author: English, O. J.

text:
    DuVal vs. City of Hot Springs.
    1. Appeals to Supreme Court : In misdemeanors, how obtained.

    It is in civil suits only, including suits at law, in chancery, and penal actions, that the clerk of the supreme court is authorized by the Civil Code of Practice to grant appeals.
    2. Appeals from judgments of the circuit court for offenses less than felony, must be prayed and granted in the circuit court, and the transcript filed in the supreme court within the time prescribed by law.
    APPEAL from Garland Circuit Court.
    Hon. J. M. Smith, Circuit Judge.

      Harrell, for appellant.
    Henderson, Attorney General, contra.

   English, O. J.

In November, 1878, Harry DuVal and Edward Smith were arrested under a warrant issued by tbe mayor of the city of Hot Springs, charging them with a violation of ordinances Nos. 37 and 65, of said city, by a roping and steering one Otto Leifer to a game known as three-card monte, and of exhibiting said game in said city,” etc.’ •

DuVal was tried by a jury, before the mayor, found guilty, fined $25, and appealed to the circuit court of Garland county.

On demurrer to the charge, the court required the attorney for the city to elect upon which of the'two ordinances he would prosecute the accused, and he elected to prosecute under ordinance No. 65.

The case was submitted to the court, by the parties, for a trial de novo.

The evidence conduced to prove that DuVal and Smith were partners in low gaming. That on the arrival of Otto Leifer, as a visitor to Hot Springs, from Montana, DuVal enticed him to a place where they met his partner, Smith, who was disguised as a Texas cattle dealer, and vyho had with him cards for playing three-card monte. By betting upon the game several times himself with Smith, and winning, DuVal finally induced Leifer to bet, and he was cheated out of several hundred dollars by tricks of the partners.

The court, upon the evidence, found DuVal guilty, and fined him $25. A new trial was refused, and he took a bill of exceptions, but prayed no appeal to this court — at least none appears to have been granted by the circuit court.

Afterwards, on the third of February, 1879, on the application of DuVal, the clerk of this court granted him an appeal.

The case has been submitted on its merits, as well as upon a motion on behalf of appellee to dismiss the appeal, on the ground that the clerk of this court has no power to grant an appeal in a criminal prosecution.

This was in the nature of a criminal prosecution for violation of an ordinance of the city of Hot Springs. Gantt’s Dig., secs. 1638 to 1641.

It is in civil suits only, including suits at law, in chancery, and penal actions, that the clerk of this court is authorized by the Civil Code of Practice to grant appeals. Civil Code, chap. 29: Gantt’s Dig., secs. 1056 to 1068; Sykes v. Lafferty, 26 Ark., 414.

Erom a judgment of the circuit court in a criminal prosecution for an offense less than felony, whether upon presentment presented there, or in a case brought into the circuit court on appeal from a justice of the peace, or police court, an appeal to this court must be prayed and granted in the circuit court, and the transcript filed here within the time prescribed by law. Criminal Code, title I; ib., title IX, article III; Gantt’s Dig., secs. 1638 to 1661; ib., 2101 to 2147.

The appeal must be dismissed at appellant’s cost.


source: Caselaw Access Project

author: Harrison, J.

license: Public Domain

text:
    State of Arkansas vs. Hunnicut.
    1. Embezzlement: Officer'failing to pay over.

    A failure by an officer to pay over money found due from liim upon settlement, is, without a good or satisfactory reason, evidence in proof of a conversion; but where there has been no conversion or misapplication of the money or funds, a failure to pay over is not of itself sufficient to constitute the offense of embezzlement by an officer.
    APPEAL from Saline Circuit Court.
    Hon. J. M. Smith, Circuit Judge.

      Henderson, Attorney General, for the State.

      Fletcher, contra.

   Harrison, J.

Indictment for embezzlement. The indictment charged that the defendant, having been county-treasurer during the years 1875 and 1876, upon a settlement between himself as such treasurer and the county, made in the county court on the third day of January, 1877, was found to have in his hands $1,017, in state scrip, belonging to the common school fund of the county, and he was, by order of the court, required to pay the same over to his successor, in office, on or before the fifteenth day of January, 1877; and that he had feloniously failed for more than thirty days to pay it over in obedience to said order.

The defendant demurred to the indictment, as not stating facts sufficient to constitute an offense. The court sustained the demurrer, and the state appealed.

The defendant was not charged with a conversion, or a misapplication of the scrip ; but only with having failed to pay it over. A failure to pay over, where there has been no conversion or misapplication of the money or funds, is not of itself sufficient to constitute the offense of embezzlement by an officer.

The statute upon the subject is as follows :

“ Sec. 1371. Every officer of the state, city, county or township, employed in the collection of the public revenue, or who may have any public funds in his hands, who shall convert the same to his own use, or otherwise misapply any part of the money or funds so collected by him, or which may have come to his possession by virtue of his ■employment, and every such officer who shall fail or omit to pay the amount found due from him upon settlement, shall, on conviction, be fined not less than $500 and be imprisoned in the penitentiary not less than one nor more than five years.”

Good reasons may exist for tbe failure of tbe officer to pay over; sucb as the loss of tbe moiiey or funds by robbery or theft; their destruction by fire,, and an honest controversy as to the correctness of the settlement, and the sum or amount which should be claimed from him.

The failure to pay over would, of course, without a good or satisfactory reason, be evidence in proof of a conversion.

' The demurrer to the indictment was properly sustained.

The judgment is affirmed.


author: Eakin, J.

text:
    Oliver vs. Vance, Jr., et al.
    1. Administration: Distribution of property: Jurisdiction.

    Claims fpr the distribution of personal property of an estate in administration must be made to the probate court; and when not needed for payment of debts, claims for the real property may be asserted by action at law. Equity ordinarily has no jurisdiction.
    2. Descents and Distribution : Rules in Kelley's case.

    The rules of descent educed from the statute and then formulated, in the-case of Kelley’s Heirs v. Mc&uire et al., 15 Ark., 555, have become rules of property, to be disturbed only by the legislature.
    By the first section of the statute, the personal property of which an intestate dying without wife, children or father, was possessed, or in which he had a vested interest in remainder after the death of another, goes, after payment of debts, to his mother as his sole distributee.
    Beal property given by a paternal uncle is ancestral, as if it came from the father; and upon the death of the donee, intestate, it will descend to his nearest relations who are of the blood of the donor, to the exclusion of those who are not of his blood. The donee, or person last entitled to possession, and not the donor, remains the proposittcs, whose nearest, relations of the donor’s blood must be traced for heirs.

      APPEAL from Crittenden Circuit Court in Chancery.
    Hon. L. L. Mack, Circuit Judge.
    I/yle, for appellant.

      Broion, contra.

   Eakin, J.

The complainant, a sister of John M. Jones, shows that said John M. died about the year 1871, leaving a will, by which he devised and bequeathed two-thirds of all his property, real and personal, to his wife Mary ; and the remaining third to his nephew, Van R. Jones, the son of a deceased brother. Providing further: That upon the death of the wife, the said Van B. should have one-half of her estate, real and personal. He left a considerable estate, consisting of several tracts of land, cattle, horses, a storehouse with a stock of goods, and other personal property.

Each took possession of their respective shares, and administration, with the will annexed, was taken upon the estate, first by the wife, and after her subsequent marriage, by her husband. This is not closed.

Van R. then died a minor, and intestate, leaving him surviving his mother and four brothers Administration upon his estate was granted to defendant, William Vance, jr. The wife afterwards died, leaving a second husband.

The mother, administrator and brothers of Van R. are made defendants, charging that they claim to be entitled, as his heirs, to the third of the estate bequeathed and devised to him directly by John M., as well as the half of the two-thirds given to said testator’s wife; that they have drawn fiom said administrator, Vance, large amounts of property; and applied to the chancery court for a partition of all.

She claims as heir of the testator, John M., and as his nearest in blood — calls for a discover}7 of the amounts drawn by the mother and brothers of Yan R. from Yance, the administrator; and, as to the latter, that he reveal in his answer the present status, description and place of the estate — where it is, and how much he has paid over to the claimants, and by what authority. She prays that all the property left by Yan R. be vested in her, and that the defendants be enjoined from setting up their claims, or disposing of the property, or disturbing her in its enjoyment— that they be ordered to restore to Yance what he has paid out, or make refunding bonds ; and that Yance be enjoined from paying them any more. There is also the usual prayer for general relief.

To this bill there was no demurrer.

Yance and the mother answered separately, and the brothers adopted the mother’s answer.

Of these answers it may suffice to say that they disclose nothing materially modifying the facts stated in the bill;. nor do they set up any new matter constituting a defense, if any was necessary. Yoluminous depositions were taken, upon which, with the bill and answers, the cause was. heard. The chancellor dismissed the bill for want of equity and held the mother entitled to the personal, and the brothers to the real estate of Yan R. Complainants appealed.

It is not easy to perceive, in this bill, any of the peculiar grounds which call for the interference of a court of equity, even if the rights of complainant as heir and distributee of the estate of Yan R. be conceded. Both the estates of John M. and his nephew, Yan R. Jones, are in due course of administration in the probate court. Claims for distribution of personalty, after payment of debts, may be first made and determined there, and when not requisite for payment of debts, claims to real estate may be asserted, by action at law. Since the power is given to compel parties to testify, bills of discovery have, except in a few cases, been prohibited by the Code; and this court has often announced the doctrine, that courts of chancery can not lift the administration of estates out of the probate courts, and proceed to settle them. They may correct frauds, but if there be anything further to be done beyond the mere distribution of a fund, the practice is to remand the administration to the probate court to proceed upon the basis of the correction.

The bill was not demurred to, however, and this court will proceed to review the decree of the chancellor upon its merits.

This court, after full argument, and patient consideration, in the case of Kelly’s Heirs v. McGuire & Wife et al., 15 Ark., 555, endeavored to shape into form and order, our confused and incongruous law of descents and distributions. The rules educed from the provisions of the statute and then formulated, have met with the approbation of the profession, and have been since followed until they have become rules of property — so much so, that the rules in Kelly’s case in our state, have been oftener cited, and are more familiar to the profession than the rule in Shelly’s case. It must now be left to the legislature to disturb them, if right and justice may ever seem to require it. Nothing in our judicature calls more emphatically for the application of the policy of the courts: “ stare decisis.”

Drawing from that source, our rules of construction, it is plain, under the first section of said act, that all the personal property of Van R. Jones, of which he died possessed, or to which he had a vested interest in remainder after the death of Mary Jones, went, after payment of his debts, to his mother, as his sole distributee. The complainant had no right to any of it.

As to the real estate, it came from a relative in blood of Yan R.’s father, and must be considered as ancestral. The court in holding this, in Kelly’s case, did not mean that in such cases the donor or devisor, became himself the propositus from which the descent was to be traced. The person last entitled to possession, or last invested with the vested remainder, remains tine propositus, whose nearest heirs are to be traced. They must, however, be of the blood of the person from whom the benefit came, that is to say, the line of descent must be traced on that line, leaving off the side which bore no relation to the donor. In the case in judgment, we drop the mother altogether, since the land did uot come through her, nor any of her blood. We take the father’s line, because we find the lands came from a relative of the blood of the father. But we retain the deceased Yan R. as the propositus, and seek his heirs on that side, and not the heirs of the original donor. In other words, an estate given by a paternal uncle is ancestral, as if it descended from the father, because it comes, of bounty, from one of the father’s blood; and the same rule would apply on the mother’s side.

Any construction of the law, which, on failure of descendants of a donee, would make the donor the propositus, would, in effect, enable one by gift or devise of land to a kinsman, to reserve a reversion to his heirs after an estate of inheritance given to another. This would contravene the policy of our laws.

After the death of Yan R. Jones, his real estate descended to his brothers to the exclusion of his mother. Ilis brothers were his nearest heirs on that side, and they took, not only real estate in possession, but also vested interests in remainder.

Affirm the decree.


text:
    Fishback et al. vs. Weaver et al., Ad. Ex.
    1. Special Judges: Special adjourned courts.

    If the regular judge is not present to take the bench, at the commencement of an adjourned term of the court, if necessary, it would be his duty, or the clerk’s, to certify to the bar his inability to hold the court. They should then proceed to elect a special judge for general business, who would, perhaps, supersede a special judge elected at the regular term for special business. Where this is not done, the presumption arises from the record that the regular judge was present.
    A decree rendered at an adjourned term, by a special judge elected at the regular term, is a judicial act from which an appeal lies.
    2. Decree in rem: When superseded by appeal without bond.

    A decree for the sale of land, against several defendants, is superseded by an appeal without bond, if any of the appellants are administrators, or executors, having an interest in the land.
    3. Sales Pending Appeal : Title of pzcrchaser.

    When a decree for the sale of property is reversed in the supreme court, all the rights acquired by parties to the suit as purchasers of the property under the decree, fall with the reversal of the decree and dismissal of the bill. They do not stand upon the same equities with strangers who purchase under an order, still valid, and pay valuable consideration.
    4. Subrogation : Surety voluntarily paying bond.

    A surety who has paid money for a guardian, which the guardian owed upon his bond, and which the surety is bound to make good, is not obliged to wait for judgment or execution, but, by paying without them, undertakes the burden of showing that he was actually bound to pay. Showing that, he has the right to pay at once, and be subrogated to all . the securities which the creditors or beneficiaries in the bond has, and to all securities put into the hands of his co-sureties, even though intended to indemnify the latter alone, except such as he has consented to be given to them to his exclusion.

      APPEAL from Sebastian Circuit Court in Chancery.
    Hon. James Brizzolara, Special Judge.

      Gallagher Newton, DuVal £ Cravens, for appellant.
    Garland, Benjamin, contra.

   Eakin, J.

George S. Birnie, the intestate of appellees, became co-surety with Nicholas Spring, in a bond of William H. Norton, for $4,000, given by him as guardian of Mary Jane Miller, one of the minor heirs of Joseph Miller, deceased. The bond was filed in the Crawford county probate court, after due approval at the January term, 1851.

Norton had married the widow of Joseph Miller, and was also appointed guardian, separately, of seven other minor children of said Miller, giving a bond in each case.

Spring became alarmed at the mismanagement and imprudent habits of Norton, and demanded indemnity ; whereupon Norton, on the third of June, 1853, executed to him a mortgage of four lots in Fort Smith, which was filed for record on the twenty-sixth of the following July. It was properly conditioned to save Spring harmless against any loss on account of his suretyship on the bond given by Norton, as guardian of Mary Jane.

Afterwards, on the nineteenth of December, 1853, Norton executed a second mortgage of the same property in favor of J. R. Kannady.

Afterwards the eight children and heirs of Joseph Miller, being still minors, including Mary Jane, brought a joint suit in chancery against their guardian, Norton, and many other defendants supposed to be interested in the subject matters, including said Birnie, Spring and Kannady. In the course of this suit, which was pending many years, one of the heirs died without issue, reducing tlie number to seven. The others reached fall age. Mary Jane intermarried with Hightower, Adeline with Eishback, and other female heirs with others unnecessary to mention. All their husbands were duly made parties. A final decree was rendered at the October term, 1867, of the Sebastian circuit court, by which the lots in question were ordered to be sold, and a commissioner was appointed for the purpose. All the defendants appealed, but no supersedeas was obtained. Some of the defendants had been made parties to the suit during its progress, as administrators pf original parties deceased ; but what interest they claimed for their respective estates, in said lots, is not clearly shown.

Pending the appeal, the commissioner proceeded to sell the lands under the decree. The pleadings admit, on both sides, that he sold, amongst other property, the lots in controversy, although they are not included in the deed exhibited; and that they were purchased by William M. Fishback and Louis Miller, who — the latter in his own right, and the former in right of his wife — were amongst the parties complainant in the cause appealed. There is no evidence that any formal report was made of such sale to the court, or confirmation of it, save by inference. The commissioner’s deed, reciting the facts, was acknowledged in open court, and the acknowledgment ordered to be indorsed. The disposition made by the court of the proceeds of the sale does not appear.

Afterwards, in January, 1868, the decree of the chancellor was, by this court, reversed and set aside, and the court below was ordered to dismiss the bill for want of jurisdiction. See Norton et al. v. Miller et al., 25 Ark., 108.

On the fifteenth of August, 1868, Birnie filed the original bill in this case against Norton, the guardian,. Spring, his (complainant’s) co-surety, Mary Jane High-tower, the former ward, Eishback and Louis Miller, the purchasers; Kannady, the second mortgagee, and others claiming interests in, or liens upon, said lot. The object and prayer of the bill is to obtain subrogation to the benefits of the mortgage given upon said lots by Norton to Spring, his co-surety; and to annul the purchase made by Eishback and Louis Miller. He sets up in detail the foregoing facts, and bases his claim to subrogation upon the following allegations, to-wit:

That on the sixth of May, 1868, he paid off to High-tower and wife, and wholly discharged the amount due them from Norton — ‘-the balance due them at that time being nine hundred dollars; said William H. Hightower and wife having previously received of and from your orator the sum of twenty-five hundred dollars, making in all the sum of three thousand, three hundred dollars, in full payment and satisfaction of the said guardian bond;” and alleging further, that upon the receipt of said nine hundred dollars, Hightower and wife executed to complainant and Spring a full and entire release from all liability on the guardian bond. Their receipt is exhibited. It is for the sum of nine hundred dollars, and has no allusion to prior payments. It expresses entire satisfaction of all claims on the guardian’s bond of Norton, in which Birnie and Spring were sureties, and contained an express assignment to Birnie of all their rights against the guardian on his bond, and their lights under the mortgage given by Norton to Spring.

At the May term, 1870, Eishback and Louis Miller answered the bill. They say that the bond, as guardian of Mary Jane, although given separately by Norton, was in truth one of eight; although intended to secure his faithful conduct as guardian of the eight children and heirs of Joseph Miller, that the property came into his hands in mass, and was managed together. This point will not be further noticed, as the decision in the case of Norton v. Miller (supra) to the contrary, is the law of the case. The bonds are to be sep irately considered, as if given by several guardians.

They insisted that the appeal in the former case only operated as a supersedeas, so far as the decree affected the appellants, who were administrators; and that the effect of the joint appeal by all the defendants without supersedeas was to leave the decree free to be enforced against Norton, Spring and the complainant, who were parties, and gave no bond; and that, therefore, their purchase under said decree was valid, and extinguished the right of the mortgagee, Spring, under whom the subrogation was sought. They say further that the mandate was never filed below, nor was the suit formally dismissed.

They say that any payments made by complainant to Hightower and wife, of which they deny all knowledge, were voluntary; and deny the right of said parties to release the guardian on said bond beyond their interest in it of one-seventh, which remained after the death, without issue, of one of the heirs. The latter point fails, of course,' under the former decision. The bond was exclusively for the protection of Mary Jane Hightower.

Afterwards, complainant filed an amended bill, containing more specific charges with regard to other liens, and clouds upon the title, but not materially varying the aspect of the case, or the relief sought against appellants, Eishback and Miller. To the amended bill, the said appellants demurred.

On the thirty-first of July. 1877, the regular circuit judge being disqualified to sit in this and many other cases pending’ in the Sebastian circuit court, a special judge was elected to try said causes; and afterwards the regular judge adjourned the court until the first Monday in December, On the day last named the court convened, the special judge presiding, and proceeded to business. On the twenty-fourth of December, the decree in this cause was made, reciting that it had been submitted before the adjournment. The court overruled the demurrer of Eishback and Miller to the amended bill. They declined to plead further, and the cause -was heard upon the “ bill, answer, exhibits and proof.” The court found as a iact, that on the twenty-sixth of July, 1862, said Birnie had paid on said bond, in full satisfaction thereof, $1,200, and on the sixth day of May, 1868, the further sum of $900 — in all, $2,100, “'which was due and owing from the said Norton, as guardian,” and is now due the administrators of Birnie, who had died pending the suit. Eor the payment of this, they were held entitled to subrogation, and the commissioner’s deed to Eishback and Miller was set aside. A decree for $2,100 was rendered against Norton, with the usual orders for foreclosure of the mortgage by sale, in case of non-payment.

An appeal was granted by the clerk of this court to Eishback, Louis Miller and other defendants.

It is necessary first to determine whether any final decree has been rendered in the case by a competent court. Appellants contend that the Hon. Special Judge Brizzolara had no power to open and hold a special term of the court, in the absence of the regular judge; and that all the proceedings afterthe adjournment of the regular August term, 1877, on the first of September, were coram nonjudice, and void. If this be so, the ease still stands in the circuit court of Sebastian, continued over by operation of law, in the status it had on said first of September.

It was held in Dunn v. State, 2 Ark., 230, that it was a power incident to all courts, to adjourn their sittings to a distant day; and that the proceedings, at the adjourned session, will he considered, as the proceedings of the same term.

See. 28 of chapter AS of the Revised Statutes, approved in 1888, authorized the holding by any court of special adjourned sessions, in continuation of the regular term, “ upon its being so ordered by the court or judges in term time; and eutered by the clerk on the record of the court.”

The act of the sixth of April, 1869, section 1, provided that: “ Every circuit court shall continue in session, at each and every term thereof, until the business therein pending is disposed of, or until it becomes necessary for the judge thereof to adjourn the same, in order to reach the court next to be holden in his circuit.”

The constitution of 1871 left it to the legislature to prescribe the times and places of holding the terms of the circuit courts (Art. VII, see. 12), and continued in force all laws upon the subject not in conflict with any of its provisions (Schedule to same, sec. 1). Generally, in the provisional arrangements for the circuits, made by the constitution, the times for the beginning of the terms in all the courts were fixed, but no limit was fixed for their duration. The sixth circuit was in some respects exceptional in this regard; but that does not affect the general system, nor touch this question now before us. Art. XVIII.

The act of March 8,1877, creating the Twelfth circuit, provided that the court should be held in the Fort Smith district, on the last Monday in February and July; and in the Greenwood district on the fifth Mondays, respectively, after those above designated. (Pamph. Acts of 1877, ¶. J7). The record shows that the circuit court was in regular session at Eort Smith on the thirty-first day of July, 1877, which the court judicially knows was on Tuesday, the day after that fixed by law for the beginning of the term. It will be presumed that the court was regularly opened. The judge gave notice to the bar of his disqualification to preside in a number of eases, including this, and the said special judge was duly elected for those cases. He made an order in this case on the twenty-eighth of August, 1878. Afterwards, on the first of September, which the court knows was on Saturday, preceding the court for the Greenwood district, the regular judge adjourned the court until the first Monday in December, 1877. This he had the right to do. He had fulfilled his duty in holding the court for the Eort Smith district, until it became necessary to leave for the Greenwood district. He might then have adjourned the court until the next term, if he had chosen to do so. But he had still the power to adjourn it to a day near or distant.

On the first Monday in December following, it was as proper for the court to be in session, in continuation of the business of the term, as if it had only adjourned over for two days, for a local holiday, or public convenience. Ve must not lose sight of the distinction between “ special adjourned sessions” of the circuit court, and “ special terms.” The latter, without any adj ournment for the purpose, might, between terms, be held by the judge, for the special purpose of trying persons confined in jail. Eor this purpose, certain notices were prescribed, and certain formalities requisite. (See chap. 43, Rev. Stat., secs. 29 to 34.) These terms were not continuations of the foregoing regular terms. They were separate and independent. It was held in Brown v. Fleming, 3 Ark., 284, that a special judge for certain cases, in which the regular judge might be disqualified, could not hold one of these special terms. “The law,” it was said, “ contemplated that the special judge would attend at the regular term of the court, as less inconvenient to the community.” The court, in that case, said: “ It does not appear to have been at, or during the continuance of, the regular term; nor at a special session to which the circuit court had been adjourned by any previous order of the court, or of the judge.” This is a plain intimation of the view taken of the difference taken between “ an adjourned session,” and a “ special term,” and also of the opinion that there would be no objection to a special judge presiding, at any time, during the continuance of an adjourned session.

The forms and modes of proceeding between the regular and special judges of all courts are dictated generally by judicial courtesy, convenience, mutual respect and a decent regard for the dignity of the tribunal. None are presented by law. To constitute a valid court, it suffices for the record to show that there was a body in session at the time and place prescribed by law, with legal officers, and held by an authorized judge, presiding therein. (Dunn v. State, 2 Ark., 253). Where the judge is elected for special cases only, and the regular judge is presumed to be present, it is the more orderly and better practice for the latter to open the court each day, attend to such general business as may be of immediate importance on morning motions, and then give place to the special judge, at some agreed time. But the observance of this rule is not essential to the validity of the proceedings.

We are called upon, in this case, to inquire into the power of a special judge to open the court at an adjourned session, and proceed with the business, in the absence of the regular judge. If the regular judge had not been in attendance, to have taken the bench, if necessary, it would have been his duty, or the clerk’s, to have certified to the bar his inability to hold the court. They might then, and should, have proceeded to elect another special judge for general business, who might, perhaps, have superseded the special judge, elected for special business. As this was not done, the presumption arises, from the record, that the regular judge was there. The maxim applies : “ Omnia prcBSumunter rite et solemniter esse acta, donee probitur in contrarium ” Besides, the record does show that on the day this decree was made he vacated the bench to give place to the special judge.

The circuit court had regularly, in term time, appointed an adjourned session, in continuation of the term. Upon the day fixed, we find the court again in session, presided over by a judge duly authorized to sit therein. We find the court continued by successive adjournments till the day of this decree, upon which day we find the regular judge actually presiding, and yielding the bench to the special judge who pronounced it. We think it a judicial act, from which an appeal lies.

This is a direct proceeding to attack and set aside the commissioner’s sale, made, under order of the chancery court, upon a decree in a former case, after said decree had been appealed without bond for supersedeas. It must be determined whether, under the particular circumstances, the sale must stand. An appeal, in chancery, formerly, by the English practice, operated as a supersedeas, or not, within the discretion of the chancellor, who, in its exercise, was governed by the circumstances of the case. Upon that practice our statute, at an early clay, engrafted the following provision:

“ The appeal, when the appellant is not an executor, administrator, or guardian, suing or sued, shall not operate so as to stay the proceedings, unless a recognizance be entered into before the supreme or circuit court, or a judge thereof, and filed in the office of the clerk of the circuit court.” (Revised Slat., chap. 23, sec. 139.) This'was the law- at the time of the sale; and, by inference, the appeal did operate as a supersedeas in the reserved cases.

There were administrators, appellants in that case. What their interest was in the property to be sold is not made clearly apparent, but that they had some, is to be inferred from the facts. They were made parties for some purpose; they were dissatisfied and appealed. As to them and their interest in the land, the decree w-’as superseded under the statute. The decree was a whole, and ought not to have been executed, wdien no clear title could be made by the sale, barring the future claims of all parties to the suit. Chancery is averse to relief by piecemeal, leaving matters open for future litigation, which appertains to the case befóte it, and which, by proper delay, may be all settled at once. There could be no adequate price obtained on such sale. The purchaser would buy a lawsuit. Perhaps, in the case of a money decree, where each defendant was personally liable for the whole, a supersedeas by some appellants, or a saving instead of it, might not have been held ■available for the others, but that question does not arise now. In a proceeding in rcm, there can be no such division of interests.

The court is further of opinion that if the sale had not been superseded as to the appellants, who were not administrators, all the rights acquired by parties to the suit, as purchasers, fell with the reversal of the decree and the dismissal of the bill. They do not stand upon the same equities with strangers who purchase under an order, still valid, and pay valuable consideration. The parties are bound to follow the case to this court, and are bound by the decree here, as fully .as they were bound by the decree below. The decree in this court annulled the decree below, which forms the basis of their title, and restored the former status of the property. If they have any equities in following any portion of the purchase money, they are not set up in this proceeding. McBain v. Same, 15 Ohio St., p. 337, and cases cited by Judge Waite.

As to the complainant’s right of subrogation, there can be no question, so far as it appears that he paid money for the guardian, which the guardian owed on the bond, and which the complainant was under obligation to make good. He was not obliged to wait for judgment or execution; but, by paying without them, undertook the burden of showing that he was actually bound to pay. Showing that, he had the right to pay at once, and be subrogated to all the securities, which the creditors or beneficiaries in the bond had, as well as to all the securities put into the hands of his co-surety, even though intended to indemnify the latter alone, except such securities as he had contracted or consented, might be so given to his exclusion. The right of subrogation does not arise from contract, though it may be defeated by it. It is the machinery adopted by courts of justice to enforce fair dealing towards those secondarily bound for a debt, not only against principals and creditors, but amongst co-sureties themselves. The latter must share with each other every plank in the shipwreck. They are under mutual trusts towards each other, and for each other’s protection, to do all in their power to avert or diminish the common liability.

It is distinctly alleged, not specifically denied, shown by the receipt, and. found by the court, that Birnie paid High-tower and wife $900, which Norton oioecl on the bond. If Norton owed it, the subrogation pro tanto was right.

The bill further alleges that Birnie had previously paid for Norton on the bond about $2,400, but does not sufficiently allege that Norton properly oioed that on the bond, or show that Birnie was bound'to pay it. The surety has no right to pay out money for his principal by way of compromise, or otherwise, which the principal may not actually owe on the debt — and the surety may not have been bound to pay. This might be unjust, and no right to subrogation can be based upon it. The answer says these payments were voluntary, and the receipt of Hightower and wife does not allude to them. The chancellor found that $1,200 had been so paid, for which Birnie (or his administrator) was entitled to subrogation, making $2,100 in all. "We find nothing in the record to justify that conclusion. If the record had left any room to suppose that any oral testimony had been used, or that there had been any agreement of counsel concerning facts, wTe might well have presumed that the finding of the chancellor had sufficient support. But no such presumption can be entertained. The cause was heard upon “the bill, answer, exhibits, and proof filed herein.” All these should be in the record, and we find nothing there that satisfies us, with reasonable certainty, that Birnie was bound under the bond to pay for Norton any of the sums which he paid Hightower and wife for Norton, in discharge of the bond previous to the $900. It may, for aught that appears, have been an officious interference, or the result of unnecessary alarm.

Tbe decree is for too great an amount, and, therefore, erroneous. It should, on the pleadings and proof, have been only for $900, with interest. Eor this error, reverse the decree, and remand the cause, with leave to parties to amend the pleading, and take further proof; and for further proceeding, consistent with equity and this opinion.

Note. — At a subsequent day the appellee asked leave to file a remittitur — remitting all the decree except as to the sum of $900, with interest, and releasing all claim on the supersedeas bond, and agreeing to pay the costs of this court- — -which was allowed; whereupon, the decree was affirmed as to $900 and interest, not remitted.


author: English, C. J.

text:
    Cole vs. Moore.
    1. Tax Sales : Purchase at, by county clevis,, illegal. Owner, how far relieved in chancery.

    The county clerk being required by law to advertise delinquent lands for sale, to attend and make a record of the sales, and to issue certificates of purchase to the purchaser, and certificates of redemption to the owner when he redeems, and finally a deed to the purchaser' if it is not redeemed, is forbidden by public policy from purchasing at such sales. But the owner seeking relief in chancery will be required to refund to him the legal taxes, penalty and costs charged against the land, and interest from the date of sale; and also all subsequent taxes paid by him, and interest thereon from the dates of payment. The purchaser will also be entitled to receive from the officer having the custody of it, any excess above the taxes, etc., which lie may have paid for the land.
    2. Tender: When it stops interest.

    An unconditional tender, which is kept good, stops interest from the date of the tender.

      APl’EAL from White Circuit Court in Chancery.
    lion. J. N. Cypert, Circuit Judge.

      Goody, for appellant.

      B. T>. Turner and J. M. Moore, contra.

   English, C. J.

The bill in this case was filed by Israel M. Moore, on the chancery side of the circuit court of White county, on the' nineteenth of April, 1870, against John A. Cole, and alleges in substance:

That at a sale of lands and town lots, for the non-payment- of taxes for the year 1868, made in White county, on the second of August, 1869, the time prescribed by law— block No. one, in the town of Searcy, which then was and still is the property of complainant, was offered ior sale for the aggregate sum of $19.70, for .state, county, convention, school and military taxes and penalty, besides costs, and was struck oft' and sold to defendant, Cole, for the sum of $100; and afterwards defendant-, who is and ■was at the time county clerk of said county, issued to himself, as complainant- supposes, a certificate of purchase for said block.

That on the fifth day of March, 1870, complainant applied to defendant to redeem said block, and offered to pay and tendered to him the whole amount said block sold for, and the amount paid for his certificate of purchase, and all other costs paid by him, and also interest on the whole amount, at the rate of twenty-five per cent, per annum trom the date of sale, and also the fee allowed by law for issuing the certificate of redemption, and the fee for advertising said block; but defendant refused to accept said offer, or to issue said certificate and allow complainant to redeem, unless he -would pay him what he had paid for said block and one hundred per cent, thereon.

Complainant submits that it was contrary to public policy and the laws of the state for defendant, who was, and acted as, county clerk at the sale, to be in any way, either directly or indirectly, concerned or engaged in the purchase of any land at said sale, and that such purchase made by him was fraudulent and void, and should be set aside.

That by reason of the fraud of defendant in connection with said sale, and in the purchase of said block, he is not entitled, in law or equity, to any return for his purchase money for said block, or, if anything, to not more than the amount paid out by him; but if the court shall be of opinion that he is entitled to it, complainant is ready to pay him the entire amount paid out by him, with interest at the rate of twenty-five per cent, per annum, from the time of said sale to the date of the tender so made by complainant to him.

Prayer that said purchase by defendant be declared by the court to be void; that said sale be canceled, and for general relief.

Defendant answered, admitting that he purchased the block at the tax sale, for $100 ; that he was county clerk at the time, and issued a certificate of purchase to himself. Denies any fraud on his part in connection with the sale, and submits that, though clerk, he had the right to make the purchase, etc.

Admits that complainant offered to redeem, as alleged, and he refused to permit him to do so, unless complainant would pay him back the $100 purchase money, all costs, taxes paid by him on the block since the sale, with one hundred per cent, upon the amount so paid, with the addition of six per cent, per annum upon the original purchase money, costs and taxes, and also the fee for issuing certificate of redemption, etc.

Denies that complainant made him an actual tender by counting out the money, etc. To the answer a demurrer to the bill is added.

The court sustained the demurrer for want of some formal allegation of the bill, which was amended by interlineation, and the answer and demurrer were made to apply to the bill as amended.

Two depositions were taken and read on the hearing, which proved the tender and refusal as alleged in the bill.

The court, upon the pleadings and depositions, decreed that the purchase of the block in controversy, at the tax sale by defendant was illegal and void,-and set aside and vacated the same, and defendant appealed.

I. The revenue act of twenty-third of July, 1868, under which and its supplements the block in question was, doubtless, sold for the taxes, etc., of 1868, allowed the owner to redeem from the purchaser, within one year from the sale, by paying twenty-five per centum penalty. Acts of 1868, p. 277; Wolf v. Henderson, 28 Ark., 304; Pack v. Cranford, 29 Ark., 492.

II. The court below did not err in deciding that appellant, who was county clerk at the time of the tax sale, could not become a purchaser at the sale. It was his duty to advertise delinquent lands for sale, to attend the sale and make a record of the lands and lots sold, the sums bid for them, the names of purchasers, etc.; to issue certificates of purchase, and certificates of redemption when lands or lots were redeemed, and finally to execute deeds to purchasers on failure of owners to redeem. Act of twenty-third July, 1868, and supplemental Acts of nineteenth February, 1869, and ninth March., 1869. Having these and other important official duties to discharge relating to tax sales, and designated in the statutes, it is contrary to public policy for him to become a purchaser at such sales. Livingston, ad., v. Cochran et ad., 33 Ark., 295 ; West et al.v. Waddill et al., ib.; Chandler v. Moulton, 33 Vermont, 247; Mills v. Goodsell.

III. But the court below erred in simply declaring the purchase of appellant at the tax sale to be invalid, and vacating it, requiring appellee to restore to appellant nothing.

Appellee states in his bill that the block was offered for sale for the aggregate sum of $19.70 for all taxes charged upon it, and penalty, besides costs. There is no allegation that any part of this sum was illegal, or excessive. These taxes, etc., were justly due from him to the public. There was a lien in favor of the state upon the block for the sum so charged upon it, which is paramount to all other claims, and which he could not avoid or discharge otherwise than by paying it. It .must be assumed in this case, that it was because of his failure to pay the taxes that the block was advertised as delinquent, and brought to a sale. Appellant, though forbidden by reason of public policy from becoming a bidder at the sale, nevertheless bid, and became the purchaser of the block for $100, which, it must be supposed in the absence of any allegation to the contrary, he paid to the collector, and thereby satisfied the amount due from appellee to the public, and discharged the lien of the state upon the property. Appellee applied to a court of chancery to set aside the sale, and the court granted the relief without terms — without requiring appellee to refund to appellant the amount for which the block was offered for sale, and which he should have paid, but failed to do so, and which appellant did pay on his bid.

It has been decided by this court that where the owner of land sold for taxes files a bill against the purchaser to. set aside the sale, though the sale be held illegal and void, the owner must be required to refund to the purchaser the amount of the taxes, etc.,'paid by him, with interest, and also taxes paid subsequent to the sale, with interest, etc. Twombly v. Kimbrough, 24 Ark., 459.

Appellee was more liberal in his tender before the suit than he need have been. lie tendered to appellant not only the $100 bid by him at the sale, costs, etc., but a penalty of 25 per cent, thereon, which was the amount of penalty allowed by the statute, under which the sale was made, to purchasers having the right to bid at such sales. But a court of equity will not permit appellant to speculate upon a bid and purchase which he was forbidden by public policy to make.

The court below1 should have required appellee to refund to appellant the amount of the taxes, penalty and costs charged upon the block at the time of the sale, with interest; and if appellant had paid any subsequent taxes upon the block, not paid by appellee, the amount paid, with interest from the date of payment, should have been decreed to him.

But the further question arises: Should appellee have been required to refund to appellant, or bring into court, the whole of the $100 bid by him for the block, with interest, or only so much thereof as went to discharge the taxes, penalty and costs, which were a charge upon the block when it was offered for sale ?

By the act of the twenty-third of July, 1868, the collector was required to offer each tract of land or town lot for sale to the bidder who would pay the taxes, penalty and costs charged thereon, for the least quantity thereof, as had been the mode of selling under previous statutes. But by the supplemental act of the nineteenth of February, 1869, he was required to offer for sale the whole of each tract or lot to the highest bidder, but where several tracts or lots were taxed to any person, and one or more of them sold for a sum sufficient to pay the taxes, etc., charged on all of them, no further sale could be made. Pack v. Crawford et al., 29 Ark., 493.

In this case, a single block was sold, and, it seems, bid off’ at about $80 in excess of the taxes and penalty charged upon it. The amount of the costs is not shown by the bill.

Section 17 of the act of the nineteenth of February, 1869, provided that:

“ Should any tract, lot or part of lot, so advertised as aforesaid, sell for more than the amount due thereon for taxes, penalty and costs, the excess shall be by the collector paid into the state treasury, and placed to the credit of the person in whose name the tract of land, lot or part of lot, was advertised for sale; Provided, he or she be a non-resident, and the person or persons entitled to such excess, upon making the proper showing to the auditor of state, shall be entitled to a warrant on the treasurer therefor, and said auditor is hereby required to draw such warrant when satisfactory evidence has been produced to him.”

This section seems to provide for payment of the excess into the state treasury in cases only where the lands or lots were advertised in the name of non-residents. It is silent as to what disposition the collector should make of the excess where the land or lot was advertised in the name of a resident.

Whether the block in controversy was advertised in the name of a resident, or non-resident, does not appear from the pleadings in this case.

But by section 129 of the act of April 8, 1869 (which repealed the act of July 28, 1868, arid its supplements, but required the taxes of 1868 to be collected under them), the collector was required to deposit such excess in the state treasury, to the credit of the person in whose name a tract or lot was advertised, regardless of residence.

Whether the collector deposited the excess in this case in the state treasury under either act, does not appear from the pleadings.

But no matter where it was deposited, if appellee had applied for, and accepted the excess, it might perhaps have been treated as an affirmance by him of the sale.

As appellant thought proper to venture his money on a bid which the law of public policy forbid him to make, it is but reasonable that the decree should leave him to hunt up and obtain the excess ; but appellee should be required to relinquish to him all claim upon it, and he, or the decree, should vest in appellant authority to collect it from any public officer who may be its custodian,

IV. Appellee made an excessive tender before suit. The effect of the tender was to stop interest if kept good. But in the bill he made no unconditional offer to pay appellant, or bring into court any sum. He submitted that appellant was entitled to nothing, and offered to make his tender before suit good, if the court should hold him obliged to do so, thereby inviting a litigation which has been protracted for many years.

We think, therefore, that it is but just and equitable that he should be required to refund to appellant the amount of taxes, penalty and costs, charged upon the block at the time it was offered for sale, with interest at 6 per cent, thereon from the date of the sale. See Hamlett v. Tallman et al., 30 Ark., 511.

V. The court was right in setting aside the sale, hut erred in doing so without terms.

The decree for this error must be reversed, and the cause remanded, with instructions to the court below to ascertain by its master, or otherwise, the sum due from appellee to appellant, in accordance with the above rulings, and to render a decree setting aside and vacating the tax sale, and vesting the excess of purchase money in appellant as above indicated, upon appellee paying to appellant, or bringing into court, the sum found due from appellee to him.

In taking the account, if it is found that appellant paid the taxes, penalty and costs, in depreciated scrips, or warrants, he will be allowed their money value only.


text:
    Kountz et al. vs. Davis.
    1. Infant : When he may disaffirm deed.

    An infant lias seven years of the period of limitations, in which, upon coming of age, to disaffirm his conveyance executed in infancy.
    2. Descents : Dying intestate without issue.

    J and W, brothers, were joint owners, by purchase, of land. J died, leaving surviving him his father and mother and brothers and sisters. Afterwards, W died, leaving a child, and soon afterwards the child died, without issue, leaving its grandfather and grandmother and uncles and aunts on its father’s side. Held, That upon the death of J, his interest in the land ascended to his father for life, remainder in fee to his brothers and sisters; and upon the death of the child, its interest in the land ascended to its grandfather and grandmother and uncles and aunts on the father’s side in equal parts.
    Ü. Quit-Claim Deed : What it conveys.

    A quit-claim deed conveys only such interest as the grantor then has.
    4. Guardians Ad Litem: None for unknown infant heirs.

    "Where the number and names of infant heirs are unknown, it is not practicable to appoint guardians ad litem for them.

      APPEAL from Benton Circuit Court in Chancery.
    Hon. E. S. McDaniel, Special Judge.

      Pettigrew, Clark Williams, for appellant.

      J. D. Walker, contra.

   Harrison, J.

Jesse and William Kountz were joint and equal owners by purchase of two tracts of land — one containing 849 acres in Benton county, the other containing 80 acres in Washington county.

JesseKountz died in 1861, intestate, leaving surviving him his father and mother, and the following brothers and sisters: 1ns co-tenant, William Kountz, Joseph Kountz, Samuel Kountz, Isaac N. Kountz, Mary Davis, Nancy C. Henry, wife of Frank Henry, and Susan W. Kountz.

William Kountz died in 1863, intestate, leaving a widow, Amanda, who afterwards married Parson S. Packard, and one child. The name or sex of the child is nowhere stated.

The child died in about a month after its father, and when only four months old; and there were living, at the time of its death, its mother, the said Amanda, its grandfather and grandmother, on its father’s side, and the before-mentioned brothers and sisters of its father — its uncles and aunts.

William Kountz, at the time of his death, resided on the tract in Benton county.

Michael Kountz, the father of Jesse and William, and grandfather of the child, in 1867, sold and conveyed, by warranty deed, both tracts of land for $800, to William F. Shreve; and Joseph Kountz, Samuel Kountz, Nancy C. Henry and her husband Frank Henry, and Susan W. Kountz, on the eighth day of December, 1869, made him, but without any consideration therefor, a quit-claim deed to the same.

Shreve, on the thirtieth day of January, 1873, conveyed the lands, without warranty, to the plaintiff, James E. Davis. Isaac N. Kountz, on the first day of May, 1874, convoyed his interest in the tract in Benton county to Amanda Packard.

Mary Davis died in 1866, intestate, leaving children— but whose names, or the number of them, does not appear— who, at the time of her death, were infants. The grandmother of the child, its father’s mother, died in 1870, and Michael Kountz in 1872.

James E. Davis filed his complaint in equity against Isaac N. Kountz, the unknown heirs of Mary Davis, and Amanda Packard and her husband, Parson S. Packard, for partition of the lands. He filed with his complaint an affidavit that Isaac N. Kountz, and the heirs of Mary Davis, were non-residents of the state; and an attorney for them was appointed by the clerk, and they were summoned by publication of warning order. The complaint was filed and the suit commenced on the twenty-sixth day of July, 1875.

Joseph Kountz, Samuel Kountz, Nancy C. Henry and her husband Frank Henry, and Susan W. Kountz, were, on their application, made defendants, and filed an answer.

They alleged in their answer that the deeds to Shreve were procured by the fraud of the plaintiff; that Michael Kountz, at the time of his conveyance'to Shreve, resided in the state of Tennessee, and had never been in Arkansas, and knew nothing of the quality or value of the lands; that he employed the plaintiff, who lived in Washington county, near the lands, and with whom he was well acquainted — he haviiig lived a near neighbor to him in Tennessee — as Ms agent to sell the lands, supposing and believing that he was the sole and absolute owner of them— being unacquainted with the law of Arkansas as to the descent of real property, and being so informed by the plaintiff'.

That the lands were of good quality, and worth from three thousand to four thousand dollars; and that the plaintiff was well acquainted with them, and knew their value; but Michael Kountz, being an old man, and his mind greatly impaired by age and disease, and having implicit confidence in the plaintiff, and the plaintiff pretending to have found a purchaser for the lands in Shreve, and falsely representing to him that the lands were of inferior quality, and not worth more than $800, he was induced to sell them to Shreve at that price; and that though the purchase was pretendingly by Shreve, and the deed was made to him, it was, in fact, for the benefit of the plaintiff, or he was interested with Shreve in the purchase.

That the quit-claim deed from Joseph, Samuel and Susan W. Kountz, and Henry and wife, which was without consideration, was also procured by the imposition and fraud of the plaintiff', and that, they were induced to execute the same, by his false representation to them, who were residents of the state of. Tennessee, and ignorant of the law of Arkansas in regard to the descent of real property, and of the fact that they had an interest in the land — that their father was the sole heir of both their brother Jesse, and their brother 'William’s child, and that they had no interest in the estate of eithér or title to the lands; he pretending to them that his only object in desiring a quit-claim deed from them to Shreve was to satisfy Shreve,who, he said, was a suspicious and whimsical man, and had become uneasy about the title, and censured him, who had acted as the friend of their father in the matter, for inducing him to purchase the lands, and assuring them that, except as affording satisfaction to Shreve, it could do neither harm nor good.

And Susan W. Kountz averred that she was, when she executed the deed of quit-claim, an infant, and she denied for that reason, also, its validity as to her, and disaffirmed it.

They made their answer a cross complaint, and prayed that the deeds to Shreve be set aside and canceled.

Mrs. Packard and her husband also answered the complaint, and their answer, which was substantially the same as the other, was likewise made a cross complaint, and prayed a cancellation of the deeds. Mrs. Packard, besides, claimed dower, in the part or share of the lands of which William Kountz died seized.

The plaintiff filed a reply to the cross complaints.

He denied the misrepresentations and fraud charged against him in respect to Shreve’s purchase of the lands, and that he was in anywise interested in the purchase, or acquired any interest in the lands until several years after. Denied that he had any agency in procuring the quitclaim deed, except in writing to Michael Kountz for Shreve, that Shreve had understood that he had had but a life estate in the lands, and that he, Shreve, wanted his children, who owned the remainder in fee, to make him a quit-claim deed. Denied that he in any way influenced the grantors to execute it, but averred that it was given by them in compliance with the wishes of their father, and in consideration of the money Shreve had paid him for the lands.

lie admitted that Susan W. Kountz was, at the execution of the quit-claim deed, a minor.

There was no appearance by Isaac Kountz and the heirs of Mary Davis.

Partition of the lands was decreed, subject to the dower of Mrs. Packard in four-sevenths thereof, which was directed to be assigned and set apart to her; and to the plaintiff was adjudged five-sevenths, and to the heirs of-Mary Davis, one-seventh of the whole; to Isaac Kountz, one-seventh of the tract in Washington county; and to Mrs. Packard, one-seventh of the tract in Benton county; and commissioners were appointed to make the partition, and to allot and set apart dower.

The defendants, who appeared and made defense, appealed.

The charge of fraud against the plaintiff was not sustained by the evidence.

Some of the witnesses said the lands were worth, in 1869, eight or ten dollars an acre, but it was proven by a letter the plaintiff wrote Michael Kountz, in 1867, but a short time before the sale, produced by the defendants themselves, that he told him that his interest in them— which he then supposed was but Jesse’s part — was worth $1,500 or $1,600; and in a later letter he wrote him that he had since been informed by a lawyer, whom he consulted, that Mrs. Packard, whom he had supposed had the title to the other part, had only a life estate in it, and that the remainder in fee, in that also was in him.

The charge of misrepresentation as to the value of the land was, therefore, disproved; and there was no evidence that any representations whatever were made by him to the appellants to induce them to make the deed of quitclaim ; but it, on the contrary, clearly appeared that it was made by them in compliance with the wishes of their father, who had been informed by the plaintiff that Shreve understood that he had only a life estate in the lands, and that the remainder in fee was in his children.

But the court erred in decreeing to the plaintiff four-sevenths of the lands. Susan W. Kountz was, at the time of the execution of the quit-claim deed, a minor, and did not, as was shown by the proof, become of age-until 1871; and she had seven years — the period of limitation in which, upon becoming of age, to disaffirm the conveyance. Bozeman et al. v. Browning et al., 31 Ark., 364; Cresinger v. Lessee of Ketch, 15 Ohio, 156; Drake v. Ramsey, 5 Ohio, 152; Shoul. Dom. Rel., 581.

It was not alleged, nor attempted to be proven, although her infancy was admitted by the reply, that she had, after becoming of age, done anything in affirmance of it.

Upon the death of Jesse, his father took a life estate in his part of the lands, and his brothers and sisters the remainder in fee; and upon the death of the child of 'William, its part having come by its father, ascended to its grandfather and grandmother, and uncles and aunts on its father’s side, in equal parts in fee. Kelly’s Heirs v. McGuire and Wife, 15 Ark., 555; West v. Williams, ib., 682; Campbell and Wife v. Ware, 27 Ark., 65; Beard et al. v. Mosley and Wife, 30 Ark., 517; Oliver v. Vance, Jr., ante.

William took one-seventli of Jesse’s part. There descended to his child, therefore, four-sevenths of the whole.

Upon the death of the child, one-eighth of this ascended to Michael Kountz, its grandfather, and this, with his life estate in Jesse’s half, since expired, he conveyed to Shreve.

The grantors in the quit-claim deed, who were of age,, conveyed to him only the interest they then had — the shares that afterwards descended to them from their mother, who had an equal part with their father and each of the uncles and aunts of the child, have not been parted with; and but three-sixths of six-sevenths, or three-sevenths, were conveyed by them.

Instead, therefore, of five-sevenths, the plaintiff has a half only.

Susan W". Kountz has thirteen-eighty-fourths; Mrs. Davis’ children or heirs, thirteen-eighty-fourths; Joseph Kountz, one-eighty-fourth; Samuel Kountz, one-eighty-fourth ; Nancy C. Henry, one-eighty-fourth ; and Isaac V. Kountz, thirteen-eighty-fourths of the tract in "Washington county; and Mrs. Packard thirteen-eighty-fourths of that in Benton county.

The decree, as to the dower of Mrs. Packard, was right.

. It is objected that guardians ad litem should have been appointed for Mrs. Davis’ children or heirs, and without that no decree should have been made.

Although the heirs of Mrs. Davis were said in the complaint to be her children, and infants at the time of her death, it was also alleged that their names and the number of them were unknown, and the suit was brought against them as unknown heirs. As their number and names were unknown, it was not practicable to appoint guardians; and they were in fact unknown heirs.

The decree of the court below must be reversed, and a decree will be rendered here in accordance with this opinion, and the cause be remanded that it may be carried into effect.


text:
    Clements vs. Lampkin et al.
    1. Amendments: To answer must be pertinent to defense.

    L. and others sued T. in chancery for specific^performance of a contract to convey the southeast and southwest quarters of a section of land, making C„ who was claiming the southeast quarter under color of title, a defendant; and praying to quiet their title to the southeast quarter as against him, and also for specific performance against T. C. answered as to the southeast quarter, and afterwards asked and was refused permission to file an amendment alleging his acquisition of title pendente lite to the southwest quarter.

      Held, That the acquisition of title to the southwest quarter was no defense to the charges as to the southeast quarter, and the amendment was foreign to his defense, and was rightly refused.
    2. Chancery Pleading: Multifariousness, how corrected.

    Multifariousness is not ground for demurrer under the Code practice. It may ho corrected by motion to strike out, or to make the hill more specific, or a court of chancery may compel the plaintiff to elect, on which ground he will prosecute the suit.
    3. Chancery Practice : Pleading a decree. Bill of exceptions.

    A decree relied on and referred to in pleading should be brought upon the record literally. It is loose practice to give the purport of it in a bill of exceptions.
    4. Adverse Possession : Continuance of, presumed until, etc.

    Possession once established by material acts of visible, notorious ownership, must be presumed to continue until open, notorious and adverse possession be proven to be taken by another.
    APPEAL from Crittenden Circuit Court in Chancery.
    Hon. L. L. Mack, Circuit Judge.

      Peters, of Tennessee, for appellant.

      Lyles, of Tennessee, contra.

   Eakin, J.

Appellees, the heirs of John W. Lump-kin, the administration upon whose estate had been closed, sued the heirs of Robertson Topp, a non-resident, deceased, upon whose estate no administration had ever been taken in Arkansas; for specific performance of a title bond to convey a tract of land in Crittenden county, executed by Topp to John "V., in the lifetime of both. The lands were described as the fractional northeast quarter, the southeast quarter and the southwest quarter of section twenty-three, in township eight north, range eight east. No defense was made by Topp’s heirs, nor is there any complaint of the decree on their part.

Appellant, A. M. Clements, together with divers tenants, were joined as parties defendants, charging that said Clements claimed title to a part of the land, to-wit: the southeast quarter, and that he, with said tenants, was interfering with the possession of complainants and molesting them in the enjoyment of the land, under color of an invalid title. Against him the prayer of the bill was to remove a cloud from the title of complainants, and to enjoin him from further disturbance of complainants in the quiet enjoyment of their rights.

The tenants made default; Clements alone defended. In his answer he demurs to the bill for want of equity, sets up his own claim of title, denies the validity of that of complainants, and relies upon his adverse possession, and the statute of limitation.

Pending the suit, and before final hearing, he asked, and was denied, leave of the court to file an amended answer, showing that, “pendente lite, ho had purchased the southwest quarter of the same section for taxes, and praying that, the suit (as to. him) be dismissed.

Upon the hearing, the court granted the relief, substantially, as prayed by complainants, decreeing against the heirs specific performance, and against Clements the removal of the cloud, with proper injunctions. Clements appealed.

The court property refused leave to defendant to amend his answer. He was not charged, in the bill, with anything in reference to the southwest quarter of the section. That part of the bill was directed against Topp’s heirs alone. The acquisition by him of title to the southwest quarter was no defense to the charges as to the southeast quarter, and the decree could only bind him as to the issues made, and as to facts involved in the issues. The amendment was foreign to his defense, and not necessary to his protection. If he has a good tax title to the southwest quarter, .there is nothing in the decree to preclude its assertion in another proceeding.

The bill was clearly multifarious under the old chancery practice. Clements had no connection with either vendor or vendee. His claim of title was wholly separate and independent, and he could not properly, against his consent, have been brought iu to litigate it collaterally, in a contest between a vendor and vendee, with neitner of whom he had any privity. But, even under the old practice, the objection to multifariousness was required to be made early, and before expense incurred. It could betaken advantage of only by demurrer, and it would have been too late at the hearing — unless the court itself should be impressed with the impropriety of the bill, and dismiss it, upon its own motion. Story’s Eq. Pleadings, sections 271, and notes, 272.

But multifariousness is not ground of demurrer under the new Code of Civil Practice. It may be corrected upon appropriate motion to strike out, or make the bill more specific; or a court of chancery, which can always, in exercise of a sound discretion, prescribe equitable terms for the invocation of its aid, might compel the complainant to elect tile grounds upon which he desired to prosecute his suit. The court did not err in refusing to dismiss the bill on this point.

The complainants traced title, in their bill from a patent to Andrew Hodge, in 1847, who, they say, afterwards sold to Samuel Hodge; and further allege that, “on the eleventh day of May, 1853, the title to said quarter section was, by decree of this honorable court, vested in one Robertson Topp,” and reference is made to the decree. They show then the title bond from Topp to their ancestor, and prove, with reasonable-certainty, that said ancestor, about the year Í854, entered into possession of said land, and deadened a large area, for clearing. The purport of the decree alluded to is set forth in a hill of exceptions, which is loose practice. It should have been brought upon the record literally. It shows, however, sufficiently for this case, that the certificate of entry had been found by the court to have been assigned to Samuel Hodge, and by him to Topp. The chain of title, from the entry of Andrew Hodge, was thus established, to the extent of binding all within the chain; and also the possession of Topp’s vendee in 1854.

Clements derived title from a suppqsed entry by one Elliott of said southeast quarter, in the "United States land office, in 1840, through divers mesne conveyances to himself. There was no proof of loss of the original certificate of entry beyond the general ignorance of the witnesses as to what had become of it. They testified, in general terms, that Elliott had entered it. All the mesne conveyances from Elliott described this quarter section amongst other lands.

With the patent of 1847 to Hodge, before it, and considering the length of time intervening between the supposed entry by Elliott, in 1840, and the testimony of witnesses during the trial, the court might well conclude that the insertion of this quarter section in the divers conveyances, in defendant’s chain, was one of those mistakes so very common in the description of our lands b}r the government surveys, and that the chain of title on the part of defendant had failed.

The possession of Topp’s vendee, once established by material acts of visible notorious ownership, which was done by putting negroes upon it, and making a deadening' long known afterwards as the Lampkin deadening, must be presumed to have continued, until open, notorious and adverse possession be shown to have been taken by another. There are no acts of this kind shown on Clements’ pai-t, beginning at a time sufficiently remote to cover a period of seven years before the commencement of this suit, save this : that in 1869,during a leisure day in summer, he, with another man, went upon it and cut away from one-half to one and one-half acres of undergrowth, and then left it. This work of an idle day did not establish a bona fide, open, notorious and adverse possession, unless continued, or followed up by other acts looking to improvement or occupation. Such work as that, in our wide, dense, lowland forests, might pass long unobserved, even by neighboring proprietors, and would not be apt to have much significance to them if afterwards noticed. A large deadening every one understands. It is the first step towards the conversion of swamp forests into cotton fields; is attended with considerable expense, and attracts attention in the neighborhood. A small spot of undergrowth cleared away in the solitude and abandoned, means nothing as to ownership or future intention. Questions of adverse possession must be decided upon principles of reason and good sense, applied to the habits of the people, and the circumstances of the country.

The next evidence of possession on Clements’ part is by putting tenants on in 1872. That was within the period, and the statute of limitation did not apply.

There is no substantial error in the decree.

Affirm.


author: Eakin, J,

text:
    Taylor, Cleveland & Co. vs. City of Pine Bluff.
    1. Injunction: Illegal municipal exactions enjoined.

    By see. 13, Art. XVI, of the constitution of 1814, chancery has power to inquire into the validity of municipal exactions, ancl to enjoin their collection when found invalid. But to enjoin a city from prosecutions for violations of its ordinances, is beyond its usual relief.
    2. Cities: Poivcr to provide for weighing produce, etc. ,
    By sec. 12, act of March 9, 1815, for the creation and government of municipal corporations, a city has the power to pass and enforce by proper penalties, an ordinance “ to provide for the measuring or weighing of hay, wood, or any other article for sale,” within its limits. But if such ordinance be unreasonable, or directed to the end of raising a revenue, chancery will declare it void.
    APPEAL from Jefferson Circuit Court in Chancery.
    Hon. X. J. Pindall, Circuit Judge.

      McCain, for appellant.

      Elliott, C. B. Moore, contra.

   Eakin, J,

The city of Pine Bluff, which is of the second class, established, by ordinance, the office of city weigher, and directed him to weigh all articles brought to him for that purpose; and to give the party applying a certificate of any weight so ascertained. In weighing cotton, he was to be governed by the rules of the board of trade of New Orleans, La. It was then provided, that all cotton, hay, or fodder, brought,to the city for sale, should be weighed by the city weigher, as thereinafter specified; and that any person violating the provisions of said ordinance should be fined within the limit of §25 for each offense. It was made the duty of the weigher to furnish sufficient labor, and he was directed to charge the sum of twenty-five cents for weighing and certifying each bale. It was further provided that the amount of money received by the city scales should be appropriated for public improvements alone, and not for general city purposes.

The city weigher was allowed $30 per month in currency for his services; and was required to report his receipts, weekly, to the treasurer.

On the twenty-first of November, 1877, appellants filed this bill against the city, the mayor and city attorney, alleging:

That they were citizens of Pine Bluff, which was a large cotton market, and a city of the second class, and were there engaged in the business of buying and selling cotton. They set forth and exhibit the ordinances of the city upon the subject, and say that it has provided scales to weigh cotton and other articles for sale. They charge that the ordinance to compel all persons to weigh upon the city scales, and to pay a fee of twenty-five cents per bale therefor, was designed for revenue; and actually produces one of $3,000 per year. They say that they and other cotton-buyers have their own scales for weighing, and are put to great inconvenience and expense, and obliged to go a great distance to have their cotton weighed upon the city scales.

They charge that the mayor and city attorney’ combining, are used to procure the arrest, fine and imprisonment of persons who sell cotton in violation of said ordinance, and that when an appeal is taken in such cases the prosecution is dismissed to avoid a decision of the higher courts, upon the validity of the ordinance; and the city still continues said illegal exaction ; and that, thus, the people who bring in cotton for sale are intimidated, and submit to pay, rather than to incur the expense, delay and vexation of defense.

They sue on behalf of themselves, and all others interested, seeking to restrain the defendants from making any further arrests for this cause, or instituting further proceedings to collect the fee; and to have the ordinance declared void; and for other relief.

Defendants show, by their answer, that to keep up said scales they incur considerable expenses; and deny that they derive revenue tberefrom, to the extent alleged. They deny that any other citizens, save complainants, are prepared with scales to weigh cotton, or that they are put to any considerable inconvenience by weighing at the city scales. Upon the other hand, they claim that the ordinance is a protection to all who bring cotton for sale, and to all purchasers in the city, against unfair weights; and that it is cheerfully acquiesced in by all other merchants, and by vendors from the country. The charge of collusion between the mayor and attorney to avoid a decision upon the right, is emphatically denied.

The answer contains a demurrer in six paragraphs, amounting, in effect, to two causes: Misjoinder of parties defendants, which is not urged in argument; and want of equity in the bill.

The cause was heard upon the pleadings, and evidence, from which it appeared that there were parties who -would be willing to take the contract for tbe city weighing at ten cents a bale. Eor the rest, it did not affirmatively appear, that the ordinance was considered hard or oppressive by a majority of citizens, or cotton producers, seeking that market. On the other hand, the weight of evidence largely preponderates to establish the fact that the practice of requiring cotton to be weighed upon the scales, is a protection to both buyers and sellers, and contributes to the commercial prosperity of the place as a cotton market. It is proven, also, that the city derives a revenue, to some considerable extent, from the scales.

The court, in its decree, sustained the power of the city to compel buyers and sellers to weigh upon the established scales; and to charge a reasonable fee; and to punish those refusing to comply; but denied her power to raise a revenue therefrom. The court found the fee of twenty-five cents per bale to be excessive; and that all necessary and proper charges would not exceed fifteen cents per bale. "Whereupon the city was enjoined from charging more, and costs were decreed against her. Complainants appealed.

So much of the bill as sought to enjoin the city from prosecutions for violation of the ordinance, was without the usual ambit of chancery relief. They are quasi-criminal, and are not directed to the specific object of .collecting the tax or exaction, but claim to punish; and to collect fines and penalties; which are different, from the fees for weighing. Equity is chary of all interference with criminal or penal prosecutions for violations of state or municipal law, although quick to relieve against penalties and forfeitures arising ex contractu. Against the former, if invalid, the remedy by defense at law is complete. If, in truth, it were, as complainants charge, but fail to prove, that any persons hacl combined to institute a number of prosecutions for violation of the ordinance, knowing the same to be invalid, they would not only be themselves liable to a criminal prosecution, but to a civil action, also, on the part of persons aggrieved. There would be no occasion to invoke the protection of chancery.

As to other aspects of the bill our constitution provides {article XVI, section 13) that: “Any citizen of any county, city, or town, may institute suit, in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.” Eor this purpose, a bill in chancery is most appropriate.

This widens the range of equity jurisdiction, and will sustain this bill, to the extent of giving the court power to inquire into the validity of the exactions, and if found void, so to declare it, and restrain the city authorities from its collection. After such a decree, its collection by any process whatever would be a contempt. But when ordinances are simply to prohibit and punish acts, they stand upon a different footing. No exactions are made of any one. They are merely prohibitory, and not in the contemplation or equity of the clause above quoted. Those who violate such ordinances do not seek to avoid an exaction, but to promote their interests, pleasure, or convenience, and may take the risk of a defense at law.

Under the general act for the creation and government of municipal corporations (March 9, 1875, section 12), the city had an express grant of power “to provide for the measuring or weighing of hay, -wood, or any other article for sale.” This excludes the particular subject-matter from general grants of powder in the same act, and to this clause alone we must look for the authority of the city with regard thereto. Appellants contend that to provide for, means simply to furnish convenient facilities for those who wish to use them, and to charge for their use, but does not empower the city to compel citizens to use them, and thus give the city the monopoly of the business of weighing.

Before the passage of this act it had been the habit of legislatures in -other states (as we know from numerous cases in the books) to confer upon municipal corporations the control of weighing and measuring articles brought within their limits for sale, and the power to compel vendors to submit to the municipal regulations. They were not intended for the convenience of vendors. It is not within the ordinary range of municipal duties to furnish individuals with facilities for their private emolument, independent of any police considerations. The object of all such regulations 'had been to xarotect the citizens as purchasers — and this object would have been entirely defeated by leaving it in the option of the vendor to comply or not with the requirements of weighing or measuring. When our legislature granted the authority to “provide for” weighing and measuring, it is not to be presumed it was thought necessary to give the power to purchase and fix scales for public convenience; but rather that the city should be empowered to establish the system of requiring articles for sale to be weighed and measured. The court did not err in holding that the city had power to pass, and enforce by proper penalties, an ordinance of this nature. But, being a police regulation, it must not be unreasonable nor directed to the end of raising a revenue. Of course, the city council must first judge of what may be reasonable, and what fees will fairly compensate for the costs and expenses of the system, without regard to revenue. The courts will respect any fair exercise of this discretion, and will not be nice to take new accounts of expenses and correct small excesses. But the police power is too vague, indeterminate and dangerous to be left without control, and the courts have ever interfered to correct an unreasonable exercise or mistaken application of it.

This ordinance was imposed for revenue, and produced it. That, indeed, was clearly the object sought by its passage. The court did not err in considering it void to the extent of the excess over reasonable costs; nor, if the court had the right to apportion the fee, was there any error in fixing it at fifteen cents. It might have been done by contract for ten, but upon the whole evidence, and •allowing a fair margin, fifteen cents was not too much. If the ordinance had itself fixed the fee at fifteen cents, it would^nave been fairly sustained by the proof as reasonable.

But von constat that the council would have thought it necessary to pass any such ordinance as a police regulation, or with that sole object.. The ordinance was properly declared void, but the court should not have made a new one, according to its own views of what it should be, as a police regulation alone, shorn of its fiscal features. That should have been left to the action’ of the city authorities. So much of the decree as permits the city to proceed and charge fifteen cents is erroneous.

Let the decree below be reversed, and enter a decree here declaring void all existing ordinances of the city, imposing fines or penalties upon any persons who refuse to weigh their cotton at the city scales; and restraining the city, under the present ordinances, from any proceedings to collect any exaction for the weighing of cotton— without prejudice to the right of the city to receive for the use of her scales aDy sums which may be voluntarily paid, or contracted to be paid; or her right to pass reasonable ordinances to provide for the weighing of cotton, or other things offered for sale; and to make the same compulsory with the payment of a reasonable fee.


text:
    Reeve et al. vs. The State.
    1. Sureties on Bail Bond : Bad indictment against principal, no defense. The sureties on a bail bond, can not show, in answer to a sci.fa. on forfeiture, that the indictment against the principal was bad.
    APPEAL from Saline Circuit Court.
    Hon. J. M. Smith, Circuit Judge.

      A. D. Jones, for appellants.

      Henderson, Attorney General, contra.

   English, C. J.

On the third of October, 1874, James Wyatt being in custody, in Saline county, on arrest for burglary, was admitted to bail on application to the circuit judge, David Reeve, John M. Murphy, S. G. Garrett and E. M. Chrism an becoming bis sureties. The bail bond was in the penal sum of $500, and in the form prescribed by section 1723 of Gantt's Digest, conditioned that Wyatt should appear in the Saline circuit court, on the first day of its October term, 1874, to answer said charge of burglary, and should at all times render himself amenable to the orders and process of said court, in the prosecution of said charge, and if convicted surrender himself in execution, etc.

The October term, 1874, of the Saline circuit court, commenced on the twelfth of, October. The court was opened, but no grand jury was impanneled and no business was clone; a general order of continuance was entered, and the court adjourned until next term.

At the March term, 1875, the grand jury returned into court an indictment against Wyatt for burglary; be and his sureties were called, and failed to appear, and a forfeiture was entered upon the bail bond.

A summons was entered upon the forfeiture, ninth of July, 1875, to the sheriff of Pulaski county, returnable to the September term following, and duly served on Reeve, Murphy and Chrisman, and returned non esi, as to Garrett.

At the return term, all the sureties appeared by attorney, and moved for a continuance, on the ground that they had heard that Wyatt was dead. The motion was overruled; no exception taken to the decision; no defense interposed; and final judgment was rendered against them for the amount of the penalty of the bond.

At the March term, 1877, a petition was filed for Reeve and Chrisman, praying the court to set aside the judgment and grant them a new trial, on the ground that they had discovered, since the final judgment was rendered, that the indictment against Wyatt, when returned into court by the grand jury, clid not contain tbe words, “ in the night time,” and that these words had been afterwards fraudulently inserted, and that, therefore, the indictment, as found, was invalid as an indictment for burglary.

The court sustained a demurrer, interposed by the state, to tbe petition, and being tbe last day of the term, the sureties asked that the matter be continued, with leave to them to file an amended petition, within ten days, making the allegations of fraud more specific, which the court refused.

On the twenty-third of March, 1878, the clerk of this court granted all of the sureties an appeal.

The proceedings, down to and including the final judgment, appear upon the face of the record to have been regular.

If it be true, as stated in the petition to open the judgment, that the indictment, when returned into court hy the grand jury, did not contain the words, “ in the niglit time/' and was not, therefore, a good indictment for burglary, and that these words were afterwards fraudulently interpolated, Wyatt was, nevertheless, bound, when called, to appear and answer the indictment, and his sureties were obliged, by the condition of the bail bond, to produce him in court. If he had appeared, and the indictment, for any cause, was bad, it might have been quashed on his motion, and his sureties would have been discharged; but the court might have ordered him into custody to answer a new indictment. On his failure to appear, the court would not have entertained a motion by the sureties to quash the indictment in his absence. It was his duty to be there and make defeuso for himself.

In State v. Lockhart, 24 Georgia, 420, it was held that the sureties in a bail bond, in answer to a sci.fa., on forfeiture, might show that the indictment against the principal was bad; but we most respectfully decline to follow that decision. The contrary adjudications are founded on a better reasoning, and are more in accordance with principles of law. State v. Edwards, 3 Ala., 343; Weaver v. State, 18 Ala., 243; Williams v. State, ib., 63.

In the case last cited, the court said:

“ The recognizors (except the accused) have no connection with the indictment, and the question of its regularity or irregularity, in this respect, is wholly disconnected from their undertaking. They bind themselves that their principal shall appear and answer the charge against him, and if he fail to do so,'the condition is broken, and they become liable for the penalty.”

In the Georgia case, though the sureties were discharged from the forfeiture recited in the sci.fa., on account of the bad indictment, it was, nevertheless, held that they were not discharged from the bail bond, but would be bound for the appearance of the principal on the finding of a good indictment against him. .

Affirmed.