text:
    Tuck vs. Town of Waldron.
    Liquor License: Municipal authority.

    The provisions of sec. 12 of ilie act of March 9fch, 1875, providing for the incorporation of cities, towns, etc., which authorizes them to li'cense, regulate, tax, or suppress tippling houses and dram shops, and other places of habitual resort for tippling, etc., does not confer upon them the power to prohibit the sale of ardent or vinous spirits, in any qualities, or by any persons, without license from the corporation. Nor have they such power by the provisions of the 22d section of the act. The general powers therein conferred do not enlarge the special powers conferred in the 12th section.
    APPEAL from Scott Circuit Court.
    Hon. L. J. Joyner, Circuit Judge.

      Walker & Rogers, for appellant.
   English, Ch. J.:

On the 26th January, 1876, an affidavit was made before the mayor of Waldron, charging that W. L. Tuck “did sell ardent and vinous liquors inside the corporation of Waldron, without first having obtained license, as required by an ordinance adopted by the town council of said town.”

The defendant demurred to the charge ; the mayor overruled the demurrer, and the defendant, declining to answer further, was fined $25, and appealed to the Circuit Court, where the demurrer was renewed and overruled. The defendant was then tried by a jury, on the plea of not guilty; found guilty, and fined by the court $25 ; moved for a new trial, which was overruled, and he excepted, and appealed to this court.

On the trial, appellee proved that appellant, on the 26th January, 1876, sold to one A. J. Patrick, within the incorporated limits of the town of Waldron, one-half gallon of whisky.

Appellee also introduced the following ordinance:

“Section.1. Be it enacted by the town council of the incorporation of Waldron, that hereafter it shall be unlawful for any person to sell ardent or vinous liquors inside the limits of the incorporation of Waldron, without having first paid the incorporation license, as required by the laws and ordinances of said incorporation.
“Sec. 2. Any person violating this ordinance shall be fined in any sum not exceeding $25.”

This ordinance was passed, from indications in the transcript, 5th January, 1876.

Appellant proved that on the 25th of August, 1875, a firm, of which he was a member, obtained a county license to carry on the business of selling wines and liquors in Waldron, for the term of one year; also, a State license to sell ardent or vinous liquors, either at wholesale or retail, in quantities not less than one quart, at the same place, and for a like period.

Appellant also proved, that the town of Waldron was not incorporated until the 6th November, 1875.

The court, at the instance of the appellee, and against the objection of appellant, instructed the jury, that if they found that appellant sold the half gallon of whisky in the incorporated town of Waldron, since the 5th day of January, 1876, they would convict him.

The appellant moved the following instruction, which the court refused :

“ If the jury find, from the evidence, that the State and county licenses of defendant, introduced in evidence, bear date the 5th day of August, 1875, and were for the space and period of one year from their date, and that the said town of Waldron was not incorporated until the 6th day of November, 1875, they will acquit.”

Sec. 12 of the general act of March 9th, 1875, providing for the incorporation, etc., of cities and towns (acts of 1874-5, p. 1) expressly empowers all municipal corporations to license, regulate, tax, or suppress, tippling houses and dram shops, etc.

They are also expressly empowered to regulate or to prohibit ale and porter shops or houses, and public places of habitual resort for tippling and intemperance, and to declare what are such. Id., sec. 17.

The appellant was not charged with keeping a tippling house, dram shop, or saloon, or with selling wines or liquors in small quantities. He was charged, in general terms, with selling ardent and vinous liquors within the limits of the incorporation without town license, and the proof was that he sold a half gallon of whisky.

In the act for the incorporation of cities and towns, there is no-express grant of authority to municipal corporations to require persons who wish to engage in selling wines and liquors by the quantity, or otherwise than as keepers of.tippling houses or dram shops, etc., to obtain corporation license.

It is claimed, however, that they have such authority under general powers granted by the act.

Sec. 22 empowers them to make by-laws and ordinances for carrying into effect the powers, and discharging the duties conferred upon them by the act; and declares that they shall have power “to make and publish such by-laws and ordinances, not inconsistent with the laws of the State, as to them shall seem necessary to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort and convenience of such corporations, and the inhabitants thereof.”

The rule seems to be, as stated by Judge Dillon, that “When there are both special and general provisions, the power to pass by-laws under the special or express grant, can only be exercised in the cases, and to the extent, as respects those matters, allowed by the charter or incorporating act; and the power to pass bylaws under the general clause does not enlarge or annul the power conferred by the speoial provisions in relation to their various subject matters, but gives authority to pass by-laws, reasonable in their character, upon all other matters within the scope of their municipal authority, and not repugnant to the Constitution and general laws of the State.” 1 Dillon on Mun. Corp., sec. 250, p. 275-6; State v. Ferguson, 33 New Hamp., 424; City Grand Rapids v. Hughes, 15 Mich. (2 Jennison), 52; Harris v. The Intendant and Council of Livingston, 28 Ala., 577; City of Burlington v. Kellar, 18 Iowa, 59.

Under this rule, the council of Waldron had no power to pass the ordinance for the violation of which appellant Avas convicted.

It undertook to prohibit the sale of ardent or vinous liquors, in any quantities, and by any person, without corporation license; when the act under which the town Avas incorporated only authorizes the council to license, regulate, tax, or suppress, tippling houses and dram shops (sec. 12), and to regulate or to prohibit ale and porter shops or houses, and public places of habitual-resort for tippling and intemperance. (Sec. 17.)

If the legislature intended to authorize municipal corporations to require all persons who Avish to engage in selling wines and liquors, in any quantities, Avithin their corporate limits, to obtain corporation license, the intention should, and probably Avould, have been expressed in the act, and not left to inference.

Municipal corporations must confine their legislation within the scope of the poAvers conferred upon them by their charters. Martin, ex parte, 27 Ark., 467.

The judgment of the court below must be reversed, and the cause remanded, with instructions to the court to discharge the appellant from further prosecution for the offense charged against him.


source: Caselaw Access Project

author: English, Ch. J. :

license: Public Domain

text:
    Williams vs. Dorris et al.
    Honjsstead : Occupancy and dwelling essential to.

    A mere intention to build a dwelling house on a tract of land and occupy it as a homestead, does not impress it with that character, until the intention is carried into effect. A house or dwelling upon the land is necessary to place it within the protection of the law as a homestead.
    APPEAL from Jefferson Circuit Court in Chancery.
    Hon. J. A. Williams, Circuit Judge.

      H. Carlton, for appellant.

      Carroll & Jones, and J. M. Moore, contra.

   English, Ch. J. :

On the 1st February, 1873, Wm. P. Williams (and wife) executed a deed of trust, conveying to Wm. F. Owen, as trustee, the west fractional half of section 5, and the northeast fractional quarter of section 6, township 6 south, range 7 west, situate in Jefferson County, known as the New Gascony place, containing by the original surveys about '430 acres, to secure the payment of $55,000, evidenced by three notes made by Williams to George P. Dorris for equal sums, q>ayable annually, with power to the trustee to sell the premises in default of payment.

On the 27th March, 1874, Williams (and wife) by deed with covenants of warranty, conveyed an undivided half of the lands to John Roth.

Owen, the trustee, died, and John L. Buck was substituted by an order in chancery, and on the 13th of February, 1875, he advertised the lands for sale, under the deed of trust, to pay the two notes then matured.

Williams filed the bill in this ease to enjoin the sale, claiming an undivided half of the land as a homestead, under the exemption clauses of the Constitution of 1868, praying that the lands be partitioned between him and Eoth, and that his half be set apart to him, and protected as a homestead, etc.

Dorris answered the bill, controverting the homestead claim of Williams, and made his answer a cross bill, praying the foreclosure of the trust deed, and sale of the lands for the payment of the secured debt. All of the persons interested in the lands were made parties.

On the pleading and evidence, the court found that the homestead claim of Williams was not well founded, and decreed in accordance with the prayer of the cross bill of Dorris, directing the undivideded half of the lands still held by Williams to be first sold for the protection of Eoth, etc., and Williams appealed.

It is clear from the evidence that, though appellant was a married man, and the head of a family, he was not residing on or occupying any part of the lands, with his family, at the time the deed of trust was executed (1st of February, 1873). He had then no sort of a family dwelling or home on the lands. He had .a storehouse on the lands, and was there in the day time, attending to mercantile business, but resided with his family at the house of Major Hall, on another place, about two miles away. In December, 1872, he purchased lumber at Pine Bluff, and contracted with Madding to build him a dwelling house at New Gascony; the lumber was taken down the Arkansas Eiver on a flat boat built for that purpose, and placed upon the land in controversy in March, 1873 (after the execution of the deed of trust), -the dwelling house was completed in August following, and appellant moved into it, with his family, and continued to occupy it until tbe filing of this bill. Before the execution of the deed of trust,, he had expressed to his clerk, and-some other persons, perhaps,, his intention to build him a dwelling on the land, and claim it as a homestead, but such intention was not made known, it seems,, to Dorris when or before the deed of trust was executed, or to-Roth, when he sold to him an undivided half of the lands.

Sec. 2, Art. xii, Constitution of 1868, declares that the homestead of any resident of the State, who is a married man or head of a family, shall not be incumbered in any-manner while owned: by him, except for taxes, efe., etc.

This section does not define the homestead, otherwise than by the use of the term which has a settled meaning. Tumlinson v. Swinney, 22 Ark., 402.

Section 3 limits the homestead exemption to 160 acres of land' in the country,- and the dwelling and appurtenances thereon, tc be selected by the owner, or, in lieu thereof, any lot in a city, town or village, with the dwelling and appurtenances thereon,, owned and occupied by any resident of the State, etc. See Greenwood and Son v. Maddox & Toms, 27 Ark., 648.

The homestead is the place of a home or house — that part of a man’s landed property which is about and contiguous to his-dwelling house. A homestead necessarily includes the idea of a. house for residence, or mansion house. The dwelling may be a splendid mansion, a cabin, or tent. If there be either, it is under the protection of the law, but there must be a home residence before it, and the land on which it is situated, can be claimed as a homestead. Tumlinson v. Swinney, supra; McKenzie v. Murphy, 24 Ark., 157.

The married man or head of a familv must occupy the land— it must be his home or dwelling place — to impress upon it the character, and place it under the protection of the law, as a homestead. Johnson et al. v. Turner, adm’r., 29 Ark., 280; Elston & Green v. Robinson, 23 Iowa, 210; Charless et al. v. Lamberson, 1 Iowa, 435.

The solicitor of appellant relies upon a remark of Ch. J. Hemphill, in Franklin v. Coffee, 18 Texas, 417, to sustain his homestead claim.

In that case Franklin and wife claimed a tract of land as a 'homestead which had been levied on and sold under an execution. Franklin had never resided or dwelt upon the land — his .home was not upon it. The court held that it was not protected from execution as a homestead. Hemphill, Ch. J., who deliv-. ered the opinion of the court, after defining the term homestead —saying it necessarily includes the idea of a house for residence ■or mansion house — and deciding that Franklin's homestead was not well founded, remarked that it would not be “necessary to .secure the exemption, that a house should be built or impr wements made. But there must be a preparation to improve, and •■this must be of such a character and to such extent as to manifest, beyond doubt, the intention to complete the improvements ■and reside upon the place as a home.”

After other remarks, he added: “In this case there was no house or home upon the land. The plaintiff had not resided there before or since his marriage, tie had made no preparation ■or done any acts which would evince a fixed intention and purpose to select and appropriate the place as a home.”

In this case it is insisted for appellant that he had made preparation to build his dwelling house on the land before he executed the trust deed.

It is true that it appears from the evidence that he had purchased lumber at Pine Bluff, and employed a man to build him a house. But he had made no preparation on the land for building his house. The lumber was not brought upon the land, nor the dwelling commenced until after he had executed the deed of trust.

In Elston & Green v. Robinson, 23 Iowa, 211, the court said: “The fact that the owner commenced a building upon a lot before the right of the creditor attached, but which, by no other act of the owner, had been impressed with the homestead character, would not make the same exempt. Under our statute there is an unbroken series of decisions that occupancy, the use of the house by the' family as a homestead, are essential requirements to impress the property with the character of a homestead. A mere intention to occupy it, though subsequently carried out, is not sufficient.”

In Lee v. Miller, 11 Allen (Mass.), 38, the claimant had recorded a declaration in writing of his intention to make the premises a homestead, and commenced to build a house, but had not occupied the premises as a family residence when the credit- or’s right attached, and it was held that the premises were not exempt from execution.

The decree of the court below must be affirmed.


author: Walker, J.:

text:
    Earle’s adm’x vs. Hale’s adm’r.
    Landlord and Tenant: Estoppel.

    A lessee, or one who comes into possession of the land under him by the-assignment of the lease, and recognizes the right of the landlord by the payment of rent, cannot, so long as the title remains as it was when the tenancy accrued, deny the title of the landlord.
    APPEAL from Garland Circuit Court.
    Hon. J. M. Smith, Circuit Judge.

      Howard, for appellant.

      Glarh <& Williams, contra.

   Walker, J.:

Hale brought suit in the Hot Spring Circuit Court against Joseph Earle and others for the use and occupation of a tavern house, situate in the valley of Hot Springs, in said county.

Hale alleges that he is the owner of a lot of land and a tavern house, situated in said valley, and was in actual possession of it. That he, on the-day of--, 1866, leased said house and lot to one Taylor, for four years, upon terms therein specified, by which Taylor was to occupy and use the lot for four years, pay to Hale rent for the same, without abatement for improvements made, and return the house to Hale at the expiration of the lease. That before the lease expired, Taylor assigned his deed of lease for the unexpired term, under which defendants entered. That Taylor and defendants paid the rents to plaintiff for the time the lots were held by Taylor, and that defendant paid several sums to Hale for rent afterwards, but refused after the expiration of the lease to make further payments. That after the lease expired defendants held possession and used the property until June, 1871.

Defendants admit the possession and occupancy of the house, but deny that they rented the house of plaintiff, or held possession under him ; deny plaintiff’s title to the property, but admit that they went into possession under Taylor, who leased of plaintiff.

The material facts, as derived from the pleadings and the evidence, are that Hale, in 1840, bought of one Percival an improvement on lands belonging to the United States; that he took possession of the improvement, and resided upon and occupied it as an actual settler; that, being in such actual possession, he leased the house and lot to Taylor, by written lease, for four years, upon terms agreed upon. Taylor was to pav rent, and, without abatement for improvements made by him, at the expiration of the lease to deliver peaceable possession to Hale. Before the time expired, Taylor assigned his lease, and under such assignment defendants took possession.

The grounds of the defense are that Hale had no title to the land, and that defendants did not rent of him, and are not his tenants.

If in fact Hale was in possession of the house, and rented or leased it to Taylor, and defendants entered under Taylor, and held under his unexpired lease, and so entering continued in possession, and after such entry paid rent to Hale, they must be held as tenants under Hale, and are estopped from questioning Hale’s title to the land, or to the house and improvements upon it.

As between these parties it is a matter of no importance whether the United States was or not the legal owner of the property. The United States might, perhaps, in strictness, treat Hale as a trespasser, but as an actual settler upon public lands, his occupancy has not only been tolerated, but actually encouraged by several acts of Congress.

The houses and improvements upon the public lands have been recognized and held as the property of the occupant by acts of State legislation, and by many decisions of this court. They are held to be the property of the occupant, or party making the improvement of value, and the subject of transfer and sale. Pelham v. Wilson, 4 Ark., 289 ; Cain v. Leslie, 15 Ark., 312 ; Glanton v. Anthony, id., 543.

The only question presented, is not whether the' plaintiff had, or not, a title to the lot and house, but whether the defendants derived their rights of use and occupancy of the house from plaintiff; if such was the case, it is well settled that.the tenant cannot dispute the title of the landlord under whom he entered. Clemm v. Wilcox, 15 Ark., 102.

If, however, the title of the landlord is extinguished, and the legal title has passed to another, then, from that time, the tenant might interpose such defense, because, after the landlord had parted with his title, the tenant would be responsible to the true owner. In Bettison v. Budd, 17 Ark., 452, it was held that so long as the title remains as it was when the tenancy accrued, the tenant has no right to question his landlord’s title.

The entry under Taylor’s lease was, in effect, an entry under Hale. By force of the assignment of the lease, defendants took the place of Taylor, and were under like obligations to Hale. The payment of rents to Hale, after they entered under Taylor, was an acknowledgment of the relations of tenant and landlord.

The several instructions given by the court to the jury, and to which exceptions were taken, were fully sustained by the authorities referred to, and for the giving of which there was no error.

The evidence fully sustained the verdict of the jury, and the court did not err in refusing to set aside the verdict and grant defendants a new trial.

Let the judgment be affirmed.


author: Wanker, J.:

text:
    Earle’s adm’x vs. Hale’s adm’r.
    1. Injunction of proceedings at low.

    A bill in chancery filed to enjoin tlie institution of proceedings at law to deprive the plaintiff of the possession of land, in which it is alleged that i the defendant has no title to the property, or right of possession, presents no grounds for relief.
    2. ---: Same.

    A party seeking to enjoin proceedings at law, must suffer judgment to go against him, and proceed to enjoin the enforcement of the judgment.
    3. --: Dissolution.

    Upon the dissolution of an injunction to restrain proceedings at law for the recovery of land, and dismissal of the bill, it is error for the court to decreee possession of the property to the defendant, where no cross bill is filed, or claim for possession asserted on the part of the defendant.

      APPEAL from Garland Circuit Court in Chancery.
    Hon. J. M. Smith, Circuit Judge.

      Howard, for appellant.

      Glarh & Williams, contra.

   Wanker, J.:

Joseph Earle, since deceased, and of whose estate the plaintiff, Elizabeth Earle, is administratrix, filed his bill in chancery to enjoin the defendant Hale from ejecting him by legal process from the possession of a tavern house, situate in Hot Springs valley, in what was then Hot Spring, now Garland County.

Plaintiff alleges that he has erected valuable buildings on a lot in said valley, equal or exceeding two-thirds of the entire value of the improvements on the lot. That defendant Hale has no title to the property, or to the possession of it. That plaintiff does not occupy or hold the property under Hale, but in his own right; that Hale pretends to have a claim to the property, and to the possession of it, and has given notice to plaintiff to deliver possession of the property, and threatens to sue plaintiff and get possession of the same. And prays that he may be enjoined from doing so. A temporary injunction was granted.

Hale, in his answer, denies all of the material allegations of the bill; asserts title to the house, and a right to the possession of it; says that defendants are tenants, and entered into possession under Taylor, to whom plaintiff leased the house.

Depositions were taken, and the cause heard upon pleadings and evidence, upon consideration of which a decree was rendered in favor of defendant, dissolving the injunction, rendering damages upon its dissolution, and giving to the defendant possession of the property.

Plaintiff appealed.

The bill presents no sufficient grounds for equitable relief. If, as is alleged, Hale had 'no right to the property, or to the possession of it, and if plaintiff had such right, there is no reason why a complete defense in an action at law might not be interposed, and thus have.protected the plaintiff in his possession.

The defendant had brought no action to eject or disppssess the plaintiff, or, if he had, no irreparable injury is alleged as likely to accrue to plaintiff. The mere allegation that defendant had given notice to surrender possession, and threatened to bring suit, is not sufficient, because, even. if suit had been brought to dispossess plaintiffj the suit should be permitted to progress to judgment, before an injunction to restrain its enforcement should be granted. A party is never permitted to litigate both at law and in equity at the same time in regard to the same subject matter. Conway v. Ellison, 14 Ark., 360; Herndon v. Higgs, 15 Ark., 392. No irreparable injury is alleged as likely to affect the rights of plaintiff. Blakeley v. Furguson, 14 Ark., 641.

The bill is so fatally defective that, if undefended, no valid decree could have been rendered upon it.

The court below properly refused the relief sought, and in decreeing that the injunction should be dissolved, and in the assessment of damages by consent of parties, and in the decree rendered for the sum found to be due, did not err.

But that part of the decree which directs that the defendant be put in possession of the property, under the state of the pleadings, cannot be sustained.

There was no cross bill filed, no claim for possession asserted, or put in issue by the pleadings.

Let so much of the decree as dissolves the injunction, and assesses and decrees damages upon the dissolution of the injunction, stand, with costs in the court below; and that part of it which decrees possession of the property be reversed, with costs in this court.


author: Harrison, J,:

text:
    West et al. vs. Carolina Life Ins. Co.
    1. Evidence: Variance, etc.

    In an action by a corporation on a bond, it was ’ alleged in the complaint that the name of the corporation had been changed since the execution of the instrument: Held, that under the allegations the bond was admissible in evidence.
    2. --: Finding of the court not disturbed on weight of evidence.

    The finding of a court sitting as a jury will not, where there is a mere conflict of evidence, be disturbed .any more than the verdict of a jury would be under similar circumstances.
    3. Accord and satisfaction:
    An answer, in bar of an action of debt on a bond, that the defendant effected a policy of insurance on his life, which was held by the agent of the plaintiff as security for the debt, presents no defense, and is demurrable.
    4. Corporation: Forfeiture of franchise, plea of, etc.

    An answer to an action by a corporation, that it had forfeited its charter by non user, without averring that a forfeiture had been declared by judicial proceedings for that purpose, is demurrable.
    APPEAL from Phillips Circuit Court.
    J. N. Cypert, Circuit Judge.

      Adams, for appellant.

      Palmer, contra.

   Harrison, J,:

This was a suit by the Carolina Life Insurance Company, of Memphis, a corporation chartered by the Legislature of Tennessee, and having its domicil in that State, against George West and Richard H. Hargraves, on a bond executed by said West, as principal, and said Hargraves, as his surety, in the penal sum of $2,000, conditioned for the faithful discharge of his duties by West, who had been appointed a local agent of the company, and especially that he should account for and pay over all moneys of the company that, should come to his hands. The breach of the condition alleged was, that he had failed to pay over $1,289.52, received as premiums on the company’s policies.

The bond, which was executed on the 9th of August, 1869, was made to the plaintiff by its then name of the Carolina Insurance Company of Memphis. On the 12th of November, 1867, the Legislature of Tennessee passed an act changing the name to that of the Carolina Life Insurance Company of Memphis. The. suit was commenced in the former name, but the mistake was corrected after the defendants had appeared and filed an answer, by an amended complaint, in the plaintiff’s proper name, and in which such change of name was. averred and shown.

The answer to the original complaint admitted the execution of the bond, and the receipt of the moneys by West, but claimed that the same had been paid, and the liability discharged. The defense was set forth in two paragraphs, the first of which was as follows:

“The defendants deny that they owe to the plaintiffs the sum demanded, to-wit: the sum of ¡$1,289.52, but on the contrary thereof, they charge the fact to be, that the said George West, on the 14th day of August, 1869, paid to one L. C. Trezevant, of the firm of J. T. Trezevant, jr., & Bro., State agents of the Carolina Insurance Company, the sum of $200, and he arranged and paid the balance of said amount on the 16th day of July, 1869, in the following manner, to-wit: It was proposed that he, the said George West, should submit to an examination by the medical examiner of said Carolina Insurance Company, with the view of making an application to said company for an insurance upon his life, to secure said debt; that he did submit to said medical examination, and the same was satisfactory, and an application was made for, and a policy of insurance upon the life of him, the said West, for an amount amply sufficient to cover said indebtedness was issued by said company, and is now held by said J. T. Trezevant, Jr., & Bro., as ultimate security for said debt.”

The second paragraph was to the effect that the said J. T. Trezevant, Jr., & Bro., the State agents of the plaintiff, had paid the arrearages to the plaintiff, and for their indemnity had taken from them a policy of insurance on the life of West.

After the filing of the amended complaint, the defendants filed a further answer, in which they pleaded: First — That the plaintiff had forfeited its charter and franchises by non user. Second —That there was no such corporation as the plaintiff; and, Third — That it had, since the commencement of the suit, assigned and transferred all its business, assets, rights, credits, effects and choses in action, including that sued on, to the Southern Life Insurance Company. ^

The plaintiff demurred to the first paragraph of the original, and to the first, also, of the supplemental or amended answer, and both demurrers were sustained.

Thp cause was submitted to the court as a jury, which found for the plaintiff, and assessed its damages at $1,089.52.

Motions for a new trial, and in arrest of judgment, were filed in their order, by the defendants, and overruled. The defendants appealed.

The grounds of the motion for a new trial were : First — That the court admitted incompetent evidence for the plaintiff. Second — That its finding was contrary to the law and the evidence.

The defendants objected to the reading of the bond sued on as evidence. The ground of their objection is not disclosed by their bill of exceptions, but it is insisted here that it should have been excluded for irrelevancy. The bond was the foundation of the action; it was averred in the complaint to have been made to the plaintiff; and also that the plaintiff’s name, after its execution, had been changed by the Legislature of Tennessee to that by which it sues. It was, therefore, most clearly relevant and competent evidence.

The deposition of B. F. Boyle was also objected to, and it seems for the same reason.

The plaintiff, by this witness, who was the secretary of the Company, proved the state of West’s account, and the amount of his arrearages. The objection of irrelevancy to this evidence has no other foundation than the assumed want of identity of the plaintiff with the corporation to which the bond was given, which, as we have just seen, is wholly untenable.

The corporate existence of the plaintiff, and its capacity to sue, were conclusively proven by the production of the acts of the legislature of Tennessee, incorporating it, and afterwards changing its name. Other evidence on the part of the plaintiff, ■conduced to show that no part of the sum claimed, except $200 paid to J. T. Trezevant, Jr., & Bro., the general agents of the plaintiff, had been paid ; and the only evidence offered by the defendants was that of Hargraves, who testified that - Trezevant, of the firm of J. T. Trezevant, Jr., & Bro., came to see him several times about West being in arrears to the company, and he told him they had paid the company the amount, and they thought it very hard they should lose it.

The evidence, if true, fully sustained the finding of the court; and as it is the province of the jury to determine questions of fact, the finding of the court, sitting as a jury, will not, where there is a mere conflict of evidence, be disturbed, any more than the verdict of the jury would be under similar circumstances.

No cause therefore was assigned in the motion in arrest of judgment, and we need only consider the questions presented by the demurrers.

It was not shown in the first paragraph of the original answer at whose instance the insurance on West’s life was obtained, or that it was accepted in satisfaction of the debt; but, on the com trary, it appears that it was only intended as a security. Effecting an insurance on West’s life, as an indemnity, had no semblance of an accord and satisfaction of the debt, if such was intended to be pleaded, and we cannot conceive what else was intended. There cannot be an accord and satisfaction without the delivery or acceptance of something in satisfaction of the debt or damages demanded. 2 Green. Ev., sec. 28 ; Ballard v. Noaks, 2 Ark., 45; Levy v. Very, 12 Ark., 148.

The plea or defense that the plaintiff had forfeited its charter and franchises by non user, without an averment or showing that a forfeiture thereof had been declared by a judicial proceeding for that purpose, was manifestly bad, and the demurrer to it properly sustained.

The judgment is affirmed.


author: Harrison, J.:

text:
    Long vs. DeBevois & Co.
    Parties: Waiver, etc.

    Misjoinder of parties plaintiff cannot be taken advantage of in this court, unless the objection was raised in the court below.
    APPEAL from Pulaski Circuit Court.
    Hon. —:--, Circuit Judge.

      Gallagher & Newton, and Farr, for appellant.

      Cohn, contra.

   Harrison, J.:

This was a suit, commenced before a justice of the peace, on a promissory note for $175.68, made by the defendant Henry W. Long, and payable to Chas. Northrop & Co.; and was brought in the names, as plaintiffs, of S. H. DeBevois and Chas. Noi’throp & Co. With the note was also filed a complaint, in which it was stated, that-the firm of Chas. Northrop & Co., was composed of Chas. Northrop and the said S. H. BeBevois;. and that said Be Bevois was- the successor in business of said firm, and sole owner of the note. The defendant was summoned to answer S. H. Be Bevois and Chas. Northrop & Co. From a judgment in favor of the plaintiffs, the defendant appealed to the Circuit Court, where upon a trial by the jury, the plaintiffs again obtained a verdict for the amount of the note.

Without moving for a new trial, or reserving by bill of exceptions, or in any other manner, the evidence, or any question of law, the defendant appealed to this court. He insists here, that the action was not brought in the names of the proper parties; that it should have been in the names of S. H. BeBevois and Chas. Northrop, and not in the names of S. H. BeBevois and Chas. Northrop & Co.

If this might have been a valid objection at any stage of the proceedings, it should have been taken below, whilst such error could have been corrected by amendment; but the defendant having failed to take it there, must be considered as having waived it, and cannot be admitted to raise it for the first time in this court.

The Code, sec. 1100 Gantt’s Bigest, expressly declares that “ a judgment or final order shall not be reversed for an error, which can be corrected on motion in the inferior courts until such motion has been made there, and overruled.”

The judgment of the court, below is affirmed.


text:
    Anthony vs. Hunt.
    Evidence: Statute of frauds, etc,.

    The defendant, for the purpose of defeating an action for rent, attempted to introduce evidence of a parol cout act to purchase an interest in the land, rented and an entry thereunder ; Held, that the evidence was properly excluded, the contract was within the statute of frauds, and the fact that possession was taken under it did not alter the case; such part performance can only be shown as a license lor the entry, and where no title is attempted to be set up.
    APPEAL from Ashley Circuit Court. ■
    Hon. T. F. Sorrells, Circuit Judge.

      Appellant, per se.

      MeCain, for appellee.
   Harrison, J.:

Hunt sued Anthony for the rent of three hundred acres of land, for the year 1874.

Anthony denied the renting, and claimed to have entered on and occupied the land under a contract for the purchase of an undivided interest in it.

• On the trial, Hunt, the plaintiff, testified that about the last of December, 1873, he, by a verbal agreement, contracted to sell Anthony and one Harris, an undivided two-thirds part of the land, and they shortly thereafter moved on it. On the 3d of April, 1874 the contract, of sale was rescinded, and another contract was made with them, by which they agreed to lease the land for that year, at the customary, but no stipulated rent.' The rent was worth, he said, six dollars an acre.

Anthony ¿testified that he and Harris severally, contracted with the plaintiff, to purchase each an undivided third part of the land, and it was also at the same time agreed between the plaintiff, Harris, and himself, to cultivate the land in partnership, and that under his contract for the purchase, he went on it about the first of January, 1874, The partnership, on account of the plaintiff’s.want of means, was not, however, carried out. He, Anthony, and Harris, cultivated separate parts of the land, and their interests were several and distinct. Learning, about the month of September, that the plaintiff could not make a title to the land he repudiated the contract; but remained in possession until the end of the year. He did not lease or rent the land, and his entry on and occupancy of it, were under his contract of purchase- The agreement for the purchase was merely verbal, and not in writing.

The court, at the instance of the plaintiff, excluded from the jury all the defendant’s testimony relating to his purchase of an interest in the land.

The jury returned a verdict for the plaintiff for $1,500. The defendant moved for a new. trial, which was refused, and he excepted and appealed.

The exclusion from the jury of the defendant’s testimony in relation to the purchase of the land, was assigned as cause for a new trial.

If such a testimony had been merely in rebuttal of what the plaintiff said in regard to the purchase, and that had been material to the issue, its exclusion would have been improper. The plaintiffs action, however, was on the lease and the defendant’s promise to pay rent. The defendant, to defeat the action, claimed to have occupied the land as a vendee, and not as a tenant, and to establish such fact, atttempted to prove a parol contract of purchase of an interest in it. But this he was prohibited from doing by the statute of frauds. Sec. 2951, Gantt’s Digest. The fact that possession was taken under the alleged contract did not alter the case, so that such parol evidence might have been admitted, because such part performance can only be shown in equity, or at law, as a license for the entry, and where no title is attempted to' be set up.

The evidence was rightly excluded, and the judgment is affirmed.


text:
    Newton vs. Wilson et al.
    1. Usury.
    Usury is the charging of unlawful interest, and unless there is a law which limits the rate of interest to be charged for the use of money, there can be no usury.
    2. --.
    In a proceeding to foreclose a mortgage, held, that a contract for interest at the rate of 2% per cent, per month, executed while the provisions of the-Constitution of 1868 in regard to usury, and the laws enacted thereunder, were in force, was valid, and the subsequent enactment of a usury law did not affect it.
    APPEAL from Pulaski Chancery Court.
    Hon. J. R. Eakin, Chancellor. . ,

      Gallagher & Newton, and Pice, for appellants.

      Farr, contra.

   Walker, J.:

Wilson and Webb filed their complaint in the Pulaski Chancery Court to foreclose a mortgage, and subject certain lands to-sale to pay the following note:

$1,000. Little Rock, Ark., 17th May, 1871.

Sixty days after date, I promise to pay Wilson & Webb $1,000,, with interest at the rate of 2J per. cent per month from date until paid. [Signed] R. C. Newton.

Service of process was waived, and, at the first term of the-court, by consent, the cause was continued until the nexf term,, with leave to Newton to file an answer during the term. On the-same day, and probably before this agreement, Newton had filed a demurrer to the complaint, which seems to have been understood as waived by the agreement, and is in argument, not insisted upon by Newton’s counsel. .

No answer was filed, or further defense interposed, and a decree rendered in favor of plaintiffs for $1,000 debt, and $1,100' ■damages, with interest on the same at 10 per cent, until paid. 'The mortgage was foreclosed, and the lands therein described ■decreed to be sold.

Newton has appealed.

No objection is raised as to the regularity of the proceedings, but the ground assumed by counsel for reversing the decree is, that the Constitution of 1868, which was in force at the time the note was executed, whilst it conferred power upon the Legislature to declare the legal rate of interest where no rate of interest was specified in the contract, provided, that “no law limiting the rate of interest for which an individual may contract in this ¡State shall ever be passed.”

Counsel contend that this clause of the Constitution was an .attempt to open the door to an unlimited charge for the use of money, and to make usury lawful, which was held to be odious, •and inequitable. That 10 per cent, is, almost by universal understanding, the extent of reasonable interest-, and that, to contract for a greater amount is, in effect, to contract for usurious interest.

We are not unmindful of the odium in ancient times attached to usury, and to usurers, and that, at all times since, in every Christian country, money changers and usurers are looked upon with disfavor, and if now they do not ply their calling in the ■synagogues, they are not, for that reason, less odious.

Usury is the charge of unlawful interest; a usurer, one who lends money at a rate of interest greater than that established by law. Unless there is a law which limits the rate of interest to be charged, there can be no usury. There was, at the time the contract was made, no statute limiting the rate of interest, and therefore an unlimited right to contract.

That a wide door was opened to oppression is certain, nor c there be any doubt that such 'was the intention of the framers of the Constitution of 1868, which prohibited legislation limiting the right to contract such rate of interest as the party contracting chose. And it will also be seen that the Legislature in the same year, the more effectually to give effect to this clause, denied to the litigant the right to plead usury as a defense.

It is true, that this constitutional provision has been changed, and limits by legislation to the right to contract for interest enacted, and the statute which forbids the interposition of the plea repealed. But the validity of this contract, and the rights of the parties under it, are to be determined, not by the laws in force when the suit was instituted, but such as were in force when the contract was made. Jacoway, adm’r, v. Denton, 25 Ark., 625.

The defendant interposed no defense whatever to the action. The plea of usury was not interposed, no demurrer to the complaint, by which any question of law could be presented.

A proper decree, under the state of case presented, appears to have been rendered. Let the judgment in all things be affirmed.


author: PIarrison, J.:

text:
    White et al. vs. Millbourne.
    Mechanics’ Lien: Jurisdiction of Circuit Court.

    The Circuit Court has jurisdiction to enforce a mechanic’s lien for a sum under §100; proceedings to enforce liens on land, or in which the title, or possession thereof, are involved, are expressly excepted from the jurisdiction conferred by the Constitution on justices of the peace.
    APPEAL from Phillips Circuit Court.
    Lion. J. N. Cypert, Circuit Judge.

      Tlvweatt, for appellant.
   PIarrison, J.:

This was a petition filed by John W. Millbourne in the Phillips Circuit Court, for the enforcement of a mechanic’s lien for the sum of $73.90, on the edifice, or building, in the city of Helena, known as the “Colored Baptist Church,” and to which proceeding James T. White was made a defendant.

The petition alleged that Millbourne had, at the instance and request of said White, done certain work on said building to the amount of $607.65; that there remained due him therefor the said sum of $73.90; and that he had, within ninety days from the completion of the work, filed with the clerk of the Circuit Court an account of his demand, showing the amount due after .allowing the proper credits, and containing a description of the property, to secure a lien thereon.

The suit was commenced within nine months from the filing of the account.

White demurred to the jurisdiction of the court, and his demurrer being overruled, he filed an answer, in which he admitted that the work had been done on the building by Millbourne, and at his instance, but denied that it amounted to as muchas he claimed, or that there was due him $73.90. He admitted, however, that there was still due a balance of $19.10.

The allegation in relation to the filing of the account to secure the lien on the building was not denied.

After the answer of white was filed, the petition was amended by making John M. Duffle, Robert Wilkes, Isam McNeal and A. B. Miller, the trustees of the Second Baptist Church Helena, defendants ; but it contains no averment of any interest in them ; nor shows why they were made parties.

The trustees entered their appearance, but filed no answer or made anj' defense.

The issue was tried by a jury, which returned a verdict forthe plaintiff for $38.90.

The defendants, the trustees, it seems, as well as White, moved for a new trial, which was overruled, and judgment was thereupon rendered in favor of the plaintiff for the sum so found due him by the jury, and for the sale of the building to satisfy the same. The defendants appealed.

The appellants contend, that as the amount of the debt claimed did not exceed $100, the Circuit Court did not have jurisdiction in the case, and the demurrer filed by White to the jurisdiction should have been sustained.

The Constitution is too explicit and clear to admit of any' doubt of the Circuit Court’s jurisdiction in cases of this kind. Sec. 11 of Article vii says: “The court shall have jurisdiction, in all civil and criminal cases, the exclusive jurisdiction of which may not be vested in some other courtand by the proviso in sec. 40 of the same article, which section confers upon justices of the peace exclusive original jurisdiction in matters of contract, where the amount in controversy does not exceed $100, cases of lien on land, or where the title or possession thereof is involved, are expressly excepted from such jurisdiction.

The ground of the motion for a new trial was that the court gave improper-instructions to the jury for the plaintiff, and refused to give them proper instructions asked by the defendants.

These instructions were predicated upon evidence relating only to the liability of the trustees, which evidence, as the only issue before the jury was the amount due the plaintiff for the work, was immaterial and irrelevant.

There is, therefore, nothing in the motion for a new trial to be considered.

The .judgment is affirmed.


author: English, Ch. J.:

text:
    James et al., adm’r., vs. Dyer, adm’r.
    Appeal: Affido.vit, waiver, etc.

    Where, upon an appeal from the Probate to the Circuit Court, the appellee submits to try the cause anew in the Circuit Court, without moving to dismiss for want of an affidavit for appeal, the failure to file such affidavit is thereby waived.
    APPEAL from Saline Circuit Court.
    Hon. J. M. Smith, Circuit Judge.

      Gallagher & Newton, for appellant.

      Hoioard, contra.

   English, Ch. J.:

Jesse James, as administrator of Given Dyer, deceased, made his fifth annual settlement before the Probate Court of Saline County, showing a balance of assets in his hands unadministered, amounting to $451.57, consisting in part of notes taken, on the approval of the court, for rent of land of deceased. After the confirmation of this settlement, he died, and Lucinda James and William James became his administrators, and James M. Dyer succeeded him as administrator de bonis non of Given Dyer.

The administrators of James applied to the Probate Court to make a final settlement of his administration upon Dyer’s estate, and to turn over to the administrator de bonis non the rent notes, etc., and claiming a balance against the estate for moneys paid out by James after his last settlement.

The matter was heard before the Probate Court on objections to the proposed settlement interposed by Dyer, as administrator de bonis non, in July, 1875, and the court required him to receive the rent notes, and found a balance due from the estate to James of $85.10.

Dyer, administrator de bonis non, prayed an appeal to the Circuit Court, which was granted, <fupon his compliance with the law in that behalf made and provided,” says the record.

It seems that he filed no appeal affidavit.

At the September term of the Circuit Court, 1875, the parties appeared, and the cause was submitted to the court to be tried de novo, and the court found that Dyer, administrator de bonis non, was not obliged to accept the rent notes, etc., and that James was not entitled to credit for them, and rendered judgment accordingly.

The record states that the administrators of James filed a motion for a new trial, which was overruled, and they excepted and appealed to this court.

There is no motion for a new trial in the transcript. Nor is there any bill of exceptions. We are, therefore, not advised as to the grounds of the motion for a new trial, nor upon what evidence the court below tried the cause. No question of law is properly reserved,' and brought here for review."

The counsel for appellants submit that the Circuit Court should have dismissed the appeal from the Probate Court because Dyer filed no appeal affidavit, and that for this error the judgment should be reversed, and the cause remanded with instructions to the Circuit Court to dismiss the appeal.

Had appellants moved in the Circuit Court to dismiss the appeal from the Probate Court, and had the motion been overruled, we would review the decision.

We think, however, that by submitting to try the cause anew in the Circuit Court, without moving to dismiss for want of an appeal affidavit, the omission was waived. Wilson v. Dean, 1 Ark., 308; Perkins, adm’r., v. Du Val, adm’r., ante.

The judgment is affirmed.


text:
    Montgomery et al. vs. Birge.
    1. Tax Sale:
    A tax deed which recites the sale of several tracts of land en masse, for a gross sum, is void.
    2. Purchaser pendente lite:

    One who takes a mortgage on land pending a suit to foreclase a vendor’s lien thereon, and his assignees, are chargeable with notice of the lien.
    APPEAL from Qhieot Circuit Court in Chancery.
    Hon. Henry B. Morse, Circuit Judge.

      C. H. Carlton and Dodge & Johnson, for appellants. -

      Cockrill, contra.

   English, Ch. J.:

From a badly made up transcript and confused pleadings, we gather the following material facts:

In September, 1859, James S. Montgomery sold the lands in controversy, situated in Chicot County, to H. P. Crute, for $15,-000, to be paid in New Orleans acceptances for $5,000 1st January, 1860, and like sums annually thereafter, etc., and gave him a bond to make title on the payment of the last installment.

For one of the installments, Crute drew a bill of exchange for $5,000 on Moore & Prowder of New Orleans, payable to his own order, sixteen months after date, and endorsed it to Montgomery. It was accepted by the drawees, but not paid at maturity, and protested for want of funds of the drawer.

Montgomery, the vendor, endorsed and delivered the bill to Montgomery & Hall, for value.

On the 13th of February, 1867, Montgomery & Hall filed the original bill in this case, in the Chicot Circuit Court, against Montgomery and Crute, claiming the benefit of the vendor’s lien upon the lands, and praying a decree for the amount of the bill and interest, and a condemnation and sale of the lands for satisfaction, etc.

Appended to the bill was an affidavit that the defendants were non-residents of the State, and on the filing of the bill, an order of publication was made. They afterwards appeared and interposed some pleadings, but no question arises between them and the original plaintiffs on this appeal.

At the October term, 1869, Lewis F. Birge, on his own application previously filed, was made a defendant to the bill, and filed an answer and cross bill.

The substance of the cross matter set up is, that on the 13th of April, 1867, James S. Montgomery (Crute’s vendor) mortgaged to F. T. and F. G. Schlessenger, of New Orleans, the whole of sec. 18 and the west half of sec. 19, being the greater part of the lands described in the bill, to secure the payment of a note for $1,700, on that day executed to said Schlessengers by James S. Montgomery, payable on the-1st of March, 1868. That afterwards, the Schlessengers sold and delivered said note and mortgage, for value, to cross complainant Birge. That he purchased the same without any notice of the lien of the original plaintiffs (Montgomery & Hall) upon the lands. That the title bond given by James S. Montgomery to Crute was not recorded, etc.

By answer to the cross bill original plaintiffs allege that if Birge had not actual notice of their lien on the lands when he purchased the note and mortgage, they were executed’ two months after the institution of the original suit, and while it was pending, and that the Schlessengers, and Birge, claiming under them, were incumbrancers pendente lite, and, hence, chargeable with notice of their lien.

And by supplement to the original bill, plaintiffs alleged that on the 18th day of June, 1866, all of the lands were sold for the non-payment of taxes for the year 1865, and purchased by one Craig, who obtained the collector’s certificate of purchase, and, after the commencement of the suit, assigned it to them, and that on the 10th of December, 1867, the collector made them a deed, which is exhibited.

By answer to supplement, Birge controverted the validity of the tax deed, etc.

On the final hearing, the court held the tax deed invalid, and rendered a decree in favor of Birge against James S. Montgomery for the amount of the note secured by the'Schlessenger mortgage, and condemned the lands embraced in the mortgage to be sold to satisfy the decree, from which decree Montgomery & Hall, the original plaintiffs, appealed.

First — It is sufficient to say of the tax deed relied on by appellants, that it is void on its face. It recites the sale of all of the lands, a number of tracts in different sections, amounting to 960 acres, en masse, for the sum of $56.06, the gross amount of taxes, penalties, and costs charged upon the whole of them. Pettus & Glenn v. Wallace et al., 29 Ark., 486; Pack v. Crawford, et al., id., 489.

Second — Under the statute regulating chancery practice in force when this suit was instituted, (Gould’s Dig., Ch. 48), the suit was commenced by the filing of the bill, and the issuance of a subpoena, and, upon an affidavit that the defendants were nonresidents, as in this case, taking an order of publication.

The bill was filed, and the order of publication made 13th of February, 1867, and the Schlessenger mortgage, under which appellee claims, was not executed until the 13th of April following, when the suit of appellants to foreclose their vendor’s lien for purchase money upon the lands embraced by the mortgage, was pending, and had been for about two months.

The Schlessengers having taken the mortgage of James S. Montgomery, one of the defendants, and transferred it to appellee pending the suit, he, like the mortgagees, is chargeable with notice of appellants’ lien on the lands, which the bill sought to enforce, and does not stand in the attitude of an innocent purchaser.

Whiting v. Beebe, 12 Ark., 421; Ashley v. Cunnningham, 16 Ark., 175; Merrick v. Hutt, 15 Ark., 344; Lytle v. State, 17 Ark., 609; Holman v. Patterson’s Heirs, 29 Ark., 359; Pindall et al. v. Trevor et al., 30 Ark., 266.

The decree in favor of appellee must be reversed, and the cause remanded for further proceedings.


text:
    Cairo and Fulton R. R. Co. vs. Turner.
    1. Eminent Domain.
    Article v, of amendments to the Constitution of the United States, which provides that private property shall not be taken for public use without just compensation, only applies to the exercise of the right of eminent domain by the United States.
    2. --: Right of entry, compensation, etc.

    Railroads are public improvements, for the construction of which private property may be taken, under the authority of the Legislature; and, in the absence of a distinct provision of the Constitution requiring xiayment to precede the appropriation, a railroad company may enter upon land required for a right of way before the assessment and payment of compensation, if there is an adequate remedy for the land owner in existence at the time of the entry.
    3. ---: Remedy, etc.

    The charter of the Cairo and Fulton Railroad Company granted it the right , to enter upon and appropriate a right of way over all lands along the line of its road. A subsequent act, approved the 22d of January, 1855, provided a method of assessing damages in favor of the land owner, upon the application of either party. The Constitution of 1868, subsequently adopted, provided that no right of way should be appropriated by any corporation until compensation therefor had been first paid, or deposited in money, for the owner. After the adoption of the Constitution of 1868, the Cairo and Fulton Railroad Company was constructed; and an act to ascertain damages in such cases upon the application of the corporation, and in harmony with the provisions of the Constitution of 1868, above referred to, was passed by the Legislature. Held:

      First — That the right of way, acquired under the charter of the corporation, could not be affected by the subsequent constitutional provision.

      Second — That the act of 1855, prescribing the manner of assessing damages, was not repealed, as to the Cairo and Fulton Railroad Company, by the subsequent enactment, or constitutional provision, but, as lo it, continued in force.

      Third — That the statutory remedy in favor of the land owner was exclusive, and he ceuld not maintain ejectment for land appropriated for a right of way.
    APPEAL from White Circuit Court.
    Hon. John J. Clendenin, Circuit Judge.

      Loughborough and Rose, for appellant.

      Compton & Parsons, contra.

   English, Ch. J.:

On the 1st of September, 1873, Blakely D. Turner brought an action of ejectment against the Cairo and Fulton Railroad Company in the Circuit Court .of White County, for a tract of land containing about five acres, and described in the complaint to be a tract of 200 feet in width, bounded on the north by the "north boundary line, and on the south by the south boundary line of the north fractional half of the northwest fractional quarter (south of Little Red River) of fractional section 3, township 7 north, range 6 west, and on the east and west by lines parallel to, and equidistant from, the center line of the main tract of said railroad.

The defendant answered, after the formal denial of plaintiff’s title and rights of possession, that:

“It is a corporation existing under the laws of the State, having authority to contract, operate and maintain a railroad; that it has constructed, and is now maintaining and operating a railroad, the line of which is laid across or upon the tract of land described in the complaint, and for such purpose defendant has taken and now holds, in pursuance of law, a portion of said land, to-wit: a strip of 100 feet in width across said tract, being measured 50 feet on each side of the center line between the rails of its said railroad, etc.

That its possession and occupancy of said portion of said land was had and begun for more than eighteen months before the commencement of this action, and with the full knowledge of the plaintiff, who well knew the purpose and intention of this defendant in taking possession of the land, to be to construct and operate a continuous line of railroad across the entire State, one portion of which would be laid on the land as aforesaid;. and the plaintiff well knew, that to construct said railroad across said land woul'd require the defendant to expend large sums of money, and yet the plaintiff allowed such work to be done, and large sums of money to be expended thereon without objection thereto; and plaintiff well knew that the portion of said railroad laid across said land would be, and is, essential to the operation of the entire line, and without it the defendant could not, and can-1 not, fulfill its contracts to carry the mails 'of the United States, and to transport freight and passengers, which, bylaw, it is bound to do. That defendant was, and is still, willing and ready to make compensation to the lawful owner of said tract of land for any and all damages to which said owner may be entitled by reason of the appropriation of the land as aforesaid, whenever such damages are ascertained and fixed in the manner prescribed by law.”

The cause was submitted to the court sitting as a jury, October 2d, 1874, on the following agreed statement of facts:

“ First — The plaintiff is, and was, at and before the institution of the suit, and when the defendant took possession thereof, the owner in fee of the land in controversy.
“ Second — The defendant entered into possession of so much of the land in controversy as is within fifty feet of the center of the track of defendant’s railroad, on either side thereof, in the month of March, 1872, and constructed said railroad thereon, and has ever since held possession of the same, and used it as a right of way for said road. No compensation has ever been made to the plaintiff for said land, or proceeding instituted by either party looking to that end, or agreement of any sort entered into between them in regard to it.
“ Third — The yearly rental value of said land, without regard to or including the improvements and fixtures placed thereon by defendant, is $5, since defendant entered. The same, including said improvements and fixtures, and estimating it in reference thereto, is $100.”

The defendant asked the court to declare the law as follows.

“ That the land having been taken possession of by the defendant merely for a right of way, and for the purpose of building and operating a railroad across said land, an action of ejectment will not lie in favor of' the plaintiff, and that the finding should be for the defendant.”

Which the court refused, but declared that on said agreed state of facts, plaintiff was entitled to judgment.

The court rendered judgment in favor of plaintiff for possession of the land, and for $250 damages for its detention.

The defendant moved for a new'trial on the grounds:

“ First — The court erred in refusing the declaration of law asked by the defendant.
“Second — The finding and judgment of the court are unsupported by the evidence in the case.”

The court overruled the motion, and defendant excepted- and appealed.

The Cairo and Fulton Railroad Company was chartered by act of the General Assembly, approved 12th January, 1853, under the Constitution of 1836.

It was empowered by its charter to survey, locate, construct, complete, alter, maintain and operate a railroad from a point on the Mississippi River, opposite the mouth of the Ohio, in the State of Missouri, by way of Little Rock, to the Texas boundary line, near Fulton, with branches, etc. Sec. 2. And to unite its road with the southern end of the Missouri road, at some suitable point on the line which divides Arkansas and that State, and its southern end with any road coming in from Texas, at such point on the boundary line, which divides that State from Arkansas that might be deemed most eligible; and to combine with other railroad corporations, etc. Sec. 10.

Section 3 provides that:

“The said corporation shall have the right of way upon, and may appropriate to its sole use and control, for the purposes contemplated herein, land not exceeding one hundred feet in width on each side of and through its entire length; may enter upon and take possession of and use all and singular, any lands, streams and materials of any kind for the location of depots, and stopping stages, for the purpose of constructing bridges, dams, embankments, excavations, spoil-banks, turnouts, engine-houses, shops, and other buildings necessary for the construction, completing, altering, maintaining, preserving in complete operation of said road; all such lands, waters, materials and privileges belonging to this State are hereby granted to said corporation for said purpose; .but, when owned or belonging to any person, company or corporation, and cannot be obtained by voluntary grant or release, the same may be taken and paid for, if any damages are awarded, in the manner provided for by law ; Provided, nothing in this section contained shall beso construed as to authorize the said corporation to interrupt the navigation of said streams.”

By act of Congress of February 9th, 1853, the right of way, through the public lands was given to the States of Arkansas and Missouri, and a large amount of lands granted to said States to aid in the construction of the Cairo and Fulton railroad, and its branches, etc., with a provision that said railroad and branches should be and remain a public highway for the transportation of the property, troops and mails of the United States, etc.

The line of the Cairo and Fulton railroad was surveyed, located and fixed under the provisions of the act incorporating the company, and, by act of 16th January, 1855, the survey and location so made were approved, and the lands donated by Congress to the State for that piirpose, granted to the company to aid in the construction of the road, etc.; and, by act of 26th November, 1856, the grant was confirmed, etc.

By act of Congress of 28th July, 1866, the act of 9th February, 1853, giving the right of way, and granting lands to aid in the construction of the road and branches, was revived and extended, and an additional grant of lands made, etc.

Eminent Domain :

Article v, amendments to the Constitution of the United States, declares that private property shall not be taken for public use without just compensation, but this provision is intended only as a limitation upon the exercise of that power by the government of the United States. Barron v. Baltimore, 7 Peters, 243 ; Fox v. Ohio, 5 How., 410, 434-5; 1 Red. on Railw., p. 231.

The Constitution of most of the American States contain a similar provision. Our Constitution of 1836 contained no such provision, but, in Martin et al., ex parte, 13 Ark., 206, it was well said by Chief Justice Watkins : “ That this prohibition upon the Legislature is implied from the nature and structure of our government, even if it were not embraced by necessary implication in other provisions of the bill of rights. The right of eminent domain is inherent in the goverment or sovereign power, and equally is, or ought to be, in every government of laws the vested right to his property in the citizen; and the right of eminent domain means, that when the public necessity or common good requires it, the citizen may be forced to sell his property for its fair value. The duty of making compensation may be regarded as a law of natural justice, which has its sanction in every man’s sense of right, and is recognized in the most arbitrary governments.”

The duty to make compensation for property taken for public use, is regarded, by most enlightened jurists, as founded in the fundamental principles of natural right and justice, and as lying at the basis of all wise and just government, independent of all written constitutions or positive law. 1 Red. on Railw., 231; Bradham v. Rogers, 20 Johns., 103; 2 Kent. Com., 339; Henry v. Dubuque and Pacific R. C., 10 Iowa, 543.

Railroads for the conveyance of travelers, or the transportation of merchandise, etc., from one part of the State to another, are public improvements, and for the public benefit, for the construction of which private property may be taken under the authority of the legislature, upon paying a just compensation therefor to the OAvners. The eminent domain, or right to resume the possession of private property for the public use upon paying a just compensation therefor, remains in the government, or the people in their sovereign capacity; and such right of resumption may be exercised, not only for the public safety, but also where the interest, or even the convenience of the State, or of its inhabitants, is concerned; as for the purpose of making turnpike and other roads, railways, canals, etc., for the accommodation of the public. It belongs to the legislative power of the State to determine whether the benefits which the public are to derive from such improvements, are of sufficient importance to justify the exercise of this right of eminent domain, in thus interfering with private rights of individuals; and the right itself may be exercised by the government through its immediate officers or agents, or indirectly through the medium of corporate bodies, etc. Walworth, chancellor, in Bloodgood v. Mohawk and Hudson R. R. Co., 18 Wend., 9; Beekman v. Saratoga and Schenectady Railway Co., 3 Paige, 45.

Time of Compensation :

There is much conflict and confusion in the adjudications of the State courts in relation to the time when compensation is to be made to the owner for property taken for public use, growing in part out of the diversity of Constitutional provisions on the subject, and the want of uniformity in the statutes of the States regulating the ascertainment and payment of damages.

The Constitution of 1836, as above remarked, was silent on the subject of the exercise of the right of eminent domain by the State.

In Martin et al., ex parte, Ch. J. Watkins remarked: “To suppose that the legislature, under our Constitution, possessed the power of divesting the citizen of his right to property, without first providing in some equitable mode for ascertaining its value, and making him compensation for it, and could exercise this power without restraint, would be subversive of the government, and equivalent to revolution and anarchy, since it would defeat one of the primary objects for which the government was established.”

This is in harmony with the prevailing views of American jurists on the subject. Mr. Kent says : A provision for compensation is a necessary attendant on the due and Constitutional exercise of the power of the law-giver to deprive an individual of his property without his consent; and this principle in Amer-can Constitutional jurisprudence is founded on natural equity, and is laid down by jurists as an acknowledged principle of universal law.” 2 Kent. Com. (8 Ed.), p. 399.

But further along in the opinion of Ch. J. Watkins, in Martin et al., ex parte, he uses the following language: “Now we feel it our duty to express the opinion we entertain, that the prohibition upon the power of tile legislature to take private property for public use without providing for just compensation to be first made to the owner, is necessarily implied in the articles (of the bill of rights) above quoted.”

Had he said in this sentence that it was not in the power of the legislature to take private property for public use without first providing for just compensation to be made to the owner, it would have been in harmony with his previous expression on the same subject, above copied, and with the prevailing adjudications in the States where there is no express Constitutional provision requiring the compensation to be actually paid before the property is taken for public use.

The question as to the time when compensation should be made, or, in other words, when the damages occasioned to the owner of property by its appropriation to public use should be paid, was not before the court in Martin et al., ex parte.

The act of 6th January, and supplemental act of 10th January, 1851, providing for the reclaiming of swamp and overflowed lands by levies, drains, etc., made no provision whatever for the compensation of individuals for property taken or injured in constructing such levies or drains. The swamp land commissioner constructed a levee across a bayou, or lake, which stopped the natural flow or drain of waters, and caused the flooding of the cultivated lands of Martin and others, who applied for an injunction. The court held, in effect, that the legislature having made no provision for compensating them for such damages, the commissioners might be enjoined upon a proper showing, notice, etc.

In Roberts v. Williams, 15 Ark., 49, Judge Scott remarked that private property could not be taken for public use without providing for just compensation to be first made to the owner, citing Martin et al., ex parte. That was a proceeding to open a private road under secs. 61-66, Ch. 149, Gould’s Digest, and the proceedings were held invalid because of the non-compliance with the provisions of the statute in relation to ascertaining and ordering the payment of damages occasioned to land owners by the opening of the road.

Whitehead and wife v. Arkansas Central Railroad Company, 28 Ark., 460, was decided under a provision of the Constitution of 1868, and will be noticed again below.

According to the current of authorities, in the absence of a distinct provision in the Constitution requiring the payment of compensation to precede the taking of the property, the assessment and payment of the compensation need not precede the entry upon the land by the company for the construction of its road, provided there is an adequate remedy, afforded before such entry is made, for obtaining compensation, which- may be provided in the charter or existing laws. The payment or tender of the compensation, or an appropriate provision therefor, is generally required to precede an appropriation of the owner’s property by the road. Pierce on American Railway law, 162; Bloodgood v. Mohawk and Hudson Railroad Company, 18 Wend., 9 ; Smith et al. v. Helmer, 7 Barb., 416; Gould v. Glass, 19 id., 190; Rex-ford v. Knight, 1 Kernan, 413; Thatcher et al. v. Dartmouth Bridge, Co., 18 Pick., 501; Tuckahoe Canal Co. v. Tuchahoe Railroad Company, 11 Leigh., 77 , Symonds et al. v. Cincinnati, 14 Ohio, 171; Hatch v. Vt. Cen. R. R. Co., 25 Vermont, 66; People, ex rel., Green v. Michigan Southern R. R. Co., 3 Mich., 496 ; Smith v. McAdam, id., 506 ; Rubottom et al. v. McClure, 14 Blackf., 505; Hankins v. Lawrence, 8 id., 266 ; New Albany and Salem R. R. Co. v. Connelly, 7 Indiana, 32; Hamilton v. Annapolis and Elk Ridge R. R. Co. et al, 1 Maryland, Ch. 107 ; Commissioners, etc., v. Bowie, 34 Ala., 461; Raleigh and Gaston Railroad Com. v. Davis, 2 Dev. & Batt. Law R., 451.

The act incorporating the Cairo and Eulton Railroad Company, after giving the right of way, etc., over public and private lands, provides, as above shown, that where the land belongs to any person, etc., and cannot be obtained by voluntary grant or release, the same may be taken and paid for, if any damages are awarded, in the manner provided for by law. Sec. 3.

The act provides no mode for ascertaining the damages, and enforcing the payment of compensation to the land owner. Had this not been done by a subsequent act, passed before the road was constructed over the land of appellee, he might have treated the corporation, its officers, employes, etc., as trespassers, or enjoined the corporation from appropriating his land until compensation was made to him. Martin et al., ex parte, supra.

But by act of 22d January, 1855, this omission in the charter was supplied. See Gould's Digest, Ch. 140.

It has been held that provision for compensation may be in a subsequent law, and that an act taking private property for public use is not void because it does not provide compensation or a mode of ascertaining it, but that its execution will be enjoined until such provision is made, and the compensation paid. Bonaparte v. Camden and Amboy Railroad Company, 1 Baldwin C. C. and C., 205.

The act providing for compensation, above referred to, provides, in substance, that if any person owning lands over or upon which any railroad shall be surveyed and located, by any company incorporated to build a railroad, shall not have relinquished the right of way, etc., etc,, the case shall be stated in writing, accompanied by a plat description of the land required for the road, to the judge of the Circuit Court of the county in which the land is situated, etc., in term or vacation, and the judge shall appoint five impartial and disinterested freeholders and citizens of the county, etc., to' view said lands, etc., and report, under oath, what damages wTill be done to said land or improvements thereon, stating the amount of damages, etc., and return the petition and plat of the land condemned. Notice to the owner, etc., is provided for. Sec. 1. The persons appointed to view and value the land are required to file their report in the office of the clerk of the Circuit Court, and if no' objection be made, the court is required to enter judgment in favor of the owner against the company for the damages assessed. If objections are made, they are to be determined by the court. Providing, that during the pendency of the proceedings to assess the value of the land, the construction of the road shall not be delayed, and the company may enter upon the land, etc., upon giving bond and security, to be approved by the clerk or court, ■ that it will pay to the owner of the land all costs and damages adjudged against it, within thirty days after the rendition of the judgment. Secs. 2 and 3.

These sections contemplate the application for review and assessment of damages to be made by' the corporation, but sec. 4 manifestly provides that the land owner may make the application, and limits the time for him to apply, to two years after the road is finished over his land, with exceptions in favor of persons laboring under disabilities.

Though it is a matter of public history that the land owners on the line of the Cairo and Fulton railroad favored its construction, and generally granted the corporation the right of way over their lands without demanding compensation, yet if it had been constitutionally requisite in all cases where the right of way was not voluntarily conceded, for the corporation to cause the damages to be ascertained, and actually pay them before entering upon the lands to construct the road, persons disposed to litigate, might, by protracting litigation, have delayed the completion of this great public highway for many years, to the public detriment.

If it be objected that the corporation might not pay the judgment rendered on the award of damages, and it and its securities might be insolvent, and thereby compensation might be defeated; it may be answered that the land owner is not divested of his title, and the right to the easement does not vest in the corporation until the damages awarded are paid; and besides the owner’s paramount claim upon the land, chancery, on his timely application, would, as we have seen, restrain the corporation by injunction, from the use of the property until it renders the compensation.

Section 48, Article v, of the Constitution of 1868, provides that: “The General Assembly shall pass no special act conferring corporate powers. Corporations may be formed under general laws, but all such laws may from time to time be altered or repealed. The property of corporations, now existing, or hereafter created, shall forever be subject to taxation, the same as the property of individuals. No right of way shall be appropriated to the use of any corporation until full compensation therefor shall be first made in money, or first secured by a deposit of money to the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury of twelve men, in a court of record, as shall be prescribed by law.”

This Constitution, though since abrogated, was in force when appellant constructed that portion of its road which crosses the land of appellee, but long before the adoption of this Constitution, and when the Constitution of 1836, which contained no such provision, was in force, the Legislature, by the act incorporating the appellant corporation, in the exercise of the right of eminent domain, granted to it the right of way over all the lands-along the line designated for its road, the survey was made, the' roadway located and approved, and provision made for ascertaining damages, and rendering compensation to such land owners as might claim it, for such right of way over their lands.

We are not prepared to say that the framers of the Constitution of 1868, could deprive the' appellant corporation of any substantial rights or franchises clearly vested in it by its preexisting charter.

In Whitehead and wife v. Arkansas Central Railroad Company, 28 Ark., 460, above referred to, appellants sued appellee in trespass for entering upon and appropriating their land for a right of way.

The appellee was organized as a corporation, after the adoption of the Constitution of 1868, and under the act of July 23d, 1868, to provide for a general system of railroad incorporation. Acts of 1868, p. 290.

The court held that the ascertainment and payment of damages, as prescribed by the section of the Constitution of 1868, copied above, must precede the entry upon the land by the corporation.

Similar decisions have been made under like Constitutional provisions, as before indicated.

Remedies of the Land-Owner, etc. :

Section 23, of the act of July 23d, 1868, providing for a general system of railroad corporation, provides a mode for ascertaining damages, and compensating land owners for the right of way over their lands, etc., but by the express language employed, it applies to corporations thereafter organized under the act, and could have no application to the appellant corporation. Moreover this section was declared to be in conflict with section 48, Article v, of the Constitution of 1868, above copied, in Whitehead and wife v. Arkansas Central Railroad Company, supra.

On the 28th of April, 1873, the Legislature passed an act “for the better regulation and efficiency of railroad companies,” in •which a mode of ascertaining damages, and compensating land owners for-the right of way is provided, and was no doubt intended to conform to the requirements of section 48, Article v, of the Constitution of 1868. Acts of 1873, p. 290 ; Gantt’s Digest, sections 4944, 4953.

It makes no provision for land owners to apply for the assessment of damages, but requires “any railroad company organized under the laws of the State, after having surveyed and located the line of their road, in all cases where such company fails .to obtain, by agreement with the owner of the fee of lands through ■which, such lines of road is or may be located, the right of way over the same, to apply to the Circuit , Court of the county in which the land is situated, by petition, to have the damages for such right of way assessed,” etc., etc.

Provides for the damages to be assessed by a jury, and requires the company to deposit the amount of damages in court, or pay it to the owner, whereupon it may enter upon, use, and have the right of' way over such land, 'forever.

This act was passed after the appellant corporation had entered upon, and constructed its road over the land of appellee* and if it was intended to apply to railroad corporations other than such as were organized under the general law, which is by no means clear, we would not give it a retroactive effect, so as to make the appellant corporation, acting under a long pre-existing special charter, a trespasser in entering upon the land of appellee.

The act of January 22d, 1855, in conflict with no Constitutional provision existing at the time it was passed, and unrepealed as to the appellant corporation at the time it entered upon the land of appellee, afforded him a remedy, on his own application, for the ascertainment and payment of damages for the right, of way over his land, granted to the appellant by its charter.

Mr. Eedfield says: “It seems to be well settled, notwithstanding some exceptional cases, that the remedy given by statute t© land owners, for injuries sustained by taking land for railways, is exclusive of all other remedies.

“But if the railway company have assumed to appropriate the land, in violation of the provisions of the statute to be complied with on their part, their acts are ordinarily to be regarded as trespasses; and when they have acquired the right to the use of' the land, but have omitted some duty imposed by the statute, or where they have been guilty of negligence, or want of skill in the exercise of their legal rights, they make themselves liable to an action upon the case -at common law.” 1 Eedfield on the Law of Eailways, p. 336-8.

Again he says, after noticing English cases: “The general principle that the statute remedy, as far as it extends, is exclusive, seems to be universally adhered to in the American courts,, with slight modification, some of which are, and some are not perhaps, entirely consistent with the maintenance of the general rule.” id., p. 339.

Mr. Pierce says: “If both parties have the power to carry the statute remedy into effect, and there is no prior obligation on the company to resort to it, the injured party cannot avail himself of an action at common law, and is confined to that remedy. But if the company alone can put it into operation, or is under a special obligation to carry it into effect, and has not done so,, the injured party is not deprived of his remedy by action.” Pierce on American Eailroad Law, 230.

Daniels v. The Chicago & N. W. R. R. Co., 35 Iowa, 129, is-the only ejectment case cited by counsel for appellee.

The court quoted, with approbation, the rule as laid down by Mr. Redfield and Mr. Pierce above copied, but held that by the language of the Constitution of Iowa, and the terms of the statute providing for the assessment of damages, the tender or payment of compensation was a condition precedent to the right of the company to enter upon the land, and that the company, having entered upon the land without doing either, the owner could maintain ejectment for the land.

So in Memphis and Charleston Railroad Co. v. Payne, 37 Miss., 700, which was trespass by the land owner against the company, by the terms of the charter the assessment of damages, and the payment or tender of them, were required to precede the entry upon the land by the company, for construction.

If persons who have looked on, and, without objection, seen the Cairo and Fulton Railroad Company construct its road not only across their lands but over its entire line, and become a great public highway, can at any time within the period of limitation applicable to the action of ejectment, maintain that form of action for the lands and road equipments, with damages for their detention, enhanced by the improvements put upon the lands, as in this case, the injury to the corporation and the inconvenience to the public might be very great.

If the appellee rvas not confined to the statute remedy, as it seems from the authorities he was, he should in justice be required to resort to some remedy that would give him the value of his land, and leave the company in the use of the easement.

The judgment is reversed, and the cause remanded with instructions to the court below to set aside the verdict.