text:
    Puckett et al. vs. Reed et al.
    1. Landlord’s Lien: Purchase without notice, etc.

    One who purchases cotton grown on demised premises, after the same has been removed by the tenant to a gin, and without notice of the landlord’s lien, takes it discharged of the lien.
    2. Sale : Symbolical delivery.

    A sale of personal property may be completed and the title pass, as to third parties, without actual delivery, when, from the nature or situation of the property, actual delivery is impracticable.
    3. --: Same.

    The delivery to a purchaser of a ginner’s receipt for cotton, which stipulated that the same was to be ginned, baled, etc., and delivered to the holder of the receipt, was a symbolical delivery of the cotton, and passed title to the purchaser free from a landlord’s lien for rent, of which he had no notice.
    APPEAL from Independence Circuit Court.
    Hon. W. B. Padgett, Special Judge.

      J. M. Moore, for appellant.

      U. M. Rose, for appellees.
   English, Ch. J.:

It appears that A. B. Harris rented his farm in Harris’ bottom, on "White River, Izard County, for the year 1871, to William Riley and others, for a stipulated rent, to be paid in cotton and corn; that on the 27th November, 1871, Riley, one of his tenants, removed from the farm to the gin or warehouse of A. & A. Jeffery & Co., at Mount Olive, 1,742 pounds of seed cotton grown on the leased premises. On the 11th December, 1871, Harris sued William Riley and the other tenants before a justice of the peace of Izard County, and, upon affidavit, bond, etc., obtained an attachment to enforce his lien as landlord against the crops of the tenants remaining on the farm, and joarticularly against the seed cotton removed to the gin or warehouse of A. & A. Jeffery & Co. On the day of the issuance of the attachment (11th December, 1871), the constable levied upon the 1,742 pounds of seed cotton at the warehouse (as stated in the return) of A. & A. Jeffery & Co., and also on cotton and corn remaining on the farm of plaintiffs. On the 15th January, 1872, there was a trial and judgment against the defendants in the attachment suit, and, it seems, an order for the sale of the property attached. The defendants took no appeal.

On the 20th of January, 1872, Reed & Co., merchants of Batesville, interpleaded for the 1,742 -pounds of seed cotton attached at the gin of Jeffery & Co., claiming to have purchased the cotton from William Riley before it was attached. There Avas a trial upon the interplea before the justice of the peace 20th January, 1872, and verdict and judgment in favor of Harris.

Reed & Co. appealed to the Circuit Court, where they were permitted to amend their complaint; the death of Harris was suggested, Pleasant J. Puckett, his administrator, substituted as a party, and, by consent, the cause was removed to the Circuit Court of'Independence County.' There the cause Avas tried before the court, finding and judgment in faAror of the interpleaders, motion for new trial overruled, bill of exceptions, and appeal to this court by the administrator of Harris.

In the original interplea, or complaint, as it is styled in the record, the appellees alleged that, on the 6th of December, 1871, and before the issuance of the attachment, they purchased the cotton of William Riley, and he delivered to them the receipt of A. & A. Jeffery & Co. therefor. In the amended complaint they alleged that at the time they purchased the cotton of Riley, they had no notice, actual or constructive, that Harris had, or claimed to have, a lien thereon for rents or ot-henvise.

The receipt of Jeffery & Co., Avhich was made an exhibit to the interplea, and read in evidence on the trial, folloAvs:

“ Mount Olive, Ark., Nov. 27th, 1871.
Received of William Riley seventeen hundred and forty-two (1,742) lbs. seed cotton, to be ginned and baled for toll, and delivered to the holder of this receipt.
“ A. & A. Jeffery & Co.”

Isaac N. Reed, a member of the firm of Reed & Co., (composed of Charles P. Burr and himself) testified on the trial that on the 6th day of November, 1871, he purchased of William Riley 1,742 pounds of seed cotton, at four cents per pound, and paid him half in goods and half in money, and that Riley delivered to him the cotton receipt of A. & A. Jeffrey & Co., the ginners having the cotton, and which he knew to be in their handwriting , that he was particular to inquire of Riley if there was any lien or claim on the cotton, and he informed him that there was none. Witness was also permitted to testify, against the objection of appellant, that he had been engaged in the mercantile business in Batesville ever since the year 1865, and was well acquainted with the usage and custom of merchants at that place as to ginner’s receipts for cotton; that the purchaser of cotton by the ginner’s receipt was usual and customary with the merchants, and had ever been the custom so far as he knew. He had theretofore bought cotton by receipt in Izard County.

The appellees were then permitted to read in evidence the receipt copied above, against the objection of appellant.

Robert Neill testified that he was present when appellees purchased the cotton of Rilev, on the 6th December, 1874, and paid him therefor four cents per pound, amounting to $69.68; that full payment was made at the time. Witness handed Riley the cash that was paid on the trade, being about one half of the price agreed upon. He was book-keeper for appellees at the time of the purchase, and knew the i-eceipt of A. & A. Jeffery ■& Co., which Riley then had, to be in the hand-writing of one of the firm, and so told Reed.

He was also permitted to testify, against the objection of appellant, that he was in the mercantile business at Batesville in the years 1868-9-70-71, and well acquainted with the custom of merchants and ginners in the county of Independence, and adjoining counties of Izard and Sharp, and it was the general custom for ginners to give persons delivering cotton to them receipts similar to the one given by Jeffery & Co. to Riley in this case r and for merchants to buy the cotton and take the receipts from the holder, and then look to the ginner for the cotton. This custom was very generally practiced and agreed to by parties concerned. While in the mercantile business ho had frequently bought cotton receipts on gins in Izard County, and received the cotton. Did not know that the custom applied in other counties than those named.

Edwin T. Burr was permitted to testify, against the objection of appellant, that he had been a citizen of Batesville for thirty years, and that for about twenty-five years of that time it had been the custom of merchants to purchase cotton receipts at Batesville and in Jackson County; that he did not know whether the custom existed in Izard County or not; that he had bought cotton receipts from paj-ties living in Izard County.

It seems that there was a written contract of lease between Harris and Riley and others, defendants in the attachment, which was at some time among the papers of the court, but could not be found at the trial; but two witnesses, who had seen the contract, testified that it was substantially as stated by Harris in his affidavit for attachment; and it may be assumed that appellant proved that Harris had a landlord’s lien on the cotton at the time appellees purchased it of Riley, one of his tenants.

The .appellant moved the court to declare the law to be, “That the delivery of the ginners’ receipt for the cotton in controversy does not pass the title to the property in the cotton to the interpleaders, so as to vest the property in them as against the landlord’s lien.”

The court refused so to declare the law, and found the cotton in controversy to be the property of the interpleaders.

First — The statute gives the landlord a lien upon the demised premises, and provides a mode for him to enforce it by attachment. Digest, secs. 4098-4104. Section 4103 provides that “ Such writ of attachment may be levied on the crop in the possession of the tenant, or any one holding in his right, or in possession of a purchaser from him with notice of the lien of the landlord.”

If the cotton in controversy had been upon the demised premises at the time the appellees purchased it of Riley, the tenant Harris, possibly this fact might have been sufficient to put them on inquiry as to the landlord’s lien, and charge them with notice. But be this as it may, it appears that, before they purchased the cotton, it had been removed from the farm of Harris to the gin or warehouse of Jeffery & Co., and Reed, one of the appellees, testified that, at the time he purchased the cotton of Riley, he had no notice of the lien of Harris, and there was no evidence to the contrary. The purchase having been made before the issuance of the attachment, and without notice of the landlord’s lien, the appellees took it discharged of the lien, if, by the facts in evidence, the sale was complete so as to vest the title in them, before the cotton was attached.

Second — It was proven on the trial that appellees purchased the cotton of Riley and paid him for it, and he delivered to them the receipt of the ginners, in whose possession the cotton then, was.

Upon these facts the court below, in effect, refused to declare the law to be that the sale to the appellees was incomplete, and found that the title to the cotton was in them.

It is the general rule of the common law relative to sales of personal property that, by the mere contract of sale, the property in the thing sold passes to the purchaser, yet he has no right of possession if the goods be not paid for and no credit Avere agreed upon. Therefore, he cannot take them, nor sue for their nondelivery until the price be paid or tendered by him. Magee v. Sillingsly, 3 Ala., 690; 2 Kent, 492.

The common law rule, however, was changed by the 17th section of the English statute of frauds, Avhich was similar to our statute, which provides that No contract for the sale of goods, wares or merchandise, for the price of thirty dollars or upwards, shall be binding on the parties unless, first, there be some note or memorandum signed by the party to be charged ; or, second, the purchaser shall accept a part of the goods so sold, and actually receive the same ; or, third, shall give something in earnest to bind the bargain, or in part payment thereof.” Gantt’s Digest, sec. 2952.

In this case the appellees paid Riley the full price of the cotton at the time of the contract of purchase, and, as between them, the contract was complete. The appellees could have recovered the cotton of the ginners had they refused to deliver it to them on presentation of their receipt, and payment or tender of any charges due to them. •

But, on the facts proven, was the sale complete as against Harris, the attaching creditor ?

In the sale of personal property, the delivery of the thing sold is necessary as against every one but the vendee; as to him, the title passes without delivery. Where the Arendor remains in possession of the goods after sale, it is a badge of fraud as against creditors, etc., though in this State not fraud per se. Field v. Simco, 7 Ark., 269.

When the goods are so situated as to admit of no delivery, the sale Avill be valid without it. Ricker v. Cross, 5 New Hamp., 570. Where the articles sold are ponderous, a symbolical or constructive delivery will be equivalent in its effect to an actual one. So, where goods sold are in a warehouse, the delivery of the key has been deemed sufficient. Vining v. Gilluth, 39 Maine, 496.

In Adams v. Foley et al., 4 Clarke (Iowa), 52, held, that where .goods are left with a warehouseman, who gives his receipt for the same, the sale of the goods and the assignment of the warehouse receipt and delivery of it to the purchaser, was a valid delivery of the goods as against attaching creditors, though there had been no notice to the warehouseman or the creditors, of the sale and assignment of the receipt prior to the levy.

There is a similar ruling in Gibson v. Stevens, 8 Howard, U.S. 384.

See, also, Meeker et al. v. Vredurburg et al., 15 La., An. 438.

Five hogsheads of sugar lying on the wharf at St. Louis were purchased by Sample ; Held, that a delivery to the purchaser of the city weigher’s certificate, and .a bill of the price, constituted a sufficient delivery of the sugar. Glasgow et al. v. Nickolson, 25 Mo., 29.

A sale of cotton may be made and evidenced by the assignment or delivery of the ginner’s receipt. Waller v. Parker, 5 Caldwell (Tenn.), 476: 29 U.S. Digest, p. 563, sec. 11.

In Ricker et al. v. Gross, 5 New Hamp., 570, Whitehouse, being the owner of a chaise and harness, and various other articles of personal property, and being indebted to the plaintiffs, transferred the same to the plaintiffs for their benefit as creditors. Previous to the time of the transfer the chaise and harness had been let for hire, and were at the time in the possession of the hirer at a distance, but the rest of the property was delivered to the plaintiffs in the name of the whole. After such transfer and delivery, but before plaintiffs obtained actual possession of the chaise and harness, they were attached by creditors of White-house, while in possession of the hirer, on his way to the place where lie had hired them: Held, that the plaintiffs were entitled to recover the chaise and harness as against the attaching creditors. The court, after noticing the general rule that there must be a delivery of the goods as to creditors, etc., said: Where the chattels sold are so situated that there can be no delivery at the time of the sale, the case forms an exception to the general rule, and it is sufficient if the vendee, without any gross laches, take possession and assert his title in a reasonable time after he has an opportunity to take possession.”

In this case the vendor was not in actual possession of the cotton at the time of the sale. It was in the gin or warehouse of Jeffery & Co., his bailees, in Izard County. The sale was made at Batesville, Independence County; and the ginners* receipt delivered to appellees on the 6th of December, and the cotton was attached on the 11th. There is no proof that the appellees had presented the receipt to the ginners, or notified them of their purchase, before the cotton was attached, but the delay, under the circumstances, does not seem unreasonable, or to indicate fraud. In Gibson v. Stevens, 8 How., U.S., 401, the court said : It appears that the attachment was laid before the warehouseman received notice of the transfer to Gibson. Undoubtedly it was his duty to use reasonable diligence in giving notice to them, etc. And negligence in this respect on his part would be regarded as evidence of fraud, and might, moreover, put in jeopardy his right of property if it passed into the hands of a bona fide purchaser without notice, and in the usual course of trade. But in this case there has been no unreasonable delay. The notice was promptly given, and the receipt of it by the bailees was not necessary to complete his title. As between him and the creditors of McQueen & McKay (of whom Gibson purchased) the property and possession vested in him at the time of the transfer and delivery of the documents.”

In Smith v. Pickett, 7 Ga., 104, Hardwick stored five bales of cotton in the warehouse of Smith & Co., a,nd took a receipt from them which entitled the holder to receive the cotton. Pickett sued out an attachment against Hardwick, and served a member of the firm of Smith & Co. with a garnishment. After the service Hardwick transferred the receipt to Ridgell, who presented it to Smith & Co., and the cotton was delivered to him: Held, that the garnishee was liable, the receipt having been transferred and he having delivered the cotton to the holder after the service of the garnishment.

No doubt if Hardwick had sold the cotton to Ridgell and delivered to him the receipt of Smith & Co. before the service of the garnishment, the decision would have been against the attaching creditor.

By the terms of the receipt given by -Jeffery & Co. to Riley, the cotton was to be delivered to the holder of the receipt. Though such instrument is nut negotiable in the sense that bills, notes, etc., are negotiable by the law merchant, yet it was the evidence of Riley’s title to the cotton in the hands of his bailees, and when he sold the cotton to appellees, and delivered the receipt to them, it was a symbolical delivery of the cotton to them- — -the only delivery that could have been made at the time and place of sale.

Nothing remained to be done to complete the sale. The receipt specified the number of pounds of cotton, and the appellees paid Riley four cents per pound for it.

If Jeffery & Co. had any charge upon the cotton, that was a matter between them and appellees, which did not concern the attaching creditor.

Other rulings were made by the court below which are complained of by the appellant, and some of them may have been erroneous, but the judgment, being right upon the Avliole record, must be affirmed.


source: Caselaw Access Project

author: Walker, J.:

license: Public Domain

text:
    St. Peter’s Lit. Association vs. Webb et al.
    1. Vendor’s Lien: Assignment, sulyrogation, ete.

    Where one who executes a title bond to convey land upon payment of the purchase money afterward conveys the land and transfers the purchase money notes to a third person, the latter is subrogated to all the rights of the vendor, and may maintain a bill in equity 'to foreclose the vendor’s lien.
    :2.--: Same.

    Where, in such a case, the purchase money notes were delivered to the subsequent vendee without endorsement, but in consideration that he would carry out the contract with the first purchaser, it was such a transfer of the notes as entitled the holder to all the remedies and securities held by the original vendor.
    APPEAL from Lonoke Circuit Court in Chancery.
    Hon. J. J. Clendenin, Circuit Judge.

      Broion & Ford, for appellants.

      U. M. Bose, for appellee.
   Walker, J.:

The plaintiff asks equitable relief upon the following state of facts:

On the 27th of June, 1870, the Memphis and Little Rock Railroad Company sold to Jean Francis Webb 640 acres of land situate in the county of Lonoke, Arkansas, for the price of $3,000, one thousand of which was paid in cash, and two thousand dollars, secured by notes of one thousand dollars each, payable in one and two years, and on the same day the railroad company executed its bond to Webb to make him a deed to the land upon the payment of the balance of the purchase money. Afterwards, on the 27th of May, 1874, and after the .notes became due and remained unpaid, the railroad company conveyed the land it had contracted to Webb, with other lands, by deed, to the plaintiff with an express agreement that plaintiff should satisfy the sale made by the company to Webb, and, as the consideration for doing so, transferred and delivered the two notes given for the payment.of the residue of the purchase money, to plaintiff.

These facts are alleged in the bill and verified by exhibits.

Plaintiff alleges that it has a legal title to the land, and is the holder of the notes; that Webb is a non-resident of the State of Arkansas; that the notes remain unpaid; that, by the terms of their contract with the railroad company, plaintiff was subrogated to all the rights of the company, legal and equitable, and was charged with performance of the obligation of the company to Webb that Webb, being a non-resident, plaintiff could not tender to him a deed, but brings the deed before the court and offers to convey to Webb the lands purchased by him. Plaintiff avers that Webb has tenants on the land, and prays that they be made parties to the suit, and decreed to give possession to plaintiff;, that the equity of Webb be foreclosed, judgment rendered on the notes, and the land sold to pay the same.

A demurrer was filed to the bill, on the ground that plaintiff had adequate relief in a court of law.

The demurrer was sustained and the bill dismissed.

In so decreeing wc think the court erred.

The railroad company only contracted to convey upon condition that the purchase money was paid. The legal title to the land was retained as security for the payment of the -purchase money, which was due and unpaid at the time of the sale to plaintiff, to whom was conveyed both the legal title to the land and the notes, whereby plaintiff stood in the same relation to Webb as the company did before their sale to plaintiff. Webb’s interest was fully protected; plaintiffs were required to make him a deed to the land upon the payment of the purchase money ; a payment to plaintiff would have been valid, and would have discharged their debt. Webb was tendered the title which he had contracted for, and has no cause to complain that plaintiff was subrogated to the rights of the railroad company.

Counsel for appellee insist that, as the notes were not assigned by endorsement to plaintiff, the railroad company owned the debt, and should have been made parties, and, as this was not done, the demurrer was properly sustained and the suit dismissed, and wm are referred to our decision in the case of Sheppard v. Thomas, 26 Ark., 517, as sustaining him in his position.

The question of vendor’s lien has repeatedly been before us for consideration, under every state of case in -which the question could be presented.

In the case of Shall v. Briscoe, 18 Ark., 162, an absolute conveyance of the land was made, without reservation of a lien for the payment of the purchase money, the notes for the payment of which were assigned: Held, that the assignment does not carry with it the benefit of the vendor’s lien. This decision rests upon the ground that an absolute title to the land was given without reservation of a lien for the payment of the purchase money. But a distinction was taken between a conveyance of the title to the land, and a contract to convey, in which the vendor retains the legal title as a security for the payment of the purchase money, in which, in Moore & Cail v. Anders, 14 Ark.; 635, it was held, that the assignment of a note for the purchase money thus secured carried the lien with it.

In the case of Williams v. Christian, 27 Ark., 255, a bond for title was given to convey upon the payment of the purchase money, for the payment of which a note was given, the note was assigned without recourse. It was held, in that case, that the assignment, being without recourse, implied an acceptance and reliance upon the personal responsibility of the maker of the note.

In the case of Bernay v. Field et al., 29 Ark., 219, a bond had been given for title to lots upon the payment of the purchase money. The notes given for the payment of the purchase money were assigned by Field and Dolly to Benedict, Hall & Co. for value received. Subsequently, Benedict, Hall & Co. re-assigned the notes to Field and Holly, but without recourse.

The opinion in the case of Williams v. Christian was reviewed, and, under the state of case then before the court, approved. But a distinction was taken between that case and the case of Bernay v. Field in this, that the assignment, although without recourse, was made to Field and Holly, who held the security, whereby the debt and security were again united in the same party, and, in principle, settled the question, that whenever the security and the debt are in the same party the lien is sustained.

But the appellee insists that, in this case, there was no assignment of the notes from the railroad company to plaintiff, and counsel even go further and say that there was no evidence that plaintiff owned the notes. It is true, the notes were not assigned by an endorsement upon them, but then, by the terms of the contract between the railroad company and plaintiff to convey to Webb, the land contracted to be conveyed, and the notes given by Webb to the company, were transferred and delivered to plaintiff as the consideration for making such deed to Webb as the company had contracted to convey. It may be true that this was not technically an assignment of the notes, but it was a sale and transfer of the notes, which entitled the plaintiff' to the money to be paid by Webb for the lands, to be conveyed by plaintiff’ to him as fully as if an assignment had been made in the usual Jorm. And, in thus holding, we arc sustained by a former decision in the case of Wilson v. Bowden et al., 26 Ark., 151. In that case Burkhead sold and delivered the writing obligatory, and the mortgage given to secure its payment, to Wilson. The case- came before this court upon demurrer to the bill, on the ground that the Hill showed no assignment of the writing obligatory and indebtedness to Wilson, in regard to which Mr. Justice Harrison, who delivered the opinion of the court, said: That a person entitled to the money due upon a bond, or other chose in action, notwithstanding the legal title has not been transferred to him by assignment, so as that he may sue upon it at law, is so plain and familiar a proposition as not to admit of discussion. * * * A chose in action may be the subject of a sale, which will entitle the purchaser to all the remedies or securities held by the vendor, * * * and in equity will give a right of subrogation to the debt itself, and to all the securities that attend it. Yielding our assent to the correctness of this decision, and to the conclusions reached by the court in the ease of Bernay v. Field, that where the debt and the security are united in the same party, the lien created by contract will be sustained; and, applying them to the case before us, the position assumed by counsel must fail.

According to the terms of the contract, each party has duties to perform — Webb to pay for the land, and plaintiff to convey it to him.

Webb could have compelled plaintiff to make him a deed to the land by paying or tendering tbe purchase money. Webb, having failed to pay the notes, and,-by his tenants, being in possession of the land, plaintiff had an election of remedy — to sue in ejectment and recover possession of the land, with the rents and profits — but this judgment would not foreclose the equitable rights of Webb to pay for the land aud take the title for which he had contracted-^or to bring his action at law on the notes¿, obtain judgment, sue out execution and levy upon a.nd sell the equitable right of Webb. But such sale would,, not necessarily bar Webb from asserting his equitable rights.,-''

According to our repeated decisions, the contract, in cases like the one under consideration was, in legal effect, a mortgage, to which all the incidents of a mortgage attached, and the rights of the parties growing out of it are .to lie governed by analagous rules, under which the plaintiff may, as in this instance has been done, resort at once to a court of equity for redress, present the facts, and require of the defendant to pay the purchase money and accept the deed, or to foreclose his equitable rights and have the land sold upon such equitable terms as the chancellor may direct for the payment of the purchase money.

All of the necessary facts to entitle the plaintiff to relief are fully set forth in the bill, such as we think most clearly entitle plaintiff to the relief prayed.

Let the decree of the court below be reversed and set aside and the case remanded for further proceedings, with leave to defendant to answer.


text:
    Trotter et al. vs. Trotter et al.
    1. Will: Construction of.

    A testator devised his estate to his wife during her life orwidowhood. The third item of the will vested the entire management of the estate in her. The fourth item was as follows: I desire my estate to remain as it now is, and managed as I would if alive: Held, that it was the intention of the testator that there should be no division of the estate until the death or marriage of his wife.
    2. --: Homestead, partition of, etc.

    The widow renounced the provisions of the will and asserted a homestead in the realty. The heirs, who were not named in the will, applied for a division of the land: Held, first, that they were bound by the provisions of the will; second, that there can be no partition of the homestead.
    8.--: Effect- of the omission of some of the testator’s children.

    Where some of the children of a testator are omitted from his will it is not, thereby void, but they may recover of the devisees and legatees their proportion of the distributive shares of such as are omitted.

      APPEAL from Monroe Circuit Court in Chancery.
    Hon. J. Cole Davis, Circuit Judge.

      Rose, for appellants.

      Hughes, for appellees.
   Walker, J.:

The plaintiffs, children and heirs at law of Benjamin Y. Trotter, deceased, filed their complaint against Ellen Trotter, widow, and the minor children and heirs of Benjamin Y. Trotter, in which they allege that their deceased father died the owner of the northeast quarter of section thirty, in township one south, of range two west, containing 160 acres; that their father made a will, which was duly probated, by which the land, together with all of his personal estate, was devised to the defendant Ellen and her children (the defendants), the said Ellen to have only a life estate in the property, or until her death or marriage. The third item of the will is as follows: “ I desire my wife, Ellen M. Trotter, to have the entire control and management of my estate, without-being required to give any security for the management of the same. Fourth — I desire my estate to remain as it now is, and managed as I would manage it if alive.”

The names of the plaintiffs were not mentioned in the will, nor any provision made for them. Plaintiffs allege that, for this reason, their father died intestate as to them ; that the defendant Ellen is the widow of the deceased, and as such is entitled to dower.

Guardians w7ere appointed for the infant defendants, who answered. Defendant Ellen answered fully. She admitted that Benjamin Y. Trotter was the owner of the tract of land as described ; that he made the will exhibited ; that she is the widow, and the plaintiffs and defendants named as children and heirs are such; admits that no provision was made in the will for plaintiffs; avers ihat the 160 acres of land was the homestead of the testator ; that she and the infant children defendants resided with him upon the land at the time of his death, and that her and said children have ever since his death continued to reside upon the land; that she is now residing upon it and claims it as her homestead, the only homestead she has or claims; that in due form of law, and in due time) she has in writing renounced all of the provisions made for her in the will, and exhibits a copy of the same as part of her answer.

She denies the right of plaintiffs to have partition of the lands, and claims it all under her homestead right as an entirety.

The plaintiffs filed their demurrer to this answer, which was by the court sustained, and, upon the state of case made by the bill, rendered a decree in favor of the defendant Ellen for dower, and that the residue of the lands be divided among the heirs. Erom this decree the defendants have appealed.

No question is presented as to the validity of the will, nor as to the intention of the testator. Tested by the language employed, the testator gave and bequeathed to his wife and certain of his children (naming them) his entire estate, both real and personal, to be equally divided among them, the wife’s estate to continue during her life or widowhood. She was to have the entire control and management of the estate as it then was, to be managed as he would, if living, manage it.

If the plaintiffs (his children) had been named in the will it would have precluded the presumption that they had been unintentionally overlooked in the will; or, if named and provided for, the effect would have been to give them an equal share in the estate. "Whether the mind of the testator was directed, at the time of making the will, to the fact that he had other children than those named by him in the will, but preferred to leave his estate to his junior children and to their mother and those named, we have no means of knowing; but, in such cases, the statute considers the omission unintentional, and provides for those not named. But even if the plaintiffs had been named, and the children had all been alike provided for, in view of the third and fourth paragraphs, which give to the wife the entire management of the estate, to remain as it then was, and to be managed just as if the testator was living, it was evidently not the intention of the testator that the estate so devised to the children should be apportioned 'among them until the marriage or death of the mother, because to make partition would destroy its entirety. It would no longer remain just as it was at the death of the testator, which was his special request, nor would it be in condition to give to his widow the entire control of it.

Under the state of case thus presented, we strongly incline to the opinion that if the widow had not renounced her right under the will, she could have successfully repelled an attempt to distribute the estate during her widowhood or lifetime. But as she has relinquished her rights under the will, and elected to rest upon her statute rights, the case must be determined, so far as her rights are concerned, as though no will had been made.

By statute she held a life estate in one-third of the land, and also in the personalty, absolutely (which, however, is not the subject of consideration in this case).

The defendant Ellen claims a homestead right to the 160 acres' of Avhich her husband died possessed.

The answer sets up every material fact to entitle her husband to a homestead; he Avas a citizen of Arkansas, a freeholder, the owner of 160 acres of land, was the head of a.family, an actual resident upon the land with his wife and children at the time of' his death.

These were all the requisites to entitle the husband to a homestead. In the case of Johnson et al. v. Turner, adm’r, 29 Ark., 280, the question of the right of homestead was fully considered, in which it was held, “ That the homestead right must be perfect in the husband in his lifetime, irrespective of any act of the wife or children, and that, at the husband’s death, the law ■extends the benefit of the homestead to them as fully as it existed in him.”

This right of homestead, then, existed in the wife by operation of law.

The husband, by will, gave to her and her children the 160 acres of land during her widowhood or life. The homestead exemption does the same and more — it exempts it from sale under execution, The wife has elected to relinquish her rights under the provisions of the will, and has asserted her homestead right in her answer.

Upon demurrer to the answer, the sufficiency of the answer is directly presented for consideration — was this a sufficient answer to the complaint?

The plaintiffs propose by their bill to lay hold of this land and divide it among themselves — those who are not named in the will, as well as those who are.

They do not renounce the will, but take under it. Not having been named or provided for in the will, their rights are protected by treating them as heirs. The 12th section Gould’s Digest, 1075, provides that the children not named shall be entitled to recover from the devisees and legatees in proportion to the amount of their respective shares.

All that these plaintiffs have a right to is, that they shall have an equal share of the estate with the children named in the will; the will is not broken, but they are let in upon equal terms as beneficiaries.

This question was considered in the case of Bratton v. Bratton, 23 Ark., 569. In that case, as in this, part of the children were not named in the will. When considering8the®effect of sue omission, Mr. Justice Fairchild, who delivered the opinion of the court, said : The will is not to be annulled ; is not affected in any way; only the wife that claims under the will or the other defendants that have possession of the estate must contribute to the required portions allowed to the plaintiffs; otherwise than this, the enjoyment of'Susana Bratton under the will, will not be disturbed.”

Taking as they must, under the will, the question arises as to what estate did the testator intend should be distributed, and when such distribution should take place. The plaintiffs say it should take place now.

We think not. Even under a fair construction of the will under which they claim, we feel satisfied that the testator never intended a division of the land to be made until after the death or marriage of his wife; but, if mistaken in this, the homestead right was, by operation of law, extended to the wife until death or marriage, and, from its very nature, was not susceptible of division.

Upon this particular point this court, in the case of Johnson’s heirs v. Turner, adm’r, above referred to, cited several adjudicated cases in reference to the character of a homestead estate.

In Taylor v. Hargus, 4 Cal., 268, the estate' is said to be a peculiar one, made equally for the benefit of the wife and the children; it may be likened to a joint tenancy with right of survivorship. In Nichols v. Persel, 21 Iowa, 265, it is held, that no partition can be had of it.” Nor can either of the parties lessen or impair the rights of the others. Watts v. People, 21 Ill., 178.

Upon the state of case presented, we are of opinion that the-court below erred in sustaining the demurrer to the defendant,, Ellen Trotter’s answer, and in decreeing partition of the land.

We think the homestead right- extended upon the death of the husband to his wife and children, and that durihg the occupancy, widowhood or life of the defendant that the land is not subject to division.

Let the decree of the court below be set aside and reversed, and the suit'dismissed at the cost of plaintiffs.


author: Harrison, J.:

text:
    Benjamin et al. vs. Hobbs.
    1. Contract: Conntraction, arc.

    The vendors of real estate, against whom an action of ejectment was pending at the time of the sale, convoyed the land to the vendee, with general and special covenants of warranty. Tho vendees paid a part of tho purchase money, and executed their note for the residue, and the vendors executed to them a bond reciting the ale, the payment, and the pendency of the action of ejectment, and conditioned to become void ii the action . should be finally determined in their favor; or, in case it should be determined against them, if they should refund the purchase money so paid them: Held, that the bond was designed merely as a security for the cash payment, in case the vendor’s title should fail; and, as to tho deferred • payment, that the vendees relied alone on the covenants contained in the deed.

      •2. Pleading: Defect of title.

      A vendee who resists the payment of the purchase money on the ground of an outstanding title, must show the nature of the title, and that it is paramount to his vendor’s title.
    3. Rescission: Must be entire.

    If a vendee of land, who is placed in possession by his vendor, desires to rescind the contract on account of a defect in the title, he must restore the vendor possession.
    APPEAL from Pulaski Chancery Court-.
    Hon. John R. Eakin, Chancellor.

      Benjamin & Barnes, for apjiellants.

      Dodge & Johnson, for appellee.
   Harrison, J.:

On the 24th day of February, 1870, Frederick S. Hobbs and Helen Hobbs, his wife, sold and conveyed to Mason W. Benjamin and William Manuel a half section of land for $3,200.

' Benjamin and Manuel paid $1,600 of the purchase money in cash, and executed a note to Frederick S. Hobbs for the remainder, with ten per cent, interest from date, payable two years thereafter, and a lien on the land for the payment of the note was reserved in the deed.

Besides the statutory covenants implied in the use of the words “ grant, bargain and sell,” the deed also contained special covenants of seizin in fee, against incumbrances and for general warranty.

Benjamin and Manuel were let into possession, which they still retain.

At the time of the sale an action of ejectment was pending in the Pulaski Circuit Court against Hobbs and wife for the land; and, as an indemnity to them for the $1,600 paid in cash, Hobbs and wife executed to Benjamin and Manuel a mortgage on other lands, in which, after reciting the sale, the payment of the $1,600, and the pendency of the ejectment suit, it was provided as follows: “Now, if said suit, upon the final adjudication in said Circuit Court, and in the Supreme Court, if the same should be taken there, should be adjudged in favor of said Frederick S. Hobbs and Helen Hobbs, his wife, then this deed shall be void, * * * and if said suit of ejectment should be finally adjudged against said Frederick S, Hobbs and Helen Hobbs, his wife, and they shall pay, or cause to be paid to said Mason W. Benjamin and William Manuel the sum of $1,600, then this deed shall be void.”

Final judgment in the ejectment suit was rendered in the Circuit Court in favor of defendants, on the 24th day of March, 1874, and no appeal has been taken therefrom.

Frederick S. Iiobbs brought this suit against said Benjamin and Manuel to enforce the lien on the land reserved in the deed for the payment of the note.-

The defendants claimed in their answer that it was the understanding and intention of the parties at the time of the sale and purchase of the land, and such the meaning and import of the instruments when construed together, that the note should not be paid, or, in other words, that the land should not be paid for unless upon the determination of the suit in the Circuit Court, or in the Supreme Court, if it should be taken there, the title of the vendors should be perfected by a final judgment in their favor, and that the title had not been so perfected; and averred that Frederick S. Hobbs, the plaintiff, was insolvent.

The plaintiff filed a demurrer to the answer, which was sustained, and a decree thereupon rendered in his favor for a foreclosure of the lien and a sale of the land.

The defendants appealed.

The appellants contend that the deed, note and mortgage are to be construed together as parts of one and the same transaction, and that, so taken, they show an intention of the parties that the mortgage should stand as an indemnity for the money paid, but that no more should be paid on the purchase until all danger from the pending suit was past by final adjudication in favor of the vendors in this court.

Clearly, the instruments should be construed as one entire contract, but the language of each is so distinct and certain, no construction can affect and change their plain and obvious meaning.

The mortgage was evidently intended as a security alone for the re-payment of the $1,600 paid in cash, if the vendors failed in the ejectment suit and lost the land, and had no relation whatever to the note given for the remainder of the purchase money. Whatever may have been in their minds, and giving the instruments all the beaiing on each other they possibly can have, it cannot be seen that the payment of the note was in any manner to depend upon the result of the pending litigation. It would have been so easy to have expressed that, when so much else was carefully guarded, its omission is conclusive to the mind that it was not designed. We may very reasonably suppose that the defendants chose to rely upon the covenants in their deed, -which were full and specific. In fact, no incumbrance or defect of title is shown, and it is a well established rule that, if a vendee would resist the payment of the purchase money because of an outstanding’ title, he must show what it is, and that it is paramount to that of the vendor. A general expression that there may be, or that there is, a defect of title, is not sufficient. Hoppes v. Cheek, 21 Ark., 58-5 ; Worthington v. Curd, 22 Ark., 278; Bolton v. Branch, Ib., 235 ; Walker v. Towns, 23 Ark., 147.

As was said in this court in Bolton v. Branch: “If there are defects in the title the vendee must specify them and prove them, and they must be substantial and existing defects, not imaginary or rumored difficulties.”

But having purchased with full knorvledge of it, if a real defect in the title were shown, and because of it and the insolvency of the plaintiff, which would render a suit on the covenants in the deed unavailing, the defendants wish to rescind the contract, they must restore the possession of the land, -which they make no offer to do ; for it must be rescinded entirely or not at all. They cannot be permitted to enjoy the property and refuse to pay for it.

The decree of the court below is affirmed.


text:
    Chamblee vs. McKenzie.
    1. Tort: When. it may be waived and suit maintained on implied contract. Where a party whose'goods have been wrongfully converted elects to waive1 the tort and sue in assumpsit for money had and received, he must show x ° 1 that the goods have been disposed of by the wrong-doer for value.
    2. Legal Presumptions.
    The law will not presume that cotton shipped to market is immediately sold.
    3 Bailment: Might of action in bailee.

    A landlord to whom a tenant delivers cotton as security for the payment ol' rent acquires a right to the possession, and may maintain an action for the disturbance thereof.

      4. Pleading: What allegations do not require strict proof.

    Allegations of quantity, quality and value, when not descriptive of the-Subject of the action, need not be proved as alleged.
    5. Sale: When completed.

    The rule that title to goods does not pass so long1 as anything remains to be done to ascertain the quantity and price of the article sold, does not apply where there is a delivery with the intention of passing'the title.
    (3. Action, Right or: Where,}/comise to one for benefit of another.

    A party for whose benefit a promise is made to another may maintain an action thereon.
    7. ---: Variance between pleading and proof. Amendments, etc.

    This court will not disturb a verdict on account of a variance between the pleading1 and evidence, where the pleading might have been amended at the trial, in accordance with the proof.
    APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Thos. B. Martin, for appellant.
   Harrison, J.:

Hanf. J. McKenzie sued J. W. Chamblee before a justice of the peace on the following statement or account:

“ The plaintiff, Hanf. J. McKenzie, states that the defendant, J. W. Cbamblee, is indebted to him in the sum of $304 for five bales of cotton, which was turned over to him by Z. T. Bunch to pay his rent, and on which the said plaintiff had a lien as landlord. Said cotton was taken by said defendant, J. W. Chamblee, and sold by him without the consent of said plaintiff, and the proceeds thereof appropriated to his own use.”

The suit was commenced on the 7th day of February, 1874.

The plaintiff recovered judgment before the justice for the sum claimed, and the defendant took an appeal to the Circuit Court. Upon the trial in the Circuit Court the jury returned a verdict in favor of the plaintiff for $250. The defendant filed a motion for a new trial, which was overruled, and he then appealed to this court.

The grounds of the motion for a new trial were—

First1 — That the court gave improper instructions to the jury for the plaintiff.

Second — That it refused to give them proper instructions asked by the defendant; and,

Third — That the verdict was against the evidence.

The evidence was, in substance, as follows:

For the plaintiff—

The plaintiff testified: That he rented Bunch 30.4 acres of land in his plantation for the year 1873 at $10 per acre. About the last of January or first of February, 1874, he spoke to Bunch about paying the rent, and Bunch told him to take the cotton and pay himself. The cotton was then in pens on the demised land, two or three hundred yards from plaintiff’s house, where the conversation took place. A few days after this conversation the cotton was taken by persons employed by the defendant, and hauled to the gin on the Lewis plantation, near Greenback, where the defendant was doing business, where it was ginned and baled, and then shipped by the defendant. It was shipped on a steamboat going up the river toward Pine Bluff, which is a good cotton market. He had a lien on the cotton for the rent of the land, and had so informed the defendant before the cotton was taken, and he told him it could not be moved until the rent.was paid. The cotton was worth $304, and he had demanded of the defendant either the cotton or its value.

Z. T. Bunch testified: That he, about the first of February, 1874, turned the cotton over to the plaintiff to pay himself the rent out of. It was turned over by his saying to the plaintiff, who had spoken to him about paying the rent, and expressed some apprehension that the witness was not going to pay him: “ There is the cotton, take it,” and which was all that passed between them.

The witness had before then sold the cotton to the defendant to pay a debt., for which he had given him a mortgage on the cotton; but after the sale the defendant told him he had seen the plaintiff, and he refused to allow the cotton to be moved unless the rent was paid, and said he would attach it if he attempted to move it; and the defendant said that he would not move it and have it attached by plaintiff. After he turned the cotton over to the plaintiff he again saw the defendant, and he told him he could send and get it, but said to him he would have to pay the plaintiff his rent. The defendant after that sent wagons and hauled the cotton to the gin, and after it was ginned he told the defendant he might ship it, but must pay the rent. Witness supposed that, after paying the rent, there would be $150 over.

For the defendant—

The defendant testified: That he bought the cotton as it was in the pens from Bunch, in January, 1874, in payment of a debt for supplies he had furnished him in 1873, and for which he had given him a mortgage on the cotton, and was to send wagons and get it. He afterwards saw the plaintiff, and told him he had bought it. The plaintiff said it should not be moved until his rent was paid, and if it was he would attach it. He said to plaintiff he supposed the rent had been settled or 'he would not have bought it, and that if he had a claim on it for rent he would not attempt to move it until it was paid. A few days afterwards Bunch told him that he had seen plaintiff; that it was all right, and he could send and get the cotton. He employed and sent. hands after the cotton and had it hauled to the gin. It was hauled to the gin on Monday and Tuesday; on Thursday it was ginned and baled, and, on the next Monday, he shipped it to New Orleans by the way of Pine Bluff. He sent it that way to keep the plaintiff from attaching it. The plaintiff was at defendant’s store on Saturday before the cotton was shipped, when he laughingly said to him: “ Do you know that I have shipped that cotton ?” He said, “ No, I know you have not.” He then said to him, “ I am going to ship it; you had better watch it.” The plaintiff replied, “ I am watching it.”

Lewis Kennady testified, and was corroborated by Liberty Kennady, that he and the said Liberty Kennady were employed by the defendant to haul the cotton to the gin; and that when they went to the plaintiff’s place for it, they saw the plaintiff, and he asked them if they had come after the cotton, and when they told him they had, he told them to go on; that Bunch was in the field and would show it to them.

The first instruction given at the request of the plaintiff, which was objected to by the defendant, was as follows :

“ If the cotton was turned over by Bunch to the plaintiff, out of which to pay his rent, he had a special property therein; and if moved by the defendant without his consent he became liable to the plaintiff for its value.”

As an abstract proposition this instruction is correct, and would be applicable in a suit for the tort, or wrongful taking of the cotton, but this suit is upon a contract, and for the failure to pay money received to the plaintiff’s use.

Where goods have been taken tortiously, and sold by the wrongdoer, or he has, in. any manner,'received the value thereof, so as to be chargeable as for money received to the use of the owner, the owner may elect to waive the tort and affirm süch sale or disposition, and maintain an action for the money so received; but if there has been no such sale, or disposition, from which a promise to pay may be implied; there can be no contract, for the breach of which an action may be maintained. Bowman v. Browning, 17 Ark., 599, and cases there cited; 2 Green, on Ev., sec. 108.

Therefore, considered alone, we should hold this instruction bad, as being irrelevant, but calculated to mislead the jury, yet, as the defendant has, by his bill of exceptions, brought upon the record not only the instructions given for the plaintiff' which were objected to by him, and those proposed by him and refused by the court, but those also given at his instance, one of which is as follows:

“For the plaintiff to maintain his action, it must appear by the evidence that the defendant received money to which plaintiff is entitled, or something as, or instead of money, or which had been converted into money before the commencement of the suit.”

This latter instruction corrected the former, and removed the impression it might have made upon the minds of the jury to the prejudice of the defendant, and the two taken together formed a proposition of larv applicable to the case.

The next instruction given for plaintiff was:

“ If the cotton was turned over by Bunch to the plaintiff to pay rent, and Bunch subsequently contracted to sell said cotton to the defendant, the plaintiff’s -right was not affected by such subsequent contract.”

This instruction was, most clearly, unobjectionable..

The remaining instruction objected to was as follows:

“If the jury believe from the evidence that a sufficient time had elapsed from the taking of the cotton to the bringing of the suit for the defendant, with reasonable diligence, to have sold the cotton, the law presumes he had done so, and it is not necessary that the plaintiff should actually prove' that the proceeds or money therefor had been received by him.”

Presumptions of law “ are the result,” says Greenleaf, “of the general experience of a connection between certain facts or things, the one being usually found to be the companion or the effect of the other.” 1 Green. Ev., sec. 33. They are of two classes — the conclusive and the disputable. The first admits of no evidence to the contrary, but, in the second class, “ the connection,” he says, “ is not so intimate, nor so universal, as to render it expedient that it should be absolutely and imperatively presumed to exist in every case, all evidence to the contrary being rejected; but yet it is so general, and so nearly universal, that the law itself, without the aid of a jury, infers the one fact from the proved existence of the other, in the absence of all opposing evidence.” Ib. Of such presumptions, are, that of innocence in the case of a person accused of crime; that a note in the hands of the maker has been paid; and that a relation, once shown to exist, continues.

There is no such general experience, that cotton shipped to market is immediately sold; but, on the contrary, it is common knowledge that it is not unfrequently withheld from sale long after it has reached there.

If the jury had been told that such lapse of time was a circumstance that might be considered with other facts in the case, when determining whether the cotton had been sold or not, no fault could be found with the instruction; but it was an error to assume a sale as a conclusion of law from such circumstances.

The first of the instructions asked by the defendant and refused by the court was as follows:

If the cotton was turned over to the plaintiff as a security for the rent, and not with the intention of passing an absolute title thereto, he had no such property in the cotton as would entitle him to maintain this action.”

This instruction was properly refused. If the cotton was turned over to McKenzie in trust to pay himself the rent, he had a clear right to the possession of it. A bailee, or person having only a qualified property in goods, may maintain an action in regard to them.

The second was:

The complaint, in this action, alleges that the defendant had taken and sold five bales of cotton belonging to the plaintiff; it is, therefore, incumbent upon the plaintiff to prove such allegations as stated.”

As a general thing, allegations of quantity, quality and value, when not descriptive of the identity of the subject of the action, are not required to be proved strictly as alleged. 1 Green, on Ev., sec. 61. The court correctly refused to give the instruction.

The remaining one was as follows :

When something remains to be done between the buyer and seller of personal property for the purpose of ascertaining either the quantity, or the price of the article, there is no such delivery as passes the title; and it is not necessary to show that an express agreement was made that something further should be done between the parties. It is enough if it appears from the circumstances of the case, to be necessary; and if the jury believe, from the evidence in this case, that Bunch intended to turn the cotton over to the plaintiff, and that there was neither a weighing, so as to ascertain the amount, at the time nor afterwards, and that no specific price was paid, they will find for the defendant.”

When the cotton was turned over to McKenzie, as Bunch swears, it was on McKenzie’s land, which he had rented from him the year before. His assent to Bunch’s offer was, therefore, all that was necessary to transfer the possession to him.

This instruction assumes that, though there be a delivery, if anything remains to be done to ascertain either the quantity or the price, the property in the goods does not pass to the purchaser. Such is not the law. The rule is, that if anything remains to be done on the part of the seller, as between him and the buyer, before the commodity purchased is to be delivered, the right of property has not passed to the buyer. But if it clearly appear to have been the intention of the parties that the property should be deemed to be delivered, and the title to have been passed, the mere fact that something remains to be done will not govern such intention. Story on Sales, sec. 296-298a.

The demand, as made by the account or statement filed, is for money received to the use of the plaintiff on the sale of the cotton, and evidence was adduced in proof of it; but there was evidence also tending to prove a promise by the defendant to Bunch to pay McKenzie the rent, by which he became liable to him for it; for it is a general principle that the party for whose sole benefit the promise was made, may sue thereon in his own name, although the engagement be not directly to or with him. 1 Chit. Plead., 4; Strobecker v. Grant, 16 Serg. & Rawl., 237; Potter v. Yale College, 8 Conn., 52; 2 Green, on Ev., 109.

Although no such demand was made in the account or statement, yet, as under our practice, it might have been amended at the trial in accordance with the proof, we would not disturb the verdict but for the erroneous instructions given. As it is not possible for us to know whether the verdict was for the price of the cotton, or for the debt assumed for Bunch, the judgment must be reversed and the cause remanded that a new trial may be had.


author: English, Ch. J.:

text:
    Trieber vs. Andrews.
    1. Verdict.
    Not disturbed if there is any evidence to sustain it.
    2. Mortgage: Bill of sale, etc.

    It requires olear and decisive testimony to shew that a bill of sale, absolute on its face, was intended as a mortgage.
    3. Fraud.
    In order to establish fraud on the part of the purchaser, by reason of a purchase at an inadequate price from an insolvent vendor, participation on his part in the fraudulent design must be shown.
    4. .8Ai,®: Delivery.

    Where personal property, from its character and situation, is incapable of actual delivery, the delivery of a bill of sale, or other evidence of title, is sufficient to transfer the title and possession to the vendee.
    APPEAL from Phillips Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.
    P. O. Thweatt, for appellant.

      Tappan & Ilornor for appellee.
   English, Ch. J.:

On the 7th June, 1875, David Trieber sued E. R. Knight before a justice of the peace of Phillips County, and caused an attachment to be issued, which was levied by the constable on a boat load of staves lying at Helena. On the 18th of June, judgment was rendered against Knight, and an order made for the sale of the property attached. J. G. Andrews interpleaded for and bonded the property. There was a trial upon the interplea before the justice, and judgment that the property belonged to Knight, and was subject to the attachment, and Andrews appealed, to the Circuit Court.

In the Circuit Court the cause was tried before the court, finding and judgment for Andrews, motion for new trial overruled, bill of exceptions, and appeal by Trieber to this court.

On the trial appellee, Andrews, introduced in evidence the following instrument:

In consideration of the sum of $3,000 advanced to me by J. G. Andrews as charges on the following lots of staves, viz: About fifty thousand staves on the Little Kock Eailroad, and thirty-five thousand on the Languille Eiver, made by Carr and Shanler & McKenzie; about thirty thousand on Mattox Bay; about ten thousand on the Mississippi Eiver at Old Town; and seventy-five thousand on the A. C. E. E., including all staves on or near the above mentioned bay, rivers and railroads owned or controlled by me, I have this day conveyed and sold to the said J. G. Andrews all the above mentioned staves, being the same as described in an agreement made between N. D. Smith and myself on the 16th day of April, 1875.
[Signed] . E. E. Knight,
“ By A. D. Smith, Agent.”

The testimony of H. E. Andrews, brother of appellee, conduced to prove that this bill of sale was executed by Smith, the agent of Knight, about the 13th of May, 1875, when Knight was in New Orleans, and ratified by him on his return, about a week or ten days after the bill of sale was made.

It appears from the testimony of this witness and others, that after the execution of this bill of sale, appellee procured the superintendent of the Arkansas Central Eailroayl to bring to Helena, from along the line of the road, about 102,000 of the staves, and loaded them into two barges, lying at Helena, which he purchased of Hornor, agent of a gas company, about the 20th of May, 1875. It was one of these barges, containing about 50,000 of the staves, that appellant caused to be attached as the property of Knight, on the 7th of June, 1875. After appellee bonded the staves attached, he had the two barges taken to New Orleans, and sold the staves there.

One of the grounds of the motion for a new trial is, that the court found contrary to the evidence.

It is sufficient to say of this, without setting out the testimony of all the witnesses in detail, that there was some evidence to sustain the finding of the court; and it was the province of the court, sitting as a jury, to determine upon the weight of the evidence, and its conclusion is not the subject of review here, as repeatedly held by this court.

The appellant asked the court to make seven declarations of law, which were refused; and, at the instance of the appellee, the court made two declarations of law.

The declarations moved for appellant were drafted, in form as if to be given by the court to a jury. The first is: “ If you 'believe from the evidence [that KnightJ had the right to redeem the staves by paying Andrews the $3,000 advanced to him, then this instrument is not a bill of sale, but a mortgage, and not having complied with tbe laws of this state by having it acknowledged and recorded, it is void, and you will find for plaintiff.”

.The second declaration moved for appellee, relates also to the bih of sale read in evidence and copied above, and follows:

Second — Where a bill of sale is absolute on its face, it is incumbent on the party resisting, and claiming that it is a mortgage, to prove that it was intended as a mortgage by clear and •decisive testimony.”

Passing over the question, whether a bill of sale, appearing on its face to be absolute, can be shown by parol evidence, in a court ■of law, to be a mortgage (Hilliard on Mortgages, Ch. 3), the ■court, no doubt, refused the first declaration of law asked for appellant, because it was not proven that the instrument in question vras intended by the parties to be a mortgage.

The declaration made by the court at the instance of the appellee, on the same subject, is in accordance with the decision-of this court in Williams v. Cheatham, 19 Ark., 278.

Second declaration of law moved for appellant: If you find that Knight, being largely indebted, transferred or sold the staves to Andrews for a price much less than the value of the staves, it is a strong badge of fraud; and if the defendant fails to prove that he bought them bona fide, then you will find for the plaintiff.”

Just how milch Knight was indebted at the time he made the bill of sale to Andrews, or what property he owned other than the staves, does not appear from the evidence introduced on the trial. It appears that he owed appellant $220 on an accepted draft, which was the foundation of the attachment suit; that ho owed J. B. Ross $300, and that he was indebted to Pillow Bros., but in what sum is not shown. No witness swore that he was insolvent, or in failing circumstances, -when he sold the staves to appellee.

Nor did any witness prove what was the value of the stav«-s at the places where they were when the bill of sale was made.

H E. Andrew's, the only witness who testified as to the value of the staves, states that appellee got only the 102,000 that wm-v brought to Helena, and put into the two barges, and taken U.New Orleans and sold there; and that he sold them at an average of about $110 per thousand.

According to the testimony of this witness, the whole of the staves were sold for about $11,220.

The same witness states that, besides the $3,000 which Andrews agreed to pay on the staves at the time he took the bill of sais, he was to pay all charges, such as freight, etc., and that he advanced $9,000 in' all, besides the towing, which he usually got at $32 per 1,000 — meaning, as we infer, the towing of the barges from Plelena to New Orleans. At this rate the towing amounted on the 102,000 staves to $3,264, which, added to the $9,000, makes $12,264. The witness states that appellant paid out upon the staves between. $12,000 and $13,000, and that most of the money was paid through him. So, according to the testimony of this witness, appellee lost money on the staves.

Had appellant proven that Knight was insolvent, or in failing circumstances, when he made the bill of sale; that the staves were sold much below their value, where, or as situated at the time of the sale, these facts might have indicated a design on his part to defraud his creditors in making the sale; but appellant, to make out his case, should have gone further, and shown the participation of appellee in the fraudulent purpose of Knight. Hempstead v. Johnson, 18 Ark., 124; Christian v. Greenwood, 23 Ark., 264.

The declaration in question, as drafted,- was, in view of the evidence before the court, properly refused.

We have not overlooked the fact that the bill of sale includes about 200,000 staves, with a clause to cover any other staves owned or controlled by Knight, at or near the places named in the instrument.

Such a sweeping sale might have been an indication of fraud had it been proven that Knight was insolvent, or in failing circumstances, at the time it was made.

Third declaration of law moved for appellant:

If you find that Knight still kept possession of the staves after Andrews claimed to have bought them, and that Knight, with the consent of Andrews, held himself out to the world as the owner of the staves, attempting to borrow money and materials on these staves, then the sale is void, and you will find for plaintiff.”

Where the vendee permits the vendor to remain in possession of property after the sale, it may be an indication of fraud as to creditors, purchasers, etc. Field v. Simmco, 7 Ark., 275; Hempstead v. Johnson, 18 Ark., 134; Puckett, adm’r, v. Reed & Co., ante.

Here the staves in question were not in the actual possession of Knight when he sold them to appellee, but were, it seems, along the line of the Arkansas Central Railroad, and only constructively in his possession. The bill of sale was executed about the 13th of May, and before the 8th of June, when the staves were attached, they had been conveyed to Helena, and put into a barge belonging to appellee. There was no such laches on the part of appellee in taking possession of these staves, under the circumstances, as to indicate fraud. Puckett, adm’r, v. Reed & Co. ante.

Nor was there any evidence that Knight held himself out to the world as the owner of the staves after the sale, with the consent of appellee.

This declaration was, therefore, properly refused.

Fourth declaration moved by appellant:

“ If you find that Knight, being here and in possession of the staves, appointed an agent residing in another State to dispose of the staves, it is a strong badge of fraud, and, unless satisfactorily explained and proven that there is no fraud, you will find for plaintiff.”

The evidence was that Knight was at New Orleans when Smith, his agent, made the bill of sale, and that, on the return of Knight, he ratified the act of his agent by endorsing his name on the instrument. Where Smith' resided, or when Knight appointed him his agent, does not appear.

This declaration was properly refused.

Fifth declaration moved by appellant:

If you find that there were more than 75,000 staves along the A. C. R. R. belonging to Knight, and that after staves sufficient to pay the debt of the plaintiffs had been sold, there would still have been 75,000 staves left, then you will find for plaintiff*.”

If the meaning of this declaration is, that the plaintiff had the right to subject to his attachment all staves over and above 75,000 obtained from along the road referred to, it was properly refused, because there is a clause in the bill of sale covering all the staves owned or controlled by Knight on or near the road, etc.

The sixth declaration asked lor appellant:

“ If you find that Andrews was informed that there were chai’ges on tiie staves, such as for the timber and labor, and he agreed to pay the charges; and you further find that the debt upon which this suit is brought is for timber used for part of these staves, rhen it is immaterial whether he knew of this particular bill or not, he is still liable, and you will find for plaintiff.”

Appellant testified “that the draft in this suit, which Knight accepted, was given for timber used for some of the staves attached.”

The draft which is the foundation of the attachment suit is, upon its face, an ordinary draft for $220, drawn March 6th, 1875, by Craig & Anderson, in favor of appellant upon Knight, and- accepted by him.

If this debt was in any way a charge upon the staves, and appellee, when he purchased the staves, agreed to pay it as a part of the consideration for the staves, appellant might, perhaps, have sued him on the promise; but he could not enforce the promise by suing Knight on the draft, and attaching the staves in the hands of appellee.

The seventh declaration asked for appellant:

“A sale of a certain quantity of personal property, not finished, neither delivered, separated from the bulk, marked, or otherwise identified, is but an agreement to sell and deliver that quantity, and no title passes.”

This declaration, if good abstract law, was properly refused, because not applicable to the facts of this case. Chamblee v. McKenzie, ante.

The first declaration moved for appellee, and made by the court, follows:

“Where personal property, from its character or situation at the time, is incapable of actual delivery, the delivery of the bill of sale, or other evidence of title, is sufficient to transfer the property and possession to the vendee.”

This declaration of law is substantially in accordance with the decision of this court, in Puckett, adm’r, v. Reed & Co., ante, where the subject was sufficiently discussed.

The judgment of the court below must be affirmed.


author: AVaeker, J.:

text:
    Righter et al. vs. Roller et al.
    1. Salts: Ruffing.

    Mere commendation, or puffing, on the part of the vendor of goods, is noi ’ such a representation as will bind him.
    2. Frattit, Misrepresentation, etc.
    Fraud consists in the misrepresentation or concealment of material facts., forming an inducement to the making of the contract, and in regard to which, from the relative position of the parties, their means of information, etc., the opnosite party must necessarily be presumed to have contracted in reliance oil the representations; for if the means of information are alike accessible to both, they must be deemed to have relied on their own knowledge.
    3. ----: Rescission fur fraud.

    Where there is no warranty, and the sale is made under the false and! fraudulent representations of the seller, the purchaser may return, or offer to return the goods, and avoid the contract.
    4. Misrepresentation.
    An untrue representation, in order to be fraudulent, must have been knows by the party making it to be false.
    APPEAL from Phillips Circuit Court.
    Hon. W. H. H. Clayton, Circuit Judge.

      Tappan & Hornor, for appellants.

      P. O. TImeatt, Wassell & Moore, for appellees.
   AVaeker, J.:

Righter and wife filed a bill in equity to enjoin the sale of certain real estate under a deed of trust executed by them to secure the payment of a note for $1,500, given in payment for a barge sold by defendant to the plaintiff', AVilliam C. Righter. The bill charges that, at the time of the sale, Roller represented to the plaintiff that the barge was sound and seaworthy, and was suitable for freighting ice. That, on account of sheathing upon it, the barge could not be inspected, in consequence of which plaintiff could not, and did not, discover that it was not seaworthy. That at the time of the purchase the barge was worthless. That defendant, from his use and ownership, ought to have known that such was the fact. That after expending $1,000 in towing and repairs on the barge, it was of no value. That his offer to return the barge, when its condition was ascertained, was refused, and that it was afterwards sold for $100, which was more than its worth.

The defendant answered fully. He admitted all of the material allegations in the bill, except such as charge him with a knowledge that the barge was unsound, and his alleged statements at the time of the sale. These are positively denied. He alleged that the barge was unloaded of its cargo of ice at Helena and cleaned out; that defendant had ample time and opportunity to examine the barge, and did so, and bought it upon his own judgment, and not upon the representations of plaintiff; that it was seaworthy and suited for freighting ice, or insurable and sound ; for such representations were, in fact, not made.

This statement of facts, and the response to them, will suffice to enable us to determine the only real question at issue — that of fraud.

The evidence offered by both parties throws but little light upon this question.

Plaintiff deposes, and makes the allegations in his bill part of his depositions.

The defendant also deposes, and makes his answer part of his deposition; there were no witnesses present; no one heard the contract when made, so that, in fact, the question of fraud stands upon the allegation on the one side, and the denial on the other

The allegations touching the contract are as follows: That the said John C. Roller, well knowing the purposes and wishes of plaintiff, represented to him that the barge was, in every way, suited to his purposes; that she was sound and seaworthy, except a hole in the bow, and was insurable, being then under-insurance, and perfectly good for another season's business in freighting ice; and that, relying upon such representations and statements, and the apparent sound condition of the barge, as far as he was able to do so, bought the barge at the price of $1,500, for the payment of which he executed to defendant his note.

The further averment that the barge was unsound, and of little or no value is sufficiently proven, but the averment that the defendant knew, or ought to have known, the condition of the boat, is not proven, but is denied by the answer. There is no direct allegation of a knowledge of the condition of the boat when sold, or that the defendant falsely and fraudulently misrepresented the condition of the barge.

Before referring to the answer, and its effect upon the allegations, it may be well to understand the legal effect of the contract, and. to what extent, if any, the defendant is liable.

Considering the allegations to have been sustained by the proof, it has been repeatedly held by this court that, however contrary to good faith and sound morals it may be to misrepi-esent the state of facts connected with the condition or value of property, such as puffing and commendation of the article sold, that this is not alone sufficient to avoid a contract.

Eraud consists in the misrepresentation or concealment of material faults, calculated to mislead the purchaser, forming an inducement to make the contract, in regard to which, from the relative position of the parties, and their means of information, the one must necessarily be presumed to contract upon the faith which he reposes in the rejiresentations made on account of snperior information and knowledge in regard to the subject of the contract, for, if the means of information are alike accessible to both, the parties must be presumed to have relied upon their own knowledge, and, if mistaken, must abide the consequences.

It appears that, in this case, the defendant had only owned the barge about two months — bought it for the purpose of freighting ice. It had stood an inspection and been insured. In going down the Mississippi River, the barge struck a snag, which penetrated the bow. This was visible, and seen by both parties. The barge was so sheathed with plank as to render a close inspection of the hull difficult. The plaintiff inspected the bai’ge, and was unable to detect rotten timbers; neither of them was builders or repairers of boats, and what was not discernable to one, may well have been presumed to have escaped the observation of the other. It is true that the mechanic, whose trade and business it was to examine and repair boats, certified that some nine months after the purchase of the barge, and after it was sent to the dock-yard at St. Louis for repairs, he, upon first sight, discovered that the barge was unsound, but it is to be presumed that this was the result of experience and observation, which men not thus employed do not possess.

In view of this state of facts, there was no such superior advantages for gaining information as to the real condition of the boat, as to fix upon the defendant a presumption that he suppressed any fact known to him at the time of the sale.

If the defendant had warranted the barge to be sound, then, no matter whether he knew it to be unsound or not, as the barge proved to be unsound, the plaintiff, upon the discovery of such unsoundness, might have returned the barge, or have offered to return, as he did, and have rescinded the contract. As there Avas no warranty, this rule has no application to the case.

Where there is no Avarranty, and the sale is made under the false and fraudulent representations of the seller, by returning, or offering to return, the property, the purchaser may avoid and set aside the contract on account of such fraud. But under the state of case before us, this rule has no application. The misrepresentations in this case are not alleged to have been made fraudulently and falsely. The allegation is, that the defendant knew, or ought to have known, that the barge was unsound. It has been held by this court that, though the representations may be false, they are not deceitfully fraudulent unless known to the maker of them to be false. Plant v. Condit, 22 Ark., 454; Morton v. Scull, 23 Ark., 289. And such, too, has been the decision of the Supreme Court of Kentucky. Campbell v. Hillman, 15 B. Mon., 517, in which it Avas held, that in order to render representations, which prove to be untrue, fraudulent, they must have been known to be untrue when made.

Without an allegation that the statements alleged to have been made by the defendant to the plaintiff as an inducement to make the purchase, were made with a knowledge that they were false, the grounds for equitable relief were not shown on the face of the bill.- If everything therein had been admitted, they would have been insufficient to charge fraud upon the defendant.

But, even if sufficiently charged, they were not proven. The defendant positively denies in his answer, and in his deposition on oath, that he ever made the representations alleged to have been made in the bill; they were not sustained by the proof, and, .of course, unless alleged, the question of falsehood or fraud does not properly arise.

Having reached this conclusion all further investigation becomes unnecessary to a proper understanding and determination ■of the case.

The court below properly dissolved the injunction, with costs, and should have dismissed the suit. Let it be done in this court.