author: Walker, J.:

text:
    Cairo and Fulton Railroad Company vs. Parks.
    1. Pleading: Evidence; Exhibits.

    In an action of ejectment based upon a tax deed,which was made an exhibit to the complaint, the defendant pleaded that the tax sale was invalid. Held, upon demurrer to the answer, that the question as to the conclusiveness oí the tax deed, could only be raised at the trial oi the issues of fact made by the pleadings; that the tax deed, thongh referred to in the complaint, as an exhibit, did not become a part of the pleading.
    2. --: Code Practice.

    Under the Code practice, each paragraph of an answer, takes the place of so many pleas under the common law form of proceeding, and must present facts sufficient to bar a recovery.
    3. --;
    A demurrer to several paragraphs of an answer, unless separate to each, should be overruled, if either paragraph is good.
    4. Taxation : Pleading exemption from.

    The party alleging the exemption of his land from taxes, must show in his pleading, the facts that exempt them. ' .
    5. Pleading: Practice under the Code.

    When a good defense is defectively stated, the proper practice under the Code, is to move the court to require the pleader to state his defense more fully.
    ■6. Special School Taxes: Jurisdiction of the County Court to levy.

    The County Court had no power under the act of March 25th, 1871, to levy taxes for special school purposes, unless the voters of the district had in a district meeting, voted the amount to be raised, or the trustee of the district had reported to the court an estimate of the amount to be levied.
    7. Statutes: Constitutionality of.

    The legislature is only limited by constitutional restrictions, and its acts will not be declared unconstitutional by the courts, unless clearly so.

      8. ---: Recitals in Tax Deeds not conclusive.

    The legislature has no power to make recitáis in tax deeds conclusive evidence of the facts recited.
    9. Taxation: What railroad, lands exempt from.

    Under the act of April 8th, 1869, lands acquired by grant, donation or subscription, in aid of the construction of a rail road, were exempt from taxation until conveyed to an actual purchaser.
    10. Parties: Husband and wife.

    A wife can sue alone, in her own name, for recovery of her land.
    11. Limitation:. When Statute on Tax Sales begins to run.

    The statute of limitations does not begin to run in any case, until there is a complete and present cause of action, and the act of 25th March, 1871, limiting actions to avoid tax sales to two years, begins to run from the expiration of the time allowed for redemption, and not from the date of sale.
    APPEAL from Lafayette Circuit Court.
    Hon. James K. Young, Circuit Judge.

      J. M. Moore, for appellant.

      Williams & Battle and Goolc, eontra.

   Walker, J.:

Mattie D. Parks brought her action in ejectment in the Circuit Court of Lafayette County, against the Cairo and Fulton Railroad Company, and others, (claimants in possession) for the recovery of the southwest fractional quarter of section thirty, in township fifteen south, of range twenty-eight west, situate in then Lafayette, now Miller County, Arkansas.

The complaint contains two counts; in the first of which, title is set up under a tax sale. All of the statute requirements are recited, from the assessment of the land to the consummation of title in the assignee of t.he purchaser by deed, and by deed from the assignee to plaintiff, who avers that she is the legal owner, and that the defendants are in possession without right.

The second count, without reference to the source from whence plaintiff derived title, asserts a legal title to the land, and possession in defendant without right.

The two counts, it will be seen, present but one cause of action.

The defendants answered the complaint in four distinct paragraphs or pleas; to which the plaintiff interposed a general demurrer, not severally to each, but jointly to all of them,without assigning any grounds as special cause for demurrer. The demurrer was sustained by the court, and a final judgment rendered in favor of plaintiff, from which the defendants have appealed.

The correctness of the decision of the court, in holding the answer insufficient, presents the most material question for our •consideration, which is, was the answer sufficient in law to bar the plaintiff’s recovery.

The counsel for plaintiff have taken a wide range in their discussion of the questions of law thus presented, and have argued the case as they should, if the admissibility of evidence was presented for our consideration.

No such question is presented, or can arise upon a question as to the sufficiency of the pleading, in the determination of which, the court looks alone to the sufficiency of the complaint as a cause of action, and to the answer, as to whether it presents in law, a bar to the recovery sought.

The issue thus formed, is to be determined by evidence. Neither the complaint nor the answer is to be taken as evidence of the facts upon which the questions of legal rights are presented. There cannot be (as we suppose the counsel to assume) a conclusive statement of facts in a declaration, such, as could not be controverted, because if such was the case, there would be nothing to controvert, nothing put at issue, nothing to prove; and so too, the answer to the declaration need only present such facts, as if sustained by evidence, will in law, bar recovery.

Counsel are mistaken in supposing that the deed, though referred to as an exhibit, thereby becomes part of the pleadings ; such is not the case. Stillwell and wife v. Adams, exr., 29, Ark., 346; or, if it was part of the pleadings, it could have no such conclusive effect, as to deny to the defendant, the right to put the truth of the allegation in issue. Whatever its conclusiveness as evidence may be upon a trial of the issue of title, we are not now to consider; the question before us is, are the facts set up in the several paragraphs, or either of them, sufficient in law to bar the plaintiff’s recovery ?

Under the Code practice, each paragraph, or plea, takes the place of as many pleas, under the common law form of proceeding; Gantt’s Dig., sec. 4569; Newman v. Rogers, 29 Ark., 365 ; and must present such facts as, if true, will bar a recovery. Unless demurred to separately, if any one of them should be found good, the demurrer, should be overruled, because if presented as an entirety, the proposition must stand or fall as such. So, in the case of Archer v. National Insurance Company, 2 Bush, 226, it was held, “that the pleader must stand upon his general proposition, and the court must pass upon it as an entirety, and cannot overrule the demurrer as to one paragraph of the answer and sustain it as to another,” and such too, is the rule established by this court, in the case of Bruce v. Benedict, 31 Ark., 305, and Goodwin v. Robinson, 30 Ark., 535.

The land in ’ controversy, was assessed as the property of an “ unknown owner,” but is conceded to have been the property of the Cairo and Fulton Railroad Company.

Defendants, in the first paragraph of their answer, deny that, the land was, on the 1st day of January, 1870, (the time when it was assessed), or at any time since, has been subject to taxation ; deny that the collector of said county furnished the county clerk a list of the real estate situate .in said county, upon which the taxes had not been paid, or that it was advertised by the county clerk as alleged : they also deny that the plaintiff is the owner of the land, or entitled to the possession of it; or that the same is held by them without right.

These were all denials of the truth of the affirmative allegations in the complaint; that which averred that the land was liable to taxation, was essentially necessary to the validity of the sale, and its denial formed a material issue, because unless the land was subject to taxation, no sale of it for the payment of taxes could be made.

It devolved upon the defendant, who set up this exemption, to show that it existed.

All lands within the State, with the title to which the United States government has parted, are, by law, subject to taxation. No proof was required of the plaintiff to establish this, but he who claims that the land is exempt from taxation must, in his pleading, state such facts as will in law, exempt the land from the general law, which subjects all lands to taxation, not specially exempted — such for instance, as that the lands had been set apart as a site for a church, a school house, or had been exempted under a railway franchise, or other purpose of public benefit.

It was not sufficient to state, that the land was exempt from taxation, without stating also, the facts which are relied upon as constituting such exemption. In this respect the paragraph was defective, and under the common law practice would have been dcmurable; It was a good defense defectively stated, and when such is the case, the proper practice under the Code system, is to move the court to require the party pleading, to state his defense fully. . '

Sec. 4564, Gantt’s Dig., provides, “that the defendant may demur, when it appears on the face of the complaint that it does not state facts sufficient to constitute a cause of action.”

Sec. 4618, provides: That “when the allegations of a pleading ’are so indefinite, or uncertain, that the precise nature of the claim or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.” Ball et al. v. Fulton County, 31 Ark., 379; Bushey v. Reynolds, 31 Ark., 657 ; Pomeroy’s Code Practice, 548; Newman’s Code Practice, 675.

This rule accords with the liberal system of amendments which disregards technical objections, and requires the party in a brief and concise manner, to state truly his cause of action or defense.

If the demurrer had stated the ground of objection to the answer specially, the question might have been settled by giving leave to withdraw the demurrer and plead over. The judgment upon the demurrer would put the party to a small additional expense, but with this exception there would be but little difference, between presenting a motion to require the party pleading, to state the grounds of defense more fully, and demurring specially; but if the cause of demurrer be such, as by' no form of pleading it would be good, the leave would be unavailing, and the facts set forth upon motion, if not sufficient, would be demurrable; without reference to which is the best manner of reaching the defect, it may suffice to say, that we must be governed by the Code practice, as settled by our decisions, and the writers upon the subject.

The decision of the court below, in sustaining the demurrer, must be reversed and set aside, and leave given the plaintiff, if he choose to do so, to have the plea made definite and certain, by setting out the facts which constitute the exemption.

The second ground of defense is, that three mills on the dollar were assessed upon defendant’s lands for the maintenance of public schools, and two mills on the dollar for building a school house, which was unauthorized by law, and void; because neither the rate so levied, nor any other rate was determined on for said year, by the qualified electors of the school district in which the land is situated; and that no estimate was made by the trustee of said district, of the necessary amount to be levied for the support and -maintenance of schools in said district, during the year 1871, or certified by the chairman of the school meeting to the Clerk of the County Court, or laid before the County Court.”

This is the defendant’s answer, which, if true, as it is admitted to be by the demurrer, presents the issue of law which we are called upon to determine.

The precise question is, was the property of the defendant sold without having been first assessed ? To determine which wo arc called upon to say, whether the County Court had power to levy a special tax for school purposes, or for building a school house without the consent of the voters of the district so taxed.

The defendant avers, that the court, in making such levy, acted without the consent of a majority of the qualified electors of the school district, without which the court had no jurisdicdiction of the case, nothing upon which to execute its judgment.

A school district is a local municipal corporation, vested with certain limited powers, conferred upon it for educational purposes, within its corporate, limits; corporate power is conferred upon the qualified electors of the district, who organize by the election of officers, vested with power to establish schools, erect school houses, employ teachers, limit the time the school shall be taught, and when, in addition to the sum distributed out of the common fund, a majority of the electors, after due notice of the purpose of the meeting, may, if deemed -expedient or necessary, vote a special tax upon the property of the district, to aid in defraying the expenses of building a school house, or for paying the expenses of the school for such time as they may choose.

Thus, in sec. 20 of the common school law, it is provided, that “the electors of any school district shall, when assembled in school district meeting, have power by a majority vote cast * * * to designate a site for a school house, and determine the length of time for which the school may be taught more than three months in the year; to determine what amount of money shall be raised by a tax on the property of the district to defray the expenses of a school for three months, or, for a greater length of time they may decide to have a school.”

Sec. 21, provides, “that the County Court shall levy all taxes voted for school purposes, at the district school meeting.”

Sec. 31, requires the trustee of the school district to submit a report to the electors, at the school meeting, with an estimate of the cost of the school.

Sec. 32. If the district school at their annual meeting, fail to provide for a school to be taught at least three months during the year, the trustee shall immediately forward to the Clerk of the County, an estimate for the necessary expenses for a school for three months, after deducting the probable amount of the school fund revenue to be apportioned to the district, and a tax shall be levied, etc.

Sec. 40. “ It is made the duty of the trustee, to report to the County Clerk, the amount voted as a special school tax, attested by the chairman of the meeting.”

Such were the statute requirements up to March 25th, 1871, which restricted the powers of the County Court, in making the levy for special school purposes, and conferred the power exclusively upon the voters of the school district, and in the event, that they failed to vote to levy a tax, decreed to the trustee power to report to the court, an estimate of the necessary amount to be levied.

The Act of 1871, reads as follows: “It shall be unlawful for the County Court of any county in this- State, unless expressly authorized by some Act of the General Assembly, to levy on the taxable property of said county in any one jrnar, a greater per centum, than is hereinafter authorized,” (fixing the maximum to be levied for various purposes); and then proceeds: “ For the support and maintenance of public schools, in any school district in such county, such rate as may be determined by the qualified electors in such district, in the manner prescribed by law, not to exceed five mills on the dollar.”

In view of these several statutes, which authorize the levy of a special tax for school purposes, a very different question is presented from that where a tax is levied by law for purposes of general or State taxes to support the county or state administration ; a special tax not imposed by legislative authority, but a voluntary, self imposed tax by the electors of a school district, who are made the exclusive judges of the necessity for levying a tax, and as to the amount to be assessed. There is no tax to be assessed by law, for such purpose; consequently the court has no power under the law to make an assessment, because that is to be determined by a majority vote of the electors of the district, and without which no levy can be made. It is true, that the court is the proper tribunal to make the levy when a self imposed assessment is made by the voters of the district, and certified to the court; until this is done, the power is dormant, not called into exercise, because there is nothing before it to act upon. Because the Circuit Court has jurisdiction over matters of contract for §1000, it by no means follows that it may render a judgment for §1000, without a writ and declaration bringing the subject matter and the parties before it, without which no valid judgment could be rendered; nor that a sale under execution issued upon such judgment, regular in form, and duly levied upon property and sold,vest in the purchaser title to it; because, however the officer to whom the writ was directed, and by whom executed, might justify himself against an action for trespass, the purchaser would have to show a valid judgment and execution; to do which, he should show a declaration and writ, or an appearance, which would supercede the necessity of a writ,without which there could be no valid judgment; and if such would be necessary to show jurisdiction in a court of general jurisdiction, how much more necessary would it be in an administrative proceeding, in which the facts upon which jurisdiction depends, must always be shown by one who asserts a claim under its exercise.

Suppose upon a plea of nul t-iel record, a copy of the records of the County Court should be produced without showing that an assessment had been made by the electors of the school district, and returned before the court; the record would not be received as evidence of anything, and if not, then there was no assessment, no levy, and consequently no power to sell.

And thus we are brought to consider the next question, which is the effect to be given to the act, which declares a conclusive effect to the recitals in the tax deed. Put the question in its broadest terms, and concede that the legislature did intend to preclude all investigation of the truth of the recitals in the deed; can this be done ?

At the outset of the investigation of this question, it may be as well to concede that the legislature, as a co-ordinate branch of the government, is like all of the other departments, only limited by constitutional restrictions, and resting under the same obligations as the judiciary department, will not be declared by the judiciary to have transcended its constitutional limits, unless such is clearly the case.

Before, however, proceeding to the discussion of constitutional power, it may be profitable to review our former statutes, and the decisions of this court upon them.

At an early period of the State government, it was deemed of importance by the legislature to enact a statute, intended to give validity to tax titles, by changing the common law rule, which required of the claimant under a tax deed, to prove that all of the statute requirements in effecting the sale should be proven, in order to give validity to his deed. To effect which it was provided, Gould’s Big., ch. 148, sec. 130, that “the deed made by the collector, shall vest in the purchaser a good and valid title, both in law and equity, and shall be received in evidence in all of the courts of the State, as a good and valid title.”

Sec. 131. “No exception shall be taken to any deed made by the collector for lands sold for the payment of taxes, but such as apply to the real merits of the case, and are consistent- with a fair interpretation of the intention of the General Assembly.”

The construction given to this statute in a series of decisions of this court, made the recitals in the deed only prima facia evidence of the truth of the facts recited, and in several of them distinguished between such acts as were necessary to confer upon the officer, power to sell, and such as related to the exercise of the power in its performance. Hogins v. Brashears, 13 Ark., 242; Merrick v. Fenno & Hutt, 15 Ark., 331; Patrick v. Davis, Ib., 363; Pillow v. Roberts, 13 Howard, 470; decided upon appeal from this court.

The act of March 25th, 1871, sec. 125, is substantially a reenactment of these statutes, with the exception that it makes the recitals conclusive evidence of the truth of the recitals in the deed, with certain exceptions.

When we consider the two acts of the legislature, the latter made after the Supreme Court had given to the former act, only a prima facia effect, so as to change the onus probandi from the party claiming title under the deed, to the party who seeks to assert it, we must believe that the act of 1871, was intended by legislative declaration to make the recitals in the deed conclusive, not merely prima facia.

It may be well to remark that, while this, court has never been required to pass directly upon the conclusive effect of the act of 1871, we have upon several occasions, where the validity of a collector’s deed has been brought under consideration, adhered to the same rule of construction as that applied to the former statute.

Thus, in the case of Bettison v. Budd, 21 Ark., 378, it was held, that “ an assessment of the land is essential to the validity of a sale made for the payment of taxes, without which, there can be no ' charge upon the land; there must be a levy, or the collector’s deed is invalid.”

In Thweat, et al., v. Black, ex’r, etc., 30 Ark., 732; held, “that the tax deed appearing to be regular, its recitals must be taken as true, unless disproved by competent evidence.”

In Kinsworthy, et al., v. Mitchell and wife, 21 Ark., 145; held, “that where land is assessed for several years’ taxes, and the taxes for one or more have been paid, if the land is sold for the whole of the taxes the sale is void.”

In Vaughan v. Bowie, et al., 30 Ark., 278, it was held, that a levy of a greater amount for special school tax than is allowed by law, is void.

In Greedup, et al., v. Franklin County, et al., 30 Ark., 101; held, “that the County Court could not levy a greater amount of taxes for county purposes, than the maximum allowed by law. If there is no county indebtedness, there can be no levy to pay it.”

In Spain v. Johnson et al., 31 Ark., 314 ; held, “ that a tax deed must show for what year the land was assessed, that the lands were assessed separately and for the sum assessed on each, and that if sold together, the sale is illegal and void.”

' In Peters & Glen v. Wallace et al., 29 Ark., 476, and Montgomery v. Birge, 31 Ark., 491; held, “that a tax deed, which recites the sale of several tracts of land en masse for a gross sum, is void.”

A sale for a larger penalty than the law imposes, is void. 29 Ark., 489.

Without reference to the particular state of case under which these decisions were made, it will be seen that in none of them have they given to the recitals in the deed a conclusive effect as evidence; but have held the deed as only prima facia evidence of the truth of the recitals, and if there is wanting the necessary recitals to show prima facia, a compliance with the requirements of the statute in order to give power to sell, or which are in other respects essential to protect the rights of the tax payer, the sale is held to be illegal, and no title passes to the purchaser under such sale.

Many of these decisions .were made under proceedings which arose since the passage of the act of 1871, and if the construction. be given to this act, claimed for it by counsel of the appellee, it must be'because the act of 1871 is constitutional, and the will of the legislative department is imperative upon us to carry it into effect, even though in doing so, we may be required to retrace our steps, and change a rule, which by long adherence, has be'come a rule of property.

In settling this question but two propositions need be considered.

First — Is the language of the act plain and unambiguous ? Can we understand from it, what the legislative will is ? If so, unless unconstitutional, the court must give effect to such intention. The court has no power, by construction, to alter or change the law, but only to see that it is carried into effect, according to its fair interpretation.

Second — If so ascertained and not carried out, it must-be because the act is in violation of some constitutional right. The power of the courts to pass upon this question, is well established, but it is equally well established, that the courts should not declare an act to be unconstitutional, unless clearly satisfied that such is the case.

The act which wTe are called upon to consider, reads as follows :

' “At any time after the lapse of two years from the time of sale of any tract of land or lot for taxes, if the same shall remain unredeemed, the County Clerk, or any of his successors in office, on the production of the certificate of purchase, shall execute and deliver to the purchaser, his heirs or assigns, a deed of conveyance for the tract or lot described in such certificate. In case the certificate has been assigned, the County Clerk shall briefly recite the fact in the deed. The deed so made by the County Clerk, shall be acknowledged and recorded in the same manner that other deeds and conveyances of real estate are required to be acknowledged and recorded by the laws of this State, and shall vest in the grantee, his heirs or assigns, the title to the real estate therein described, and shall be received in all courts and places where the title to the real estate thereby conveyed is involved, as conclusive evidence, that each and every act and thing required to be done, by the provisions of this chapter, had been complied with, and the party offering such deed in evidence, shall not be required to produce the assessment, appraisement, notice of sale, nor any other matter or thing as evidence to maintain such conveyance, and title thereby' acquired : Provided, however, that the party controverting such deed, and the title thereby conveyed, may, for the purpose of invalidating or defending the same, show either one of the following facts, only:

“First — That the land conveyed by such deed, was not subject to taxation at the time of the assessment thereof, under which assessment such sale was made.

“Second — That the taxes due thereon had been paid, according to law, before the sale.

“Third — That such land had been duly redeemed, according to la,w, before the execution of such deed.

“Fourth — That the land was the property of & femme covert, an insane person, a minor, or a person in confinement, at the time the land was sold and the deed executed.”

The objection urged against the validity of this act is, that with the exceptions above, it makes all of the recitals in the deed conclusive evidence of their truth, and no matter how faláe, denies to the party assailing the validity of the deed, the right to introduce evidence to prove that they are false, and that his property has been sold without authority of law.

If the effect is given to this statute claimed for it, then, if the citizen is the owner of land, he must prove that he has paid the taxes on the land, even though never assessed for taxation, no taxes ever levied, no, sale of the lands made, or must redeem it, paying taxes and penalty — provided he labors under none of the disabilities enumerated, on the mere recital, that these statute requirements have been complied with, because they have been recited in the deed.

To make the recitals in the deed conclusive evidence of their truth, and to deny to the party who desires the truth of them, the privilege of proving them to be false, is, in effect, manufacturing falsehood into truth, or giving to falsehood the validity and effect of truth. If the legislature has power to do this, then, that provision in the bill of rights, which ordains that, “no one shall be deprived of life, liberty, or property, but by the judgment of his peers, or the law of the land,” is a dead letter, because to deprive the citizen of the right to protect his property by showing that it has been taken from him contrary to law, is, in effect, denying to him the protection of the law.

The legislature may declare, what shall be received as evidence, but it cannot make that conclusively true, which maybe shown to be false ; at all events, if such facts are necessary to show that the substantial rights of property are to be affected, and he is made to lose his property.

Mr. Cooley, in his work on Con. Lim., 368, refers to the statutes of several of the states, which were intended to change the common law rule with regard to the burden of proof in such cases, and says: “These statutes take away no substantial right; they only change the order of proceeding, in the legal tribunals, in exhibiting the evidence of substantial rights, and they rest on the solid foundation of the supreme authority of the legislature, over the whole subject of evidence; an authority, however, which has its very plain limit, that it cannot deprive one of his property by making his adversary’s claim to it, whatever that claim may be, conclusive of its own validity ; it cannot, therefor, make the tax deed conclusive evidence of the holder’s title to the land.”

Mr. Blackwell, in his work on Tax Titles, p. 97, after stating the common law rule, which required of the claimant under a tax title, before he could introduce his deed as evidence, to prove that all the requirements of the law had been complied with by the agents of the government, said: “ It is now proposed to show how far this rule has been changed by legislative enactment in the several states. That the legislature possess competent power to change the common law rule of evidence, and declare that the tax deed, or certificate of sale itself, shall be received in all the courts as prima faeia evidence, that all (or any one, or more) of the pre-requisites of the law have been complied with, and thus to shift the onus probandi from the shoulder of the purchaser to those of the owner, is conceded. But that the legislature has the further power to declare the deed concluisve evidence, is denied, * * * Is it true that the legislature possess such arbitrary' authority? Is it true that the law making power, under the pretense of regulating remedies, can violate the obligation of contracts, and divest the estate of the citizen ? May the legislature do that indirectly, which it is forbidden to do by direct means? To render the law in question valid, these questions must be answered affirmatively.”

We are aware that in some of the states in which statutes have been passed declaring the recitals in a tax deed to be conclusive evidence of the truth of such recitals, the courts of those states have held the acts valid.

The decisions seem to have been made under an assumption that the legislature having distinguished between such acts as are essential to the validity of the deed, and such as arq not, may make the recitals of the non-essential acts conclusive evidence of their performance. 16 Iowa, 512; 25 Ib., 146; 17 Wis., 565; 18 Ohio, 406; 23 Wis., 245.

In this latter case it was held that the general authority of the taxing officer, and the liability of the land for taxes being conceded, all other questions are at an end," and that the -assessment, levy and .sale, are of so formal a character, that a recital of them in the deed will bo held conclusive.

The grounds upon which these decisions were made, are not satisfactory; they are based upon an assumption of power in the legislature in order to reach conclusions, which amount at last to the direct declaration of conclusiveness of recitals, whether true or false.

But aside from these we find other decision? directly in point, which hold differently. Thus in McReady v. Sexton and Son, 29 Iowa, 356. Ch. J. Cole, in a well considered opinion and review of the decisions to which we have referred, and many others, held that as regards all of the essential prerequisites to be performed in order to confer power to sell lands for the payment of taxes, the. legislatures have no power to give a conclusive effect to them.

After enumerating the various steps required to be taken in order to confer power to sell, among which are an assessment and levy, the judge proceeds.- “The legislature may prescribe the time and manner in which these essential and judicial acts shall be done; but it cannot constitutionally, or, in the nature of things, provide for passing the title to property for the non-payment of taxes without them. As to the time or manner in which they shall be done, the direction of the legislature is supreme, and cannot be judicially controlled or interfered with. In other words, the legislature being supreme, may prescribe, the the -manner of doing the act, and make that, or any other time, or manner which the persons doing it may adopt, legal and sufficient. But this power of the legislature extends only to those things over which it is supreme. As to the essential and jurisdictional facts, so to speak, which the legislature, cannot annul or change, it cannot excuse the non-performance of them, and of course cannot make the doing any other thing a substitute for them, or conclusive evidence of their being done.

“It follows therefore, upon principle, that it is not competent for the legislature to make the tax deed conclusive evidence of a compliance with the essential requisites we have above named; such an enactment is in conflict with the constitutional provisions aboved named.”

After the most careful consideration of the authorities and decisions to which we have been referred, or which have come within the range of our examination, we feel satisfied that the weight of authority is most decidedly in support of our former decisions, which hold the recitals in the tax deed only prima facia evidence of their truth, and subject to be disproven by competent evidence.

In thus holding, we are aware that we have extended our inquiry beyond the precise question before us; the sufficiency of the defendant’s answer upon demurrer; but as the question was fully argued by the counsel on both sides as if presented upon an issue of fact upon trial, and, as we must suppose that the court below was led into error by supposing that the deed, which was made profert of as part of the complaint, was in fact ^ su.ch, wc have thought it due to the importance of the case and its speedy settlement, to consider tlie question as fully as if presented upon a question of' the effect of the deed as evidence to sustain the issue.

The facts set up in the answer present an unusually strong ease, if true. The land was sold for the payment in part of a special school tax, one not imposed by law, but, if at all, by a voluntary assessment of the tax payers of the school district upon themselves. This assessment it is alleged was never made; there was no return to the County Court of such assessment, in the absence of which, we have said the'County Court could not make a levy upon them for its payment. In point of fact the land of the defendant was not subject to taxation, certainly not by force of law, for there was no law which imposed a special school tax upon the property; if imposed at all, it was to have been by voluntary consent, with regard to which the law placed no obligation upon the owner of the land.

The answer sets up these facts in defense; the demurrer admits them to be true. We must hold the answer sufficient in law, if sustained in evidence to base a recovery upon the tax deed. In thus holding we are fully sustained in our former decisions. Murphy et al v. Harbison, 29 Ark., 340. The court erred in sustaining a demurrer to this answer.

The amended answer filed by leave of the court, is in substance, that the defendant is a railroad corporation, and the owner of the land in controversy, that it erected a depot, upon the land within certain defined limits, including a railroad track, and other necessary buildings and appurtenances, which, together with the lands are, under the charter and laws passed in regard to the same, exempted from taxation. The charter and the several acts are specially referred to.

If the lands in controversy had been acquired by grant, dona- ■' tion, or subscription in aid of the construction of the road, then it would have been exempted from taxation under the provisions of the second section of the act appoved April 8th, 1869, which was in force at the time the land in controversy was assessed, for taxes and sold.

The act provides: “That every railroad company in this State shall, on or before the first day of January of each year, furnish to the auditor of public accounts a full list of lands acquired, by grant, donation, or subscription, in aid of the construction of its road; which lands shall not be listed or subject to taxation; until ■ conveyed to actual purchasers by such company,” most clearly having reference to the land grants and donations made in aid of the road, to be sold upon the completion of sections of twenty miles as provided by the charter and the grants subsequently made in aid of its construction.

It is affirmatively shown, that this tract, was not a grant made to aid in the construction of the road, but a grant by purchase from the United States on the 1st of July, 1859, to the defendants. It was the property of defendants, granted to them by patent without reference to the use or purpose for which it was to be used. Neither the act of incorporation nor any of the subsequent acts, with regard to the franchise, or the property held by it, have application to this land, or exempts it from taxation. There is however a provision, which protects from taxation, the road bed and its appurtenances, after certain periods and upon certain contingences. But until it is shown that there was a road bed, something to which a fixture could be attached, no exemption could be claimed; whether at the time the tax was levied and the lands were sold, there was a road bed, with appurtenances upon the land, does not appear; the answer is silent as to that, and if, in fact, there was such road béd and fixtures as averred in the answer, at the time the property was assessed and sold, then to the extent of the exemption, it was irregular to sell the whole tract which included the exemption, and the sale would be irregular.

The demurrer must be overruled, and leave given to the plaintiff by motion, for that purpose, to require of the defendant, to state whether there was at the time the lands were assessed for taxation, such road bed, appurtenances and fixtures upon it.

The objection to the want of proper parties, by the defendant, is not well taken. The legal title is shown to be in the wife, and and she, under our Constitution and laws, had a right, in her own name, to prosecute her suit for the recovery of the land; once in possession, tnere may arise rights in the husband which we need not here consider.

It is objected by plaintiff’s counsel that as two years have elapsed between the sale of the land and the interposition of this defense, the defendants are barred from interposing objections to the validity of the sale of the land.

The act of 25th March, 1871, relied upon as a bar to the defense; provides, “that all suits brought to avoid the sale of land for taxes, shall be commenced within two years from the date of sale and not afterwards.”

There is another provision of the same act which gives to the owner of the land, two years in which to redeem it, and in the meantime secures to him quiet and undisturbed possession, so that the date of the right to redeem, and the time allowed in which to sue, end on the same day. The result would be that the purchaser would acquire title at the same time that the owner of the land would have a right of action, no day would be given him to defend. The plaintiff could not sue before the expiration of the two years, because he could acquire no title until that time, nor cOuld the defendant interpose an earlier defense, because no one contested his right of possession or property. The statute of limitations does not begin to run in any case until there is a complete and present cause of action. Denton’s Ex’rs v. Embury & Young, 10 Ark., 228.

By the revenue laws of Iowa, five years are given as the limitation : Held that the statute did not begin run until the execution of the deed. Eldridge v. Kuehl, 27 Iowa, 160.

But in truth this statute limits the time for bringing suits, to question, or set aside a sale of land for taxes, but fixes no time whatever for making a defense when the owner is in possession. All statutes of limitation must proceed upon the idea that the party has had opportunity to -try his rights in court.

A statute,. says Mr. Cooley, which should bar the existing rights of claimants without affording the opportunity after the time when the statute bar took effect, would not be a statute of limitation, but an unlawful attempt to extinguish rights. Con. Lim., 366.

“One-who is himself in possession; in the legal enjoyment of the property, cannot have his rights forfeited to another by failure, to bring suit against that other, without a time sufficient to test the validity of a claim which the latter may make, but has taken no steps to enforce.” Ib., 369.

The objection is not well taken.

The objection that the cause was improperly transferred from' the Lafayette Circuit Court to that of Miller County cannot be sustained. The objection to the removal of the cause is, that the corporation was not'a resident of the County of Miller, a part of Lafayette at the time the suit was brought, and in which the land in controversy lay. The corporation had extended its road into that county, and although not strictly a citizen of the county, as the lands, the subject matter of the litigation, lay there, and as the case has progressed to trial, which resulted in a judgment in favor of the appellee, who with one hand reached.out to assert the validity of the jurisdiction of the court and the judgment, and with the other, to withdraw the ease, and send it back to Lafayette County to be tried there — under the circumstances of the case, we think that the Miller Circuit Court has jurisdiction of the case, and that the'litigation should be heard and finally determined in that court.

Upon consideration of the whole case we must hold that the judgment and decision of the Circuit‘Court be reversed and set aside with costs, and the case remanded to the court below with instructions to permit the plaintiff to interpose such objections as she may choose to the sufficiency of the defendant’s first and amended anwers, and that they be required to make them more definite and certain in the particular parts herein indicated, and for further proceedings to be had according to law and not inconsistent with this opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Badgett vs. Jordan.
    1. Practice : Appeals; Construction of statute to reverse, vacate, or modify judgments.

    By sec. 566, Civil Code, concurrent jurisdiction is given to the Supreme and Circuit Courts for correction of errors of the Circuit Courts, in some, but not in all cases. Errors of law in rendering judgment, must be corrected by the Supreme Court, by appeal or writ of error, and a motion to correct in the Circuit Court is unn ecessary; misprisions, or other irregularities enumerated in subsequent sections, must be corrected by the Circuit Court, and motion or complaint to correct them must be filed and determined in the Circuit Court before an appeal will lie to the Supreme Court.
    2. Interest:
    A note bearing interest over 10 per cent, per annum, from due until paid, carries the stipulated interest to the date of the judgment, and the judgment bears 10 per cent.
    APPEAL from. Pulaski Circuit Court.
    Hon. John Whytock, Circuit Judge.

      Collins, for appellant.

      Rose, contra.

   Walker, J.:

Suit was brought by Jordan in the Pulaski Circuit Court, against Badgett, upon the following note :

“ March 14th, 1870.

Eight months after date we promise to pay to the order of Charles T. Jordan, one thousand and nineteen dollars and twenty-eight cents, with interest at the rate of thirty per cent, per annum, after due, until paid, for value received.

(Signed), I. Harp,

Noah H. Badgettt.”

Badgett was duly served with notice, but interposed no defense, and judgment by default was rendered against him.

At a subsequent day of tbe same term he appeared by attorney and on his motion the judgment was set aside ; failing to make further defense, final judgment was rendered against him (after allowing certain credits) on the note for a balance of $789.28 principal, and the further sum of $1019.52, damages, as interest thereon, making in all, the sum of $1808.80, with interest thereon at the rate of thirty per cent, per annum, from the date of the judgment until paid.

No exceptions appear to have been taken as to the validity of this judgment, no motion made to set it aside, nor any appeal from it asked of the court below. But the case is brought into this court under the statute practice, by an appeal granted by the clerk of this court.

The objection to the validity of the judgment, is, that after judgment rendered for the debt and the interest due up to the time it was so rendered, at thirty per cent., the amount contracted to be paid, it was error in the court to render judgment at the rate of thirty per cent, per annum, upon the amount of debt and interest then found to be due, but that the rate of interest should have been from that time, ten per cent., not thirty per cent.

It is objected, that conceding this to be erroneous, yet as there was no objection made to the judgment in the court below, none can be raised in this court, or in other words, that.in all cases where the court below, if appealed to, could correct the error, the party complaining must ask to have the correction made there, and, if refused, this court, as a court of errors and appeals, will consider the correctness of the decision and judgment of the court below, and correct its judgment.

The steps necessary to be taken, in order to bring here questions of law, as to the validity of the pleadings and of the facts necessaiy to sustain an issue upon them, have been frequently presented for our consideration; but the practice as to the manner of bringing before the court, errors of law arising in the rendition of the judgment itself, not involving the consideration of the pleadings and the evidence, as prescribed by the Code practice, although incidentally brought into consideration, is for the first time directly presented.

Sec. 4, art. vii of the Constitution, confers power in the legislature to prescribe the mode of bringing cases from the Circuit Court to the Supreme Court for its revision.

After this, the Code practice was adopted. Title 12, sec. 566, provides, “that a judgment rendered, or final order made in the Circuit Court, may be reversed, vacated or modified, either by the Supreme Court, or by the court in which the judgment was rendered.”

“Sec. 567. A judgment or final order may be reversed or modified by the Supreme Court, for errors appearing in the record.”

The language of this section is broad, and refers to all errors of law committed at any stage of the proceeding, including the final judgment.

“Sec. 568. The proceeding to obtain such reversal or modification, shall be by appeal prosecuted as prescribed by law.”

Let us pause at this point, to consider these sections apart from those -which follow.

Sec. 566, gave concurrent jurisdiction to both the- Supreme and the inferior court, and if this concurrent jurisdiction had been intended to extend to all cases, there would have been no necessity for conferring exclusive power in sec. 567, and providing for the manner of getting the case before the Supreme Court in sec. 568.

It is evident that the legislature had a purpose in making these provisions, the effect of which was to distinguish the character of errors over which the two courts should exercise jurisdiction, and this is made manifest by the next sec. 569, and the succeeding sections.

By sec. 569. “A misprision of the clerk shall not be ground for an appeal, until the same has been presented to and acted upon in the Circuit Court.”

“Sec. 570. Rendering judgment before the action stood for trial, shall be deemed a misprison.”

“Sec. 571. The court in which the judgment or final order fias been rendered or made, shall have power after the expiration of the term, to vacate or modify such judgment or order.

“First — By granting a new trial for the cause and in the manner prescribed in sec. 376.

“Second — By a new trial granted in proceedings against defendants constructively summoned.

“Third — For misprision of clerks.

“Fourth — For fraud practiced by the successful party.

“Fifth — For erroneous proceedings against infants, married women, or persons of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings.

“Sixth — For the death of one of the parties before judgment in the action.

“Seventh — For unavoidable casualty, or misfortune, preventing the party from appearing to defend.

“FRghth — For error in a judgment, shown by an infant in twelve months after arriving at full age.”

No one can look at these provisions without seeing that they are exclusively confined to misprisions or intervening casualties which prevented a proper adjudication of the case, and not for errors of law in rendering the judgment of the court; or, in other words, such errors as should be first disposed of and corrected in the court below, before the final judgment of the court below was brought to this court by appeal or writ of error, for reversal or modification.

The first four causes to be reached by motion in the court below, the last four by complaint in the same court; for which provision is made in secs. 572 and 573.

Thus we find the concurrent jurisdiction conferred in sec. 566, divided, and the manner of reaching the errors and correcting them prescribed. Errors of law in rendering the judgment, to be corrected by the Supreme Court; misprisions, or other of the enumerated irregularities to be corrected by motion in the Circuit Court, or by complaint filed for that purpose, and there determined, before an appeal will lie to this court.

It was to compel the observance of these provisions that sec. 886, ch. 3, was enacted, which provides that “A judgment or final order shall not be reversed for an error which can be' corrected on motion in the inferior court, until such motion has been made there and overruled.”

It is upon the proper construction of this section, that the whole controversy upon this point turns. If construed, as applicable to all proceedings to reverse or modify a judgment,whether the error be of law, or a misprision, then, until the motion is made and overruled in the court- below, this court has no jurisdiction of this case, as no such motion was made.

On the other hand, if limited to proceedings provided for "by motion to correct misprisions, then, as the question presented for our consideration is one of law, for error in the rendition of the judgment, there was no necessity for making any such motion before appealing to this court.

What are we to understand from the language of the act, for an error which can be corrected on motion in the inferior court?”

Most clearly, that thpre were errors which could not be corrected by motion, but such as were to be corrected by motion in the preceding sections, and no others; the last four irregularities to be corrected, were to be reached by complaint or petition and not by motion; of course, it could have no reference to these, nor to any others than those provided for by motion. Errors of law in the rendition of the judgment, were not one of them, and consequently sec. 886 has no application to the case.

The error complained of in this instance is very different from such as precede the rendition of the judgment, and.for which the judgment should be reversed, because these should be reached by an appropriate proceeding to have the error corrected before the judgment is rendered ; but when none of these occur, and when the error consists in pronouncing the law or applying it to the state of case made, there is nothing upon which to predicate the motion.

If error, it is error of law, once pronounced by the court, and unless upon a motiqn to reconsider its own judgment, which would in effect be, to ask of the court to adjudge again, the error-stands to be corrected.

The legislature, if it had thought proper, would have imposed terms to be performed in practice to bring up the question, but having failed to do so, and expressly given the right of appeal to correct errors of judgment, we cannot, under any fair construction of the statute, deny the right of appeal, by requiring a-motion to be first made in the court below to set the judgment asifje.

We have reached our conclusions, in regard to the practice prescribed by the Code, to correct an erroneous judgment under the practice, without any reference whatever to the practice in correcting errors of law,’which arise in the progress of the case, whether in the pleading, or in the application of the law to the facts necessary to establish the issue formed.

These are usually presented by demurrer to the pleadings, motion for a new trial for errors of law, in regard to the evi-' dence, or the instructions to the jury, or in arrest of judgment. The motion for a new trial, is to set aside the verdict or finding of the facts, upon some ground which renders it proper that the facts should be again investigated and determined.

The motion to arrest and stay the rendition of the judgment, is because no sufficient issue in law has been presented, to warrant .a judgment upon the facts found. Each of these, in the contemplation of law, precedes the rendition of the judgment, and if errors have arisen may tend to vitiate it.

With regard to all this we have nothing to do in this case, but leave the practice as now settled, to stand unimpaired or unaffected, by the determination of the case now before us.

It is of the utmost importance that the practice as settled, should stand; any doubt or uncertainty with regard to the practice in bringing cases before this court for revision, until clearly understood by the profession, must,,, as it has, result seriously to the prejudice of the rights of litigants; conscious as we are, that such may be the effect of our decision, if not properly guarded, we have declined to look behind the case presented ; in the determination of which, the restrictions upon the rights of appeal have only been incumbered to the extent prescribed by the statute.

In reaching our conclusion with regard to the construction to be given to these Code provisions, we have carefully looked into the decisions of several of the State Courts under a like Cade practice, which, we think, upon a fair consideration sustain the construction which we have given to ours. .

The' State of Iowa has a 'Code practice substantially like ours, which has, upon several occasions, been before the Supreme Court of that State for consideration.

In Dickey v. Harman, 26 Iowa, 502, the action was on a note. The defendant made default, and judgment was rendered upon an erroneous computation of interest made by the clerk. Upon appeal from the District Court, Ch. J. Dillon, said: “On examination we find, that there was an error against the appellant in the computation of the amount due. Under the statute, however, this kind of an error should be corrected on motion in the District Court and" cannot be reached by appeal. No such motion has been made in the District Court, nor has any question ever been made and presented by the defendant to that court. The judgment of the court will be affirmed.”

Why affirmed? Because, says the judge, “This kind of an error should be corrected by motion.” What kind of an error? An error of miscalculation of interest, a clerical misprision.

This is just what we would say, if a like case was presented to us.

But the case we are considering, is not one of clerical misprision, but an error of law in rendering judgment upon a correct computation of interest, contrary to law.

This decision is not against, but in support of our construction of the statute.

In Webster v. St. Paul and Rapids Railroad, 27 Iowa, 37, the error complained of was a clerical misprision, and decided as the case of Dickey v. Harman was.

In Pigman v. Denny, 12 Iowa, 386, the irregularity complained of, was in the service of the writ.

In Carlton v. Byington, the irregularity was in filing a paper.

These irregularities were also, and for like reason, held to be proper subjects of correction in the court below.

Judge Dillon, in Carleton v. Byington, clearly draws the distinction between misprisions or other irregularities, and errors of law, in the rendition of the judgment; “when,” he says, “the appellate court can only try legal errors,” in contradistinction to “misprisions or irregularities, which should first be presented by motion to the Circuit Court for correction.”

The Court of Appeals of Kentucky, under a Code practice like our own, has given the same construction to those sections,which we give.

In Williams v. Barnes, 13 B. Mon., 330, two errors appeared in the record, one for rendering judgment for a larger sum than was due, the other for an error in the computation of interest. The court said: “ The wrong computation of interest was a clerical misprision, and the judgment for that cause would not be reversed, because it could be corrected by motion in the court below. But in the error for rendering the judgment for the sum of $150, the judgment is reversed and the cause remanded for further proceedings.”

In this case, two errors were before the court; the first, a clerical misprision; the second, error in rendering judgment. The court say, that the misprision should have been corrected in the court below, but for the error in rendering the judgment, they did take jurisdiction and reversed the case.

Looking to our own decisions, made since the Code practice was introduced in 1869, we find but few of them which aid us in reaching a-proper conclusion as to the proper construction to be given to the sections under consideration.

In the case of Steck v. Mahar, 26 Ark., 536, the question arose upon the proper practice in reaching errors committed during the progress of the case; in regard to which Ch. J. McClure said: “A motion for a new trial is essential to correct the errors growing out of the evidence or instructions, before an appeal can be entertained by this court.”

“Where the errors complained of do not relate to such as grow out of the evidence or instructions, but are apparent on the record without the invention of a bill of exceptions, there is no necessity for making a motion for a new trial, and the cause in such case, may be brought to this court without making the motion.”

This opinion is but a repetition of what has been repeatedly decided by this court; having no reference, however, to the state of the case before us; none to the Code practice for the correction of erroneous judgments; but so far from being an authority in support of the proposition assumed by the appellee, is decidedly to the reverse, upon general principles.

But the decision in that case can have no controling influence in the decision of this. No error is complained of here, either in regard to questions of law growing out of the evidence, or of the pleadings prior to the rendering of the judgment, but an error apparent upon the record of the judgment rendered, one patent upon the record, and from which by the express provisions of sec. 567, an appeal is given.

In Merriwether v. Erwin, 29 Ark., 37, the action was assumpsit, issue formed and trial by jury, verdict and judgment. Exceptions were taken, but no motion for a new trial was made. The question presented was like that of Steck v. Mahar, and decided upon the authority of that case. After thus holding, Judge Bennett cited the Code practice, sec. 886, which he construed as being applicable to the case before him, and said: “No effort having been made to correct the errors complained of in the court where they originated, an appeal would not lie.” A proposition so foreign to the one under consideration, that it called forth a well considered dissenting opinion from Mr. Justice Gregg, which with a clear conception of all the provisions of the several sections of the Code, limits the application of sec. 886 to the misprisions and irregularities referred to in secs. 569, 570 and 571, and gives to it the same application which we feel satisfied was intended to be given by the legislature.

In none of our decisions except the dissenting opinion of Judge Gregg, has an attempt been made to construe the provisions of the Code practice in regard to erroneous judgments.

The question presented for our consideration arises upon the validity of the judgment irrespective of any errors which may have arisen prior to its rendition.

The note was before the court, no assessment of damages was necessary, and it only devolved upon the court to adjudge the amount due upon the note, and the rate of interest it should bear. The court rendered judgment in favor of the plaintiff for $789.28 debt, and $1019.52 damages, in all $1808.80 with interest on the whole sum at the rate of thirty per cent, per annum from the date of the judgment until paid.

Was this the judgment which, under the law, the defendant was • bound to pay ? If so, then there was no error; otherwise the judgment was illegal and subject to be reversed,and set aside.

The only possible question which can arise, is, whether this court can take jurisdiction of the case and correct the error, if such be found to exist, until after a motion has been made in the Circuit Court for that purpose and overruled.

Sec. 567, expressly confers jurisdiction to correct this error, and sec. 568, the right to bring the case before us by appeal; and unless limited and dependent upon the motion provided for in sec. 886, to call into action the power conferred, the case is properly before us.

There is ’much propriety in giving to the court in which a misprision or an irregularity has occurred, power to make the the correction; but none to call upon the court to reverse and set aside its own judgment of the law; at best it would be but asking the court to reconsider it's own judgment rendered upon the same state of facts.

But be this as it may, the legislature has not required this or any other motion to be made in order to present the question of law arising upon the judgment, in order to confer the right of appeal.

The case is properly brought before us by appeal.

The next question is, as to the errors in rendering the judgment. It was rendered upon a note for the payment of money, at the rate of thirty per cent, until paid.

The error complained of, is, not that it was erroneous to render the judgment for the balance due on the note and thirty per cent interest from due until the time when the judgment was rendered, but that the judgment after that time was for thirty per cent, interest on both the debt and interest found to be due, until paid.

Ve had occasion to consider this question in the case of Newton v. Kennerly, 31 Ark., 626. In that case the note bore sixteen per cent, from due, and we held that such interest being stipulated by contract for a given time, after the expiration of the time for which interest was to be charged at sixteen per cent, the debt only bore six per cent, until judgment rendered, and after that, under the provisions of sec. 4, act 1859, ten per cent.

Upon looking into that act, we find it provides that judgments or decrees, upon contracts bearing more than six per cent, interest, shall bear the same interest as expressed in the contract, and all other judgments six per cent, interest.

Referring to the acts in force at the time the fourth section was enacted, we find that there was a law in force which allowed interest at ten per cent, to be taken by contract, and it was evidently in reference to this provision that sec. 4 was enacted, The section which allowed ten per. cent to be taken when contracted for, was repealed, leaving sec. 4 in force.

It is by no means clear, what effect should be given to sec. 4 after the act allowing ten per cent, had been repealed.

And as a member of the court, I hesitated, when the opinion was prepared in Newton v. Kennerly, as to the propriety of giving effect to sec. 4 and rendering a judgment for ten per cent, interest, when no such amount was contracted to be paid.

In consideration that such had been the construction given to sec. 4 by the District Court of the United States, and by the State Courts, and in deference to the opinions of my brother judges, I acquiesced in the construction which had been given to sec. 4; and now, when the question is again presented, concur with them in giving it a like construction.

Under this construction of the statute, we must hold that the debt bore thirty per cent, interest according to the terms of the contract, up to the rendition of the judgment, and after that time the judgment should bear ten per cent, interest.

And because such was not the judgment in the court below, it must be reversed and set aside, and a judgment rendered in accordance with this opinion.


text:
    Lemay vs. Williams.
    i. Alteration.
    The alteration of the date of a note by the holder, without the consent and to the prejudice of the maker, is a forgery and renders the note void.
    2. Acknowledgment; Mortgage.

    A mortgage is binding between the parties to it, whether acknowledged or not.
    3, Malicious Prosecution; Malice.

    If a party makes a full statement of the facts to his counsel, and acts under his advice in the prosecution of an attachment against the property of his debtor, this is evidence, but not conclusive, of a want of malice.

      4. Malicious Prosecution; Malice.

    Where a party has a good cause of action, and prosecutes it under process from a court of competent jurisdiction, there is no presumption of malice; and the omission, by mistake, to state in the proceedings some act necessary to bring the case within the purview of the law authorizing the action, does not make the action without probable cause, nor subject the prosecutor to an inference of malice; but if a creditor sues out process of attachment without a legal debt, or before it becomes due, and when there is no fraudulent intent of the debtor to avoid it, these facts are evidence, but not conclusive, of malicious prosecution.

      5. ---; Same.

    In a legal sense any unlawful act wilfully done, to the injury of another, is as against that person, malicious. Proof of malice need not be direct, but may be inferred from circumstances.
    6. Attachments; Jurisdiction of justices of the peace.

    Justices of the peace have no jurisdiction under see. 441, Gantt’s Dig., which provides for attaching mortgaged personal property. That section refers alone to Circuit Courts.
    APPEAL from Lafayette Circuit Court.
    Hon. Thos. C. McRae, Special Judge.

      A. B. Williams, for appellant.

      Cooh, contra.

   Walker, J.:

Williams brought an action in the Lafayette Circuit Court against Lemay for damages sustained by him on account of a malicious prosecution by attachment by Lemay in a justice’s court against Williams.

. The action in the justice’s court was commenced November 1st, 1874, upon a note which purported to have been executed on the 7th of May of that year, for $158, due 25th of December thereafter, and upon a mortgage of that date given on a crop of cotton and corn to be. planted and cultivated in that year, to secure the payment of said note.

The substance of the plaintiff’s allegation is, that Lemay maliciously and without probable cause, sued out two orders of attachment; the first against four thousand and five hundred pounds of seed cotton and two hundred bushels of corn, the property of Williams, and caused the same to be executed; that the property was by virtue of said order, taken and kept out of the possession of Williams for sixteen days, and the process returned to the justice as executed; that immediately after such return, Lemay maliciously and without probable cause, sued out from said justice another attachment against three other bales of cotton, the property of Williams, and caused the same to be executed, and the three bales of cotton to be taken and kept out of the possession of Williams for fifteen days; and that the suits by attachment under which said cotton and corn were attached, had been and were discontinued.

The defendant, Lemay, in his answer, denies malice and sets up in defense, title to the property in himself. This issue was tried by a jury who found a verdict in favor of the plaintiff, upon which judgment was rendered. Defendant, Lemay, appealed to this court.

It appears from the evidence that Lemay, in 1874, was engaged in selling goods and supplies to planters and others in Lafayette County, and Williams, a planter, had rented land from Parks to be cultivated in corn and cotton. Prior to that time there had been dealiugs between Lemay and Williams, who, as a witness, deposed, that on the 31st of March, 1874, he and Lemay settled their account for the year 1873, and he was found to be indebted to Lemay $150, for the payment of which he executed his note ; that on the 7th of April, 1874, Lemay furnished witness a trade note for $8, took up the note for $150, and witness executed to Lemay a new note for $158, to secure payment of. which as well as for further supplies to be furnished, witness executed to Lemay a mortgage on the crop of corn and cotton to be raised that year on the Parks’ plantation.

The date of the mortgage was left blank with an understanding that it was to be dated at a future day, when the mortgage was-to be acknowledged. That thereafter, on the 15th of April, he applied to Lemay for a pair of shoes and was refused further credit -; that the true date of the note was 7th of April, 1874, but that afterwards, without authority from Avitness, it was changed to the 7th of May of that year. On the 25th of May thereafter, Lemay and Wilson, the justice of the peace, came to where witness Avas at work, and requested him to date and acknowledge the deed as executed on that day ; witness admitted that he had signed the deed, but refused to date it as of the 25th of May and acknoAvledge it as of that date. Wilson had the deed in his hand at the time, but made no inquiry of witness Avhether he had executed it for any purpose or consideration Avhatever. Lemay Avas also sworn as a Avitness and testified, that both the note and mortgage were executed and delivered to him by Williams on the 7th of May, 1874 ; that the word April was Avritten by mistake, and corrected by erasing April and inserting May in place of it; that the date of the mortgage was left blank to be inserted as of the date when it Avas acknoAvl'edged.

Worris, a subscribing witness to the note, testified that both the note and mortgage were executed on the same day, but at Avliat particular date he could not recollect.

Wilson, the justice, testified that on the 25th of May, when Williams was requested to acknoAvledge the deed, it was not dated, and that he, at the instance of Lemay, dated it as of the 7th of May.

In support of the testimony of Williams, Parks deposed that he saw Lemay about the 1st of April, who told him that- he had made an arrangement with Williams to furnish him supplies for the year 1874, and understood from Lemay, that he had taken from Williams a mortgage; remembers that Lemay told Avitness that he intended to take mortgages from those to whom he was furnishing supplies, and have them acknowledged before Wilson, after the crops were up; that about three days after the 25th of May, when Lemay and Wilson applied to Williams to acknowledge the deed, Lemay told witness, Williams had refused to acknowledge the deed and had acted the rascal with him.

John A. Steele deposed that he was clerk for Lemay in February, March and part of April, 1874, that he left the store of Lemay on the 19th or 20th of April, remembered that on the last of March, or first of April, he saw Lemay and Williams staiiding atr the desk fixing up papers, but what they were did not remember; saw Williams come out with a trade note in his hand. Some days after this heard Williams apply to buy a pair of shoes, Lemay refused to let him have them. Williams then told Lemay that he was done with the mortgage and would have nothing more to do with it.

Thompson, another witness, deposed that before the overflow which commenced late in April, he was at Lemay’s store and heard Lemay tell his clerk, if Williams called for the mortgage to take to AYilson, to let him have it.

The evidence of an expert was that the alteration of the date of the note appeared to have been made with different ink from that used in the body of the instrument.

. This is substantially the evidence touching the execution of the note and mortgage, and particularly as to dates.

If, in fact, the note was executed on the 7th of April and subsequently changed to the 7th of May, without his consent and to the prejudice of Williams’ rights, the alteration was a forgery and the-note void. The time when the mortgage was executed was important, in determining whether there existed a crop of corn and cotton; if no such crop was in existence, then there was no property mortgaged, no contract could be enforced in a court of law, as held in Apperson v. Moore, 30 Ark., 56, and approved in several of our later decisions.

The question raised by the instructions, as to whether the deed was in fact acknowledged, or was falsely certified as having been o acknowledged, was properly held by the court to be of no importance, because, under the state of the case presented, it was an issue between the grantor and grantee, not involving the rights of third parties, and if executed, whether acknowledged or not, was binding as between themselves, as held in Stirman et al. v. Cravens et al., 29 Ark., 548.

It is true that there is evidence that corn was planted before the 7th of May; it is also in proof that about the same time there was an overflow of the land which continued until after the 7th of May, but whether the corn at that time was up and growing does not appear. The testimony shows that the crop of cotton was planted between the 7th of May and the 5th of June; such being the case, there was, at the time when the deed, according to Lemay’s own showing, was executed, no crop of corn and cotton in existence, nothing to which his mortgage could attach.

The suit in the Justice’s Court brought by Lemay against Williams, stripped of this claim of mortgage lien upon a crop of corn and cotton, stood alone upon the note for $158, due 25th December, 1874.

To sustain him in bringing an action for its recovery on the 1st day of October, 1874, before the time when his debt was due, leaving out of the question whether' the note was not void, on account of the change of date, which was the proper subject for the consideration of a jury, we will proceed to consider the remedy sought and the rights of Lemay under it, as important in determining the real question at issue; which is, whether the' prosecution was or not malicious, and so clearly without a probable cause of action, as to impute to Lemay malice in prosecuting his attachments against the property of ’Williams.

We have seen that the complaint was made before a justice of the peace, was based upon the note and mortgage as the grounds 'of his right to attach the property, and first, as to the note which was not then due, and of course, unless under extraordinary statutory provisions, was not a present cause of action. Lemay knew his , debt was not due; of this there could be no mistake; he may have taken, counsel as to the means of enforcing his extraordi- • nary remedy; if he did so, it is to be presumed that he was advised of the state of the case which must necessarily exist to entitle him to the process of attachment. If upon a full statement of the facts, he was advised by counsel, that he could proceed by attachment and under that advice acted, evidence that he acted under it although not conclusive, will strongly tend to repel the implication of malice. Shannon v. Buckner, 77 Ill., 164; Murphy v. Lawson, Ib., 172; Cox v. Davis, 55 Geo., 289.

Lemay was certainly not entitled to the process of attachment under the provisions of sec. 388 of Gantt's Digest, which alone has reference to debts or demands due. Sec. 437 provides for process by attachment before the debt becomes due, and then only in cases where the debtor has sold, conveyed, or disposed of his property with a fraudulent intent to cheat or defraud his creditors, or to hinder or delay them from collecting their debts, or is about to make such sale or disposition with such intent, or is about to remove his property or a material part of it, out of the ' State with a like fraudulent intent.

These material facts are wanting in the complaint in this instance. The' plaintiff states as a matter of belief, that unless prevented by the court, four thousand and five hundred pounds of seed cotton and two hundred bushels of corn will be sold, conveyed or removed from the State by Williams, all of which-Williams certainly had a right to do, unless done with a fraudulent intent to injure and defraud his creditors.

If such fraudulent intent had, in fact, existed, but by oversight or inadvertence had been omitted in the complaint, proof of such fact would tend to remove an imputation of malice, but there is nothing in the case before us which indicates that Williams’ conduct was fraudulent; it is in proof that he informed Lemay that he had sold part of the crop and intended to make further sale; in effect he denied the validity of the mortgage and put Lemay in possession of the fact.

The remaining sec. 441, Gantt’s Dig., gives to the mortgagee a right of attachment upon personal property upon petition sworn to that he has a just claim; that the property is about to be sold, or caused to be removed out of the State, or that he has reasonable cause to believe that unless prevented by the court, that the property will be sold or removed out of the State.

It may have been the intention of the plaintiff to pursue his remedy under this section, as a mortgage lien creditor; but conceding the fact that he had a valid mortgage lien upon the crop of corn and cotton (which we think is not the case), the question is, could he assert such right before a justice of the peace.

Counsel for the appellant refers to the Constitution of 1868, which gives to justices of the peace jurisdiction in actions of contract and replevin in limited amounts, and that this jurisdiction extends to all contracts legal and equitable) limited only by the amount in controversy. In support of this view reference is made to the Kentucky Code of Practice under which justices of the peace are vested with equitable jurisdiction in certain cases. If the decisions of the Kentucky courts and others referred to, sustain this, equitable jurisdiction, it is certainly because it is conferred upon justices of the peace by statute. In this State no such statute exists; on the contrary, there is an express limitation of the jurisdiction of justices by special limitation.

Sec. 3718, Gantt’s Dig., confers exclusive jurisdiction upon justices of the peace in actions of contract and replevin absolutely to the extent of $200, and concurrently between $200 and $500, but in express terms of limitation declares that it shall extend to' no other civil action, and as if to leave no question of doubt upon the subject, the legislature, sec. 3725, limits the jurisdiction of justices of the peace to such as are above enumerated, and with these exceptions declare them to be the sole and only laws governing the mode of proceeding in Justices’ Courts in civil proceedings.

The provision in sec. 441 for attaching personal property which has been mortgaged, has reference alone to proceedings in the Circuit Court, refers alone to Circuit Courts and the judges of Circuit Courts without any reference whatever to Justices’ Courts and justices of the peace.

Thus sec. 443 provides, that the court in which the action is brought, or the judge thereof, or any judge of the Circuit Court, may grant an order of attachment upon such terms and conditions as to security, etc., and the disposition to be made of the attached property.

The power is conferred upon the court in which the suit is brought, and the judge of the court, or the judge of any other court in vacation.- "It is an ancillary proceeding intended to lay hold of property and hold it from waste and misapplication, subject to the final adjudication of the case upon its merits. It is a proceeding in regard to which justices of the peace have nothing to do ; no jurisdiction .and no power to order an attachment. It is under this state of case, as to the legal right of Lemay to attach the property of Williams and of all the attendant circumstances connected with the action brought by Lemay against Williams, that the question at issue is to be determined, which is whether the suit was maliciously prosecuted without probable cause, to the damage of Williams. If Lemay had a good cause of action, then existing, and was prosecuting it under process isssued by a court of competent jurisdiction to afford to him the redress to which by law he was entitled, all presumption of malice is repelled; because then there is probable cause for the institution of the suit, indeed a complete cause of action and legal right to enforce it, and when such is the ease, if by mistake some act is omitted which was necessary to bring the case within the provisions of the law, there would certainly be a good probable cause of action, and malice would not be inferred; but when a party in fact has no valid cause of action, or has one which is not due, or which can be enforced when not due only by extraordinary process, to entitle himself to obtain the benefit of which he has not complied with the law, these; circumstances with others, tend to show a want of probable cause, and if sufficiently strong may be used as evidence of malice, and an intention to injure the party against whom the process is issued, because the party suing out the process must be presumed to know whether he has a legal debt, whether it is due or not, and if not due that the debtor by his false and fraudulent acts has given to the creditor the right to lay hold of the property and take it from the possession of the debtor, and hold it to be subjected to the payment of his debt when due; and if in fact the creditor sues out a process without a legal debt, or before it becomes due and in the absence of fraudulent intent on the part of the debtor, these circumstances strongly tend to fix upon him the penalties of the law for malicious prosecution, which may, however, to some extent be repelled by other evidence tending to show probable cause.

If in the case under consideration Lemay had based his right of action solely upon his claim of mortgage lien, and not also upon his note for the satisfaction of a debt within the jurisdiction of the justice of the peace, the subject matter would clearly have been one over which a justice would have no jurisdiction, and trespass not case would be the appropriate remedy.

Pei’haps under our Code of Practice this distinction would be less important; but in this case there is a note as well as a mortgage for the subject of consideration, and the process of the justice should not be treated as absolutely void, and the action for malicious prosecution may be sustained under the state of case presented. The genéral rule laid down by Greenleaf is illustrated, not shaken by the authorities referred to by counsel, and fully sustains the view which we have taken of the law governing the case. In paragraph 449 he says: “ that it is not necessary that the whole proceedings be utterly groundless, for if groundless charges are maliciously and without probable cause coupled with others which are well founded, they are not on that account the less injurious, and therefore constitute a valid cause of action ; nor is the form of the prosecution material, the gravamen being that the plaintiff has improperly been made the subject of legal process to his damage.”

The same authority, paragraph 453, says : “The plaintiff must also show that the prosecution was instituted maliciously and without probable cause, and both these must concur. If it were malicious and unfounded but there was probable cause for the prosecution, this action cannot'be maintained.”

In a legal sense any unlawful act done wilfully and purposely to the injury of another, is as against that person, malicious; the proof of malice need not be direct but may be inferred from circumstances.

The'position is fully sustained in the .case of Commonwealth v. Snelling, 15 Pick., 321, in which Parker, J., said, “ the term malice in this form of action is not to be considered in the sense of spite or hatred against an individual but of malus animus, and as denoting that the party is actuated by improper and indirect motives,” and in thus holding, Justice Parker substantially sustains the first and second instructions of the plaintiff, in which the court instructed the jury that, “ if the defendant Lemay did not act as a man of caution and prudence, impartially, reasonably and without prejudice and malice, or a desire to gain an undue advantage of the plaintiff, they 'may find that the order was issued without probable cause, and may infer malice on the part of the defendant.”

In Holliday v. Sterling, 62 Mo., 321, it was held-that “in an action for maliciously suing out an attachment, express malice need not be shown, but may be inferred from want of probable cause.”

In the case of McWilliams v. Hoban, 42 Md., 56, in an action for malicious prosecution the instructions of the court were: “If there were no circumstances connected with the transaction out of which the prosecution arose, which would warrant a reasonable, dispassionate man in believing the plaintiff to have been guilty of the charge made against him, and in undertaking such prosecution from public motives, then there was no probable cause for the prosecution, and the jury may infer, in the absence of sufficient proof to satisfy themjo the contrary, that the prosecution was malicious.”

. Conceding, however, as we must, that the instructions, if taken apart from the three given at the instance of the plaintiff, might have tended to mislead the jury, yet when taken in connection with it they were not seriously objectionable.

The court instructed the jury at the instance of the plaintiff properly qualified, that the word “ malice,” as used in these instructions is not to be construed by the jury in the sense of spite or hatred on the part of the defendant to the plaintiff, and if therefore the jury believe from the evidence, that said orders of attachment, or either of them were procured to be issued by the defendant by improper or indirect motives, or without authority of law, the jury may infer malice on the part of the defendant in the procurement thereof, notwithstanding, they may further find that the plaintiff was indebted to' the defendant as claimed in said action.

At the instance of the defendant, the court instructed the jury, “that if from the evidence, they believed that plaintiff executed to defendant a mortgage bearing date 7th May, 1874, which was. in no wise changed except in filling up the blank therein purporting to be of the day on which the same was executed, planted a crop of corn and cotton on the place of John D. Sparks in the year 1874, and that the plaintiff executed the note given in evidence bearing date May 7th, 1874, and that the note had not been paid, changed or altered since the execution thereof, or if changed or altered in the date thereof, and that the defendant having reason to believe that the plaintiff had or was about to sell, conceal or remove from this State said crop or any part, thereof, sued out said order of attachment to enforce said mortgage or foreclose the lien acquired by said mortgage, and to enforce the collection of said note, the jury may find for the. defendant.” Which instruction the court refused to give in the form asked, but which was given by adding after the word, May, 1874, in the second line, the words, “and delivered the same to the defendant as a mortgage.”

From the view which we take of this instruction, we think it erroneous, but clearly not an error of which the defendant could complain, because, as we have already seen there was no mortgage, no crop in existence at the time the deed was executed, and therefore no authority for issuing an attachment to enforce a lien upon the crop afterwards grown.

Without further reference to the instructions asked they were all exceptionable for this reason and properly refused.

Whether the prosecution was or was not malicious and without probable cause was the proper subject of consideration for the jury, there was evidence introduced tending to sustain the finding of the jury; and finding no error in the instructions of the court as to the law governing the case tending to mislead them in the application of the evidence, the motion of the appellant to set aside the verdict, and grant to him a new trial was properly overruled.

Let the judgment of the court be affirmed.


author: English, Ch. J.:

text:
    Thetstone vs. The State.
    1. Criminal Pleading: Defect in, when cured by legal presumption.

    The defendant was indicted for murder and convicted. The indictment did not state in the body, in what county the offense was committed. He moved in arrest of judgment for this omission alone, which was overruled, but filed no motion for new trial, nor preserved any bill of exceptions, setting forth the evidence and the instructions of the court; held that this eourt will presume, in the absence of any showing to the contrary* in favor of the Circuit Court, that it was proven on the trial that the offense was committed in the county where the indictment was found.
    2. Venue: Must be proved.

    The ve.nue must be proved on the trial, though not alleged in the indictment.
    ERROR to Mississippi Circuit Court.
    Hon. L. L. Mack, Circuit Judge.

      Adams, for plaintiff.

      Attorney General, contra.

   English, Ch. J.:

On the 17th of October, 1874, the plaintiff in error, Stephen Thetstone, was indicted in the Circuit Court of Mississippi County, for murder. He was arraigned at the May Term, 1877, pleaded not guilty, was tried by a jury, found guilty of murder in the second degree, filed a motion in arrest of judgment, which was overruled, sentenced to the penitentiary for nineteen years, the pei'iod of imprisonment fixed by the verdict, and brought error.

The indictment does not allege that the offense was committed in Mississippi County, and this was the only ground of the motion in arrest of judgment.

There was no motion for a new trial, and no bill of exceptions setting out the evidence and charge >of the court to the jury. We must therefore presume, in the absence of any showing to the contrary, in favor of the judgment of the court below, that it was proven on the trial that the offense was committed in Mississippi County, for without such proof the plaintiff in error could not have been legally convicted. Dougan v. State, 30 Ark., 41.

The county is named in the caption of the indictment; the time of the offense is alleged, and the words “then and there,” are used as usual in averring the material facts of the crime; but the word “there” has no antecedent in the body of the indictment.

In the English forms the venue is stated in the margin, as “Middlesex, to-wit,” and laid in the body of the indictment by referring to the county in the margin, as “the county aforesaid.”

In Barnes v. The State, 5 Yerger, 186, the county was named in the caption, and in the body of the indictment the offense was alleged to have -been committed in the “ county aforesaid,” and this was held to be sufficient.

In State v. Cotton, 4 Foster (N. H.), 144, the county was named in the caption, and the time avowed in the body of the indictment, and then followed the charge that the defendant then and there did steal, etc., and the court held that the omission of a more certáin averment of the venue might have been bad on special demurrer, but was not fatal on motion in arrest of judgment, after verdict on plea of not guilty.

By a section of the Criminal Code : If the indictment contains no statement of the place in which the offense was committed, it shall be considered as charged therein that it was committed in the local limits of the jurisdiction of the court in which the grand jury was empanelled.” (Gantt’s Dig., sec. 178.) And, of course, the State must prove the venue as if, in fact, formally alleged in the indictment.

There is a similar statute in England. 14 and 15 Victoria C., 100, s. 23; 1 Arch. Cr. Prac. and Plead. (6 ed.), p. 85-6.

"We think the objection taken to the indictment, on the motion in arrest, applies to matter of form and not substance. Mott v. State, 29 Ark., 148; Barton v. State, Ib., 68; Thompson et al. v. State, 25 Ala., 45.

Affirmed.