day of December, 1872. A. A. Stoddard,

Notary Public.”

There is nothing in the recorder’s copy to represent a notarial seal, the usual L. s. and scroll [l. s.] being omitted.

John Stoddard was called as a witness by appellant, and permitted by the court, against the objections of appellee, to testify as follows':

I was a duly commissioned and acting notary public on the 10th of December, 1872. I. had a seal of office at that time. It was my custom to affix said seal to all instruments of this kind.” (Examining the recorder’s copy of the mortgage made an exhibit to the bill.) “ To the best of my knowledge and belief, I affixed my seal to this instrument.”

On cross-examination he further deposed: “ I have no guide to refresh my memory except the certificate I sec to this copy. I know it was my custom to affix the seal to all instruments of this character. I have no personal recollection of the matter, but merely suppose I affixed the seal thereto, because I had a seal at that time, and it wras my custom to do so.”

On re-examination by appellant; I occupied the position of book-keeper at Stoddard’s Bank, at that time. I had more business of this kind than any notary in the city. I kept my seal at the bank. I do not think there is any probability of my having omitted the seal to this instrument.”

The depositions of the attorneys of appellant, who brought the first suit, and who had been in possession of the original mortgage, were taken and read, as to its loss, etc., but they did not state whether the certificate of acknowledgment was authenticated by the notarial seal, or not. Stoddard was the only witness who was examined as to this matter, and the Chancellor seems to have regarded his statement as insufficient to prove that the certificate of acknowledgment to the original mortgage was authenticated by the seal of the notary.

By the common law, a married woman could convey her real estate by a fine or common recovery. She could not convey by deed.

In England, and in most of the States of this Union, provision has been made, by statute, for the wife to convey her estate, by deed, with the consent of her husband, and the private examination of a magistrate.

By our Statute:

“ A married woman may convey her real estate, or any part thereof, by deed of conveyance, executed by herself and her husband, and acknowledged and certified in the manner hereinafter prescribed.” Gantt’s Dig., sec. 838.

She may relinquish her dower in any of the real estate of her husband, by joining with him in a deed of conveyance thereof, and acknowledging the same in the manner hereinafter prescribed.” Ib., sec. 839.

The conveyance, of any real estate, by any married woman, or the relinquishment of dower in any of her husband’s real estate, shall be authenticated and the title passed, by suc.h married woman voluntarily appearing before the proper court or officer, and, in the absence of her husband, declaring that she had,.of her own free will, executed the deed or instrument in question, or that she had signed the relinquishment of dower, for the purposes therein contained and set forth, without compulsion or undue influence of her husband.” Ib., sec. 849.

The acknowledgment of deeds, etc., within the State, may be taken before the Supreme Court, the Circuit Court, or either of the Judges thereof, or the clerk of any court of record, or before any justice of the. peace, or a notary public. Ib., secs. 841, 849. . .

Every court or officer that shall take the proof or acknowledgment of any deed or conveyance of real estate, or the relinquishment of dower of any married woman in any conveyance of real estate of her husband, shall grant a certificate thereof, and cause such certificate to be endorsed on said deed, instrument, conveyance, or relinquishment of dower, which certificate shall be signed by the clerk of the court when probate is taken in court, or by the officer before whom the same is taken and sealed, if he had a seal of office.” Ib., 844.

Inasmuch as a married woman could not, by the common law, convey her estate by deed, and can only do so by virtue of the statute, any substantial deviation from the form thereby prescribed, will render the deed invalid. McDaniel v. Grace et al., 15 Ark., 479; Stillwell and wife v. Adams et al., ex’rs., 29 Ark., 346; Wood and wife v. Terry et al., 30 Ib., 391.

A substantial compliance with what the statute requires to be done, ought affirmatively to appear from the certificate. A literal compliance with the statute is not required — the words of the statute need not be used — words of similar import may be employed, but the courts cannot dispense with a substantial compliance with the statute. They cannot supply, by intendment, important "words omitted in the certificate. Jacoway v. Gault, adm’r, 20 Ark., 194.

The certificate of the notary was not good as to the husband’s acknowledgment in this case. The statute requires the grantor, (other than a married woman,) to state “ that he had executed the same (the deed) for the considerations and purposes therein mentioned and set forth.” Gantt’s Dig., sec. 846.

The notary puts the husband and the wife together in the commencement of the certificate, and says that they acknowledged that they had signed and sealed the same (the deed) as their act and deed,” and then he drops the husband and takes up the wife. As to the husband, the words, for the consideration and purposes therein mentioned and set forth,” are "wholly wanting, and such an omission was held to be fatal, for the purposes of registration, in Jacoway v. Gault, adm’r.

In this case the certificate of the notary, as to the wife’s acknowledgment, omits the words of the statute, for the purposes therein contained and set forth,” and no words of similar import are used.

The wife is not required to declare that she had executed the instrument for any consideration, for that may go to the husband, but she must declare that she executed it for the purposes therein contained and set forth,” in the language of the statute, or in words of similar import, for she thereby indicates that she is acquainted with, or understands the nature of the conveyance; whether it be an absolute deed, a mortgage, or a lease, etc. It is' important that she should know the purposes and contents of the instrument which she is asked to execute, and the certificate of the officer taking the acknowledgment, should by words substantially equivalent to the language of the statute, show that fact.* It is safer and better to follow the language of the statute, and to use approved forms. The guards which the law-makers have placed around the wife, to protect her against imposition in the disposition of her estate, are not to be disregarded or displaced by the courts, but to be maintained, and the spirit and intention of the statute enforced.

When the wife conveys her real estate, she must declare that she had executed ” the deed, etc.

When she relinquishes dower in her husband’s lands, she must declare that she had signed ” the relinquishment of dower, etc.

In the original statute she was required to declare that she had “signed and sealed” the relinquishment of dower, etc. Gould’s Digest, sec. 21, ch. 37. But in the present Digest, Mr. Gantt left out the words “and sealed,” because by a clause in the Constitution of 1868, private seals were abolished.

In this case the wife attempted to convey her real estate, and, ip the certificate of her separate acknowledgment, the notary omits the wórds “executed the deed” and substitutes therefor the words “signed said deed,” etc.

In Jacoway v. Gault, adm’r, it was Held that the words “signed, sealed and delivered,” employed in the certificate were equivalent to the word “executed,” used in the statute.

In Tubbs et al. v. Gatewood et al., 26 Ark., 130, the validity of a wife’s deed for her land was questioned. In the certificate of her acknowledgment the words “signed and sealed” were used in the place of the word “executed.” Mr. Justice Harrison, who delivered the opinion of the court, said: “Though signing and

sealing, without delivery, is not a complete execution of an instrument, the phrase ‘signed and sealed’ in the certificate, was obviously used agreeably to the common understanding and acceptation of its meaning as an equivalent expression for ‘signed, sealed and delivered-,’ or ‘executed.’ ”

The statute requires the wife to declare that “she had, of! her ■own free will’executed the deed, etc., without compulsion or undue influence of her husband.”

The notarial certificate uses this language: “She says she signed said deed freely and of her own consent, and not by persuasion or compulsion of her said husband.”

The words “undue influence” are omitted, and others substituted of less force and appropriateness, but, while we arc not disposed to encourage, but to disapprobate, departures from the words of the statute, we cannot affirm that the words used by the notary are not a substantial compliance with the statute, they indicate a voluntary execution of the deed by the wife.

Mr. Gould appended to his Digest, as directed by the revision Act of 14th January, 1857, forms to be used by justices of the peace under the statutes. His work was examined and approved by George C. Watkins. Both of them were good lawyers, and experienced conveyancers.

The form of acknowledgment by husband and wife of a joint deed, for the wife’s land, furnished by Mr. Gould for the use of justices of the peace is as follows:

“State of Arkansas, County of-:

‘••'On this-day of-, in the year of our Lord one thousand eight hundred and-, before me--, an acting and duly commissioned justice of the peace within and for the county of ----, in the State of Arkansas, appeared in person------, to me well known as the person whose name appears upon the within and foregoing deed of conveyance, as one of the parties grantor, -and stated that he had executed the same for the consideration and purposes therein mentioned and sot forth, and I do hereby so certify.

“And I further certify, That, on this day, voluntarily appeared before me------, wife of said------, to me well known to be the person whose name appears upon the within and foregoing deed, and, in the absence of her said husband, declared that she had of her own free will executed the same for the purposes therein contained and set forth, without compulsion or undue influence of her said husband.

“In testimony whereof, I have hereunto set my hand as such justice of the peace, at the county of--on the- dav of --, 18--. J. R ”

This form complies with the requirements of the statute, ana is unquestionably good, and, with but little modification, maybe used by a notary public or other officer authorized to take acknowledgments.

Where the acknowledgment is taken by a notary public or other officer having a seal, it should be authenticated by his official seal. Blagg v. Hunter, 15 Ark., 246; Gantt’s Digest, sec. 4302, 877.

The Chancellor was not convinced from the evidence before him that the notary attached his official seal to his certificate of acknoAvledgment upon the original mortgage.

Had either of the attorneys in Avhose hands the original mortgage Avas placed for foreclosure, and who filed it as an exhibit in the first suit, and must have examined it when they drafted the bill, deposed that the notarial seal was attached to the certificate, this might have been satisfactory to the Chancellor, but neither of them so deposed. The notary founded his belief upon his habit of using his seal, and not upon any recollection of Avhat he did in this particular case.

We would not disturb the finding of the Chancellor upon a matter of fact, unless theye is a decided preponderance of evidence against his judgment, as avo have repeatedly held. But if the seal Avas in fact affixed, the certificate was otherwise fatally defective as above shoAvn.

It may be hard that appellant should lose the benefit of the mortgage by the negligence or incompetency of the notary, but Ave cannot change, or disregard the Ihav to prevent such hardship.

Decree affirmed.


author: í-ÍÁlUÍISON, J.:

text:
    Giboney vs. Rogers, Judge, etc.
    1. Depositions in Criminal Cases: Mandamus.

    Defendants in criminal cases are, under the statute, entitled to take the deposition of witnesses residing out of the State; and the Supreme Court will award a writ of mandamus to compel the Circuit Court to make the necessary order to enable the defendant to take the deposition in such a case.

      2.--.
    It is in t-tie discretion of the Oireuit (louvt to have a competent witness, who is confined in jail, brought before it by habeas corpus, to testify in behalf of the defendant in a criminal canse, or to allow the defendant to take his deposition, and the Supreme Court will not control the discretion of the Circuit Court by matulavvux.

    PETITION for mandamus.

      Clark & Williams {or petitioners.
   í-ÍÁlUÍISON, J.:

At a former day of the term, William S. Giboney presented to the court a petition, stating that an indictment for robbery is pending against him in the Circuit Court of Sebastian County, for the Greenwood District, to which it has been transferred by a change of venue from the Circuit Court of Logan County; that James R. Waddle, John McGregor, A. J. West and J. C. Dodson, of the County of Green, and Lizzie MeKnight, John McKnight, Brook Winn and Lizzie Winn, of the County of Christian, in the State of Missouri, and E. L. Mitchell, who is confined in the jail of Crawford County, but not under sentence for felony, are material witnesses for him, by whony he expects to prove, that when the alleged robbery was committed he was not in Logan County, but was, at the time, in the State of Missouri; that he had applied to the Hon. John H. Rodgers, Judge of the said Circuit Court, for an order authorizing him to take the depositions-of said witnesses, to be read in his behalf upon the trial; but that the said Judge had refused to make such order, and praying for a writ of mandamus to compel him to make the same. An alternative writ was issued, to which the Judge has made return and answer, that the law has made no provision for the taking depositions of witnesses out of the State, or under the circumstances shown in the petition, in criminal cases, and he has no authority to order the depositions of the witnesses named therein to be taken; and to the return the petitioner has demurred.

It is provided by sec. 1819, Gantt’s Dig., that “the court or Judge, in vacation, * * * * * may authorize a defendant to take the deposition of a material witness when there are reasonable grounds to apprehend, that' before the trial, the witness will die, or become mentally incapable of giving testimony, or physically incapable of attending the trial, or of becoming a non-resident of the State.”

In civil cases, provision is expressly made for taking depositions out of the State, and the section we have just quoted does not, in words, prohibit it, but, we think, inqxliedly admits and authorizes its being done in criminal cases. The power there given to take the deposition of witnesses, rvho there is reasonable cause to apprehend, may, before the trial die, or become mentally incapable of giving testimony, or who arc physically incapable of attending, is not restricted by the words of the statute, and we are of the opinion that it would be giving the statute a very narrow construction, and such as would be incon'sistent and at variance with its spirit and general purposes, so to limit it; for^ccrtainly the necessity is as great, and the reason as obvious for taking the depositions of a witness who has already moved from the State, or has never resided in it, as of one who is about to remove from it.

It was not, we presume, the intention of the legislature, when it enacted the section in question, as a part of the Code of Criminal Practice, to so alter or amend the law as it then stood in Gould’s Dig., sec. 130, ch. 52, which expressly provided for its being done, as to prohibit the taking of depositions out of the State, in criminal cases, and to make a distinction in that x’egard between them and civil cases. “It has been held ixxmany eases,”, says Sedgwick, “ that the inere change in the phraseology of a statute will not be deemed to alter the law, unless it evidently appears that such was the intention of the legislature”— Sedg. on Stat. and Const. Law, 197. In the matter of Brown, 21 Wend., 316, Yates’case; 4 John. 359; Theriat v. Hart, 2 Hill, 380. And Kent says . When the expression in a statute is special or particular, but the reason is general, the expression should be deemed general,” and again, when the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the objects and the remedy in view ; and the intention is to be taken or presumed according to what is consonant to reason and good discretion.” 1 Kent’s Com., 462.

As it is within the power of the Circuit Court to have the witness who is confined in jail, if not indicted with the petitioner, or otherwise incompetent, brought before it by habeas corpus, to testify in the case, it is within its discretion either to do so, or to authorize his deposition to be taken'; and its discretion in the matter' cannot be controlled by this court; but the demurrer must be sustained so far as the return relates to the taking of the deposition of the witnesses who reside in the State of Missouri —and as to the order therefor, a peremptory mandamus will be issued.


author: Habkison, J.:

text:
    Oliphant vs. Hartley.
    Fraudui.knt Conveyance: Parties: Judgmknt Lien, Bankruptcy.
    Hartley filed his complaint in equity in White Circuit Court, against Oliphant and his wife, charging that he had recovered judgment against him in said court — that execution was issued thereon and returned nulla bona —that Oliphant had previously fraudulently conveyed to his wife, to defraud his creditors, certain real estate to her sole and separate use, with the limitation that if she should die without disposing of it, the title should revert to him, and if he should die without disposing of it, and without children of him and his wife, it should vest in the heirs of both equally. Afterwards she died, and the suit was abated as to her. After the institution of the suit, Oliphant was declared a bankrupt, and discharged. lie plead his discharge in bankruptcy as his only defouse to the suit. The complaint prayed that the conveyance be held void, and the property sold to satisfy the judgment. After the death of Mrs. Oliphant, the plaintiff filed a supplemental complaint, stating that the' land had been sold under an execution on his judgment, and was bought in by himself at less than its value ; and asking that the sale be set aside and the land resold, offering to make it sell for as much as before. Held :

      First — That neither the assignee in bankruptcy, nor the heirs of Mrs. Oliphant, were necessary parties to the suit; and beside, tire objection to not making them parties was waived, by not demurring for that cause.

      Second — The judgment was a lion which could not be discharged by bankruptcy.

      Third — The court did not err in ordering a resale of the property, the plaintiff having offered to bid as much as it had sold for under the execution.
    APPEAL from White Circuit Court in Chancery.
    Hon J. N. Cypeet, Circuit Judge.
    Oliphant, p. p.

      Turner, for appellee.
   Habkison, J.:

This was a suit in equity, commenced on the 22d day of November, 1875, by John Hartley against Thomas J. Oliphant and Georgia Oliphant his wife.

The complaint, in substance, alleged that the defendant Thomas J. Oliphant was, on the 13th day of February, 1872, seized in fee of the southeast quarter of the southwest quarter of section ten, in township seven north of range seven west, and, by his deed of that date, for the alleged consideration of $800, therein pretended to have been received, conveyed the same to the defendant Georgia Oliphant his wife, to her sole and separate use, but with the limitations that should the same not be sold or disposed of in any way by her in her lifetime, the title upon her death should revert to said Thomas J. Oliphant; and, if not then sold or disposed of by him, upon his death, if there were no •children of him and said Georgia Oliphant, should pass to and vest in the heirs of both equally. And that on the 16th day of February, 1872, John B. Humphries, as administrator of Piety Plumphries, deceased, by deed of that date in consideration of $150, therein stated to have been paid by her, also conveyed to said Georgia Oliphant as her sole and separate property, and with the same limitations as in the said conveyance from her husband to her, lot No. 40 in the ten acre doiration in the town of Searcy.

That' on the 27th day of October, 1872, said Thomas J'. Oliphant applied to the plaintiff' to borrow the sum of $400, for which he proposed that he and his wife should give their joint note, saying at the time that he had no property, but that his wife had, and she would make it a charge upon her separate estate, that upon that condition he consented to lend him the; money, and he went to see his wife and she agreed to join with her husband in the note, and to bind her property for its payment, and, in accordance with that understanding and agreement, he loaned him the money, and he and she executed to him. their note for the amounts, payable on the 1st day of December, 1873, and to bear ten per cent, interest after maturity.

That after the maturity of the note, Thomas J. Oliphant paid •$162.59 but refused to pay the residue, and the plaintiff brought suit on the note before a justice of the peace, and recovered judgment for the balance — $280.27. The defendants took an appeal to the Circuit Court, where the plaintiff, on the 8th day of February, 1875, again recovered judgment for the same sum against Thomas J. Oliphant but not against Georgia Oliphant, who pleaded her coverture.

That afterwards he sued out an execution on the judgment and the same was returned unsatisfied for want of property, and that no part of the judgment had been paid.

That Thomas J. Oliphant, when he borrowed the money, and also at the time, when the conveyances were made to his wife, was insolvent. That the conveyances were voluntary aid without consideration, and made to defraud his creditors, and not only his then creditors, but also such subsequent or future creditors as he might have, it being his intention to create other debts, and by means of the conveyances to place said property beyond the reach of all of them. That the said lot No. 40 was sold by the administrator of Piety Humphries, under an order of the Probate Court, on the 8th day of January, 1872, and was bought by one Carter B. Humphries at the price of $150, who afterwards sold it to said Thomas J. Oliphant for $300 and a horse and buggy, which money and property was paid by him, but with the design mentioned he procured the conveyance, with the consent of said Carter B. Humphries, to be made by said administrator to his wife.

The prayer of the complaint was, that the conveyances to Georgia Oliphant be cancelled and set aside, or, if not that, the plaintiff’s judgment be declared a charge on the property, and that the same be sold to satisfy it.

After the institution of the suit Mrs. Oliphant died. The plaintiff filed a supplemental complaint in which, after stating-the death of Mrs. Oliphant, he stated he had since sued out an alias execution upon his judgment which had been levied upon the property, and the same had been sold under it, but that by reason of said Thomas J. Oliphant’s denial that it was subject to execution for his debts, and protest against the sale, no one except the plaintiff would bid for the property, and the lot in Searcy was purchased by him at $100, and the tract of land at §50, both greatly below their value; and offering to bid for the property as much as he had bid before, prayed that the sale under the.execution be set aside, and as in his original complaint for a sale under the authority of the court.

Upon the filing of the supplemental complaint, and the suggestion and proof of the death of Mrs. Oliphant, the cause as to her was ordered to abate.

Oliphant interposed no defence except his discharge in bankruptcy, upon petition filed by him, on the 28th day of June, 1876, and denied none of the allegations of the complaint.

The decree was that the conveyance from the defendant to Mrs. Oliphant be set aside and cancelled, and that that from John B. Humphries, as administrator of Piety Humphries, for the lot in the town of Searcy, be held as made to the defendant, as absolutely and in fee; that the sale under the execution be set aside and annulled, and that the property be sold to satisfy and discharge the plaintiff's judgment, but not for less than was bid by the plaintiff at the execution sale. No personal decree was rendered against the defendant for the debt.

It is objected by the appellant, that his assignee in bankruptcy, and the heirs of Mrs. Oliphant, should have been made parties; but it is a sufficient answer to this objection to say: if the assignee ■of the appellant, who had already received his discharge, and the heirs of Mrs. Oliphant might have been made parties, they were not necessary parties, as without whom a decree would not have been made; and the defendant by not demurring to the complaint, because they were not made parties, waived the objection. Gantt’s Digest, secs. 4564, 4567.

The appellee obtained his judgment, and his present suit was brought before the appellant filed his petition in bankruptcy, and though the appellant was personally discharged, the lien of the judgment upon the land was not extinguished. Rev. Stat. U.S., secs. 5066, 5075. Jackson et al. v. Allen, 30 Ark., 111 ; Bump on Bank., secs. 133, 316.

The appellant, also contends that the appellee, having, after the death of Mrs. Oliphant sued out an alias execution, and sold the property, had no right to proceed further in his suit.

We ax’e unable to see the force of this objection, and if it might be raised at all, it should have been in the court below befox-e tbe hearing. The appellee offered to rescind bis purchase, and asked that it be set asido and a re-sale ordered, and offering as a condition upon which it should be done, to bid as much for the property as he had at the sale under the execution. Certainly in this no wrong or injustice was done the appellant; on the contrary it was favorable and beneficial to him.

The decree is affirmed.


author: Habbison, J.:

text:
    Bertrand vs. Taylor.
    1. Evidence: Admission.

    Evidence that the account sued on was shown to and examined by the defendant, and he acknowledged its correctness, or made no objection to it, and that the joint cotton of himself and the plaintiff was shipped with the understanding that the account should be paid out of his part of the proceeds, is not conclusive against him, of the correctness of the whole account. It was a circumstance to he considered with other evidence by the jury.
    2. Same:
    Evidence is not admissible in behalf of a party that disproves admission in, his pleadings.
    3. Tenants in Common: Sight to sue co-tenant.

    One tenant in common cannot sue his co-tenant for his part of the joint property or its proceeds until it is divided, or the co-tenant has done some-act inconsistent with the ownership in common, or amounting to a denial of his right.

      4. Argument: Might to begin.

    The plaintiff has the right to open and conclude the argument whenever it devolves upon him to prove any issue in the case to maintain his action.
    APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Dodge & Johnson, for appellant.

      Carlton, eontra.

   Habbison, J.:

The appellee sued the appellant before a justice of the peace on the following account:

R. C. Bertrand to Ctesar Taylor, Du.

December 1st, 1874.

To ^ proceeds of 27 bales of cotton as per contract of labor, say....................... $700 00

Cb.

By cash paid Oseear................................ $175 00

By cash paid Henry................................ 40 00

By order for goods to Henry.................... 10 00

By | cost of bagging and ties.................. 81 00

By amount paid for picking..................... 100 00

--- 406 00

$294 00

The complaint alleged that the twenty-seven bales of cotton mentioned in the account were the common property of the plaintiff and the defendant, and that the same had been shipped and sold by the defendant, and the proceeds received by him. No demand upon the defendant for the balance alleged to have been due the plaintiff was averred.

The defendant’s answer admitted that the cotton was the common property of the plaintiff and the defendant, and that it had been shipped by himself, and twenty-six bales had been sold, one-half,. or the plaintiff’s share of the proceeds of which was $759.33; and denied that the other bale had been sold; and he claimed and filed a set-off of $732.60 for supplies and advances to the plaintiff and Henry Taylor.

The charges for supplies furnished Henry Taylor amounted to $91.83, one item of which was cash $40, November 9, 1874; another, order to Cleveland $.10, November 11, 1874, and another, cash to Jack Taylor on note $25, November 27,1874, and his account contained charges for money paid for cotton picking amounting to $233.47.

The suit was commenced on the 27th of March, 1875.

The plaintiff recovered before the justice of the peace, judgment for $231.59, and the defendant appealed to the Circuit Court when the plaintiff obtained a verdict and judgment for $99.18.

The plaintiff* read to the jury a contract in writing executed on the 2d of March, 1874, by the defendant, and the plaintiff and Henry Taylor, by which they agreed to cultivate together that year, 100 acres of the defendant’s plantation in cotton and corn, the defendant, besides the land, to furnish the necessary teams, feed for the teams, and farming implements, and the plaintiff and said Henry Taylor to do the work and labor in making and gathering the crop and ginning and baling the cotton, and to furnish one-half the bagging and ties; and the defendant to have one-half the crop and they the other. It was further agreed that if, at any time it became necessary, the defendant might employ other hands, and should be reimbursed what he paid on that account out of their part of the crop, and their part of the crop was not to be mortgaged, sold or removed from the place until the defendant was paid for all supplies and advances which he should make or furnish them.

He then introduced Henry Taylor, who testified that he was one of the parties to the contract, and a son of the plaintiff, and worked as one of the hands in the crop. That there were besides the plaintiff employed in making the crop seven hands, who, after it was made, assisted in picking the cotton, except the witness’ brothers Dick and Jack Taylor, who, after nineteen of the twenty-seven bales had been picked, quit and left the place, but, in about two weeks, returned and continued at work through the season, and the plaintiff was absent from the place three or four days. That only about one-third of the twenty-seven bales was picked by hired hands. And he said the charges in the set-off for advances and supplies to him, had been paid out of six bales of cotton, picked after the twenty-seven bales were shipped.

Jack Taylor testified for the plaintiff that he was a son of the plaintiff, and worked with him in making the crop and also assisted in picking part of the cotton. After about nineteen of the twenty-seven were picked, he left the place and remained away about two weeks. After his return he assisted in gathering the remainder of the crop, and worked for wages, which was to be paid, when the plaintiff should sell his part of it. That the defendant never paid him anything for his labor, but he paid him $25 for Henry Taylor.

Eranlc Taylor also testified for the plaintiff that only about one-third of the twenty-seven bales was picked by hands hired by the defendant.

The defendant testified in his own behalf that twenty-seven bales of cotton were ready for shipment on the 23d day of November, 1874, and the plaintiff wished to ship them to New Orleans, through Cleveland, Boyd <fe Co., of Pine Bluff, and to have them held for some time for an advance in price. The defendant would not consent to the removal of the cotton unless account for supplies and advances were paid, whereupon it was agreed and arranged between the plaintiff and him, that the defendant, who was then shipping to New Orleans seventy-four bales of his own cotton through the house of Cleveland, Boyd & Co., should also ship the twenty-seven bales along with it, and that when the same were sold, the account should be paid out of the proceeds by Cleveland, Boyd &Co. The defendant’s account, which is filed as his set-off, was at the time examined by the plaintiff, and he made no objection to it, and it was with his consent and concurrence, handed to J. T. Cleveland, of Cleveland, Boyd & Co., to be paid according to the agreement, and the cotton was accordingly shipped. The cotton, the 101 bales, except one bale which was rejected, was sold on the 4th day of March, 1875, but he did not receive the account of sales, or know what it brought, until after the commencement of the suit, and the last bale or that which was rejected, was not sold until after the trial in the Justice’s Court. The cotton was sold together and the twenty-seven bales Avere included in the account of sales Avith the defendant’s own cotton, and he Avould not identify any part of it. The hales Avere of average weight with the others,, but tiie quality was not as good. That his account, filed as a set-off, Avas correct and just and that the plaintiff had never, that he kneAV, denied or disputed its correctness until after the suit was brought. The payments charged therein for picking cotton were made by the direct instructions of the plaintiff, and in his presence or upon his order. That after the witnesses, Dick and Jack Taylor, returned, he paid them every Saturday morning for the cotton they picked for the plaintiff, during the week, and that during the picking of the twenty-seven bales Avas absent about two Aveeks. The wages he paid for picking Avas seventy-five cents per 100.

J. T. Cleveland testified for the defendant, in substance, the same as he did in regard to the shipment and sale of the cotton, and he further testified that it Avas agreed between the plaintiff and the defendant, that the latter’s account-should be paid by Avitness out of the defendant’s part of the proceeds, and the account or a statement of its amount was handed to him for that purpose. The defendant, after the suit was brought, called upon him for the account of sales of the cotton. He had before been informed that the cotton was sold, but had not received the account of sales. He wrote at once to the commission merchants for it, and, when he received it, he found that the twenty-seven bales were not distinguished from the other cotton and they Avrote that they had no means of doing it. One of the 101 bales AA'as rejected, though it appeared from the account of sales that all were sold, and he settled with the defendant for that after the the trial in the Justice’s Court. The sample of the tAventy-seven bales Avas not equal to that of the defendant’s cotton.

J. R. Harrison also testified for the defendant that he was the manager on the defendant’s plantation in 1874, and Aveiglied all the cotton raised on the place, that the tAventy-seven bales, owned in common by the plaintiff and defendant, Avero of average Aveight Avith the others shipped at the same time, but the quality Ayas not as good. He Avas present Avhen the account filed as a set-off Avas shown to the plaintiff, and was examined by him, and heard him consent to its payment out of his part of the proceeds of the cotton. The defendant paid Jack and Dick Taylor for the cotton they picked after their return to the place, as other hands hired by him. It took, he said, 1300 or 1400 pounds of seed cotton to make a bale. The account of sales was then read. It shoAAred the sales of 101 bales, for the net sum of $5898.50. ..

The defendant excepted to the refusal of the court to instruct the jury, that if they believed from the evidence the defendant’s account Avas shoAvn to and examined by the plaintiff, and he acknoAvledged its correctness or made no objection to it, and the cotton was shipped Avith the understanding that it should be paid out of his part of the proceeds, they should allow the whole of the account against the plaintiff’s demands.

There was clearly no error in the refusal to give this instruction, for though he may have admitted its correctness, when •shown to him, he was not precluded from proving at the trial that it W’as not true or contained charges that were not correct, and there was evidence which controverted some of the charges. Another instruction, which was given for the defendant to the ■effect that if the plaintiff, when the account was shown him, ■either admitted its correctness, or made no objection to it, that was a circumstance to be weighed with the other evidence when ■considering the set-off, stated the law upon that point correctly.

He also excepted to its refusal to aliow his counsel to open and ■conclude the argument to the jury, and in this also we think there was no error. It is insisted that, as the defendant admitted that he had received the plaintiff’s part of the proceeds of the cotton and that it was as much and even more than he claimed in the suit, and that he was entitled to a judgment for a balance, the ■controversy related only to the set-off, and the burden of proof was-on the defendant. But the defendant did not admit that all the- cotton, but only twenty-six bales had been sold; and the plaintiff was entitled, if the evidence showed a sale of the whole, ■and it so appeared by the account of sales, and that a larger sum had been received than was admitted, to amend his complaint. There was no evidence, however, that a larger sum was received. That admitted, the account of sales showed to be the proceeds of the twenty-seven bales. However, it devolved upon the plaintiff to prove a conversion by the defendant, for the plaintiff’s part of the proceeds of the cotton came lawfully into his hands, and that entitled him to open and conclude his argument. Gantt’s Dig., sec, 4668.

In respect to some of the charges in the set-off the evidence was conflicting, but it was the province of the jury to weigh the ■opposing statements of the witnesses and determine the disputed facts. We may, however, remark that some of the items in the set-off, we have particularly mentioned, are credited in the plaintiff’s account, and the testimony of the witness Henry Taylor,, that these,had been paid out of the proceeds of other cotton, ought not to have been received, and no doubt would have been excluded, if objected to.

The cotton being their joint property, the money for which it sold also belonged to them in common. Therefore, until it was divided, or the defendant had done some act inconsistent with such ownership in common, or which amounted to a denial of the plaintiff’s right, the latter could not maintain an action against him for his part. In the case of Southwork v. Smith, the Supreme Court of Connecticut say : “It is a general principle of the common law, that when personal property is owned by several persons, all of them are equally entitled to the possession of it. It results from this principle that when one of them ia in the actual possession of it, he has a right to maintain it against-the others. His possession is deemed in law to be the possession of all the owners, and there is no specific remedy by which he can be compelled to deliver the possession of it to the others. Nor does the mere possession of it render him liable to them, or any of them, for any injury done to it by him, short of a destruction of it, or a conversion of the whole of it to his own use, or that which is equivalent.” 27 Conn., 355.

The plaintiff made no demand upon the defendant before his suit was brought, and there was no evidence of anything like a conversion by him of the plaintiff’s part of the money; on the contrary, it was proven that he had not, when the suit was commenced, received the account of sales, and did not know for how much the cotton sold, and was in fact unable to settle with the plaintiff concerning the cotton.

The judgment of the court below is reversed, and the cause remanded, with instructions to grant the appellant a now trial.