author: Bennett, J.

text:
    HIGHTOWER et al. v. HANDLIN & VENNEYS.
    Supreme Court — Jurisdiction of, in matters of cost. — Whtre it is decided . that an inferior court had no jurisdiction in a cause, this court, on appeal; can render no judgment for such costs as have accrued in that court, but it is proper to render judgment for the costs made in this court, against the party bringing suit.

      Executions — Requisites of. — An execution must be authorized by a judgment, and must follow it in every essential particular, not only as to material matters of form, but also as to the amount for which it is rendered.

      Same — When sales made, void. — Where several levies and sales are made for separate sums, only such sales or levies would be void as are made to satisfy the amount in excess of the judgment; but where one sale is made to satisfy the sum actually due, and the execution has been issued for a sum greatly in excess of that sum, the whole proceeding will be declared void.

      Same — Recourse of purchaser, when proceedings void, etc. — Where the judgment. of a court, or an execution issued thereon, is declared void, by competent authority, the purchaser, under such sale, takes nothing, but would have recourse upon the sheriff, who made the sale, for the money paid at it.

      Same — Where sale made after return day. — The sale of real estate, under an execution, after the return day, is without authority and void.
    PETITION TO QUASH EXECUTION.
    Gallagher, Newton ‡ Hempstead, for Plaintiffs.
    1. Courts Lave power over tlieir own process, wlien deed Las not been executed, approved, etc. State Bank vs. Noland,. 18 Ark., 301; 6 AN., 425; 10 Ark., 541.
    2. - Judgment for costs cannot be rendered when courts Lave no jurisdiction. 5 Eng., 569; 21 AN., 93.
    3. At tlie time of the issuance of tlie execution and pretended sale, tlie terms of the Supreme Court were the third Mondays of April and October- of each year. Acts of 1868, p. 144.
    4. Executions issued from any court of record should be returnable the second day of next term thereafter. Gould’s Digest, p. 501, sec. 9.
    5. Judgment should have been for costs of Supreme Court only. Gould’s Digest, 284, sec. 89.

      6. A sale after the returning clay is void. 3 Smeecle § Mar-shed, 471. Should have been sold under ven. ex. Young vs. Smith, 23 Texas, 598; Newton vs. State Bank, 14 Ark., 9.
    7. Sale, under execution for much greater amount than judgment, void even as against bona fide purchaser. Seer-lings vs. Johnson, 1 Nev., 613.

      T. D. T7. Yonley, for Defendants.
   Bennett, J.

On the 2d day of December, A. D. 1867, William H. Norton, et al., recoveredr a judgment against the plaintiffs in a certain cause, then pending in this court, wherein said Norton, et al., were appellants, and said plaintiffs, as heirs-at-law of Joseph Miller, deceased, were appellees, on appeal from the Circuit Court, in chancery, of Sebastian county, for the Fort Smith district.

The judgment of this court was, that “the- decree of said Circuit Court, in chancery, in this cause be, and the same is hereby, for the error aforesaid, reversed, annulled and set aside with costs; and that this cause be remanded to said Cir-euit Court, in chancery, with instructions to dismiss the bill for want of jurisdiction.

“It is further ordered and decreed that said appellants recover of said appellees all their costs in this court, in this •cause expended, and have execution thereof.”

On the 2d day of September, A. D. 1868, an execution was issued from this court upon said judgment for costs, not only for the amount of the costs of the parties in the Supreme ‘Court, which were taxed at $25 00, but also for the costs of the Circuit Court, which amounted to $151 75, in all, amounting to $178 60, with the cost of issuing the execution.

This execution was returnable, by law, on the 20th day of October, 1868, which was the second day of the- next October term.

It came to the hands of the Sheriff of Sebastian county, to whom it was directed, on the 7th day of September, A. D. 1868, to be executed, and was by him levied upon the follow-'mg property, to-wit: Lot No. 12, in Block No. 15, in the city of Port Smith, and was advertised to be sold on the 26th day of October, 1868, and was by him offered for sale and sold to these defendants, for $25 00. These facts appear from the-endorsements and return of the sheriff upon the execution.

The plaintiffs have filed their petition in this court to set aside the sale and return of the sheriff, under the execution, and to declare the same void; because,

First. If the court had no jurisdiction of the subject matter in controversy, it could hot render a judgment for cost.

Second. Because the sale, under the execution, was made six days after it should have been returned.

The first proposition, to which our attention is directed, would be correct if this court, in deciding the' case, had said it had no jurisdiction; but it has done no such thing. It has merely said that the Circuit Coui’t, from which the appeal came, had no jurisdiction of the matter in controversy.

This court acquires jurisdiction, in such matters as are not original, by virtue of the prayer for, and the order granting • the appeal. When that is regular, the jurisdiction is complete here. The question of jurisdiction in inferior courts, in certain cases, is, often, one of an intricate nature, and can only be settled by the highest tribunal in the State; but when once decided that the inferior court had no jurisdiction, there can be no judgment rendered for such costs as have accrued in that court, but it is proper to render judgment for the costs made in this court against the party bringing suit. In the case before us, the Clerk of the Circuit Court certified the costs made in that court, and the clerk of this court added them to those made here, which was erroneous.

But will this protect the petitioners against a bona fide purchaser at a judicial sale ?

It has been well settled, we think, that an execution must be authorized by the judgment, and must follow it in every essential particular, not only as to material matters of form, but also as to amount for which it is rendered.

While it is not incumbent upon bidders and purchasers, at judicial sales, to inquire into any irregularity which may have been permitted by the court rendering the judgment, or the clerk in issuing the execution, if it is regular upou its face; yet, if for any caxise the proceedings of either should bo declared void, by competent authority, he con Id not take anything’by reason of such sale, but would have recourse upon the sheriff, who made the sale, for the money ho paid at it.-

When several levies and sales are made'for separate sums,, only such sales, or levies, would be considered void as are made to satisfy the amount in excess of- the judgment. If, however, but one sale is made to satisfy the sum actually due, and the execution has been issued for a sum greatly in excess of that sum, the error can only.be remedied by setting aside and declaring void the entire proceeding under the execution.

The case of Knight vs. Applegate’s heirs, 3 Monroe, 336, is in point. An execution was levied for about foi’ty-two dollars more than the judgment authorized, and the court, for that reason, held that the sale bond-could not bo sustained. Judge Owsley, who delivered the opinion of the court, after holding that the execution was void, proceeded to say: “To uphold a sale of land, made under an execution, by an officer, it is not enough that the execution purports upon its face to be regxxlar, and appears to have emanated from competent authority, there must also be a judgment to which the sale ’money is to be applied. The reason is obvious; lands'aré made subject to sale under writs of fieri f<uñas by statutory enactment, and it is only in satisfaction of judgments that the statute has authorized the sale, there, must, of course, be a judgment to which the'proceeds of the sale may be applied to make the sale a valid one. It would, therefore, judging from the facts proved on the trial of the motion, seem to follow that the sale bond cannot be sustained, for the land appeal’s to have been sold, and the bond taken for a sum equal to that mentioned hi the execution, which issued in favor of Knight, against the estate of Applegate, and as the judgment. in favor of Knight, is in fact, far less than the execution, there is no judgment to which the excess contained in the execution, and included in the bond could be applied.”,,

'Chief Justice Lewis, in the case of Hastings vs. Johnson, 1 Nevada, 615, says: “That an execution issued and sale of property made, when there is no judgment authorizing it, would be utterly void, there can be no doubt, and for the same reason, avc think that an execution and sale for a sum exceeding that actually due upon the judgment, would be equally Amid, because there is no judgment to authorize the collection of the excess for .which execution is issued. When the discrepancy between the judgment and the execution is a mere trifle, IcA^y and salo Avill not. bo disturbed, because it is said, lex non curat dc minimis; but Avhen the discrepancy is material, it cannot be overlooked or disregarded by the courts.” The same doctrine is announced in the case of Peck vs. Tiffany, 2 Comstock, 458. By reference to the judgment in this ease, avo find there Avas none for money, except for the costs of this court, which appears by the allegation of the petition, and not denied, to have been twenty-fiArn dollars; but the execution called for one hundred .and seventy-six dollars, over six times the amount. In accordance Aviththe. precepts, as laid doAvn in the aboAe cited cases, and in accordance Avith our own judgment, avo consider the sale of land, under such circumstances, Avoidable, and in such cases the salo may be sot aside, even though the right of bona fide purchasers lniA*e intervened.

As to the second cause, Avhv the sale should be set a,side, avc think it, if possible, more conclusive than the first. A sale under an execution, of real estate, after the return day, is Amid and Avithout authority, as the power conferred by the writ was non-existent.

It was held in the case of Lehr vs. Dale, ex dem. Rogers, 3 Smeede & Marshall, 471. “If avc AdeAv the execution as, in laiv, returnable to the April term, it is manifest that a sale made under it, in July, 1843, ivas irregular, and conferred no title. Tlie sheriff having been bound by law to make a return of the writ to the April term, it had, at this time, discharged its office. He acted, then, without legal process, and consequently without authority, since- the latter expired with the writ. The authority, for the sale of the real estate, could only have been obtained by a writ of venditioni exponasSee, also, Borden vs. McKinnie, 4 Hawk's Law and Equity Rep., 282; Towns vs. Harris, is Texas, 507; Young vs. Smith, 23 Texas, 599.

•In some of these eases it has been held that personal property levied on before, may be sold by the sheriff after the return day, without a ven. ex.., but real property cannot. The proper course is, to make return of the execution upon the return day, and thereupon issue a venditioni exponas• to the officer to sell. A seizure of personal property vests a special property in the sheriff, who may take possession of it for the purposes of the execution, and complete the sale after the returning day, by virtue of the authority previously given, whereas, a levy on land gives no right of property or possession. It gives no authority to the officer to take possession and turn the defendant out, but only the right to enter for the purposes of sale. It confers authority to pass the title merely, not to change the possession; there must be in existence some lawful authority for the conversion and sale of the property. The execution could confer none after the return day, for it was .dead. The sale, in the case before us> was made some six days after the return day, -without any other authority than the original execution. It was therefore void. For these reasons, the prayer of the petitioner must be granted. The return of the sheriff and sale under the execu-' tion are set aside and hold for naught.


source: Caselaw Access Project

license: Public Domain

text:
    ANDERSON v. BENJAMIN, ex use, etc.
    APPEAL-RROM CLARK CIRCUIT COURT.
    Hon. E. J. Searle, Circuit Judge.

      James J. Witherspoon, for‘Appellant.
   Bennett, J.

No motion for a new trial having* been filed in the court below, this case stands the same as Merriweather vs. Erwin; Steck vs. Mahar, etc., and others.

Gregg, J., dissenting, says: For the same reasons stated in the case of James iT. Merriweather vs. Elmt Erwin, I dissent from the opinion of a majority of the court in this case.


text:
    WOODRUFF v. SCRUGGS.
    Penal Statutes — Effect of repeal. — Upon, the repeal of a penal statute, no-penalty can be enforced, nor punishment inflicted for a violation of the law while in force, unless there be some special provision to that effect.

      Legislature — •Power to modify remedy of contracts. — The General Assembly has power to alter or modify the remedy as to the enforcement of contracts, but not so as to virtually or substantially destroy or take away the same.
    Construction of Statutes — Act of July 13, 1868. — The act of July 13, 1838, repealing the usury laws of this State, operated upon all contracts made previously to its passage, still outstanding, as well as upon all future contracts ; but the intent and effect of the statute was not that of a repeal of an absolute penal statute to invalidate contracts previously made, but only to take away or destroy the defense of usury thereunder.

      APPEAL FROM PULASKI CIRCUIT COURT.
    Hon. John Wiiytock, Circuit Judge.

      Watkins & Rose, for Appellant.
    We submit that the statute ought not to be construed so as to have a retroactive effect, or to make contracts good that were illegal at the time they were made. Baldwin■ vs. Cross, 5 Ark., 510; Crittenden vs. Johnson, 14 Id. 464; Couch vs. McKee, 6 Id. 498.
    That the repeal of the usury laws did not affect contracts in force at the time of the repeal; see particularly, Mitchell vs. Boggett, 1 Branch, {Fla) 356; Merville vs. Be Blanc, 12 Ba. An., 221; Seegar vs. Seegar, 19 III., 121; Root vs. Finney, 11 Wis., 84; Simonton vs. Vail, Id. 90; Brown vs. Haight, 18 Id. 102; Morton vs. Rutherford, Id. 298.

      Garland & Hash, for Appellee.
   Bennett, J.

The appellee sued the appellant in the Pulaski Circuit Court, on a note executed in 1866, and due in two months. The appellants pleaded usury. To this plea Scruggs demurred.

First, Because there were no usury laws then, when the plea was filed, in this State.

Second, The plea failed to aver specifically, a corrupt intent.

The court below sustained the demurrer — appellants resting, judgment was rendered against them; they appealed to this court.

The first question, for our consideration, is, what was the effect of the repeal of the statute of usury of 1838, by the act of the Legislature of 1868.

The seventh section of Chap. 92 of Gould’s Digest, reads as follows : “ All bonds, bills, notes, assurances, conveyances and all other contracts or securities whatsoever, whereupon or whereby there shall bo reserved, taken or secured, or agreed to be taken or reserved, any greater sum or greater value for the loan or forbearance of any sum of money, goods or things in action, than is prescribed in this act, shall be void.”

The prescription is found in the second section of the same chapter, and is, in effect, as follows: “Parties may agree in writing, for the payment of interest, not exceeding .ten per centum per annum, on money dxre or to become due upon any contract, whether under seal or not.”

The Constitution of the State, which went into effect in 1868, in Art. 15, See. 21, gave to the General Assembly the power to declare, by gen eral law, what sh all be the legal interest upon contracts, when no rates of interest were specified; but distinctly declares that no law should ever be passed limiting the rate of interest for which individuals may contract, in this State. The General Assembly, which met under the authority of the Constitution of 1868, on the 13th day of July, of the same year, repealed all of Chapter 92, Gould’s Digest, with the exception of Sees. IV, X, XI, XII. By the same enactment, it was declared to be lawful for parties to stipulate in the note and agree on any sum of interest that may be taken and paid upon any one hundred dollars of monej loaned, etc. Section six, of the sanie act says: “No plea of usury, nor defense founded upon any allegation of usury, shall be sustained in any court in this State.”

We learn from Sedgwick, in his work on Statutory and Constitutional Law, page 129-30-31, and the cases there cited, “ That there can be no doubt of the truth or validity of the assertion that when there is a repeal of a penal statute, no penalty can be enforced, nor punishment inflicted for a violation of the law while in force, unless under some special provisions.” Nor can it be denied that the General Assembly can alter or modify the remedy as to the enforcement of contracts, unless the enactment should virtually or substantially take away the same. - " ®

Sec. 6, of the act of the Legislature, approved July 13,1868, abolished the defense of usury in the State, and the same act repealed all usury laws on our statute books.

While we are not prepared to say that “the plea of usury, sustained under our former law, was in its effects a penalty upon the plaintiff in the loss of his entire debt, and thus place parties, coming under the operation of that law, in the same situation they would have béeu under an absolute penal statute,” we can, with safety, say that the statute repealing the usury laws and abolishing the defense of usury, operated upon all contracts made before it was passed, still outstanding, as upon all future contracts. The act was unquestionably retrospective in its character. All general rules of construction must yield to the clear intention of the Legislature, sufficiently expressed. In this instance, the intention is clear and fully expressed when it declares: “No plea of usury, or 'defense founded upon any allegation of usury, shall be sustained in any court of this State.” It makes no reservations- or exceptions, but 'is emphatic — commanding the courts not to sustain any such plea.

The appellant insists that this statute shall not be construed so as to make contracts good that were illegal at the time they were made, or in' other words, making that valid which was before void. In defense of his position, he has cited numerous cases. One -of the most pointed is that of Morton vs. Rutherford, 18 Wis., 298. Judge Cole, in delivering the opinion, says: “ Subsequent legislation is relied on to show that the defense of usury is not available. By the law, in force at the time the contract was made, it was usurious and void. To the same effect was the law when the suit was commenced, and by the law of 1856, an usurious contract was declared valid and effectual, only to secure the repayment of the principal sum loaned. But how this latter enactment, even if it attempted it,'could render valid an antecedent contract, which "was void, we do not comprehend. The law of 1856 can have no bearing upon the question. The defense of usury is doubtless available.”

The case of the President, Directors, etc., of the Springfield Bank vs. Samuel Merrick et al. 14 Mass., 332. In Massachusetts there was a law that the bills and notes of banks, not incorporated by law, should not be received or negotiated by banking corporations of that State, under a heavy penalty. It was held that a promissory note, payable in such bills to a banking corporation, madé while the statute was in force, was void, and that no action could be maintained upon it by the promisees after the statute was repealed. Chief Justice Pai’lcer remarked that, “the subsequent repeal of the act can have no effect upon a contract while it was in force. As well might a contract made for the purpose of trade with an enemy, during war, be purged of its illegality, by the return of peace.”

The case of Mitchell vs. Doggett, 1 Florida, 311, is also cited by appellant, with approbation, wherein Chief Justice Hawkins says: “ When a contract is illegal, at the time of its inception, by force of a statute, no action can be maintained upon it, although the statute is repealed -which declared it illegal.” Other adjudications are cited, but the above are the strongest among them.

While ve are willing to admit that the above opinions are entitled to great respect, emanating as they do from the highest tribunals of the States, yet we must respectfully dissent from the principles of law thus laid down, so far as they relate to usurious contracts. In our opinion, they are not dictated by any principles of sound policy, morality or law.

While the statute of 1868, by declaring that “no plea of usury, nor defense founded upon any allegation of usury, shall be sustained in any court of this State,” and repealing all previous usury laws, may affect injuriously the antecedent legal rights of the borrower, the appellant, in this case, under the contract, there is much of reasonable intendment and allowable presumption derived from the nature of the right affected and the circumstances under which the contract was made. It may be well doubted whether the borrower, under an usurious contract, has any antecedent rights of the nature of vested rights, created by this contract, or existing under and by the terms of it,-which the law can affect. Iiow do "Woodruff’s rights stand in a legal point? They are, under and by the terms of the contract, to receive and enjoy until demanded, the money of Scruggs. Scruggs’ rights are' to receive interest and the principal sum when due. But the statute of usury, operating upon 'them, avoided his right to demand them and the legal obligation of "Woodruff to pay. This privilege of refusing to pay the claim upon demand, not under and by virtue of the terms of the contract, or-any presumable intention of the parties different from that which appears upon its face (for Ave think it Avould be doing Wood-ruff* injustice to suppdse he took the money from Scruggs originally Avith the intention of enjoying it without ever repaying), but under, and by virtue of a general law, is the only antecedent right of the defendant which the statute of 1868 can affect. That privilege, and it was nothing more than a privilege, the legislature intended to take away by validating the. contract in this respect. The right of the defendant originated in a statute founded upon policy, intended to protect the needy borrower from the presumed temptation of the lender to demand exorbitant interest for forbearance. That right, of the defendant, to insist upon, a forfeiture by the plaintiff of his debt, Avas a legal right before the repeal, but not an equitable one. The courts of equity do not view the statute as courts of laAV are compelled to do. If a borrower goes into a eoui’t of equity, in respect to a security given in connection with usurious contracts, or to avoid extortion or oppression, the court will always-compel him to pay principal and legal interest, because there is a moral obligation resting on him to do so, and it is equitable that he should be compelled to do it.

In the case of Kilborn vs. Bradly, 3 Bay, 356, the court said: “The statute against usury, on principles of public policy, renders void contracts upon usurious considerations. But the lender incurs no penalty unless he actually takes usury, and courts of equity, on relieving, against oppression ox* extortion, order tlie repayment of tlie sum really loaned or due, with lawful interest. The moral obligation of the borrower to pay the principal sum actually loaned, with the lawful interest, is unimpaired.”

In the language of Judge Duncan in Satterlee vs. Mathewson, 16 Sarg. & Rawle, 191, “there can be no vested right to do wrong.” In the case of Baugher et al. vs. Nelson, 9 Gill, 309, the court say: “ In the nature of things there can be no vested right to violate a moral duty or to resist the performance of a moral obligation, and although a borrower may be justified in morals, as he is in law, in resisting the payment of illicit interest, extorted from him in consequence of his necessitous condition, he certainly can have no right, as a matter of private justice, to repudiate his contract so as to escape from the payment of the sum actually received.” The doctrine announced in these cases, and many more might have been added, stands upon the principle that the borrower is, at all times and under all circumstances, under a moral obligation to pay to the lender the sum actually loaned, with interest, as a fair compensation for its use. This is all the law of 1868 purposes to accomplish. The legislature, in the exercise of its remedial authority, expressly given it by the Constitution, comes to tlie aid of all courts, both legal and equitable, and declares no plea of usury, nor any defenses founded' upon usury, shall be heard or entertained in them.

The Chancellor, in the case of Wilson vs. Hardesty, 1 Md., 66, made use of the following language: “Notwithstanding the language of the act of 1704 is so strong, it is very certain that contracts within its provisions are not, under all circumstances, treated as merely void.” This was a case where the complainant was seeking to avoid the contract because.it was usurious, as the statute of Maryland declared that all such contracts were absolutely void. The contract, in the present case, was wrong, only, because the statute prohibited more than ten per centum, and was wrong, only, to the additional interest expressed on the face of the note. For that wrong the statute said the contract should he void. Since then, the legislature has taken away this penalty and has said, in effect, -such contracts are valid. That it had the power to do this " •¡admits of no serious question.

Ve might have disposed of this case upon the simple proposition as to the power of the legislature over remedies, Tbut inasmuch as the defense has been based upon the fact of the illegal nature of the original transaction, we have thought it our duty to say what we have as to the equitable nature of it, outside of the statute which has declared usurious contracts void.

The emphatic condemnation of the act of July 13,- 1868, wherein it says, “No plea of usury, nor defense founded upon any allegation of usury, shall be sustained in any court of this State,” is mandatory upon all courts and is only depriving defendants of the privilege of making a certain defense, which before was permitted. Such mandate, operating only upon the remedy, without destroying a right, the legislature was acting within its scope and power.

As to the second ground of demurrer, it will not be necessary for us to argue, the subject matter not being allowed to be pleaded, it cannot be of any importance how it might be done.. The court did not err in sustaining the demurrer,, therefore judgment is affirmed.


text:
    WINSTON v. RICHARDSON.

      Indorsers — What necessary to hind. — To charge an indorser, it is necessary to prove that payment was demanded of the maker within proper time and refused, and that the indorser had due notice thereof, or that the indorsee had used due diligence to make such demand and give such notice, or that they were waived by the indorser.

      Assignors — Notice necessary to hind. — An assignor is not liable on his assignment, unless he has received due notice of the non-payment or protest of the instrument assigned.
    APPEAL PROM IZARD CIRCUIT COURT.
    Hon. Elisha Baxter, Circuit Judge.

      Watkins & Rose, for Appellant.
    Appellee sued appellant as indorser, and offered no' evidence of demand of the maker and notice to the defendant. "Without these, the defendant was under no obligation either moral or legal. Green vs. Thornton, 7 Ark., 383; Ruddell vs. Walker, lb. 457; Grace vs. McDaniel, 13 Id. 395; Nevill vs. Hancock, 15 Id. 517; Jones vs. Robinson, 11 Id. 504; Levy vs. Drew, 14 Id. 336.
    There being no evidence then to support the finding, the court should have granted a new trial. Reed vs. Latham, 1 Ark., 66; Pogue vs. Joiner, 7 Id. 463; Russell vs. Cady, 15 Id. 540; Wallace vs. Brown, 17 Id. 449; Hicks vs. Manees, 19 Id-701'.

      Byers, for Appellee.
   Bennett, J.

“ Batesville, Ark., January 1st, 1861.

One day from date I promise to pay to the order of George-Case, one hundred dollars for value received with ten per cent, interest from maturity.

(Signed) W. T. Hobgood.” [Seal.]

Oil which were the following assignments:

“For value received ! assign the within to S. H. Winston, with no recourse on me.

June 15, 1861.

(Signed) Thomas Wornac.

For value received I assign the within note to Thomas Richardson.

August 31st, 1861.

S. II. Winston.”

There -were several indorsements for various sums of money received at different times, but as these do not affect the questions as presented to us, we do not copy them.

On the 8th day of September, 1869, the cause came on to be heard and was submitted to the court sitting as a jury.

The plaintiff, to sustain his cause of action, introduced the above described note, as evidence, to which the defendant objected. The court overruled his objection and permitted the same to 'be read. The plaintiff then introduced Elisha Arnold, as a witness, who testified as follows:

“ I was the administrator of William T. Hobgood, deceased, the maker of said note. I first took out letters during the-war, during which time I paid most of the claims against said estate in full, in Confederate money. After the war, I was again required to administer upon the estate and paid, on the note, the several amounts credited and indorsed thereon, except the credit of four dollars and twenty cents. The estate was unable to pay the whole amount of the indebtedness, and has been finally settled, and I have been discharged. I do not know whether there was any order of the Probate Court authorizing me to pay the claims or not.”

John A. Byler, a-witness for the plaintiff, testified: “That the record book, of the Izard Probate Court, was in the country a short distance, being there for the purpose of being transcribed, and that he knew that Elisha Arnold, as administrator of William T. Hobgood, had made a final settlement with the Probate Court, and that the éstate did not pay the claims probated in full. I dont’ think there was any-probate order by the Probate ’Court.”

This was all the evidence in the case. The transcript says: “ After argument of counsel the court found the law to be in favor of the plaintiff and rendered judgment against the defendant,” etc. To which findings the defendant excepted and filed motion for a new trial, which motion was overruled.

The motion for a new trial says it sh ould be granted, because, 1st. The court erred in permitting the note sued on to he read in evidence; 2d. That the judgment of the court is not sustained by sufficient evidence; 3d. That the judgment of the court is contrary to law and evidence.

Upon the overruling of the motion the defendant prayed an appeal.

This is an*action brought by the holder of a note against the indorser. It has been repeatedly held, by this court, that in order to charge an indorser, it is necessary to prove that payment was demanded of the maker within proper time and refused, and that the indorser had due notice thereof, or that the indorser had used legal diligence to make such demand and give sueh notice, or that they were waived by the indorser. See Nevill vs. Hancock, 15 Ark., 571. “An assignor is not liable on his assignment unless he has received due notice of the non-payment or protest of the instrument assigned, Ruddell vs. Walker, 7 Ark., 457; Grace vs. McDaniel, 13 Ark., 395; Jones vs. Robinson, 11 Ark. 504; Levy vs. Drew, 14 Ib. 336.

Wq look in vain through all the evidence to find any waiver of demand or notice, or where they have been made; without these, the defendant, being an indorser, was under no legal or moral obligation to pay, and the finding was supported by no evidence whatever. The court should have sustained the motion for a new trial. For this error, the judgment is reversed and cause remanded.


author: Bennett, J. Gregg, J.,

text:
    MERRIWEATHER v. ERWIN.

      Appeals — Motions for new trial, etc. — Where the errors complained of do not appear of record, save by the intervention of a bill of exceptions, a motion for a new trial must be made before an appeal will lie to this court; and the appeal will not then lie, if the error can be corrected in the court below, until the motion has been made and overruled in the Circuit Court. (.Steels, vs. Mahar, 26 Ark., approved.)

    ARREAL FROM CHICOT CIRCUIT COURT.
    Hon. Henry B. Morse, Circuit Judtje.

      Watkins & Rose, and Adams $ Dixon, and Pike Johnson for Appellant.

      Garland. & Nash, for Appellee.
   Bennett, J.

The appellee sued the appellant, in the Chicot Circuit Court, in assumpsit, and the appellant pleaded the general issue, payment and set-off. Issues, upon these pleas, were made up and a trial had, and verdict for the appellee. Merriweather appealed.

The hill of exceptions does not show that there was amotion for a new trial filed in the cause below. In the manuscript, there is what purports to he a motion for a new trial, marked filed-on the 23d day of October, 18G9, hut not signed by the clerk. After the cause was sent to this court, counsel for appellant and appellee, on the 27th of October 1870, filed an agreement in words, as follows :

“It is hereby agreed, between the counsel of said parties, that the motion for a new trial, which was filed and marked filed on the 23d of October, 1869, was not noted of record or acted on ; is, in fact, no part of the record on appeal, and is not to be regarded as such.

[Signed.] Street & Pike,

(Iounsel for Merriweather.

Garland & Nash,

For Erwin.”

It lias been decided by this court, at its last term, in the ease of Stack vs. Mahar, 26 Ark., 537 : “That on an issue and trial of fact, by a jury, or the court, a motion for a new trial is essential to correct the errors, growing out of the evidence. or instructions, before an appeal can be entertained by this court. When the error complained of does not relate to errors growing out of the evidence or instructions, but such as are apparent from the record, without the intervention of a bill of exceptions, there is no necessity for making a motion for a new trial, and the cause, in such case, can be brought to this court without making the motion; but in. eases where the error complained of does not appear of record, save by the intervention of a bill of exceptions, a motion for a now trial must be made before an appeal will lie to this court.”

The case before us is one, where not only the facts, but the declarations of law are questioned, and very clearly comes under the ruling of the case above cited. Wherefore, when the counsel for the appellant, agreed that no motion for anew trial was made in the court below, they admitted their case away;

The language of the Code (see. 886) is: “A judgment or final order shall not bo reversed for an error which can be corrected ou motion in the inferior courts, until such motion has been made there and overruled.”

No effort having been made to correct the errors complained of, in this case, in the court where they originated, wo must sustain the former riding of this court.

Let the judgment be affirmed.

Gregg, J.,

dissenting. — I will only announce that I am unable to sec a sufficient reason to concur with the majority of the. court in the construction of the Code, which forbids us from passing upon the legality or illegality of the instructions, by the court, given to the jury in this case.

In this case, after the evidence was all before the court and jury, the appellant moved the court to give certain instructions to the jury, as the law applicable to the evidence before them; the court refused to so instruct them, and he excepted, rand by his bill of exceptions brought the evidence all upon the record.,' The court, at the instance of the appellee, gave •different instructions to the jury, to which he excepted, and the jury found for the appellee one thousand dollars. Appellant rested upon his exceptions and prayed an appeal to this -court which was- granted, and among other things, he here insists that we should review such instructions and declare whether or not they are law as applicable to the evidence before that court, and now before us in the record of the • cause.

The majority of the court held that we cannot pass upon such instructions, because there was not a motion made for a new trial in the court below; we are of opinion that the legality or illegality of the rulings of the court, upon these instructions,- is purely matter of law, and as .the record sets out all the evidence, as it appeared in the court below, it is perfectly competent for. us to announce whether or not that court instructed the law, as applicable to this state of facts.

Section 886, of the Civil Code, is quoted. We hold that should be considered and construed in connection with other provisions of that Act. If taken in a broad and unlimited sense, it would deprive this court from reversing the most glaring errors of law, if a new trial was not moved in the court below. If the Circuit Court should sustain a demurrer to a valid complaint, and adjudge costs against the plaintiff, such would be . an error that might be, on motion, corrected in that cozirt; the plaintiff might move the court to reconsider the demurrer; .that might be sustained, the demurrer overruled' and the case reinstated on the docket; but, notwithstanding this error might have been corrected in the court below, by motion, this court does not hesitate to consider whether or not the demurrer was properly ovez'ruled, and why not ? Because it is a question of law that appears upon the record; the record shows --the error. That is all true, but is it not equally true that the case before us shows the error, in instructing the law as applicable to the facts, and if we take section 886, in the broad sense, we could not consider either error here. It says: “A judgment or final order which can be corrected, on motion,, in the inferior court,- shall not be reversed until a motion is-made there and overruledbut there are other provisions to-be considered with this. Section 365 says: “An exception is an objection taken to the decision of the court upon a matter of law.” Sec. 366, “the party objecting to the decision, must except at the time,” etc. Sec. 367 is, “no particular form of exception is required; the objection must be stated, with so much of the evidence as is necessary to explain it-and no more, and the whole as briefly as possible.” Then, if the exceptions are-shown in the record, can they not be heard in this court, without a motion in the court below, and, in this case, the exceptions do so appear.

In all cases where a litigant desires the court to pass upon the weight or sufficiency of the evidence, in the court below, a motion must first be made there; the judgment of that-court must be had before coming into this court, and this rule-applies to oversights, informalities, misprisions, etc., etc.; that should, as a matter of course, be corrected in that court, and a case should not, for such causes, be reversed here, until a motion is made and overruled there, and section 886 applies to-errors like these. Ingersoll vs. Bostwick, 22 N. Y., 425; Johnson vs. Casserly, 6 Seld., 570. A different construction would lead to absurdities. If we limit the meaning of the language in that section, so that we can pass upon a demurrer or any other question of law here, without such motion, it seems tome the same- construction would require us to pass upon all questions of law properly brought upon the record before us, and in this case, the bill of exceptions properly sets out all the evidence and then sets out the propositions of law which the court was asked to declare as applicable to the evidence.. The court solemnly considered the appellant’s instructions and declared they were not the law, to which he excepted and-.. prayed an appeal; and lie now comes before us and asks that we determine whether or not these propositions were law arising upon the evidence then before the court. Now, it seems to us, this is as purely a question of law a's any that could arise upon a demurrer or otherwise; the evidence all being duly certified here, and the sole question being,--did-the court’ mistake the law, when moved- to apply it .-to the evidence? Hoes it not seem that the proper rule would be, that any error of law, properly brought before us, upon the record, could be examined and passed upon .in this court; without a motion for .a new trial in the court below? If the matter is passed upon there and properly excepted to, ought not that to be sufficient? But if objections, not going to the deliberate judgment of a question of law, by the court, but to the weight of evidence, the verdict of the jury and such misprisions, informalities, etc., etc., as above referred to,, the party should not be heard here, unless, on motion, the court below refused to make the correction.

By an examination of our Code, we find a large class of errors it is made the duty of Circuit Cour-ts to correct, principally referred to in sections 375 and 571, and errors of this class must be corrected as a matter of course, and the inferior court is authorized to correct them after adjournment of the .term at which they occur; and section 886 evidently relates to errors of this kind, and we do not claim this conclusion as an original thought, but upon an examination of the decisions upon the Kentucky Code (from which it is well known that most of ours was copied), we found their Supreme Court placed this construction upon it; section 903, of their Code, and 886 of ours, are alike verbatim, and section 579 of theirs is similar to 571 of ours, and by consulting the notes accompanying the Kentucky Code, it will be seen that in explanation of 903, they show that the cases in which such motion must be made, in the court below, before the matter is assigned for error in the Court, of Appeals, are such as are classed in section 579.

In the case of Wilson vs. Barnes, 13 B. Monroe, 330, the-lower court committed an error by rendering- a judgment for a larger amount than was shown to be just, and also by computing interest on a note, which formed a part of the matter, of complaint, for too long a time; the Supreme Court said, in view of these sections exactly like ours: “The wrong computation of interest was a clerical misprision, and the judgment for that cause would not be reversed, because it could have been corrected on motion in the court below; but for the error in rendering judgment for said sum of one hun-dred and fifty dollars, the judgment is reversed and the cause remanded for further proceedings,” etc. Here was an erroneous judgment for damages, which would have been a good cause for sotting it aside, on motion; no such motion was made, yet the Supreme Court, that must he presumed to have been familiar with the intent and meaning of their Code, reversed the judgment and remanded the case, and why? Simply because the record showed that the court below had committed an error of law. We feel assured, from an examination of the decisions under the Kentucky Code, wherein it is verbatim the same ás ours, that for all errors of law that appear in the record, the appellate court will reverse without a motion for a new trial.

In the case of Raymon vs. Reed, 16 B. Monroe, 350, where a question of sei-vice was up, the Supreme Court say: “We think, after the appearance of the defendant, the judgment. against him would have been authorized, had he failed to object to the same, but he appeared and .objected; had there been no appearance to the action, the judgment would have been regarded as premature and a clerical misprision, and no appeal to this court Avould have been authorized until the Circuit Court had refused upon motion to set aside the judgment.

“But the defendant having appeared and. objected to the judgfiunt, the court, having decided- upon its propriety, the error is an error of the court, and, not a- mere clerical misprision, Avhercfore the judgment is reversed,” etc. Here, it will be seen, there was no motion for a new trial, nor was there any demurrer; it was simply a mistake of the court in declaring the service sufficient. The case of Humphreys vs. Walton, 2 Bush., 580, seems to intimate against the doctrine, in the above cases, and in favor of the ruling of the majority of the court; but in the case of Union Insurance Go., of Louisville, vs. Groom, Jong since that, the Supreme Court said the intimation in the case above was mere “obiter,” and is not regarded “us auth'oriiative or right.” They say, “on a full issue and much testimony, the judge to -whom both law and facts were submitted, rendered judgment for the amount claimed in the petition. An authenticated bill of exceptions purports to recite all the evidence on the trial, but there having been no motion for a new trial, the preliminary question, whether without such motion for a new trial, made and overruled, this court can. entertain the appeal, meets us at the threshold.” And they proceed to declare that they have cognizance of the appeal and to dispose of the case upon its merits. 4 Bush., 289. This was no dictum of the judge, but the question, stronger than in the case before us, was presented directly to that court and they squarely meet it and decide that the case is before them for a decision upon the merits. In the case before us, the evidence was all before the court and all appears of record here, and the appellant, upon the evidence, moved the court to declare or instruct the law; the court refused the instruction; he'excepted, and when judgment went against him, lie appealed to this court, and now asks us to say if that court did not commit error in ruling against him; and as the Supreme Court of Kentucky said, he had then taken the judgment of that court. The majority say we cannot pass upon the instruction because he did not move for a new trial; but it seems, to us, it is a question of law, and that this court should pass judgment upon it; the appellant cannot question the facts upon the record; the evidence stands as true and sufficient, but he says the court below did not decide the law, and that is what ho here complains of; that he there moved the court to decide the law in his favor, but the court overruled, his motion and refused his instruction, and he excepted, and we are now told that he ought then to have moved the court, again, to hold the law in his favor, and to grant a new trial because the court had decided the law against him. Now it does seem to us when he, on one motion, takes the deliberate judgment of the court below upon a question of law, and excepts to its ruling, that, under the Code, it is sufficient to allow such ruling to be brought before ns for review, without these repeating motions.

Codes are said to make the law easy, but the questions misconceived, by eminent counsel, fail to show us the excellence of the improvement.

Before the adoption of the Code, there could have been no question but the legality of these instructions would have been properly before us; the ruling has been uniform since the case of the State Bank vs. Conway, 13 Ark., 344; See State Bank vs. Wilson, 14 Ark., 113; Stillwell vs. Gray, 17 Ark., 475; Gordon vs. Miller, 21 Ark., 398; Strayhorn vs. Giles, 22 Ark. 517. By a careful examination of these and many other cases that might be referred to, it will be clearly seen that this court has, for many years, consistently held, that a verdict and judgment would not be set aside for the -want of sufficient evidence, unless there was a motion for a new trial, but whenever any exceptions were taken to any ruling of the court, upon the law, this court would consider all such exceptions shown upon the record, whether of instructions, demurrer or other matters of law.

In the case of Myers vs. Moore, 19 Ohio, 136, under provisions in a Code similar to ours, where one of the parties moved an instruction, which the court refused to give, and the evidence was set out and he appealed, the Supreme Court said: “But it is insisted, for the plaintiff in error, there is a formal but a fatal defect in the proceedings before the court of common pleas, and as a consequence of that defect, that no foundation is laid for reviewing, upon, a writ of error, tlie judgment of that court. The record, from the common pleas, does not show that after judgment was rendered by that court, a motion was made for a new trial, that motion overruled and an exception taken to the decision overruling the motion;” the court then proceed to discuss the exception taken to the instruction of the court and'to pass upon its merits. See 18 B. Mon., 94; 2 Met., 542; 15 Ohio, 58; 4 Ohio, 389.

The rule, as laid down, is this: When a question of law has been submitted to the court below, and by that court passed upon and excepted to, no motion for a new trial is necessary before appealing, but if the correctness of the ruling upon the law depends upon its application to the evidence or other extraneous facts, then the evidence or such facts must be brought upon the record by a bill of exceptions, so the appellate court can see if the law was properly applied.

We have been unable to find any law or precedent, requiring a proposition of law to be twice submitted to an inferior court, before an appellate court would review its judgment. If the party appealing relies alone upon the question of law, decided by the lower court, and that ruling of law appears upon the face of the record (and if brought there by a duly certified bill of exceptions, it' does as fully appear as would a ruling upon a demurrer to a complaint at law) then no motion need be made. If a litigant is satisfied with all the pleadings and with all the evidence, he has only to move the court to declare the law; if the court overrules his motion, must he again move the court to hold the law in his favor and grant a new trial, because the court does not understand the law, as he does? we think not. The deliberate judgment of the court upon the law, once called forth and shown upon the record, is sufficient to have it reviewed here, and hence, we are of opinion, that the instructions in this case are subject to review.


text:
    SMITH v. LAFFERRY.
    Forcible Entry and Detainer — Actions of, distinct. — The actions of Forcible Entry and Forcible Detainer, as provided for in our system of practice, are separate and distinct actions.
    Forcible Entry— What necessary to show. — In an action of forcible entry it is necessary to show that the defendant' did actually enter into the lands or tenements of the plaintiff', without the consent of the person having the possession in fact of the pi'emises.
    Forcible Detainer — What must appear. — In an action of forcible detainer it must appear on the face of the warrant, in some way, that the relation of landlord and tenant exists, or existed between the plaintiff and defendant, * said to have "been in possession, at the time of the entry.
    Actions of — Cannot he joined. — The actions of forcible entry and forcible detainer cannot be joined so that a warrant for forcible entry can be the foundation for a verdict of forcible detainer; in the one, force is the gist of the action; the other is founded on a breach of contract.
    APPEAL FROM JOHNSON CIRCUIT COURT.
    ILon. William N. May, Circuit Judge.

      Clark & Williams and Floyd § Cravens, for Appellant.

      English, Gantt & English, for Appellee.
   Bennett, J.

This is an action of forcible entry, instituted, by the appellee against tbe appellant, before a Justice of the Peac.e of Johnson county, to recover tbe possession of certain lands. A verdict of not guilty was rendered. . Appellee filed traverse and appealed to tbe Circuit Court; judgment for the appellee — motion for a new trial, which was overruled, and appellant .appealed to this court.

The motion for a now trial contained six different causes for setting the verdict aside:

First, Because the verdict is not sustained by sufficient evidence.

Second, Because tlae verdict is contrary to law.

Third, Because the court erred in giving the instructions to the jury, asked by the plaintiffs, against the objection of the defendant. •

Fourth, Because the court erred in refusing to give the first and third instructions asked by the defendant.

Fifth, Because the court erred in giving the first and third instructions asked for by the defendant, as altered by, and modified by the court.

Sixth, Because the court erred in refusing to give to the-jury the fourth instruction asked by the defendant.

For the purpose of disposing of’the case, as far as this-court is concerned, we have only to consider the first two-reasons assigned for a new trial, viz: That the verdict is not sustained by evidence, and is contrary to law.

- Forcible entry is defined by the Code of Practice to be, “ An entry into lands or tenements without the consent of the person having the possession, in fact, of the premises.”

It is well known that the practice act, from which the above definition is taken, is, in the main, but a copy of the Kentucky Code. Adjudications, therefore, had in that State, since its adoption, as to its construction, are entitled to great weight.

In the case of Hunt vs. Wilson, 14 Ben. Monroe, 46, it was held that “ The only legitimate inquiry upon a warrant for a forcible entry by the defendant, upon the lands occupied by the plaintiffs, is, whether the defendant entered upon the land which, at the time of such entry, was in the a,dual possession of the plaintiffs.”

It is true, this decision was rendered under the statute of Kentucky passed in 1810. The 17th section of which reads' as follows: “ The forcible entry intended by this, is, and shall be, an entry with or without multitude of people, against the will, or without- the assent of the person or persons who, at the time of such entry, have the possession, in fact, of the premises, into which such entry may be made.”

But in the case of Belcher vs. Bennett, 4 Met., 308, it was held, “that the provisions of the Code, regulating proceedings in eases of forcible entry and detainer, are a substantial enactment of the Act of 1810.” Therefore, the decision in the ease of Hunt vs. Wilson, has as much weight as though rendered since the adoption of the Code.

The actions of forcible entry and forcible detainer, as provided for in our system of practice, are' separate and distinct. On forcible entry, it is necessary to sb ow that the defendant did actually enter into the lands or tenements of the plaintiff, without the consent of the person having the possession, in fact, of the premises.

In Fowler vs. Knight, 10 Ark., 43, it was.held that,- “to maintain the action of forcible entry and detainer, the plaintiff is not bound to show that he was in actual possession of the premises when the defendant entered.” But in a later case; McGuire vs. Cook, 13 Ark., 448, the court says, “upon the facts in the case of Fowler vs. Knight, which was forcible entry and detainer, the decision was doubtless correct; but so far as it may be infered from the opinion in that case, that this action may be maintained upon a constructive possession, i. e., that the title draws to it the possession as of personalty, or that where the entry is peaceable, if made without color of title, the law will imply force, or that the plaintiff may recover by showing his right to the possession, without showing that he had the possession, and lost it by means of the defendant’s .entry, or that by making the affidavit and giving the bond required, this summary proceeding may become a substitute for the action of ejectment, the court declares that such is not the law.”

While these decisions were made under the old statute, we must hold that the principles are the correct ones.

In forcible detainer it must appear, on the face of the warrant in some way, that the relation of landlord and tenant exists, or existed between the plaintiff' and defendant, said to have been in possession, at the time of the entry.

Tried by these criterions how stands the case at bar ?

Conceding the fact that the defendant below, the appellant here, was in actual possession of the tract of land, as stated in the warrant, which by no means has been conclusively proven, and conceding further, that the parol contract of rent, alleged to have been made for two years, was null and void as to the year 1870, the last of the two years, by reason of its being in derogation of the statute of frauds, still the plaintiff below, the appellee here, has failed to sustain his action.

"Was he, Lafferry, in actual possession, or had he the possession in fad, at the time of the alleged forcible entry of the defendant, Smith, viz: on the 14th day of December, Í869, or as the time would'have been alleged by the amended warrant, January 1st, 1870.

This question of possession is the paramount one, yet the testimony does not disclose this fact, but, on the contrary, clearly shows that Smith, the appellant, for the year 1869, was the tenant of Lafferry and, by virtue of a contract for rent, did enter upon and take possession of the old field on the sj of nw£, and the swi of the nej of section 24, township 8 north, range 24 west, and held the same for that year., This is sworn to by the plaintiff, Lafferry himself, and he further says, “the defendant was entitled to the possession thereof, under the contract, for the whole of the year of 1869.”

It is evident, then, the entry could not have been forcible; nor could the plaintiff have been in actual possession at this time. From the declarations of law, as laid down in the instructions given by the court below, it must have thought that it was only necessary for the plaintiff to have shown that he had title to the land in question, and had not given the defendant permission to enter upon it, in order to maintain this action. But this is erroneous. This is not the proper proceeding to try questions oí title, but that oí possession, and of possession only, where the plaintiff has been dispossessed by the acts of the defendant.

As to this case, as it would have been presented in an action of forcible detainer, we, at present, desire to say nothing. Suffice it to say, that these two actions cannot be joined, at least, a warrant for forcible entry cannot be the foundation for a verdict of forcible detainer. In the one, force is the gist of the action; the other is founded on a breach of contract. Tet, the court below has treated this case as though there was no difference, but that they might be commingled. For these reasons, judgment is reversed.


author: Gregg, J.

text:
    SIMMONS v. ROBERTSON.
    Landlord and Tenant — Tenant cannot dispute title of. — A tenant, in possession, is not at liberty to question the title of the person under whom he holds, or attorn to a third person.

      Same — Cannot set up hostile title. — A tenant, while the relation of landlord and tenant exists, cannot rent from one who has acquired a title hostile to that of his landlord, though it be a belter title.
    APPEAL PROM ASHLEY CIRCUIT COURT.
    Hon. Henry B. Morse, Circuit Judge.

    Moore, Murphy & Van Gilder, for Appellant.
    We think the court clearly erred in refusing to give the second and third instructions asked for by the plaintiff.'
    That the tenant cannot dispute the title of his landlord. See 1 Ark., 495; 9 Ark., 333; 13 Ark., 387 and 455; 15 Ark, 104; 20 Ark., 560; Taylor’s Landlord and Tenant, section 728, and note; 1 Washburn on Real Property, 483, 484, 486 and 487; 3 Pet., 44, 5 Pet., 485.
    The third instruction, that the tenant cannot rent from one' who has acquired title hostile to the landlord, is certainly the law. Stewart vs. Roderick, 4 Waits § Serg. Í88. See particularly Jackson vs. Hooper, 5 Wend, 246; 1 Washburn on Real Property, page 486, 3d edition, and authorities there cited.

      Bell & Carlton, for Appellee.
   Gregg, J.

On the 10th of January, 1870, the -appellant, before a justice of the peace, commenced his action of forcible detainer. On the 15th of the same month, both parties appeared, and a jury was impaneled, who found the defendant guilty of the forcible detainer, and it was adjudged that the plaintiff have restitution of the premises, and that the defendant pay all costs. On the same day, the appellee filed a traverse, that the inquisition returned was not true, and prayed a stay of the proceedings until -ftie matter could be heard according law; upon his giving bond with approved security, in the sum •of six hundred dollars, an appeal was granted, proceedings stayed, and the case certified to the Circuit Court. At the September term, 1870, of that court, the parties went to trial and a verdict and judgment was had for the defendant; the appellant moved the court for a new trial which was overruled, he excepted, filed his bill of exceptions and prayed an appeal, which was granted.

It was, in evidence, that the appellee rented the premises from the appellant,, and placed hands thereon, and cultivated fifty acres, for which he paid one hundred dollars rent; by his own testimony he had the right to cultivate the farm or only a part thereof, and pay two dollars per acre for what he did cultivate. At the beginning o’f the year 1869, the appellee moved his family on the place, and held it during that year.

In January, 1870, the appellant, by his agent, demanded possession of the promises from the appellee, who then said he might have had possession of his place long ago, if Ivey, .an agent, had not treated him so badly. He testified that he finished gathering his crop about the 15th of December, 186§, ,-and tried again to rent the place from Ivey, for the year 1869, but he would not rent to him; that he was going to rent to Reiser, who was then absent, and who did not want the place, and he told appellee that he could rent from Col. Brooks, as the agent of Mrs. Spaith, and he did rent from Col. Brooks, as such agent, for the year 1869. He stated that he moved off his crop about the 15th of December, 1868, and left no teams or other things there, and having-settled with Ivey, the place was turned over to him; that, under his renting from Brooks, he moved on the place the 1st of January, 1869, and that that was the first time he ever took possession of the place; that he did not tell the appellee, or his agent, that he did not intend any longer to hold the. land under the appellant, and that he was, at the commencement of the suit, holding under Mrs. «Smith, and had rented from her agent for 1870, and he had p'aid the same agent for-1869. Brooks testified that he told the appellee, when he first applied to rent, that he must get peaceable possession, to-turn over to Simmons and then rent from him.

The appellant asked three instructions; the second and third of which were refused, and they were as follows:

“2. If the jury believe from the evidence that defendant,, Robertson, rented the land in dispute from the plaintiff, Simmons, or his agent, he cannot dispute the title of said Simmons to the land.

“ 3. That if the jury believe from the evidence that the said defendant, Robertson, rented the land in dispute from Simmons, or his agent, he cannot rent from one who has acquired a title hostile to that of his landlord, though it be a better title.”

The defendant then asked six instructions; the first five of" which the court gave, as follows:

“1. Before the plaintiff can recover, in this action, the jury must believe from the evidence that the relation of landlord and tenant existed between the plaintiff and defendant-at the commencement of the suit.

“2. The action of unlawful detainer rests upon contract, without regard to the ownership or other title to the property in controversy.

“ 3. If the jury believe from the evidence that the defendant entered upon the property in controversy, in January,. 1869, under a" contract of lease from Mrs. Smith for that year, •and, at the time of the commencement of plaintiff’s action, was in possession of said property under a contract of lease from I. L. Brooks for 1870, the jury must jind for the defendant.

“4. If the jury believe from the evidence that the defendant did cultivate a portion of the land, for the year 1868, under contract with Hill, the agent of the plaintiff, and that contract was fully executed, and defendant afterwards rented the property, in controversy, from Mrs. Smith, and got possession of said property, in 1869, under this contract with Mrs. Smith and not the plaintiff, the jury must find for the defendant.

“ 5. If the jury believe from the evidence that the defendant only rented, in the year 1868, fifty-odd acres of the land in controversy, from plaintiff’s agent, the plaintiff must identify the land rented, and can only recover for that amount in this action, if the jury believe that the relation of landlord and tenant did exist between the plaintiff and defendant.”

The sixth instruction had no bearing on the case, and was properly excluded.

It seems to us that there are but few, if any, propositions of law better settled than the one that a tenant cannot dispute Bis landlord’s title, and why the court refused to give the second instruction asked by the plaintiff, we are unable to see.

The third instruction, asked by the plaintiff, was but another enunciation of a well settled principle of law, applicable in this case, and should have been given. See 1 Washburne on Seal Property, 483, and cases there referred to.

The first instruction given for the -appellee, as an abstract proposition of law, was correct, but, without an explanation •as to what constituted the relationship of landlord and tenant, was well calculated to mislead the jury.

The second instruction of the defendant, if taken in connection with other correct instructions, is deemed unobjectionable. A contract might be express or implied, and it is the holding after the expiration of the contract that is the-subject of complaint.

The defendant’s third instruction was erroneous,-justified by neither the law or the evidence. The testimony of all, even that of the appellee, showed conclusively that he rented the premises for the entire year of 1868, and that he did not tell the appellant, or his agent, that he did not intend any longer to hold the land -under him; his renting did not close until the last day of December, 1868, and, according to his own statements, he moved on the land under his agreement with the agent of Smith, on the first of January, 1869, so that not a single day intervened between the time he rightfully had possession, under his leasing from the appellant, until he claimed to be in possession under an adverse claim-. If such sharp practice was tolerated by courts of justice, this important possessory action would be worthless. The appelleetestified that he was not- in possession until he went on the-premises, January, 1869, under his renting from the agent of' .Mrs. Smith; but he also states he rented from appellant’s agent and put his laborers on the place; had over fifty acres cultivated, etc., showing as full possession as if he had been-residing on the premises; and he further testified that he-endeavored to lease for the year 1869 from appellant’s agent; and Rule testified that, in 1870, he told him that appellant would have had his lands long ago, if Ivey, the agent, had not treated him badly. If this testimony be true, he recognized the appellant as the owner, as late as 1870, but still he was attempting to hold under another. The fourth and fifth instructions were erroneous, because there was no evidence on which to base them, and they were calculated to mislead the "jury..

The appellee, in this case, entered into possession under the-appellant, and he was not at liberty to question his right of' possession or to attorn to a third person, and the court below erred in overruling appellant’s motion for a new trial. The judgment is reversed and the cause remanded to be proceeded in according to law and not inconsistent with this opinion.


author: Searle, J.

text:
    BRIGHT v. BOSTICK et al.

      Assumpsit — Will lie for use and occupation. — The action of assumpsit will lie ' for the use and occupation of property.

      "VArbict — When set aside for excessive damages. — The verdict of a jury will not ho set aside on the ground of excessive damages, unless the evidence clearly show them to he so.
    APPEAL ER0J1 SEBASTIAN CIRCUIT COURT.
    Hon. E. 1). Ham, Circuit Judge.

      B. T. Du Val, T. D. W. Yonley, for Appellant.

      Clark & Williams, for Appellees.
   Searle, J.

Tliis ' was an action of assumpsit brought, in the Sebastian Circuit Court, by Pennywit, in his lifetime, against E. B. Bright, for the use and occupation of certain mill property in that county. After the death of the plaintiff, Pennywit, the cause was revived in the names of the appellees, as his executors.

The facts are substantially as follows: Pennywit, the testator of the appellees, purchased the mill property, in question, under a decree of the Sebastian Circuit Court, sitting in chan-' eery, and was awarded a writ of possession for the property, on the 23d of February, ISóY, by that court. Bright, who was in possession, appealed from the order of the • Circuit Court, granting the order of possession, which order was affirmed by this court, at the January, term thereof, a. d. 1860.

Pennywit brought this suit to the August term A. ». 1860, of the Sebastian Circuit Court, against Bright, to recover from him, for the use and occupation of said mill property, prior to the date of the writ of possession, until he, Penny-wit, obtained possession under the decision of this court. A .change of venue was taken, by agreement of parties, to the Fort Smith district of Sebastian county. Pennywit died and the cause was revived in the names of his executors, Charles G. Scott, Samuel L. Griffith and John S. Bostick. The defendant pleaded non-assumpsit, to which issue was joined. The cause was submitted to the court sitting as a jury; finding for plaintiffs and damages assessed at four thousand dollars.

The defendant moved for a new trial upon the following grounds:

First, The finding of the court was contrary to the law and the evidence.

Second, The court erred in regard to the law of the case.

Third, The finding of the court was for the plaintiffs, when, by the law of the land, it should have been for the defendant.

Fourth, The damages assessed were excessive.

The court overruled the motion for a new trial and rendered judgment against the defendant for the sum of four thousand dollars; whereupon he appealed to this court. ,

The first three grounds for a new trial will be considered together, as-they seem to present but one question, and that is, can assumpsit be maintained for use and occupation, in a case like the' one under consideration ? The right to recover, for use and occupation, does not exist by the common law. It is entirely a statutory remedy, and, in this State, the right to recover, by this kind of procedure, is conferred by statute. Section IS, Chapter 100, Gould’s Digest, provides that “where lands or tenements are held and occupied by any person, without any special agreement for rents, the owner of such lands or tenements, his executors or administrators, may sue for and recover a fair and reasonable compensation for such use and occupation, by aii action on the case, in any court having jurisdiction.”

This question has been settled in this court, in the cases of Clem vs. Wilcox, 15 Ark., 102, and Dell vs. Gardner et al. 25 Ark., 184. In the latter case, the question is very ably and elaborately discussed, by Chief Justice Walker, and his opinion settles, beyond a doubt, the right of the appellees, in this ease, to recover in an action of assumpsit, for the use and occupation of the property in question. So fully is the question considered in that case, that we deem it unnecessary to do more than refer to that decision.

It was found, on the trial helow, that Bright, the appellant herein, was in possession of the mill property during the time mentioned in the declaration. But one question remains to be considered, namely, that the damages were excessive. It was proven by one of the witnesses, Hayman, that the property was wortjh two thousand dollars a year. Hay-man further stated that he was a regular miller, and millwright; that he had been engaged in the business all his life, and that he was well acquainted with the mill in litigation. Hammersly, another witness, testified that the mill and property were worth eight hundred dollars a year. He further stated that he had but little knowledge as to the value of such property; that Mr. Hayman was a regular miller, and was well qualified to judge of the value. Clark, another witness, stated that he thought that the use of the mill was worth one thousand dollars, for the year 1857, and eight hundred dollars per annum for the years 1858 and 1859. He stated that' he was a miller. He also stated that Hayman was a good miller and mill-wright and a good judge of the value of mill-property. The above is the substance of what was proven on the trial, and we are of opinion that it clearly establishes the fact,vthat the rent of the property, for'the time it was in the possession of Bright, was worth even more than the amount of the judgment rendered against him. We cannot therefore, regard the damages as excessive, fr.om the testimony contained in the transcript. Finding no error in the judgment of the court helow, the same is affirmed with costs.


author: Searle. J.

text:
    SLARK, STAUFFER & CO. v. VAN GILDER.

      Appeals — Trials, de novo. — Oases, on appeal, from tlio Probate to the Circuit Courts, should be tried do novo, even though no motion bo made for that purpose.
    APPEAL PROM ASHLEY CIRCUIT COURT.
    I Ton. Henry B. Morse, Circuit Judge.

      Watkins & Rose, for Appellants.
    J. W. Van Gilder, for Appellee.
   Searle. J.

This suit was first instituted and tried in the Probate Court of Ashley county. From the judgment of that court, the appellant*- appealed to the Circuit Court. In the Circuit Court, they moved for a trial de novo, which was overruled, and to which they excepted. Thereupon, the Circuit Court having examined the transcript, from the Probate Court, found no erf or therein, and affirmed the judgment of «the Probate Court. On account of this, as well as other" rulings, the appellants appealed to this court.

The Circuit Court committed error in not trying this case de novo. Smith & Bro. vs. Van Gilder, 26 Ark.

The provisions of the law seem to be mandatory, and cases of this description should be tried anew, even though no motion be made for that purpose:

For the error, above indicated, the judgment of the Circuit Court is reversed, and the cause remanded to be proceeded in .according to law, and not inconsistent with this opinion.


text:
    HARRISON v. TRADEE AND WIFE.
    Constitutional Law — Writs of Error, Clerks may issue. — Chapter 124, QoulcEs Digest, regulating the issuance of Writs of Error, is pot in conflict with the present Constitution, and so much thereof, as has not been repealed by subsequent legislation, is in force, an'd the clerk of this court is authorized to issue such writs in vacation, as well as in term time.
    ERROR TO PHILLIPS CIRCUIT COURT. MOTION TO QUASH WRIT OE ERROR.

      Watkins § Hose and Palmer & Sanders, for Plaintiff.

      English, Gantt & English, for Defendants.
   Bennett, J.

Omtiie 1st day of June, 1870, when this court was not in session, and without an order of court, the clerk issued a writ of error to Phillips county Circuit Court, upon which the transcript, in the above entitled cause, has been returned. The defendants have filed a motion to quash the writ gnd strike the case from the docket) because, First, there is no law authorizing the clerk of this court to issue a writ of error. 'Second, Said writ was issued by the clerk of this court, June 1st, 1870, when the court was not in session, without an order of the court, and without authority of law.

Section 4, Art. VII, of the new Constitution, provides: “The Supreme Court shall have generai supervision and control over all inferior courts of law and equity. It shall have power to issue writs of error, supersedeas, certiorari, habeas corpus, mandamus, quo warranto and other remedial writs, and to hear and determine the same. Trial judgment, in the inferior courts, may be brought by writ- of error or by appeal, into the Supreme Court, in such manner as may be prescribed by law.”

Article 15, section 16, of the Constitution says : “All laws of the State, not in conflict with this Constitution, shall remain in full force until otherwise provided by the General Assembly or until they expire by their own limitation.”

Section 859 Chapter 1, of the Code of Practice provides: “The mode of bringing the judgment or final order of an inferior court, to the Supreme Court for reversal or modification, shall be by appeal, which shall be granted as a matter of right.”

We cannot say that the Legislature, by the above enactment, intended to abolish the writ of error; even if it had done so, it would have been a futile attempt, inasmuch as the Constitution has given this court the power to issue it, that power would have been exercised in all proper cases; and had the Legislature failed to provide a manner for reaching this court by that writ; it could, and would have made its own rules for the exercise of that power.

But we are not left in that dilemma. As has been seen by the 15th Article, 16th section, “that all laws not conflicting with it are in force.” The old statute, in Gould’s Digest, regulating the issuance of writs of error, not being in conflict with any part of the Constitution, is in force, or so much of it as has not been repealed by subsequent legislation. Some portion of this statute has been repealed, as for instance, section 879 of the Civil Code says : “No written assignment of error shall be necessary, but the judgment may be reversed or modified for any error appearing in the record, to the prejudice of the appellant.”

This repeals section 26, of chapter 124, of Gould’s Digest, and it is not necessary to make any written assignment of error, as was the practice under the old law. Having decided that the old statute is in force, section one of that law fully answers the second proposition, as raised by the defendants in .error. It says : “Writs of error, upon any final judgment or decision, of any Circuit Court, shall issue, of course, in all cases, out of the Supreme Court, in vacation, as well as term time,” etc. Shall issue out of the Supreme Court, by order of — ,- issue as any other writ or summons, subject to the regulations prescribed by law.

Motion to quash overruled.


author: Harrison, J.

text:
    LEWIS AND WIFE v. BOSKINS, Adm’r, Etc.
    Title Bond — Effect of contract. — "Where land is sold on a credit and hond is, given to make title on payment of the purchase money, the effect of the contract is to create a mortgage, the same as though the vendor had conveyed the land by an absolute deed to the purchaser and taken a mortgage back to secure the payment of the purchase money.
    Lien oe — Against whom, a charge. — The lien, created by a title bond, exists as a. charge or incumbrance on the land, not only against the purchaser, his heirs and other privies in estate, but against all subsequent purchasers.
    Purchaser in Possession — Cannot deny vendor’s title. — A purchaser, entering into possession under his contract of purchase, cannot, so long as he retama such possession, deny his vendor’s title.
    Sxecutort contract — Where purchase of better title by vendee, etc. — A person in possession, under an executory contract, buying in a better title than his vendor’s, can derive no advantage from it against the vendor, and the same will inure to the benefit of the vendor, under whom he entered, and all that he can demand is the sum he paid for the better title, with interest.

      Obligor — When discharged from performance. — If the obligee does anything to obstruct or prevent the obligor from performing his part of the contract, the obligor is discharged from his obligation to perform it; the contract, in legal effect, is, on his part, performed, and he may demand performance at the hands of the other party.
    APPEAL FROM ST. FRANCIS CIRCUIT COURT.
    ,IIon. Wm..Story, Circuit Judge.

      Watkins & Rose, for Appellant.
    We submit that the balf .interest of tbe sister in tbe lands having been conveyed and fully paid for, tbe court erred in decreeing that tbe administrator of Brown bad a lien upon all tbe lands. Bailey vs. Greenleaf, 7 Wheat, 50. At most, Brown was only an agent for bis sister’s interest in tbe lands, and neither an agent or trustee could have a vendor’s lien. Burr vs. Bobinson, 25 Ark., 281.

      B. C. Brown, for Appellee.
   Harrison, J.

William F. Brown and bis sister, Martha P. Seaborn, wife of John M. Seaborn, owning jointly a tract of land in St. Francis county, the said William F., in the year 1858 or 1859, with the consent and concurrence of his sister and her husband, sold the same to John Castleman for $2100. Castleman, at the time of the purchase, paid $1000, and gave Brown his note for $1100, payable at a future day, but when does not appear, and took from him a bond obliging himself to make him a deed of conveyance upon its payment, and, under his purchase, entered into the possession of the premises. Brown paid Mrs. Seaborn one-half of the price for which he sold the land, except $379, and he agreed and assumed to pay that. Brown died in 1861; whether before or after the maturity of the note, the record does not show, but leaving it unpaid, and without having conveyed the land and without having paid the balance due Mrs. Seaborn.

There being, in consequence of the war, no administration upon his estate for several years after his death, the note remained, the meanwhile, in the hands of his widow, Margaret E. Brown, and whilst she had it in her possession, and on the 20th day of February, 1863, Castleman applied to her to allow him to take it -up, and give in lieu of it, a note for principal and interest to herself, to -which proposition she assented, and he executed a note for $1170 to her, payable one day after date, hearing ten per centum interest, and she thereupon gave up to him the other. Castleman, on the 28th day of March, 1863, sold the land to Oliver Lewis, and delivered him possession. As pai’t of the consideration of his purchase, Lewis agreed to pay Oastleman’s note to Mrs. Brown, and to that end he paid the $379 due Mrs. Seaborn by Brown’s estate, and had the same indorsed as a credit upon the note, and Mrs. Seaborn and her husband, on the same day, executed a deed of conveyance for her undivided half of the land, at his instance, to% Eliza C. Lewis, his wife.

Administration was afterwards granted upon Brown’s estate, and the administrator brought this suit against Lewis and his wife, the heirs of Brown, who were infants, and other proper parties, to enforce his lien for the remainder of the purchase money, and, upon the facts as thus substantially presented by the pleadings and the proof, the court decreed that the Lewises shorild pay to the plaintiff the sum of $1324 32; that the land should be charged with the payment thereof, and that in default of payment,.by a day named, the land should be sold, etc.

From this decree Lewis and wife have appealed to this court.

As Mrs. Brown was not the administratrix of her husband, nor the legal representative of his estate, and acted wholly without authority in surrendering to Castleman his note and taking the other in lieu of it, the latter did not operate as a payment or discharge of the'former, nor in anywise affect the rights of the plaintiff, in respect to the unpaid purchase money, and his lien upon the land for the same.

The law is well established that when a vendor sells land upon a credit, and gives the purchaser a bond to make bim a title upon the payment of the purchase money, the effect of the contract is to create a mortgage, as if the vendor had conveyed the land by an absolute deed to the purchaser and taken a mortgage back to secure the payment of the purchase money. Smith vs. Robinson, 13 Ark., 533; Moore & Cail vs. Anders, 14 Ark., 628; Graham vs. McCampbell, Meigs, 42; Tanner vs. Hicks, 4 S. & M., 294. Such being then the nature of the contract, it is manifest that the lien, so created, exists as a charge or incumbrance on the land, not only against the purchaser and his heirs and other privies in estate, but also against all subsequent purchasers. Smith vs. Robinson, supra; Moore & Cail vs. Anders, supra; Shall vs. Biscoe, 18 Ark., 142; Pintard vs. Goodloe, Hemp., 502; Thredgill vs. Pintard, 12 How., 24. But the appellant insists that no lien ever subsisted in favor of Brown or his administrator upon the half of the land that Mrs.,Seaborn owned, and that, if there ever was such a lien, it was discharged or lost by her conveyance to Mrs. Lewis, which rendered it impossible for his heirs to perform his agreement in respect to the conveyance of that part of the land, and it would, therefore, be inequitable to call upon them to pay for her half of tbe land, when they could not perform bis contract to convey it. Leaving out of view Lewis’ agreement witb Castleman. to pay tbe note to Mrs. Brown (given as was intended by him in lieu of tbat be bad given for tbe land), and under wbicb be obtained tbe possession from Castleman, as well as tbe historical fact tbat bonds for title originated in and came into common use through tbe inability of tbe vendor, under tbe land system of tbe United States, to make title at tbe time of tbe sale, we find a conclusive answer to this claim of immunity from tbe demand of tbe plaintiff, in tbe well known rule of law, tbat a purchaser,, entering into possession under bis contract of purchase, cannot, so long as he retains such possession, deny bis vendor’s title. Pintard vs. Goodloe, supra; Willison vs. Watkins, 3 Pet., 43; Wilson vs. Weatherly, 1 Nott & McCord, 373; Meadows vs. Hopkins, Meigs, 181. If tbe vendor is unable to convey the title and be would rescind tbe contract, be must restore tbe possession and do so entirely. He cannot enjoy tbe property' and refuse to pay tbe price. Thredgill vs. Pintard, supra; Pintard vs. Goodloe, supra; Wilson vs. Weatherly, supra; Willison vs. Watkins, supra. And tbe conveyance, so far from taking tbe ease out of tbe rule, or affording a protection against tbe lien, gives occasion for tbe application of another rule, a corollory of tbe former, wbicb may be thus stated. A person in possession, under an executory contract of purchase, buying in a better title than his vendor’s, can derive no advantage from it against the vendor, and tbe same will inure to tbe benefit of tbe vendor under whom he entered, and all that he can conscientiously demand is tbe sum be paid for tbe better title, witb interest. Pintard vs. Goodloe, supra; Thredgill vs. Pintard, supra; Searcy vs. Kirkpatrick, Cooks (Tenn.), 211; Mitchell vs. Barry, 4 Hayw., 136; Meadows vs. Hopkins, Meigs, 181.

In tbe case, before us, Lewis claimed a credit on bis purchase from Castleman for tbe amount paid for Mrs. Seaborn’s title, and lie received an allowance for the same in the decree.

Equally unavailing is the objection that there cannot be a complete performance of Brown’s part of the contract, since Mrs. Seaborn has conveyed her interest in the land to Mrs. Lewis. That conveyance was made at Lewis’ instance, and it is a familiar and well settled principle, that if the obligee shall do anything to obstruct or prevent the obligor from performing his part of the contract, the obligor is discharged from his obligation to perform it; the contract on his part is, in legal effect, performed, and he may. demand performance at the hands of the other party, Bac. Abr., title, “ Conditions,” Letter Q, 3; 3 Com. Dig., title, Condition,” L. C.

There is no error in the decree and the same is affirmed.


text:
    CAMPBELL AND WIFE v. WARE.
    Descents and Distributions — Construction of. — "Where the inheritance is ancestral and comes from the father’s side, then it will go to the line on the part of the father, from whence it came, not in postponement but in exclusion of the mother’s line; and so, on the other hand, if it came from the mother’s side, then to the line on the part of the mother from whence it came, to the exclusion of the father's line.
    APPEAL FROM JOHNSON CIRCUIT COURT.
    IIon;, W. N. May, Circuit Judge.

      Floyd & Cravens, for Appellants.

      English, Gantt & English, for Appellee.
   Bennett, J.

This was a bill for partition and to quiet title. The decree below was in favor of Ware, the complainant. Campbell and wife, the defendants, appealed to this court. The facts, as appear by bill and answer, are in substance as follows:

Harman II. Brewer died intestate, on the Gth day of. September, 1859, seized and possessed of the lands as set forth and described in the bill, leaving him surviving, his widow, Susan E. one of the appellants, (who afterwards intermarried with appellant, Campbell,) and his son, Nicholas Brewer, Jr., his sole heir at law.

ITarman II. Brewer acquired the lands in controversy. His homestead and improvements were upon two of the tracts and the others wore detached and wild. Ilis widow, Susan E. continued to. occupy the homestead, without assignment of dower, from his death until the filing of the hill. She was the mother of Nicholas Brewer, Jr., his sole heir at law.

Nicholas Brewer, Jr., died a minor, intestate, and without issue, about the 7th day of “September, 1864, leaving him surviving, hi.s mother, Susan E., and his .grandfather, Nicholas Brewfer, Sr.

Nicholas Brower, Jr., died about the 14th day of October. 1864, having in 1860, made a will, by-which he devised his estate to his grandson, Nicholas Brewer, Jr., his two daughters, Julia A. Brewer and Mildred 'Ware and her son, the appellee, with succession to the survivors.

In the year 1864, Mildred Ware died intestate, leaving her surviving, her son James N. Ware, the appellee, her sole heir and distributee.

Julia A. Brewer died, intestate, in October, 1867, without issue, leaving her surviving, appellee, her sole heir and distributee.

Susan Jf., the widow of Harman II. Brewer, iutermarriod with appellant, Campbell, in January, 1868.

Mrs. Campbell claims title to the lands as the sole heir and successor to her son, Nicholas Brewer, Jr., by her former husband, Harman II. Brewer.

James N. Ware claims title as the sole heir and successor under the will of Nicholas Brower, Sr.

The will was made in 1860, before Nicholas Brewer, Jr., had died. We have assumed, and we think there can be no •controversy as to the fact, that Mildred-Ware was the •daughter of Nicholas Brewer, Sr., and that James N. Ware was her son, although it is sought to be controverted, in the answer of the defendants, but the proof is overwhelming and conclusive on that point.

Under these statements of the facts, the only question that is to be determined is, whether the grandfather or the mother of Nicholas Brewer, Jr., is entitled to his property.

As has been stated, Harman H. Brewer, .the father of Nicholas Brewer, Jr., acquired these lands and by his death they descended to his son, subject to the dower interest of his wife, Susan F. The son had made no further acquisition to them.

The transmission of property, whether by descent, succession or purchase, depends upon municipal regulations, and the statutes of descents, in force at the time of the death of Nicholas Brewer, Jr., must govern this case. This is the act, approved December 13, 1837, for the coiistruction of which we must be governed by the case of Kelly’s heirs et al. vs. McGuire and wife et al., 15 Ark., 555; Loftis vs. Glass, exr., 16 Ark., 680; West et al. vs. Williams et al., Ib. 682; Scull et al. vs. Vaugine et al. Ib. 695; Cloyes et al. vs. Beebe et al. 14 Id. 489.

It has been held in the above cited cases, that.thero are two kinds of estates uuder our statute of’Descents and Distributions, one ancestral, the other new acquisitions. In the ease of Kelly’s heirs et al. vs. McGuire and wife et al., the court says: The manifest intention of the.first part of Section 10 was to preserve ancestral estates in the line of the blood from whence they came: It was a partial adoption or recognition of the common law principle which invariably followed the line of the blood. If the estate comes to the intestate by the father, or as ifc may be differently expressed, on' the part of the father,' then it must ascend to the father and his heirs, and thus overturning the inflexible rule of the common law, that an estate could never ascend, but should rather escheat to the lord. And so, if it conies by or on the part of the mother, it goes to the mother and her heirs, in exclusion of the heirs of the father. In other words, it remains in the paternal or maternal line, from which it was derived.” * * *

“The 10th and 22d sections must be construed together, although the exact expressions used in the latter, are not contained in any part of the statute. But words of equivalent signification are employed, and they are embraced within the spirit of the-22d section.” * * * * * And further the court says: “The portion of the 10th section, as to new "acquisitions, gives the father and mother a life estate qnly, with remainder to the collateral heirs of the intestate, such as brothers and sisters and their descendants, and so on. A new acquisition or newly acquired estate does not afford, of itself, an exact idea of the acquisition.”

The first section of the law is general and comprehensive, embracing all lands, whether ancestral or newly acquired, subject to certain exceptions and qualifications, and these exceptions refer to real estate alone. This section also constitutes the table by which real estate is to descend, and personal property to be distributed. -The effect of the first section is to vest an absolute estate of inheritance in lands in the person who takes. Hilliard, in Ms Trustees on Beal Property, ml. 207, says: “In Arkansas, if there arc no. descendants, and the estate came from the father, it passes to him and his-heirs. The half blood and their descendants inherit it, unless the estate is ancestral, in which case, none inherit but those of the ancestral blood.”

The court, in the case of Kelly’s heirs vs. McGuire, el al, announced as a part of their conclusions: “That, as to real estate, it was the design of the legislature, when there were no descendants, to'point out the line of succession, and that this is to depend on the fact, whether the inheritance is ancestral or new, and if ancestral, then whether it .came from the paternal or maternal.line. If 'the inheritance was aneestral and came from the father’s side, then it will go to the line on the jpart of the father from whence it came, not in postponement, but in exclusion of the mother’s line; and so, on the other hand, if it came from the mother’s side, then to the line on the part of the mother from whence it came, to the exclusion of the father’s line.” This, we think, settles the ■law of this case. The lands, on the death of Herman H. Brewer, who acquired them, descended to his son, Nicholas Brewer, Jr., subject to the dower claim of the widow. Nicholas Brewer, Jr., held the lands, not as a new acquisition, but as an ancestral estate, an estate that came by his father and, on his death, the estate ascended to his grandfather, Nicholas Brewer, Sr.

On his death, to say nothing of his will, the lands descended to his two daughters (Mildred Ware and Julia A. Brewer) of whom the appellee, James P. Ware, son of Mildred Ware, is the only survivor, sole heir, and has the legal title to the lands, subject to Mrs. Campbell’s dower.

The bill prays that one third of the lands be partitioned to Mrs. Campbell, as her dower right, and the remainder to -James N. Ware, complainant below, and his title thereto con.firmed and quieted. The -court below decreed as prayed, whieh we think was right.

Decree affirmed.