author: Walker, J.:

text:
    Hamlett vs. Tallman and Graves.
    1. Lien : On unplanted crop void, at laiu.

      A contract for a lien on an implanted crop is void at law.
    2. Tender: Effect of, etc.

    The effect of a tender is to stop the accrual of interest and save cost; but, in order to be availing, it must be followed up and the money brought into court.
    3. Practice in Supreme Court: Remittitur.

    Where the judgment of the Circuit Court is excessive, the appellee will be permitted to enter a remittitur in this court, and take an affirmance as to the residue.
    APPEAL from Ghieot Circuit Court.
    Hon. H. B. Morse, Circuit Judge.

      Garland and Mark Valentine for appellant.
    A parol contract for a lien on personal property, accompanied with possession in the claimant of the lien, is good. 3 Parsons An. Cont., 271; lien defined, ib., 234.
    Appellees not innocent purchasers. Possession was notice of appellant’s claim. Hardy v. Heard, 15 Ark., 184; Hamilton v. Fowllces, 16 Ark., 340; were without actual notice; Byers v. Engles, 16 Ark., 543; applies a fortiori to personal property; 3 Parsons on Con., 234, 272. Only the pledger’s right passes. Lien ci’eated by delivery. No record was necessary, Ib., 271.

      Tender to be valid must be continued, and tbe money brought into court. Slack v. Price, 1st Bibb, 272; Claffin v. Hawes, 8 Mass., 261; and must be of the whole sum due; 2 Parsons on Cont., 640.
    Appellant’s right of possession was based on the landlord’s lien. Acts 1868, p. 245.
    As to delivery. 1st Bouvier Law Die., 396; Story on Sales, sec. 289, p. 320; Gilliam v. Towles, 15 Ark., 64.

      Rose, for appellees.
    All previous exceptions below were waived by the motion for a neAV trial. Sawyers v. Lathrop, 9 Ark., 67; Anthony v. Humphries, id., 176; Berry v. Singer, 10 id., 483; Hopkins v. Dowd, 11 id., 627; Fordv. Clark, 12 id., 99; Neville v. Hancock, 15 id., 511; Kirkpatrick v. Wolf, 17. id., 98; Daniel v. Gray, 19 id., 122; Moss v. Smith, id., 683; Collier v. State, 20 id., 36; Graham v. Rourke, 23 id., 19; Osborne, ex parte, 24 id., 185 ; Blunt v. Williams, 27 id., 374.
    There was some evidence, and the verdict must be supported. LJndsayv. Wayland, 17 id., 385; State v. Crytes, 24 id., 183;, Mayson v. Eddington, 22 id., 208.
   Walker, J.:

Tallman and Graves brought suit in the Chicot Circuit Court,, to recoArer possession of eight bales of cotton. They aArer in their petition that they are the owners, and are entitled to the-possession of the cotton; that the defendant has possession of' the cotton Avithout right and unlawfully detains the same.

The defendant answered that the plaintiffs were not the owners of the cotton, nor were they entitled to the possession of it. Defendant further answered, in substance, that the cotton belonged to other parties, her tenants, and that she, by a written contract, held a lien upon the cotton for the rent of the land; on which it was grown, and also for supplies furnished her tenants, who cultivated the land and grew the crop. To try this issue a jury was called, the evidence heard, and a verdict rendered for the plaintiffs, judgment, motion for a new trial overruled, exceptions and appeal to this court.

It appears from the evidence, that on the 18th of February, 1869, Mrs. Hamlett, the owner of a plantation in Chicot county, entered into a written contract with certain parties to lease or rent from her, part of her plantation, to be cultivated by them that year, amongst whom were Hardy Morgan, Charles Smith and "William Crawford ; to Morgan and Smith, twenty-three and a half acres, and to Crawford ten acres, at the price of ten dollars per acre, and by the terms of the contract reserved a lien upon the crop to be raised, for the payment of the rent and other indebtedness. It further appears from the evidence, that a crop of cotton was raised on the plantation of the defendant, and that, in July of that year, Morgan bought out the interests of Smith and Crawford in the crop, whereby he became the owner of it, subject to the lien, rights of the defendant, and that after the cotton had been baled, and whilst it remained under the gin-house of the defendant and in one of the outhouses near by on the plantation, Morgan sold the eight bales of cotton to the plaintiffs, and went with one of them to the gin-house and outhouse to examine it. That after looking at the cotton, one of the plaintiffs and Morgan went to the defendant and offered to pay for the rent of the land the sum of $330. That the defendant refused to let them have the cotton, or to receive pay for the rent, unless they would also pay her for the supplies furnished to the hands. That plaintiffs never took possession of the cotton, which' was- worth twenty cents per pound, and that the cotton weighed 3188 pounds, which it will be seen, at twenty cents, makes the cotton worth $637.60, the precise amount of the verdict.

Disregarding the interpleaders of Crawford and Smith, and such of the evidence as might be important under a different state of case, if the exceptions to the rejection of part of the defendant’s evidence, and to the instructions given to the jury, and those refused, had been made grounds for a new trial, which, under the state of case presented we are precluded from considering, we will proceed to consider whether the court below did or not err in refusing to sustain the morion of the defendant for a now trial. And here, it may be remarked, that the learned counsel for the appellant, when discussing the correctness of the decision of the court in excluding the evidence of the defendant and giving certain instructions, and refusing to give others, at the instance of the defendant, seems to have overlooked the fact that they were not assigned as causes for a new trial, and must, under the long and well established practice of this court, be considered as having been abandoned and waived. Danby v. Robbins, 3 Ark., 144; Walker v. State, 4 Ark., 87.

The only ground assigned as cause for a new trial was, that the jury found contrary to law and evidence, and presents simply the question whether the evidence was sufficient to sustain the ■verdict.

In all of our decisions upon the subject of trials by juries, and under what circumstances they should be set aside, we have invariably accorded to the jury, a free exercise of the right to weigh the evidence and to determine the facts put in issue; and have never attempted to control their discretionary power, unless the verdict was so clearly contrary to the weight of the evidence as to produce manifest injustice, or, in the language of some of our earlier decisions, “to shock our sense of justice.” In cases in which there is proof upon all the material questions involved, necessary to entitle the party to a verdict, the sufficiency of the ■evidence for that purpose is a matter for the jury to determine ; but, unless in extreme cases, or where there is a total lack of ■evidence to sustain the verdict, or a lack of evidence upon some material matter necessary to uphold the verdict, the court will not set it aside, and grant a new trial. Miller v. Ratclif, 14 Ark., 420; Houch v. Lynch, 17 Ark., 478; McGee v. Humphries, 18 Ark., 598, and- in the case of Butts v. King et al., after refering to our previous decisions, wc say: “It is the uniform doctrine of this court, that a judgment may be reversed upon a motion for a new trial overruled, when there is a total want of evidence of some material matter necessary to uphold the verdict.”

After a careful examination of the evidence, and conceding there is evidence sufficient to uphold the verdict in all other respects, the question is, does the evidence show title in the plaintiff to the cotton, or in other words, does it prove the allegations in the complaint, that the plaintiffs were the owners of the property, and entitled to the possession of it ? It is proven that plaintiffs bought the cotton of Morgan and paid him for it, and although not actually delivered to the plaintiff’, the title vested without actual delivery. But then it is equally clear that the plaintiff only acquired by their purchase such title as Morgan had. W e have seen that Morgan’s title was encumbered with the prior lien of the del’endant upon the cotton which was then in defendant’s possession, and of course the plaintiffs took it encumbered with such lien. They could occupy no better-position than Morgan himself could. There is no pretense that plaintiffs were purchasers without notice of the lien; they knew that the lien existed and found the cotton in the possession of the defendant, who refused to gin it, unless paid for the rent, and for supplies furnished the laborers who cultivated the land..

And at this point of the investigation it may be well to determine the nature and extent of the lien of the defendant, as well as the effect of the tender or offer to pay the rent by plaintiffs.. In addition to the lien by contract, defendant, as landlord, held a statute lien expressly reserved, 4098 Gantt’s Digest. A lien is. said to be a right to hold possession of another’s property for the satisfaction of a charge upon it. The essence of the right is possession ; and whether that possession be by officers of the law, or of the person who claims the right of lien, the chattel, on which the lien attaches, is equally regarded as in the custody of the law- 3 Parson Con., 234. The lien rests upon the idea that the party having it, has a right in, or to the property until his claim has been paid or satisfied by the owner of the property. Houck on Liens, 34.

The next question to be considered is as to the effect of the tender, and first as to the amount tendered. Was it sufficient? The quantity of land rented was thirty-th'ree and one half acres, the price $10, making $335, and if the defendant had refused to accept the tender because it was not enough, by $5, to pay the rent, we apprehend the tender for that reason would have been insufficient. But it appears that she did not object for this reason, but based her refusal upon the ground that by the terms of her contract, she was entitled to a lien upon the crop raised for supplies furnished to the hands who made the crop. This contract was entered into in the month of February, and before the crop was planted; there was then no crop, no cotton, nothing to contract for, and when such is the case, as held by this court in the case of Apperson v. Moore, decided at the last term of -this court, and in the case of Driver v. Moore, decided at the present term of this court, the contract is void in law; but after the crop is matured, when property in fact exists, the lien right under the contract may be enforced in a suit in equity.

Such being the legal effect of the contract, no lien at law could be asserted under it, and she could not sustain her objection to accepting the money tendered, upon the ground that she had a valid unsatisfied account for supplies. Defendant’s right of lien on the crop grown can only be properly sustained under the provisions of the statute, Gantt’s Digest, 4098, above referred to.

The tender and offer to pay the rent was not, in fact, a payment ; its immediate effect upon the debt is to stop the payment of interest and to save further costs.

The money, although not accepted, is, in contemplation of law, set. apart and held by the party making the tender; it follows his plea, in which he tenders and offers to bring the money into court, and until the money is brought into court and placed there in custody of the law, the defense is incomplete and unavailing.

'We feel fully sustained in this position, not only by the elementary writers, but also by numerous adjudications of the courts of our sister States. The Supreme Court of the State of Illinois, 2 Gilman, 679, held, that a party intending to rely upon a tender, must keep it good by paying the money into court. In the case of Cartright v. Cady 23 Barber, 49, the Supreme Court of New York held, that to make a plea of-tender valid, it is not sufficient that the money has once been tendered, but it must always be ready to be paid. In the case of Slack v. Price, 1 Bibb, 275, it was held by the Court of Appeals of the State of Kentucky, that where a party pleads tender and refusal, he must bring money into court, and, unless this be done, his plea must fail. In the case before us, no money was brought into court. In the language of the Supreme Court of Illinois, “ the tender was not kept good by paying the money into court,” and of New York, “that the first tender is not sufficient, but it must be followed up and the money paid into court;” and of Kentucky, “that the money tendered must be paid in court, and unless it is paid, the plea will fail.”

The Money tendered to the defendant for rent due not having been paid into court, the plea of tender failed. There was, then, no valid tender. Parsons says the essence of the right of lien is possession. It vests, says Houck, on the idea that the plaintiff having it, has a right in or to the property until his claim has been paid; and, as a consequence, the lien for rent was not removed, without which the action far possession of the cotton must fail. Payment was necessary to entitle the plaintiff to recover. It was a matter about which there was 'no evidence, and consequently the jury upon this material matter decided without evidence.

The verdict, was for the whole value of the cotton, upon which the defendant had a lien for $330 rent due. The plaintiifj instead of paying over this money, walked out of the court with it in his pocket, and a judgment for the full value of the cotton.

The court below erred in overruling the motion of the defendant for a new trial, and for this error the judgment must be reversed and set aside axrd a new tidal granted..

After the above opinion was delivered, the appellees moved for a reconsideration, and offered to bring into court the money-due the appellant, as indicated in the opinion..

On the motion to reconsider’, etc., Mr. Chief Justice Enguish; said:

If the appellees will enter a remittitur for the sum of $330, as of the date of the judgment of the court below,, being the amount due appellant for rent of land, and for which she had a valid lien at law on the cotton in controversy, and which appellees tendered her before suit, but failed to bring into court, or allow appellant a credit for in taking judgment; and if appellees will also enter of record an abandonment of all right to proceed on the appeal bond and pay the costs, the judgment of this court,, reversing the judgment of the court below and remanding the cause for a new trial, will be set aside, and the judgment affirmed for the sum of $307.60, being for balance due appellees after deducting the amount remitted. This may be' done under the rule of practice adopted in Fowler v. Johnson, 11 Ark., 280, and followed in subsequent cases..

The claim of appellant for supplies, not being a valid lien, at law, upon the cotton, but a matter of equitable cognizance, as held in the opinions of this court, and being, therefore, properly ruled out on the trial by the court below, there is no reason why this cause should be remanded for a new trial on account of such equitable matters.


source: Caselaw Access Project

author: Harrison, J.:

license: Public Domain

text:
    Cooper vs. White.
    Deed: Certainty in.

    Where a deed describes the land conveyed by metes and bounds, and other description that can be made certain by evidence aliunde, it is sufficient.
    APPEAL from Arkansas Circuit Court in Chancery.
    Hon. Henry B. Moese, Circuit Judge.

      Dooly, for appellant.
    The deed exhibited marked “B” is void for uncertainty in description, Doe, ex’r. of Phillips v. Benj. A. Parler, 3 Ark., 18.
    The deed filed with amended complaint does not show that the lands conveyed are the same as those intended in the former deed, so as to connect them with the note sued on.

      Cockrell, for appellee.
    The supposed errors are frivolous.
    The appeal should be dismissed on authority of Sykes v. Lafferty, 26 Ark., 414.
   Harrison, J.:

John White, on the 2d day of June, 1870, sold and conveyed to Giles Cooper, for five hundred dollars, one hundred and sixty acres of land in the southeast and the southwest quarters of section five, in township five south of range four west, in the county of Arkansas. Cooper paid two hundred dollars in cash, and, for the residue of the price, gave his note payable on the 1st day of November, 1870, and entered into possession. The note having become due, White, brought this suit to enforce .his vendor’s lien for the unpaid purchase money. The defendant demurred to the complaint, because the deed exhibited did not show in what section, township and range the land was. The court sustained the demurrer, and the plaintiff amended his complaint by tendering another deed. The defendant filed no answer,' nor made any further defense, and a decree was rendered against him. He appealed.

It is insisted that the second deed is insufficient, and the decree therefore wrong.

If it be admissible for the appellant, after having demurred to the complaint on the ground that the former deed was not such as would pass the title, to make the same objection to the latter for the first time in this court, it is without avail; there was no such want of certainty in the description of the land, as in the first deed, as rendered it void, but that deed was a good and valid conveyance of the land.

There was no necessity for mentioning the section, township and range. The land was described by quantity, and by metes and bounds, and visible objects, such as corner stakes, bearing trees, prairie and section line, and thus made capable of identification by evidence aliunde. And the appellant had gone into possession.'

That is sufficiently certain which can be made certain, but the land is described in the complaint by reference to the section, township and range, and the deed must be regarded in connection with the description there made and not as a separate and distinct averment.

The decree of the court below is affirmed.


text:
    Valcourt vs. Sessions.
    Administration: Discharge of sureties on administrator’s bond.

    Under the provisions of section 37, Gantt’s Digest, the sureties on an administrator’s bond may apply'to the Probate Court to be discharged, on any of the grounds therein mentioned; but such an application cannot be made under sections 5705, 5711 of the Digest, relating to the discharge of sureties on official bonds.
    APPEAL from Ohieot Circuit Court.
    Hon. T. F. Sorrells, Circuit Judge.

      D. H. Reynolds for appellant.
    An administrator is not an officer, and even if he were there are special provisions regarding him, which sureties must follow in order to be released.

      Jno. G. B. Simms, for appellee.
    This action was based on sections 5705 to 5709 of Gantt’s Digest. See Dempsey v. Fenno, 16 Ark., 491, which may -apply as well to administrators as to guardians.
    ' Section 37 was for the benefit of persons interested in the estate to obtain a proper bond. The objects of the acts are differ-ent.
   Harrison, J.:

Richard R. Sessions applied to the Court of Probate of Chicot county, by petition in writing, to be discharged as a security on the bond of Alexander DeValcourt, as administrator of Walter Sessions, deceased. His petition alleged that the said DeValcourt was not managing and conducting the business of his intestate’s estate in a manner well calculated to promote the interest •of himself and his securities, and that he believed it was unsafe for him longer to remain on his bond. The petition was verified by his affidavit, and notice in writing of the intended applicauation, together with a copy of the petition,- was personally served on the administrator twenty days before the application was made. The Court of Probate, without having any .evidence, or if there was any, it does not appear by the record, ordered the administrator to give a new bond within twenty days, or, upon default, that his letters be revoked.

The administrator appealed from the order to the Circuit Court.

In the Circuit Court he demurred in short, upon the record, to the petition.

The court overruled the demurrer, and, as the record says, affirmed the judgment of the Court of Probate. He then appealed to this court.

It is provided by section 37, Gantt’s Digest, that if any heir, legatee, creditor or security, or other person interested in any estate, shall file in the Probate Court, an affidavit, stating that the affiant has reason to believe that any security in the executor’s or administrator’s bond has become, or is likely to become insolvent, or has died, or has removed from the-State, or that the principal in such bond has become, or is likely to become, insolvent, or is wasting the estate, or that the penalty of such bond is insufficient, or that such bond has not been taken according to law, and shall have given the principal in such bond fifteen days notice of the complaint, the court shall examine the same, and make such order as shall seem proper'. If an additional bond be given and approved, the former securities are discharged from any liability for the misconduct of the executor or administrator (section 38); and if the executor or administrator shall fail to give such additional security as may be required, within ten days, his letters shall be revoked. Section 39.

Under these provisions of the statute, the securities of the executor or administrator, who, by reason of their liability, are interested in the proper management of the estate, may, upon, showing sufficient cause, be discharged. But the application in this case appears to have been made under the provisions of the statute in relation to the discharge of securities in official bonds (sections 5705, 5711), which have no apparent relation to the subject; and we cannot suppose the Legislature intended to prescribe two ways of proceeding to obtain such discharge, But besides the irregularity of the proceedings, none of the causes mentioned in the statute, or any other whatever, was shown for the. discharge of the petitioner. It was no duty of the administrator to manage the estate to the advantage either of himself or his securities. The interests of the estate are to be solely regarded.

The judgment of the Circuit Court is reversed, and the cause remanded to it with instructions to sustain the demurrer and dismiss the petition.


author: C. B. Moore, Sp. J.:

text:
    Beard, et al., vs. Mosely and Wife.
    Descent. Ancestral Inheritance.

    When a child inherits land from her father, and dies without issue, the land will go to the line on the p>art of the father, to the exclusion of the mother’s line.
    APPEAL from Bradley Circuit Court in Chancery.
    Hon. James T. Elliott, Circuit Judge.

      Garland and Cockrill for appellants.

      Rose, contra.

   C. B. Moore, Sp. J.:

Peter Moseley, and his wife Elizabeth, filed their complaint in the Bradley Circuit Court, on the equity side, to the May term, 1874, against Alexander Beard and others.

The complaint states that one Hugh Beard died about the year .1862, seized of the following described lands, viz: east half of west half of section 18, northwest quarter of southeast quarter of section 18, and the southwest quarter of northeast quarter of section 18, all in township 12 south, range 10 west.

That said Hugh left surviving him a widow, the said Elizabeth, (who has since intermarried with Peter ¡Moseley,) and a minor child, Eleanor.

That after the death of the said Hugh Beard, the child Eleanor died without issue, and without brother or sister.

The plaintiffs, Peter and Elizabeth Moseley, are in possession of the lands. They claim that the defendants, Alexander Beard and the others, who arc the brothers and sisters, and mother, of Hugh Beard, are asserting title to the lands in question, as the heirs of the child Eleanor, and arc thus creating a cloud on the title of the plaintiffs, Peter and Elizabeth, they contending that Elizabeth, the mother of the child Eleanor, inherited the lands' from her, and is the rightful owner. They pray for decree declaring the title to be in the said Elizabeth as the heir of her child, Eleanor.

The defendants in the court below demurred to the complaint. The court overruled the demurrer. Defendants rested on their demurrer and refused to answer further. The court then rendered final decree declaring the title to the lands to be in the plaintiff, Elizabeth, as the heir at law of her child, Eleanor, removing all clouds and quieting title. The defendants bring the case by appeal to this court.

The one single question presented to us for review and decision is as to who inherited from the infant child, Eleanor, her mother, or the appellants, who are the mother, and brothers and sisters of her father.

The question is not difficult of solution. It depends entirely upon the construction of our statute of descents and . distributions. The lands were the property of Hugh Beard, father of Eleanor. . She, undoubtedly, as the only child, inherited them from him. They were not a new acquisition in the hands of the child, but an ancestral inheritance.

In the case of Kelly’s heirs v. McGuire, et al., 15 Ark., 555, the statute of descents and distributions received a full and thorough construction by this court, and which has been the established rule ever since.

In that case the court said: After carefully considering each of the provisions of the statute, and all together as a whole, we have come to the following conclusions: * * * * If the inheritance was ancestral, and came from the father’s side, then it will go to the line on the part of the father, from whence it came, not in postponement, but in exclusion of the mother’s line; and so, on the other hand, if it come from the mother’s side, then to the line on the part of the mother, from whence it came, to the exclusion of the father’s line.”

The lands in this instance were purchased by Hugh Beard, in his life time ; and coming by descent to his -child, on its death without issue they go back “ to the line of the father from whence they came,” that is to the appellants.

The rule in Kelly’s heirs v. McGuire has been repeatedly affirmed and followed by this court. See Scull v. Vaugine, 15 Ark, 695; Bird v. Lipscomb, 20 ib., 19; Galloway v. Robinson, et al., 11 ib., 396; Campbell v. Ware, 27 ib., 65. We still adhere to the rule.

We therefore conclude that the court below erred in overruling the demurrer of appellants.

The decree of the Bradley Circuit Court is reversed, and the cause remanded, with instructions to the court to sustain the demurrer of the appellants, the defendants in the Circuit Court.

Mr. Justice Harrison did not sit in this case.


text:
    Reynolds, adm’r, vs. Canal & Banking Co. of N. O.
    1. Mortgage: Right of mortgagee to rents and profits.

    After forfeiture, the mortgagee is usuallj’- entitled to possession of the mortgaged premises, and must apply the rents and profits to the mortgage debt; but he is not entitled to the rents and profits until he has taken possession, or the necessary steps to obtain possession.
    2. Administrator: When not liable for rents and profits received from mortgaged property.

    If a mortgagee, who has taken the necessary steps to obtain possession of the mortgaged premises, permits the administrator to take the rents and profits for the benefit of the heirs of his intestate, and charges himself with such rents, the administrator is not chargeable .with them in his settlement with the Probate Court.
    3. --. Not chargeable, in settlement, for waste.

    An administrator is not, in his settlement with the Probate Court, accountable for waste, whatever his liability therefor may be otherwise.
    4. --: Allowance for fees paid to Attorney.

    Where there is no order of the Probate Court authorizing an administrator ■ to employ an attorney, it is in the discretion of the Probate Court to allow him credit for fees paid to an attorney, and its order is conclusive, where no abuse is shown.
    5. '---: Commissions.
    ■ An administrator is not entitled to commissions on indebtedness which is satisfied by the foreclosure, in a Court of Chancery, of a mortgage security. The allowance of commissions within the maximum fixed by statute, is within the sound discretion of the Probate Court, and will only be controlled in case of abuse.
    APPEAL from Chicot Circuit Court.
    Hon. John A. Williams, Special Judge of Circuit Court.

      D. H. Reynolds, for appellant.
    Administrator can only be charged, above the statements of his account, by matter alleged and proved. 2 Brad. Sur. Reps., 165; 1 ib., 265; Williams on Ex’rs., 1874. Party cannot have more than is claimed in pleading. 5 Ark., 513; 8 Ark., 456. Error in the charge of $6,000.
    Due care taken of the cabins, and the administrator not responsible. Fudge v. Burn, 51 Mo. Rep., 264; Williams on Ex’rs., 1529-30, and cases cited in the note thereto.

      The attorney’s fee of $450 should have been allowed as a matter of propriety, notwithstanding the letter of the law. Williams on Ex’rs., 359 ; Sedg. on Stat. Law, 2347.
    Administrator should be protected in doing what the court would have ordered on application. 7 Vesey Jur., 150; 4 Vesey Jur., 369; Tiner, adm’r., v. Christian, admr., 27 Ark., 30; W’ms. ®n Ex’rs., 1778 and 1580-1, and note citing cases.
    Lands are assets, and administrator entitled to commissions on those sold under foreclosure against estate. Gould’s Dig., chap. 4, secs. 67 and 164; p. 121, sec. 101 ; 21 Ark., 65; 25 Ark., 318. W’ms. on Ex’rs., 1148 and n.; 18 Ark., 85 and 170, like costs of suit. W’ms. on Ex’rs., 849; Succession of Girod Herring’s Digest, p. 1520, par. 14; 1 Tucker Sur. Rep., 130.
    Commissions should be upon each item, and not an aggregate sum. Gould’s Dig., ch. 4, sec. 123.

      Garland, for appellee.
    The evidence sustains the allowance of the exceptions.
    The attorney’s fee was not based on any order- of court. Gantt’s Digest, p. 181, sec. 197, note.
    • No commission allowable on the sum of $1,837.50 retained by Commissioner in Chancery. Ib., p. 171, sec. 122 and note.
    The court was favorable to the administrator and he should be satisfied.
   Harrison, J.:

The New Orleans Canal and Banking Company, a creditor of the estate of Francis Griffin, deceased, filed in the Circuit Court ■of Chicot c >unty, having then jurisdiction in matters of administration, exceptions to the account current of Edward P. Johnson as administrator of said estate.

Upon the hearing certain of the exceptions were allowed, and the court ordered the account to be restated and corrected in accordance therewith.

Johnson having died during the pendency of the exceptions, Daniel H. Reynolds, his administrator, excepted to the decision of the court in sustaining the exceptions, and also in refusing to allow more than three per centum on the aggregate sum of $5,029.64, as compensation for risk and trouble in the settlement of the estate, and appealed.

The first objection presented by the appellant’s bill of exceptions, is, that the administrator is charged with $6,000 rent of the Point Chicot plantation for the year 1869.

It was proven that he received from Sessions, who had leased it, $6,000 for the rent of said plantation that year. But he denied that said rent was part of the assets of the estate, a.nd claimed that John L. Whitaker, executor of Horace F. Walworth, who held a mortgage on the plantation, the condition of which was forfeited, was entitled to the rent that year, and, being so entitled, he had relinquished the same to him for the benefit of the heirs of Griffin, one of whom was his wife.

Whitaker, it appears, had recovered judgment in ejectment against Sessions, the tenant, for the plantation, which was superseded by an appeal to this court, and had brought suit in equity to foreclose the mortgage. To have the matter settled without any unnecessary delay, he agreed with Johnson, who could make no real defense to the suit for foreclosure, in consideration that he would not protract the litigation, and would allow the suit to be determined on its merits at the next term of the court, to relinquish to him, for the benefit of the heirs of Griffin, who, as the estate was insolvent, would otherwise get nothing, the rent of the plantation for that year. Accordingly, the cause was heard at the April term, 1869, when a decree was rendered for a foreclosure and a sale of the plantation, and Whitaker gave to Johnson a receipt for the rent.

The plantation was sold and only brought the amount of the decree. It does not appear whether the rent was accounted for in the rendition of the decree, or for what sum the same was rendered.

The action of ejectment was begun on the 16th of April, 1868, but the date of the judgment is not shown, yet as it was rendered at a term previous to the April term, 1869, it most probably was before the beginning of that year. No rent or damages were recovered in the judgment, but, upon its affirmance by this court the plaintiff would have been entitled to recover on the supersedeas bond, the rents -accruing between the date of the appeal and of the affirmance. What became of the appeal, whether it was dismissed, or whether the judgment was affirmed or reversed, there is nothing in the record before us to show, and the proceedings in that suit, so far as exhibited by the bill of exceptions, offered no satisfactory evidence as to whether the administrator, or the mortgagee, was entitled to the rent in question. But, as a general thing, the mortgagee, after forfeiture, is entitled to take possession of the mortgaged premises, and there is nothing appearing in this case to countervail the presumption of such right. He does not, however, take the rents and profits absolutely, but subject to an account, and to be applied by him to the extinguishment of the mortgage debt, and for that purpose only does he take possession. Nor is he .entitled to the rents and profits until he has taken possession of the premises, or taken necessary steps to- obtain such possession. It becomes-important, therefore, to fix the time from which Whitaker was-entitled to the rents.

We cannot hesitate in the conclusion, from the facts disclosed, that the mortgage was forfeited, and Whitaker entitled to take possession. It was, therefore, competent and proper for Johnson to surrender it to him without suit, which he virtually did by the agreement before stated. We may safely then conclude that Whitaker was entitled, not only to the rent thereafter to accrue, but such as had already accrued for that year. Cruise’s Digest, Tit. 28, c. 1, sec. 65; Burden v. Thayer, 3 Met., 76. But the question remains: Did he account. for it, to the estate, in the satisfaction and discharge of the mortgage debt? The evidence is wholly silent on that point. There is nothing to indicate that it was taken into account by the court when rendering the decree, or that it was ever afterwards credited thereon.

As it was not collected or even due when the decree was made, we see nothing to lead us to infer the credit was then admitted, and we cannot infer, in the absence of all proof, that it was subsequently given. The only evidence in regard to the amount at the time of the- sale, to be gleaned from the bill of exceptions, is the expression in the admission of the parties that “the plantation brought at the sale only the amount of the decree.”

If actually applied towards the extinguishment .of the mortgage, and the estate so received the benefit of it, the creditors of 'Griffin have no reason to complain that Johnson was allowed by Whitaker to retain it for the heirs, for they suffered no injury, but if not so applied, Johnson should be, and was., rightly charged with it in his account.

Standing in the relation of trustee to the creditors and heirs, -Johnson could not use the property of the estate, nor his relation to it, for his own personal advantage, or that of the heirs, against the creditors. Perry on Trusts, secs. 427, 428.

And until the creditors were paid, the heirs were entitled to nothing.

It is further insisted that if chargeable at all, he should not have been with more than $4000, the amount he is alleged, in the creditors’ exception, to have received.

In answer to this, it is only necessary to say it was the plain ■duty of the court to charge the administration with whatever ■amount he received, though no exception had been filéd to the account.

The second objection is, that the administrator is charged with. $300, the value of two frame cabins removed from the Tecumseh plantation.

The evidence is, that the cabins being in a ruinous and fallings condition, the administrator gave a person who promised to replace them, or pay their value, permission to take them away. There is no proof that anything was ever paid.

For anything that appears to the contrary, the cabins were part of the realty, and their removal an act of waste.

The administrator is entitled to the possession of his intestate’s lands only as assets for the payment of his debts, for which purpose he may take the rents and profits, or, under the order of the court, sell them; and he is not in his settlements, however he may be otherwise, accountable for waste. He should not, therefore, have been charged with the value of the cabins.

The third objection, is the refusal of the court to allow a credit, for $450, paid an attorney for defending the before mentioned action of ejectment.

No order authorizing him to employ an-attorney for such purpose was made by the court; and as it was in its sound discretion to do so or not, its refusal to allow the administrator credit for such expense in his account, -when no abuse of its discretion is shown, must be conclusive. Gantt’s Digest, secs. 195-97; Tinor v. Christian, 27 Ark., 306 ; Turner v. Tapseott, supra.

The next is the refusal to allow him credit for $1857.50, percentage or commissions on the amountthe Point Chicot plantation, • sold under the decree of foreclosure and sale of the Chancery Court.

We are at a loss to conceive upon what grounds the claim for this credit is asserted. That portion of the estate was withdrawn from the jurisdiction of the Court of Probate by the Chancery Court, and applied by that court to the satisfaction of the debt for which it was specially pledged or mortgaged, and the proceeds of the sale were never assets in his hands, and he was subjected to no risk or trouble on account of the same, for which he should be compensated.

The remaining objection is that he was entitled, as compensation, to ten per centum on the sum of $1000, and five per centum ■on $4029.64, but was only allowed three per centum on the aggregate sum. It was admitted that he had been allowed in a former settlement commissions according to these higher rates.

The compensation an executor or administrator shall receive for his risk and trouble in the settlement of the estate, except as to maximum rates of per centage, rests in the sound discretion 9f the court, which, though it cannot exceed, may allow less than those rates; and its discretion, unless grossly abused, is not subject to review. Gantt’s Digest, sec. 122; Bell ex parte, 14 Ark., 76.

In the above case the court say : “ The Probate Court may therefore properly, in the exercise of a sound discretion, fix the compensation at a rate of commission less than the maximum allowed by law, while in another case it might, with equal propriety, allow the maximum of ten per centum commission for the first one thousand dollars of the true value of the estate, five per cent on the next four thousand dollars of that value, and three per centum for so much of that value as was beyond five thousand dollars.”

Whilst we would not reverse this case on the ground of the uncertainty of the proof as to the application of the rent, and so overrule the decision of the court below on a question of fact, yet as it has to be reversed because of the error in charging the administrator with the value of the cabins, we deem it proper to direct a rehearing of the exception filed to the account as to the said rent.

The judgment of the Circuit Court is reversed and the cause is remanded to it, with instructions to remand the same to the Court of Probate that a new hearing of said exceptions may be had, and that said error in regard to the value of the cabins, may be corrected, and that the cause be proceeded in according to law.


author: English, Ch. J.:

text:
    Boyd vs. Carroll.
    Practice: Bill of exceptions; agreed statement, etc.

    The transcript states that the cause was tried on an agreed statement of facts; it also shows that additional evidence was introduced, and recites that the appellant tendered a bill of exceptions, which was signed, sealed and made a part of the record, but there is no bill of exceptions in the transcript. Held: First — If the cause had been tried exclusively on the agreed statement of facts, it should have been made part of the record. jSfecorad^-The cause having been tried on additional testimony, it, as well as the ruling of law by the court, should have been brought into the record by bill of exceptions.
    APPEAL from Ashley Circuit Court.
    Hon. T. F. Sorrells, Circuit Judge.

      Johnston & Hawkins for appellant.
    ' The payment was voluntary, and cannot be recovered. Hall v. Schultz, 4 John. Rep., 240, note a, 2d ed.; Bank óf U. S. v. Bank of Washington, Curtis U. S., vol. 10, p. 3.
    Justice’s action valid. Hawkins v. Filkins, 24, 286. Affidavit was made and delivered to justice in due time. Acts 1873, p. 453, sec. 97.

      John Carroll, for appellee.
    The appeal was not taken according to law, and should have been dismissed. Gantt’s Digest, 3821; Merrill & Bro. v. Manees, 19 Ark., p. 647. The transcript sent up by the justice is conclusive. Rose’s Digest, p. 481, secs. 121, 122.

      The money was wrongfully received by appellant, who was agent for his father, F. A. Boyd, and may be recovered. Chit. Plead., 8th Am. ed., vol. 1., pp. 36, 351, 352; Story on Contracts, secs. 422, 423; Gr. on Ev., vol. 2, secs.. 117, 121; Wheaten’s Selwyn, ed. 1823, vol. 1, pp. 65, 70.
    On the right to recover. Code, secs, 692 to 697 ; Rose’s Digest, p. 334, secs. 119 to 123.
   English, Ch. J.:

John Carroll sued Charles M. Boyd before a justice of the peace of Ashley county, on an account for money had and received for his use, etc. Carroll obtained judgment, and Boyd appealed to the Circuit Court.

The cause was tried in the Circuit Court, before the court sitting as a jury, finding and judgment for Carroll, and motion for new trial overruled.

There is a statement in the transcript that the cause was submitted to the court on an agreed statement of facts, which is copied.

There is also a statement in the transcript, that in addition to the agreed facts, Boyd, Carroll, and a witness named Harbison, were examined, and what each of them testified is briefly stated.

Then follows a statement, that this being all the evidence, the court ruled the law to be, that Carroll having paid the money upon a’void judgment, (See Carroll v. Boyd et al., 27 Ark., 183,) he had the right to recover it back.

There is also a statement in the transcript, that Boyd excepted to the decision of the court overruling his motion for a new trial, and tendered a bill of exceptions, which was signed, sealed and made part of the record, but there is no bill of exceptions in the transcript.

If the cause had been tried exclusively on the agreed statement of facts, it should have been made part of the record by bill of exceptions, or by an entry identifying it, and making it part of the record. Ashley v. Stoddard & Co., 26 Ark., 653, and cases cited.

But here the case was tried upon additional testimony of witnesses, which, as well as the ruling of law by the court, should have been brought upon the record by bill of exceptions.

It would be an unsafe practice for this court to review decisions of the Circuit Court upon evidence merely copied into transcripts, but made part of the record in no established mode.-

The judgment must be affirmed.


text:
    Allen vs. Rogers.
    Petition to Reinstate: Requisites of.

    This was an attempt, by a trustee, to subject land embraced in a trust deed to the cost of the trust, by reinstating a case instituted to enjoin the execution of the trust, which had been dismissed. The court, without reinstating the case, decreed in favor of the plaintiff, for the cost of the trust; Held, that the court should not have granted relief without reinstating the case, and that the petition should have shown that the suit which had been dismissed, presented such a state of case as would have entitled him to the relief sought.
    APPEAL from Crittenden Circuit Court in Chancery.
    Hon. L. L. Mack, Circuit Judge.

      Brown & Ford, for appellants.
    The proceedings, and practice were unauthorized.
    If the former suits had been revived, appellee could have had no relief, without cross bill. Sto. Eq. PL, sec’s 391, 391a.
    But the court could not reinstate. Miller v. Hemphill, 4 Eng., 488. •
    Want of proper parties.

      Adams & Dixon, for appellee.
    Thé answer admits all, but notice of complainants claim. Gantt’s Digest, sec. 4608. The record of the trust deed was notice of all trustees’ rights under it. Purchasers took cum onere. Ib. 5021, 5023, 5024, 5025, and 860, 861. As also was the Us pendens. Sto. Eq. Ju., sec. 406 ; Per. on Trusts, sec. 223; Whiting v. Beebe, 12 Ark., 421; Ashley v. Gunningham 16 id., 175; Merrick v. Hutt 15 Ark., 344; Lytle v. State, 17 id., 609. Jurisdiction arises from the trust. Conway, ex parte, 4 Ark., 302. The expenses of the trust were included in it, which was notice of the charge. Story’s Eq. Ju., sec. 400, and authorities cited. Perry on Trusts, sec. 223.
    In America, trustees are entitled to compensation. Barney v. Sanders, 21 Curtis, Dec., 291; Miller v. Beverly, 4 Hen. and Mun. R., 415; ex parte Roberts, 3 I. C. R., 43; Meacham v. Starnes, 9 Paige, 401, 403; Matter of DePeyster, Sam’l, ch. R, 548; Shirley v. Gushman, 6 Cushman, 26; Boyd v. Hawkins, 2 Dev. Eq., 334; Ringgold v. Ringgold, 1 Harr. & Gill., 27; Nichols v. Hodges, 1 Peters, 565; Sto. Eq. Ju., sec. 1268 n. 4; Biscoe v. State, 23 Ark., 599; Perry on T., sec. 903, a, 907, 910 n. 4.
   Walker, J.:

Rogers filed a petition in chancery, in the Crittenden Circuit Court, in which he states that one Miller conveyed to him certain lands, in trust, to secure the payment of several debts due by Miller to Mrs. Armstrong, with power of sale as the sevaral debts matured; that when the first debt matured, at the instance of Mrs. Armstrong, he gave notice to sell. Miller paid the money to Mrs. Armstrong, and no sale was made. When the second debt became due he again gave notice to sell; that Miller filed a bill and enjoined the sale; that pending this suit Miller sold the land to Thomas H. Allen & Co., who paid the mortgage debt to Mrs. Armstrong, without paying the expenses of the trust, and, with a full knowledge that the expenses were unpaid, bound himself to discharge the land from the trust; that petitioner has applied to Allen for payment of expenses, but he refused to pay them, with a prayer that the case of Miller against Mrs. Armstrong and Allen & Co., may be reinstated on the equity docket; that petitioner may be allowed and decreed his expenses and costs in the execution of the trusts, and that they be declared a lien upon the land and that the lands may be sold .to pay the same.

The defendant, Allen, answered, and raised the question of the sufficiency of the bill, by way of demurrer.

First — Because the court had no jurisdiction of any such proceeding, or to grant any such relief as is prayed.

Second — That the complaint does not state facts enough to constitute a cause of action against defendant.

The court overruled the demurrer, and, after having heard evidence as to the value of the services, expenses and commissions, rendered a decree in favor of the plaintiff for the sum of $593.75. From which defendant appealed.

"Without questioning the right of a trustee to payment out of the trust estate for his expenses and proper charges, in the execution of the same, our attention will be directed to the sufficiency of the allegations in the petition for the purpose of obtaining the relief sought.

The petition seems to have been intended to procure an order to reinstate a suit brought by Miller to enjoin the collection, by sale, of the second installment due. The prayer of the petition is, that the case of Miller against Mary B. Armstrong and Thomas H. Allen & Co., may be reinstated upon the equity docket, and that the petitioner be decreed costs of trust, etc. We find no order reinstating any such case, nor any'case upon the docket, nor is there anything in the' transcript before us showing that any such case existed.

The purpose and object of this petition was to have a case, which had been dismissed, reinstated upon the docket, and it was upon the state of the pleadings in the case so reinstated, that the court was to determine whether Allen & Co., the purchasers of the land, should take it free from the payment of the costs of the execution of the trust or not. In the absence of the pleadings in that case, we are left to conjecture what they might be, from the mere fact that it was a proceeding to enjoin the sale of the land by the trustee, and it is difficult to conceive how a proceeding for that purpose could present a state of case for relief to the trustee, by authorizing the sale of the same lands which were sought to be enjoined.

The court below seems to have treated the petition to reinstate a case upon the docket, as that to be tried, whereas if there had been merits in the petition, the prayer of the petition should have been granted and the case docketed. But even for this purpose the petition was fatally defective. It should have shown that the suit, which had been dismissed (if on the docket), presented a state of case under which the petitioner would have been entitled to relief.

Let the decree of the court below be reversed and the case dismissed.


text:
    Marshall, adm’r, et al., vs. Ramsauer.
    Certiorari: Proceedings on.

    WJiere a writ of certiorari is ordered by the court, the record must show that the writ was issued, and a record of the proceedings desired to be reviewed, certified to the court, in obedience to it.
    APPEAL from Arkansas Circuit Court.
    Hon. P. C. Dooley, Circuit Judge.

      S. R. Cockrell, for appellants.
    The notice for application to sell lands is notice to the worldGantt’s Digest, 176, 4031, et seq. Ramsauer should have made himself a party; Marr., ex parte, 12 Ark., 84. Might have been corrected on appeal, and so certiorari will not lie. Allston, ex parte, 17 Ark., 580.
    As to parties. See Gantt’s Digest, sec. 4417.
    Proceedings legal. Sec “ Chapters of the Digest,” secs. 10, 23, .29, with Gantt’s Digest, sec. 1178.
    Confirmation cures. Rorer. on Judicial Sales, sec. 122. Reversal would not affect purchaser’s title. Moore v. Neil, 39 111., 256 ; 36 ib., 315; 28 ib., 108; Estes v. Booth, 20 Ark., 583; 5 Monroe, 452; 29 Mo., 315; 10 Peters (U. S.), 473; 1 Cowen, 734.
    Further as to notice. Reddick v. State, 27 111., 145, Tawnier man v. Phelps, ib., 496; Banks v. Banks, 31 ib., 162; Rose’s Digest, p. 129, sec. 35.

      L. A. and X. J. Pindal, for appellees.
    The record discloses errors in the Probate Court. First— Want of notice of the petition to sell. Sec. 176, Gantt’s Digest, not repealed by act of July 14, 1868. No day is stated for the presentation. Section 170 was not complied with; nor 171. Other errors and informalities are shown.
    This is a direct proceeding to quash and set aside the proceedings of the Probate Court. Sturdy v. Jacoway, 19 Ark., 499.
    Purchaser was one of the appraisers. Cornell v. Crawford Co., 6 Eng., 604. Petitioners had no notice nor opportunity to appear. Section 690, Civil Code, governs advertisements of real estate, and section 80, as amended in 1871, governs notice of application.
   Walker, J.:

This case comes before us on an appeal from the judgment of the Arkansas Circuit Court, in which, upon certiorari to the Probate Court of said county, an administrator’s sale of land belonging to the estate of his intestate, was quashed and set aside.

By reference to the transcript before us, it appears that, although the Circuit Court granted the writ, and ordered that one should be issued, directed to the clerk of the Probate Court, in fact, no writ was issued or returned. There is, however, a transcript of the record of the Probate Court copied in the records brought before us, and upon which it may be presumed the Circuit Court acted. This transcript has appended to it the certificate of the clerk of the Circuit Court, and ex officio clerk of the Probate Court, that it is a full and complete transcript of the records and proceedings in that case in the Probate Court, but does not state that he makes this transcript in obedience to the command of a writ of certiorari, or why moved to do s®. This transcript does not appear to have been filed.

Under this state of case, as a preliminary question, we must determine whether the records of the Probate Court were or not properly before the Circuit Court. We have several decisions upon this question to which we should refer, and which, to some extent, settle this question.

In the case of McKay v. Jones et al., decided at the present term of this court, we held, that in order to give the Circuit Court jurisdiction of a case intended to be brought by certiorari from the Probate Court to the Circuit Court, it was not sufficient to show that the judge in vacation, or the court, if in session, had ordered that a certiorari be issued to the clerk of the Probate Court, commanding him to certify the records of the Probate Court to the Circuit Court. But it must also appear that a writ of certiorari had, in fact, issued, in obedience to which the transcript had been certified, in order to give the Circuit Court jurisdiction of the ease, and to enable it to pass upon the validity of the proceedings and judgment of the Probate Court.

In the case of Denton v. Boyd, 21 Ark., 264, a writ of certiorari was ordered, but not issued a,nd returned with a transcript of the record as required. It was held that there was nothing before the Circuit Court for its adjudication.

In the case of Dicus v. Bright, 23 Ark., 107, it was held, that on certiorari to remove a judgment of a justice of the peace into the Circuit Court for review, the case is not properly before the court for final adjudication until, in obedience to the writ, the justice returns an authenticated transcript of the proceedings and judgment sought to be reviewed.

In the case before us, so far as appears from the transcript before us, no writ has been issued, and, of course, no return. The transcript which has been copied and sent up to this court does not even appear to have been filed, and is, in fact, no part of the records in the case. Until the records sought to be set aside and quashed are brought before the court in obedience to the writ, there is no case before it.

We must, therefore, hold that the judgment and proceedings of the Circuit Court were erroneous, and must be reversed and set aside with costs, and the cause remanded, with, leave to the appellee to have a certiorari issued in accordance with the order of court, or, upon failure to do so, that the suit be dismissed.


author: L. A. Pindall, Sp. J.:

text:
    Goodwin et al. vs. Robinson.
    1. Recoupmeni:
    A vendee who purchased land on the false and fraudulent representations
    of his vendor, as to its quality, is entitled to recoup his damages in an action for the purchase money; he need not show, in his answer, when •he discovered the fraud, or an offer to rescind the contract.
    2. Pbactice: Striking amended answer'.

    After demurrer sustained to an answer, it is in the discretion of the court to strike an amended answer, raising the same issues, from the files.

      3. Fraud: False representations. When scienter need notie shown.

    If one in the possession of land, professing to be familiar with its quality, by false representations in respect thereof induce another to contract in reference to it, he is liable for the deceit, whether he knew the representation to be false or not.
    4. Pbaotioe:
    The sufficiency of an answer should be raised by demurrer, and not by a motion to strike.
    APPEAL from Calhoun Circuit Court.
    Hon. J. T. Elliott, Circuit Judge.

      Met. L. Jones for appellant.
    The last answer was arbitrarily stricken out. No cause appears. Newman’s PI. and Pr., 469, 474; Blackmore v. President, etc., 4 Ark., 454; Pennington v. Gibson, 6 Ark., 447; Crary v. Ashley, ib., 203; 1 Chitty Plead., 486, 508.
    The first answer contained a good defense. Wheat v. Dotson, 12 Ark., 699; Walker v. Johnson, 13 Ark., 526; McDaniel v. Grace, 15 Ark., 477; Barnes v. Anderson, 21 Ark., 126; Dickson v. Richardson, 16 Ark., 119; Cockrill v. Warner, 14 Ark., 356; Desha v. Robinson, 17 Ark., 228; Rotan v. Nichols, 22 Ark., 248; Miller v. Wood, 23 Ark., 546.' .
   L. A. Pindall, Sp. J.:

This was a complaint at law upon a note under seal, executed by the appellants to the appellee, dated 8th October, 1866, and due 1st March, 1869, for $1,600 and interest after maturity, as expressed in the note, “in part payment for his plantation in Calhoun county.”

The questions for determination arise upon the defenses the appellants attempted to interpose to the suit.

An answer was filed at the October term, 1874, in which it was alleged, in substance, that the writing obligatory, upon which the suit was based, and two other writings obligatory, amounting in all to $4,400, were executed by the defendants to the plaintiff in consideration of the purchase of a plantation in Calhoun county, which is particularly described by numbers in said answer, and for no other consideration.

That to induce defendants to purchase said plantation and to execute said writings obligatory, the plaintiff falsely and fraudulently represented to the defendants, that all the cleared land he then occupied was on said plantation, and that there were 400 acres of said land cleared, and in a high state of cultivation, and that said plantation was in good repair and condition.

That said defendants had never seen said plantation and knew nothing about it, except as informed by said plaintiff, and that they, purchased the same and executed the writings obligatory therefor, relying wholly upon the truth of said representations. That said representations were false ; that 150 acres of the cleared land occupied by plaintiff, at the time of said representations, and purchase, were not on the lands embraced in said plantation, but were upon the public lands of the United States and not embraced in said sale and purchase, and that there were not 4Q0 acres of cleared laud on said plantation, but only 240 acres of said lands were cleared or improved lands; that said plantation was not in good repair or condition, but that the houses, gin-buildings, lots, fields, gates and fences were dilapidated and decayed, and that said plantation was not in a high state of cultivation. That the defendants did not know that said representations were false, but believed them to be true and were deceived thereby.

That they had paid off the other two writings obligatory. That the difference between the true value of said plantation, and the value it would have had if said representations had been true was $1,600 the principal of the note. Wherefore they plead a total failure of consideration for the writing obligatory sued upon.

The plaintiff interposed a demurrer to the answer, which was sustained by the court, and the first question here arises upon the exceptions taken by appellants, to the ruling of the court on this demurrer. This answer in effect sets up a claim for damages sustained by appellants by reason of the deceitful and fraudulent representations of the appellee, in and about the contract out of which the appellee’s claim arises. It is in reality an independent cause of action by the defendants against the plaintiff®, but in as much as it is between the same parties, and grows out of the same transaction in which plaintiffs’ claim originated, to avoid a circuity of action, and a multiplicity of suits, the tendency of modern decisions is to permit this cause of action to be recouped against the sum claimed by the plaintiff in the original suit.

A partial failure of consideration as to real estate is the subject of recoupment, when the partial failure is in the quantity or quality of the subject, otherwise where there is a partial failure in the title.

This was ruled by this court in Wheat v. Dodson, 12 Ark., 699, after a very elaborate examination of the authorities, and the reasoning upon which they rest, and has been followed by this court in a number of cases since. See Walker v. Johnson, 13 Ark., 526; McDaniel v. Grace, 15 Ark., 477; Barnes v. Anderson, 21 Ark., 126; Dickson v. Richardson, 16 Ark., 119; and Cockrill v. Warner, 14 Ark., 356.

In Desha v. Robinson, 17 Ark., 246, it is laid down as well sustained: “That in all that class of cases, commonly called failure of consideration, whether involving bad faith or not, or where fraud has intervened, or ibere has been a breach of warranty, fraudulent or not, or of any other stipulation of the contract sued upon, entitling the defendant to a cross action against the plaintiff, to recover damages for such failure, fraud or breach, he may, if he elect to do so, instead of resorting to such cross action, plead the matter by special sworn plea under the provisions of our statute, or, if upon a verbal contract, plead the general issue, and give notice of the matter relied upon and claim a reduction of the amount the plaintiff would otherwise recover, corresponding with the injury he had sustained.” The defendants, therefore, could recoup the damages they claimed from the plaintiff by reason of the fraudulent representations in the sale of the plantation concerning the quality or quantity of the land, in this suit for the purchase money.

Was the answer sufficient in this case? The demurrer questions it upon five grounds:

First — That said plea fails to show that defendants purchased the premises therein stated solely upon the representations of plaintiff.

This was not true in point of fact for the answer expressly states that defendants had never seen said plantation, and knew nothing about the same, except as informed by said plaintiff, and relied wholly upon the statements and representations of said plaintiff and were deceived thereby, and were thereby induced to purchase from said plaintiff, and did purchase, etc., etc. We think the answer is sufficiently full.

It is said in the text, 3 Parsons on Contracts, 775, that “it must appear that the injured party, not only did in fact rely upon the fraudulent statement, but that he had a right to rely upon it in full belief of its truth, for otherwise it was his own fault or folly, and he cannot ask the law to relieve him from the consequences. If, however, he mainly and substantially relied upon the fraudulent representations he will have his action for the damage he sustained, although he was in fact influenced by other causes," and in a note it is said, “It is not necessary that the vendor should rely solely on the fraudulent statements of the defendant as to the solvency of a third party, in order to give a right of action. It is sufficient if the goods were parted with upon such representations, and would not have been but for them,” citing Addington v. Allen, 11 Wend., 374, and Young v. Hall, 4 Ga., 95; and both the citations sustain the principles of the note.

• We do not think it comes with a very good grace from a party who has deceived and defrauded another by false representations, to shield himself from responsibility by claiming that other influences may have aided him in the deceit, contributed to his assistance, any more them it would to olvide his dupe for his credulity.

For the second ground of demurrer it -is alleged that the defendants fail to show, in their answer or plea, when they discovered the fraud and false representations of which they complain, nor do they propose to rescind the contract, or aver that they have been ousted by title paramount.

A party, who has been induced to enter into a contract for the purchase of property by the false representations of the vendor, concerning the (quantity or quality of the article sold, may have either of these remedies which he conceives it is most to his Interest to adopt.

He may annuli the contract, and by returning or offering to return the property purchased, within a reasonable time, entitle himself to recover whatever he had paid upon the contract, or he may elect to retain the property, and sue for the damages he has sustained by reason of the false and fraudulent representations, and in this event the measure of the damages would be the difference between the real value of the property in its true condition, and the price at which he purchased it, or, to avoid a circuity of action, and a multiplicity of suits, he may plead such damages in an action for the purchase money, and is entitled to have the same recouped from the price he agreed to pay. 2 Kent Com., 8 ed., pp. 605 and 610; Sugden Vendors, 381, star paging; Sedgwick on Damages, pp. 445-6; Desha v. Robinson, supra.

In this answer the defendants are not seeidng a rescission of the contract, but merely a recoupment of the damages they allege they have sustained by the inferior quality of the property, which they were induced to purchase by the fraudulent representations of the plaintiff. When they discovered the fraud is j therefore not material, nor is an offer to return the property neces-' sary.

As to the third ground of demurrer it is alleged that defendants failed to make profert of the conveyance to them by plaintiff.

The answer does not shew that a conveyance was executed, nor was one necessary to their rights in this action. It does show that there was a purchase of land, and the execution of these notes under seal, and that said purchase and the execution of these notes were procured and induced by certain representations concerning the quality of the land; that these representations were false, and that defendants were damaged thereby, all of which is sufficiently alleged, and defendants’ right of action grows out of the fraud.

If the fraud concerned the title to the land, the conveyance which evidenced .the title, and the covenants which secured it, would be material, as was held in McDermott v. Cable, 23 Ark., 200; but as the fraud concerns the quality of the land, which would not appear in the deed, or be secured by the covenant, the cause of action is not founded on any conveyance.

Our Code requires that where the cause of action is founded on any note, bond, or other writing, or where either party shall rely on any deed, or other writing, such writing shall be filed with the pleading. Gantt’s Digest, 4599 and 4600. But we have shown that such is not the case in this answer, and if this were not true, such ©bjeetinn is not cause for demurrer under the present system. Nordman v. Craighead, 27 Ark., 373; Newman’s. Prac. and Plead., 251-52.

For the fourth ground of demurrer, it is alleged that defendants answer makes no such case as amounts to a defense to the action; and as to the fifth ground, that defendants cannot defend without offering to place plaintiff in the same condition that they found him when they made the purchase or discovered the alleged fraud.

These two assignments are sufficiently adverted to in our remarks upon the first and second grounds above.

Our conclusion upon this demurrer is, that the answer, if true, is a good defense to the suit, so far as the damages defendants sustained by reason of the facts averred therein, and that the court erred in sustaining the demurrer.

After the demurrer was sustained in the court below, the defendants, upon leave obtained from the court, filed an amended answer, which the record shows was stricken out by order of the court for good cause shown. And as the case must be remanded for the errror above mentioned, it may be useful to advert to these exceptions taken by appellants to the ruling of the court in striking out said amended answer.

This amended answer was in three paragraphs. In the first paragraph the defendants set up the same matter that was pleaded in their original answer, with a single additional averment, “That the said plaintiff knew at the time he made the said representations that they were false.”

By the second paragraph, defendants set up that, at the time of said contract, as an inducement to said purchase, plaintiffs falsely and fraudulently represented to defendants that said plantation contained 1153J acres; that defendants had never seen the same, and wholly relied upon the representations, and being deceived thereby, purchased said plantation and executed the writing-obligatory sued upsm ; that said plantation did not contain 1153J but only 1103-2- acres, and that, by reason of said false representations, the defendants have a counter claim against plaintiff for the value of said fifty acres less than as stated by plaintiff!, to-wit, for $170.

By the third paragraph of this amended answer, defendants set up the same matters as was plead in the original answer, with two additional averments; That the 158 acres of cleared land,

which was on the public lands of the United States, and not on the lands conveyed, had long since been given up and yielded by defendants, and that immediately after said defendants ascertained that said represenations were false, and before the note herein was sued upon, the defendants filed their bill on the equity side of said Circuit Court of Calhoun county, setting up all the facts, and offering to rescind the contract and showing that they were able and willing to place plaintiff in statu quo, and that said suit was still pending.”

This answer was duly sworn to and filed by leave of the court first asked and obtained, and in the same record entry noting the leave given and the filing, proceeds to show “ That, on motion of plaintiff, and for good cause shown, it is ordered that the amended answer, just filed, be stricken out.”

Defendants excepted to the ruling of the court striking out this amended answer, and final judgment nil decit was taken. Defendants again excepted, and appealed to this court.

If this motion and the good cause shown, were in writing, they are omitted from the transcript, and we are not advised of the reason which actuated the court in striking out the pleading. We will, therefore, look to the legal effect of the second paragraph, and the attitude of the case as it then stood.

In regard to the first paragraph, if the legal effect of the original answer was changed by inserting the averment concerning plaintiff’s knowledge of the falsity of his statements, we conceive the defendants would have the legal right to refile their pleading thus amended, and to have the same considered by the court, but if this averment did not materially change the legal effect of the pleading, it would be no abuse of the discretion of the court to refuse to permit defendants to cumber the records, and take up the time of the court by pleading the same matter again and again, after it has once been duly considered. The question, then, is whether it was necessary for defendants expressly to aver that plaintiffs knew these representations were false at the time he made them, in order to charge him with the damages they had sustained by reason of the deceit practiced upon them.

It is averred in the original answer that the defendants were in ignorance of the facts represented by plaintiff, and that they relied wholly upon these representations; that plaintiff falsely and fraudulently made these representations in a treaty for the sale of the land; that they were made to induce defendants to purchase the land and execute the writing obligatory sued upon ; that they were false, and that defendants were deceived and damaged thereby.

It is apparent that these representations were made in relation to his own property, occupied by him, of which he assumed to speak, and with which he is presumed to be familiar, in a treaty from which he was to derive, advantages. We think from the-allegations in the original answer, upon moral considerations as well as upon well settled principles of the law, appellee was responsible for the damages alleged to have been sustained by the appellants, whether he knew the representations to be false or not. 3 Parsons on Contracts, 784-5; 1 Story on Contracts, sec. 506. And that therefore the first paragraph of the amended answer presented no other or stronger defense than the original answer, upon which appellants had already obtained the judgment of the'Court, and that the court might have stricken out the first paragraph, without any abuse of its discretion. Newman’s Prac. and Plead., 468-9.

The allegations in the second paragraph, however, presented a defense not made in the original answer — a claim to recoup $170 for an alleged deficiency in quantity, and, in accordance with the principles hereinbefore announced, was a good defense to so much of appellee’s claim.

On this subject, the general rule, as given in 1 Sugden on Vendors, star page 370, is: “That when a misrepresentation is made as to quantity, though innocently, the right of the purchaser is to have what the vendor can give with an abatement out of the purchase money, for as much as the quantity falls short of the representation.” See also, Harrell v. Hill, 19 Ark., 102.

As the paragraph contained a good defense, pro tanto, and as it was properly filed by leave of the court, the plaintiff was entitled to the benefit of it, and it was erroneous to strike it out.

By the third paragraph, appellants attempted to show that defendants had rescinded the contract, but the allegations were not full enough.

It is not claimed that this court of law could rescind the contract, or that the contract had been rescinded, in the equity cause, but the paragraph is upon the supposition that the contract was void from its inception, by reason of the fraud practiced upon the defendants by the plaintiffs, in the treaty in which the contract originated; and the reference to the chancery suit was to show he had elected to cancel the contract, and ought not, in this suit, to be held liable for the purchase money.

As we have before seen, the defendants had their election, either to rescind the contract, or to affirm it and seek relief in a suit for damages. If they elected to disaffirm the contract they must do so within a reasonable time, after they discovered the fraud, must return or offer to return the property, and abandon and give up all they received by the contract, and they must hold themselves in that attitude. Davis v. Tarwater, 15 Ark., 295; Seabourn v. Sutherland, 17 Ark., 606; Yeates v. Pryor, 11 Ark., 75; 3 Parsons on Contracts,-780-782. ;

The allegation here is, that they had yielded up the one hundred and fifty-eight acres, which was not embraced in the contract at all, and in which, under the contract, they had nothing to yield. There is no allegation that they gave up any of the lands embraced in the contract. The allegation that they had filed their bill in chancery, stating all the facts, and showing their ability and willingness to place plaintiff in statu quo, amounts to nothing. It is sufficient to say they do not state the facts here, or show ability or willingness to cancel, in this paragraph, or in this suit. On the contrary, the whole framework of their defense shows that they have elected to pursue their other remedy, mentioned above, that is, to affirm the contract, keep the property, and to claim the damages sustained by them. They show they have paid the first two notes, and claim to have their damages recouped against the one now in suit.

But inasmuch as one of the paragraphs in the answer was a good defense, the court erred in sustaining a motion to strike the whole answer out. Newman’s Prac. and Plead., 660; Buller v. Wood, 10 How. Prac. Rts., 222.

"We may further remark that this court has more than once expressed its disapprobation of the practice of striking out answers or pleas, unless the court clearly perceives that they are wholly frivolous. Blackmore v. President and Directors, etc., 4 Ark., 455; Crary v. Ashley, ib., 207; Pennington v. Gibson, 6 Ark., 451.

"We think a motion to strike out the first paragraph of the amended answer might not have been improper, inasmuch as it presented the same defense which had just been considered; but that the objections to the second and third paragraphs should have been made by demurrer to said paragraphs separately. ■ ■'

We have seen that the second paragraph was good, and while the third paragraph was defective and insufficient, it was not frivolous. It was-signed by counsel, duly verified', and filed by leave of the court, and should not have been stricken out on motion.

If the whole pleadings be defective, and show no cause of action or defense, the defects cannot be reached by motion, but by a general demurrer only.” Newman’s Prac. and Plead., 470; Benedict v. Drake, 6 How. Prac. Rts., 352.

The judgment of the Circuit Court is reversed, and the cause remanded, with instructions to that court to overrule the demurrer to the original answer, and to permit defendant to reinstate the second paragraph of the amended answer, and to proceed with the cause, not inconsistent with this opinion.

Mr. Justice Harrison did not sit in this case.


text:
    Greenfield & Wife vs. Carlton.
    1. Pleading: Reversing demurrer in answer.

    Though the answer go to the whole of the complaint, a demurrer may be embodied in it, and it must be taken up and considered separately be-, fore the cause is called for trial on the issues of fact.
    2. --: Practice in failure to verify pleadings.

    The want of verification cannot be taken advantage of by demurrer, it must be by motion, or rule.
    3. Pleading : Bill for specific performance.

    In a complaint to enforce the .specific performance of a contract it is not necessary to allege the defendant’s ability te perform; it is sufficient, on demurrer, if the complaint state the facts constituting plaintiff’s cause of action. The jurisdiction of Courts of Equity to decree specific performance reviewed.
    APPEAL from Jefferson Circuit Court in Chancery.
    Hon. John A. Williams, Circuit Judge.

      Met L. Jones, for appellants.
    It is incorrect practice to answer the whole complaint, and also demur to the whole, and then take up the demurrer and argue it before hearing. It simply reserves objection to the jurisdiction, and sufficiency of cause of action to be determined at the hearing. Sections .4588 and 4590 of Gantt’s Digest should be construed with sec. 4568. See Davis v. Hines, 6 Ohio St., 473; Slocum v. Wheeler, 4 How. Pr., 373; Spellman v. Wietler, 5 ib., 5 ; Howard v. Mich. & S. R. R. Co., ib., 206; Burr v. Wright, 9 How. Pr., 542; Ingraham v. Baldwin, 12 Barb., 9; Mum v. Barnum, 12 How., 563; Myers Ky. Code, 364.
    Want of tender of a deed of the exact nature, stipulated for is no objection, when the complainant may, and offers to execute the deed required. Sto. Eq. Ju., sec’s 747, 771, 775, 776, 777; Taylor v. Langworth, 14 Peters R., 172; Mechanics Bank of Alexandria v. Lynn, 1 Peters R., 376; Hepburn v. Anld, 5 Cranch, 262. Courts regard the instruction and substance;, not the form. Sto. Eq. Ju., sec. 791. See Smith v, Robinson, 13 Ark., 534; Harris v. King, 16 Ark., 126; Moore v. Anders, 14 Ark., 633; 2 Farr. Eq., Book 1, ch. 6, sec. 2, n. e. The first clause of the contract governs, when inconsistent. 2 Black. Com., 381.
    Jurisdiction vests of specific performance. Sto. Eq. Ju., 716-17, n 738 to 742 et seq.; Fonb’l. Book 1, ch. 3, p. 154, n. 1. Sto. Eq. Ju., 790, 788 ; Do. Pleadings, 160.
    Incumbrances no defense, if they may be discharged by the purchase money, or if complainant may be able to make title at the time of the decree. Hepburn v. Auld supra-, Finley v. Ijynch, 2 Bibb (Ky.) 566; Graham v. Huckwith, 1 Marsh. (Ky.) 423; Tyner v. Williams, 3 Bibb., 366; Seymour v. DeLance, 3 Cow., 445; Woodcock v. Bennett, 1 Cow., 725, 733; Fonb. B. 1, ch. 3, sec. 9, p. 154, note (¿); Brashear v. Grate, 6 Wheat., 528. The exhibit cannot supply an averment. New. PI. and Pr., 250.
    The complainant was bound by the contract, and the defendant must be also, without the deposit. It was mutual Turner v. Baker, ante.

   L. A. Pindall, Sp. J.:

On the 25th of February, 1874, the appellants, James W. ■Greenfield and Matilda Greenfield, his wife, of the one part, and the appellee, Charles H. Carlton, of the other part, entered into articles of agreement for the sale and purchase of a block of ground in Pine Bluff, owned by the appellant Greenfield, and occupied by appellants as a residence.

By the terms of this agreement, the appellants agreed and contracted to sell and convey the said block and the buildings and improvements thereon to the appellee, for the price and sum of $8,000, to be paid as follows: One fourth to be paid in cash, or so soon as possession of the property was delivered, one fourth on or before the 1st April, 1875, one fourth 1st April, 1876, and one fourth 1st April, 1877, all deferred payments to bear eight per cent, interest from date until paid. The parties of the first part agreeing and contracting upon the payment to the said Matilda Greenfield, by the 1st day of April, 1874, of the said sum of $2,000, and the execution by the said Carlton of his notes for the three deferred payments, that they would deliver up the possession of the premises to said Carlton and execute to him their deed to said property, reserving their mortgage lien for the deferred payments, and the said Carlton, “as an earnest of his undertaking, covenanted and agreed that he would, on or before the 15th March, 1874, deposit with a banking house in Pine Bluff, the jsum of $1,000, to be held by said banking house for the use of said Matilda Greenfield, but not to be paid to her unless the terms of the said contract were complied with, and if the terms of said contract were not complied with by the 1st April, said sum of $1,000 was to be returned to said Carlton.

And the said parties of the first part agreed that they would make to said Carlton, upon the complying with the terms of said contract, a full warranty title to said property, the said Carlton executing back to them, or to the said Matilda, a mortgage to secure the unpaid purchase money, and interest.

Appellants- filed their complaint in equity to the October term, 1874, of the Jefferson Circuit Court, exhibiting said contract as part thereof, and alleging that said plaintiffs, had, at all times, since making said contract, been ready and willing to convey said premises to said Carlton, and had at several times since and before the 2d day of April, 1874, in a friendly manner, informed said Carlton of their readiness to make a proper deed, as stipulated, and to deliver to him the possession of said property, on the payment of said $2,000, and the execution of said notes, and requested the said Carlton to pay to said Matilda said sum and to execute said notes, and that they did, on the 1st day of April, 1874, or as immediately thereafter as they could, the said defendant (being at the time absent from the State). so specially inform him, and produced and tendered to him a proper deed of conveyance, properly executed with relinquishment of the dower of said Matilda, and that the said plaintiffs had at all times been ready and willing to execute and deliver the conveyance as specified, they bring the one tendered into court and offer to deliver it upon defendant’s compliance with the terms of the contract, and further alleging that defendant refuses and has ever refused to perform the articles of agreement on his part.

And prays that the contract may be specially performed and carried into execution by the defendant.

At the return term of the summons, the defendant filed an answer to the complaint, in the same pleading reserving a demurrer thereto.

On the 30th August, 1875, the demurrer was taken up and argued, and, upon consideration, was sustained by the court, and plaintiffs appealed to this court.

There was a demurrer filed by complainants to the answer of defendant, but as this demurrer, or the sufficiency of said answer, was not considered or passed upon by the court below, the questions arising thereon are not before us on this appeal.

As a preliminary question, the counsel for appellants insists that the practice of answering the entire complaint, and reserving a demurrer to the same matter, in the same pleading, thereby tendering two issues, one of law and one of fact, is in violation of correct pleading, and cites Davis v. Hines, 6 Ohio Stat., 473; Myers’ Codes, 364, and several cases from the New York books, which sustain the objection, but these cases are not authority with us.

It was the settled practice in this State in equity causes, before ■ the adoption of the Code of Practice, to reserve questions of law to the final hearing of the cause in the answer, and to have the same advantages as upon demurrer interposed in due form. As an example, we may refer to Hadley v. Sullivan, 16 Ark., 141; and in Meux v. Anthony, 11 Ark., 423, it is said the practice is fully sustained.

Our Code of Practice, sec. 4588, Gantt’s Digest, provides:

“ That a party may file a demurrer with his answer or reply,” and in sec. 4590: “That when a party files a demurrer with his answer or reply, the demurrer must be presented for the consideration of the court, at or before the first calling of the cause for trial after the filing of the same; and, if he fails to do so, the demurrer shall be regarded as waived as to all points, except the jurisdiction of the court, and that the pleading demurred to does not state facts sufficient to constitute a cause of action, or defense, counter claim, or set off.

There is no such provision in the Codes of either New York (see Slocum v. Wheeler, 4 How. Pr. Rpts., 374), Ohio or Kentucky. Myers’ Code, notes to sec. 124. The amendment to the Kentucky Code of January 26th, 1866, only permits the demurrer to be filed with the answer, when the pleading is filed in vacation, and in that event requires that it shall be presented for the consideration of the court at the first term thereafter.

But the Legislature of our State, in adopting the Code system, saw proper to change the language of this amendment as given above.

We must suppose they had some object in thus changing it; at all events they have changed its language, and the natural impoi’t is to establish a different rule.

The demurrer, although filed with the answer, indeed embodied in it, is a separate pleading, must be taken up and considered separately, before the cause is called for trial on the issues of fact made by the answer or reply, as was done in this case.

The first ground of demurrer was that the deed exhibited with the complaint, was not such a deed as was contemplated in the contract, and therefore plaintiffs had never offered to comply with their part of the contract.

The complaint alleges that plaintiffs were at all times ready and willing to execute a proper deed of conveyance, such as is specified for, in said articles of agreement.

The deed appears to be in the ordinary form with the statutory covenants and relinquishment of dower, properly acknowledged, and, as no special objection to it is pointed out by the demurrer, and, as plaintiffs offered to make a proper deed, its provisions could have been settled by the court. We think there is nothing in the ■ assignment. Williard’s Eq. Jur., 293.

The second ground of demurrer was not well taken. If the complaint was not at the time verified, the defendant should have required it to be done by motion or rule. This defect was not ground for demurrer. Newman Prac. and Plea., 643-44.

For a third cause of demurrer, it was alleged that plaintiff’s remedy at law is adequate and complete.

The fundamental principle upon which the jurisdiction of equity courts rests in all cases is the supposed inadequacy of the legal remedies to afford complete justice; but, in decreeing’ the specific execution of contracts, a broader jurisdiction has, to some extent, been exercised, and this relief has been granted in many cases where the legal remedies were concurrent.

It is said in Willard’s Equity Jurisprudence, 261, “That every agreement made between parties capable of contracting, upon a lawful subject matter, and upon an adequate consideration, and which is not contrary to public policy, or against any positive statute, should, if possible, be performed. This is required no less by sound morals than by law.” And Sir William Grant remarked, in Hall v. Warren, 9 Ves., that if the contract be entered into by a competent party, and be, in the nature and circumstances of it, unobjectionable, it is as much of course for a court of equity to decree a specific performance as it is to give damages at law. See, also, ib., 297, and Hamilton v. Fowlkes, 16 Ark., 340.

And in commenting upon this head of jurisdiction, Justice Story, 2 Eq. Jur., 714, says that by the common law no redress can be had except in damages. “ Thus, in effect, in all cases allowing the party the election either to pay damages or to perform the contract or covenant at his sole pleasure. But courts of equity have deemed such a course wholly inadequate for the purposes of justice, and considering it a violation of moral and equitable duties, they have not hesitated to interpose and require from the conscience of the offending party a strict performance of what he cannot, without manifest wrong or fraud, refuse.”

And in the late work of Bispham on the principles of equity, 340, it is said: “ Where a binding agreement is entered into to sell lands, equity-regards the vendor as a trustee of the legal title for the benefit of the vendee, while the latter is looked upon as a trustee of the purchase money for the benefit of the former. Hence a purchaser has a right to the aid of the chancellor for the purpose of obtaining a conveyance of the legal title to the property of which he is the equitable owner, while, as alT remedies ought to be mutual, the vendor can' invoke the same aid for the purpose of compelling the buyer to accept a conveyance and pay the purchase money. If the contract has been partially performed, the equity of both parties is, of course, stronger.” See, aldo, Will. Eq. Jur., 298-99.

While equity courts undoubtedly act upon the above principles, we do not mean to say such courts will, under all circumstances, specifically enforce an agreement for the conveyance of land where the remedy at law for damages is adeqate. The jurisdiction, to- some extent, must depend upon the circumstances of each particular case.

In 2 Sto. Eq. Jur., 742, it is said : “ In truth, the exercise of this whole branch of equity jurisprudence respecting the rescission and specific performance of contracts, is not a matter of right in either party, but is a matter of discretion in the court, not, indeed, of arbitrary or capricious discretion, dependent upon the mere pleasure of the judge, but of that sound and reasonable discretion, which governs itself as far as it may by general rules and principles, but, at the same time, withholds or grants relief according to the circumstances of each particular case, when these rules and principles will not furnish an exact measure of justice between the parties.”

It is a discretion which is, to a considerable extent, controlled by the circumstances of the individual case.” Adams’ Eq., 185, n, and authorities cited.

And, too, “ There is a settled distinction between the case of a vendor coming into a court of equity to compel a vendee to performance, and of a vendee resorting to equity to- compel a vendor to perform.” Adams’ Eq., 206, n 1; Will. Eq. Jur., 286.-

“We have already seen that the specific execution of a contract in equity is a matter not of absolute right in thé party, but of sound discretion in the court. Hence it requires a much less strength of case on the part of the defendant to resist a bill to perform a contract than it does on the part of the plaintiff to maintain a bill to enforce a specific performance. When a court simply refuses to enforce the specific performance of a contract, it leaves the party to his remedy at law.” 2 Story Eq. Jur., 769.

Courts of chancery have adopted and prescribed certain rules by which they are usually governed in exercising the jurisdiction of enforcing specific performance of agreements for the sale-of lands, some of which were stated by this court in Shields v. Trammell, 19 Ark., 59.

First — That there must be a valuable consideration in favor of the party against whom the agreement is to be enforced.

Second — That the contract must be one which the defendant can fulfill, and the fulfillment of which on his part and on the part of the plaintiff can be judicially enforced.

Third — That the enforcement of the contract in specie must be really important to the plaintiff and not oppressive to the defendant.

For a more extended presentation of these rules, and fuller citation of the authorities, see Adams’ Equity, p. 183, n 1. .

There may be circumstances connected with a contract which-would authorize a court to decline a specific performance, and remit the party to his damages. But we think 'there are no such circumstances apparent on the face of this complaint. If there-be any such they must be brought to the attention of the court in the answer.

It is suggested that the obligation in the contract, by which appellee agreed to deposit $1000 with the banking house “ as an earnest of his undertaking,” might be regarded as a penalty, or as stipulated damages, and that a court of equity would not de•cree a specific performance under such circumstances.

Upon this question Mr. Fry, in his work on specific performance, page 46, lays the rule down in these words : The question always is, what is the agreement ? Is it that one certain thing shall be done, with a penalty added to secure performance ? or is it that one of two things shall be done, namely, the performance of the act or the payment of a sum of money ? If the former, the fact of a penalty being annexed will not prevent equity from enforcing the performance. * * * If the latter, the contract is satisfied by the payment of a sum of money, and there is no ground for equitable proceedings.” '

Upon the face of the contract, we think this falls within the first class, as distinguished by Mr. Fry. The appellee did not deposit the money as he agreed to do, and we cannot compreheqd how a mere promise could become a liquidation of damages, or excuse a compliance with a valid and binding agreement. Penalties and forfeitures are not favored in chancery courts. Equity looks rather at the intention of the parties, the real object; and, if practicable, executes this.

The fourth ground of demurrer, as alleged, was, that the said complaint in no way avers the ability of defendant to perform said 'contract.

It is not necessary that the complaint should contain such an averment. ' It is sufficient if the complaint contains 'the fact and circumstances constituting complainant’s cause of action. If the defendants had entered into a contract he was not able at the time to execute, or if the circumstances of the contract had subsequently become so changed that defendant was unable to execute it, under circumstances that would excuse a performance such facts and circumstances would be mere matter of defense, and must be presented in the answer. Section 4569, Gantt’s Digest.

The fifth ground of demurrer was, that the complaint did not state facts sufficient to constitute a cause of action, and was without equity on its face.

The complaint formally alleged the execution of a binding; agreement for the conveyance of land for a sufficient consideration, the parties were competent to contract, the subject matter-lawful, the terms certainly apparently fair, mutual and practicable ; alleged that appellants were able to execute it; had offered to do so; that defendant had refused to comply with his agreement.

We think upon general demurrer the case was sufficient. The decree is therefore reversed and the cause remanded to the Circuit Court, with instructions to overrule the demurrer and to proceed with the cause in accordance with law, and not inconsistent with this opinion.

Mr. Justice Harrison did not sit in this case.