text:
    Abbott v. Rowan.
    Pleading : Exhibits — Effect of

    The Civil Code [sec. 4599, Qannt’s Dig.~\ requires a pleader to malee a bond, bill, note, or other writing which is evidence of indebtedness and the foundation of the action, “a part of the complaint,” by filing it; and on demurrer it may be considered as part of tbe record. When the action is not founded upon, the instrument as evidence of indebtedness, but the instrument is merely-relied upon, it must still be filed [sec. 4,600] but the plaintiff has no right by reference, to make it part of the pleading, and it cannot be noticed on demurrer further than to explain allegations — not to supply or contradict them.
    Same : Reply.

    A reply filed when none is authorized by the code should be stricken from the files.
    Bankruptcy : Damages for breach of covenant, provable in

    Damages for breach of covenants are provable against the estate of a bankrupt.
    Vendor and Vendee: Covenant of warranty, etc., when broken.

    Where a grantor conveys by deed with covenant of seizin, land which belongs to the government or to a stranger in possession, the covenant is broken as soon as made,, and the grantee may sue at once for damages for the breach. But upon a covenant of warranty, where any thing passes to the vendee, no-action can arise until eviction or its equivalent.
    As to a vendee’s rights under a covenant of warranty where no title passes, nor possession taken of land held adversely, quere.

    APPEAL from Arkansas Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Pindalls for appellant.

      Gibson & Pinnell, contra.

   EakiN, J.:

Rowan sued Abbott at law, for breach of covenants in two deeds, conveying certain lands to the former, with the usual covenants of seizin, freedom from incumbrances, and warranty of title.

The complaint freely indulges in all the latitude given by the code. It does not set forth the covenants either in the same words, or substantially, but simply alleges the purchase, and that the lauds were conveyed to him “by deed of warranty” and makes the deeds part of the complaint. The consideration is set forth, and the breach alleged is this, that the lands were at the time, the property of the United States, being unimproved, and in the actual possession of neither party; that they were afterwards taken up by valid homestead entries of other parties under the laws of Congress. There were other charges of false and fraudulent representations as to title, inducing the purchase. The complainant claimed his purchase money with interest.

Defendant moved the court to compel complainant to make the complaint more definite and certain, because :

1st. It did not show whether plaintiff relied on the covenants or the false representations :

2d. It did not show».disseizin of complainant, as to when, by whom, and in what manner it was done, whether by judgment of a legal court, or by compromise or collusion, and

3d It did not show with sufficient certainty, facts and circumstances to give cause of action.

Whereupon, as the record shows, the complainant declared in open court that he elected to “stand on the covenant of warranty in said deed,” and dismiss all claim on the false representations and deceit. This was taken down by the clerk and thereupon the defendant’s motion to make the complaint more certain and definite was dismissed.

Complainant then filed an amended complaint expressive of his intention ; and without setting out the covenants says, that “he relies entirely upon the warranty in the deeds made part of the original complaint and that he does not intend for this suit to be in the nature of an action on the case, but in the nature of covenant, and only asks that he may have judgment against defendant for the amount of money be paid” and interest.

Being thus advised, by reference to the old familiar forms of Action, of what the plaintiff meant, and being directed to ■sources of further information, to-wit: the deeds filed, the defendant might have ascertained, as he doubtless did, that in the deeds, which are alike, he had used the statutory words of •covenant “grant, bargain, sell and convey,” and had specially •covenanted that he was lawfully seized of the lands in fee simple ; that they were free of incumbrances, and that he had bound himself to warrant and defend the title against the lawful claims of all persons whatsoever. There might have been some uncertainty in his mind pei'haps as to which of the warranties the plaintiff relied upon, but he answered and thereby waived all further objections.

These proceedings are strongly suggestive of the primitive ■days, when all altercations before the court, between suitors and defendants, were ore terms, and taken down in the third person by the clerk. They made an issue, however, with tolerable precision, deriving their certainty chiefly from the reference to the old common forms of action — now abolished. The Civil Code (see Sec. 4599 Gantt’s Digest) requires a pleader to make a bond, bill, note, or other writing which is evidence of indebtedness, and the foundation of the action “a part of the complaint” by filing it. In such cases, upon demurrer, the court may consider the paper filed as part of the record. It has been considered loose practice, however, to plead in this way, and upon the motion to make more definite, the court should have ruled the plaintiff to set forth in the body of the complaint, in a clear succinct manner, everything necessary to make his cause of action complete. The failure to do so was not error, however, and, if it were, it is cured by the answer. It is in the power, and is the duty of the courts, to educe from the code and settle by practice, new forms of pleading in accordance with its genuine spirit. But this falls; within their discretion.

An important distinction is to be noted in passing. (Ib.,. 4600.) When the action is not founded upon the instrument, as evidence of indebtedness, but when the instrument is merely relied upon, it must still be filed; but the plaintiff has. no right, by reference, to make it a part of the pleading, and it cannot be noticed on demurrer any further than to explain allegations — not to supply them, nor should it be noticed, on demurrer, to contradict them even, since, in such cases, the instruments are essentially evidence and no part of the pleading. In the first class of cases the filing and making them a part of the pleading, places them in the position they would! have had at common law if heard to be read in response to a. prayer of oyer. In the latter class they are simply required to be filed for information to the court and suitors in advance*

In this case the written covenants are the foundation of the action to recover money, and might, at common law, have been the subject of oyer. The allegation is that plaintiff purchased by warranty deed. The court could understand that, there were some covenants in the deed to warrant and defend the title, and the deeds themselves, made part of the pleadings,, might supply more definite information. Orderly pleading,, and the dispatch of business will, in general, however, be promoted by requiring the complainant, upon motion for rule, to insert in the body of his complaint, as at common law, all that, is necessary to show his cause of action, and not drive a defendant to search voluminous documents or obtain explanations of record, before he can be well advised of what he must answer. Thus only by wise and prudent co-operation on the part of the Circuit Courts with the spirit and purpose of the new procedure, can the experiment be fairly tried of remodeling the formal modes of arriving at issues of law and fact, and crystalizing into the practice new forms embracing only matters of substance, and better adapted to modern convenience, "but insisting upon that much. This effort is due from the judiciary to the legislative department, and if, after all, it may be found best to return to the old forms of action, divested of excrescences and absurdities, the Legislature may be trusted "to perform the work. Until that is done, this court will not interfere with the discretion of the Circuit Courts within the latitude which the Code allows, especially where the defendant has answered and gone to trial on the merits.

The answer admits the execution of the deeds, but denies "that the consideration was paid in full, or that the lands then belonged to the United States. By way of further defense, 'defendant says that he was duly declared a bankrupt on the 13th day of October, 1868, and discharged on the 23d of •July, 1869.

It appears that the deeds were executed respectively on the 51st of August, 1861, and 7th of March, 1863.

The plaintiff filed a reply, which not being authorized by the Code, should have been stricken from the files.

The cause was submitted to the court, sitting as a jury, which found for the plaintiff, and rendered judgment for the -sum of $1,474.36. There was a motion for a new trial overruled: bill of exceptions, and appeal granted.

The evidence showed that at the time of the execution of the ■deeds, the title to the property was in the United States, and that neither party had ever taken or attempted to take possession. At the time of the suit a part had been entered by a third party under the laws of the United States, as a homestead, and was in his possession. Pending the suit the balance had been entered and occupied by still another party.

The covenants for seizin and against incumbrances, (if the latter was broken at all) were broken at the time of the conveyance, and damages might have been proven in bankruptcy. The remedy on them was clearly barred.

With regard to the covenant to warrant and defend the title, it was personal between covenantor and covenantee. It might, have run with the land if any land, or interest in land or seizin of land, had passed by the deed upon which it could attach. There being none, no lawful possession could have been taken, and as held by this court in Hendricks v. Kezee et als., there was nothing to defend; and there could be really no eviction. Where anything passes to the vendee, there must be eviction or its equivalent, before an action can ai-ise on a covenant of warranty. Where no title passes, nor possession is taken of lands held by a stranger, there have been two lines of decisions totally at variance and antagonistic to each other, with regard to the rights of a covenantee under a covenant of warranty.

In some it is held that as there never was possession, nor could not be without trespass (which the law would neither require nor sanction), there could never be eviction, or its equivalent, and that no cause of action could arise on the warranty at all; but that a purchaser must protect himself by taking covenants of seizin and right to convey, and against in-cumbrances, or be helpless, except perhaps, by action for money paid without consideration.

In other cases it has been held that the scope of a warranty of title is more extensive than a mere obligation to defend against eviction, or make compensation in damages. That it implies that there is such a title existing as the deed pretends, to convey, so far, at least, as to absolve the covenantee from the necessity of first entering and tüen yielding to title paramount, which latter course would be equivalent to eviction, and that an action would lie at once. The matter is very ably discussed, and the authorities upon both sides collected in a recent case before the Commission of Appeals of New York (65 N. Y. Rep., 499, Shuttuck v. Lamb.) In this case a dissenting opinion was delivered by Commissioner Dwight in support of the first view above mentioned. It was an action upon covenants for quiet enjoyment, and to warrant and defend the title, which covenants are essentially the same. (See Raule on Covenants for Title, p. 215, and cases in note.) The court held that if the covenantee is kept out by superior title, it is equivalent to an eviction, and gives effect to the covenant.

These two lines lead to different poles, totally at variance. In the first view there is no cause of action at all upon the covenants. In the second a cause of action arose at once, without any evietion, and in the latter case the time of discovery of the paramount title is not important.

In the case of lands held by the United States, it may be remarked that the reason of the general rule requiring eviction before suit on warranty does not apply. Ordinarily, if one be not evicted by title paramount, his possession will ripen into a title, and until eviction, non constat that he will lose it. But in the case of government lands, there can never be such adverse possession as will give title. Which ever line of decisions may be the better founded, either will apply more strongly to the case of lands held by the United States than to that of lands held by title paramount in the hands of a third party.

Without further discussion of a point which does not require a decision in this case, it suffices to say that in either view of the effect of the warranty, this action could not be maintained upon that.

If the former line of decisions be correct, there never was any cause of action on the warranty. If the latter be better founded, the cause of action arose at the time of the execution of the deeds, and like the covenant for seizin, is barred. The same reasoning applies to the statutory covenants embraced in the words “grant, bargain and sell.”

It is unnecessary to notice divers other grounds of error alleged to have been committed. They all depend upon the principles above discussed, and stand or fall accordingly.

The court, for the reasons above indicated, erred in finding for the complainant, and rendering judgment in his favor.

Reverse the judgment, and remand the cause for a new trial, and other proceedings consistent with law and this opinion.


source: Caselaw Access Project

author: English, C. J.:

license: Public Domain

text:
    Johnson v. Godden, Admr., et al.
    G-aming Act : Burden of proof under

    One who pleads the gaming act in defense against a note and mortgage fair on. their face, must prove the defense by clear and strong proof!
    Dbed : Acknowledgment — What necessary in

    An acknowledgment by a grantor that he executed the deed, or mortgage, for the purposes therein expressed is not sufficient. The word “consideration” required hy the statute, is material, and if omitted and no other word of similar import is substituted in the acknowledgment, it is fatal.
    Vendor’s Lien : Waived hy taking mortgage

    When a vendee of lanJ by title bond resells to his vendor and restores to him the bond and possession of the land, he has an equitable lien on the land for the purchase money, but he waives it if he takes a mortgage for it.
    APPEAL from Arkansas Circuit Court, in Chancery.
    Hon. J. A. Williams, Judge.

      Johnson & Dooley for appellant,

      Pindalls, contra.

   English, C. J.:

This was a bill to foreclose a mortgage, etc., brought in the Circuit Court of Arkansas county, by Charles C. Godden, administrator with the will annexed, of Luther E. Frazier, deceased, against William R. Hagler and wife, Caroline, and Edward Johnson.

The material allegations of the bill as amended, are, that on the 31st day of December, 1860, William R. Hagler sold to Luther F. Frazier, the southwest quarter of section 34 T.4. S. R. 3 W., except five acres in the southwest corner of the tract, for $2,500, of which Frazier paid |1,200 in cash, and gave Hagler two notes for balance of purchase money, one for $500, payable 25th of August, 1861, and the other for $800, payable 1st of April, 1862 ; and Hagler executed to Frazier a bond to make to him a title on the payment of the two notes, a copy of which is exhibted.

That on the 22d of January, 1862, after Frazier had about paid said notes, he sold said lands back to Hagler for $2,556, payable in five years, took his note for the purchase money, and a mortgage on the land to secure it, and surrendered to him his bond for title, and put him in possession of the land. The .note and mortgage with certificates of acknowledgment and registration are made exhibits.

That after Frazier resold the land to Hagler, took said note and mortgage, and put him in possession of the land, he removed to the State of Senoloa, Mexico, and died in 1864, having made a will which was there duly probated.

That on the 10th of March, 1869, complainant Godden was appointed administrator with the will annexed, by the Probate Court of Arkansas county, of Frazier, and duly qualified as such.

That Hagler had paid nothing on the note, and the mortgage remained in force.

That in the year 1865, Hagler being largely in debt, for a pretended consideration conveyed said tract of land (with other lands then owned by him) to one Thomas Quinn. That in making said pretended sale and conveyance, he combined with said Quinn, defendant Edward Johnson and others, to defraud his creditors; and in furtherance of this design, Quinn, for a nominal consideration, conveyed said land to Johnson, and he conveyed half of the land to Hagler’s wife, Caroline. That Quinn paid Hagler nothing for the land, and that neither Hagler nor his wife paid Johnson any consideration for the half of the land conveyed by him to the wife.

Prayer for decree against Hagler for the amount of the note, principal and interest, secured by the mortgage of the land, that the debt be declared to be a lien on the land, and that the mortgage be foreclosed, and the land sold to satisfy the decree, etc., and for other relief, etc.

JohnsoN answered the bill. He admits the execution of the note and mortgage by Hagler, but denies that the mortgage and certificate of acknowledgment are sufficient to defeat his-rights, etc.

Avers that the note and mortgage were in part for money won by Frazier of Hagler at the gaming table — that they were for a gambling consideration, etc.

Denies all fraud, collusion or confederation with Hagler and wife, or others, to defraud the creditors of Hagler. Denies that he purchased the lands of Quinn, although the deed was executed to him by Quinn. Avers that he purchased the land of one McEwen, who had advanced money to Quinn to enable him to pay Hagler for the land, and that Quinn purchased the land of Hagler nearly eighteen months before respondent purchased it, and was in possession of it, receiving the rents and profits when respondent purchased. That he purchased the land in good faith and for a valuable consideration, knowing at the time that Frazier had won the amount of the note of Hagler, and that the note and mortgage were executed for a gambling consideration.

The appearance of Hagler and wife was entered by an attorney claiming to represent them, and a decree pro confesso rendered against them. Afterwards, the decree was set aside on their motion, and a showing that process had not been served upon them, and that they had not authorized their appearance to be entered.

Hagler answered the bill. He admits that he executed the note and mortgage to Frazier, but avers that part of the consideration thereof was for money won of him by Frazier at gaming.

Denies all fraud or collusion with Quinn, Johnson and Mrs. Hagler to defeat or defraud his creditors. Denies that he ever sold the land to Johnson, or that he knew any thing of the sale until some time after it was made.

Admits that he was considerably in debt, but denies that he sold the land to Quinn for a pretended consideration, and avers the truth to be that he sold to him for a valuable consideration.

A subpoena was issued for Mrs. Hagler, and returned by the. sheriff served by leaving a copy with her husband. An alias, was issued, upon which a like return was made. She did not answer.

The cause was submitted on the pleadings and exhibits, and. the depositions of witnesses on file, and the court found, first: that there was no consideration from Quinn to Hagler fjor the deed executed by Hagler and wife to Quinn for the trjict of' land in controversy, and that the deed was void. Second,, that the consideration from Frazier to Hagler for “said land,, was good and valid,” wherefore the court found the issues in the cause for complainant.

The court decreed that the deed from Hagler and wife to-Quinn be canceled and held for naught; that complainant recover of Hagler the amount of the principal and interest due. upon the note, and declared the same to be a lien upon the land in controversy; that the mortgage be foreclosed, and condemned the land to be sold by a commissioner to satisfy the decree, etc.

Johnson excepted to the decree and appealed to this court.

Hagler did not appeal, and as to Mm the decree must stand.

1. “All judgments, conveyances, bonds, bills, notes, securities and contracts, where the consideration, or any part thereof is money or property won at any game, or gambling device, or any bet or wager whatever, or for money or property lent to be bet at any gaming or gambling device, or at any sport or pastime whatever, shall be void.” Gantt’s Dig., Sec. 2987.

The note secured by and described in the mortgage follows:

“$2,556.00. On or before the 22d day of January, 1867, (five years from date), I promise to pay to Luther F. Frazier, or order, the sum of twenty-five hundred and fifty-six dollars, for the S. W. quarter of section 34, township 4 S. range, 3 W., in the county of Arkansas, State of Arkansas, except five acres in the S. W. corner of said quarter. Witness, my hand -and seal, this 22d day of January, A. D. 1862.

“Witness: “W. R. Hagler, [seal.]”

Jos. H. Maxwell.”

The note being fair on its face, and the mortgage upon the land described in the note being in the usual form and duly executed, the burthen of proving that part of the consideration of the note and mortgage was for money won by Frazier of Hagler at gaming, was upon appellant, who claimed part of the mortgaged premises under the mortgagor, and pleaded the gaming act. He was obliged to establish the defense by clear •and strong proof. 1 Jones on Mortgages, Secs. 622, 644.

It was proven that Frazier, while he lived about DeWitt, near which the land in controversy is situated, was a professional gambler, and that lie and Hagler frequently played' poker, and that be was an overmatch for Hagler, who seems to have had a passion for gaming, though not of that profession.

Hagler, whose deposition was taken for the defense, is the only witness who swore directly, positively and accurately that part of the consideration of the note and mortgage was fon money won of him by Frazier at gaming.

He swears that when he purchased the land in controversy-back from Frazier they had a final settlement; that Frazier-had paid him on the land, a negro woman at $800, in money $200, and that he allowed Frazier for improvements made by him on the place $600, making in all $1,800 ; that he owed Frazier $756 for money won of him by Frazier at poker, and that this sum was included in the note, which, added to the $1,800,. made $2,556, the amount of the note, and the mortgage on the-land was given to secure it.

His deposition was taken on the 5th day of March, 1873,

By Sec. 22, Art. YII. of the Constitution of 1868, then in force, it was provided that: “In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with, or statement by, the testator, or intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court.”

This provision was continued in force by the schedule o'f the present Constitution, Sec. 2, subject to amendment or repeal by the Legislature.

Here, without being called by the administrator of Frazier, or required to testify by the court, Hagler testified on his own behalf, directly to a transaction between himself and Frazier, material to the issue, when Frazier was dead and no longer able to speak for himself. He sought to destroy a solemn instrument executed by himself to Frazier when living, and expressed on its face to be for purchase money 'of land, by swearing that there was included in the instrument a sum of money won of him by Frazier at a game of cards.

We suppose thé court below in making up its finding upon the gaming issue, did not attach any weight to the above portion of Hagler’s deposition, and we shall certainly not reverse the decree on this issue, so far as it affects appellant, who claims the benefit of the same defense by regarding Hagler’s statement as true, and making it counterbalance other evidence in conflict with it.

There were other depositions vaguely tending to prove that the note was to some extent tainted with a gaming consideration, but the widow, a married daughter- and a son of Frazier, who lived with him on the land in controversy at the time he resold it to Hagler, positively deposed that Hagler agreed to pay Frazier $2,500 for the land, and $56 for corn, fodder and household furniture, and that the note was made for the two sums. It was proven that the daughter and son were but children from nine to eleven years old when the transaction occurred, but they were not otherwise impeached, nor were they cross-examined as to the sources of their knowledge.

Upon the whole we find no such preponderance in favor of the defense, on the gaming issue, as to warrant us in reversing the finding of the Chancellor.

2. The mortgage was recorded 23d January, 1862, the day after its execution, upon a defective acknowledgment.

The certificate of acknowledgment taken before the clerk of the Circuit Court of Arkansas county, is as follows :

“Personally appeared before me, Joseph Maxwell, clerk, etc., etc., William R. Hagler, the grantor in the foregoing mortgage, who, being personally well known to me, acknowledged that he signed, sealed and delivered the foregoing instrument as Ms own act and deed, and for the purposes therein expressed.

“In testimony whereof,” etc.

In order to admit the mortgage to record the certificate should have shown that the grantor acknowledged that he had executed the same “for the consideration and purposes therein mentioned and set forth.” Gantt’s Digest, Secs. 846, 4287.

In the above certificate the material word ‘ ‘ consideration’ ’ is omitted, and no other word of similar import is used, and the omission is fatal, as indicated in the case of Blackburn et al. v. Randolph et al., M. S., where there was a like omission. See also Little, trustee, v. Dodge, guardian, etc., 32 Ark., 458, and previous cases cited.

The mortgage, though good between mortgagor and mortgagee, was not a valid lien upon the lands as against subsequent purchasers, etc., because not legally recorded. Jarratt et al. v. McDaniel et al., 32 Ark., 602, and previous cases cited.

When Hagler sold the land to Frazier he retained the legal title, and bj^ means of the bond for title conveyed to him an equitable title. When Frazier resold the land to Hagler, took his note for purchase money and put him in possession, had he done nothing more he would have had an equitable lien upon the land for the purchase money, which would have been valid against any person subsequently purchasing the land of Hag-ler with notice. But by taking the mortgage from Hagler upon the land to secure the payment of the note, he waived his equitable lien, and had to rely upon the mortgage; and failing to procure the mortgage to be properly acknowledged and legally recorded, it was no lien against a subsequent purchaser. Neal v. Speigle, M. S.

The deed from Hagler and wife to Quinn is not in the transcript, though it must have been before the court below at the bearing, for the decree recites that it bore date on the 3d day of November, 1875, and the court found that it was executed, without consideration, and'held that it was void, not only as to Quinn but' as to other persons claiming through or under the-deed.

On this branch of the case Hagler testified as follows :

“Edward Johnson has made a deed to one-half of the place to my wife, Caroline. The consideration was understood between Quinn and myself, and also by Johnson and myself. Johnson only complied with the contract between Quinn and myself. When I made the deed to Quinn for the land in controversy, it was the express agreement and understanding that Quinn was to deed one-half of the land back to my wife. I did not pay Johnson, nor did my wife pay him anything for-one-half of the land. Johnson, in making the deed to my wife, was only complying with the agreement entered into between Quinn and myself. I came to DeWitt to bring suit against Johnson for the land when he deeded my wife one-half' of the land as a compromise. The contract between Quinn and myself was that he was to pay the taxes on all of the-lands mentioned in the deed from myself to him for three-years. He never made me a deed back for the lands as lie-agreed. He drew a pistol on me, and told me I could help-myself. It was after Johnson bought the land that Quinn told me I could help myself. Next week after this Quinn was-killed. I did receive a consideration for the lands — that is„ Quinn agreed to pay the taxes on the lands, and I consider that, a consideration. I did not receive any money in hand for the-land. When I received the deed from Johnson I considered it-a consideration, and the agreed consideration for the land and. a compliance with the contract between Quinn and myself.”

We understand from this confused -statement that Hagler conveyed to Quinn the tract of land covered by the mortgage,, and other lands, upon the consideration that Quinn was to pay the taxes upon all of the lands embraced in the deed, for three-years, and re-convey to Mrs. Hagler one-half of the lands that Quinn, without making the promised conveyance to Mrs.. Hagler, sold and conveyed the lands to Johnson, who, in compliance with Quinn’s agreement, conveyed half of the lands to-Mrs. Hagler.

It appears that at the hearing of the cause Johnson read in-evidence a deed from Quinn and wife to him bearing date 18th November, 1866, which, with the certificates of acknowledgment and registration, is copied in the transcript.

By this deed the grantors, in consideration of 2,000 pound's-of lint cotton to be delivered to them at HeWitt by Johnson,, on or before the 1st of January, 1868, bargained, sold, released and quit-claimed to Johnson all their right, title and interest in and to the tract of land described in the mortgage ; and also-lots two and three in the S. E. corner of S. E. quarter of section 38, T. 4, S. E. 3 W., warranting only against persons-claiming through the grantors.

It must be borne in mind that this is not a creditor’s bill— not a bill to set aside conveyances made to hinder, delay or defraud a creditor, and to subject property thus conveyed to the satisfaction of a judgment or decree of .the creditor. (Murry v. Anthony, 11 Ark., 441; Williams v. Bizzell et al., Ib., 716), but it is a bill to foreclose a mortgage, in which the complainant asserts that the mortgage is a lien upon the land covered by it prior and superior to the title of the subsequent purchasers, who are made defendants, and prays a decree against the mortgagor for his debt, and that the land may be condemned to be sold to satisfy the decree.

If the mortgage had been properly acknowledged and recorded, it would have been a valid lien upon the land, and good against all persons subsequently purchasing from or under the mortgagor, regardless of the considerations of their deeds. But the mortgage was not legally put upon record, and was valid only between the parties, and was not a lien as against any subsequent purchaser.

This not being a creditor’s bill, it is not necessary to inquire or to decide whether the deed from Hagler to Quinn was made without consideration and for the purpose of defrauding Ilag-ler’s creditors, and whether the deed from Quinn to Johnson was infected with the same fraud.

It is alleged in the bill that Johnson had conveyed one-half of the land in controversy to Mrs. Hagler. This allegation Johnson does not deny; he denies only the fraud charged against him by the bill. It was also proven by the deposition of Hagler that Johnson had conveyed one-half of the land to Mrs. Hagler. What her rights may be we have no occasion to inquire in this appeal. She did not answer the bill, nor appeal from the decree ; nor need we decide whether she is bound by the decree upon the facts disclosed by the record. Whether Johnson conveyed to her a particular half, or only an undivided half of the tract of land in controversy, does not appear. The answers, as well as Hagler’s deposition, are loose and inaccurate.

The decree of the court below must be so modified as to exclude from the foreclosure, condemnation and sale, the one-half of the land owned and claimed by Johnson, and in other respects the decree must stand as rendered below.


author: ENGLISH, C. J.:

text:
    Berlin v. Cantrell.
    Pautií.s to Action': Married Women.

    A married, woman may sue and interplead alone, tor her separate property.
    WITNESS: Husband and wife, when competent.

    A married woman interpleading for property seized as her husbands in an action of replevin against him, is a competent witness for herself on the trial of the interplea, but her husband is not.
    Mahmed Women: Schedule of separate property.

    The filing a schedule by a femme sole of her separate property, does not aifect the common law marital rights of her after acquired husband in the property. The statute provides for scheduling by married women.
    '•Samis :-
    Property for which the scheduled property of a married woman has been exchanged, belongs to her husband unless scheduled. The schedule protects no property not mentioned in it.
    APPEAL from Jefferson Circuit Court,
    Hon. J. A. Williams, Circuit Judge.

      N. T. White for appellant.

      F. B. Martin, contra.

   ENGLISH, C. J.:

On the 12th of January, 1876, Meyer Berlin brought an action of replevin in the Circuit Court of Jefferson county, against Henry Cantrell, for one two-horse wagon, one single horse wagon, one black mare mule, one black horse, two hundred bushels of corn, and two thousand pounds of seed cotton.

The plaintiff claimed title to the property oy virtue of a mortgage with power of sale, executed to him by defendant •on the 16th of April, 1865, to secure the sum of $300 for goods, wares, merchandize and supplies furnished and to be furnished defendant byplaintiff during the year 1875 ; the debt to be paid on or before the 1st of "November of that year, and on default, plaintiff to take possession of the property and sell it. etc.

Upon complaint and affidavit, a writ of replevin was issued, and, on the execution of a bond by the plaintiff, the sheriff seized the property sued for, whereupon Ann Cantrell claimed the black horse, the one-horse spring wagon, and the two thousand pounds of seed cotton described in the complaint and writ, and delivered to the sheriff the following affidavit:

“In the Circuit Court of Jefferson county.

Meyer Berlin, plaintiff, v. Henry Cantrell, defendant.

Ann Cantrell says under oath that the black horse and one-horse spring wagon and two thousand pounds of seed cotton taken by the sheriff herein are her property, that she has the legal title to said property, and is entitled to the immediate possession of the same. Whereupon she asks that the claim be investigated and such judgment rendered as will be just and equitable.

ANN Cantbjgll.’’

Sworn to before a justice of the peace.

Thereupon the plaintiff executed a bond of indemnity to the sheriff, and the sheriff delivered to him the property claimed, as well as the other property sued for, and returned the affidavit with the writ, etc.

At the return term, the plaintiff filed the following answer to the affidavit, treating it as an interplea :

“Comes the plaintiff, and for answer to the interplea filed herein, says that said interpleader, Ann Cantrell, is now and was before the institution of this suit the lawful wife of the defendant, Henry Cantrell, and as such has no legal capacity to sue in her own name, wherefore he prays said interplea be abated, and for general relief.”

To this plea in abatement, the interpleader entered a demurrer in short, and the court sustained the demurrer.

Whereupon plaintiff filed a further answer to the affidavit of the interpleader, alleging: “That the said Ann Cantrell is now, and was before the institution of this suit, the wife of the ■defendant, Henry Cantrell, and that said Ann Cantrell has never scheduled the said property mentioned in the mortgage from said defendant to plaintiff, and the same is not her separate property. Wherefore he prays judgment for said property against said interpleader.”

The case was submitted to a jury at the May term, 1877, and a verdict was rendered in favor of the interpleader for the black horse and spring wagon, and in favor of plaintiff for the two thousand pounds of seed cotton.

Plaintiff moved for a new trial, which was overruled, and judgmenl rendered against him, in favor of the interpleader, for the horse and wagon, and if not delivered, their value, which was found by the jury to be $80, and the plaintiff took a bill of exceptions and appealed to this court.

1. The court did not err in sustaining the demurrer of ap-pellee to the plea in abatement of appellant. A married woman may sue alone for her separate property. Gantt’s Dig., sec. 4487, 4144: Countz v. Marklin, 30 Ark., 23: Trieber and wife v. Stover & Co., Ib., 731. Appellee claiming as her separate property the horse and wagon seized by the sheriff under the writ of replevin against her husband, had the right, under the replevin statute, to claim them, as she did, by affidavit delivered to the sheriff, and the sheriff, as directed by the statute, returned the affidavit, with the writ, into court. Gantt’s Dig., sec. 5044. She might, without joining her husband, have sued the sheriff and the plaintiff in the replevin suit for the horse and wagon, claiming them as her separte property (Hurshy v. Clarksville Institute, 15 Ark., 128) but she thought proper to interplead for them in the replevin suit, and her interplea was in the nature of a cross-suit for the property. If she could sue alone for the property, she could certainly interplead alone for it.

After the writ and affidavit were returned into court, the better practice would have been for the claimant of the property to file a formal interplea, asserting her right to the property, but the appellant treated her affidavit as an interplea, and pleaded to it, and it was in writing, embodied sufficient matter-to make up an issue upon, and support a verdict andjudgment. Neal v. Newland, 4 Ark., 459.

IT. It appears from the bill of exceptions that on the trial of the issue to the incerplea, appellee was sworn as a witness on her oavii behalf, and the court ruled her competent against the objection of appellant.

This was not a trial in the main replevin suit between appellant, the plaintiff: therein, and her husband, the defendant in the suit. On a trial in the main suit, she would not have been a competent witness for or against her husband.' Collins v. Mack, 31 Ark., 685. But the interplea was her suit, in which, in legal effect, she was plaintiff, and claiming the property interpleaded for adversely to both appellant and her husband, and she was a competent witness for herself on the trial of her own suit, Ib., and schedule to present Constitution Sec. 2 ; Gantt’s Dig., 248-2-3.

III. As to scheduling the wife’s property.

Appellee testified, in substance, that she was married to Henry Cantrell, defendant in the replevin suit, in the year 1872. That she was formerly the wife of Robert White, who died in the year 1870. That at the time of his death she was the owner of a bay mare and a bay colt, and after his death, on the 23d of December, 1871, she filed in the office of the recorder of Jefferson county, a schedule, claiming the mare and colt as her own individual property. Here a certified transcript- of the schedule was produced and. read to the jury,, against the objection of appellant, which follows :

State op AekaNsas,

County of Jefferson. )

Schedule of the separate property of Ann White (colored,) of said county and State, described as follows:

One bay mare about twelve hands high, and about five years old. One horse colt about two years old, bay color, ten hands high.

I, Ann White, do solemnly swear that the property mentioned above is my own separate property, and that the same was purchased with money which was acquired by my own industry and labor, and that said property, nor any part thereof, is subject to the debts of nry late husband, Robert White, now deceased, nor the property of his estate; so help mo Gfod.

ANN White.”

Sworn to before the clerk, and filed and recorded 23d day of December, 1871.

She further testified that some time in the spring of 1873, her then husband, Henry Cantrell, at her request, and as her agent, traded the bay mare described in the schedule, for the black horse claimed in her interplea. That the tráete was made for her.

That some time in the fall of the year 1873, her husband (Cantrell) traded the colt, described in the schedule, to some man in Pine Bluff, for the spring wagon claimed in the inter-plea. She directed him to trade the colt for a wagon, but was not present ivhen the trade was made. He gave the colt and $30 for the wagon ; she gave him the money to pay the difference ; it was her money, and she did not obtain it from him.

After giving the history of the cultivation and gathering of the cotton claimed by her, but which it is not necessary to state, inasmuch as the verdict was in favor of appellant for the cotton, she further testified :

That she did not know that her husband had mortgaged her black horse and spring wagon until some time in the summer of the year 1875, and as soon as she found it out, she made a fuss with him about it, and he afterwards informed her it was all right. She lived with her husband during the years 1874 and 1875, and knew he was trading with appellant, but she bought nothing from him herself. None of the property mentioned and described in the interplea was ever scheduled by her.

On the scheduling feature of the case, the court, on motion •of appellee, and against the objection of appellant, instructed the jury as follows.

(2.) “If the jury believe from the evidence that Ann Cantrell was formally Ann White, and that while she was Ann White she owned other property, which she had scheduled and recorded as her separate property, and that after she married Henry Cantrell, she either in person or by and through an agent, swapped it for other property, or sold it and invested the money received therefor in other property, it was not necessary for her to have the last mentioned property scheduled, and recorded in order to vest title thereto in her.”

(3.) “If Henry Cantrell executed a mortgage to the property in controversy when he had no title thereto, the owner of the property is in no way bound thereby, and such mortgage does not in any manner preclude the owner from asserting her right thereto.”

On the same subject appellant moved four instructions, which the court refused, and he excepted. They are as follows :

(1.) “ The law requiring married women to schedule their property, confers no rights upon an unmarried person, and if the schedule in this case was made and filed before marriage or not in contemplation of marriage, then it conferred no rights under the same.”

(2.) “ The object of the law requiring the wife to schedule her separate property is for the purpose of preventing her husband from having a fictitious credit, and to notify ail persons that the same is her own separate property, and not liable for the debts of her husband.”

(3). “If the jury find from the testimony that the property in controversy is not the property described in the schedule, but that the husband, with the advice and consent of the wife ■traded the property mentioned in the schedule, for other property, and that the wife never had the property so received ■scheduled in her own name, then in law the property is the property of the husband, and he had the right to sell the same.”

(4.) “ If the jury find from the testimony that Henry Cantrell, husband to the interpleader, did exercise acts of ownership over the property in controversy, with the full knowledge and consent of his wife, and that he did execute the mortgage to plaintiff on said property, they will find for plaintiff for such property.”

The marital rights of the husband upon the facts in evidence, hy the common law, are very plain.

Appellee claims to have been the owner of a bay mare and colt when she married Cantrell, her second husband. When Cantrell married her, and obtained possession of the property, ¡he thereby acquired an absolute title to it; and though he ■traded the mare and colt for the black horse and spring wagon, ■claimed by her in the interplea, at her request, they likewise became his property, and he had the right to mortgage them to appellant.

Such are the common law rights of the parties, and it remains to be determined how far the common law rights have been affected by legislation, constitutional provisions, etc.

Appellee married Cantrell at some time in the year 1872, and when the constitution of 1868 was in'force, which contained1 the following provision :

The real and personal property of any female in this State,, acquired either before or after marriage, whether by gift,, grant, inheritance, devise or otherwise, shall so long as she-may choose, be and remain the separate estate and pi’opertyof such female, and may be devised or bequeathed by her the same as if she were a femme sole. Laws shall be passed providing for the registration of the wife’s separate propertjr, and when so registered, and so long as it is not entrusted to the-management or control of her husband otherwise than as an agent, it shall not be liable for any of his debts, engagements, or obligations.” Art. XII, sec. 6, Const. 1868.

No scheduling act was passed under this section of the constitution of 1868, until the act of 28th April, 1873 was passed. (See Gantt’s Digest, chap. 93, sees. 4193, 4202.)

But by sec. 16, Art. XV of the Constitution of 1868, laws, then in force not in conflict with the provisions of the Constitution were continued in force until otherwise provided by the Legislature, etc. ' ■

From the adoption of the Constitution of 1868, until the-passage of the Scheduling Act of 28th April, 1873, chap. Ill, Gould’s Digest, title Married WomeN (except so much as relates to slaves) was in force. Humphries v. Harrison, 30 Ark., 88; Hydrick v. Barke, Ib., 126.

Under the provisions of that chapter the scheduling of the bay mare and colt by appellee when she was a femme sole amounted to nothing, and did not affect the marital rights of her husband. The statute (sec. 7) provided for a married WOMAN to schedule her property, and she was not entitled to the protection of the statute until she filed her schedule in the recorder’s office, etc., unless the property was secured to her separate use (sec. 8) by deeds, etc. Howell v. Howell, ad., 19 Ark., 344. Beeman and wife v. Cowser et al., 22 Ark., 432.

A woman may by ante-nuptial contract with her intended husband, limit his marital rights as to her property, and protect it from liability for his debts (Harrison v. Trader and wife, 27 Ark., 288) but there is no provision of the common law by which she can accomplish the same object by a public schedule made by herself before marriage, and the statute only provides for scheduling by married women.

So the Act of 28th April, 1873, like sec. 7, chap. 93, Gould’s Digest, provides that before any married woman shall have the benefit of the act she shall schedule her property. Gantt’s Digest, sec. 4201.

The act of December 15, 1875, (Acts of 1875, p. 172) providing for the scheduling of the personal property of married women, under secs. 7 and 8, Art. 9 of the present Constitution, was passed after the execution of the mortgage, and has no application to this case.

The bay mare and colt scheduled by the wife before marriage, were traded for the black horse and spring wagon in the spring and fall of 1873, and the property obtained by the exchange was never scheduled under any act.

If we might bo mistaken in attributing no value to the schedule made by appellee before marriage, surely that schedule could not protect the property claimed by her in this suit,, which was not included in the schedule and which she did not own at the time it was made and recorded.

In Howell v. Howell, ad., sup., Mr. Justice Scott said:

“It is plain that the true intent of the Legislature, in reference to the schedule, was not only that it should perform the office of notice to creditors and purchasers, but also the not less important one of evincing, on the part of the married woman, her election to avail herself of the benefits of the law. These benefits, for the enjoyment of which the law had also created for her ample legal capacity, were, nevertheless, but at the option of the married woman. Perhaps, having quietly surrendered to her husband at discretion, by force of the canons of the church, she might, for a time, desire no emancipation from his dominion, as that had been regulated by the common law ; but afterwards, prudential motives, in reference to herself or her offspring, might suggest the propriety of securing for herself the property she had brought into the marriage, or which had afterwards come in from her own kindred. ■This, it was the manifest intention of our law, with due regard to the rights of the creditors of her husband, to permit her to do so, at any time during coverture, so far as the same had not been disposed of by her husband, or incumbered with his debts. * * But until the filing of the schedule no right accrues to her under any of the provisions of the statute, etc., save only that in case she might be possessed of property conveyed to her in and to her sole and separate use,” etc.

So in Beeman and wife v. Cowser, et al, sup., MR. Justice Fairchild said : To enable a wife to hold property under the married woman’s law, it must be recorded as hers in the county ’where she lives, by means of being scheduled under the law, ■or by being devised, granted, decreed or transferred to her, by words that expressly set forth that the property is to be held by her exempt from the liabilities of her husband, etc.

IY. Henry Cantrell, the husband of appellee, was sworn as a witness on her behalf, against the objection of appellant, and permitted to testify, in substance, that his wife owned the bay mare and colt when he married her, that at her request, as her agent, and in her absence, he traded the mare and colt for the black horse and spring wagon claimed by her in the inter-plea, that they were her property and he had no right to mortgage them, and that they were put into the mortgage without bis knowledge and consent, and that when he found out that, they were included in the mortgage, he procured appellant to, release them, etc.

If this had been a’ trial of the main replevin suit between appellant and Henry Cantrell, he would have been á competent, witness in his own behalf, but he was not competent to give-the above testimony on the trial of his wife’s interplea, which was her suit, as above shown. Collins v. Mack, sup.

V. On the subject of the release of the property, the court instructed the jury as asked by appellant, and he does not. complain, on this appeal, of an instruction in his favor.

Appellee having failed to prove her title and right to possession of the black horse ancj spring wagon as alleged in her in-terplea, the court below,' erred in refusing appellant a new trial.

Eeversed and remanded for a new trial.


author: ITarrisoN, J.:

text:
    Hill, Fontaine & Co. v. Coolidge.
    1. Trusts: Property into which trust funds are converted, held^subject to the trusty Leonidas Johnson executed to Horner a deed of trust on his claim probated
    against the estate of Thomas Johnson, deceased, to secure a debt he owed to Coolidge, and left the claim with Horner. The deed was duly recorded. Afterwards the lands of the deceased were sold by order of the Probate Court, and part of them were purchased by Leonidas Johnson, who paid for it by receipting the administrator for the probated claim without the knowledge or consent of Coolidge. Afterwards Hill, Fontaine & Co. recovered judgment against Leonidas Johnson and had the land sold under execution to satisfy it, and at the sale bought the land. Held; that the trust on,the claim followed and attached to the land into which the claim was converted,
    2. Boha Fide Purchaser : Notice.

    A purchaser at his own execution sale is not an innocent purchaser. The ques-, tion of notice does not arise in such case.
    APPEAL from Phillips Circuit Court, in Chancery.

      Hon. J. N. Cyrert, Circuit Judge.

      Palmer — Rose for appellant.

      Tappan & Horner, contra.

   ITarrisoN, J.:

This was an action in equity by Charles R. Coolidge, as surviving partner of the firm of IT. P. Coolidge & Co., against Hill, Fontaine & Co., Leonidas L. Johnson, George E. Johnson, Mathias C. Hall and John J. Horner.

The material averments of the complaint were : That Leon idas L. Johnson and George E. Johnson, on the 17th day of July, 1871, conveyed to John J. Horner, by their deed of that date, their several crops of cotton and corn then growing on their respective plantations in Phillips county; and the said George E. Johnson, the mules, farming implements and certain other personal property on his plantation ; and the said Leonidas L. Johnson also conveyed and transferred to him the following claims that had been probated and allowed by the court of probate of Phillips county against the estate of Thomas P. Johnson, deceased, and of which he was the assignee and owner, viz: Bartley, Johnson & Co.: for 113,427.97 ; Thomas W. Stoueman ; for $2,019.23, and J. W. Roberts ; for $487.50 ; but which were described in the deed as the claim of said Leonidas L. Johnson, probated against said estate, and in the hands of Tappan & Horner, in trust to secure to A. P. Coolidge & Co., their note to them of that date for $8,000, payable on the 1st day of December, 1871, and to bear ten per cent iutei’est after maturity; and the said Horner was, by said deed, empowered, if the note was not paid at maturity, to take possession of the property so conveyed, and after giving twenty days notice by publication- in some newspaper printed in said count}'', to sell the same, including said claims, at the court house door in Helena, at public auction for cash, for the payment thereof: which deed Avas, on the 18th day of July, 1871, duly acknowledged and recorded.

That the Probate Court of said county, at the November term, 1871, made an order for the sale of the lands owned by •said Thomas P. Johnson, at the time of his death, for the payment of his debts ; which lands were particularly described in the complaint, and of which there were 1,708 acres; and in pursuance of the order, Barty Turner, the administrator of said Thomas P. Johnson’s estate, on the 15th day of January, 1872, offered the same for sale, and they were bid off and purchased by the said Mathias C. Hall and Leonidas L. Johnson— an undivided three-fourths part by Hall, and an undivided one-fourth part by Johnson — for the sum of $10,000.

That said Hall and Leonidas L. Johnson were the only creditors of Thomas P. Johnson’s estate — Hall holding three-fourths of all the indebtedness, and Johnson one-fourth — Johnson’s part consisting of the claims before mentioned; and that they paid no money on their purchase, but gave in payment thereof receipts and acquittances to the administrator for their claims — the estate paying but a pro rata thereon of fifteen and one-third per cent — and that the administrator on the same day executed a deed for an undivided three-fourths part of the lauds to Hall, and for an undivided one-fourth part to said Leonidas L. Johnson.

That to such use of the claims, H. P. Coolidge & Co., gave no consent, and were ignorant of the fact that they were so used until some time afterwards.

That Hill, Fontaine & Co., on the 23d day of May, 1872, recovered judgment against GeorgeE. Johnson and Leonidas L. Johnson in the Circuit Court of Phillips county for $1,838.38, upon which they afterwards sued out an execution and caused it to be levied on Leonidas L. Johnson’s undivided part of the lands, which, was sold thereunder by the sheriff, and it was bid off and purchased by said Hill, Fontaine & Co., for $11,000, and the sheriff afterwards, on the 10th day of November, 1873, executed to them a deed for the same.

That there remained due on the note $5,098.57, with interest from the 1st of April, 1874.

And that Henry P. Coolidge, who, with the plaintiff, composed the firm of H. P. Coolidge & Co., was dead.

The complaint prayed that a lien should be declared in favor-of the plaintiff on the undivided part of the lands purchased by Leonidas L. Johnson at the sale by the administrator of' Thomas P. Johnson, to the same extent and with like object and effect as that secured by the deed of trust upon the claims.

Hill, Fontaine & Co, filed a demurrer to the complaint, upon the ground that it did not set forth or show a cause of action, which, was overruled. They then filed an answer, and admitted everything alleged in the complaint, except that the claims were conveyed and transferred to Horner in the deed of' trust, which, they denied.

The other defendants made no defense.

The cause was heard upon the complaint and the exhibits-therewith, the answer of Hill, Fontaine & Co., and the sworn statement of James C. Tappan, admitted by consent, as a deposition in the cause, subject to proper objections for want of' relevancy or competency..

The clause in the deed of trust in respect to the conveyance- or transfer of the claims, is as follows :

‘‘And the said Leonidas L. Johnson also hereby conveys to-the said party of the second part, Ms claim probated against the estate of Thomas P. Johnson, deceased, and now in the hands of Tappan & Horner.”

The statement of James C. Tappan was : That he drew the-deed of trust, and that the property described in it as “his claim. probated against the estate of Thomas P. Johnson, deceased,, and now in the hands of Tappan & Horner,” were the allowances against said estate in favor of Bartley, Johnson & Co.,, Thomas W. Stoneman and J. W. Roberts, mentioned in the; complaint, which had been before assigned in writing to Leonidas L. Johnson, and were then in their (Tappan & Horner’s); hands for collection, and were the only claims against said! estate in their hands, in which Leonidas L. Johnson had any interest.

That the order for the sale of the lands was obtained by him, and he attended the sale ; and that he gave for Leonidas-L. Johnson a receipt for the pro rata sum due on the claims,, to the administrator, and the receipt and satisfaction of the claims was all the consideration paid by Leonidas L. Johnson in his purchase.

The court, upon the hearing, found that it was the intention of the parties to the deed of trust, that Leonidas L. Johnson should, and that he did, thereby convey and transfer the claims to Horner, and decreed that a lien upon the undivided fourth part of the lands resulted from Leonidas L. Johnson’s purchase thereof with the claims in favor of the plaintiff, and now exists to the same extent and with like effect as that created by the deed of trust upon the claims.

Hill, Fontaine & Co. appealed.

It is conclusively shown by the evidence of Tappan, that the claims for which Leonidas L. Johnson receipted in the purchase of the lands, and which constituted' the sole consideration, were included in the deed of trust, and it follows as a very clear proposition, that a trust in favor of H. P. Coolidge & Co., attached to the lands or the undivided part so purchased.

Judge Story says ; “Wherever the property of a party has been wrongfully misapplied, or a trust fund has been wrongfully converted into another species of property, if its identity can be traced it will be held in its new form liable to the rights of the original owner or cestui que trust. The general proposition which is maintained both at law and in equity upon this subject is, that if any property in its original state and form is covered with a trust in favor of the principal, no change of that state or form can divest it of such trust, or give the agent or trustee converting it, or those who represent him in right, (not being bona fide purchasers for a valuable consideration without notice) any more valid claim in respect to it than they respectively had before such a change.” 2 Story’s Eq. Jur., Sec. 1258; Ib., 1201; Bisph. Eq., Secs. 80, 86; Adam’s Eq., 142, 143; Osborne v. Graham, 30 Ark., 66.

But it is contended for'the appellants, that though, as be tween the parties to the deed of trust parol evidence might be offered to explain it, and show what property was conveyed, as to others such evidence was inadmissible, and the evidence of Tappan for that purpose should have been excluded from the consideration of the court, and that the deed of trust, so far as it related to the claims, was as to them void for uncer- ' tainty.

To this it may be answered that they purchased at their own execution sale, and therefore were not, nor do they claim to have been, innocent purchasers; and no question as to notice arises in the case.

Whether the deed was uncertain or not was no matter of theirs; they stood upon no better ground than Leonidas L. Johnson did, and hold the lands, as he did, charged with the trust.

The decree is affirmed.


author: Eakin, J.:

text:
    J. C. Meyer & Co. v. Smith.
    •CONTRACT : Landlord and tenant.

    When a lessee abandons the leased premises, refuses to pay rent, and repudiates his tenancy without any fault of the lessor, the latter may stand upon the contract of lease and recover the whole rent; and in such case he may take possession and re-rent the premises for the benefit of whom it may concern, and credit the proceeds upon the first lease.
    APPEAL from Jefferson Circuit Court.
    Hon. JOHN A. Williams, Circuit Judge.
    W. T. White, for appellant.

      Garitón & Me Gain, contra.

   Eakin, J.:

JK. Smith sued J. C. Meyer & Co., who were merchants •doing business in Pine Bluff, for the rent of a certain storehouse situated upon a plantation upon the Arkansas river. He filed with his complaint an instrument of writing, as follows :

“Greenwood, March 15, 1876.

“We hereby certify that we are willing to pay K. Smith the “ sum of $50.00 per month for the store known as the K. “ Smith store, from to-day until the first day of January, “ 1877, with privilege of the same until first day of May, 1877, “ at the same rate.

“S. G. Meyer & Co.,

“Per Emil Meyer.”

Defendants denied the debt and the execution of the writing. They set up further that the plaintiff, in disregard of the supposed contract, had let the same premises to a third party and put him in possession from October 1, 1876, to the end of the year.

It was shown by the testimony that the store-house in question had been renting for $50 per month previous to the time of the supposed lease to Meyer & Co., and had been rented to one Suunenshine at that rate for the year. Sunnenshine had a. stock of goods in it, and being indebted to Meyer & Co., about the time of the date of the instrument, sold out to them* Emil Meyer was in their employment as a salesman, and they sent him to take charge of the stock, make- a schedule, etc* They had been advised of the renting by Sunnenshine for the year, and of the rates. Emil Meyer, as their agent, executed the instrument on behalf of the firm. He says he had no-authority from the firm to do so, or to sign their name, but thinks he told Sol. Meyer, one of the firm, of the contract next day, on his return.

Meyer & Co., kept possession of the store-house, .selling goods, etc., for about six weeks, when they abandoned possession, leaving it open and unprotected, and giving no notice of their intentions to Smith. Whilst so occupying, and shortly after the contract was made, Sol. Meyer came to the place and had a convei’sation with Smith, telling him they were going to put in a large stock of groceries there. Smith says that in the conversation, Sol. Meyer remarked that he thought the rent was too much. Smith wrote two or three letters afterwards-to the firm about the rent, but did not mention the written contract made by Emil. He received no answers. He never made any demand of the rent under the contract, but says he furnished Emil .with a copy of it when executed. Sunnenshine says that when he told Meyer & Co. of the rents, at the time of his sale, he advised them that they must make the arrangements for the future, and that J. C. Meyer, one of the firm, replied that Emil Meyer would go down with him and arrange that matter. After the sale Sunnenshine continued in the store whilst it was kept up, selling goods as the agent of the firm. After the abandonment of the house it lay vacant until about tbe 1st of October, when Smith let it to JScherm, a third party, for the remainder of the year, at $25 per month.

Sol. Meyer, another partner, testified that Emil was sent to take stock of the goods and accounts, to see if they came up to the representations, and that he had no authority to use the firm name in executing the instrument. He denies that he knew of the instrument until suit began ; acknowdedes that the firm received the letters concerning the rent, and did not answer them, but says the letters never mentioned the contract, nor any specific sum as due ; says he does not remember having a conversation with Smith about the rent at the time he «poke with him about taking a large stock of goods there, nor “does he remember that Emil ever told him about the contract.

J. C. Meyer denies that he told Sunnenshine that Emil would arrange for the rents ; admits that Sunnenshine told him of his own contract for the year, but says that Sunnenshine claimed that he had unsettled accounts with Smith, and did not know that aify rents would be due. He concurs with Sol. Meyer in denying the authority of Emil, and all knowledge of the written instrument before suit. This was substantially all the evidence.

The court, upon trial, on motion of the plaintiff, instructed the jury substantially:

1st. That if they found that Emil executed the writing without authority, but that defendants knew of it, and afterwards continued to use the store-house, -without expressing any dissent within a reasonable time, it amounted to a ratification.

2d. If, from all the circumstances, the jury believed that Emil had authority to rent, and did rent, and defendants used ■and occupied after the renting, they must find for the plaintiff ; and,

3d. If the jury believed that defendants did ratify the contract, it did not matter whether they used and occupied it the whole time or not, except the time it was occupied by Scherm. This last instruction was afterwards explained to the jury by the court, as follows :

“The amount of rent received by Smith from Scherm should be credited by the jury upon the entire amount of rent claimed by Smith, as set out in the contract, if they shall find the contract binding upon the defendants.”

Defendants asked six instructions. The first, third and fourth were given, to the effect, that the agent could not bind the principal outside of the scope of his authority; that if he had no authority to do so at the time he executed the writing,, and the defendants did not afterwards ratify it, they must find for the defendants ; and that the burden of proof was on the plaintiff to show the power or the ratification, which should be done by preponderating testimony.

The instructions refusced were as follows:

“ 2d. The occupation of the store-house, after the execu- “ tion of the writing is not sufficient ratification "‘as would bind “ defendants for the payment of the rents, and unless the jury “ find from the evidence that the defendants were notified of “ the existence of the writing before they left the store, they “ will find for defendants.”

“ 5th. If the jury find from the testimony that the plaintiff “ violated his contract with Meyer & Co., (if any did exist) by “ renting the store-house to others before the expiration of “ the time for which it was let, then in law he cannot recover,. “ and they must find for defendants.”

“ 6th. The writing sued on in this case, if it be a contract “ at all, and binding on defendants, is an entirety for the full * ‘ time specified therein; and if the plaintiff, by his own act “ has so treated the same as to place it beyond the power of “ himself to have the property always, during the term of the. “ lease, ready for the occupation of the defendants, he cannot “ recover for any part thereof.”

In lieu of the second instruction, the court, on its own motion, gave this : “The occupancy of the store-house by “ Meyer & Co., is no ratification of the contract made by Emil “ Meyer, unless they were aware, at the time they so occupied “ it, of the existence of the contract and its terms.”

There was a verdict and judgment for the plaintiff: in the sum of $400 — motion for new trial on the ground that the verdict was not sustained by law and evidence, and because of error in giving and refusing instructions. The motion was overruled, exceptions taken and appeal.

It was the province of the jury to determine whether Emil Meyer had express or implied authority to bind the firm of Meyer & Co., by the contract of renting, or, if they found none, to determine whether or not the firm had ratified it after-wards. The instructions given for plaintiff and defendants, fairly presented these questions to the jury with all due qualifications, and with correct instruction as to what should guide them in determining upon the matter of ratification. There was evidence to justify the jury in finding that Emil Meyer had been expressly authorized to make the contract; also evidence that he had reported it to them, and they knew of it and acted under it. There is a conflict of evidence on these points, but the verdict of the jury seems sufficiently well founded to sustain their' finding as to the validity of the contract, and the liability of defendants, unless there be some valid defense.

The defense relied upon is, that the plaintiff himself violated the contract by entering upon the premises on tbe first of October, and putting in another tenant for the remainder of the-year, thereby rendering himself unable to give possession to defendants, and protect them in their quiet enjoyment. They contend that if the contract is relied upon by plaintiff, that contract itself vested in them the right to let the house lie vacant, or to keep it in reserve for any possible uses that might chauce to be required. Certainly that is the law, but there are no facts to sustain such a view of the case. They kept the house about six weeks, refused to respond to all letters concerning the rents, withdrew from occupancy, and left the house open and unprotected. They never intimated to the landlord any design to return. Do not now say they had any intention or desire to do so. They never acknowledged any liability for rent after a short occupation to serve their business purposes, but acted in such a manner as to indicate, beyond doubt, their fixed purpose to repudiate the tenancy.

Supposing the contract to be valid, as the jury must have found, the law applicable to the case would be, that if they further found that defendants had abandoned the occupation, refused to pay rents, and repudiated the tenancy, without any fault of the lessor, the latter might stand upon his contract and recover the whole rent. He was under no obligation to the defendants to take back his property and do the best he could for the remainder of the term. But he was not precluded from taking possession upon pain of forfeiture of his contract. He was not obliged to stand by and see his property abandoned, and open to the elements, and all manner of trespassers. He might take it in charge, without any wrongful act, and at his peril might re-rent for the benefit of whom it might concern. The same principle applies to these chattel interests which applies to goods, bargained for and not taken. The vendor is not obliged to abandon possession and throw them away. He may re-sell and credit the proceeds on the contract. This is for the benefit of the vendee,, as in this case the re-letting was joro tanto for the benefit of the lessees.

Had the lessees, at any time, returned and claimed their lease, or had they shown any fault, or gross misconduct in the management of the property after plaiatiff resumed possession, ■or that he had let it at grossly inadequate rates, new questions might have arisen. But the onus of this showing was on defendants, and in the absence of evidence of what the property might reasonably have been rented for at the end of the year, for the short period of three months, it was not erroneous to charge the jury to deduct from the contract price the amount actually received.

We find no substantial error in the instructions, taken all together, or m refusing those not given. The matter was fairly presented to the jury, and upon the whole case the judgment seems right.


author: EakiN, J. :

text:
    Ellsworth v. Hale, Adm’x.
    1. Tenants at Will: Possession and power of to lease, etc.

    When a person in pessession of land permits his daughter and her husband to use aud improve the land, they become at most mere tenants at will; their possession would not l’ipen into a title without some act or declaration indicating an intention to hold adversely; nor would it empower them to grant leases to strangers with any more permanent rights than they enjoyed.
    2. Injunction : To restrain trespasses upon land.

    Wheie repeated and continuing injuries to the freehold are of a nature to constitute a nuisance equity has jurisdiction to enjoin them; but injuries to chattel interests in lands, or mere acts of aggression and injury not rendering the freehold less fitting for enjoyment and amounting to mere trespasses, however often repeated, afford no grounds for an injunction, unless in case of insolvency or some other peculiar equity; and it is in all cases essential that plaintiff should show a clear right to the possession.
    3. Same : To prevent multiplicity of suits.

    To warrant an injunction on the ground alone of preventing a multiplicity of suits, the same rights should be claimed by .different persons against one or by one against many. It is not authorized to prevent the necessity of suing •one person for a succession of wrongful acts.

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

      B. F. Rice, for appellant.
   EakiN, J. :

J. C. Hale held lands in the Hot Springs reservation under claim of title. He placed his son-in-law and daughter, Mr. and Mrs. Warren, in the possession and enjoyment of a portion of it, but gave them no title. So far as it appears, they were tenants at will.

Ellsworth, a resident physician at Hot Springs, rendered valuable medical services to Warren, for which Warren had promised him a lease of a portion of the ground at a nominal rent, but died before executing it. Ellsworth, in November, 1868, built an office upon the lot and took possession, Hale making no objection. The office was destroyed by fire on the 5th of December following. Meanwhile, Ellsworth had continued his professional services to Mrs. Warren, the daughter of Hale, and she, to cany out her husband's intentions, and as further compensation for services to herself, executed a lease of the lot to Ellsworth in January, 1869. The lease was for ten years, at a nominal rent. Shortly afterwards she died, leaving complainant in possession.

The bill was filed in December, 1870, alleging that complainant, intending to build again on the lot, had got together upon it lumber and material for the purpose, which defendant, would continually remove by force and arms, in order to prevent him ; and that these trespasses were frequent and repeated. He states that he can. have no relief at law, save by-multiplicity of suits, and prays that defendant may be enjoined from further interference with his possession, and for further-relief. An interlocutory injunction in accordance with the-prayer was issued by order of the Circuit Judge.

The defendant, Hale, denied that he had given the lands to. Warren and bis wife, or either of them, although he had permitted them to use and occupy it, and had allowed Warren to improve a portion of it, on condition that he would pay one-third of the expenses of a pending litigation concerning the title. lie denies the authority of his daughter to make the lease. He insists that the occupation of complainant has been unlawful, and prays that the injunction may be dissolved, the bill dismissed, the complainant held to an account of rents and profits, and that he be required to deliver up his possession.

Pending the suit the defendant died, and the cause was revived against Sarah Hale as his administratrix.

A mass of depositions was taken on both sides, which were used upon the hearing. They do not change the material features of the cause presented above. The court dissolved the injunction and dismissed the complaint. The court further declared from the allegations of the pleadings and the proof in the case, that defendant would be entitled to the possession of the property; but as his answer was not made a cross bill, the writ of possession was on that ground alone denied. It was further ordered that an assessment of damages, resulting from the interlocutory injunction, be made at a future day,, which was designated.

Pending the proceedings for the assessment 'of damages, complainant prayed an appeal from the decree, which was. granted. The defendant has not appealed, and this court is. not called upon to decide whether or notliervas entitled to. any relief on the facts stated, and the prayer of his answer.

The only ground upon which the interference of the court,, by injunction, was invoked, was, to prevent the necessity of a. multiplicity of suits to recover for repeated trespasses. It was not shown that the acts of defendant tended to the irreparable injury of the property, nor that the defendant was insolvent and thus beyond the reach of ordinary legal redress. ’Complainant claims only a chattel interest in the lot, and ■claims that under one who derived possession from defendant, under such circumstances as made his lessor herself, at most, :a mere tenant at will, without a shadow of legal title. The defendant,-being in possession of the lands, might lawfully •allow his daughter and her husband to use and improve them us long as he chose to extend the favor. Such possession on their part would not ripen into a title without some act or ■declaration indicating an intention to claim adversely, nor ‘would it empower them to grant leases to strangers with any more permanent rights than they had themselves. As to third ‘persons, their relation to the owner and the total absence of all ■documentary evidence of title required by the statute of frauds, sufficiently explained the nature of their possession, ■and none could be misled without the grossest carelessness upon their own part. In this, case the evidence leaves no doubt that ■complainant understood the matter thoroughly.

Courts of equity have always interfered to restrain repeated •or continuing acts which amount to a nuisance to real estate, •and to prevent waste between those having privity of estate, but never, until a comparatively recent period, to restrain acts •of trespass as such. Lord Thurlow seems to have set the precedent in a case repeatedly quoted and cautiously followed by Lord Eldon [Flamarey’s case, cited in Mitchell v. Dors, 6 Vesey, Jr., 147; Hanson v. Gardner, 7 Ib. 308.] That was ;a case where permanent injury to the freehold would have resulted from the trespass. The doctrine is in consonance with the feudal sentiment, which attributes to a freehold inter•est in land a peculiar value, different from a chattel interest, •or mere personal property. No one piece of land can, in this' ■view, be considered as good as another. Its loss or injury cannot be fully compensated by other lands or by money with which other lands may be purchased. Later still, and very reluctantly, the courts have extended the doctrine to slaves and., other personal property, which may have a pretium affectionis,. such as family pictures, relics, etc., an injury to which will now be restrained. I do not meet in the English books, any-cases where the doctrine has been applied to mere chattel interests in lands on the sole ground of irreparable injury,., independent of insolvency or some other equitable element., A chattel interest does not come within the reason of the rule,, being transient as personal property is. The court is not prepared to say that a peculiar case may not occur, in which the-interference by injunction to protect a chattel real might be properly invoked. To protect a trust for instance. But ordinarily, without some peculiar grounds, it ought not to be done,, and no peculiar grounds are shown here.

Where repeated and continuing injuries to the freehold are-of a nature to constitute a nuisance the jurisdiction to enjoin, them stands upon ancient grounds. The distinction is taken by Lord Hardwick in Corelson v. White, 3 Atk., 21. He says: ‘ ‘Every common trespass is not a foundation for an injunction in this court, where it is only contingent and temporary ; but if it continues so long as to become a nuisance, in such case the court will interfere and grant an injunction to-restrain the person from committing it.” The distinction is. obvious between such continued acts as render the corpus of the-freehold less fitting for enjoyment; -such as turning water upon it, obstructing the light, or infecting the air, and mere -acts of' aggression and injury; such as pulling down fences and the-like. In the former class of cases there arises a nuisance which may be enjoined. In the latter there are mere trespasses, which, however often repeated,, may be, each time, remedied by action. As remarked by Justice Lumpkin, in Hatcher v. Hampton, 7 Geo. 48: “It has never been supposed, that because one person chooses daily to pull down the-fence of another” (or, he might have said, to take away his lumber) “and turn his stock in his fields, that this would authorize the courts of chancery to restrain the intruder by injunction.”

Again ; upon the ground of avoiding multiplicity of suits, the rule against enjoining has been further relaxed, and injunctions have been issued upon that equity. But that does not mean to save a person from the necessity of suing the same person for a succession of wrongful acts, which he may persist in doing. Any man has the power to subject himself to a great number of suits, by a great number of trespasses of any kind, and courts of chancery would undertake too much in undei'-taking thus to coerce the general peace of the community, or to protect the property of individuals. To warrant the interference of chancery on the ground, alone, of preventing multiplicity of suits, the same rights should be claimed by different persons against one, or by one against many. High on Injunctions, sec. 459.

There are other cases applicable to real as well as personal property where injunctions may issue upon the ground of the insolvency of the wrong doer; and, as ancillary to a bill to remove a cloud from title, it would doubtless be proper in a chancellor to restrain the adverse claimant from acts of trespass pendente lite.

These relaxations of the rule are exceptional, and in all of them (save in cases to remove a cloud) it is essential to the exercise of this prompt and somewhat dangerous remedy, that complainant should in the first place show at least a clear right to the possession, if not to the freehold. This court, in Conway et al. ex parte, 4 Ark., 344, adopts, on this point, the language of Chancellor Kent in Garder v. Newberry, 3 John Ch., 165, as follows:

“The interference rests upon the principle of a clear and ■certain right to the enjoyment of the subject in question, and an injurious interruption of that right, which upon just and equitable grounds ought to be prevented.”

Again: it was held by this court in a case similar to this, where the defendant claiming possession of lands owned by the United States, had sued out a forcible entry against the occupant, that an injunction will not be granted to restrain a mere trespass, where the injury is not irreparable, and destructive of the plaintiff’s estate, but is susceptible of perfect pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law. Foster ex parte, 11 Ark., 304.

The complainant in this case does not complain of any nuisance, irreparable injury, or insolvency. He does not show any clear title in himself, nor really any injury to the lease beyond a mere technical breaking of the close. The injury is to a lot of personal property which he has been collecting for building purposes. He says it will be repeated, and he asks the court to relieve him of the trouble, loss of time and expense of suing at law. The case does not come within any of the exceptions under the most relaxed state of the old rule. The injunction should not have been granted, and there was no error in dissolving and dismissing the bill.

Affirm the decree and remand the cause for further proceedings in accordance with equity practice for the assessment of damages.


text:
    Benton County v. Rutherford.
    Deed : Statutory covenant, when broken.

    If a grantor conveys land by the words “grant, bargain and sell,” and the deed; contains no express words limiting their force, and he is not at the time the owner in fee simple of the land, the statutory covenant of seizin expressed by those words is instantly broken technically, and the grantee may sue at once-for the breach without showing eviction.

      -Damages for breach of covenants.

    (For rule of damages for breach of covenant of seizin see opinion.)
    MARRIED 'WOMEN : Not bound by covenants.

    A married woman is not bound by the covenants contained in a deed executed*, by her and her hush and.
    APPEAL from Benton Circuit Court.
    W. J. Howard, Special Judge.

      B. P. Watson, for appellant.

      J. jD. Walker, contra.

   ENGLISH, C. J.:

Benton county sued Rutherford and wife on the covenant of siezin in a deed, defendants demurred to the complaint, the-court sustained the demurrer, and plaintiff appealed. This-court dismissed the appeal because there was no final judgment-See Benton County v. Rutherford and wife, 30 Ark., 665.

On the remanding of the cause to the Circuit Court the plaintiff declined to amend her complaint, relying on the sufficiency thereof, and judgment was rendered discharging defendants with costs, and plaintiff again appealed.

The suit was commenced 13th March, 1874, and the complaint follows:

“Benton county, plaintiff, by attorney, complains of Joseph. R. Rutherford and Tennessee P. Rutherford of a plea of covenant broken:

“Plaintiff states that on. the 4th day of January, A. D.. 1871, the defendants executed and delivered to the plaintiff' tbeir certain deed in writing, which is in words and figures as fdllows, to-wit:

“Warranty deed with release of homestead and dower.

“This indenture, made the 4th day of January, 1871, between Joseph R. Rutherford and Tennessee P. Rutherford, his wife, of the first part, and the county of Benton, in the State of Arkansas, of the second part, witnesseth: that the said parties of the first part, in consideration of the sum of twelve hundred and fifty dollars in hand paid, the receipt whereof is hereby acknowledged, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the party of the second part, his heirs and assigns, all that piece or parcel of land situate in the town of Bentonville, county of Benton, etc., to wit: Lots number ninety, (90) ninety-one, (91) ninety-four, (94) ninety-five, (95) of said town of Bentonville, together with the appurtenances thereunto belonging, and all the estate, right, title, interest, claim and demand of the said parties of the first part herein.

“And the said Joseph R. Rutherford and Tennessee P. Rutherford, his wife, parties of the first part, hereby expressly waive, release, relinquish and convey unto said party of the second part, and his heirs, executors, administrators and assigns, all right, title, claim, interest and benefit whatsoever, in and to the above described premises, and each and every part thereof, which is given by or results from any and all laws of this State pertaining to the exemption of homesteads; and the said Joseph R. Rutherford and Tennessee P. Rutherford, his wife, for themselves, their heirs, executors and administrators, do covenant, grant, bargain and agree, to and with the said party of the .second part, and his heirs and assigns, that the above bargained premises, in the quiet and peaceable possession of the said party of the second part, and his heirs and assigns, the said party of the first part, shall and will forever warrant and forever defend.

“In witness whereof the said parties of the first part have hereunto set their hands and seals, the day and year first above written.

“Joseph Rutherford, [seal.]

“Tennessee P. Rutherford, [seal.]

“Said deed was duly acknowledged by said defendants before a proper officer, in accordance with the law of the State, etc. A copy of said deed and acknowledgment is hereto annexed and made a part of this complaint, etc.

“The plaintiff, in fact, says that at the time of the execution and delivery of said deed to the plaintiff, said Joseph R. Rutherford and Tennessee P. Rutherford were not the owners of, and did not hold the fee simple title to said lot number ninety-five, in said deed mentioned, nor have the said Joseph R. Rutherford and the said Tennessee P. Rutherford acquired a fee simple title to said lot number ninety-five since the execution and delivery of said deed to the plaintiff. Wherefore, plaintiff prays judgment for the sum of three hundred and twelve dollars and fifty cents, the amount paid for said lot by plaintiff, together with the interest thereon from the delivery of said deed, at the rate of six per cent per annum, and for other relief.”

Defendants demurred to the complaint on the-grounds :

1st. No cause of action set forth in the complaint.

2d. No breach of the covenants contained in the deed set out in complaint, alleged.

3d. Not alleged in whom the title to the lot is vested.

4th. No averment of eviction or disturbance of plaintiff’s peaceable possession of the lot.

By statute:

“The words, grant, bargain and sell, shall be an express ■covenant to the grantee, Ms heirs and assigns, that the grantor is seized of an indefeasible estate in fee simple, free from in-cumbrance done or suffered from the grantor, except rents or services that may be expressly reserved by the deed, as also for the quiet enjoyment thereof against the grantor, his heirs and assigns, and from the claim or demand of all other persons whatsoever, unless limited by express words in such deed.” Gantt’s Digest, Sec. 829.

The deed set out in the complaint contains the words “grant, bargain and sell,” and does not contain any express words limiting their force.

The complaint alleges a breach of this statute covenant of seizin; affirms that the grantors were not the owners in fee simple of one of the lots embraced in the deed at the time of its execution, and had not since acquired a fee simple title thereto.

If the appellees were not the owners of the land in fee simple at the time of the execution of the deed, as alleged in the •complaint, the covenant of seizin was instantly broken technically, and a right of action for breach of the covenant at once accrued, and it was not necessary for appellant to aver eviction. Logan v. Moulder, 1 Ark., 322; Alexander v. Schreiber, 10 Mo., 460; Brandt v. Foster et al., 5 Iowa, 295.

Says Mr. WashbtjrN :

“If the covenant of seizin be untrue, it is broken the instant it is made, and an immediate right of action accrues to the purchaser to sue for the breach, and he is entitled to recover damages, the measure of which may be the consideration and interest, or less amount, or mere nominal damages, according to the nature and extent of the breach in the particular case. If the failure of title be only as to part of the land, or if the purchaser has himself extinguished the paramount title, or if bis actual possession be of such a character, and continued for such a length of time as to make the title valid under the statute of limitation, of if, for other cause, the breach be merely a technical one, the purchaser will not be entitled-to have the damages measured by the consideration money and interest. Such is the proper measure of damages only where there is an entire failure of title, or where the purchaser has the right to treat it as such ; and in the latter case the effect of a recovery of an equivalent in damages would be to entitle the bargainor to a reconveyance.” 3 Washburn on Real Property, 420.

Mrs. Rutherford being’ a married woman at the time she joined her husband in the execution of the deed, is not bound by the covenants contained in it, and not personally liable in damages for breach of the covenant of seizin. The demurrer to the complaint was therefore properly sustained as to her, but should have been overruled as to her husband. Bishop on Married Women, Sec. 603.

The judgment of the court below as to the wife, must be affirmed, and reversed as to her husband. Trieber and Wife v. Stover & Co., 30 Ark., 727.

By act of February 27, 1879, Pamphlet Acts 1878-79, p. 13, passed since the submission of this cause, particular sections of Gantt’s Digest, and all laws and parts of laws making counties corporations, and authorizing them to sue and be sued as such, are repealed; and the act provides that when any county has any demand against any person or corporation, suit thereon may be brought in the name of the State for the use of the county.

The costs of reversal will be rendered against appellee, Joseph R. Rutherford, in the name of the State, for the use of Benton county, and the cause remanded to the court below for further proceedings in the name of the State for the use of said county.