text:
    Chicot County vs. Campbell.
    Upon presentation of thelevee scrip of Chicot county, on a call of the county oourt under the act of 6th January, 1857, (Gould’s Dig. 925,) for redemption, classification and, re-issue, the holder of the scrip is entitled to payment of both principal and interest, and the County Court had no right to cancel the scrip without provision for payment of the interest as well as the principal.

      Appeal f rom Ghioot Gircwit Gov/rt.

    Hon. J. C. Murray, Circuit Judge.
    Bell & Carlton, for appellants.
    Garland, for appellee.
   Mr. Justice Fairchild

delivered the opinion of the Court.

Under the act of 6th January, 1857, providing for the redemption, classification and re-issue of outstanding county scrip, which is upon page 925, of Gould)'s Digest, the County Court of Chicot county had made an order calling in its scrip, and pursuant thereto, Campbell, on the 19th of January, 1858, presented an amount of scrip to the court, with a written statement, showing the dates, numbers and amounts of the pieces, to whom, and for what purpose issued, and asked for its classification, and for a re-issue of scrip in the place of the old that might be redeemed or canceled. Campbell seemed to apprehend that his scrip might be canceled by the court without being paid first,, according to its face, and he therefore protested against a cancellation, unless upon payment of the principal and interest of his scrip; it all bearing interest from date, at ten per cent, per annum, from being so expressed on its face.

The court classified the scrip, and authorized the treasurer to apply to its payment any unappropriated funds that might be in his hands at the annual settlement of the accounts, two years from the time of the order, but not to pay any back or accruing interest, nor to pay the warrants if they should come through the collector of the taxes; and the court gave Campbell till the next term to accept or to reject the proposition.

At the succeeding term, in April, 1858, Campbell filed his refusal to accede to the order of the County Court, and asked for an appeal from its decision, refusing to redeem the scrip by providing for its interest as well as for its principal. The County Court refused to grant an appeal, and Campbell proceeded by mandamus to have the cause transferred to the Circuit Court. In the Circuit Court it was considered as an appeal by the court, and by the parties: the county taking no steps in the case, but to move for the quashal of the alternative writ of, mandamus, and to have the case argued on the merits, when it was fully before the court. The Circuit Court reversed the judgment of the County Court for error, in not ordering the payment of the principal and interest of the scrip. Upon the trial of the case in the Circuit Court, it was of the opinion that Campbell was entitled to unconditional payment of tbe scrip and interest, out of any unappropriated funds in hand at two years from tbe 18th of January, 1858. Tbe classification of tbe scrip, wbicb deferred its. payment for two years, was not objected to by Campbell. Tbe county appealed to .this court.

Supposing that tbe County Court bad some good reason for its order, we have searched diligently to find it in some statute relating to the Chicot county levees and scrip, tbis scrip being drawn upon money appropriated for levee purposes, but can find nothing relating to tbe subject. "We see law in the Acts of 1840, authorizing tbe building of levees, but can find no special law that suggests to. us tbe ground upon wbicb tbe County Court repudiated tbe obligations of tbe county; nor do we find any in tbe general law. And if there were reasons founded on public policy, or if there were special equities existing in favor of tbe county against tbe particular scrip presented by Campbell, they have not been communicated to us: and, without assistance, we cannot divine tbe reasons of the rejection oí Campbell’s demand of interest.

It is however intimated in tbe order of tbe County Court, that Daniel Gaster and tbe Deceiver of tbe Deal Estate Bank, were holders of Chicot county scrip, and bad made a settlement with tbe court similar to. its proposition to Campbell: but we can excuse Campbell for not bolding these compromises to be acceptable precedents for bis own settlement with tbe county.

Two points are taken here by tbe counsel for tbe county: one, that if Campbell came in under tbe call, be must conform to tbe conditions affixed by tbe court making tbe call: tbe other, that if the scrip in suit was levee scrip, tbe County Court could impose such terms thereon as should seem to it to be proper. These do not seem to us. to require tbe judgment of tbe Circuit Court to be reversed, and it is affirmed.


source: Caselaw Access Project

author: Mr. Justice Fairohild

license: Public Domain

text:
    Maxwell vs. Guthrie.
    Where a party files a petition for discovery, and uses the answer as evidence, all in it relating to the matter'of the suit is to be considered.
    In a suit by the widow of the payee, upon notes given to the husband, or bearer, to a petition for discovery, as to the single fact of the transfer of the notes by the payee, the plaintiff answered that she held them, as his widow, under a statute of Louisiana, that gave her the right to, and possession of, the notes: Held, that she might well state her. claim to the notes; and that the answer need not be regarded as an attempt to prove a statute of Louisiana by her own statement.

      Appeal from Ashley Circuit Court.

    Hon. John 0. Murray, Circuit Judge.
    Waddell, for the appellant.
    Garland & Randolph, for appellee.
   Mr. Justice Fairohild

delivered the opinion of the court.

Annette Guthrie brought two suits before a justice of the peace against Maxwell, on notes executed by him, and payable to George W. Guthrie, or bearer. Judgment being given against Maxwell in each case, he appealed to the Circuit Court of Ashley county, where the cases were consolidated. In the Circuit Court Maxwell filed a petition for discovery, and obtained an order that the plaintiff should answer it. An answer was filed at the same term of the court, but upon the trial of the case at the next term, the court, at the instance of the plaintiff, refused to allow Maxwell to read the petition and answer in evidence; to which he excepted.

For Maxwell, it is here contended that, under the 93d section of chap. 133, Gould’s Digest, he had a clear right to a discovery from the plaintiff, as they were parties to a suit in a court of record.

■ On the trial of the suits before the - justice of the peace, Maxwell could have had the benefit of the testimony of the plaintiff to establish any set-off he might have had against the notes, and, without a set-off, he could have had her “ subpoenaed as a “ witness in the cause in the same manner, and ■ with like effect,

“ as any other person.” Sees. 108, 109, eh. 99 Gould’s Digest. "Whatever could have been done relative to this matter before the justice, could also have been done in the Circuit Court. Drennen vs. Lindsay, 15 Ark. 360. The same rule- of practice would induce the conclusion that, on an appeal from a justice of the peace, pending in the Circuit Court, no mode ol evidence would be adopted which was not permitted before the justice. This is the rule that obtains in pleading, as in the Circuit Court appeal cases are tried without formal or written pleadings — are tried as they were before the justice.

It is not, however, necessary to decide now, notwithstanding it would seem to be reasonable, that Maxwell could not by a petition for discovery obtain an answer from the plaintiff for the purpose of defeating her action; for taking the answer as evidence, it does not destroy the title of the plaintiff to the notes, as their bearer, nor, in connection with the other evidence, throw such suspicion upon her right to sue as to require her to show whence she obtained her possession, and much less that her possession was wrongful.

- The object of the petition was to show that the notes had never been transferred by George W. Guthrie. The notes were given to him, he had died, and the plaintiff answered that she held them as his widow under a statute of Louisiana,. that gave her the right and possession of the notes. If Maxwell-was not pleased with the answer, he was not obliged to use it as evidence, but using it, all in it relating to the matter of the suit was to be considered. Maxwell could not, by .confining, his interrogatories to the single fact of transfer of the notes'-by George W. Guthrie, also confine the answer to a simple negative, and thence, by a legal inference, destroy the right of the plaintiff to sue; but she might well state her claim to the notes, although they had not been endorsed to her, or come to her in the course of trade. Her answer may be taken to be a more assertion of her right to the notes, need not be regarded as an attempt to prove a statute of Louisiana by her own statement. The petition wished to cast suspicion upon her right to sue as the holder of the notes, the answer did not fix or strengthen the suspicion.

"We see no reason for disturbing the judgment, which, for the second time, declared the liability of Maxwell at the suit of the plaintiff', and direct it to be affirmed.


author: Mr. Justice Faischilb

text:
    Jordan vs. Deaton.
    A party seeking to enforce a specific performance of a contract, must allege and prove a readiness to perform his part of the agreement.
    A contract in reference to the sale of lands, to be specifically performed, must be certain in its term, and mutual — an obligation on the part of one to sell and on the other to purchase.
    It is well established that proprietors of adjaoent properties may, by parol agreement, establish an arbitrary dividing line between them, and acquiescence in such agreement will make it good; or an agreement may be inferred from acquiescence, and occupation according to the line; and this, though one of the parties be only a settler upon public land of which he afterwards beoomes the proprietor.

      Where one proprietor of adjoining lands points out to the other a particular line as tlie boundary between the two tracts — assures him that it is the true line — encourages him to make a permanent settlement on the land by acquiescence and assistance in the improvements, it would be inequitable to permit him to assert a claim to the land covered by the improvements, though it should prove by a subsequent survey to be his own land.

      Appeal from Clark Circuit Cou> t in Chancery.

    lion. Lest B. Green, Circuit Judge.
    Gallagher & Knight, for the appellant.
    Flanagin and Watkins, for appellee.
   Mr. Justice Faischilb

delivered the opinion of the court.

On different occasions from about the beginning of 1851, till in 1854, Deaton, the appellee, is shown to have pointed out and spoken of the Browning line to Jordan, as the established line between sections eighteen and nineteen, in township six south, of range twenty-two west. Deaton owned the southwest quarter of section eighteen, and Jordan had bought and was living on an improvement that approached to the Browning lino, but which was thought by Deaton and by others to be on section nineteen. After these assurances to Jordan, relying upon the information, he erected a dwelling house and out houses upon or near the site of the old house, which was part of the improvement he bought,' and Deáton was present at the raising of each of the buildings. In the spring of 1854, Jordan was raising a kitchen, and Deaton, among other neighbors; was assisting him. It was suggested to Jordan that he was making improvements that he might not hold, and that an old survey had made the line between sections eighteen and nineteen fall south of the houses, when Deaton, who heard the conversation, said that the Browning line was the established line between him and Jordan, that he had had it ran, and believed it to be the correct line, but if it should ever turn out that the true line would throw the improvements of Jordan upon his own land, that he should only expect the entrance money for the land that might be taken into the south-west quarter of section eighteen. After the kitchen was raised, Jordan entered the north-west quarter of section nineteen, though as long before as the spring of 1851, he had declared his intention to Deaton, and William Tucker,.and Jonathan Strawn, to enter forty acres to include his building site and improvements. Jordan, also, after the conversation at the raising of the kitchen-in 1854, made additional improvements on the northern line of his possessions, by completing the kitchen, clearing, fencing and cultivating land, and planting a peach orchard.

It is charged in the bill that, in 1855, Deaton procured Cling-man to run the line between sections eighteen and nineteen, and the answer admits the fact without any date, the result of which was to fix the line south of Jordan’s houses and improvements, which is now admitted by all parties tobe the true line. After Clingman ran the line, Deaton does not appear to have recognized the claim of Jordan, or to have assented to any relinquishment of his own right, but in March, 1856, commenced an action of ejectment against Jordan to recover the whole of the south-west quarter of section eighteen according to its established lines, having previously refused to receive from Jordan an amount of money he tendered'to Deaton as the entrance money for the land that Clingman’s line showed to belong to section eighteen.

Such are the principal facts that are established in the case made by the original bill, the supplemental bill of September 1859, the answer to them, and the testimony adduced by the parties. The question arising upon these facts, is, whether Deaton should be enjoined by a court of chancery against having the benefit of a legal prosecution to recover the land covered by Jordan’s improvements, such being the case made by the original bill, or against the execution of a judgment for the land, as is the case presented by the supplemental bill of September 1859.

After Deaton began his action of ejectment, Jordan filed the bill in this case, and obtained an injunction against its further prosecution, which was dissolved on motion of Deaton upon his answer. The suit at law then proceeded to final judgment, which was brought to the notice of the court by a supplemental bill. ■

The bill cannot be supported by a decree of specific performance. The contract which is insisted on as one that should be performed by Deaton, is to recognize the Browning fine as the southern extent of Deaton’s claim, and for the land south of it in section eighteen, to receive from Jordan its entrance money. The quantity of land between the Browning line and the correct line is twenty-nine 62-100 acres, and it is left uncertain by the testimony whether thirty or thirty-five dollars were offered to Deaton by Jordan, as the entrance money for the land. In either case, if the land cost at the land office a dollar and a quarter an acre, the largest sum would not be sufficient to indemnify Deaton for the purchase money paid by him; and although Jordan states in bis bill that he brings fifty dollars into court for Deaton’s purchase money and interest, there is no evidence to show that this sum would be sufficient for its designed purpose. To have secured a specific performance, Jordan should have alleged and proved that he had alwaj's been ready to perform his part of the agreement, and that, before the suit and in proper time, he had done all that he should do under the contract to induce its performance by Deaton.

The alleged agreement of Deaton was not certain enough, in its terms, to insure its specific performance against him, lor he did not say that he would sell the land for the entrance money, or any other sum, only that if section eighteen should take in the houses and improvements of Jordan, he would not require any more of Jordan than the entrance money. He might not require even that, or any amount — might take no Btep to get possession, under his title, of the land between the lines,.and yet refuse to sell the land, and be within the meaning, and, it maybe, within the spirit of his assertions. Nor was there such mutuality between the parties as to make a certain and sure contract. For Jordan was not bound from anything we can see in the record to buy from Deaton the land that might fall into section eighteen below the Browning line. It might be expected that he would prefer the land and his improvements upon it to the entrance money, but a contract to be specifically enforced must stand upon its own express provisions, and not upon inferences, though ever so reasonably and forcibly drawn. It is proved by Jordan’s witness that he made no reply to Deaton’s declaration, that if the line ever embraced the improvements, he should only expect, or require the entrance money: nor was there any agreement or expressed expectation that another attempt would be made to establish a line.

Then, without regard to the statute of frauds, or to the sufficiency of the allegations upon which to make a decree of specific performance, this point is disposed of on the ground that no such agreement is proved as courts of equity will require to b'e specifically performed.

Another and more plausible point made for Jordan is, that Deaton, by his words and by his acts, as before narrated, has so recognized the Browning line to be the line between sections eighteen and nineteen as to establish it as the correct line between him and Jordan, although it was not the one delineated by the public surveys.

It is well established that proprietors of adjacent properties may, by parol agreement, establish an arbitrary line, to be the dividing lino between them; and acquiescence in such agreement will make it good; or an agreement may be inferred from acquiescence and occupation according to the line. No written agreement, no consideration need be shown; the implied assent to the line by the respective occupaflcers to it will be sufficient for its establishment. Blair vs. Smith, 16 Misso. R. 280; Rockwell vs. Adams, 6 Wend. 469; McCormick vs. Barnum, 10 Wend. 110. The distinction, however, between those case3 and this, is, that Jordan was not a proprietor of the land adjacent to that of Deaton, in section eighteen, but a settler upon public land. There are a series of decisions by the Supreme Court of Tennessee recognizing and applying the same doctrine as that ■ found in the cases already cited, which are reviewed and confirmed in Wilson vs. Hudson, 8 Yerg. 408; in which it is applied to the owner of land, and to one who is about to make an entry of adjoining land. And this court, in Baker vs. Hollobaugh, 15 Ark. 325, conceded that occupiers of public land, in view of its immediate purchase, or of its 'purchase when it should come into market, might so agree by parol, or act respecting a division of the land, as to entitle one to relief against the other who would not abide by the contemplated'division. And although, in that case, specific performance seemed to be the mode of relief that was asked of the court, and of which the court was then remarking, the concession might as well be applied to the settlement of a boundary line different from any-marked by the surveys, when made in anticipation of a purchase of public land.

Besides the difficulty of considering Jordan to be a party to a settlement of a, boundary line without being the owner of land next to the proposed boundary, or without evidence that he was ascertaining the line with the purpose of making an entry, all the acts of Deaton that are brought up against him — ■ as his encouragement to Jordan to build, his presence and aid in the erection of his buildings, and his acquiescence in the settlement of Jordan, and even his declarations about the Browning line — seem to relate only to the improvements of Jordan, and not to refer to fixing a permanent boundary by the Browning line, disconnected with the conditions of Jordan’s residence and occupancy, which did not extend through the length of the line between the two adjacent quarters in sections eighteen and nineteen. We do not think that any fact in the case calls for a settlement upon the Browning line as the line between the parties, any farther than the improvements of Jordan may extend with the line.

But to hold that Deaton, may recover the improvements, after encouraging Jordan to make his settlement permanent, by bis declarations about the Browning line, by his acts of acquiescence and assistance in the improvements, which Jordan was pushing on from 1851 to 1855, would be a reflection upon the administration of justice. The doctrine of equitable estoppel must be applied to Deaton against any benefit from his judgment in ejectment. If a man, by encouraging the sale of his own land, shall be estopped from afterwards questioning the right conferred by the sale, so ought Deaton’s mouth to be closed against the assertion of a claim to the land occupied by the improvements of Jordan. The land was as much Deaton’s in 1851, in 1854, and the intermediate period, as alter Clingman’s survey: and the means of ascertaining the true line were as accessible to Deaton then, as in 1855. Not as a matter of contract, but to do equity while asking it, Jordan ought to pay Deaton the entrance money of the land covered by the improvements. And so we direct that Deaton be.perpetually enjoined from enforcing his judgment in ejectment against Jordan, so as to deprive him of his improvements aloiig the southern line of the south-west quarter of section eighteen, township six, south of range twenty-two west, «and that Jordan pay to Deaton, as above expressed. The decree of the Clark Circuit Court in chancery is reversed, and the case is remanded to ascertain the extent of the injunction, and to render a decree in accordance with this opinion.

The supplemental bill of September, 1858, is to be dismissed. Jordan has no claim to the land on the west side of the east line, between the south-east and south-west quarters of section eighteen, as traced by Marsh, the county surveyor. That the south half of the section contains more than three hundred and twenty acres, does not give Jordan a right to run his line westward from the south-eastern corner of the section, more than half a mile. The excess in the quantity falls into the southwest quarter, it being upon the western division in the township. On account of this bill Jordan must pay half the costs in the Circuit Court.


author: Mr. Justice Fairchild.

text:
    Jordan vs. Deaton.
   Mr. Justice Fairchild.

This is the action of ejectment mentioned in the chancery case between the same parties, just decided. Although the judgment is subject to the perpetual injunction ordered against it, that extends to but part of the judgment, for the eight acres of enclosed land west of the east line of the south-west quarter of section eighteen, mentioned in the verdict of the jury, are not included in the land which Deaton, in the other case, is restrained from taking.'

But this case remains for disposition here upon the questions its own record presents; and there is nothing in that to affect the judgment of the Circuit Court. The conversations of Deaton, to the same effect as some detailed in the chancery suit, wrere properly excluded from the defense. Jordan was allowed to adduce some illegal testimony, and though the verdict were against-that we would not disturb the judgment. The instructions to which the motion for new trial objects, were not excepted to, and are not in the record.

The judgment is affirmed.


author: Mr. Justice Fairchild

text:
    Gaster’s Heirs vs. Gaines.
    The certificate issued by the Board of Swamp Land Commissioners, under Ordinance No. 9, that a party had made application to purchase certain swamp lands and had presented accounts of levee work or scrip in payment thereof, was not a sale of the land — the certificate merely evidencing an application to purchase, which the commissioners might subsequently accept or reject.

      Appeal from Chicot Circuit Court in Chancery.

    Hon. John C. Murray, Circuit Judge.
    Hutchinson and Watkins for appellants.
    Harrison for appellee.
   Mr. Justice Fairchild

delivered the opinion of the court.

The following certificate was issued from the swamp land office at Helena:

'■ Office of the Board of Swamp Land Commissioners,)

Helena, Ark., January 10th, 1852. )

“ This certifies that Stephen Gaster, of Drew county, Ark., “ has this day applied at this office to purchase the following “ lands, to-wit: W. £ of S. E. £ sec. 33; the W. £ of the N. W. “ £, sec. 23; the N. £ of sec. 22; the W. £ of the S. W. £-, “ sec. 22; frl. sec. 21 (east of Bayou Mason); the W. £ of the “ N. E. £, sec. 28; the E. £ of the S. W. £, sec. 28; the N. W. frl. £ of sec. 28 (east of Bayou Mason); the E. £ of the N. E. “ £, sec. 35; the W. £ of the N. E. £, sec. 14; the W. £ S. E. “ £, sec. 14; the N. E. £ of the S. E. £ of sec. 8; the N. W. £ “ of the S. W. £ 9, and the S. W. £ of the N. W. £ of sec. 9, in T. 14 S., R. 2 W., containing 1,343 43-100 acres, in pay- “ ment of levee work done andreceived by the'Boardof Swamp “ Land Commissioners, or scrip.

“ W. E. BUTTS, Secretary.”

This certificate is the foundation of the title, and the only witten evidence of the title which the bill seeks to have established and quieted by a decree of the Circuit Court of Chicot county, sitting in chancery, and which is charged to be clouded and injured by the opposing but unfounded pretensions of Gaines, who is made defendant, and who is charged with asserting some sort of claim to the lands. The certificate and the statement of Hanly compose the testimony offered in the Circuit Coui-t to substantiate the title of Gaster. Gaster never obtained any other documentary evidence of title, as the Board of Commissioners did not recognize the transaction with Gaster as a sale of the lands, as is shown by the erasure of the marks of entry that were made in the office when Hanly was obtaining the certificate: by the omission of the commissioners to include the lands in the list as sold by them that they reported to the auditor, under the thirty-first section of the swamp land land act of 12th January, 1853, and by the evidence of Kim-ball, swamp land secretary, who says that after a diligent search of the records and files of his office, he finds no evidence of the entry of any lands in township fourteen south, of range two west, by Stephen Gaster.

It is maintained, on the part of the plaintiffs, that the certificate itself shows a sale of the lands to Gaster by its acknowledgment of payment for them, although in its terms it recites but an application for purchase, and that when the lands w’ere once sold to Gaster, no unauthorized act of the commissioners, interfering with the evidence of the sale, nor any omission on their part to make a report of the sale to the auditor can affect the right of Gaster.

It is then necessary to ascertain what is the effect of this certificate, either by itself, or in connection with other facts of the case. This certificate was not a certificate of purchase under the 6th and 8th sections of the original swamp land act of 6th January, 1851. Miles vs. Walworth, decided at the present term. Nor was it so in the view of the commissioners; for they adopted the practice of issuing certificates of application for the convenience of persons who might wish to purchase particular lands, but these certificates were to be presented to the Board of Swamp Land Commissioners, accompanied with the scrip, or authenticated accounts of levee work, on which the applications were based, and if found to be correct, and the lands were confirmed, the original applicants could receive full certificates of purchase. Hempstead's Swamp Land Laws, Ordinance 9, page 48.

The General Assembly also had the same opinion, for it Required any kind of certificate that had been issued by the commissioners to be examined by the land agent, and to be exchanged for a patent certificate, that is, a certificate of purchase, if the records of his office showed the lands to be confirmed, and that payment had been made for the lands as described by the certificate of the commissioners. Swamp Land ’Act of 20th January, 1855, sec. 1.

The certificate of application which was given to Gaster did not, then, confer a title to the lands described in it. It was simply evidence that the commissioners had received a proposition from Gaster to buy the lands; and by their ordinance No. 9, above referred to, which was adopted the day before Gasier’s application was made, they deferred an acceptance of the proposition until the certificate for application should be presented to them, to obtain, instead of it, a full certificate of purchase, such as was provided for by the 6th and 8th sections of the act of 6th January, 1851, and that presentation would not be effectual till the lands should be confirmed.

As was intimated in Miles vs. Walworth, the certificate of application was a mere office regulation; it was not issued under any legislative requirement or authority, and there was no legislative recognition of such a certificate till the act of 20th January, 1855. But because the certificate of application recited that Gasterhad applied to enter the 'lands in payment of scrip, it is earnestly urged that a fall contract was made between the commissioners and Caster, bjr which the former sold to the latter the particular lands described in the certificate, and for the scrip that Gaster paid in as the price of the land. Such is not the effect of the application. The commissioners, by law, were obliged to issue certificates of purchase upon the performance of the requisite conditions, but they were not obliged to give out certificates of application to any who might wish to apply for lands before they could be sold, but having granted this favor, they made it a condition of application that it should be accompanied with scrip, of with an authenticated account of levee work done and received. This they had a right to do. They would not receive naked propositions to buy lands, but they would receive them if accompanied with the funds that might finally be taken in pay for tr-e lands, yet the application was none the less a mere proposition on the part of the applicant, and to which the board was no further pledged than to entertain it, and upon confirmation of the lands, to accept the proposition in favor of the first applicant, provided it should then appear right to be done. Nor was an applicant bound by his proposition, for by ordinance No. 11, adopted the 9th of April, 1852, the scrip that was filed with an application was marked with the. name of the applicant, so that if he wished to change his location, or withdraw his scrip, or put it into market, it could be readily identified and delivered to him for a new issue. This is conclusive that the application was not to be taken as a contract against the applicant, he being as free to withdraw his proposition to buy, as he had been to make it. He proposed to buy, but before his certificate of application would be exchanged for one of full purchase, he might wish to do otherwise, and the way was open to him to withdraw his own funds on file in the swamp land office, use them in applying for other lands, or take new scrip instead, and hold it as a commodity in the market.

It is said that certificates of application like Caster’s were the usual evidences of sale of the swamp lands by the original board, but of this there is no evidence, and we cannot see how-such evidence could establish them to be instruments of sale, when the law does not so provide, when the ordinances of the board are directly the reverse, and when the terms of the certificates contradict such a conclusion. These applications have, doubtless, been g.enerally,=ehanged into full certificates of purchase of the commissioners, to patent certificates of the land agents, or the scrip and accounts that were filed with them have been withdrawn, but that did not change the original character of the certificate of application. As the original Board of Commissioners had no official plats of the swamp lands, the lands were unconfirmed when they began to sell, and most of them -remained so, during their term of office, such certificates of application were very likely to be the certificates commonly issued by the commissioners; but counsel are evidently mistaken in attributing to the commissioners the intention to'issue certificates of purchase in the form of their certificate to Caster, for the ordinances of the board are inconsistent with such an intention.

It then appears plain to us that the claim of Caster, judged from his certificate alone, without consideration of the facts behind it, which induced the commissioners to refuse its recognition, is not sufficient to sustain his impeachment of the title of Gaines: for no matter what sort of a title that may be, by its assertion, or by undue clamor, he cannot thereby becloud the title of Caster, as that which does not exist cannot be obscured.

It is true that when the lands applied for by Caster had been confirmed,-and his certificate of application with the scrip filed with it had been presented to the Board of Commissioners, with a request for a certificate of purchase, it would have been given, unless there had been a prior applicant, and if the area was properly estimated, and the scrip was sufficient to pay for it all; and the same result would have attended an application to’the land agent for a patent certificate: Or, if such facts had existed as would have compelled the board, or the agent, to have given a final certificate of purchase, a court of equity would have held Gaster to be in the same situation as if the ministerial officer had done what he ought to have done. Hempstead vs. Underhill 20 Ark. 358. But no presentation of the certificate of application accompanied by the scrip therewith filed, and by a demand for a certificate of purchase, or patent certificate, after the lands were confirmed, and under such facts as to show the demand to be within the proposed contract, has been alleged or proved by Gaster. The plaintiffs ask for the establishment of a title solely upon a construction of the certificate of application, for the statement of Hanly only tends to show the fact of payment, as is recited by the certificate.

It is mentioned in argument that the court that tried the ease was of the opinion that Gaster had not shown' a payment of the lands, and this ia the prer,u'med reason that the board did not record the application of Gaster in their -official books, or include the lands in tbe list they reported to the auditor to have been sold. From the testimony of Hanly, a payment for the lands in the sense used by tbe parties, that is, filing with the application a sufficient amount of scrip to cover the price of the lands, would be strongly inferred. Part of the price would be paid out of allowances to Gaster, to Bailey and to another person, and the residue was made up in scrip. The commissioners seem to have been indebted to these persons for services performed for the board, and if the accounts were allowed, they were the same as scrip, as the parties could have drawn the scrip upon them; but Hanly is not positive whether these sums computed in ascertaining the price of the lands, were allowances, or only accounts, although he thought them to be the former. But Maloney, who was a clerk in the swamp land office at the time, states that they were allowances, but that the reports, upon which the allowances had been made, were considered to be defective, and that the commissioners directed the secretary to withdraw the allowance till the defects were cured by amendment.

There was a difficulty about the scrip that was used in filing with the application, which Gaster, through Hanly, obtained from Trousdale, one of the commissioners, the particulars of which need not be stated. But it seems to be the just conclusion, from all the facts connected with the application of Gaster, that, from the condition of the allowances, or from an apprehension that the scrip loaned to Gaster would not he returned according to the stipulation of Hanly, the entries concerning the transaction were made in a private book belonging to one of the commissioners, and not upon the official records of the board, as Hanly thought. They were never put on the records, as is shown by the testimony of Kimball, while he shows affirmatively that there is an erased entry in a private book that was in the swamp land office, conforming to those Haniy saw made, and saw after it was erased. If Gaster had failed to replace the scrip borrowed of Trousdale, it would not have invalidated a recital in the certificate of payment having been made, though the scrip had been again appropriated by Trousdale, if the certificate had been an instrument issued under the lav/. But being issued merely upon a practice adopted by the commissioners, the same strictness would not perhaps be applied to it as to a final certificate, an instrument required to be issued by the commissioners upon full purchase of land.

It is sufficient, on this branch of the case, to say, that though we cannot well understand the legality of what Trousdale termed “ raising scrip,” that had been loaned to Gaster, and applied to his own use, and though the matter of the allowances seems to be presented very obscurely, such allowances being credited to Gaster in his settlement with the board, and for which he took scrip and certificates to the auditor, these were not shown to he applied to these lands; there is no light before us that would enable us to see clearly how to maintain Caster’s title, .if depending on the question of payment, especially when the consequence of that would' be to overturn the decree of the court below made upon a question of fact and to destroy the title of Gaines that seems to have been ac-' quired by a regular purchase from the regular authority.

The allegations in the amended bill, by which Gaster might be frying to establish a preference to take the lands mentioned in his original bill as pay for levee work under the fourth section of the swamp land act of 11th January, 1851, are directly disproved by the testimony of the plaintiffs.

As has been seen, nothing in the swamp land records and files disclosed any sale of the lands to Gaster, any application for the lands by him, or that any one laid any claim to them. Being in this condition, after having been offered at public sale by the land agent, under the 8th section of the swamp land act of 12th January, 1853, Gaines, the defendant, at private entry, purchased one thousand and twenty-seven 85-100 acres of the lands on the 4th of April, 1854, received the certificates of the land agent, and, during the progress of the suit, which was begun on the 10th of September, 1857, obtained deeds from the Governor of the State. Even if the certificate of Gaster had been different in its effect from that given to it in this opinion, he would, on the most favorable footing, have had only an equitable right. Gaines by his purchase had the same; and his equity was every way equal to any that Gaster could have had, except in point of time, which, strengthened by his legal title, that the suit could not hinder him from pursuing, and could not affect when attained, .would prevail over the supposed equity of Gaster.

In every aspect, in which we have been able to view this case, the decree of the Circuit Court sitting in chancery dismissing the bill, was coi-rect;


author: Mr. Just,ice Fairchild

text:
    Beckham vs. Worthen.
    Where a certificate of application to ‘purchase swamp lands had been issued by the board of swamp land commissioners, the certificate of application cannot be made to supply the place of a certificate of purchase and become evidence of title, because the commissioners included the lands in the report made to the auditor under the 31st section of the act of 12th January, 1853, of lands sold and disposed of by them.

      Appeal from Pulaski Chancery Court.

    Hon. URIAH M. Rose, Chancellor.
    Bertrand for appellant.
    Garland & Randolph, for appellee.
   Mr. Just,ice Fairchild

delivered the opinion of the Court.

The land agent at Little Rock, on the 23d of May, 1859, exposed to public sale the north-east quarter of section thirty-three, in township two north, range eleven west, and Beckham purchased it, and now contends, in opposition to the claim presented in the bill, and to the decree of the court below, that his title is superior to that of.Worthen, who claims the land by virtue of an alleged sale of it to Baldwin, by the swamp land commissioners, on the llih of May, 1852.

Baldwin’s claim rests upon a certificate of application, different from that in Caster vs. Gaines only in reciting that he had deposited second class scrip in payment of the.land. This certificate is no evidence of a purchase, notwithstanding, in the bill and in the opinion of the court, the application is denominated an entry or purchase, and notwithstanding, in the confusion and [inaccuracy of the proceedings under the swamp land laws, inapt and incorrect modes of expression may have become so common as to entrench upon the general correctness of juridical diction. We refer to the opinion in Gastev vs. Games for our estimate of the effect of the certificate of application issued to Baldwin.

The commissioners included the land in controversy in the report which they made to the auditor, under the ■ 31st section of the act of 12th January, 1853, of lands sold and disposed of by them, and the report agrees with the certificate; but this report is not evidence of title to enlarge the construction put upon the certificate of application, and cannot supply the place of a certificate of purchase. It was intended to be a voucher, or means of settlement in-ascertaining the liabilities of the commissioners, and as a useful instrument of information to the authorities and people of the state, of the lands that were then disposed of by sale, or covered by locations of scrip, or authenticated accounts of levee work, showing at the same time the lands then subject to application or purchase.

It is one of the agreed facts of this case that the certificate issued to Baldwin was in the usual form of certificates of purchase of unconfirmed lands. This can only mean that it corresponded to the certificates issued by the board concerning such’ lands, for the board, by an ordinance incorporated into the evidence in this case, expressly announced that it would not give any certificates of full purchase till the land was confirmed; and we would not conclude that the board habitually disregarded a rule adopted for its own government, unless upon stronger evidence than a general issue of certificates that are expressed to be only of applications for purchase.

The land in controversy was confirmed to the State the 22d of January, 1859, as is avered by the bill. Before that time no certificate of purchase from the commissioners, or patent certificate from the land.agent, could have been obtained by Baldwin. But as soon after that time as the confirmation was made known, Baldwin could have applied to tbe land agent for a patent certificate under the act of 20th January, 1853; or he could have re-entered the land, there being no proof that he was not a citizen of the State, .by favor of the act of 15th January, 1857. The re-entry need have been no loss to him for the scrip filed with his application could have been withdrawn and substituted by other scrip, if the re-entry provided for by the act was required to be made with other scrip that that on file with'the application, which we do not decide.

Baldwin’s certificate of application only requiring the State to give him a patent certificate in exchange for the one he held, and for the scrip filed with it, upon the confirmation of the laud, when the land was confirmed, the State had an interest that, the open propositions, or the inchoate contract between her and Baldwin should be closed, or that she should have the privilege of selling the land ; and she could well provide for this to be done within a specified time. This is all that is done by the act of 15th January, 1857, and the time therein given was reasonable to put Baldwin to his election. Having elected not to avail himself of the benefits, or, if he should choose so to term it, not to take up the burdens of the acts of 20th January, 1857, his assignee must abide the consequence, which is, that his certificate is unavailable to impair the claim of Beckham.

The decree of the court of chancery, held at Little Bock, is reversed, and the decree will be entered here, which should have been entered there, that the bill be dismissed.


author: Mr. Chief Justice ENGLISH

text:
    Bates vs. Independence County.
    Where the jury is kept together, from day to day, on the trial of a criminal prosecution, the 'expenses of boarding and lodging them must he treated as a part of the expenses of the court, incidental to the administration of justice, and chargeable to the county ; and it is the duty of the circuit judge to audit and settle the account therefor, and certify it to the county court for payment.

      Error to Ind&pmdenoo Circuit Court.

    Hon. William C. BeveNS, Circuit Judge.
    Byers & Cox, for plaintiff.
   Mr. Chief Justice ENGLISH

delivered the opinion of the court.

Pending the trial of an indictment for felony,, in the Independence Circuit Court, the jurors were placed in the custody of the sheriff, who was directed to keep them together, and to furnish them with food and lodging at the expense of the county.

In obedience to the order of the court, the sheriff took them to the Exchange hotel, in Batesville, whereof Eobert Bates was proprietor, procured a room for them, and caused them to be' boarded and lodged until -they were discharged from the case. Bates made out his account against the county for keeping the jurorSj and the bailiff, who attended them, charging $1 per day for each juror, etc., and presented it to the Circuit Judge, for an order upon the County Court for its allowance and payment. The judge, instead of ascertaining that the charges for keeping the jurors, etc., were just and reasonable, and directing the allowance and payment of the account, made an endorsement upon it, in which he stated, in substance and effect, that the County Court was required to pay for the board and lodging of the jury and their bailiff during the trial, but that it was not his duty to say whether the items charged were reasonable or not. That if there was any disagreement between the County Court and the hotel keeper in regard to the reasonableness of the charges, he was aware of no mode of adjusting the matter but to empannel a jury, etc.

The account, with the endorsement made upon it by. the judge, was afterwards presented to the County Court for'allowance. It was proven, by Bates,.that the sheriff had brought the jurors tó his hotel, in pursuance of the order of the circuit judge, that he had boarded and lodged them as stated in the account, and that the charges were usual and reasonable. The County Court, admitting that the charges were reasonable, refused to allow the account, for the reason, as stated in the bill of exceptions, that jurors were allowed a per diem compensation for their services, and that therefore the. county was not legally bound to pay for their board and lodging when kept together, in a criminal case, etc. Bates appealed to the Circuit Court, where the cause was submitted upon [an assignment of errors; and the court rendered judgment dismissing the appeal; by which, we suppose, it meant to affirm the judgment of the County Court, the appeal appearing to be regular. Bates brought error.

Accounts for'expenses accruing in the Circuit Court, incidental to the administration of justice, and not taxable as costs in particular cases, should be audited and adjusted by the judge of the court for payment out of the county treasury. Dig. ch. 50, secs. 31, 34; Jefferson county vs. Hudson, 22 Ark. 600.

In the trial of felonies, the jury are not permitted to separate, and, in protracted cases, it is frequently necessary to furnish them with lodging until they make up and render their verdict, or are discharged for want of agreement, or other cause; and here, where the English practice of starving them into an agreement does not prevail, it is customary and proper to furnish them with necessary food, etc., (People vs. Olcott, 2 J. Cas. 809.) The costs of procuring lodging and food for the jury, in such cases, is part of the expenses of the court, necessarily accruing in the administration of justice, and, we think, payable out of the county treasury, under the sections of the statute above quoted.

The circuit judge, in his endorsement upon the account of Bates, conceded the liability of the county for the board and lodging of the jury, but seems to have been of the opinion that it was not his duty to pass upon the reasonableness of the charges; that if there was a disagreement between the hotel-keeper and the County Court, in regard to the charges, the dispute must be settled by a jury, to be . called by the County Court. But the statute requires the Circuit Court to “audit and adjust the aeeoimt,” which necessarily includes the passing upon the reasonableness 'of the charges. The jurors are kept together, and furnished with a room,-food and lodging, by the sheriff, under the order of the court. The judge is cognizant of the time they are so kept together, and their wants supplied. "When the account is presented, if the charges seem to him unusual and unreasonable, it is a simple matter for him to ascertain from the sheriff, the clerk, the attorneys, or other persons present, or within call of the court, whether the charges be such as are customary and reasonable ; and if not to reduce them, and certify such sum as may appear to be just.

It turned out, however, in this case, that the items of the account were proven to the satisfaction "of the County Court to be reasonable, but the county, contrary to the opinion of the circuit" judge, as endorsed upon the account, decided that the county was not legally liable for the expense of boarding and lodging the jury, for the reason that they were entitled to a per diem compensation for their services; and when the matter went again before the circuit judge, on appeal, he seems to have yielded his former opinion as to the liability of the county and coincided with the judgment of the County Court.

The reason given by the County Court for the rejection of the account does seem to us to be satisfactory.

It is true that the law makes provision for a per diem compensation for jurors, and does not expressly provide for them to be kept at the expense of the county in any case: and it was, no doubt, contemplated by the legislature that they would pay their own expenses in attending court: and such is the general rule.

Ordinarily, when the business of the court is closed for the day, jurors are permitted to return to their homes until morning: or, if living too remote from the court house to go home and return in time, they have the opportunity of availing themselves of the hospitality of their friends, or quartering themselves in such places as their taste and views of economy may dictate. And no doubt the compensation allowed them is fixed in view of these things. But when they are locked up in a criminal case, they are deprived of such privileges. They are taken to such room, and fed and lodged in such manner as the sheriff, in his discretion, may think proper, or may find convenient to provide, In such cases, it has been customary, as far as we are advised of the practice, and we think it is just and right, to treat the keep, ing of them as part of the expenses of the court, incidental to the administration of justice, and chargeable to the county.

The judgment of the Circuit Court must be reversed, and the cause remanded, with instructions to reverse the judgment of the county court, and to try the case anew.


author: Mi\ Chief Justice ENGLISH

text:
    The State vs. Rorie et al.
    The statute (secs- ®> P- Gould’s Dig.) prohibiting the betting of money at

      -Appeal from Gonway OircvAt Court.

    Hon. JohN J. ClendeniN, Circuit Judge.

      Hollowell, Attorney General, for the State.
   Mi\ Chief Justice ENGLISH

delivered the opinion of the court.

Horie and others were indicted, in the Conway Circuit Court, for betting at a “certain game of hazard, commonly called a horse race” The court quashed the indictment, on the ground that the betting upon a horse race was not prohibited by any of the provisions of the gaming acts; and the State appealed.

Horse racing and foot racing were held to be embraced by the statute of 9 Ann C. 14. In Blaxton vs. Pye, 2 Wilson 309, the court said “they ought to extend the statute of 9 Ann to pre vent -excessive betting upon all sports as well as games,, and that although horse racing is not mentioned in that statute, yet it is within the general words other game or games.”

But it appears from other cases, that the statute of 9 Ann was construed in connection with the preceding statute of 16 Gar.. 2, Oh. 7, in which, horse racing, foot racing, cock-fighting, dog-matches, etc., were expressly named. See Lynall vs. Longbothom, 2 Wilson 36; Gooburn vs. Marley, 2 Strange 1,159; Shelton's case, 8 Grattan 594.

The decisions of the American courts are not in harmony upon this subject. Some of them have held that horse racing is embraced by general terms in their gaming statutes, though not named. Ellis vs. Beale, 18 Maine 337; Cheesum vs. State, 8 Blackf. 332; Shropshire vs. Glascock et al., 4 Mo. 536; Wade vs. Deming, 9 Ind. 35.

Others have held to the contrary. Harless vs. U. S., 1 Morris (Iowa) 169, Dig. Io. Resp.; Shelton's Case, 8 Grattan 594; McElroy vs. Carmichael, 6 Texas 456.

These decisions have been influenced by expressions contained in the statutes upon which they were made, by consideration of the entire legislation of the State concerning the subject, and by the knowledge of the courts in relation to the popular use and meaning of the terms, game, gaming, sports, etc. 2 Bishop Cr. L. 515, 518.

At the January term', 1854, this court held that raffimg was not indictable under any oí the provisions of the gaming act. Norton vs. State, 15 Avk. 71. So, at the July term of the same year, it held that betting at rondo was not within the prohibitions of the statute. State vs. Nawkins, ib. 259. At the ensuing session of the Legislature, the act under which the appellees were indicted, was passed, (January 22d, 1855,) which declares that: “ If any person shall be guilty of betting any money, or any valuable thing, on any game of hazard or skill, he shall, on conviction, be fined,” etc. The second section declares that: “ In prosecuting under the preceding section, it is sufficient to ■ charge that the defendant bet money or other valuable thing on a game of hazard or shill, without stating with whom the game was played.” Gould’s Dig., p. 371, secs. 9, 10.

The object of this act was to enlarge the prohibitions of the gaming act, which punished nothing but the keeping, etc., or betting at gaming banks,tables, eto., and cards, so as not only to embrace raffimg and rondo, but other gambling contrivances and devices. But we do not think that the Legislature intended to embrace horse-racing by the words “any game of hazard or skill” “played” etc., however vicious betting at such sports may be.

The judgment of the court below must be affirmed.


author: Mr. Justice Bairohild

text:
    Sheerer vs. Bullock’s Adm’r.
    Where the owner of an improvement on the public land sells his claim, making a relinquishment thereof, whereby the vendee is permitted to locate it in his own name with a land warrant, he will not be allowed to avail himself of the plea of no consideration in a suit for the purchase money, whether the claim of the vendor was valuable or worthless, or a right to a pre-emption or an improvement.

      Appeal from Ashley Qvreuit Oov/rt.

    Hon. JohN C. Murray, Circuit Judge.
    CarltoN and HutchiNSON, for appellant.
    Hempstead, for the appellee.
   Mr. Justice Bairohild

delivered the opinion of tbe Court.

Bullock bad a small improvement on a piece of land, Ms bands had been seen at work upon it a short time before he sold his claim to Sherrer; for which he took a note of one thousand dollars, on which this suit is brought.

Sherrer, afterwards, located the land with a land warrant, first sending to the land officer at Helena a relinquishment from Bullock of his improvement to Sherrer, and receiving from the officer a reply that he would be permitted to cover the land with a warrant.

To the action Sherrer pleaded that the note was without consideration; and for reversal of the judgment rendered against him in the Circuit Court, it is contended that Bullock had no right of pre-emption to the land, no right to the land; that the amount of the note was so disproportionate to the value of the improvement that the improvement could not bave been the consideration of the note, and that, therefore, the plea was sustained.

"Whatever the claim of Bullock was, whether valuable or worthless, a right to a pre-emption, or an improvement, Sherrer recognized it, and saw fit to buy it; and, by means of Bullock yielding his claim, procured the government title. "Whether Sherrer made a good bargain, as he told the witnesses, or whether he agreed to pay one thousand dollars for an improvement worth not more than twenty dollars, are matters with which the courts have no .concern; but he cannot make use of the fact that Bullock had no claim to the land to obtain the title to himself, and then avoid his promised-payment for the claim, whose relinquishment enabled him to make a location of the land, which would not otherwise have been allowed. This would be in direct contrariety to the ' principle of Thredgill vs. Pintard, 12 How. 24; and, without any precedent, the law of this case would have been so declared by an affirmance of the judgment; which we now direct to be certified to the Circuit Court.


text:
    Thompson vs. Bertrand.
    In an action for breach of the warranty of a slave, the declaration alleged that the slave was unsound, and diseased in his knees; Held, that the declaration cannot be construed as containing a specification of unsoundness only in the knees.

      A person who is not shown to he skilled in the science and practice of medicine, is not a competent witness to express an opinion upon the soundness or unsound, ness of a slave; hut he may state facts in reference to the appearance and con-' dition of the slave.
    The value of the slave at the place where he is purchased — not his value else- ■ where — may be enquired into, in ascertaining the damage of the purchaser on account of the unsoundness of the slave. (McDaniel vs. Crabtree, 21 Arle. ; Morton vs. Scull, ante.)

    It is not necessary that a slave should be afflicted with an incurable disease to constitute a breach of the warranty of soundness.
    An express warranty does not cover a defect that is so apparent as to be obvious upon careless inspection; but if the purchaser of a slave might have discovered defects by having the slave stripped, he is not bound to do so, he may rely upon the warranty.
    It is not error to refuse an instruction where there is no testimony upon which to found it; nor where it embraces several propositions, part legal and a part illegal — in such case the instruction as a whole should be refused.
    No testimony but what is strictly competent should be allowed to become an element to ascertain the unliquidated damages of the plaintiff.

      Writ of JEJrror to Pulaski Ciromt Court.

    Hon. JohN J. ClbkdeNIN, Circuit Judge.
    Garland & RANDOLPH, for the plaintiff.
    Bertrand, contra.
   Mr. Justice Fairchild

delivered the opinion of the court.

Thompson executed to Bertrand a bill of sale of the slave Albert, which contained a warranty of soundness of body. This was in October, 1859, and, in the ensuing April, Bertrand complained of Thompson, by action of covenant, in Pulaski Circuit Court, that, when the bill of sale was made, Albert was unsound and diseased in his knees. The second and third pleas were respectively that, at the time of the sale, Albert was sound, was not diseased in his knees. Upon issue to these pleas, to one of general performance, and to one that Albert was a good field hand, a trial was had, and there were verdict and judgment for the plaintiff, from which the defendant has brought error to this court.

The declaration cannot be construed as containing a specification of unsoundness only in the knees. There is a special breach .of diseased knees, and one of unsoundness; and the defendant so interpreted the declaration by his second plea; and even the third' plea, whose principal office would seem to be to deny the disease in the knees, also alleged that Albert was not otherwise diseased.

To establish the charges of unsoundness made in the declaration, Bertrand produced the deposition of Hart, his overseer, who stated that, in October, 1859, Albert came under his control ; that the knees and ankles of the negro were then swelled and scarred; that in the winter and spring he complained of -his knees; that Hart had had charge of the boy for a year, during which time he had not done, and had not been able to do, a good day’s work. So far the testimony was proper, as the witness 'was competent to depose to the facts of the appearance of the knees and ankles of Albert, and of his want of ability to labor. It was also legal to recount to the jury the complaints made by the boy of existing sickness or unsoundness. 1 Ph. Ev. 182, note 74, 4 Am. Ed¡ But when Hart went on to say that if Albert did not complain of his knees, the disease fell into the small of his back; that he had been unsound and diseased all the while he had been with the witness, and that from his own examinations, he did not believe that Albert had ever been sound, the witness was not narrating facts, but was stating deductions from his own observation of Albert, and conclusions formed or strengthened from his experience’ among negroes. Notwithstanding the witness does not betray any distrust of his ability to pronounce with authority upon the unsound condition, present and past, of Albert, and though it was drawn out, by the plaintiff, from the witness, that management of negroes had been his business for sixteen years, and that he had been doctoring Albert all the year, it is not shown to us that he is a person whose reading and skill required his opinion to be taken as evidence.

Akin, another overseer, also testified concerning the unsoundness of Albert, as he regarded his condition; and his testimony, as the mere opinion of an incompetent person, should, like the theoretical part of Hart’s deposition, have been excluded from the jury upon the objection of the defendant.

Hart and Akin both testified to the value oí the boy as if sound, and in his actual condition, according to the price of negroes at Pine Bluff, as may be inferred from the testimony of Akin, and as is expressly stated by Hart. The value should have been estimated by the worth of Albert at the place where he was sold. McDaniel vs. Crabtree, 21 Ark. 436; Morton vs. Scull, 23 Ark.

The objection to the testimony of Scull cannot be sustained. Saying that one is a physician by profession, is equivalent to saying that he is a physician by practice. In the sense in which the witness used the word “ profession,” it means “ a calling”— “ an employment,” and this is one of the legitimate meanings of the word. To make an opinion upon disease, competent testimony, it must be given by one skilled in the science and practice of medicine, as this court held in Tatum vs. Mohr, 21 Ark. 354; but what Scull said of himself, brings him within the rule of qualification.

We do not perceive any error of the Circuit Court in giving or refusing the instructions asked by the parties. The single instruction of the plaintiff is conformable to previous decisions of this court. The fifth and sixth instructions of the defendant were well refused, for it cannot be the law, as it is not the fact, that a negro is sound unless afflicted with an incurable disease.

A substantial compliance' with a warranty, or any contract, will satisfy the law, but there was no evidence for such, an instruction, on the part of Thompson, to be founded upon, and so the court did not err in refusing the defendant’s fourth instruction.

Part of the third instruction was correct, as accordant with this opinion in confining the value of the negro to Pulaski county, and if this had been the whole instruction, the court would have given it, or, in refusing it, would have erred, but it embraced another proposition, that is, to exclude the consideration of all evidence of unsoundness of the negro, but that of the knees, which was incorrect, and the instruction, as a whole, was properly refused.

Jordan vs. Foster, 6 Eng. 141, does not sustain the first instruction of the defendant. That case only affirmed the proposition common to the text books, that an express warranty does not cover a defect that is so apparent as to be obvious upon careless inspection, and to every observer, requiring no skill or pains for its detection. 3 Black. Com. 165; Story on Conbracts, sec. 532; Smith on Contracts, 355. Though Bertrand might, by ordinary diligence in examining the negro, have discovered the defective knees and ankles, he was not bound to strip the boy; he might rely upon the warranty.

The testimony of Scull alone was sufficient to justify a verdict for the plaintiff, so far as the unsoundness of Albert was concerned, but the evidence of Hart and Akin, on the same subject, that should have been excluded, was well calculated to increase the damages, and must have been taken into consideration by the jury. This does not present such a case as the fact in Sharp vs. Johnson, 22 Ark. 86, which was established by legal evidence, and could not be hurt by the accumulation of illegal testimony. Here the verdict depends upon the estimate the jury put upon inferences and opinions of witnesses, and no testimony but what is strictly competent should be allowed to become an element to ascertain the unliquidated damages for which the plaintiff sued.

For the error indicated, the judgment of the Circuit Court of Pulaski county is reversed, and the case must be sent down for a new trial.

All of the points that seem to us important to be noticed are included in the foregoing opinion, although we have not, one by one, followed the needlessly numerous questions made upon the record.


author: Hr. Chief Justice Ertglish

text:
    Miller vs. Fraley and Greenwood & Co.
    The discretionary power of the court to allow amended or supplemental answers to he filed, unless abused or exercised in violation of established rules, is not the subject of review.
    Whether the receipt upon a judgment’ and the entry of satisfaction upon the execution thereon, be a valuable consideration for land, or not, the payment of over two hundred dollars in money, in addition to such receipt and satisfaction, would be a valuable consideration; and equity will not enquire whether it is an adequate consideration; at least, in favor of one who had purchased at a merely nominal price.
    The court can find no adjudged case nor is it laid down in the text books, that a purchaser must hold under a general warranty deed to entitle him to protection as an innocent purchaser without notice; but it is no doubt the law that where a person bargains for and takes a mere quit claim deed, or deed without warranty, it is a circumstance, if unexplained, to show that he had notice of imperfections in the vendor’s title, etc.
    The bill charged that K., a judgment debtor, made a fraudulent arrangement with F., by which the latter purchased the lands of the former, with his money, at execution sale, and held them for his use and benefit, to prevent the lands from being sold to satisfy other judgments against him, and that the defendants, subsequent purchasers of F., had notice of the fraudulent arrangement; which was positively denied by the answer; Held:

    1. That in the absence of allegation and proof, as to the possession of the land, the presumption, if indulged in, is that possession was with the legal title.
    2. That to make the insolvency of the judgment debtor a circumstance from which to infer notice of the fraud, it was necessary to prove that the defendants had notice of the insolvency at the time of the purchase.

      8. That though the acceptance of a special warranty deed may be a circumstance from which to infer notice, it is liable to explanation — as that the defendant’s attorney, upon examination of the title, believed that a good legal title might be made to his clients — the payment of a fair price, etc.
    4. That the facts, that the negotiation for the purchase of the land was made by K., the judgment debtor, and the entire consideration paid to him, and the deed executed by E., are strong circumstances from which to infer notice of the fraudulent arrangement between the parties; but the force of these circumstances is overcome by the positive denials of the answer and the uncontradicted testimony of the attorney, etc.

      Appeal from, Independence Cvrcuit Court in Chancery.

    Hon. William E. CaiN, Circuit Judge.
    Kose, for appellant.
    Fairchild, for appellees.
   Hr. Chief Justice Ertglish

delivered the opinion of the court.

When this case was here before, it went off on the insufficiency of the answer of Greenwood & Co., to entitle them to the defence of innocent purchasers without notice, etc. See 21 Ark. 22.

On the remanding of the cause, Greenwood & Co. offered to file an amended answer, fully denying all notice of fraud, etc., supported by the affidavit of their attorney, who purchased the lands in controversy for them, stating that he prepared the original answer, and that it was his intention and effort so to frame it, as well and legally to claim and have for them the benefit of the defence of innocent purchasers, etc. They also offered to submit the cause upon the depositions, etc., already taken and on file. The court permitted the amended answer to be filed, a replication thereto was entered, the cause heard, and the bill dismissed for want of equity. Miller appealed.

It is assigned for error that the court permitted the amended answer to be filed, but the point is not insisted on in the argument of counsel. The discretionary power of the court to allow amended or supplemental answers to be filed, unless abused, or exercised in violation of established rules, is not. the subject of review. Dig. ch. 28, sec. 54; Story Eg. Pl. sec. 896, and note from Milford — also sec. 902.

It is submitted that appellees were not purchasers tor-& valuadle consideration: that they did not buy with money or other things of value, but took the lands in payment of a debt.

The bill alleges that Kinman being indebted to Greenwood & Co., in order to extinguish said debt, or in consideration of a sum of money, and his indebtedness, sold, or attempted to sell the lands to them. .

It appears from the answer and depositions, that previous to the purchase of the lands by appellees, they had obtained a judgment against Kinman for over eleven hundred dollars, upon which an execution had issued and was in the hands oí the sheriff at the time of the purchase. That they gave $1400 for the lands, by receipting the judgment, causing the execution to be returned satisfied, and paying the balance in money.

In Padgett vs. Lawrence, 10 Paige 180; ChANOelloe Walworth said: “As a general rule, a purchaser of the legal title, who receives his conveyance merely in consideration of a prior indebtedness, is not entitled to protection” [as an innocent purchaser for a valuable consideration] “ because he has lost nothing by the purchase. But the relinquishment of a valid security which he before held for his debt, and which cannot be revived so as to place him in the same situation substantially as to security, as he was in prior to his purchase, may of itself be sufficient to entitle him to protection as a bona ficle purchaser.”

If this be law, to say nothing of the receipt of the judgment and the return of the execution satisfied, the appellees were nevertheless purchasers íor a valuable consideration by the pay-of over two hundred dollars in money. Merrit vs. Northern Railroad Company, 12 Barb. Burp. C. Rep. 609; Love vs. Taylor, 24 Miss. 574. And the consideration being valuable, equity will not enquire whether it be adequate. 2 Hare & Wal. Notes Lead. Ca. Eq. 45, 60. But if equity would make such enquiry, the objection that the money paid for the lands by appellees was an inadequate consideration, could not well be made for the appellant, who paid but two dollars and a half for the same lands and others.

It is also insisted that the appellees cannot claim protection as innocent purchasers, because they took from Fraley a deed with special and not general covenants of warranty. In other words, it is asserted to be law: that a vendee must claim under a general warranty deed to entitle him to the defence of innocent purchaser.

The deed in question is in the usual form of an absolute conveyance in fee, with a special warranty against any claim made or suffered by the vendor.

In Flagg vs. Mann et al., 2 Sumner, 560, Judge Stoey said: “This leads me, in the next place, to the consideration, whether Fuller’s title, being by a mere deed of release, is such a conveyance as entitles him to the benefit of the plea of a bona fide purchaser without notice. This is a point upon which I have felt very great difficulty; and it' was suggested at the argument, as matter of grave consideration. If the language of the deed had been, that Mann merely released to Fuller all his right, titlq and interest in the premises, there might perhaps, have been more difficulty to found the defence; for then it might, under some ovreumstances, be construed to convey no more than Mann could rightfully convey, and that the purchaser should take at his peril, subject to all the rights and equities of third persons in the premises. But, here, the language of the deed is, that Mann, in consideration of $40,000 does remise, release, and forever quit claim unto the said Elisha Fuller, his heirs and asssigns, one undivided half of a certain tract of land, etc., to have and to hold unto Fuller, so that neither Mann nor his heirs, nor any other person claiming from or under him, shall have, claim, or demand any right or title to the premises. If this deed were to be construed as a mere release, the objection taken to it at the bar would be well founded; that, as the releasee was not in possession, it was a void conveyance. But we all know that this is a common mode of conveyance in Massachusetts; and that, where it is for a valuable consideration, ut res magis valeat quam pereat, a deed of release has been construed tó be a bargain and sale, or other lawful conveyance by which the estate might pass * * * * And indeed it is but an expansion of the principle laid down in Sheppard's Touchstone p. 82,c that a deed, that is intended and made for one purpose, may enure to another : for if it will not take effect that way, that is intended, it may take effect another way.’

“ I am not aware that a purchase by way of mere release, like the present, has ever been set up in England in a case of this sort. The researches of counsel have not discovered any such ease, and I am much inclined to believe that none exists. Still, however, it is not absolutely incompatible with the nature ot a release, where, by reason of a privity of estate between the parties, it operates by way of enlarging the estate of the releasee, or of passing the estate oí the releasor, that it should be a sufficient foundation, if Iona fide made, for a valuable consideration, and without notice, to support the defence. There may be a difference, where the release is to operate merely by way of extinguishment. The very plea in Walwyn vs. Lee, 9 Vesey 24, which is given in the appendix to Mr. Beame’s work on Pleas in Equity, was of a conveyance by lease and release. And certainly it would have made no difference, if the lease,' instead of being a contemporaneous act, had been an existing lease in privity of estate. It is true, that in Walwyn vs. Lee, there were covenants that the releasor was seized of a perfect, absolute and indefeasible estate in fee simple in the premises. But 1 am not aware that any covenant of this sort, or cmy covenant of general wa/rraninp has ever been held necessary to entitle the purchaser to make the defence. It ordinarily affords very conclusive proof, that the purchase is of the whole estate, and not of the mere right or title of the party, whatever it may be. But if it is apparent from the whole transaction that the purchaser bought the estate under circumstances, which demonstrate that he had no suspicion of the title not being perfect, as by giving a full price.for an unquestionable and unquestioned fee simple, it seems to me that the absence of any covenants of general warranty ought not to take away from him the common protection. He has, under such circumstances, at least an equal equity with a person claiming under an outstanding and unknown trust, and if so, the legal title, combined with his equity, ought not to be disturbed.

“ In the present case the release of Mann to Fuller, must, as I think, be treated as a bargain and sale, or other lawful conveyance, upon the . doctrine already asserted by the Massachusetts courts, which seems to me to be founded in sound sense and solid legal reasoning. It was an effectual conveyance to pass the whole estate to Fuller, and, as far as we have any means of knowledge, the title, which actually passed, is perfect as to all persons but Flagg. It steers wide, therefore, of the doctrine in Vattier vs. Hincle, 7 Peters, 271. Flagg’s title is founded upon a constructive equity, not apparent upon any of the title deeds, and being secret and unknown to Fuller, cannot be allowed to prej udice Fuller’s rights.”

If it were law [that a vendee must hold under a deed with general covenants of warranty to entitle him to protection as an innocent purchaser, persons purchasing lands at judicial sales could never claim the benefit of such defence, for officers making such sales are not required to execute such deeds. Nor could persons holding under deeds made in the form prescribed by our statute, for the words “ grant, bargain and sell,” imply no covenant or warranty against incumbrances other than those done or suffered by the grantor himself. Winston vs. Vaughan, 22 Ark. 72.

We have been able to find no case'in which it has been-adjudged, nor is it asserted in the text books that the purchaser-must hold under a general warranty deed to entitle him to' protection ; but it is no doubt the law that where a person bargains for and takes a mere quit claim deed, or deed without warranty, it is a circumstance, if unexplained, to show that he had notice of imperfections in the vendor’s title, and only purchased such interest as the vendor might have in the property, and that he is not entitled to protection in equity as an innocent purchaser without notice, etc. Oliver et al. vs. Piatt, 3 How. U. S. R. 410; 2 Hare & Wal. Notes Lead Ca. Eq. 69. And this brings us to the question whether appellees purchased with notice of the fraudulent arrangement between Kinman and Fraley, under which the latter purchased the lands, etc.

The bill charges, in substance, that, by a fraudulent arrangement between Kinman and Fraley, the latter purchased the lands at the sale, under the Goff judgment, with the money of the former, and held them for his use and benefit, to prevent the lands from being sold to satisfy other judgments outstanding against him; and that appellees had notice of this fraudulent arrangement when they purchased the lands of Fraley. The answer positively denies all knowledge or suspicion of such fraud, etc.

It is not pretended that ■ there is any proof that appellees, their agent or attorney, had notice of such fraudulent arrangement between Kinman and Fraley, when they purchased the lands of the latter, but it is insisted that the attorney, who completed the purchase for them had cognizance óf such circumstances, leading to a knowledge of the fraud, as to put a reasonable man on inquiry, and that he and they are chargeable with notice.

The alleged circumstances are:

1. That the purchase was made of one not actually in possession of the lands.

2. That Kinman was insolvent.

3. That a deed of general warranty was taken to Fraley, and he refused to sign it.

4. That the contract for the purchase of the lands was made with Kinman, and the consideration paid to him, and the deed executed by Fraley.

1. Neither the pleadings nor the evidence show who was in the actual possession' of the lands at the time they were purchased for appellees. If presumption is to be indulged, it must be presumed that Fraley was in possession, as the legal title was in him.

2.. There is no direct allegation in the bill that Kinman was insolvent. The charge is, that there were other judgments against him besides the ¡judgment in favor of Goff, under which Fraley purchased, and that Fraley was procured to purchase and hold the-lands in his name, to prevent their being sold to satisfy such other judgments. The answer admits the existence of the judgments specially referred to in the bill, but, like the bill, is silent as to the solvency of" Kinman.

The judgments specially described in the pleadings are: the one in favor of Goff, under which Fraley purchased the lands, and which it appears was satisfied in part by a sale of the lands, and the remainder by other property sold to Goff’s attorney by Kinman — the judgment in favor of the Parks, under which appellant purchased, and which, it appears from the receipt of their attorney, dated 7th September, 1854, was paid, except costs, three days after the execution sales, and some months before Fraley conveyed the lands to appellees — and the judgment in favor of appellees, in satisfaction of which, they purchased the lands. Mr. Byers, one of the witnesses in the cause, and the attorney of Goff, says that he controlled other judgments against Kinman, but does not state the amount of them, nor when rendered, etc. He states, however, that he considered Kinman insolvent from the time of the sale of the lands. He also says: (deposing 19th February, 1857.) “He is generally understood to be, “and I deem him utterly insolvent.”

Whether he was generally reputed to be insolvent in January, 1855, the time when the lands were purchased for appellees, or whether their attorney had any knowledge of his insolvency, does not appear. To give the circumstance of his insolvency any potency as a fact leading to the discovery of the fraudulent arrangement between Kinman and Fraley, in regard to the purchase of the lands at the execution sale, it should have been made to appear that the attorney of appellees, who purchased the lands of Fraley for them, had knowledge of such insolvency.

3. The explanation given by the attorney of appellees of the fact that Fraley declined to execute a general warranty deed, and that a conveyance with special warranty was accepted, divests that fact of any satisfactory tendency to prove that the validity of the title was suspicioned, or should reasonably have been suspected, or that the purchase was merely of such interest as Fraley might have in the lands. The attorney, as will be more fully shown below, was not authorized to make the purchase unless he found the title to be good. On being informed that the deed was to come from Fraley, he found, on investigation, that a clear legal title was vested in him by his purchase at execution sale, and the conveyance of the sheriff, and thát he had not incumbered the lands. Fraley declined to execute a deed with general warranty, for the reason, as stated by him, that he had derived no benefit from the lands, and was willing to convey such title only as he acquired by his purchase at sheriff’s sale, warranting against incumbrances done or suffered by himself. His reason was thought satisfactory by the attorney, and he prepared the deed in form proffered by Fraley. A fair price was paid for the lands, and the attorney took them, as he states, under the belief that he was getting a good title for his clients.

4. The last and most plausible circumstance urged by the counsel for appellant, as tending to prove that the attorney of appellees purchased the lands with notice of the fraudulent character of Fraley’s title, is that the negotiation for the purchase was made with Kinman; the entire consideration paid to him, and the deed executed by Fraley. This circumstance has made much impression on. our minds as conducing to sustain the hypothesis assumed for appellant, and its force is only overcome by the positive denials of the answer, and the consistent and uncontradicted statement of the attorney who made the purchase, corroborated, in some oí the material facts stated, by other depositions.

Greenwood & Go., resided in New Orleans, and had no personal knowledge of the transaction. Their attorney, Mr. Fair-child, resided in Batesville, obtained for them the judgment above referred to against Kinman, and caused an execution to be issued thereon, and placed in the hands of -the sheriff. Mr. Adams, an agent of Greenwood & Oo., being on a visit to Batesville, attending to their business, Kinman proposed to him as he had before done to Mr. Fairchild, to procure the lands in question to be conveyed to appellees, at five dollars per acre, or $1400. in satisfaction of the judgment, etc., representing that the title was good; that it was in Fraley, who had purchased the, lands at execution sale, but that he could be procured to make conveyance, etc. Fraley, on being applied to, expressed his willingness to make the conveyance,' if it could be done in payment of Kinman’s debt to appellees, but said he was under no obligation to do so, having purchased the lands for himself, etc. Adams agreed to take the lands at the price proposed, if upon investigation by the attorney of appellees, the title should be found to be good. The attorney accordingly went to work to investigate the title. ITe ascertained, by an examination at the recorder’s office, that Kinman had purchased the lands, by a clear title, from Bateman, that Fraley had bought them at a regular sale, under the oldest judgment against Kinman, and taken the sheriff’s deed, and that there were no conflicting titles on record, or on file in the recorder’s office. He had no knowledge or information that appellant had purchased the lands under the junior judgment of the Parks: nor had he any knowledge or suspicion that Fraley had purchased them with the means of Kinman, or entered into any fraudulent arrangement with him to purchase and hold them for his use and benefit. The result of his investigation was, that he believed that a title derived through Fraley, as proposed, would be good, and the purchase was consummated.

The general doctrine is, that whatever puts a party upon inquiry amounts, in judgment of law, to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, and would lead to the Imowledge of the requisite faei^ Toy the exercise of ordinary diligence and understanding. 4 Kent Com. 179. Or, as the rule has been expressed more briefly, where a man has sufficient information to lead him to a fact, he shall be deemed cognizant of it. Dart on Vend. & Pur. 408, in note.

The - agreement between Kinman and Fraley, was a secret, known only to themselves, so far as we are advisedfrom the record before us, until it was brought out by judicial means in this case. ¿They both represented Fraley’s purchase at the execution sale to have been made in good faith, and that his title was valid.

It did not necessarily follow from the fact that Kinman proposed to procure the lands to be conveyed in payment of his debt, and received the entire consideration, that Fraley had purchased them with his means and held them in secret trust for his benefit, to defraud his creditors. As is frequently the case, he might have made an arrangement with Fraley for the redemption of the lands after the sale. To be within the rule, the facts or circumstances known, should naturally and necessarily point to the fraud, and be sufficient to lead to its discovery.

It is urged that the attorney of'appellees should have interrogated Kinman and Fraley — should have inquired of them how it happened that Kinman was negotiating for the sale of lands owned by Fraley, and how it was that the entire consideration was to go to Kinman.

The attorney says he held but little conversation with Fraley on the subject — that he did not depend upon his representations that his title was good, but upon an examination of the public records, etc.

If it were a presumption of law that the parties to a secret fraudulent agreement, would discover it upon mere inquiry, it might be reasonable to hold that the attorney of appellees had sufficient grounds to put him upon the inquiry; but we think the presumption would be that the parties to the fraud would carry out the deception by denial. Hare & Wal. Notes Lead. Cas. Eg. 2 vol. p. 66-7.

The burthen of proving that appellees, or their attorney, had notice of the fraud, was upon appellant, who charged the fraud, and sought thereby to destroy the legal title of appellee to the lands. The answer prepared and sworn to by the attorney, who made the purchase for appellees, and who is shown to have no interest in the matter, denies most positively any knowledge or suspicion of the fraud, etc. He states as much in his deposition, and no witness contradicts him. How then can we say, upon principle, that he had notice. As said by Lord Hardwick in Heinn vs. Dood, 2 Atk. 276, and repeated with approbation by Judge Story, in Flag vs. Man. et al. 2 Sum. 551, there ought to be clear, undoubted notice, and suspicion of notice, though a strong suspicion, is not sufficient to justify the court in breaking in upon the legal rights of a purchaser.

Decree affirmed.

Mr. Justice Fairchild did not sit in this case..