text:
    Adler, et al. vs. The State.
    1. Circuit Court: Power to issue writ of error coram nobis: Change of venue.

    A circuit court judge has power, after the expiration of a term, to issue the writ of error eoram nobis to reverse a judgment of conviction in a criminal case, where it appears that the defendant was insane at the time of the trial, and the fact was not made known at the trial; and upon the assignment of such error in fact, if disputed by the state, to cause a jury to he impaimelled in term to try such issue; and the venue for the trial of such issue may he changed to ajiother county, hut the change carries the whole case.
    2. 'Bail: Principal confined for insanity in another state, no defense for.

    That the defendant, at the time he was required by the conditions of his bail-bond to appear to an indictment, was insane, and had been taken out of the state and confined in an insane asylum of another state, to be treated for his insanity, is no defense for his sureties, in a prosecution on the bond.
    3. Bail-Bond : Approval by sheriff not essential.

    The indorsement upon a bail-bond, of the approval of the officer taking it, is not essential to its validity.
    APPEAL from Laiorence Circuit Court.
    Hon. R. A. Powell, Circuit Judge.

      Rose, for appellants.

      Attorney General Henderson, contra.

   English, C. J.

This was a Code action upon a forfeited bail-bond, determined in the circuit court of Lawrence county.

The novel questions presented on this appeal will be better understood by stating tbe material facts as they appear in the transcript before us, chronologically.

On the twenty-second of January, 1876, David Kalin and three other persons were jointly indicted for murder, in the circuit court of-Independence county.

On a day of the July term, 1876, the state moving for the arraignment of Kahn, who was at the bar, in custody, the court asked him if he was represented by counsel, and he answering that he was not, the court offered to appoint counsel for him, which he declined, saying that he would manage the case for himself; thereupon he moved to set aside the indictment, which motion the court overruled. He then entered a demurrer to the indictment, which, after argument, he withdrew by permission of the court. On being arraigned he stood mute, and the court ordered the plea of not guilty entered for him. He was tried at the same term, and the jury found him guilty of murder in the first degree. He filed a motion in. arrest of judgment, which was overruled, and he was sentenced to suffer the death penalty on the twenty-ninth of September, 1876. After sentence the court permitted counsel to file a motion for a new trial for him, which was overruled.

On the nineteenth of September, 1876, an application was made to the circuit judge for a writ of error, coram no-bis, and stay of execution, upon the affidavit of Sol. Adler, as the next friend of Kahn, that he was insane at the time of the commission of the offense, and at the time he was tried and sentenced, and the writ was refused.

But on the twenty-fifth of November, 1876, the judge issued the writ, directed to the clerk of the circuit court of Independence county, returnable to the then next term of the court, to commence on the eighleenth of December, 1876; and in the meantime, we suppose, had issued a supersedeas; for Kahn was not hung on the day fixed for his execution in the sentence.

In obedience to tbe writ of error coram, nobis, tbe clerk made out and returned a transcript of the record of the proceedings and judgment in Kahn’s case.,

On the eighteenth of January, 1877, and during the return term, Kahn, by his next friend, Sol. Adler, filed an assignment of error, in substance as follows :

1. That at the time of the alleged commission of the offense with 'which he "was charged, he was insane, and not capable ,of distinguishing between right and wrong, and not in law responsible for any act by him committed.

2. That at the time of the trial he was insane, and not mentally capable of defending himself.

3. That he was still insane, and that at the time of the trial the defense of insanity was' not interposed, because on account of his insanity he refused to let himself be defended by counsel, so that the question of insanity was not and could not be raised.

Prayer that the errors of fact assigned be tried by a jury, and that the judgment rendered at a former term of the court might be reversed, annulled and held for naught.

At the July term, 1877, Kahn, by his next friend, Sol. Adler, applied for a change of venue, upon the affidavit of Adler, supported by the affidavit of three other persons, citizens of the county, that the minds of the inhabitants of Independence county were so prejudiced against Kahn that he could not have a fair and impartial trial, therein; whereupon the court made an order that the venue be changed to the circuit court of Lawrence county; that the clerk make out and transmit to the clerk of that court a transcript of the record, etc., and that the sheriff of Independence county remove the body of Kahn to the jail of Lawrence county, for safe keeping, etc.

In the Lawrence circuit court the case was docketed as—

David Kahn, by his next friend, Sol. Adler, plaintiff in error, vs. The State of Arkansas, defendant.

Writ of errror, coram nobis.

And at the September term, 1877, Kahn was brought into court, and the attorney for the state filed a motion to compel the plaintiff in error to élect upon which count in the assignment of errors he would prosecute, which was resisted by counsel for Kahn, and by the .court overruled.

Whereupon the attorney for the state represented to the court that, from the depositions of witnesses then on file in the case, and from information derived from various sources, there was much conducing to show that Kahn, at the time of- his trial in the Independence circuit court, on the indictment for the murder of Benjamin Baker, was insane, and had not mental capacity to defend himself, and should not have been put cm trial; and admitted that this would be sufficient cause to vacate the judgment and grant a new trial. Whereupon, by agreement of parties, it was considered and adjudged by the court, that the judgment of the Independence circuit court against Kahn be reversed, set aside and held for naught. And it appearing to the court that the transcript before it in that proceeding contained a complete transcript of the record of the proceedings, etc., including the indictment, had in the Independence circuit court against Kahn for the murder of Baker, the court held that by virtue of the change of venue, it had jurisdiction to try Kahn upon the indictment, and ordered a trial de novo, with leave to Kahn to interpose any defense whatever to the indictment, as if there had been no previous trial; and directed the clerk to place the case on the criminal docket as the state against David Kahn, charged with murder, etc.

Neither party being ready for trial, the case was continued to the next term; and, on the application of Kahn, an order was made that he be admitted to bail in the sum of five thousand dollars.

At the March, term, 1878, the attorneys for the parties announced themselves ready for trial, Kahn being present, but the court being in doubt as to his sanity, ordered the trial to be postponed until a jury could be impannelled to inquire whether he was of unsound mind or otherwise. A jury was impannelled, and, pending the inquiry, one of them was taken sick and unable further to attend, and they were discharged, and by consent, the case continued. Whereupon, on application of Kahn’s counsel, his bail was reduced and fixed at $2,500, and he was remanded to the custody of the sheriff, who was authorized to take bail in that sum for his appearance at the next term to answer the indictment.

Under this order the bail-bond, which is the subject of this action, was executed by Sol. Adler and Ben. Adler. At the September term, 1878, Kahn and his bail failing to appear, a forfeiture was entered upon the bond and a summons ordered to the bail.

At the return term, March, 1879, the Adler’s filed an answer, containing four Code paragraphs, in -substance as follows:

I. That at the July term, 1873, of the circuit court of Independence county, Kahn was tried, convicted and sentenced to be executed for the murder of Baker; that be-, fore his execution, which was suspended for that purpose, he obtained a writ of error coram nobis, from the judge of that court, on the ground of alleged insanity at the time of his trial and conviction, which writ was duly returned to that court, and an issue of fact as to his sanity when tried, formed, and stood there ready for trial. That after-wards, and while said issue was pending, upon the'application of Kahn, the venue in said case, so far as the said issue of sanity was concerned, was, by order of said court, changed to the circuit court of Lawrence county, and a transcript of the papers and records of the Independence circuit court, pertaining thereto, made out and certified to the circuit court of Lawrence county, and the venue of said issue changed thereto, and Kahn transferred to the custody of the sheriff of said county. That afterwards, at the September term, 1877, of the Lawrence circuit court, .the said issue of fact coming on to be tried, the judgment was reversed, upon an admission of the attorney for the state that Kahn was insane when tried, and. a new trial ordered upon the indictment. That afterwards, at the March term, 1878, of said court, Kahn being in the custody of the sheriff, etc., was admitted to bail in the sum of $2,500, for his appearance on the first day of the next September term of said court for the year 1878, etc., and respondents became his sureties upon the bail-bond, etc. That Kahn failed to appear as required by the condition of the bond, and a forfeiture was taken, etc. All of which would appear by reference to the transcript, etc., on file, and the record of the’ proceedings of the court, etc. Wherefore, respondents, for cause why judgment final should not be rendered against them, say : “ 1. That the offense with which said Kahn is charged is alleged to have been committed in the county of Independence, and the indictment against him for said offense was found and is still pending in the circuit court of the county last aforesaid, and has not been transferred or changed by any legal or valid proceeding to this court, so as to give jurisdiction to it. 2. That this court had jurisdiction neither of Kahn nor of the criminal charge against him, for trial or investigation thereof, or for any purpose whatever, after the determination of the said issue of fact of sanity or insanity of Kahn, transferred to this court by change of venue, from the circuit court of Independence county, as aforesaid. 3. Because said bond was not taken by any court or officer authorized by law to take or receive any bail-bond in said case ; and, 4. Because said Kahn was not bound to appear in this court, as required by said bond, to answer any charge of murder, or other offense; and, 5., Because said bond was taken without authority of law, and is, to all intents and purposes, null and void.

II. The second paragraph of the answer alleged, in substance, that Kahn was insane and confined in jail, etc., when the bail-bond was executed, and incapable of becoming bound upon any obligation, and, therefore, respondents were not liable as sureties upon the bond.

III. And for a further defense, defendants say that- at the time said bail-bond required the appearance of Kahn before the circuit court of Lawrence county, to-wit, on the first day of the September term, 1878, and during the whole of said term, Kahn was insane, and was confined in a lunatic asylum, in the state of New York, beyond the jurisdiction of said court; that he had been thither carried and there confined, under medical treatment for the cure of his said malady, and was by law, and by the rules and regulations of said asylum, restrained and imprisoned, beyond the control or power -of respondents as his sureties upon said bail-bond, and beyond the control or power of said court, or of the state of Arkansas. And respondents aver that,there was not, at the time aforesaid, nor is there now, within this state, any public or private lunatic asylum known to them, or other institution fit or suitable for the treatment, care, cure and safe-keeping of insane persons ; and that said Kahn, being insane, as aforesaid, was carried to the asylum aforesaid,-in the state of New York, for the purpose of effecting a cure, as aforesaid, and of preventing harm to the public, and still remains confined and imprisoned in said asylum, so that he could not come or be brought before said court in response to the requirements of said bond; and so respondents say they are not responsible upon or for the forfeiture thereof.

i. Circuit

Power to of erroiTooram nobis. change of yeune.

- IV. That said pretended bond, the forfeiture of which respondents are summoned to show cause against, was never approved'by any officer or court authorized by law to take and approve the same, nor was the same properly returned into said court by any officer authorized by law to return the same, etc. Prayer for .judgment, etc.

The state demurred to the first, second and third paragraphs of the answer, and the court sustained the demurrer.

The ease was submitted to the court, sitting as a jury, on the fourth paragraph of the answer, and the court found in favor of the state, and rendered judgment against defendants for the amount of the penalty of the bail-bond ; they filed a motion for a new trial, which the court overruled, and they took a bill of exceptions and appealed to this court.

I. The first paragraph of the answer does not question the power of the judge of the circuit court of Independence county to issue the writ of error coram nobis, nor the „ _ _ _ p . _ power ot that court, after the return ot the writ and the x assignment of errors of fact, to make the order changing the venue to the circuit court of Lawrence county, but avers that the venue was changed for the sole purpose of trying the issue as to Kahn’s sanity when tried on the indictment, and that when that error of fact was confessed by the attorney for the state, and the judgment reversed and a new trial ordered, the purpose of the change of venue was accomplished, and that the circuit court of Lawrence county had no further jurisdiction of the case, and that all of its subsequent proceedings, including the order under which Kahn was admitted to bail, the bail-bond, and the entry of its forfeiture, were coram nonjudice and void.

As jurisdictional questions involved in this case, we have examined authorities to ascertain whether the writ of error coram nobis, as used at common law, has any place in our system of jurisprudence, and, if it has, whether upon an error of fact assigned, to be tried by a jury, there can be a change of venue at all.

We have no statute or constitutional provision expressly providing for or regulating the writ of error coram nobis, but the common law of England, so far as applicable to our form of government, and not inconsistent with the constitution and laws of the United States, or the constitution and laws of the' state, is the rule of decision in criminal as well as civil cases. Gantt’s Digest, p. 261.

Whether the circuit court, in the exercise of its common law powers, may issue the writ of error coram nobis, has not heretofore been decided by this court.

In the case of King ft Houston v. State Bank, 9 Ark., 187, where a record entry had been amended, on motion, in the circuit court, after the term at which it was made,and after writ of error, and the amendment brought into this court on certiorari, Justice Scott, delivering the opinion of the court, said s.

“ It is insisted that the court below erred in permitting the plaintiffs in error, on their motion, to amend the record after the judgment term had elapsed. The writ of error coram nobis, which, at common law, ■ was granted in cases like this ex,debito justicies, has almost entirely fallen into disuse in the United States, from the fact that, in our practice, the end that was accomplished by it is now achieved by mere motion supported by evidence offered the court in a summary way, most usually by affidavits, upon which the court either grants or refuses the relief sought,” etc.

The king’s bench had original as well as appellate jurisdiction; and errors of law appearing in its record were reviewed by the house of lords, on writ of error, but where the error was* one of fact, as where the defendant, being under age, appeared by attorney, or where the plaintiff or defendant was a married woman at the commencement of the suit, or died before verdict, or before interlocutory judgment, a writ of error coram nobis might be issued and the errors determined in the same court.

JBacon says:

“ If, upon a judgment in B. R., there be error in the process, or through the default of the clerks, it shall be reversed in the same court by writ of error sued there before the same judges.

“ So, if one is indicted of treason or felony in B. R., or, being indicted elsewhere, the indictment is removed into B. R., and by process of that court he is erroneously outlawed, and so returned, a writ of error may be brought in B. R. for the reversal thereof.

“Also, if an erroneous judgment in point of law be given in B. R. upon an indictment in London, a writ of error may be brought in. the same court; for though in civil cases error does not lie in the same court, unless for matter of fact, yet in criminal cases it lies as well for an error in law as in fact.

“ But, if an erroneous judgment be given, and tbe error lies in the judgment itself and not in tbe process, a writ of error does not lie in B. R. of sucb judgment.

“ But if a party be dead when tbe judgment is given, that is tbe act of God, not the' error of tbe court, and it seems tbe writ well lies in tbe same court.” 3 Bacon’s' Abridgment Error, p. 366.

In United States v. Plumer, 3 Clifford, 29, Plumer was convicted for murder on tbe high seas, in tbe circuit court of tbe United States for tbe district of Massachusetts, and. after be bad withdrawn motions in arrest of judgment and for a new trial and bad been sentenced, be applied to tbe court for a writ of error coram nobis, on various grounds. The writ was refused by Justice Clirtord, on tbe ground that tbe court had no common law jurisdiction in criminal eases, and that no provision bad been made for sucb writ in the acts of congress. Tbe judgment, however, still being under tbe control of tbe court, tbe term at which it was rendered not having closed, be examined the alleged errors, and refused to set aside tbe judgment.

In Teller v. Wetherell et al., 6 Mich., 46, tbe error assigned was one of fact, tbe death of a party before tbe suit was brought, and a motion was made to quash tbe assignment, and dismiss tbe writ of error, on tbe grounds that tbe supreme court bad no jurisdiction of errors of fact; that errors of fact were cognizable only in tbe circuit court where tbe judgment was rendered, on writ of error coram nobis. But tbe court overruled tbe motion, bolding that it (tbe supreme court) bad original as well as appellate jurisdiction, and could bear and determine an error of fact assigned, and, if necessary, a venire might be issued for a jury to try the issue of fact in that court, or it might be sent to the proper circuit for trial. It was also held that the circuit court, under powers conferred upon it by the constitution of Michigan, could not issue the writ of error coram nobis.

So it seems eiTor of fact may be assigned in the supreme court of New York, and tried by a jury there. (Arnold et al. v. Sanford, 14 Johnson, 417; Higbie et al. v. Comstock, 1 Denio, 652; Smith v. Kingley, 19 Wend., 620.) The courts of Qommon pleas, being creatures of the statute, and inferior courts, could not correct such error by writ of error coram nobis, but on writ of error to the supreme court the error of fact might be there assigned and tried. The People v. Common Pleas of Oneida, 20 Johnson, 22.

Rut an error of fact can not be assigned and tried in the court of errors of New York on writ of error to the supreme court, but the error may be assigned and tried in the latter court on \yrit of error coram nobis. Davis v. Packard et al., 6 Wend., 327; same case, 10 ib., 51.

In Calloway v. Nifong, 1 Mo., 159, it was assigned as error in fact that one of the defendants was dead before the judgment was rendered against the two defendants in the circuit court; and the supreme court of Missouri held that such error (not appearing of record) could not be assigned and heard in that court; that the only remedy was by writ of error coram nobis in the circuit court where the judgment was rendered.

Ry the laws of Missouri a slave could not be imprisoned in the penitentiary for larceny. An escaped slave was indicted 'and arraigned for larcenies, as a free person, in the criminal court of St. Louis; pleaded guilty, and was sentenced to the penitentiary. Afterwards his master applied to the supreme court to release him on habeas corpus, on the ground that he was illegally imprisoned. The court refused the writ, deciding that the record, of his conviction showing him to be a free person, it could not be averred in that proceeding that he was a slave; that the proper remedy was to apply to the criminal court, where the judgment was rendered, for a writ of error coram nobis, where it might be assigned and tried as error of fact that he was a slave when convicted. Ex parte Toney, 11 Mo., 662.

On writs of error in the supreme court of Missouri, errors of law appearing of record, and not errors of fact, are heard. Powell v. Gott, 13 ib., 461.

In a number of other states, where, on writs of error or appeals to the supreme courts, errors of law only can be assigned, it has been decided that errors of fact might be corrected in the circuit courts where the judgments were rendered, on writs of error coram nobis, that is, such errors of fact as might be corrected by such writ at common law. Fellows v. Griffin, 17 Miss. (9 Smeed & M.), 362. Land v. Williams, 20 ib. (12 Sm. & M.), 362.

In Boughton v. Brown, 8 Jones (N. C.) L., 394, Battle. J., said: “ The distinction between an ordinary writ of error and a writ of coram nobis is that the former is brought for a supposed error in law, apparent on the record, and takes the case to a higher tribunal, where the question is to.be decided,'and the judgment, sentence or decree is to be affirmed or reversed; while the latter is brought for an alleged error of fact, not appearing upon the record, and lies to the same court, in order that it may correct the error, which it is presumed would not have been committed, had the fact in the first instance been brought to its notice.”

See also, Latham et al. v. Hodges et al., 13 Iredell (N. G.)L.,267; McKinney v. Western Stage Company, 4 Iowa (Clarke), 420; Meredith v. Sanders, 2 Bibb (Ky.), 101; Wynne v. The Governor, 1 Yerger, 149; Goodwin et al. v. Sanders et al., 9 Yerger, 91; cases cited in 2 Paschal’s Dig., p. 948; cases cited in 5 U. S. Digest, 1st series, p. 395, etc.

change of venue.

If the error of fact assigned on a writ of error coram nobis be disputed, an issue must be made up to be tried by a jury; the judgment on whose finding, if for plaintiff, is that the former judgment be recalled and revoked. Fellows v. Griffin, 17 Miss., (9 Sm. & M.,) 362; and other cases above cited.

On writs of error, or appeals from the circuit court to this court, errors of law appearing of record only,' can be reviewed. There can be no assignment of error of fact to be tried by a jury.

At the time the writ of error coram nobis was granted in Kahn’s case, the term at which the judgment was rendered had closed, and it was not in the power of the circuit judge to set aside the judgment on motion, and a showing that he was insane when tried, or to order a jury to be impannelled to inquire into .that fact. (See Bonds v. The State, Martin & Yerger, 143.) There was no remedy except by writ of error coram nobis.

If he was sane when tried, but insane when the offense was committed, that fact might have been proven under the plea of not guilty.

We think the circuit judge had power to issue 'the writ of error coram nobis, and upon the assignment of error in fact, that Kahn was insane when tried, if disputed by the state, to cause a jury to be impannelled in term to try such issue.

Had the circuit court power to order a change of venue, as did, in this case ?

The life of Kahn depended upon the result of the trial of the error of fact assigned. If found sane when tried and convicted, the judgment which had been rendered against him on the verdict would stand, and a new day be fixed by the court for execution. If the issue was found In his favor, the judgment would be revoked, and he would be subject to a new trial when sane. Upon this issue of fact he was entitled to, and it was important that he should have, a trial by a fair and impartial jury. • The affidavits required by the statute providing for change o'f venue in criminal cases were made. The question is not free from doubt. The case is not within the strict letter of the statute, but we have come to the conclusion that it is within Its spirit and scope, and that the circuit court of Independence county had power to make the order changing the venue to the circuit court of Lawrence county. See Gantt’s Digest, secs. 1868, 1886; 1 Bishop Cr. Pro., secs. 68, 71.

•But there is no provision of the statute that the circuit court of one county may send an issue of fact to the circuit court of another county to be tried by a jury, and retain the case for judgment and final disposition. The whole case goes on change of venue. When the error of fact was confessed by the attorney for the state, it was proper for the circuit court of Lawrence county to revoke the judgment, and hold Kahn for trial anew there. - If the case had been sent back to Independence for trial, the jury would have been taken from the inhabitants of that county, which it was the purpose of the change of venue to avoid. ' There can be but one change of venue in any criminal case or prosecution. (Gantt’s Dig., sec. 1886.) True, the first paragraph of the answer alleges that the change of venue was for the sole purpose of trying the error of fact assigned, that Kahn was insane when tried and convicted, but the plea must be taken in connection with the record by which it verified, and which was made part of it, and it shows that the application for and the order changing the venue was general, as it should have been, and not special.

2. Bail:

confined for insanioverstate!

It follows that the court below did not err in sustaining the demurrer to the first paragraph of the answer.

II. It is admitted by counsel for appellants that the second" paragraph of the answer, alleging that Kahu was insane wheP the bail-bond was executed, is bad. He did not sign the bond, and it is not alleged that appellants, who executed the bond, were insane at the time and incapable of contracting.

HI. The third paragraph of the answer presents a novel defense.

It is a general principle of law that when the performance of the condition of a bond or recognizance has been rendei’ed impossible by the act of God, or of the law, or of the obligee, the default is excused. (Co. Lit, 206, a; Bacon Ab., tit. Conditions, Q.) Where a man is bound for the appearance of W. N. in banco, if he die before the day' the.bond is saved. “There is a diversity,” says Chief Justice Brian, “ where a condition becomes impossible by act of God, as death, and where by a third person (or stranger), and where by the obligor, and where by the obligee; the first and last are sufficient excuses of forfeiture, but the second is not; for in such case the obligor has undertaken that he can rule and govern the stranger, and in the third case it is his own act. Vin. Ab., tit. Condition; People v. Bartlett, 3 Hill (N. Y.), 570.

This is like any other contract (says Bishop), performance of which is excused by the act of the law or of God, or by the public enemy, yet by no difficulties of an inferior kind. Imprisonment of the principal for crime, therefore, will generally release the bail, the state having taken him out of their possession; and so will the surrendering of him to the authorities of another state as a fugitive from justice. But if they permit him. to go into another jurisdiction, and there he is arrested and imprisoned, they will not be released ; for they should have kept him within his and their own state. 1 Bish. Crim. Pro., sec. 164 (i).

Belding v. The State, SB Ark., 815, the only case cited by counsel for appellants to sustain the defense set up in the third paragraph of the answer, is not in point. There the principal in the. recognizance was seized by the military authorities of the United States of this department, and imprisoned in Little Rock, and then sent to Vicksburg and imprisoned there, and so prevented, without the fault of the surety, from appearing in the circuit court of Hot Spring county, at the September term, 1867, to answer an indictment, as required by the condition of the recognizance; and this was held to be a valid defeuse for-the surety. There the principal was not prevented from appearing by the act of the obligee in the recognizance (the state), but-by a force claiming to act under authority of the federal government, which neither the state nor the surety could control.

Bishop says the inability of the principal to perform .the condition of the bond, produced by sickness to the degree which in law is deemed an impossibility proceeding from the act of God, will discharge the bail. 1 Bish. Crim. Pro., sec. 264, i, (3d ed.)

To sustain the proposition thus formulated, he cites sev-* era! cases, which we have examined.

In The People v. Tubbs, 37 New York, the defense was that when Tubbs, the principal, was called, and his sureties were required to produce him, he was sick and unable to go or be carried to the place where the court was held, and his non-appearance to answer the indictment for perjury was wholly without his fault or the fault of his bail. This was held to be a good defense, the failure of Tubbs to appear being classed as an act of God; but it appears that Tubbs was present, and offered as a witness for the sureties on the trial of the action on the forfeited bail-bond, so that the state could not have suffered in the end by his failure to appear and answer the indictment at the term required by the bond.

In The State v. Edwards, 4 Hump., 226, to a scire facias on a forfeited recognizance, the surety pleaded that the principal was sick during the whole term of the court at which he was bound to appear.

The court held the plea bad. “The fact,” said Judge Green, delivering the opinion of the court, “that a defendant is sick, constitutes no reason for his non-appearance in obedience to his recognizance, that will excuse the bail from a surrender of him at the subsequent term.

In Alguire v. The Commonwealth, 3 B. Monroe, 349, there was an attempt to excuse by the act of the state. The principal failed to appear in the circuit court of Kenton •couuty, as required by the recognizance. The plea of the surety to the scire facias on the forfeiture was, that on the day the principal was required to appear, he was arrested for a felony in Louisville, and imprisoned there. The plea was held bad. The court said it was the duty of the surety to see that the principal was at. Kenton circuit court, and not at Louisville, on the appearance day, when he was arrested at the latter place; and, moreover,’that the surety should have made known the arrest to the court at the appearance- term, and obtained its process for the principal, and for respite of the recognizance, etc.

The paragraph of the answer in question does not allege that Kahn was sent to the New York asylum for care and medical treatment by any act or authority of the state. He was in the custody of appellants as his bail. The inference from the plea is, that they assumed the responsibility of sending him there, without consulting the court, or. permitted others to do so. If, by the law and regulations of the asylum, he was detained there, as alleged, and out of the process of the court, it was not the fault of the. state, but the result of their sending him there, or permitting him to be sent.

3. bail-not es®en-

The matter of the paragraph was pleaded in discharge; if the state had taken issue to it, instead of demurring, and a jury had found the is'sue in favor of appellants, they would have claimed judgment on the verdict discharging them from the bail-bond. And Kahn, though ever so sane, 'might never appear to answer the indictment.

It would be unsafe to the public to permit the bail of a person charged with murder to take it upon themselves to Eend him out of the state, or permit him to be sent, to be treated for insanity, or any other disease, and then- plead his absence in discharge of the bail-bond.

Had the matter of the paragraph been addressed to the court, in the form of a motion, at the term at which Kahn • should have appeared, if made satisfied of its truth, the court might, in the exercise of sound discretion, have continued the case, with leave to the bail to produce Kahn at a subsequent term. But by the plea for discharge, it appears, the matter wras for the first time brought to the notice of the court; and the demurrer to it was rightly sustained.'

IY. Upon the trial of the issue to the fourth paragraph of the answer, it was proven, to the satisfaction of the court sitting as a jury, that the sheriff took the bail-bond, as he was authorized to do by order of the court-, released and delivered the bond to the clerk, who marked it filed, but the sheriff omitted to indorse his approval upon the bond. This was not essential to its validity. The execution of the bond by appellants was sufficiently proven, and it was in statute form.

The judgment is affirmed.


source: Caselaw Access Project

author: Harrison, J.

license: Public Domain

text:
    Farquharson vs. Johnson.
    1, Motion por New Trial : Must be incorporated in bill of exceptions.

    Unless a motion for new trial he incorporated in the hill of exceptions, or referred to in it as made part of the record, it is no part of the record, though filed and copied in the transcript; and there is no question be-fore the supreme court as to anything occurring at the trial.
    APPEAL from- Garland Circuit court.
    Hon. J. M. Smith, Circuit Judge.

      Murphy, for appellant.

      Dooley, contra.

   Harrison, J.

The complaint in this case alleged that, by an agreement, in writing, signed by both parties, the plaintiff, Henry C. Farquharson, sold the defendant, Cyrus. Johnson, a half interest, and admitted him as a partner in his, the plaintiff’s butchering and meat market business in Hot Springs, which he carried on under the style of the St. Louis Meat Market, in consideration of the sum of $2,500, which the defendant agreed and promised to pay therefor, immediately, or on demand; and the defendant, as such partner, engaged with the plaintiff in said business and participated with him in the profits.

That the defendant had only paid $690.56, and that the sum of $1,809.44 remained due and unpaid, which the plaintiff had demanded of the defendant, and he had refused to pay, for which judgment was prayed.

The defendant, in his answer, admitted the purchase of the half-interest in the business, and that he was to become a partner in it, but the agreement, he said, was not as stated in the complaint; that the $2,500 was not to be paid to the plaintiff, but to be put into the business, and the plaintiff' was also to put into it, in stock and money, a like sum. He said further that he was induced to purchase said interest by the representations of the plaintiff'that he had, in stock and money, $2,500 to put in, and that the business was worth $10,000 a year, which representations were false, as he afterwards found out; and the few articles pertaining to the business, owned by the plaintiff, were, but which he did not then know, mortgaged for about their full value.

That the plaintiff' had refused to put in any money. That he, the defendant, had already, as stated in the complaint, paid in $690.56, but after the plaintiff’s refusal, and he had learned that his representations were false, he declined to put any more money in the concern. That the plaintiff was in the exclusive possession and control of the business, and refused to recognize him as a partner or as having any interest in it, and had even threatened him with violence should he go upon the premises, and that the partnership was dissolved; and he denied that he had ever had any control in the business, or received any part of the profits. He made his answer a counter-claim and prayed judgment against.the plaintiff'for the money which he had paid or put in.

No replication was filed to the answer.

NewTrial:

Motion must be in bill of exceptions.

The court, sitting as a jury, found for the defendant $604.60.

The plaintiff appealed.

We'find in the transcript a record entry that a motion for a new trial was filed by the plaintiff, and another that the same was overruled, and such a motion is copied in the transcript. A bill of exceptions taken by the plaintiff states, also, that the plaintiff* filed a motion for anew trial; that it was overruled and that he excepted ; but it does not set out the motion, nor does it designate, in any manner, the one appearing in the transcript as that to which it refers. ■■

A motion for a new trial is no part of the record unless it is incorporated in the bill of exceptions,.or referred to in it as made part of the record. White v. Prigmore, 28 Ark., 450; Nisbett v. Brown & Norton, 30 Ark., 585. There is therefore no question"as to anything occurring upon the trial before us, and we can_only look to'see if the defendant’s counter-claim states such facts as constitute a cause of action; which we think it clearly does.

The judgment is affirmed.


text:
    Valentine vs. Hamlett, Ad.
    Landlord's Lien :' Limitation on.

    A landlord’s lien upon the tenant’s crop, for rent, expires at the expiration of six months from the time the rent is due.
    APPEAL from Chicot Circuit Court, in Chancery.
    Hon. T. F. Sorrells, Circuit Judge.

      .Reynolds, for appellant.

      Rose, contra.

   Harrison, J.

This was a suit in equity by Mark Valentine against John Gr. Morgan. After he had answered the complaint, Morgan died, and the suit was revived and proceeded against his administrator, John CL Hamlett.

The complaint alleged that the plaintiff, as agent of Carroll, Hoy & Co., rented to one William W. Collins, by an agreement in writing, a plantation for the year 1873, for $500, to be paid to him, the plaintiff, on the first day of December of that year. That Collins raised on the plantation a crop of cotton, part of which, three bales, he turned over to the plaintiff", towards the payment of the rent, the net'proceeds of which were $127.91, and the residue, which was sufficient to have satisfied the remainder of the rent, he sold and delivered to said Morgan, who converted'it to his own use. That the remainder of the rent, $372.09, was still unpaid. That the plaintiff had a lien on the cotton, for the rent, when Morgan bought and converted it to his own use, and that when he purchased the cotton he knew of thé existence of the lien.

That he again rented the plantation to Collins for the year 1874, for three dollars an acre for each, acre cultivated by him, to be paid to him on the first day of December, 1874.

That Collins cultivated, that year, thirty-three and a third acres, and the rent amounted to'$100. That no part of the rent of 1874 had been paid.

That Collins raised, that year, a crop of cotton on the plantation sufficient to pay the rent, which, also, he sold and delivered to Morgan, and which Morgan converted to his own use.

, That the plaintiff" had a lien on the last-mentioned cotton for the rent of 1874,. when Morgan bought and converted the same to his own use, and that he, at the same time, knew of the existence of the lien.

The prayer of the complaint was that Morgan should be decreed to pay the plaintiff the remainder of the rent due for 1873, and the whole of that for 1874.

The suit was commenced on the fourth day of June, 1875.

Morgan, in his answer, specifically denied every- allegation of the complaint.

The court upon the hearing,-dismissed the complaint, for want of equity.

The plaintiff appealed.

"When the suit was commenced, more than six months had elapsed since the rent of the last year became due, and the lien on the cotton had expired. Sec. 4098 Gantt’s Digest.

If the lien was impressed, when the cotton was converted, upon its proceeds, it was subject to the same limitation as to time,.and could not continue longer than it would upon the cotton.

As there was then no lien to be enforced, which was the object of the suit, it is unnecessary to consider the question raised by appellee’s counsel, as to the right of the plaintiff, the agent of Carroll, Hoy & Co., to bring the suit.

The judgment is affirmed.


author: Eakin, J.

text:
    Mantooth vs. Burke.
    1. Improvements on Public Lands: Contracts concerning.

    Parties holding improvements upon public lands may make valid contracts concerning them, irrespective of title to the lands; and so an agreement between the owners of improvements on adjoining quarters of public land, that each might occupy and use his improvement extending upon the other’s quarter and withdraw his fence to the true line when ascertained, is valid and binding upon them and their assigns having notice of the agreement; and either may lawfully enter upon the other’s quarter, though he has obtained the legal title to the land, and withdraw his overlapping fence to his own quarter.

      2. License: When irrevocable.

      A license, coupled with an interest and given for a consideration, can not. n be revoked.
    3. Estoppel.
    One who acquired possession of land by recognizing another’s claim can not afterwards repudiate it.
    APPEAL from Franklin Circuit Court.
    Hon. W. L. Jacoway, Circuit Judge.

      Clark Williams, for appellant.
    Fielder, contra.

   Eakin, J.

Appellant, Mantooth, together with the Little Eock and Fort Smith Eailway company, sued Burke in what, before the Code, would have been an action of trespass quare clausum fregit, complaining that he had, in February, 1878, entered upon their land, unlawfully and by force, and carried away 700 panels of fence, and had cut, and removed timber and converted it to his own use, and. had trod down, depastured, and destroyed by cattle, plaintiff’s growing wheat. The railway company was, in the-course of the suit, by leave of the court, withdrawn from the complaint, and prosecutes no claim. Values are alleged of the different species of property injured, and damages-for the whole claimed at $900.

Burke answered, specifically denying the unlawful or violent entry.; the plaintiff’s ownership of the fence panels the cutting and carrying off the timber ; and the injury to plaintiff’s wheat, as charged. But says, in effect, that the rails taken were his own, consisting of about 567 panels of' ten rails each, which he had purchased and paid for long before plaintiff .came into possession of the land, and which were removed by Mm at the time alleged under the following circumstances:

About the year 1870, defendant purchased of John Pendergrass certain improvements and a pre-emption right on the southwest quarter of section 6, township 8 north, range 27 west, then belonging to the United States. The rails in question constituted a portion of the improvements, being on a fence which was “ a conditional dividing line” between that and the southeast quarter of the section, to remain until title should be acquired, and a correct line established, when defendant was to have the right to remove the rails to the true line, and meanwhile to have the -control of the fence, and occupation and use of the lands lying west of it in the improvement. This occupancy and control defendant enjoyed, without let or hindrance from any one claiming or occupying the said southeast quarter of the section, up to the time of the acts of which plaintiff complains. He perfected his title on the twenty-fourth of July, 1876, by purchasefr'om the Fort Smith railroad, and afterwards sowed the field in wheat. At that time, L. 0. Franklin, occupying the said southeast quarter, which is the locus of the alleged trespass, having full knowledge of the facts as above stated, acquiesced in them and.in all things consented. Franklin sold his interest in the southeast quarter to the plaintiff, Mantooth, informing him before and at the time, of the sale of defendant’s rights in the improvements, according to the facts as above stated, and Mantooth on his part assented to the same and agreed that defendant should remove his fence at his option. When the true line between the two quarter sections was ascertained, it was found that defendant’s fence and improvements extended over on to the southeast quarter, whereupon he removed the fence within his own line, and threw out a portion of the wheat, which was destroyed. This, it is alleged, was the supposed trespass.

A demurrer to the answer was overruled, and, after several mistrials, a verdict, by a jury, was rendered in favor of defendant.

There was proof conducing to show that defendant purchased the improvements on the southwest quarter from Pendergrass in 1870, a portion of which, as was afterwards ascertained, extended over upon the southeast quarter. Pendergrass owned improvements on that quarter also, a portion of which it was supposed would extfend over the southwest quarter, sold to defendant. Both quarters were government lands. About the same time Pendergrass sold the improvements on the southeast quarter to one Vick, when it was agreed amongst all three that defendant and Vick should each occupy their improvements as they were until they might acquire their titles and the true line between the quarter sections be established, when each party would be entitled to withdraw his fences inside of his own lands. That defendant occupied his improvements under said agreement until the time of the alleged trespass, and in'the year 1876 by right of pre-emption he purchased the quarter section from the Port Smith railroad, as an actual settler, under the state act of 1878. Vick afterwards sold his improvements to Eranklin, who had notice of defendant’s claim and assented thereto. Franklin afterwards sold the improvements on the southeast quarter to plaintiff, who acquired title also from the railroad, had the line run, and ascertained, as was formerly supposed, that defendant’s field extended some twelve or sixteen acres upon the southeast quarter. Meanwhile defendant had sown it in wheat. Mantooth claimed the rails and the wheat, and refused to permit defendant to remove the rails to his own line, which he nevertheless did.

1. Improvements on Public Lands:

Contracts concerning upheld.

Eranklin testified that when’ he sold to plaintiff Man-tooth, he verbally excepted from the sale the improvements on the west side of the quarter section, that is, the rails and fence, telling him they belonged to defendant Burke, and that Mantooth assented to the arrangement. This Man-tooth, in his testimony, denied.

A list of eight somewhat lengthy instructions was given for the defendant against the objections of plaintiff.

The court, for the plaintiff-, instructed that defendant, in his pleading, did not deny plaintiff’s title to the whole southeast quarter of the section. The whole issue was, ■whether or not defendant unlawfully entered upon it and took away the rails, and did the other injurious acts alleged; that if they found he had failed to show justification, they should render a verdict for plaintiff.

Four other instructions asked by the plaintiff were refused.

Judgment was entered for defendant in accordance with the verdict. The plaintiff moved for a new trial, which being refused, he tendered a bill of exceptions, and appealed.

It is to be inferred from the evidence, that the land in question lay within the scope of the grant of lands from the United States for the use of the Cairo and Fulton railroad, and fell to the Little Rock and Fort Smith branch of the same. This, as frequently happens with regard'to local matters well known to the judge, jury and attorneys, seems taken for granted.

The courts of this state have always recognized improvements upon the public lands as property; and have upheld contracts between the owners of them, when fair and reasonable, not only with regard to the improvements, but also executory contracts with regard to the title to the lands themselves, to be afterwards acquired, so far as may be necessary to secure the enjoyment of improvements crossing lines. (Hamilton et al. v. Fowlkes et al., 16 Ark., 340.) They give the owner a possessory right against all the world but the-United States. (Pelham v. Wilson, 4 Ark., 289; Cain v. Leslie, 15 Ark., 312; Earle, Admr., v. Hale, 31 Ark., 470). • They are assets in the hands of an administrator (Gantt’s Digest, sec. 69); may be recovered in ejectment (ib., secs. 2254, 2255), or sold and assigned (ib., sec. 3907).

Although stricti juris, thfe settler upon public lands is a trespasser as against the government, yet his occupancy has been tolerated and even encouraged by congress. Earle v. Hale, supra.

The supreme court of the United States held, in the case of Lamb v. Davenport, 18 Wall., 307, that “ though these rights and claims rested on no statute, or any positive promise, the general recognition of them, in the end, by the government and its disposition to protect the meritorious actual settlers, who were the pioneers of emigration in the new territories, gave a decided and well-understood value to these claims. They were the subject of bargain and sale; and, as among the parties to such contracts, they were valid.” And further, with regard to these possessory rights, the court says: “ Parties in possession of the soil might make valid contracts, even concerning the title, predicated upon the hypothesis that they might thereafter lawfully acquire the title, except in cases where congress had imposed restrictions on such contracts.”

A fortiori,' parties holding improvements which may be removed, may make valid contracts regarding them, independently of title to the land.

2, License:

When irrevocable

The agreement amongst Pendergrass, Vick and defendant, to the effect that the last might remove his rails from the southeast quarter if they should be found upon it, was valid. The consideration for it was a like privilege accorded to Vick with regard to his fencing which might be found upon the southwest quarter, when defendant might acquire it. Neither derived this. privilege from Pendergrass, the common vendor, but each from the other. The effect of it was to take from the rails on the overlapping improvements the character of fixtures, and to make them the personal property of the respective owners. It had the further effect to render the possession of the overlapping improvements and land inclosed lawful, as against all persons purchasing the land with notice of the circumstances. There could be no technical trespass in removing the rails back to the true lines, nor injury to the adjoining owner for which he could claim damages.

The instructions given for the defendant were based upon this view of the law, and, taken with the evidence, were not erroneous. It would not be useful to state them at length.

Those refused upon the part of plaintiff were grounded upon the idea that the rails were fixtures, passing with the soil to the plaintiff on his purchase from the railroad, and could not be removed without his consent, irrespective of any agreement with third persons; nor could they be removed after the revocation of a license formerly granted. These instructions were properly refused.

The authorities are conflicting as to the right of one to enter upon the lauds of another to take personal property of which he is the ownei\ The law upon that point' was more rigid in England than it has been maintained in the United States, where so .much land is open, and in a state of nature. It is not necessary in this case to discuss the point. A license coupled with an interest and. givén for a consideration can not be revoked. - If the jury believed Eranklin, the plaintiff could never have got the improvements without consenting that defendant should retain property in the rails, and remove them to his own lines.

3.estoppbi>

Rut no license in this case was ever necessary to avoid a trespass. The defendant was lawfully in the possession of the' field, the wheat, and the rails around the inclosure, which possession continued until they were removed. If plaintiff had any property in the rails or the wheat, his action was not on account of any trespass, but for conversion or for consequential damages to the .wheat. Rut the proof showed that he had no interest in either. That is, If the jury, as they well might, considered that plaintiff had bought with notice of defendant’s claim to the possession and the rails, until the line could be run and assented thereto. If satisfied upon that point, there was no proof upon which they could have rendered any other verdict -than they did.

This view of the case is not affected by the fact that before plaintiff’s agreement with Franklin the title to the „ southeast quarter had become vested in the Little Rock and Fort Smith railroad, and was.afterwards sold by that company to plaintiff. It still remains true that the plaintiff, by that ■ agreement, got possession of the improvements, and that both Franklin and defendant rested upon that agreement, and acquiesced in any steps he might take to perfect his title. Rut for that Franklin might have purchased for himself, making use of-his possession for the purpose, and thus protected defendant.

Plaintiff, after having obtained possession by recognizing defendant’s claim, can not be beard to repudiate it.

The court did not err in refusing a new trial.

Affirm.


author: English, C. J.

text:
    Ford vs. Tallman.
    Execution : What equity not subject to.

    B and B agreed to purchase a tract of land which was to have been sold by an executor for one-half cash, the balance in twelve months; B to make the first payment and B the last, and the land to be then conveyed to B and B’s wife. B bid the land off, and, with B’s money, made the first payment, and took the certificate of purchase from the executor in his own name, reciting the payment and stipulating to make deed to him upon making the last payment. When it became due they were unable to pay, and agreed that F should make the payment and take the executor’s deed to himself as a security for repayment, and for improvements he might put upon the land; and B transferred to F the certificate of purchase, and he made the payment and obtained the executor’s deed conveying the land to himself absolutely. Afterward judgments were recovered against B, and the land was levied on and sold to satisfy them, subject to redemption, and T purchased it at the sale and received the sheriff's certificate of purchase. Afterward, B and B being unable to pay F, they quit-claimed to him, upon his paying to them what they had paid on the land. Upon bill filed by F to cancel T’s purchase and certificate and to quiet his own title to the land, held : That when B. took the certificate of purchase from the executor, he held the equitable title to the undivided half of the land for B, and to the other undivided half for himself, the legal title remaining in the executor, and passing, by his subsequent deed, to F; and that at the time of the recovery of the judgments, B had no interest in the land, legal or equitable, upon which a judgment lien could attach, or that was subject to sale under execution; and that F was entitled to the relief sought, whether he was in or out of possession of the land.

      APPEAL from Chicot Circuit Court in Chancery.
    Hon. Theodoriok F. Sorrells, Circuit Judge.

      Reynolds, for appellant.

      Rose, contra.

   English, C. J.

The bill in this case was filed on the chancery side of the circuit court of Chicot county, on the eighteenth of December, 1876, by William W-. Ford against Joseph B. Tallman, alleging, in substance, as follows :

That at a sale of the real property of the estate of Curtis Garrett, deceased, made by his executor, on the twenty-seventh of December, 1873, Conway Barbour bid' off certain tracts of land, -which are described, at $1,726, the terms of sale being one-half in cash and the other half in one year, and paid $863, one-half the sum bid, and received a certificate of purchase from the executrix, acknowledging the cash payment and stating that he was to have a deed for the lands, on payment of the balance.

That the lands were bid off by Barbour in his own name, without the knowledge and consent of one Matilda Rankin, who furnished the money to make the cash payment, upon an understanding that she was to make the first payment, Barbour, for his wife, the second, and that the lands were to be owned by Matilda Rankin, and her daughter, Frances, wife of Barbour, each to own an undivided half. That for the purpose of raising the money to make the cash payment on the lands, Matilda Rankin sold a lot belonging to her in Louisville, Kentucky, and, with the money thus obtained, the cash payment of $863 was made.

That Conway Barbour and Matilda Rankin failing and being unable to make the final payment on tbe lands when it fell due, and Matilda Rankin desiring to protect herself in whM she had paid, and said Barbour desiring to pay for the other half, as originally intended, applied to plaintiff for aid, and he agreed with them,in substance, that he would make the second payment and take the deed to himself, and hold the legal title to the lands, for his protection, and give said parties an opportunity of repaying him his money and such additional amount as he might expend on the place in the way of improvements and removing liens, etc., and in the event of such repayment the lands were to be conveyed by plaintiff to Matilda Rankin and Frances Barbour, as such was said to be the original agreement before the-purchase of the lands, in December, 1873. That, in pursuance of said agreement, plaintiff paid the balance due on the lands, and received a deed from the executrix of said estate, bearing date June 16, 1875, (which in the progress of the cause was filed as an exhibit.)

That afterwards, 'on the fifth of July, 1875, one J. E. Joslyn obtained a judgment against Conway Barbour, in the Chicot circuit court, for $250, with 6 per cent, interest from October 1,1872.

And on the sixth of the same month, in the same court, one Smith Mayberry recovered judgment against said Barbour for $21.25, etc.

That execution issued on the latter judgment the sixteenth of September, and, on the former, the eleventh of November, 1875, which were levied on the lands described in the bill, but they were not sold, on account of informality of notice. That, on the twenty-first of January, a vend, ■ex. was issued on each of the judgments, and on the eleventh of March, 1876, the lands were sold and purchased by defendant, for $376.50, who received a certificate of purchase from the sheriff.

That defendant claimed that unless said lands were redeemed from him before the eleventh of March, 1877, by payment of said sum of $376.50, with interest, as provided by the redemption law of the state, he would insist upon a deed for the land from the sheriff.

That said sale and certificate, and the proceedings to subject said lands to the payment of said judgments against said Barbour, were clouds upon the title of plaintiff, and calculated to, and did, lessen its value in the market, and were an injury to him. 11

That on the fifth of June, 1876, said Matilda Rankin and Conway Barbour, finding that plaintiff could not be repaid -the money advanced and expended by him, and would have to look to the lands as his only security against loss in his transactions in regard to the lands; and upon a settlement of the amounts expended and laid out by plaintiff and by said Barbour and Matilda Rankin,'it was ascertained that Matilda Rankin had expended, including interest on the $863 originally paid, the sum of $1,000, and that plaintiff' had expended $1,542 18, and said Barbour had expended $57.82, and that the lands were worth, at that time, by estimate, $2,600; it was then agreed that plaintiff' should pay to said Barbour said sum. of $57.82, and to Matilda Rankin $1,000, in three payments, $333.33 cash, a like sum in one, and a like sum in two years, with 8 per cent, interest on the deferred payments; Matilda Rankin to be at the expense of a suit to remove the cloud from the title to said lands, created by the proceedings to subject the same to the payment of said judgments, and purchase by defendant; and if said suit should be successful,.then said sums of $333.33, due in one and two years respectively, to be paid in full, and if unsuccessful, then plaintiff’ to protect himself for any amount necessary to remove said cloud, by withholding payment of said sums to that extent, and receive the quit-claim deed of said Barbour and his wife and said Matilda Rankin; and said sums were paid, and notes given for deferred payments, and deed of quit-claim executed and delivered, on the fifth day of June, 1876.

Plaintiff claims that at the date of said judgments against said Barbour, plaintiff was the owner of said lands levied on and sold by proceedings on said judgments; that Barbour never had any interest in said lands that was subject to sale under execution, or to lien of judgments against him; that the sale of said.lands, and purchase by defendant, conveyed no interest to him, though casting-a cloud upon the title of plaintiff, as he was advised; that if plaintiff should, however, be in error as to said sale not affecting his interest in said lands, and if said Barbour did in fact have an interest therein, which was by law subject to the payment of said judgments, and defendant will be entitled to a deed to said lands unless redeemed from said sale before the expiration of one year from the date of sale, plaintiff insists that by law he will be and is entitled to make such redemption upon that matter being determined by the court, and that defendant should be enjoined from presenting said certificate of purchase and demanding a deed from the sheriff for said lands, until the validity of said sale and the proceedings under said judgments and executions be determined by the court; and that, if it be •determined that said sale was valid, plaintiff' be given a day in which to redeem; and be offers to pay such sums, if any, as may be necessary to redeem said lands from said sale, at such times as may be decreed by the court; and that defendant be required to bring into court said certificate of purchase, that the same may be delivered up and •canceled.

^0N®XEQU'

what equity not subject to.

Prayer, that the sale be decreed to be of no validity, and that' said certificate of purchase be canceled and set aside, and plaintiff’s title quieted and the cloud created by said sale removed, and for all other proper relief.

After some steps in the cause, not material to notice, defendant filed a demurrer to the bill, on the ground that it did not state facts sufficient to constitute a cause of action.

The court sustained the demurrer and dismissed the bill, and plaintiff' appealed.

I. The demurrer admitting the allegations of the bill to be true, when Conway Barbour took the certificate of pur- . . ' •chase from the executrix of tí-arrett s estate m his own name, he held an equitable title to one undivided half of the lands in trust for Matilda Rankin, she having furnished him with the money to pay óne-half of his bid upon an agreement that she was to become the owner of an undivided half of the lands. Trapnall’s ad’x v. Brown, 19 Ark., 48; Ferguson, ex., et al., v. Williamson et al., 20 ib., 272.

By virtue of the certificate of purchase Barbour held an equitable title to the other undivided half of the lands, and the executrix withheld the legal title to the whole of the lands as security for the unpaid purchase money.

So matters - stood when Barbour bid off' the land at the sale made by the executrix, on the twenty-seventh of December, 1873, and took the certificate of purchase in his own name.

After the remaining half of the purchase money became due to the executrix, and before the judgments under which appellee purchased were obtained against Barbour, and when, it seems, he had paid nothing of his own money upon the lands, he transferred his certificate of purchase to appellant, who paid the executrix, and took a deed from her, conveying to him absolute legal title to the lands, upon an agreement with Barbour and Mrs. Rankin that when he should be repaid the money so advanced, and any additional sum he might expend in improving the lands, removing liens, etc., he was to convey the lands to Mrs. Rankin and her daughter Frances, the wife of Barbour.

So matters stood when the judgments under which appellee purchased were rendered against Barbour, at which time he had no title to the lands, legal or equitable, no interest upon which the judgments could attach as liens, or which could be sold under execution. Appellant held the whole title to the lands, subject to his agreement to convey them to Mrs. Rankin and her daughter upon compliance with the terms of the agreement. It appears that the deed from the executrix to appellant was filed for registration in the recorder’s office the fourteenth of December, 1875, which was before appellee purchased the lands at execution sale.

Whether the arrangement between Barbour and appellant, for the benefit of the wife of the former, was prejudicial to his creditors, or made to defraud them, is not a question on this appeal. If there was any such feature in the transaction, it should have been shown by answmr.

II. Whether appellant was in the actual possession of the lands when he brought this suit does not appear from the allegations of the bill. He had terminated his agreement to convey them to Mrs. Rankin and her daughter, and obtained from them and Barbour a quit-claim deed. He was indebted to Mrs. Rankin for balance of purchase money on the new agreement, but that* was a matter between them. He held the legal title to the lands, and if he was out and appellee in the actual possession of them, he could have maintained ejectment against him. It can not be assumed that appellee was in possession of the land at the time this suit was brought. The time for redemption had not expired, and he was not entitled to a deed from the sheriff, nor to possession of the lands, until the expiration of a year from the date of the execution sale. (Gantt’s Dig., secs. 2703-9.) The bill does not attempt to make the suit answer the purpose of an action of ejectment, there being no prayer for the possession of the lands. The object of the bill was to prevent appellee from obtaining the sheriff’s deed, which would create a cloud upon appellant’s title to the lands. This could not be accomplished by ejectment, or any other form of action at law. The only remedy was by a quia timet bill in chancery.

The bill makes a case for relief in equity, according to the principles settled in Sale and, wife v. McLean et al., 29 Ark., 618.

Before the execution sale, appellant might have brought a bill to enjoin it. (King et al. v. Clay et al., 34, Ark., 291.) And no good reason now appears why he may not maintain this bill to prevent the execution of the sheriff’s deed to appellee.

Reversed and remanded, .with instructions to the court below to overrule the demurrer to the bill, and for further proceedings, etc.


author: Eaiiin, J.

text:
    McIlroy vs. Buckner.
    1. Erato: How Pleaded.

    It is not sufficient to plead fraud generally, or merely to characterize acts as fraudulent. The facts and circumstances constituting the fraud must he set forth.

      2. "Same: Obtaining signature by.

    A plea by an obligor that the obligee fraudulently drew the obligation sued on different from the terms agreed on between them,and thus fraudulently procured him to sign it, under a misapprehension of its "effect, without stating any act or device of the obligee to prevent him from reading and signing it intelligently, and without averring any abuse of confidence reposed in the obligee’s skill and fidelity in drawing it, shows no fraud and no defense to the action on it.
    3. Pleading: Answer: Consistency between paragraphs.

    If each paragraph of an answer be consistent with itself, it is not essential that they consist with each other. ■ ,
    4. Same:. When answer abandoned, by filing another.

    The filing of an amended and substituted answer after demurrer sustained to a former one, will not be considered as a waiver of-the defendant’s objections to overruling the former, unless such intention appear or be inferred from the record. If the new defense be distinct from the former, and there is nothing, to indicate his intention to abandon it, he may still rely upon it in the supreme court.
    5. Pleading : Answer : Denials.

    Denials in an answer must be specific of each controverted allegation in the complaint. The general issue at common law is inadmissible under our Code, unless it, in itself, amounts to a specific denial of some material allegation.
    APPEAL from Washington Circuit Court.
    Hoñ. J. M. Pittman, Circuit Judge.

      Gregg, for appellant.

      Davidson, contra.

   Eaiiin, J.

This case has been here on a former appeal. In the opinion then delivered, the instrument sued upon was set forth at length. A demurrer to , the complaint, sustained below, was here overruled, and the ease was remanded. 31 Ark., 631.

Upon the return of the case, defendant answered in several paragraphs, setting up several defenses, as follows:

1. That he did not contract in- manner and form as alleged, nor authorize Denton Stark to make such a contract, nor consent to, nor ratify the same.

2. That he and said Stark, although partners in the banking business, were not partners in the matter of procuring the lien right, or release of Walker for the goods mentioned in the contract. That if Stark entered into-any such agreement, it was without defendant’s knowledge, consent or concurrence; and that defendant, himself, never made any such agreement or contract, nor ratified the-, same.

3. That he never begun nor prosecuted any suit against. Adams & Bro., nor obtained any such judgment, nor procured any execution against them, nor levied any upon the goods and chattels mentioned, nor contracted with Walker for the release of any of his lien rights; nor represented that said firm of Denton D, Stark & Oo. had any valid judgment against them, nor that defendant had. That if said Stark ever brought any such suit in the firm name (which is conceded), it was on a note not owned by the firm, but assigned to them for collection only, in which they had no interest; and if Stark prosecuted such suit,, took out execution and levied on said goods, and procured Walker’s release of his lien upon them, it was all without Ms knowledge or consent, and without the scope of the partnership business, and’without authority from defendant.

4. That the release and transfer of the lien vested no right to the goods in Stark & Co., nor power to control them ; and that Walker’ afterwards, before the transfer of the obligation to plaintiff, .took, possession of the goods,. and sold and converted them to his use, and realized $600, •or some large sum.

l. Rkaud:

pleaded,

5.. ThataWalker had'no lien, as alleged, and that the instrument was without consideration.

A demurrer to the auswer, and the several paragraphs separately, was sustained. Whereupon the defendant filed a second answer, saying: That in making the^ contract sued on, it was agreed upon between said Walker and Stark, who was the active partner in the firm, that nothing was to be paid to Walker unless the goods were sold on execution, and that Stark executed the writing with that understanding and agreement and no other, and that no sale took place, on account of an injunction ; and “that said David Walker, knowingly and intentionally, drew up, or caused to be drawn up, said writing herein sued upon; fraudulently drafted the same so that said sum therein specified became payable from said Denton D. Stark & Co. to him, said Walker, before said drugs, medicines, etc., were sold upon said execution, and when the same could not be sold upon said execution, as aforesaid; thus he, the said Walker, fraudulently deceived the defendant, Stark, and caused him to sign the said writing for said company under the belief and with the understanding that it did not bind the said Stark & Co. to pay said sum of $600, or any part thereof, unless said drugs, medicines, merchandise, chattels and effects were sold on execution; and in that way he, the said Walker, fraudulently procured the execution and delivery of said writing.”

To this answer* also, a demurrer was sustained. The defendant rested, and, after judgment, appealed,

jt not sufficient to plead fraud generally, or merely to characterize actions as fraudulent. The facts and circumstances constituting the fraud should be set forth. There should be some concealment, misrepresentation, craft, finesse, or abuse of confidence, by which another is misled, to his detriment; and these, or some of them, must he alleged and proved. Mere epithets, or adverbs characterizing conduct, which, in itself, may be innocent, amount to nothing. This has been repeatedly ruled by this court. See cases cited in Rose’s Digest, Title Fraud, Nos. 37 and 39, and, also, Twombly v. Kimbrough, 24 Ark., 464.

2. Fraud.-

inVcÍT mí tífe '

s. answer.-

oy°betwee¿ para=ra® s

The written contract is the best evidence of the terms to which the final assent of the contracting parties was given, and they do not always conform to the verbal agreements or understandings of the parties, in the course of negotiation. They can not be varied by parol evidence, nor is such difference a badge of fraud. If Walker finally drew up the contract as it is, and the defendant’s partner signed it. intelligently, with full opportunity of understanding its contents, and without any arts or devices on Walker’s part to mislead him, or prevent him from reading it, and without any abuse of confidence reposed in his skill or fidelity by Stark, there would be no ,fraud in the matter. No such means of procuring the signature are alleged, and the plea is substantially deficient in stating matter constituting a defense, and therefore bad. It is not even a good plea defectively stated and entitled to be made more definite, by motion. A written contract, intelligently signed by the parties, is not void because it differs from their verbal understanding beforehand'. There was no error in sustaining the demurrer to the second answer.

It remains to consider whether we may go back, on this appeal, to consider the action of the court in sustaining the demurrer to the reversal paragraphs of the first answer— or must the first answer be considered as having been abandoned, when defendant, after demurrer to it sustained, put in a different one. The second, although so described in the notes of the clerk, does not purport to be an amended but a distinct answer. Defendant may put in a number of defenses in distinct paragraphs, and if each is consistent with itself, it is not essential that they should consist with ea&k other* II a demurrer to some of them should be sustained, and issue be taken on the others, and trial had, the defendant can not be deprived of the be'nefit of those ruled out, if they were in fact good, but may have relief on final appeal. Such has been the practice of this court. Or, if all have been ruled out, the decision as to each may be reviewed; and it can make no difference in principle that one of the defenses was put in by leave at a different time from the others. They all stand on the same footing in the order of pleading. It is not like answering over to a declaration, after demurrer to it sustained; nor, under the old practice, pleading to the action, after plea in abatement held bad.

4‘ when byafidi°ing another.

A defendant, of course, has the right to withdraw or abandon an answer after it has been held bad on demurrer, and to file an amended and substituted one; in which case he may be considered as having abandoned his objections to overruling the former. But in such case his intention must appear, or be inferred from the record. If the new defense be distinct from the others, and there be nothing to indicate a design, on the defendant’s part, to abandon them, he may still rely upon them here.

In considering the several paragraphs of th.e first answer it will be useful to revert to the complaint, and see what material facts are specifically stated as constituting the cause of action. The Code provides (Gantt’s Digest, sec. 4569) that the answer shall contain “a denial of each allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief;” and,also, if necessary, “a statement of any new matter constituting a defense, counter-claim or set-off.”

5- Denials:

specific!be

In estimating the force and effect of the decisions in the Code states in settling the practice under what is called the new system of procedure, we must carefully distinguish between the language of their several Codes. Whilst the general features of the new system are the same in all the states which have substituted it for the old common Jaw and statutory system, there are still differences amongst the several state Codes which, if overlooked, would make the decisions of one state unsafe precedents for another. With regard to the answer, these differences are material. In some states a general denial is expressly permitted.. This is omitted in our Code, which, as above quoted, requires a denial of each controverted allegation; and further provides that every material allegation in a pleading not specifically controverted by the answer or reply must be taken as true.

(Ib., sec. 4608). Taken together these sections make it obligatory on the pleader specifically to deny every material allegation. This has been expressly held in Kentucky under a Code like ours, in a case where there had been a general denial of all the allegations of the complaint. The answer was held to be “ wholly unavailing.” (Corbin, etc., v. The Commonwealth, 2 Met., 380). It follows that the general issue at common law has no place in our system,-unless it in itself amounts to a specific denial of some’ material allegation.

The material allegations of the complaint were : That defendant. and Denton D. Stark were doing business as bankers, under the firm name of Denton D. Stark & Co.; that, as a firm, they made the promise in writing set forth in the former opinion, and delivered the same to David Walker, who afterwards assigned and delivered it to complainant ; that previously said firm had recovered judgment in the circuit court against Adams & Brother for a sum over $600, and that at the time Walker made the release and transfer of his lien, said firm of Denton D. Stark & Co., by Stark, the acting member thereof, represented to Walker that the judgment was valid; that execution had been issued and levied upon the goods in question, which would be sold in satisfaction; that said judgment was in fact illegal and invalid, and was afterwards enjoined, and the property restored to the defendants in execution, so that no sale was nor could be made.

The first paragraph of the answer is simply the general issue in assumpsit at common law, accompanied with a denial that defendant had authorized Stark to make the contract. It is argumentative, and specifically denies nothing. The charge was not that defendant had made the contract, or authorized Stark or any one else to make it — it was that defendant and Stark were partners, and that the firm had executed the writing to Walker.

A legal liability resulted from this on- the part of defendant. He does not specifically deny that they were partners, or that the firm executed the writing, nor in this paragraph, set forth any new matter to relieve himself of the liability imposed by the law. The authority to Denton to bind both resulted from the partnership, unless there were something shown in the complaint or set up in the answer to take away this authority, or make it appear that the authority did not extend to this transaction. Prima facie, the transaction appears to be within the scope of banking business. The demurrer to this paragraph was good.

The second paragraph admits that defendant and Stark were partners in tbe banking business, but denies that the partnership extended to the particular business in question. Prima facie, as we have said, the transactions appear within the scope of banking business. It is necessary that bankers should collect their debts. Within the general purview of their business partners may bind the firm. If there had been a special agreement between defendant and Stark, that this judgment in the firm name against Adams & Co. should be the property of Stark, and withdrawn from the partnership effects — or a matter in which neither had any interest, and that neither should use the firm credit in securing the fruits'of the judgment; that should have been shown specifically, with the further fact of notice thereof to Walker. Without such special agreement, and notice thereof to Walker, they were bound by all acts of each other within the general scope of the business. They accredited each other to the world.

This paragraph of the answer -was bad.

The third paragraph is liable to the same objection. It concedes that Stark procured the judgment, and the release of Walker’s lien, but sets up that the judgment against Adams & Co. was obtained on a note sent them for collection. If assigned to them for collection, a judgment obtained on it in the firm name would not be, on that account, invalid, and Walker might safely deal with them, or either of them, with regard thereto. It is usual for bankers to sue and recover judgments in the firm name, and, if they do so, strangers dealing with them with regard thereto are not obliged to inquire into the original causes of action, or question their joint interest.

If Stark abused his power as a partner, Walker, without notice, should not suffer.

The fourth paragraph denies that any interest in the goods, etc.', passed to Stark & Co. by Walker’s release and transfer of the lien. So much was matter of law’, and, not pleadable. If he had no lien, and falsely represented that he had, and did not in fact release any, that should have been set up specifically. The answer, however, goes on to set up as new matter, that after the execution of the instrument .to Walker and before its transfer to plaintiff, Walker got possession of the goods, sold them for a large amount, and kept the money, or converted it to his own use..

This was new matter, set up by way of defense, upon which the law without reply raised an issue.

Walker had a connection with the property which enabled him to get possession, and whether he did so rightfully or wrongfully, the possession should have inured to the benefit of those to whom he had assigned all his rights for a valuable consideration. He would be under an implied contract,' if they chose to waive the tort, as the answer in effect does, to pay over' the money received. It would have been his duty to credit the proceeds upon the note. Pie would not be allowed to recover upon it, and put defendants to a cross-action. And this defense attached to the writing in the hands of a subsequent assignee. It was not in its nature such paper ag was assignable by the law merchant, nor a note placed on the footing of bills of exchange. The demurrer to ’ this paragraph of the answer should have been overruled.

The fifth plea, of no consideration, was bad. Walker is not alleged to have falsely represented that he had a lien, or to have warranted it. He did release what right he had and denuded himself of all claim. The defendants had the convenience and security of this, and were best able to judge of its advantage. It is no defense afterwards to say the lien was not valid.

Eor error in sustaining tbe demurrer to the fourth paragraph of defendant’s answer, let the judgment be reversed and the cause remanded for further proceedings consistent with law and this opinion.