text:
    Jacks vs. Adair.
    1. Husband and Wipe:
    The husband becomes the absolute owner of the wife’s legacy, and may dispose of it.
    2. Exeoutob:
    An unauthorized settlement with the executor and acquittance of record in the Probate Court, by one who professes to have, but is, in fact, without authority to represent a legatee in regard to the legacy, is not binding, and will be set aside, and the amount due the legatee decreed him in equity.
    CROSS APPEALS from Lee Circuit Court in Equity.
    Hon. W. W. Smith, Special. Judge.

      Garland & Goahrill, Tappan & Hornor, for appellant.

      Broten and Tkioeatt, contra.

   Harrison, J.:

• This was a suit in equity by Mary Ellen Adair, and Martha Griffin, as administratrix of Benjamin F. Griffin, against Eli T. Diamond, Thomas M. Jacks and James Adair,

The complaint, in substance, alleged that Dennis Griffin; a resident of Phillips County, died in 1848, leaving a will by which he emancipated his negro woman Nancy and her four children, Mary Jane, Frank, afterwards known as Benjamín F. Griffin, Mary Ellen, the plaintiff, Mary Ellen Adair, and Farris Cunningham, and gave to the said children his plantation, then in Phillips, now in Lee County, slaves, stock, farming utensils and household furniture, which property he directed to be kept together, and the plantation carried on, for six years, from the profits of which the said legatees were, in the meantime, to be supported and educated, and at the expiration of that time the whole to be sold, and the proceeds to be divided equally among them. And Eli T. Diamond and Hardy H. Borland were appointed executors.

That Mary Jane and Farris Cunningham died in infancy, and without issue, and that the said Mary Ellen and Benjamin F.. Griffin were their next of kin, and that Mary Ellen intermarried in 1861 with the defendant, James Adair.

That Diamond, only, proved the will and qualified as executor; afterwards, in 1859, his bond was adjudged insufficient by the Probate Court, and he was required to give a new one, in the sum of $50,000, which he did, with the defendant, Thomas M. Jacks, Boyd Bailey and Jesse A. Jackson as his sureties; and that said Bailey and Jackson, the former of whom was dead, had become insolvent, and been discharged from their debts, in bankruptcy.

That the whole of the property devised was sold by the executor, but not until the 1st day of January, 1861; that the plantation, which contained 309.11 acres, and was worth $25 an acre, and the annual rent, from $1,800 to $2,000, was, by a fraudulent contrivance between the executor and Jacks, sold to the latter for $4 an acre, and that Jacks at once entered into and had ever since retained possession of it.

That, at the January term, 1868, of the Probate Court, Diamond’s final settlement as executor was confirmed, and there was found in his hands, belonging to the legatees, the sum of $15,-024.83; that he the same day filed, as an acquittance of the same,, the following receipt:

Received of Thomas M. Jacks, Boyd Bailey and Jesse A. Jackson, securities of Eli T. Diamond, as executor of Dennis Griffin, deceased, the sum of $15,000, the amount found to be due from said executor to said estate, the'said sum being paid in property and money, and is in full .of all demands against said Diamond as such executor, except clerk’s costs.

We sign this for ourselves, and as attorneys in fact, of Frank Griffin, whose interest in said estate we represent:

Attest: James Adair,

J. C. Tappan,

Mary Ellen (her X mark) Adair,

John P. Moore,

Frank Griffin.

By his attorney in fact.

James Adair.

And that the court the same day allowed the said receipt as a full satisfaction of said sum of $15,024.83, and released and discharged Diamond from his executorship.

That the receipt was procured by the artifice of Jacks, who, so soon as the amount of Diamond’s indebtedness was ascertained, set about extricating himself from his liability as surety, and to that end employed the assistance of-one John P. Moore, who negotiated and brought about, with James Adair, who assumed to act for his wife and Benjamin F. Griffin, as well as for himself, a compromise of the legatee’s claim, the terms of which are shown in the following agreement between Moore and said Adair:

“This agreement, made and entered into this 12th day of February, 1868,'by and between James Adair and Mary Ellen Adair, his wife, for themselves, and for Frank Griffin, as legatees of Dennis Griffin, deceased, of the one part, and John P. Moore of the other part, witnesseth : That, for and in consideration that said first parties have this day executed a receipt to Thomas M. Jacks, Boyd Bailey and Jesse A. Jackson, as securities of Eli T. Diamond, executor of said Dennis Griffin, deceased, for the sum of $15,000, the amount found to be due from said executor to said estate, and for the further consideration of $1 to said second party, by said first party, in hand paid, at and before the signing and ensealing hereof, the receipt of which is hereby acknowledged ; said second party hereby agrees and binds himself to convey to said legatees, within ten days from this date, a good and perfect title to the farm on the St. Francis River, in the county of Phillips and State of Arkansas, purchased by said second party from Charles Roberts, containing 120 acres; and, also, 160 acres out of any land owned by said second party, to be designated by said first parties in secs. 22, 27 and 18, or either of them, in township 1 north, range 4 east, west of river; and, also, to give to said first parties one horse, one two-horse spring wagon and harness, $30 in money, and $190 in provisions and corn, at cash prices, reserving and securing to Hindman and Sanders a lien upon all of said property, to be conveyed by said second party, as aforesaid, to secure their fee as attorneys for said legatees, as per written agreement with said James Adair.

In testimony whereof, the said James Adair and Mary Ellen Adair, his wife, by and for themselves, and the said James Adair, as attorney in fact, for said Frank Griffin, and the said John P. Moore, by and for himself, have hereunto signed their names and affixed their seals, on the day and year first above written.

Attest: James Adair, [l.s.]

John J. Hornor, [l.s.]

Mary Ellen (her X mark) Adair, [l.s.]

W. H. Govan, [l.s.]

Frank Griffin. [l.s.]

By his attorney in fact.

James'Adair, [l.s.]

And, that though it appear by said receipt and agreement, that Benjamin F. Griffin was a party thereto, and it also appears, by the orders of the Probate Court, relating to the filing of the receipt, its allowance as evidence of the payment and satisfaction of the sum due from Diamond, and his release and discharge from his executorship, that he was represented by attorney, he was not, in truth, a party to any of the proceedings; that he was then a resident of Ohio, and not at the time in the State, and knew nothing of the matters, and that James Adair, who assumed to be such, was not his agent or attorney, and had no authority whatever to act for or represent him in the matter of his legacy, and that he had not retained or employed any attorney to appear for and represent him in the Probate Court in regard thereto.

That the said Mary Ellen Adair, who was illiterate and-unable to read, was deceived and imposed upon by her husband, who told her that the property they were to get from Moore was only a payment on the legacy of $1,500, consented to and signed the agreement and receipt in ignorance of their real purport and effect, and if truly informed thereof, would not have done so.

That’ the value of the farm, or Charles Roberts place, did not exceed $1,500, the annual rent of which was about $150; and all the property they were to get from Moore was not worth more than $1,8^0 or $2,000.

That James Adair received from Moore the money and personal property, and, soon after the compromise, moved, with his family, on the farm, and was then in possession of it, but that Moore had never, as he covenanted to do, conveyed the title to the same, or to the 160 acres. •

That Jacks never paid for the plantation, or any part of the purchase money; but that Diamond- had, on the 12th of February, 1870, two years after his discharge, conveyed the same to him.

And that Benjamin F. Griffin died intestate, in Ohio, after the final settlement and discharge of Diamond, .and administration on his estate was granted, in that State, to his widow, Martha Griffin.

The prayer was that the conveyance of the plantation to Jacks be cancelled and set aside, and the title vested in the plaintiff; that Jacks account for and pay them the rents and profits since his purchase; that the compromise, and the order of the Probate Court crediting Diamond with the receipt, and discharging him as executor, be set aside; and that Diamond and Jacks, after being credited with the money and' the value of the personal property received from Moore, and the' rents and profits of the farm, which they offer to* account for, be decreed to pay them the moneys in the hands of Diamond at the confirmation of his final settlement, with interest from the date of the settlement, and that the share, or portion, of the plaintiff, Mary Ellen Adair, be settled on her to her separate use.

Jacks, in his answer, which Diamond adopted as his also, denied the alleged fraud in the purchase of the plantation, or that it was worth any more than he gave for it, or that there had been any -rents or profits, the land being wild, he said, with no improvements on it, except a few cabins. He denied, also, the allegation that he had not paid for it, and averred that he had paid the whole of the purchase money, and Diamond had accounted for the same in his settlements. He admitted that Diamond had not made him a deed until after his discharge from his executor-ship, but said that Dennis Griffin had but an equitable estate in it, and at the time of his death the legal title was in Diamond. He denied that any improper means were used to effect the compromise with the legatees, or that he employed .John P. Moore to procure it, or that it was made through Moore’s agency; on the contrary, he said James Adair and his wife were anxious for a compromise, and sedulously sought it; Diamond and his co-sureties, -Bailey and Jackson, wére already bankrupts, and he was’determined, if no compromise was made, to go himself into bankruptcy ; that Diamond offered to convey to them his plantation on the Mississippi River, which he, Jacks, wished and advised them to accept, but they preferred and wished to own the farm on the St. Francis River, that Moore had purchased from Charles Roberts, and so Diamond proposed to Moore to convey to him the plantation, if he would let them have the farm, and pay them the difference in value in the two places, which arrangement was made, and was perfectly satisfactory to both Adair and his wife.

He denied that James Adair had no authority to act for Benjamin Griffin, and averred that he was, as he represented and held himself out to be, his agent and attorney in fact, and denied that Benjamin F. Griffin was not represented, as alleged in the complaint, by attorney in the Probate Court, where Diamond was credited with the receipt, and discharged; and he admitted that Moore had not conveyed the lands, according to his covenant,, but said the 160 acres had not been selected, but that Moore was willing and ready, and would convey them when that was' done..

James Adair made no defense.

The decree of the court was that the order of the Probate Court, releasing and discharging Diamond, so far as it related to Benjamin F. Griffin’s legacy, or portion of the estate, be set. aside, and that Diamond and Jacks pay to Martha Griffin, as administratrix of Benjamin F. Griffin, $3,756.20, one-fourth of the amount found due the legatees upon the final settlement, with interest from that date; and that Jacks convey the lands that Moore covenanted to convey, to Mary Ellen Adair, for her separate use, so soon as the 160 acres should be selected, and directed the selection to be made by James Adair.

The plaintiffs and Diamond and Jacks appealed.

The plaintiffs offered no evidence in support of the allegation,. in their complaint, of fraud in the sale of the so-called planta— tion; and the evidence on the part of Diamond and Jacks very clearly showed that it had no cleared land or improvements of any value on it; and that it was sold for its full value, and the purchase money had been paid, and the same accounted for by Diamond in his settlements.

Nor does it appear that the compromise was induced by any misrepresentation or fraud practiced upon the Adairs; but it was shown that both were very desirous to effect it; and that Mary Ellen herself was particularly active and persistent in having it consummated, and had a perfect understanding of it.

Nor can we think in view of all the circumstances, the condition of the country, and the general bankruptcy that followed the war — Diamond and two of his sureties, already bankrupts— and Jacks on the point of filing his petition, for he swears, he should have done so, if the compromise had not been effected — that-it was not a fair and just one; or that they did not get as much by it, as they would if they had sued Diamond and his sureties.

There was no such relation of trust and' confidence between Diamond, the executor, and James Adair, as is claimed by counsel, in regard to the wife, as forbade any dealing between Diamond and him in respect to her legacy, and it was not pretended, that he did not understand the compromise, or was influenced by any improper means to make it; and as the husband of Mary Ellen, he was absolute owner of her legacy, and might make any contract concerning it, he chose, even tq the release of the whole of it. Schoul. Dom. Rel., 113; 2 Kent. Com., 135. The contract of James Adair was therefor valid and binding, and his acquaintance released Diamond and his sureties, as to-his wife’s interest in the estate. *

The evidence-as to the agency of James Adair for Benjamin F. Griffin, is somewhat conflicting. It was proven that Hindman. ■& Sanders were employed by him, as attorneys, to look after and attend to the interests of the legatees.

Sanders, one of them, testified for the defendants, that when Adair retained them, he showed them what purported to be a power of attorney from Griffin to him, to act for him in the matter of his legacy, but which was defective in some particular, but in what he could not distinctly remember; that he wrote and enclosed it to a lawyer, whose name Adair gave, in the town in Ohio, in which Griffin lived, with request 'to have the defect, whatever it was, corrected, and it returned to him. That he received no answer to his letter, and Adair, afterwards, told him he had made a mistake in the address, and gave the name again, and he again wrote, according to this last direction, but never' received an answer, nor was the power of attorney ever returned.

He did not remember any express authority in it to compromise his claim, but believed, if not expressed it was implied. That not doubting the authenticity of the instrument, or Adair’s authority to employ counsel for Griffiin, they appeared and attended to the matter for him, as well as for Adair and his wife.

James Adair testified for the plaintiffs: That he never had from Griffin a power of attorney; but that he showed Gen. Hindman, when he employed him and Sanders, a contract between himsélf and Griffiin, by which Griffin agreed to sell him his interest in the estate for $550, which Gen. Hindman said amounted to'nothing; but he took it to send to Griffiin to be fixed up. The contract was made two years before, and was to be void if the money was not paid in six months, and he had never paid anything on it.

The evidence leaves in doubt the real character of the instrument exhibited to Hindman & Sanders. We cannot, however think that it was a valid power of attorney, for if such, why should it have been returned ? If designed for a power of attorney, and it reached Griffin, and the probabilities are that it did, his failure to return it, it is reasonable to suppose, was because he chose to revoke it. The preponderance of the evidence seems to be in favor of the finding of the court below, that Adair had no authority to act for Griffin.

The order of the Probate Court, so far as it related to Griffin’s legacy or interest in the estate, was therefore properly set aside, and Diamond and Jacks decreed to pay his administratrix, one fourth of the amount shown by the final settlement to be due, with interest from the date of the settlement.

If the plaintiffs take, as next of kin, the shares of the two legatees who died in infancy, which the complaint, by no means makes apparent; and upon which question we shall express no opinion, the interest of Mary Ellen Adair and her husband in-them, was included in, and released by, the compromise, and they cannot now assert a claim to it; and that of Griffin’s representatives can be recovered, only by administrations upon their estates, as held in Lemon’s heirs v. Rector, 15 Ark., 437; Pryor v. Reyburn, 16 Ark., 671; Anthony v. Peay, 18 Ark., 24; Atkins v. Guice, 21 Ark., 164.

The title to the lands Moore covenanted to convey, the pleadings show to have been in him, at the commencement of the suit ; but it appearing by the evidence that they have since been conveyed to Jacks, the court below, therefore, very properly directed him to make the conveyance. Gantt’s Digest, sec. 4611.

Diamond and Jacks may have supposed, and most probably did, that they were getting, in the compromise, a settlement and release of Benjamin F. Griffin’s share; it, however, plainly appears, that the value of the property they paid, was much less than the legacy or share of the Adairs, and they filed no cross-complaint, and did not ask a rescission of the contract.

The decree is affirmed.


source: Caselaw Access Project

author: Walker, J.:

license: Public Domain

text:
    Newton vs. Kennerly.
    Interest:
    A note which contains the following stipulation as to the interest, viz: “ With interest at the rate of sixteen per cent, per annum from date,” leaves the legal, and not the conventional rate of interest, after maturity.
    APPEAL from Pulaski Chancery Court.
    Hon. J. R. Eakin, chancellor.

      Gallagher & Newton, for appellant.

      Farr, for appellee.
   Walker, J.:

Kennerly filed his bill in equity to foreclose a mortgage given by Newton on certain lands, to secure the payment of the following note:

cc Little Rock, Ark., March 8th, 1870.
On or before the 1st day of January, 1871, I promise to pay Wm. C. Kennerly $1,000, with interest at 16 per cent, per annum from date. R. C. Newton.”

Upon the note were the following endorsements :

Little Rock, February 88th, 187%.

Three hundred dollars paid on this note, this day.

W. C. Kennerly.

Little Rock, June 19th, 1878.

Received on the within note one hundred dollars.

W. C. Kennerly.

Newton was duly served with notice, but made no defense, and judgment was rendered against him by default.

The court below seems to have considered the contract to be for 16 per cent, per annum from date until paid, and rendered judgment for the debt, and 16 per cent, interest from date until the 22d January, 1875, the time the judgment was rendered, and upon the debt and damages, after judgment 10 per cent, interest per annum until paid.

It is contended by counsel for Newton, that this being a contract for interest, the parties must be held strictly to the terms of their contract, which was 16 per cent, from date until due, not until paid.

In thus construing the contract, we think counsel are correct.

Our statute provides, that the rate of interest on contracts, express or implied, for the payment of money, shall be 6 per cent, per annum upon every $100, unless otherwise expressly stipulated by the parties. Here we have an express stipulation as to the rate of interest, but' not that it shall continue longer than from date until due. The debt was to be paid on the 1st January, 1871, and it was neither contemplated, nor stipulated that 16 per cent, interest should be charged, after the debt became due; after that date, there was a debt due without stipulation as to the rate of interest, and the general law fixing the rate of interest at 6 per cent, was the law governing future interest, and it was error in the court below to render judgment for a greater rate of interest than 6 per cent, after the note fell due.

The conclusion reached by us is fully sustained by several adjudicated cases directly in point.

In the 'case of Brewster v. Wakefield, 22 Howard, 118, the note sued upon was given by Brewster on the 11th July, 1854, due twelve months after date, for the sum of $5,583, with interest at the rate of 20 per cent, per annum from date thereof.” No defense was interposed in the court below.

The statute of Minnesota fixed the legal rate of interest, where no rate was stipulated by the parties, at 7 per cent, per annum. Thus it is seen that the case came before the Supreme Court of the United States in its legal aspect, just as it is presented in this case to us. Chief Justice Taney, who delivered the opinion of the court, said: “The appellant’s counsel objected to the allowance of more than the legal rate of interest (7 per cent.) after the note became due and payable. Wakefield, on the contrary, claimed that interest should be allowed at the rate mentioned in the note, up to the time of the judgment or decree of sale,” and, considering the case thus stated, said: “There is no stipulation in relation to interest after the note became due in case the debtor should fail to pay it, and if the right to interest depended altogether on contract, and was not given by law, in a case of this kind, the appellee would be entitled to no interest whatever after the day of payment.

“The contract being entirely silent as to the interest, if the note should not be punctually paid, the creditor is entitled to interest after that time, by operation of law, and not by the provisions in the contract. * * * The Territorial Court committed an error in allowing, after the note fell due, a higher rate of interest than that established by law, where there was no contract to regulate it. * * * Nor is there anything in the character of this contract, that should induce the court, by supposed intendment of the parties, or doubtful inferences, to extend the stipulation for interest beyond the time specified in the written contract. * * *

“ Where a party desires to exact, from the necessities of a borrower, more than three times as much as the Legislature deems reasonable and just, he must take care that the contract is so written, in plain and unambiguous terms; for, with such a claim, he must stand upon his bond.”

In a recent decision of the Supreme Court of the United States, Burnhisell v. Fernham, reported in the American Law Review, April 1876, it seems that the same question again came before that court, and was decided in affirmance of the opinion of Ch. J. Taney, 22 Howard, above referred to.

In the ease under consideration there was no contract for interest, after the note fell 'due, as. there was in the case of Wilson & Webb v. Newton, decided at the present term.

In that case the parties expressly contracted for a rate of •interest until the debt was paid, not until due.

The judgment of the court below must be reversed and set aside, and the cause remanded, that a decree may be rendered for the balance of the debt, after allowing the credits upon the note, which are referred to and admitted in the bill of complaint, tand for interest in accordance with the opinion herein.


author: Pinball, Sp. J.:

text:
    Buckner vs. McIlroy.
    1. Listf, Transfer, Release, etg.:
    While the holder of a debt, secured by a lien, cannot transfer the lien to a stranger, without, also, assigning the debt, he may release it to one claiming an interest in, or a junior lien on the property.
    2. Consideration:
    The waiver of a legal or equitable right is a sufficient consideration to support a promise. Where there is any consideration, the law will not inquire into its adequacy.
    3. Contract- Construction.

    W. held a lien on personal property; S. represented to him that he had a valid judgment, upon which execution had been issued, and levied on the same property, and under which it would be sold, and promised, in consideration that W. would release his lien in favor of I., that he would' pay the former §600 after the sale of the property under the execution. The judgment proved to be invalid, and proceedings to enforce it were enjoined: Held, that the agreement of S. amounted to an undertaking that he would sell the goods before the return day of the execution, and became an .absolute promise to pay as soon as the sale was enjoin'ed.

      APPEAL from Washington Circuit Court.
    Hon. J. M. Pittman, Circuit Judge.

      B. R. Davidson and J. D. Walker, for appellant.

      L. Gregg, contra.

   Pinball, Sp. J.:

The appellant, as assignee of David Walker, sued the appellee, as one of the members of the late firm of Denton D. Stark & Co., upon a promise in writing, filed with the complaint, in the following words: “David Walker has this day transferred to us his lien right to the drugs, medicines, merchandise, chattels and effects, which were conveyed by James C. Pendleton to John O. Peacock, by deed of trust, now on record in the Washington County Court, to secure the payment of notes given for the purchase money of said drugs, etc., one of which said notes Walker holds by assignment. In consideration of which release of said drugs, etc., we, Denton D. Stark & Co., promise to pay to said Walker the sum of $600 after the sale of said drugs, now levied upon and in the hands of the sheriff, to satisfy a judgment in our favor, this August 23d, 1875.

Denton D. Stark & Co.”

Endorsed:

“ Pay to C. R. Buckner. D. Walker.”

The complaint, in substance, alleges:

That, on the 23d August, 1875, David Walker was the owner, by assignment, of a note given in part payment for a stock of drugs, etc., and which said note was secured by a deed of tr«st on said drugs, etc., executed by James C. Pendleton to John O. Peacock; as trustee, and that Denton D. Stark & Co. hada judgment against Adams & Bro., entered of record in the Washington Circuit Court; that they represented to said Walker that said judgment was a good and valid one, and that execution had been issued thereon, and levied upon the property, upon which Walker held a lien, and said property had been seized, and was then in the hands of the sheriff, and would be sold to satisfy said judgment; and that, in consideration of the release, by Walker to said Denton D. Stark & Co. of his lien on said property, they, the said Denton D. Stark & Co., executed and delivered to said Walker their promise in writing, whereby they agreed and promised to pay him the sum of $600 after the sale of said drugs, then levied upon and in the hands of the sheriff, to satisfy said judgment, in favor of the promisors; that the said David Walker afterwards assigned and delivered said promise in writing to the plaintiff, and the same was filed with the complaint. It is further averred that said Stark & Co. did not have a good and valid judgment against Adams & Bro., but that the same, so entered on the records, was illegal, and afterwards perpetually»'enjoined, and the collection thereof restrained by the Circuit Court of Washington County, and the goods released to Adams & Bro., and that there never could be a sale thereof under said execution, or to satisfy said judgment; avers a request and demand, and prays judgment.

The defendant interposed a demurrer to this complaint.

The court being of opinion that said complaint was insufficient, the demurrer was sustained. The plaintiff excepted, and declining to amend his complaint, final judgment was rendered against him, from which he prosecutes this appeal.

Two points, raised by this demurrer, have been argued in this court by the respective counsel.

It is insisted, by counsel for appellee, that there was no sufficient consideration for the promise; that the agreement was to pay Walker for a transfer of a lien right.

It is true that one of the recitals in the written promise is, that Walker had transferred to Stark & Có. his lien right to the drugs, etc., but it is also stated that the consideration for the promise was the release of the lien recited in the agreement. It is shown in the complaint that "Walker was the holder of a lien on certain property, which Stark & Co. had caused to be seized on an execution, and were proceeding to sell, to satisfy a judgment they claimed to have against Adams & Bro., and that the consideration for the promise sued on, was a release by Walker to Stark & Co. of this lien.

While a party holding a debt secured by lien, cannot convey the lien to a stranger, without also assigning the debt, he may release the lien upon the property to one claiming an interest or junior lien on the property.

While it is true a right of action does not arise on a mere naked promise, yet, if there be any legal consideration for the promise, the court will not inquire into its adequacy, — “The law having no means of deciding upon this matter, and it being-considered unwise to interfere with- the facility of contracting, and the free exercise of the judgment and will of- the parties, by not allowing them to be the judges of the benefits to be derived from their bargains, provided there be no incompetency to contract, and the agreement violate no rule of law. It is, indeed, necessary that the consideration be of some value, but it is sufficient if it be of slight value only.' E. G.: the compromise, or abandonment of a doubtful right is a sufficient consideration for a contract, even when it turns out that the point given up was in truth against the promisee.” • 1 Chitty on Contracts (11 Ed.) 29.

See, also, Parsons on Contracts, 436; Story on Contracts, 431.

So an agreement to forbear to institute or prosecute legal or equitable proceedings, or to enforce either a legal or equitable demand, either absolutely or for a time, is sufficient consideration for a promise. Chitty on Contracts, 35.

It is not necessary that the forbearance shall extend to an entire discharge of the proceedings. Chitty on Contracts, 40.

In general, a waiver of any legal or equitable right, at the request of another, is a sufficient consideration for a promise. 1 Parsons on Contracts, 444.

Appellee further insists, that the complaint shows that the sum claimed has not become due, according to the terms of the contract, and that, if any payment is to be made, it was to be after a sale under execution, and that, as no such sale had been or could be made, no recovery can be had on the promise.

This seems to bo the principal defense relied upon, and the question in the case.

If, by a proper construction of the contract, the sale under execution was a condition precedent to the payment of the note, no recovery can be had until that condition is performed; but, if by postponing the payment of the money until after the sale, was merely fixing a convenient time of payment, then a cause of action would accrue at any reasonable time after the sale should have taken place, and the happening, or non-happening of the contingency, does not affect the liability to pay.

“ In determining whether stipulations as to the time of performing a contract of sale are conditions precedent, the court seeks simply to discover what the parties really intended, and if time appears, on a fair consideration of the language and circumstances, to be of the essence of the contract, stipulations in regard to it, will be held conditions precedent.” Benjamin on Sales, 440.

“No particular words are necessary to constitute a condition precedent, or a condition subsequent, and if there be any question on this point, it must be determined by the intention of the parties, as manifested by the circumstances of the particular case.” 1 Story on Contracts, 29. See, also, 2 Parsons Contracts, 527.

It is not contended that Walker had any thing to do to promote the sale, or that the sale was to be made under the lien he released to Stark & Co.; on the contrary, it was contemplated that the sale was to be made under the execution, then in the hands of the sheriff, on Stark & Co.’s judgment, and the release of Walker’s lien was procured to enable that sale to be made; the sale was not defeated by any defect of Walker’s lien, or by any fault or neglect of his, but because Stark & Co.’s judgment was illegal; and further, the transfer of Walker’s lien to Stark & Co. was not made dependent upon the validity of Stark’s judgment, or upon a sale to be had thereunder; the release of the lien was made at, or before, the execution of the note; the payment of the consideration for the release alone, was postponed until after the sale took place.

It is further to be observed, that apt words, to constitute a condition precedent, were not used in the agreement. The expression is not that $600 were to be paid, upon condition that a sale should take place, or provided a sale was made; there are no ifs or ands about it, but the promise is without qualification “to pay $600 after the sale of said drugs, now levied upon, and in the hands of the sheriff, to satisfy a judgment in our favor.” And the allegation in the complaint is, that the promisors represented to Walker that the drugs would be sold to satisfy the judgment. This representation to Walker, under the circumstances, became an agreement to proceed with the sale.

It was ruled in Savage v. Whitaker, 15 Maine, 24: “That an agreement to do a certain thing, involves an undertaking to secure and use effectually all the means necessary to accomplish the object.” In that case, Whitaker and Bryan executed to Savage a note for $500, in consideration that Savage would transfer to them a mail contract which had been let by the postoffice department to one Bunker, and which Bunker had agreed to transfer to Savage. The department revoked the contract to Bunker, under a rule which forbid the contractor, Bunker, to transfer the contract without the consent of the postmaster general, and on a suit by Savage, against Whitaker and Bryan, on the note, it was held that their agreement to transfer to Whitaker and Bryan, involved an agreement to obtain the consent of the postmaster general.

It has also been held by the Massachusetts court: That when the promise was “to pay” the plaintiff $100 if the “defendant recovered of T. Sherman his demands, to be paid when recovered of said Sherman,” it was competent for the plaintiff’ to prove that the defendant had no demands against Sherman, orto show that he had not used due diligence to collect them and thus to render the promise absolute. White v. Snell, 5 Pick., 425, and in the same case, 9 Pick., 16, it was held that the promise to pay, “if and when the defendant shall collect his demands of T. Sherman,” implies that the defendant will use due diligence to collect such demands.

Upon the whole case as presented by the demurrer, we think the release of the lien, held by Walker upon the goods Stark & Co. were seeking to subject to the satisfaction of their judgment, was a sufficient consideration for the promise; and that the representation of Stark & Co. to him, that they had a valid judgment and would proceed to sell the goods under their execution, amounted to an understanding on their part, that they would sell the goods before the return day of that execution, and that their promise to pay, after the sale of the goods, became an absolute promise to pay as soon as the sale was enjoined, and a reasonable time to sell had "elapsed.

The decision of the Washington Circuit Court is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Hon. David Walker, J., did not sit in this case.


author: English, Ch. J.:

text:
    State vs. Hinson.
    Indictment: For disturbing a religious congregation.

    In an indictment for disturbing a religious congregation by improper lan- ■ guage, the character of the language, or the words spoken, need not be alleged; if the disturbance is by acting, the better practice would be to indicate in general terms, without alleging the details, the general character of the disturbing acts.
    APPEAL from Faulkner Circuit Court.
    --, Circuit Judge.

      Henderson, Attorney General, for the State.

      Wilshire & Allen, contra.

   English, Ch. J.:

Hinson was indicted as follows, after the usual caption:

“The Grand Jury of Faulkner County, in the name and by the authority of the State, etc., accuse Lucius Hinson of the crime of disturbing a religious congregation committed as follows, viz: The said Lucius Hinson, on the 13th day of August,. A. D. 1876, in the county and State aforesaid, said day being the-Sabbath day, unlawfully and contemptuously did disturb the-congregation then and there assembled for religious worship in Cypress Valley Church, by acting and talking in a manner that was calculated to disturb, insult and interrupt said congregation. Such acting and talking, being in. the presence and hearing of' said congregation, then and there assembled for religious worship, against the peace,” etc.

The defendant demurred to the indictment on the ground that-the facts therein charged did not constitute a public offense.

The court sustained the demurrer, and the State appealed.

Sec. 1624, Gantt’s Digest, under which the indictment was no-doubt drawn, was made up by blending sec. 1, Art. iii, div. 7,. Ch. 44, of the Revised Statutes, and part of the act of January 10th, 1857, amendatory thereof.

The original statute is in the following words:

“If any person shall, maliciously, or contemptuously, disturb or disquiet any congregation, or private family, assembled in any church or other place, for religious worship,' by profanely swearing, or using indecent gestures, or threatening language, or committing any violence of any kind, to or upon any person so assembled, the person so offending, upon conviction thereof, shall be adjudged guilty of a misdemeanor, and shall be fined in any sum not less than $20, and not more than $50.” Eev. Stat., p. 72; English’s Dig., sec. 1, Art. vi, part 8, Ch. 51, p. 370.

In State v. Ratliff, 10 Ark. (5 English), 530, held that in an indictment under this statute for disturbing a religious congregation by profanely swearing, it was not necessary to charge the particular language used by defendant. That the disturbance of the congregation was the gist of the offense, and the contemptuous and profane swearing alleged, was the means of disturbance, and hence the particular language employed by the offender was not material, and need not be alleged.

In State v. Minyard, 12 Ark. (7 Eng.), 156, held that an indictment charging defendant with maliciously and contemptuously disturbing and disquieting a congregation assembled for worship, without alleging the manner of disturbance, was bad. But that it was not necessary to charge the manner of disturbance in any language more explicit than that used in the statute, as by profanely swearing, or by using indecent gestures, etc., as the ease might be. That all greater particularity of description, beyond the general description in the words of the statute, or by words of equal import, were properly matters of evidence, etc. So in Fletcher et al. v. State, id., 169.

In Stratton v. State, 13 Ark., 688, the accused was charged with disturbing a congregation by using indecent gestures and threatening language. The proof was that while the preacher was discoursing, he made some remarks of a controversial character, whereupon defendant, who was a preacher o'f another denomination, interrupted his discourse by declaring “the doctrines you advance are false; I hold in my hand the Word of God, and am prepared to defend it at all times,” the defendant being excited, but using no gestures or threatening language. Held, that he was improperly convicted upon this evidence, which did not sustain the manner of disturbance alleged. Mr. Ch. J. Watkins, who delivered the opinion of the court, remarking upon the statute, said: “So, various modes of disturbance may be supposed, not falling within any of the descriptions enumerated in the statute, such as loud talking or laughing, with the intention of creating a disturbance. So, if a spectator in the congregation were to take it upon himself to hiss or applaud, or the firing of guns in the vicinity of a church during divine service, if done of purpose to disquiet the congregation. It might be the dutv of the court to decide that all such acts (not embraced by the statute) may be indicted and punished as common law offenses, because they are irreverent, and because they are unlawful invasions of the rights of others to worship according to the dictates of their own consciences, and tending evidently to breaches of the peace.”

In State v. Horn, 19 Ark., 578, which was an indictment upon the same statute, the defendant was charged with disturbing a congregation by “profanely swearing,” and by “talking and laughing aloud.” On demurrer to the indictment for duplicity, the court held that a disturbance by profanely swearing, as charged, was an offense within the statute, but that a disturbance by “ talking and laughing aloud,” however -impolite, was not made criminal by the statute; and, hence, these words were treated as surplusage.

The object of the act of January 10th, 1857, amending the above statute, was to enlarge its scope, and make punishable modes of disturbance which were not within its provisions.

Sec. 1 provides: “ That, if any person shall maliciously or contemptuously disturb any congregation, or private family, assembled in any church, or other place, for religious worship, or persons assembled for the transaction of church business, by using any language, or acting in any manner that is calculated to disquiet, insult, or interrupt said congregation, the person so offending shall be proceeded against, and fined as now prescribed by the law to which this is an amendment.

“ Sec. 2. This act shall be so construed as in aid of the before recited act, to which it is an amendment, and not as a repeal thereof,” etc. Acts of 1856-7, p. 79, Gould’s Digest, secs. 2 and 3, Art. 6, part 8, Ch. 51, p. 375.

By the original statute, the only disturbances, by language, that were made criminal, were a disturbance by “profanely swearing” and a disturbance by the use of “ threatening language.”

By the amending act, a contemptuous disturbance, by “ using any language ” calculated to disquiet, insult, or interrupt, etc., is made criminal.

By the original statute, the only disturbances by aots, made criminal, were such as were produced by“usi-ng indecent gestures,” or by “committing any violence of any kind, to, or upon any person,” so assembled, etc.

By the amending act, a contemptuous disturbance by “acting-in any manner that is calculated to disquiet, insult, or interrupt” the congregation, is made criminal.

If the disturbance is by the use of language, or talking, which is an equivalent expression, the words spoken, or the character of the language used, need not be alleged. Mere noise, by any kind of talking, or the use of language, may disturb the congregation, which is the gravamen of the offense. If, upon the trial, the language is shown to have been obscene, vulgar, or offensive, and not mere noise, the punishment might be enhanced.

If the disturbance is by acting, we think the better practice would be to indicate, in general terms, without going into details, the character of the disturbing acts, as by hissing, applauding. laughing, disorderly moving about, or any other disturbing conduct that may be described in general terms.

The charge in the indictment before us is, in substance, that the defendant unlawfully and contemptuously disturbed the congregation “by acting and talking in a manner that was calculated to disturb, insult and interrupt .said congregation,” etc.

If the words acting, and,” be treated as surplusage, so as to leave the charge to read, “ by talking in a manner calculated to disturb,” etc., we think an offense is sufficiently alleged within the statute as amended.

The argument of counsel for appellee, that he may have been, talking under the influence of the spirit, may be more appropriately addressed to a jury after they shall have heard all the evidence in the cause. A sensible jury will, no doubt, be able to determine whether he was talking under the impulse of a good or bad spirit — whether he was expressing religious emotions, as some enthusiastic people do, or ill-manneredly talking, with a contemptuous disregard for the quiet of the congregation. The motive of the accused may be well left to the jury, under the advice of the court.

The judgment is reversed, and the cause remanded, with instructions to the court below to overrule the demurrer, and hold the appellee to answer the indictment.


text:
    Tucker, as adm’r, vs. West, et al.
    Security for Cost: Administrator not required to give.

    An administrator is not an assignee within the meaning of seo. 911, Gantt’s Digest, which provides that every plaintiff, suing as an assignee, when insolvent, with certain specified exceptions, may he required to give security for cost.
    APPEAL from Benton Circuit Court.
    Hon. J. H. Huckleberry, Special Judge.

      J. JD. Walker, for appellant.

      Bose, contra.

   English, Ch. J.:

This suit was commenced in the Washington Circuit Court by Tucker, as administrator of Crawford, against West and Mock, on a note made by them to Crawford, about the 15th April, 1861, for $2,267. Crawford died in Oregon, and Tucker administered on his estate in Arkansas.

The defendants pleaded that, the note was executed on Sunday,' and obtained judgment; the plaintiff appealed to this court, and the judgment was reversed, and the cause remanded for a new trial. See Tucker, adm’r, v. West et al, 29 Ark., 386.

After the mandate was sent down, the defendants filed a motion to rule the plaintiff to give security for all the costs that had accrued, or might accrue in the cause, on the following grounds, in substance, as stated in the motion :

“That plaintiff, as such administrator, has no assets in his hands, and there are no assets belonging to said estate in this State, out of which such costs can be paid.
“ That plaintiff is personally insolvent, and has no property out of which any costs can be collected.
That plaintiff has taken depositions of about seven or more witnesses, and has commissions out to take the depositions of several others — perhaps five or eight more.
“ That he has now subpoenaed, and required to attend in person, fourteen or more witnesses.
“ That defendants have taken the depositions of about five witnesses, and have about twenty-six witnesses subpoenaed and required to attend this court.
“ That, at the former term of this court, when the cause was tried, there were a large number of witnesses who claimed for about two weeks’ attendance.
“ That the issues formed, and the manner in which plaintiff prosecutes his pretended demand, render it necessary to the defense, and the ends of justice, for defendants to retain the large number of witnesses they now have.
That the costs in this case, up to this time, amount to over |475.
“ That, if defendants recover judgment for their costs, as in justice they ought to do, they will have no means by which they can collect their costs, unless plaintiff is required to' give security therefor,” etc.

This application was verified by the defendant, and filed 18th October, 1875.

On the 25th of the same month, plaintiff filed an application for a change of venue.

On the 28th, both applications were taken up and heard, and the court made an order requiring the plaintiff to give good and sufficient security, in writing, for the payment of all costs in the cause, and that the same be filed in the cause, on, or before the 3d day of the next term of the Benton County Circuit Court, to which the court ordered the venue to be changed.

At the April term, 1876, of the Benton Circuit Court, and after the third day of the term, the defendants filed a motion to dismiss the suit, because the plaintiffs had failed to file a bond for costs, as required by the above order of the court.

The court sustained the motion, dismissed the suit, and rendered judgment against plaintiff, as administrator, etc., for costs, etc.

Plaintiff excepted, and appealed to this court.

Administrators and executors appointed in other States, etc., are permitted to sue in the courts of this State, but are expressly-required to give bonds for costs, as other non-residents. Gantt’s Digest, sec. 4473. Gould’s Digest, Ch. 7.

We have no statute expressly requiring domestic administrators and executors to give bonds for costs in any case.

A non-resident plaintiff, or a plaintiff who becomes a nonresident after the institution of a suit, is required to give bond for costs. Gantt’s Digest, secs. 908, 910.

There is a provision in Gould’s Digest (Ch. 40, sec. 3) that any plaintiff who is unable to pay costs, or is so unsettled as to endanger the officers of the court, with respect to their legal demands, may be ruled to give security for costs. But the Code makers omitted this provision in their chapter on costs. Civil Code, secs. 698-703. Gantt’s Digest, secs. 908-913.

There is this singular provision in the Civil Code: “A guardian, committee, or next friend, suing for an infant or person of unsound mind, and every plaintiff suing as an assignee, except an endorsee of a bill of exchange, or promissory note, placed on the footing of a bill of exchange, when insolvent, may be required to give security for costs,” etc. Civil Code, sec. 701.

Mr. Gantt has made this section of the Code, sec.'911 of his Digest, omitting the word “ committee,” • and substituting after the word note, the words “ negotiated before maturity,” for the words, “placed on the footing of a bill of exchange.”

So it seems that the only insolvent resident plaintiff, who may be required to give security for costs, under this Code legislation, is one representing an infant or person of unsound mind, or a plaintiff, suing as assignee, except one suing as endorsee of a bill, or note, negotiated after maturity.

The counsel for appellees submit, that an administrator is an “assignee,” within the meaning of this word, as used in the above Statute.

An assignee is one to whom an assignment has been made.

An assignee in fact is one to whom an assignment has been made in fact by the party having the right.

An assignee in law is one in whom the law vests the right, as an executor or administrator. Bouvier’s Law Die. — Assignee.

The note sued on in this case was made payable to Crawford, and when the appellant became his administrator, the law vested the title to the notein-him as such, and so, in law, he is the assignee of the note.

But we do not think that administrators and executors are assignees within the meaning of the above statute. In other-words, we do not think the legislature intended to include them in the language, “ every plaintiff suing as an assignee, etc., when insolvent, may be required to give security for costs.”

By sec. 2 of the act of March 16, 1871, “the party appealing” “from a judgment of the Probate Court to the Circuit Court, was required to give bond, by one or more sufficient securities, to the effect that appellant would satisfy and perform the j udgmenf that might be rendered on the appeal, etc. Yet this court held that an executor, or administrator, appealing from a j udgment rendered against him, as such, was not required to give bond under this statute. Johnson, adm’r., v. Du Val, adm’r., 27 Ark., 599. The court, by Justice Bennett, said: “Notwithstanding the broad language of the act, which, requires from parties applying for appeals, that they should give bond and security to pay the amount of the recovery and costs awarded, in case the judgment should be affirmed, these terms, we think, cannot be regarded as applying to executors or administrators, when they are appealing from judgments rendered against the goods of the testator or intestate.

“ There have been various reasons assigned for construing such cases to be exceptions to the statute. It has been said that they are not bound to give security on an appeal, because they gave it when they undertook the administration of the estate; and that such bond and security would make the debt their own; and that requiring such bond and security from executors and administra-^ tors on appeals from judgments or decrees founded upon a demand against the testator or intestate, would frequently prevent them from seeking relief against an errones-us^ judgment of decree, which, however ruinous to the estate, might not affect their individual interests.”

Under our system of administration no personal judgment is rendered against an executor or administrator. They are not personally liable for costs, when sued, or when they sue as such. Gantt’s Digest, secs. 192-3-4.

If an executor or administrator may be ruled to give security for costs, he would be compelled to procure a stranger to the suit to assume a personal liability for costs, which he is not legally obliged himself lo assume, or go out of court.

Costs in suits by, or against executors and administrators, are allowed and paid as expenses of administration, and as to such costs, officers of courts, etc., have a prior claim upon the estate to the claims of creditors. If the estate proves to be utterly insolvent, and able to pay nothing, they, like creditors of all classes, suffer a common loss. They take their offices cum onere, etc.

Executors and administrators are obliged to use due diligence to collect debts due to the estates which they represent, and when payment is refused, to sue on them if, probably, collectible by suit. If they should be required to become personally bound for costs, or forced to induce others to become personally liable, they might be deterred from bringing suits upon claims that might be collected by legal process, but otherwise, lost.

This case may present a hardship, but a general mischief might be produced by holding, in the absence of express legislation, that executors and administrators may be ruled to give bonds for costs.

• The judgment is reversed, and the cause remanded, with instructions to the court below to reinstate the cause 'for further proceedings, etc.


text:
    Rowan vs. Refeld.
    Execution Sale: Of personal property, not present, is void.

    A sale, under execution, of a lot of cattle running in the range at the time of the sale, is against public policy, and void,
    APPEAL from Arkansas Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Gibson and Pindalls, for appellant.
    IT. Carlton, contra.

   English, Ch. J.:

In August, 1875, Isaac M. Rowan brought replevin in the Circuit Court of Arkansas County, against Amelia E. Refeld, for fifty head of cattle, which arc described by marks, brands, etc., in an affidavit attached to the complaint.

Under the writ, the sheriff took from the possession of the defendant, nineteen cows and fourteen calves, and delivered them to an agent of the plaintiff, and, as to the remainder of the cattle described in the writ, returned not found.

The defendant, in her answer, denied the plaintiff’s alleged title and right of possession of the property, and averred that the cattle belonged to her deceased husband (Joseph M. Refeld), and that she held possession of them as administratrix of his estate.

The cause was tried by a jury; verdict and judgment for defendant ; motion for a new trial overruled; bill of exceptions, and appeal by plaintiff.

It is manifest from all the evidence offered, or introduced at the trial, that appellant had no title to the cattle in controversy, at the time the suit was commenced, except such as he derived 1 .y a purchase made for him at a sale made by the marshal of the United States, for the Eastern District of Arkansas, on the 18th July, 1874, under an éxeeution issued upon a decree obtained by appellant, in the Circuit Court of the United States for said District, on the 5th of February, 1874, against James W. Porter and Joseph I. Porter, his former partners in planting, stock raising, dealing,, etc., on a bill to settle their partnership affairs.

Appellant offered in evidence a transcript of the record of that suit, which the court excluded, and which is embraced in his bill of exceptions; and, in determining whether he proved title in himself to the cattle :n controversy in this suit, we will give him the benefit of the transcript of the record, which he proposed to read to the jury, as fully as if the court had permitted him to introduce it. If it would have been unavailing to him, if permitted to introduce it, he. certainly was not prejudiced by its exclusion.

It appears, from the testimony of several witnesses, that the cattle in controversy were of a stock or herd which, in 1865, belonged to appellant and one Dudley. Appellant bought out Dudley, and owned the entire herd until February, 1867, when he sold to Musgrove a half interest in the stock, and he sold his half to James W. Porter, who, with Joseph I. Porter, became a partner of appellant. Appellant and the Porters were partners in planting, stock raising, dealing, etc., for several years, and down to about the close of the year 1869, and the herd of cattle was part of their partnership effects.

By agreement of the partners, there was a public sale of their partnership property on the 15th of January, 1870. It was agreed that the sale should be for cash: . Appellant, who lived in Missouri, made Musgrove his agent, and authorized him to attend' the sale, and settle with his partners after the sale. James W. Porter bid off the cattle in controversy at the sale, and he and Musgrove failed to agree upon a settlement of the partnership accounts. lames W. Porter afterwards sold the cattle to James T. Porter, who borrowed money from Joseph M. Refeld, and gave him a bill of sale, in the nature of a mortgage, which was not recorded.

Appellant came from Missouri to Arkansas County, and made an effort to have a settlement with James W. and Joseph I. Porter of their partnership affairs, but failing, he filed the bill in the United States Circuit Court, above referred to. The result of the litigation in that suit was, that he obtained a decree against James W. and Joseph I. Porter for $2,950.78, for balance due from them to him on partnership account, with leave to take out an execution on the decree as upon a judgment at law.

In this decree was manifestly included the amount bid for the cattle in dispute, by James W. Porter at the sale of the partnership effects made on the 15th January, 1870, which was, in effect, an affirmance of his purchase of the cattle.

It is clear, therefore, as above indicated, that at the time this suit was commenced, appellant appears to have had no title to the cattle, except such as he may have derived by purchase at the sale made by the marshal under an execution issued upon the above decree. The execution was not included in the transcript of the proceedings in the Federal suit produced at the trial, and was not offered in evidence.

The appellant, however, read, in evidence, the marshal’s deed, which recites the decree, execution, levy, sale, etc.

The deed recites that the execution was levied (26th June, 1874) on four tracts of land, which are described, one buggy and harness, and “ fifty head of cattle running on the range,” as the property of James W. Porter and Joseph I. Porter, the defendants in the execution.

The deed also recites the advertisement, the sale on the 18th July, 1874, and that the lands, buggy and harness and “fifty head of cattle running on the range,” were purchased by Isaac M. Rowan (appellant) for $170, he being the highest bidder, etc.

The deed, on its face, shows that the cattle were running on the range when the levy was made, and running on the range when sold by the marshal, and no witness swore, upon the trial, that the cattle were present at the sale, or at the place of sale.

Such sale is contrary to public policy, and void; Kennedy & Co. v. Clayton, 29 Ark., 270.

The mischief likely to result from a sale of personal property, when it is not present to be delivered by the officer to the purchaser, and the wisdom of the law in forbidding it, are well illustrated in this case.

Musgrove, the agent of the appellant, who was familiar with the cattle, and who made the affidavit attached to the complaint upon which the order of delivery was obtained, swore that the cattle were worth $900 ■, yet it appears from the marshal’s deed, that they were lumped off, as “ fifty head of cattle running on the range,” and were purchased for appellant, with the lands, buggy and harness, for the small sum of $170.

It appears that some time after the sale, and before the institution of this suit, the agent of the appellant obtained actual possession of the cattle, upon the order of the deputy marshal who made the sale, and rebranded them, but they were recaptured by appellee and her allies, and part of them shipped to Memphis and sold. But the sale being invalid when made, for want of the presence of the cattle, the after delivery of the cattle to the agent of the appellant, did not cure the defect in the title.

The marshals deed, on which appellant relied for title, showing, on its face, that the cattle were running on the range when sold, if they were, in fact, actually present at the sale, the bur-then of proving such material fact was on the appellant, and no witness, sworn upon the trial, proved this fact.

The appellant having failed to prove his alleged title to the property, it is not necessary to pass upon the validity of the title of appellee.

Nor is it important to determine whether the court erred in its charge to the jury, as, upon the whole record, the judgment is right, and must be affirmed.


author: jEnglish, Ch. J.:

text:
    Probst & Hilb vs. Scott.
    Exemption or chose in action:
    Under the provisions of the Constitution of L86S, choses in action may be selected by the owner as exempt from a garnishment process.
    APPEAL from Pulaski Circuit Court.
    Hon. J. J. Clendenin, Circuit Judge.

      Ph'b, for appellant.

      Howard and M. L. Rice, contra.

   jEnglish, Ch. J.:

On the 18th of July, 1874, Probst & Hilb recovered a judgment before a justice of the peace of Pulaski County, against T. W. Holland and Thomas C. Scott for $242.30, on which an execution was issued and returned nulla bona.

A transcript of the judgment was filed in the office of the Clerk of the Circuit Court of said county, and a writ of garnishment issued thereon against the Continental Eire Insurance Company of New York, as debtor of Scott, and served on a local agent of the company, who answered, it seems, that the company was indebted to Scott, on a fire policy, in the sum of $299.25.

Scott filed a petition praying to be made a party to the garnishment proceeding, and claiming that the debt due to him from the insurance company was exempt from the process of garnishment.

He states, in substance, that the debt, on which the judgment was rendered against Holland and himself, was contracted for goods, wares and merchandise, in the year 1872.

That at the time the judgment was rendered, he was possessed of certain personal property, consisting of liquors, glass ware and saloon furniture, in a saloon in the Anthony House, in Little Rock, worth $600, which w¡as insured in the Continental Insurance Company for $400.

That about the 19th of September, 1875, the Anthony House was destroyed by fire, and petitioner lost by the fire the greater part of said property, and his loss was adjusted by the insurance company at $295.20.

That, before and at the time of the fire, his entire personal property did not exceed $700 in value, including the liquors, etc., above stated, and he claimed that the same was exempt from execution.

That, at the time of the issuance of the writ of garnishment, his entire personal property was as above stated, and that at the present time his entire personal property is as follows, viz: Eight billiard tables and furniture of the full value of $1,500, upon which there is an incumbrance of $1,476 for purchase money, and household furniture and wearing apparel of the value of $100. That this is all the personal property petitioner has,. except the said sum of $299.25, held for him by the insurance company, which is not otherwise indebted to him.

That all of said property is exempt from execution on said judgment under the Constitution and laws of the State, and petitioner selects said property, viz: Eight billiard tables and furniture, in the Metropolitan saloon; household furniture and wearing apparel of the value of $100, and the sum of $299.25, held as aforesaid for him by said insurance company, and claims 'it as exempt from execution herein.

The plaintiffs moved the court to strike from the files the petition of Scott, which motion the court overruled.

The matter was then submitted to a jury, who returned a verdict that The property is not subject to execution.” Whereupon the court rendéred judgment discharging the garnishee, and plaintiffs excepted and appealed.

What instructions the court gave the jury, or what evidence they had before them, does not appear from the bill of exceptions. Nor do we see why a jury was empanneled. There was no answer to the petition of Scott, controverting or putting at issue any of its statements. The facts stated in the petition, being in no way denied or put at issue, it was a question of law for the court to determine, whether the debt due from the insurance company to Scott was exempt, or subject to the process of garnishment, and the court, in refusing to strike out his petition, decided, in effect, that he was entitled to the benefit of the exemption claimed. There was no question before the court about the other property claimed in the petition to be exempt from execution. It had not been levied on by execution, or seized by the garnishment.

The debt was the only matter in controversy.

The petition was verified by affidavit, and the legal question of exemption would have been better presented by demurrer to the petition, than by motion to strike it from the files.

But as both parties seem to regard the question of exemption as having been decided by the court in refusing to strike out the petition, and the decision of the court as having been reserved for review by the bill of exceptions, we will proceed to determine the question thus presented.

Sec. 1, Art. xii, Constitution of 1868, provides that:

“The personal property of any resident of this State to the value of $2,000, to be selected by such resident, shall be exempt from sale on execution or other final process of any court, issued for the collection of any debt, contracted after the adoption of this Constitution.”

The Constitution of 187.4 provides that:

“The exemptions contained in the Constitution of 1868 shall apply to all debts contracted since the adoption thereof, and prior to the adoption of this Constitution.” Sec. 9, Art. ix.

The debt, upon which the judgment of appellants was recovered against appellee, was contracted, it appears, in 1872, after the adoption of the Constitution of 1868, and before the adoption of the present Constitution.

Prior to the adoption of the Constitution of 1868, particular articles of personal property, mentioned in the statute, were exempted from sale on execution. Gould’s Dig., sees. 22-3, etc., Oh. 68; Acts of 1866-7, p. 3.09 ; 27 Ark., 656.

The framers of the Constitution of 1868 abandoned the policy of exempting specific articles, and provided for the exemption of personal property to the value of $2,000, to be selected by the debtor.

That a chose in action is personal property, does not admit of' doubt.

A chose in action is not the subject of sale on execution under our statute, but it may be reached by garnishment; and, though it may be all the property that the debtor owns, the creditor may-reach it, and condemn it to the satisfaction of his debt by this-process, unless the debtor can claim the protection of the Constitution.

Though a garnishment is not an execution, it is in the nature-of an execution. It is a means provided for obtaining satisfaction of the judgment of the creditor out of the property of the debtor. The chose in action is not sold under the garnishment process, but it is seized in the hands of him who owes the debtor, and the debtor is deprived of it, and the creditor gets the fruit of the deprivation, as effectually as if it were sold on execution in satisfaction of his judgment.

The exemption of the chose in action cannot be claimed under the strict letter of the Constitution, but is it not within its spirit and intention ? Exemption laws are liberally construed.

The Constitution of North Carolina exempts from execution “personal property of the value of five hundred dollars, to be selected by the debtor.” In Frost v. Naylor, 68 N. C., held that a chose in action is property, and, if selected by the debtor, it must be exempt. In that ease there was an attempt to reach the chose in action, and condemn it to the satisfaction of the judgment of the creditor, by a proceeding in the nature of our garnishment process. Freeman on Executions, sec. 237.

In this case the petition shows that the insured property was claimed by the appellee as exempt from execution, and that the debt garnisheed was the amount of compensation allowed him by the insurance company for the loss of the property by fire.

The property being exempt, it is but reasonable that the compensation for the loss, which represents the property, should also be exempt. Strouse’s Executor v. Becker, 44 Penn. State B., 206 ; Houghton v. Lee, 50 Cal., 101.

Affirmed.


text:
    Bushey et al. vs. Reynolds et al.
    1. Pleading : Certainty, etc.

    The common law rules in regard to certainty in pleading, and construing the same adversely to the pleader, are abrogated by the Code of Practice, which requires that pleadings shall be liberally construed.
    2. --.
    Where a good defense is defectively pleaded, objection should be taken by a motion to have the answer made more certain and. definite, and not by demurrer.
    3. Sureties : Plea of failure of consideration by.

    An answer by sureties on a promissory note, that they executed the same upon the sole consideration that the payee was to advance their principal a certain sum of money, which lie failed to do, and retained the note as collateral security on other transactions, presents a sufficient defense upon demurrer.
    APPEAL from Benton Circuit Court.
    Hon. J. M. Pittman, Circuit Judge.

      Rose, for appellant.

      J. L). Walker, contra.

   Walker, J.:

Bushey and Druker brought an action of debt against W. W. Beynolds & Bro., Bobert S. Hynes and Oliver C. Young, upon the following note:

St. Louis, Mo., March 13, 1874.

Ninety days after date, we, or either of us, promise to pay to the order of Bushey and Drulter, the sum. of two thousand dollars, for value received, negotiable and payable without defalcation or discount at the Bank of Commerce, in the city of Saint Louis, Missouri. W. W. Reynolds & Bro.,

Robt. S. Hynes,

O. C. Young.

W. W. Reynolds & Bro. answered separately, and judgment for plaintiffs was rendered against them.

Hynes and Young filed the following answer:

And the said defendants; Oliver C. Young and Robert S. Hynes, for answer to the complaint of the plaintiffs say, that the said plaintiffs ought not to have or maintain their action aforesaid against them, because, they say: That they executed the instrument sued on as the securities of the said W. W. Reynolds & Bro., and that the sole consideration, for the execution thereof by these defendants, was the agreement on the part of said plaintiffs to advance to the said W. W. Reynolds and Francis T. Reynolds the sum of two thousand dollars in money, and these defendants aver that the said plaintiffs did not advance to said William W, and Francis T. the said sum of two thousand dollars, as they’had agreed to do, but after the'execution of said instrument, based on such consideration alone, and the delivery of the same to plaintiffs, without the consent of the defendants, retained' the instrument sued on, as a collateral security on transactions other than such as the original agreement and contract.”

To this answer plaintiffs filed a general demurrer, which was by the court overruled. '

The case was, upon evidence, submitted to a jury, who returned a verdict against the defendants, Reynolds & Bro., and in favor of the defendants (securities), upon which judgment was rendered.

Plaintiffs filed a motion to set aside the verdict and grant them a new trial, and'stated for cause, that the court erred in overruling the demurrer to defendants’ (Young and Hynes’) answer. The motion was overruled; plaintiffs excepted, and appealed.

The sole question to be determined is the sufficiency of the answer. Plaintiffs insist that the answer is not sufficient.

First — Because there is no direct allegation that the alleged contract to advance to Reynolds & Bro. $2,000 was made.

Second — That the negative allegation that the $2,000, were not advanced to Reynolds & Bro., did not exclude the conclusion that part of that sum might have been advanced.

Under the common law rule, that the pleading should be most strongly construed against the party ■ pleading, the objection might be sustained. But even under the common law practice, upon general demurrer, certainty to a certain intent in general is all that could be required; 1st Ch. PI., page 234; Gould’s PL, page 82.

But these rules of pleading have been, in effect, repealed by our Code Practice, which provides that the pleadings shall be liberally construed; Gantt’s Digest, sec. 4601.

All of the courts in the States, where the Code Practice has been adopted, recognize this change in the rule of construction.

Thus it was said, 28 Wis.: “The stern rule of the common law is repealed, and by the Code in its place, a more beneficial one has been enacted ;” 39th New York, 436 : “It is not true under the Code, that if there be uncertainty in respect to the nature of the charge, it -is to be construed strictly against the pleader; they must be liberally construed, with, a view to substantial justice ;” 16 Wis., 504 : “ Contrary to the common law rule, every reasonable intendment is to be made in favor of the pleading.”

We need not multiply decisions to show that such is the liberal rule of construction to be given to pleadings under the Code Practice.

These defendants plead that they executed the note sued on, as the securities of W. W. & F. T. Reynolds, and that the sole consideration for the execution thereof, by them, was the agreement, on the part of plaintiffs, to advance to W. W. Reynolds & Bro. $2,000 in money. This is what they say: It is not certain whether this agreement was made by the plaintiffs with defendants,' or with Reynolds & Bro., but as they positively state that they became securities upon the note, in consideration of this agreement alone, it is just as fair to presume that the agreement was made with them, as with Reynolds & Bro.

But if we are to indulge every reasonable intendment in favor of the pleading, as held in Moore v. Gilman, 16 Wis., 504, we should hold in favor of the pleading. We are not sure, however, but that the court in this case use terms stronger than we would be willing, as a general rule, to indulge, in construing the pleadings.

But we may well follow the statute, and give it a liberal and fair construction. Sec. 4601, Gantt’s Digest, provides, that “for the purpose of construing and determining the effect of the pleading, its allegations shall be liberally construed, with a view to substantial justice between the parties,” looking to the contract, and the effect of it upon the securities when about to become such. It is not a matter of much significance whether they were induced to become securities, in consideration of an agreement made with themselves, or with Reynolds & Bro.; for, whether the one or the other, it was, according to their plea, the consideration, the sole consideration, which induced them to become securities for Reynolds & Bro. They may, and it is but fair to presume they did, suppose that with the money advanced to Eeynolds & JBro. they would so use it as to be enabled to replace the sum advanced when due ; to refuse to comply with the agreement, might lessen the ability of Eeynolds & Bro. to pay, and thereby increase the liability of the securities to pay.

It is a well established rule that any, even a slight change, in the liability of the security, by a change of the time, or terms of his undertaking, will discharge him from further liability; so held in Wilson v. Tebbetts, 29 Ark., 588. This change, in most instances, arises out of the transactions between the creditor and the principal debtor. This, however, is not strictly of this class of cases, but it is a case where the securities claim that they executed the note as security upon a consideration and inducement to become such security, under an agreement, which they say was the consideration upon which they were induced to become security.

If such was the case, and plaintiffs failed to comply with their contract, the consideration upon whieh.it was entered into by the securities had failed, and they have a right to stand on the terms of their agreement, and to plead a non-performance of it in discharge of their liabilities.

Chitty, in his work on contracts, 11th ed., vol. 1, p. 777, sustains this position, and cites several cases, one of which was much like the present. A note was given by a security upon an agreement to advance money; the money was advanced, but not upon the terms agreed upon, and it was held that the security was discharged.

We have been induced to consider the effect of the contract, as between the security and the creditor, apart from the joint acts of the principal debtor and the creditor.

But when we consider the transaction as disclosed by the answer, it is most probable that the notes were siibsequently taken as collateral security, under some agreement between Reynolds & Bro. and plaintiffs, and if so, by such change the securities were released.

But be this as it may, and considering it to be true that the pleadings.were not sufficiently certain in this respect, as well as in those relied upon by counsel for plaintiffs, it was a defense defectively stated, which, under the Code Practice, could not be reached by demurrer, but, under the provisions of sec. 4618, Gantt’s Digest, should have been corrected by motion to the court, to require the defendants to make their answer, in the parts objected to as uncertain or insufficient, certain and definite, by amendment.

This is the Code Practice in such cases, and it supersedes the practice of demurring, in all except the enumerated cases, under sec. 4564, Gantt’s Dig., which limits demurrers to cases in which the facts stated do not constitute a cause of action.

Sec. 4565, in cases of general demurrer, limits the objection by demurrer, to pleadings which fail to state facts sufficient to constitute a cause of action.

In the case of Ball et al. v. Fulton County, decided at the last term of this court, the Code Practice, in regard to defective pleadings, was considered, and it was in that case held, that if a good cause of action, or of defense, is defectively, or insufficiently stated, the defect is to be reached by motion to have the pleading amended, so as fully to present the cause of action or defense. But if the defect be such as could not be cured by amendment, then, the defect should be reached by demurrer.

Mr. Pomeroy, in his work on remedies and remedial rights, sec. 548, says: “The Code clearly intended to draw a broad line of distinction between an entire failure to state any cause of action or a defense on the one side, which is to be taken advantage of by demurrer, and the statement of a cause of action or defense, in an insufficient, imperfect, incomplete, or informal manner, which is to be corrected by a motion to render the pleading more certain by amendment.”

The author then cites numerous decisions to sustain the general proposition, and at sec. 549, says: “The true doctrine to be gathered from all of the cases is, that if the substantial facts, which constitute a cause of action, are stated in the complaint, or, can be inferred by reasonable intendment from the matters which are set forth, although the allegation of these facts is imperfect, incomplete or defective, such insufficiency pertaining to the form, rather than the substance, the proper mode of correction is, not by demurrer, nor by excluding the evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment.” See also Newman Plead, & Prac., 664.

In the case under consideration, the objection is, that the answer did not disclose writh certainty, with whom the agreement to advance the $2,000 was made.

This certainly could by motion have been amended; and*so, as to the breach of the contract, that the averment that $2,000 were not advanced, did not exclude the conclusion that part of it may have been paid, could readily have been corrected.

The corrections under the Code Practice could only be made upon motion to have the pleading amended, and not upon demurrer.

It was therefore not error in the court to overrule the demurrer. Let the judgment be affirmed.


text:
    Keith, adm’r, vs. Parks, adm’r.
    Administration: Effect of a failure to present a judgment within one year.

    A judgment recovered during the life of an intestate, which was a lien on land, and entitled to be classed in the third class, loses its priority, if not presented to th^ administrator within one year, and should be classed in the fifth class.
    APPEAL from Lafayette Circuit Court.
    Hon. Myron D. Kent, Circuit Judge.

      Williams & Battle, for appellant.

      Wassell & Moore, contra.

   Walker, J.:

The matei’ial facts are, that the intestate of A. J. Keith recovered judgment against Fort, on whose estate Parks administered. Fort owned real estate upon which the judgment was a lien. After the expiration of one year, and within two years after administration upon the estate of Fort, Keith probated, and presented the judgment as a claim against Fort’s estate for classification and allowance. The Probate Court classed the claim in the" fifth class. Keith appealed to the Circuit Court, and upon a trial in that court, the claim was again classed in the fifth class, and Keith has appealed to this court.

The proper classification of the claim is the sole question at issue. Keith contends that the claim should have been classed in the third class, and, in support of this position, cites the statute, which provides that judgments rendered against the deceased in his life time, and which are a lien upon the lands of deceased, shall be classed in the third class.

The counsel for Parks admit this to be true, but insist that as the claim was not presented for allowance and classification until after the expiration of one year from the grant of administration, the claim lost its position as a third class claim, and should be classed as of the fifth class, under that provision of the act which declares that all such demands as may be exhibited after the end of one year, and within two years after the first letters granted on the estate, shall be classed in the fifth class.

The Probate Court, and the Circuit Court, allowed the claim and placed it in the fifth class; in doing which, we think there was no error.

It is true that judgments, to which liens on land attach, are classed in the third class for payment; but the presentation of the claim for allowance and classification must be made within the first year after the grant of administration, or the claim will lose its prior right to satisfaction as a third class claim; because, by express provision of the statute, all of the claims presented and classed in the first year, are to be paid before those presented and allowed in the second year are paid; after the first year, they are classed as fifth class claims.

A settlement is required to be made with the administrator, at the first term after one year from the grant of administration. The balance found in the hands of the administrator, is ordered to be paid to the creditors who have presented their claims, and had them allowed and classed within the first year. If any claim has been presented but not allowed, and its allowance contested, a fund is reserved in the apportionment for its .payment, if there are funds on hand to pay a claim of that class. Claims are ordered to be paid, giving priority of payment according to classification, in the order of preference.

If there is money in the hands of the administrator sufficient to pay all of the claims of any one class, they are to be paid; after which, if there is a balance, but not enough to pay all of the next class, the payment is to be made pro rata, and so on until all of the claims presented within the first year are paid.

No claim, not even one of a preferred class, not presented for payment, is entitled to payment until after all of the claims presented within the first year are paid.

The claim loses its right to priority of satisfaction by failure to present it in time.

Such was evidently the intention of the Legislature, as much so as if the statute had in terms said a judgment creditor, who has a lien upon land, shall have a right to satisfaction of his claim, as a third class claimant, provided he presents it within the first year after the grant of letters of administration, but if he fails to present his claim until after the first year, then his claim 'shall be classed and paid as a fifth class claim.

Let the judgment be affirmed.