text:
    COUNTY COURT OF UNION COUNTY v. ROBINSON, Trustee., etc.
    Common Schools — District ta.c, amount by whom fixed. — The electors of the District, only, have authority to fix the amount of the school tax, and the only limit upon thorn is, that they shall not levy a less sum than is sufficient to carry on a school for three months in each scholastic year.

      Same — -Tnistee—-powers and duties of. — It is the duty of the Trustee to call the meeting and to report certain facts and estimates to the electors and to keep a record of their proceedings, but so far as assessing the amount or the levying of the tax is concerned, he has no voice over any other elector.

      Same — When electors fail to act. — When the meeting is not attended by a sufficient number of the electors to hold an election, it is the duty of the Trustee to lay his estimate before the County Court for their action, and, upon which, the law requires the County Court to make the levj>-.
    School Houses and Schools — Number of, and separate as to whites amVblacks.— The law does not contemplate but one school house and school to each district only, (wherein it provides that separate schools shall he provided for whites and blacks) but in case there should he both white and colored children in the same district, would require separate schciols.

      Courts — Ph'rors in judgment or abuse of discretion, haw corrected. — The discretion or judgment of a court of competent jurisdiction, where there is abuse of the one or error in the other, cannot he controlled hv mandamus, but may be corrected on appeal.
    APPEAL PltOM uxrox COUNTY CIRCUIT COURT.
    Hox. (Riorum AV. AIcCWx, Circuit Judge.

      J. H. Carlton and Garland & Nash, for Appellant.
    A mandamus is not a. writ of right. It is always ex ■parte, and will be granted only when a party has shown ho has a 'legal right, and no other adequate specific legal remedy. 1st Chp. Geni. Prac., 790 ; Ilex. vs. Bp. of Chester, 1 Term., 696; King vs. Bishop of Canterbury, 8 East., 219 ; Strong, Petitioner, 20 Pick., 497 ; Cheatham, ex parte, 6 Ark., 437 ; Young vs. Mills, 1 Ark., 11; lb. 121; Tmprall ex parte, 6 Ark., 9; Williamson,ex parte, 8 Ark., 424.
    It will not lie whenlthe party has the right of appeal. Williamson, ex parte, 8 Ark., 424; nor when error lies. Ih.

    It seems in no case, AYhen a subordinate court, acting jwii

      dally, has, in the exercise of its discretion, or judgment, made an adjudication, can mandamus properly issue. Green vs. County of Pulaski, 3 Ark., 427; Brem vs. Arkansas Co. Court, •9 Ark., 240; Oneida C-P. vs. People, 18 Wend., 79; People vs. Judges of Duchess G. P., 2 Wend., 65.8 ; Benson ex parte, %Cow., 363; Chase vs. Blackstone Canal., 10 Pick., 189; Morse Petitioner, 18 Ib., 443. •
    When an inferior court refuses to act, it may be put in motion by a mandamus, but cannot be compelled to act in a particular manner, nor render a particular judgment. Williamson, c.x parte, 8 Ark., 424; Mutt, ex parte., 14 Ark., 368.
   Gregg, J.

In September, 1870, the appellee presented his petition to the Circuit Court of Union county, for a mandamus against appellant, to compel said county court to levy a larger amount of special school taxes, for district thirteen, in said county, than had been adjudged by the court, because, .as he alleged, there were 397 youths in said district capable of attending school, and that but four schools had been provided ; whereas, there should be ten, and a sufficient amount of taxes to support that number. He alleged that, according to law, he called a meeting of the legal voters of the district, on the 13th of August, 1870, for the purpose of voting a tax to carry on a three month’s school, or one, during such longer time, as the electors might determine.

That the petitioner, as trustee, reported to said meeting of ■electors, that ten schools were necessary in that district, and it would require a special tax of one thousand dollars to carry on such schools, but the meeting refused to adopt his estimate of the number of schools necessary, or the amount of tax proper to be levied, and they voted for three schools and a special tax of three hundred dollars.

And to increase the number of schools and amount of taxes, he called another meeting on the 2d of September, and laid before the meeting of the same, estimates as before, but the-meeting refused to levy but $150 00 additional tax, and to provide for but one more school. That he reported the action of the electors of said district to the county court, and represented to them that a special tax of $450 00 was wholly insufficient to carry out the spirit and intent of the school law, and moved the county court to levy an additional sum of' $550 00, making in all $1000 00, but the county court levied the sum of $450 00 only, and refused to levy $1000 00; and he prays that a peremptory order be made, requiring -the county court to levy $1000 00 of special tax, and, in case of' refusal, that they be severally attached for “a contempt of the; .court and the law.”

The county court appeared and filed a demurrer to the petition. The circuit court overruled the demurrer, and peremptorily ordered that the county court levy an additional-sum of $550 00.

On application, the court set aside this order, and allowed the county court to file an answer. They responded, that at the electors’ meeting aforesaid, the appellee reported the children and youths within said district to be 358, and that said school district had $330 00 on hand, and that it was entitled to $518 44 from the State fund, which is shown by reference-to the report. That the electors had voted an additional sum of $450 00, as special tax on said district, and established two-schools for white pupils, and.two schools for colored pupils,, and that said sum of $1298 44, was sufficient to support said four schools, etc.; and they refer to the proceedings, and the report of the chairman, to show that said number of schools, and said amount is sufficient. They also refer to a petition, signed by seventy, and alleged to be a majority of the voters of the district, protesting against more than four schools, and more than $450 00 special tax.

And they again protest .that the electors have the right to-fix the number and locate the schools, and determine how much tax shall be'levied, and if the trustee controverts the-amounts so fixed upon, it must be determined by the judgment of the county court, and such judgment, if erroneous,. must be readied, by appeal. The answer was duly sworn to and filed.

Whereupon, the court adjudged the answer insufficient, and that a peremptory mandamus issue; from which judgment the county court appealed to this court. There are two principal questions presented in this case:

First, Does the record show any error in the ley}’ of this tax by the county court?

Second, If the county court did commit error, could that error be corrected by mandamus ?

Section 13, p. 168, Acts of 1868, provides that each county shall be divided into school districts. Section 16 provides that new districts may be» formed, or the boundaries of districts changed by the county court, with the consent .of the circuit superintendent. Section 19, declares that all persons, qualified to vote for county and State officers, shall be electors for the school district wherein they reside. Section 20, that the electors of any school district shall, when assembled, in school district meeting, hare power, by a majority of the votes cast, * * to designate a site for a school house, and determine the time for which a school may be taught, more than three months in the year; to determine what amount of money shall be raised by tax, on the property of the district, sufficient, with the public school' revenues apportioned to the district, to defray the-expenses of a school for three months, or for any greater length of time they made decide to have a school.

Section 21, provides that the county court shall levy all taxes voted for school purposes at the district school meetings. Sections 27 and 28, prescribe the general .duties and powers of the trustee; that he shall have charge of the school house, school property, etc., and shall purchase or build, etc., as way be directed by a majority of the voters.

By Section 31, be is required to submit a report to lhe, electors, at the school meetings, witli estimate of the cost of a school etc. By Section 32, if the district, at their annual school meeting, fail to provide for “a school to be taught at least three months during that year/' etc., the trustee “shall immediately forward to the county clerk, an estimate of the necessary expenses for a school of three months, after deducting the probable amount of the school fund revenues to be apportioned to the district, and a tax shall be levied,” etc.

By Section 40, it is made the duty of the trustee to report to the county clerk the amount voted as a special school tax, and that must be attested by the chairman of the meeting.

From these various provisions, it seems strange that any doubt should exist as to the proper authority to assess the special district school tax. In all the Various provisions, the electors are alone announced as the authority to fix the amount of said tax, and the only limit upon them is, that contained in the law, that they shall not levy a less sum than is sufficient to cany on a school for three months, in each scholastic year, and there is not a single provision of law giving the trustee any more authority or power, in assessing the amount of tax to be collected, than is possessed by any other voter. It is made Iris duty to call the meeting and report certain facts and estimates to the electors, and to keep a record of their proceedings, but so far as dictating the amount of the levy is concerned, he has no voice over any other elector. It is true, if when a meeting is not attended by five (a sufficient number to hold an election) he then lays his estimates before the county court for their action and, upon which, the law requires the court to make the levy. And to every one who will read the various provisions of this law, it is not necessary to say that the law contemplated but one school house and school to each district, only, wherein it provides that separate schools shall be taught for whites and blacks, aud that in case there should bo both white and colored children in the same district, would, require separate schools. It is made the duty of the county court and circuit superintendent, to so lay off the district, that all may liave an opportunity of attending school.

Then, upon the facts, as presented, the County Court cortainly did not' err in any ruling they made against the appellee.

And, upon the other proposition, it' error had been committed by the County Court, in making the levy, no question is better settled in this court than this, that you cannot control the discretion or judgment of a court of competent jurisdiction by mandamus. A superior court, in proper cases, will issue a mandamus against an inferior tribunal, if such court refuses to take any action in a matter duly presented and properly cognizable before it; but when a court takes cognizance of such matter and passes its judgment upon it, it matters not how erroneous, such error cannot be corrected by mandamus.

In the case before us, the County Court was the proper tribunal to levy the tax — they considered the matter and made the levy; if that levy was not sufficient, that was the tribunal where facts should have been presented to convince their judgment as to the amount necessary to comply with the law. If they would not hear the facts, or, hearing, found against them, their judgment might have been corrected by appeal. This has been so repeatedly held that.it can but be a matter of surprise to find a Circuit Court ruling differently. See Young vs. Miller, 1 Ark., 11; Ib., 21; Ib., 121; Green & Co. vs. Pulaski Co., 3 Ark., 427; Trapnall, ex parte, 6 Ark., 9; Ib., 437; Williamson, 8 Ark., 424; Brem vs. Arkansas County, 9 Ark., 240; Cornwall vs. Crawford County, 11 Ark., 684; Marr, ex parte, 12 Ark., 84; Ib., 101; Hutt, ex parte, 4 Ark., 368; Johnson, ex parte, 25 Ark., 614; and some later cases.

The judgment of the Circuit Court is reversed and the cause remanded with instructions to dismiss the application for a mandamus at the costs of the appellee.-


source: Caselaw Access Project

author: Gregg, J.

license: Public Domain

text:
    OWEN v. REED et al.
    Equitable Liiíss — When will not pass by assignment. — Liens, not reserved "by contract or declared by a court of equity,- will not pass by the more assignment of a note in the ordinary course of business.

      Trustees — Powers of, over trust estate, etc. — -Persons defiling with a trustee, on the faith of the trust estate., are bound at their peril to tnlce notice of the scope and extent of the trustee’s power, and the trustee cannot bind or .incumber, by contract or otherwiso, the trust estate, except only so far as the power may be conferred or given by the instrument creating the trust.
    Powers oe — IIow construed. — The powers of a trustee are strictly construed and np presumptions ar.e indulged in their favor, and in ease of necessity for extended powers, the trustee must act under the direction and orders of a court of competent jurisdiction.
    APPEAL FROM ClirCOT CIRCUIT COURT.
    Hon. Henry Ik Morse, Circuit Judge.

      Garland & Nash, for Appellant.
    Tlie charges made upon the estate by the will, made the estate equitable assets to be administered in a court of equity. Silk vs. Prime, 2 Ijead. Cases Eq., part 1, top page 212, et seq. and notes; Note, Booth vs. Blundell (top page, 213); Merival, 232; S. G 19. .
    The-estate being kept together for a certain time to be worked for the benefit of all, charges it with equal burdens, upon the principle of contribution. Adams’ Eq., 207; 1 Story Eq., 64; and so far as the absolute legacies are postponed, it matters not, as they are vested at once, but only a time for payment is given or named. Quarles vs. Watkins, 23 Ark., 179. And it is but equity for those benefited, and having these legacies, to contribute to pay expenses as the will provides. Eyre vs. Countess of Shaftsburg, 2 Lead. Cases, part 2, p. 166-8, et seq.; Alexander vs. Waller, 6 Bush. (Ky.), 332-445..

      Bell & Carlton and D. H. Reynolds, for Appellees.
    Since the establishment of trusts, it is well settled law that’ trustees hold only for the benefit of the cestui que trust, and the legal estate should not be subjected to any of their incumbrances. Hill on Trustees, p. 379; Lomax’s Dig., vol. 1, p. 299; First P. Wm.s., 278; 2 P. Wins., 318; Noel vs. Irvon, 2 Freem., 43.
    Nor can the legal estate, or any other estate held only in trust, be affected in equity by the judgment, or other debts or engagements, or by the bankruptcy or insolvency of the trustees. Hill on Trustees, p. 379; Fllioit vs. Armstrong, 2 Black., 208; Bostick vs. Keizer, 4 J. J. Marsh, 599. It is a well settled rule, that trustees for infants cannot break in upon the capital of the trust fund. Hill on Trustees, p. 573. The beneficiaries in these settlements are usually in a helpless situation, either from infancy or coverture, and it is indispensiblo to the safety of the estate to hold the trustees to a strict accountability. Hester et al. vs. Wilkinson et al., 6 Humph., 219. See also the eases of Mundy vs. Vaioter et als., 3 Oral., 518; Carter et als. vs. Rolland et vx., 11 ITumph., p. 333; Chaplin vs. Moore, 7 Mon. R., p. 170. .
   Gregg, J.

On the 9th of November, 1869, the appellant, on behalf of himself and other creditors, filed his bill in the Chicot Circuit Court, in which he alleged that on the 8th of July, 1859, George Need, the husband of said Susan, and the father of George Need, Jr., and two other minors, defendants in this suit, departed this life, leaving a will, duly executed, in which he had provided that his estate, in said county, should remain in the possession and under the control of said Susan, and that she should receive the rents and profits thereof, for the support of herself and family and the payment of certain debts and bequests; that the same should be held by her, as trustee, without any claim of dower and without administration, until said George, Jr., should arrive at twenty-on e years of age, when, jointly with his mother, lie was to have control and possession of said property. The lands, on which the family were to reside, during the life of said Susan, were to pass to him, and when his brothers and sisters should arrive at majority, George was to pay each of them $10,000, which Avas to be a charge upon the lands; that the legacies and annuities provided for, in the will, for some more -distant relations, were not to be 'a charge upou the body of the •estate, but upon the net profits, and if the proceeds were not sufficient to pay'all, the expenses*of the family were to be first paid, and in no event was any of the property to be sold or divided before • George arrived of age. The estate was large and very valuable. - That no letters, testamentary or of administration, were ever taken out, but that the estate has been occupied and'possossed by the said Susan, and it is iioav in the joint possession of her and the said George. That on the 1st day of January, 1866, the said Susan Need was indebted to George Connelly & Co., of New Orleans, in the sum of fifteen thousand dollars, for supplies furnished and moneys advanced her, necessary to support the family, and •carry on the plantation in the cultivation of cotton, etc., and being so indebted, she, on the 8th day of February, 1866, executed her three promissory notes for the sum of five thousand dollars each, due respectively at one, two and three years, and that said firm indorsed said notes to the plaintiff, and that the plaintiff had recovered judgment on one of them, which Avas unsatisfied and that the other notes Avere wholly unpaid.

The said-Susan was indebted to Newman & Buckingham in the sum of $1,200, and to Dean, Adams & Gaff* $500, and to others unknoAvn, who are offered the privilege of joining in this suit. That the defendants have enjoyed the profits of the estate up to this time, and that the estate is liable to them, etc. And he prayed that an account be taken and the said Susan and George be decreed to pay said plaintiff* the amount due and, in default thereof, that the estate be held liable and the lands sold to satisfy such claims, and for general relief.

At the October term, 1870, the defendant, Gporgo Need, ■filed a demurrer. The minors, by tlieir guardian, answered, and tbe said Susan also filed an answer, in which she admitted that her husband died at the time alleged and that he left a large estate; that he willed as stated, and that she, as trustee, has held the same for the purposes named' in the will, fciho admitted that she owed the parties nanied in the bill for supplies furnished her, and that she executed her notes as stated, which were accepted as a full satisfaction of all she owed them, and she averred that a large part of said notes was for an usurious interest, and she insists that they were void and that the plaintiff knew the consideration upon which they were given. She admitted the judgment and that the notes were not paid, and averred that the indebtedness was her individual liability, and that the estate is in no way responsible therefor.

And she inserted a demurrer clause in her answer and insisted that the plaintiff’s.remedy was complete at law; that tlTé hill showed no equity on its face, etc.

John Connelly,, of the firm of George'Connelly & Co., appeared and, by order, was made a defendant, and filed an answer in which he attempted to set up cross matter against the complainant, hut he did not call upon complainant or any one eLso to. respond to his allegations of interest in the proceeds of the suit, nor did he show any equities that entitled him to intermeddle in such proceedings, and the court-should 71 ot have' permitted his pleadings to incumber the record in the cause. At the March term, 1870', the demurrer of George Reed was heard and sustained. The bill was dismissed for want of equity, and the complainant appealed to tbis court.

So far as shown from this hill, the appellant is the holder of negotiable notes, assigned to him in the usual course of business, and if it were true, as he alleged, that George Connelly & Co. had a lien upon the estate of George Reed, deceased, for supplies furnished to support the family and the plantation, would such lien enure to the benefit of the appellant ? There is no pretense that they had or could have claimed anything more than an implied or equitable lien, and as no lien had been reserved by contract, or declared by a court of equity, it could not have passed to him by a mere assignment of the notes in the ordinary course of business.

The rights of George Connelly & Co. must depend upon their agreement with Susan Reed, and upon her power as trustee under the will of George Reed, deceased.

It is not claimed that she individually had any right, or ownership, in the estate, which authorized her to incumber or transfer the same, but whatever of power or authority she had, was conferred upon her as trustee, by the will of the deceased.

The will is not difficult to understand. It, in substance, provided that his wife (said Susan) should for a time hold his entire estate in trust for his children and the payment of certain debts, legacies and annuities, and then it is to be partitioned in a specified manner among his children. The will authorized her to use the rents and profits for the maintenance and education of the children and the support of the family, payment of certain legacies, etc., and that the entire income maybe used for such purposes; but it is expressly provided that the. charges arc against the profits and not against the body of the estate, and that the whole of the property shall bo kept together for a home for the family. .

This will was duly recorded, and the defendant, Susan, acting under it, was notice altogether sufficient to George Connelly & Co., or any one else who dealt with her, on the faitlp of the trust estate, and they were bound at their peril to take notice of the scope and extent of her power, and, as above stated, she had no power, onty such as was given her by the will; and it is a well understood rule that all trustees are heklto a strict account, and no presumptions of power are indulged in their favor; it must be directly expressed or fully implied in the grant, and especially so where infants or others who arc helpless, are concerned; and, even in cases of necessity for extended powers, tlie trustee must act under the direction and orders of a court of competent jurisdiction, and cannot, at their own discretion, make inroads upon the.body of a trust estate.

. Mr. Hill, in his valuable work on Trustees (Marg., p. 399) says : “It is a settled rule of the court, that trustees for infants ought never, of their, own authority, to break in upon the capital of the trust fund, even for the advancement of the infant, and still less merely for his maintenance.

Therefore, if the instrument, the trust, do not authorize an application of the corpus of the fund in advancement and maintenance, however advantageous to the infant to make such payments, this can be done only with safety under the sanction of the court, ” etc.

In the case of Hester et al. vs. Wilkinson et al., 6. Hump. 219, the court said: “But courts of chancery never permit true-tees, of their own authority, to break in upon the capital of the trust estate, and to sanction the expenditure, after it has been made, would give a license to trustees that would endanger estates committed to them; the beneficiaries * * * * are usually in a helpless situation * * * * and it is indispensable to the safety of the estate, to hold the trustee to a strict accountability,” etc. Munday et al. vs. Vawter et al., 3. Grafton 518. Enlyn vs. Enlyn, 2, P. Wm. 669. Ivey vs. Gilbert, Ib. 13.

A trustee, if so disposed, is not allowed by individual acts or responsibilities to consume or burden a trust estate. Bostick vs. Keizer, 4. J. J. Mar. 600. Chaplin vs. Moore, 7. Mon. 171. Judgments against trustees, as individuals, cannot aficet the trust property. Hill on Trustees, 269. (Marg. p.) Ib. 367.

To apply the principles announced in these cases to the one before us, there seems to be no serious difficulty in coming to a conclusion. There was not only an absence of authority to expend the body of Need’s estate, but the -will expressly declares that only the rents and profits should be used, and these provisions appeared upon the public record of the county and constituted facts of which creditors must be presumed.to have taken notice, and if they saw lit to credit her as trustee under the will, could, under no circumstances, have looked beyond the rents and profits for their pay.

There is no allegation in the bill that credit was given to her as trustee, or that she was trusted on the credit of the estate or of the rents and profits of the estate, or that the whole of the indebtedness was not an individual liability of hers. There is an interrogatory appended to the bill, asking •whether all or any part of the indebtedness was contracted by the said George Reed, deceased, in his lifetime, but she was under no obligation to notice such question, when there was no allegation in the bill to .support such an interrogatory. The whole tenor and scope of the bill, in stating the contract, tends to charge her with an individual liability. And in February, 1866, George Connelly & Co., closed up all accounts and took her individual promissory notes for the full amount, and these notes, as other commercial paper, in the market, passed into the hands of the complainant, and ’we find but a single allegation in his bill, that conduces to show that any responsibility, under any circumstance, should attach upon Reed’s estate, and that was that the supplies furnished to Busan Reed were for the use of the plantation and the family. Rut if she and that firm had expressly agreed that the estate should be liable to them for the supplies, according to the authorities referred to, the lands could not be held subject to the payment of such demand, because she had no authority to pledge the estate in that, way, and if it had been required to the use of the body of the estate, as a necessity to the subsistence and support of the family, etc., to have made ordinary creditors secure, an order of a competent court should have been had, declaring such necessity and authorizing such use. But as stated, the bill alleges that she was credited with the supplies, her individual notes were taken for the amounts, and by assignment, in the usual course of business, they came into the. hands of the complainant, and in that way, we are of opinion he acquired no rights he can enforce against the lands of the estate of George Reed, deceased, and that the court below did not err in sustaining the demurrer to the hill.

The decree of that court is in all things affirmed.


author: Bennett, J. Gregg, J.

text:
    CLAYTON v. BERRY, Auditor.
    .Construction oe Statutes — Specific appropriations. — "When the legislature lias directed what amount shall be sot apart for certain speoiiio expenditures or for the payment of certain debts, all executive and ministerial officers are bound to obey its directions.
    Commissioner oe Claims — Nature of findings. — The findings of the commissioner of claims, appointed under act, approved, March 28, 1871, are not judgments against the State, but are only “in the nature of a judgment,” which the commissioner shall make out and deliver to the claimant, who may file them with the Auditor of State, who shall draw his warrant on the treasurer, payable out of tlio moneys appropriated for that purpose.

      Auditor — Not to issue'.warrant when appropriation, exhausted. — Section 18 of Chap. 2, Gould’s Digest, forbidding- the Auditor from issuing a warrant when there is no appropriation to draw against, or when an appropriation has been exhausted, is not in conflict with the Constitution of 1868, hut is' in full force.
    PETITION ROB MANDAMUS.

      W. W. Wilxkirc, A. II. Garland, li. A. Howard, JB. C. Coblentz, JE. IF. Gantt, and T. D. TF. Youley, for Petitioner.

      Montgomery, Attorney General, for Respondent.
   Bennett, J.

On the 4th day of December, 1871, a petition was filed in the office of the clerk of this court, .by Reuben Clayton, alleging that, on the 29th day of November 1871, he recovered a judgment, based upon militia claims, against the State for one hundred and four dollars, before Samuel W. Mallory, a commissioner, appointed under an act of the General.Assembly, approved March 28,1871.

Said petition further alleging that on the 4th day of December 1871, he presented a certified copy of said judgment to J. It. Berry, Auditor of State, and requested said Auditor to issue a warrant on the treasury for the amount of the same, but the Auditor refused to issue said warrant; ho therefore prays for a writ of mandamus, etc.

The Auditor, on the same day, waiving notice, enters his appearance and files his response to the petition, stating :

First, That the appropriation made, by the act to provide for the payment of prdperty taken for the use of the militia, etc., has been expended,’and there is no other appropriation out of which the claim can be paid or against which a warrant can issue.

Second, That the petitioner has not' presented to him any judgment against the State, whereby he, as Auditor, is obliged by any law to issue warrants upon.

To which response petitioner files a demurrer, saying the response does not show sufficient matter, in maimer and foi’m, to preclude him from having the writ awarded as prayed.

Shall the demurrer be sustained ?

It must be conceded that the people, in framing the Constitution, committed to the legislature, the law-making power of the State. This is the fundamental principle in the political organization of all American States. The legislative power is the authority, under the Constitution, to make laws and to alter and repeal them. What laws shall be enacted must depend'upon'legislative wisdom, discretion and confidence.

Under our Constitution the legislature shall also provide for raising revenue' sufficient to pay the expenses and the indebtedness of the State. It has the control of these public moneys, after they are collected, and provides for disposing of them for the public good and for public purposes. What is for the public good, and what are public purposes, are questions which it must decide upon its own judgment; but when it has decided and directed what amount shall be set .apart for certain specific expenditures, or for the payment of certain debts, all executive and ministerial officers are bound to obey its direction.

Article X, Sec. 8, of the Constitution of the State says: “No money shall be paid out of the treasury until the same shall have been appropriated by law.” Webster has defined appropriation to be, “the act of setting apart or assigning to a particular use.” Chitty s'ays : “ It is the application of the payment of a sum of money by a debtor to a creditor to one of several debts, which are duo from the former to the latter.” Law, in the sense in which the word is here employed, is the rule of civil conduct, or statute, which the legislative will has prescribed.

The expression, “ appropriated by law,” means the act of the legislature setting apart, or assigning to a particular use, a certain sum of money to be used in the payment of debts or dues from the State to its creditors. Art. V. Sec. 20, of the Constitution also says,. “No portion of the public funds or property shall ever be appropriated by virtue of any resolution. No appropriation shall be made except by a bill duly passed for that purpose.”'

The people, in their sovereign capacity, have said that no. money shall be paid out of the treasury, until tlieir representatives, by a solemn enactment, have assigned and set apart the public revenue of the State for specific purposes.

Counsel insist that there has been such an appropriation made to pay militia claims. True, one hundred and twenty-five thousand dollars were set aside for that purpose, but the auditor says it has been taken up by claims, heretofore allowed, and there is no fund upon which to draw a warrant. ’ Still counsel urge that it was the intention of the law-making power to appropriate enough money to pay all the claims which might have been assessed against the State for militia purposes. Where such an intention can he drawn from, we are unable to discern. Lord Coke says: “If any section of a law ho intricate, obscure or doubtful, the proper mode of dis^ covering its true meaning is by comparing it with the other sections,, and finding out the sense of one clause by the words or obvious meaning of another.” Co. Lit. 381.

' Then it is a rule of construction, that the whole is to be examined with a view of arriving at the true intention of such part. In interpreting clauses, we must presume words have been employed in their natural and ordinary meaning. Chief Justice Marshall, in. the case of Gibbons vs. Ogden, 9. Wheat. 188, says: “The framers of the constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have understood what they meant.” Story on Constitution, Sec. 453, says: “ The true sense in which words are used in a statute, is to be ascertained, generally, by taking them in their ordinary and popular signification, or, if they be terms of art, in their technical signification.”

This is but saying that no forced or unnatural construction is to be put upon their language, and it seems so obvious -a truism, that one expects to see it universally accepted without question.

The statute under consideration nowhere, from the title to the conclusion, by implication or otherwise, makes any allusion to setting apart or assigning any money to carry out its provisions, except in Sees. 7 and 8, which read as follows:

“ Sec. 7. The Commissioner shall receive, in compensation of his services, a salary of twenty-five hundred dollars out of money hereby appropriated, to be paid on the warrant of the Auditor, in like manner as the salaries of other State officers are paid. The necessary and contingent expenses of said office shall be certified by the Commissioner to the auditor of public accounts, who shall draw his warrant upon the Treasurer of State therefor.”

“Sec. 8. That the sum of one hundred and twenty-five thousand dollars be and the same is hereby appropriated for the payment of such claims as may be allowed by said Commissioner, and the salary and -contingent expenses of said Commissioner.”

The above sections are free from any technical words, and are clothed in language that is easy to be understood, clearly expressing the intention of the legislature. Why an attempt has been made, by interested, subtly and ingenious argument, to induce this court to force from this statute a meaning its framers never held, is beyond comprehension. But it is said that the finding of the Commissioner, under the act, is a judgment of a court- of law against the State and, as such, the Auditor must draw his warrant for the amount on the treasury. The proposition is founded upon a statute in the “ Chapters of the Digest,” approved April 12,1869, Sec. 4 of which is as follows : “ The Auditor of State shall draw his warrant on the treasury for the amount of any judgment obtained against the State, and the same shall be paid out of any money in the treasury not otherwise appropriated by law.”

While this enactment might perhaps be successfully attacked upon constitutional grounds, we do not deem it necessary, for t-he.purpose of the determination of this cause, to enter into this question, that point not being directly raised, hut will proceed upon the assumption that the above section is valid law.

Was the certified copy of the finding of the Commissioner, appointed under the provisions of the act of the legislature, approved March 28, 1871,' as presented to the Auditor of the State, on the 4th day of December, 1871, a judgment obtained against the State?

Blackstone, in the 3. V'ol. of his Commentaries, 395, says: Judgments are the sentences of the law, pronounced by the court, upon matters contained in the record of an action before it. Judgments at law are final proceedings in an action at law, by which the court, applies the law to the particular case prosecuted before it.”

“A court, as understood in its full modern signification, consists of at least three constituent parts: the actus, reus and judex. The actus, or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, to determine the law arising' upon the fact and, if any injury appears to have-been done, to ascertain and, by its officers, to apply the remedy.” 3. Bl. Comm. 25.

It is claimed, that the act appointing the Commissioner and defining his duties does all this; that the claimant is the plaintiff; the State the defendant, and the Commissioner the judicial power. •

"While the claimant may be, with propriety, considered as a plaintiff, we can see no such propriety in saying the State is a defendant, as that word is used and understood as a constituent part of a court. Under the statute, no notice is provided to the State; by or through any of its officers, that this or any of the numerous claims, that have been allowed, were ■ presented for adjudication — nor does it, in any way, provide the manner in which the interests or the rights of the State can be protected, excepting through the Commissioner. No-chance.or opportunity is given the Attorney General, the law officer of the State, or the Auditor, the custodian of its vouchers, or the Treasurer, the receiver of its public funds, to appear before this tribunal to inquire into the justness, the validity or foundation of any claim or demand made against it. Were wo'to hold that the legislature intended -to create a new judicial court, whereby the defendant, the most, or at least an equally interested constituent part of it, was to be balled upon to make satisfaction, without notice, and'to be judged without a hearing, it would be rolling the spirit of constitutional liberty, back behind the days of the Star Chamber, the members of which were the sole judges of the law, the fact and the penalty. In that infamous tribunal, the defendant had process served upon him, and could appear and make a statement of his case.

Tlie proceedings and finding of the Commissioner, under this enactment, has been likened to the Court of Claims created by the act of Congress.

There can be no similarity whatever. The Act'of Congress, creating that court, expressly provided that the 'United States should be represented before it by a solicitor and assistant’ solicitor, appointed for the government, by the same authority that appointed the judges. And the United States, as well as the claimant, are allowed the right of appeal. See original Act, February 24, 1855, 10 Statutes at Large, 12, and amendatory Act of March 3, 1863.

Then again, as tothe judicial power of the commissioner. A portion of section one -of the statute says : “The commissioner * * * shall give bond to the State in the sum of ten thousand dollars, with good and sufficient security, conditioned that he will faithfully and honestly discharge his duty.”

Where can a statute, under any written constitution, be found that requires a judicial officer, strictly speaking, to give a bond for th e faithful and honest discharge of duty? The-statement of such a proposition bears its absurdity upon its face, and needs no argument to convince a thinking mind that the law making power of the State did not intend that the commissioner should be clothed with judicial power to that extent, as would render his decision as res adjudicata, and from which, as far as the State is concerned, there could be ho appeal. Thus placing in one-man’s, hands the unbridled power to unlock the coffers of the State, the receptacle of the people’s money, and with an unstinted grasp take therefrom thousands of dollars or evidences of indebtedness, only so that these findings be based upon demands, arising under the acts of the militia, with no intermediate forum or officer to check his progress. We will do the legislative department no such injustice by such a ruling. These findings are only, as the statute says they are, “in the nature of a judgment, which the commissioner shall make and deliver to the claimant, who may file them with the Auditor of State, who shall draw warrants upon the Treasurer of the State, payable out of the moneys hereinafter appropriated for that purpose.”

The moneys “hereinafter appropriated ” are the one hundred and twenty-five thousand dollars which the Auditor says has been expended; but counsel, for claimant, nevertheless, say, it is the. duty of the Auditor to draw his warrant on the Treasurer for the amount so found. That it is not the province of this officer to know or say when the appropriation has been exhausted.

Section 18, Chapter 2, Gould’s Digest says: “No such warrant shall be drawn by the Auditor or paid by the Treasurer, unless the money has been previously appropriated by law, nor shall the amount drawn for a period, under one head, ever exceed the amount appropriated by law for that purpose.”

This statute has never been repealed, nor does it conflict with any of the provisions of the Constitution of 1868, but is in full -force, and is express in terms, forbiding the Auditor from issuing a warrant, when there is no appropriation to draw against, or when an appropriation has been exhausted. Under any view of the case, if the-facts, as stated by the Auditor in his response, are true, can we hold that it is not sufficient, in law, to prohibit the issuance of a writ of mandamus.

Demurrer overruled.

Gregg, J.

-I fully concur with the court, except as to the original jurisdiction of this court.


author:
Harrison, J.
      McClure, C. J.,

text:
    RICE v. SHOOK et al.
    States in Bebellion — Status of inhabitants. — During the late civil war, tlie status of the inhabitants of the insurrectionary States, outside of the territory therein held by the United- States, was that of public enemies of the government.
    IjAV oe Nations — Intercourse interdicted. — During war, all trade and intercourse between the citizens or subjects of one of the belligerent States or jjowers, with those of the other, are interdicted.

      Contracts — Against public policy invalid. — All contracts made with a public enemy, without the license or permission of the government, are, upon the grounds of public policy, invalid and void.

      'Courts — Of what, will take judicial notice.- — Oourts will take judicial notice of the fact that certain localities or portions of a State, in insurrection, were in the possession and under the custody of the forces of the United States, hut will not infer therefrom, that individuals-resided there, or in the terri- ■ tory over which the government had re-established its authority, as against the averments of a pica that they were public enemies.
    APPEAL PROM INDEPENDENCE CIRCUIT COURT.
    Hon. Elisha Ranter, Circuit Judge.

      Byers & Cox, Rice & Benjamin, for Appellant!*.

      Watkins & Bose, for Appellee.
    During tlie prevalence of a war, the citizens of the hostile States are incapable of entering into a valid contract with each other. 7 Peters, 586; Story on Prom. Notes, Sections 94 and 95.
    The civil Avar betAvecn the United States, and the seceding States, involved the usual cousequences and rights of international Avars. The Sarah Star, Bl. Pr. Cas., 69..
    The war continued, and AAas not ended till August 20th, 1866. See opinion by Casey, C. J., TJ. 8. Ct. claims, Grossmayer vs. TJ. S. Dee'r. T. 1868; Presidents Proc., Aug. 20, 1866.
   Harrison, J.

This was an action upon a promissory note for $400, executed to the appellant by the appellees, and dated at Little Rock, Februaiy 7th, 1865. .

The only question in the case is raised.by a demurrer to the defendants’ plea, which alleges that the note was executed during the late civil war, and that, at the time, the plaintiff was a citizen of the State of Minnesota, and the defendants were citizens of the State of Arkansas, adhering to and aiding the rebellion,. and public enemies of the United States, and that the execution of the same was not by any license or permission of the United States.

That, during the war, the status of the inhabitants of the insurrectionary States, outside of the territory therein, held by the United States forces, was that of public enemies of the .government, was conclusively settled by the Supreme Court of the United States, in the Prize cases, 2 Black, 635, and the case of Mrs. Alexander’s cotton; 2 Wal., 404; and see also, Phillips vs. Match, 1 Dill., C. C. Pep. 571; and it is a principle of public law, recognized by all nations, that, during war, all trade and intercourse between the citizens or subjects of one of the belligerent States or powers, with those of the other, are interdicted, except by the license or permission of the government, or in the mere exercise of the rights of humanity. Consequently, all contracts made with a public enemy, without the license or permission of the government (no contract can arise from the mere exercise of the offices of humanity), are, upon the ground of public policy, invalid and void.

Although the court will judicially notice that, at the date of the note, Little Rock and a large part of the State were and had been, for some considerable time previously, in possession of the forces of the United States, yet no such inference, as that the defendants resided there or in the territory over which the government had re-established its authority, and could not longer be regarded, as enemies, can be drawn therefrom, in opposition to the direct averment of the plea that they were public enemies. The plea was good and the demurrer to it -was, therefore, properly overruled. .Judgment affirmed.

McClure, C. J.,

dissenting. — The case of Hatch vs. Phillips, (1 Pill. C. C. P., 571), is cited by the majority in support of their position. The effect of the decision in Hatch vs. Phillips is, that a state of war existed, in Texas, from the date of the President’s proclamation (August 16, 1861,) until the 20th of August 1866, at which time the President declared the rebellion at an end in the State of Texas. I presume the object in citing this case was to indirectly assert the fact, that the rebellion in Arkansas did not close until April 2, 1866, and that a state of war continued in'Arkansas from August 16, 1861, to that time, such as rendered all contracts between citizens of the United States and the State .of' Arkansas absolutely void. From all conclusions of this kind, I most respectfully dissent.

It was held in the case of Mrs. Alexander’s cotton (2 Wal 419), that “ all the people of each State and district, in insurrection against the United States, must be regarded as enemies, until by the action of the legislature and the executive, or otherwise, that relation is thoroughly and permanently changed.” This principle of law is correctly stated, and I do not pretend to refute it. The point of disagreement between the majority of the court and myself is, that they recognize the 2d of April, 1866, as the day on which the restrictions on trade were removed, while I fix it at another and different'date. As will .be seen by the language of Chief Justice Chase, in the case of Mrs. Alexander’s cotton, trade with persons in the insurrectionary districts, by persons claiming or having a residence or citizenship, outside of such an insurrectionary district, is interdicted, not until the close of the war or insurrection, but “ until the legislature and the executive otherwise direct.” The general law of nations, in matters of this kind, iu relation to trade with a public enemy, during a period of war, has no application whatever to the condition of affairs existing between the United States and the States in rebellion, save, in those instances, where there was an absence of positive law, or orders made by an officer authorized by law to declare what relations should exist between the citizens >of the United States and the citizens of the insurrectionary States.

I insist, that not only Congress, but the Executive of the United States, in the manner and through officers designated by the law and war-making power of the United States, changed the general rule, that during war all trade by citizens of other States, with the citizens in -rebellion, was suspended and inhibited until the close of the war.

On the 16th of August, 1861, the President of the United States, by proclamation, interdicted all commercial intercourse between the loyal States of the United States and the disloyal States. An act of July 13, 1861, authorized the President to make such a proclamation, and to license and permit commercial intercourse with any part of said State or section (in rebellion) with the inhabitants so declared to be in insurrection, and also, authorized the Secretary of the Treasury to appoint such officers, and make such regulation in relation to such trade as might be necessary. The Secretary of the Treasury, by virtue of said authority, divided the territory into districts. Under the second paragraph wo find that Arkansas, or that portion of it “ occupied by National troops operating from the North,” is placed within the limits of the first special agency, and that part of Arkansas, “ occupied by National troops operating from the South,” is placed within the limits of the fifth special agency.

The present Chief Justice of the United States, was, at the time these orders were made, Secretary of the Treasury, and in his instructions to the agents of the special districts thus created, he directs the agents as follows: “First, To allow within districts in insurrectionary States, when the authority of'the government is so completely re-established, in your judgment, sanctioned by that of the commanding General, as to -warrant it, and between such districts and loyal States, the'freest commercial intercourse, compatible with prevention of supplies to persons within rebel lines."

This order was issued long before the execution of the note sued on in this case, and clearly disclpses the policy of the government in relation to trade with persons in rebellion. The question now arises: Was the authority of the United States so completely re-established as that the “freest commercial intercourse,” between the parties to this suit, would result in “furnishing supplies to those persons in rebellion.” The majority of the court say, they will “judicially notice that, at the date of the note, Little Rock and a large part of the State were, and had been for some time previously, in possession of the -forces of the United States.” It seems to me, if they take judicial cognizance of such a fact, that the majority might have gone a step farther, and have taken judicial cognizance of th.e different acts of Congress, and orders made in pursuance thereof, by the officers therein designated. It is a matter of public notoriety that the federal forces took possession of the city of Little Rock, where the note sued on was executed and delivered, in September, 1863, and that a continuous possession has been held down to the present time, against persons claiming to be public enemies. Chief Justice Chase, while he was yet Secretary of the Treasury, in speaking of restrictions upon intercourse with those in rebellion said: “ There docs not seem to me to be so much danger in intercourse which does not involve the furnishing of supplies.” It appears, from one of the pleas of the appellees, that the consi deration for the note, sued on, was for legal services performed by the appellant toward the appellees, in getting them out of prison. How such service or such intercourse would endanger, or interfere with the prosecution of the war, waged by the United States against these persons in rebellion, I am at a loss to see. If this note is void, it was only so, because the giving of it was contrary to public policy, and when I say public policy, I mean the public policy of the government of the United States. The majority have said that they will take judicial cognizance of the fact, that Little Rock, and a considerable part of the State were, at the time of executing and delivering the note to the appellant, held and occupied by the national forces. Then, I ask, why not take cognizance of the fact, that the appellees were within the lines of the federal army and subject to federal- laws and authority, when this note was executed? It was held in the case of the United States vs. Hayward, 2 Gall., 485, that by the conquest and occupation of Castine by the British, that the'American citizens, residing there, were released from all allegiance to' the United' States government, so long as the place was held by English troops; but the moment the.authority of the United States was sufficient to afford protection to its citizens, that moment their allegiance was due to their government, and the citizen could no more claim to be a public enemy of the United States, than a citizen of Arkansas, who was in the late rebellion, could claim it to-morrow. While it may be conceded that the citizen of Arkansas, who was within the lines and protection of the army of insurgents, owed his allegiance to the party in power, it does not follow that such a person may come within the lines of the army of the United States and the protection of the government, and 'there plead his treason to defeat a legal and valid obligation.

In the early part of 1864, the loyal people of Arkansas assembled in convention at the city of Little Nock, where the note was executed and delivered that is now the subject of this suit, and formed a convention. Members of the legislature were elected, as well as the officers of the executive and judicial, departments. The government, thus formed, received the fostering care of the President of the United States, and was protected by federal bayonets from the time of its creation until July of 1868, at which time that government gave way to the present. The Xlllth Article of Amendment to the Constitution of the United States, was submitted to the legislature for ratification, and by it ratified in April of 1865. The authority and power of the United States government was as completely and firmly established at the city of Little Rock, where the note was given, and at the time it was given, as it is to-day. The mistake into which the majority of the court have fallen is, in accepting it as a fact, that the armies of the rebellion held possession of the State of Arkansas in February, 1865. It is a well known fact, and one of which judicial notice may be taken, that the courts were open for the transaction of judicial business, at this city, as early as September of 1864. The presumption arising from this fact is, that the courts were open by the permission, assent and consent of the Hnited States authorities. This point conceded, and another presumption follows, and it is, that the employment of counsel to defend and prosecute causes therein was’not interdicted. One of the pleas filed in this case discloses the fact, as has already been stated, that the consideration of the note was legal services performed by the appellant toward and for the appellees. The plea, however, does not disclose, whether the services were performed before the State courts or a military tribunal; nor does it make any difference where they were performed, if the Hnited States authorities allowed the appellant to appear as counsel for the appellees, for the toleration of the appearance would imply a consent on the part of the -government, that the appellees might employ him.

I have carefully examined the case of Phillips vs. Hatch, 1 Dill., 571, and an examination of the facts in that case discloses, that the contract was made within the lines of the insurgents, and not within the lines of the federal army, as was the. fact in this case. 'The seizure' of Mrs. Alexander’s cotton was justified upon the "ground that the seizure was made within the lines of the enemy. The brig Amy Warwick, was com demiied as a prize on the ground that the owners,«of the cargo, resided within the lines of the enemy. The vessel Hiawatha Efnd her cargo were condemned as a prize for similar reasons. The Crenshaw was returned to the claimants because they lived within the federal lines. In my research, I have been unable to find a singlo case where property was held as a prize capture, where the owner lived, within the federal lines; nor have I been able to find a single case, where a contract has been held void where it was executed within the federal lines, as was the fact in the case at bar. The allegation in the plea is, that the appellant was a citizen of the State of Minnesota, one of the States of the United States; that the appellees were citizens of the State of Arkansas, one of the Confederate States; that at the time of the execution and delivery of the note sued on, the United States was at war with the Confederate States; that the appellant adhered to and aided the United States, and that' the appellees adhered to and aided the Confederate States; that these acts constituted them public enemies, and that the appellees had neither the sanction or authority of the United States government to make the note, and that, by reason of the want of authority, and of being public enemies, the note is unlawful, .illegal, void, etc.

To this plea, the substance of which has been given, a demurrer was filed, -one clause of which is general. The question arising upon the record is, not whether the appellees have alleged that they were public enemies, as the majority seem to infer, but whether the facts stated in the plea constitute them public enemies. From the beginning to the end of the plea, there is no allegation that Little Rock, the place where the note was executed, was within the confederate lines. It is true, that Little Rock is in the State of Arkansas, and that the plea alleges that the .State of Arkansas adhered to the cause of the Confederate States, and that the appellees aided and adherecí to that cause; but what docs this establish? Nothing, absolutely nothing; for the court say, that they will take judicial cognizance of the fact, that Little Rock was within the federal lines at the time of the execution and delivery of the note. If the court will take cognizance of such a fact, why not take cognizance of the other fact, that neither the law of nations, reason nor common sense, recognize such a thing as a public enemy, except in a criminal sense, within tlie lines over which the government has reestablished. its authority, as it had at Little Rock? There is no answer to the proposition, unless it be assumed that the' State of Arkansas and its people were public enemies until April 2d, 1866, when the President, by proclamation, declared the insurrection at an end.

If such an assumption be indulged in, it follows that the action of the State of Arkansas, from the early part of 1864, until July of 1868, is a nullity. The XIII and XIV Amendments, to the Constitution of the United States, were submitted to a legislature selected and convened under the Constitution of 1864; under such circumstances, will any man, .but a member of the Rip Van Winkle school, say that the government of the United States did not recognize the existence of, and re-establishment of the power and authority of its own government ? My idea is, that the plea, if it can be sustained at all, should have stated that the appellees were ivithin the rebel lines at the time of the execution and delivery of the note. The general rule is, that courts will not give any greater force and effect to a pleading than the language used, will, by a fair construction, authorize. In short, nc> presumptions are indulged in favor of the pleader.

It was the duty of -the appellees to have stated, not that they were public enemies, but the facts and acts which constituted them public enemies. The facts and acts being-stated, it is the duty of tlie court to ascertain from such facts and acts, whether they, in fact, constituted the persons recited, public enemies of the United States. In this view, the majority of the court disagree witli me, and- contend that the assertion that the appellees “were public enemies,” at the time of making the note, is an allegation of a fact in the plea, and that a general demurrer admits such an assertion as a fact. ■ This, I think, is a grave error, as I understand the demurrer to admit, that the fact the appellant was a citizen of the United States, and of the State of Minnesota, and adhered to that cause, and that the appellees were citizens of tlie State of Arkansas, adhering to the confederate cause, did not constitute them public enemies. I regard the assertion, in the' plea, that the appellees were public enemies, not as the allegation of a fact, but rather as a conclusion of law, arising in the mind of the pleader from the facts he had previously stated.

Had the pleader alleged that the note was made within the lines of the rebel army, and this fact had been admitted by a demurrer, then I admit that the plea ought to have been sustained; but there is no such allegation. There is no allegation as to where the appellees resided at the time of making the note. The plea admits it was executed and delivered at the city of Little Rock. The presumption arising from this fact is, that the. appellees resided there; for in law, a man is presumed to be at the place the record last finds him. This presumption has to be overcome by a direct allegation, and in order to do this, in the case at bar, if the appellees desired to show they were public enemies, it was their duty to make such an allegation as would show, affirmatively, that their residence was within the confederate lines. An allegation that they wore citizens of the State of Arkansas, does not negative the fact that they were inside of the lines of the federal army which, the majority say they will take judicial notice, extended over the city of Little Rock, and a very considerable portion of the State. The majority of the court, however, in their desire to aid a man who flaunts his treason in their face as a reason why lie should not pay his debts, reverses the rule that a plea shall be construed most Strongly against him who pleads it, and say that their judicial cognizance of the fact that Little Rock was held and occupied by federal troops, from September, 1863, to the present hour, will not be .indulged in, against a direct averment of the p>lea, that these appellees wore public enemies, and that they will indulge the presumption, that the appellees were public enemies, because they say so, and that too, in the absence of any allegation from which such a conclusion can be drawn.

There is not a member of this court, nor a member of this bar, but knows, as a matter of public history, that the rebel -confined in prison at the city of Little Rock, in February of 1865, had the same right, and exercised it without any molestation on the part of the government of the United States, to employ counsel that a loyal man had. Yet, in the face of such knowledge, and the existence of such permission, the majority of the court have sustained a plea, the contents of which are known to be false, and contradicted by the public history of the times.

So'far as the appellant and appellees are concerned, I care no more for them than I do for that portion of the human family with which I have no acquaintance. It is the precedent established by the decision to which I object, and which has led to this dissent. It has been solemnly announced from this bench, as I understand .the opinion of the majority, that all transactions and contracts had and executed in the State •of Arkansas, by a loyal citizen on the one side, and a rebel on the other, prior to the 2d day of April, 1866, are void, unless special permission was given the rebel to make the contract. I do not believe this to be the law, yet it has been so declared from this bench.

I might go into an extended argument, and support it by the best law writers on international law, that the employment of counsel for the defense of a criminal, did not come under the head of “commercial intercourse,” when restricted to the facts in this case, but it is unnecessary, and I am content to let the matter rest on what has already been said.


text:
    McLERAN v. MORGAN et al.
    Pleading— Where style of court omitted in declaration. — -The ojuission to give flio style of the court in a declaration, is a formal defect, which may be cor- ■ rooted on motion, iu the court below, and where no objection is made there, it cannot be urged in this court.

      Declaration — When suit by firm, what not necessary. — In a suit by a firm, whore the style of the action is sufficiently stated, the names of all the paries and the firm name of the plaintiffs given, it is not necessary to repeat these in the body of the complaint, if they aro sufficiently referred to.
    APPEAL EROM PULASKI CIRCUIT COURT.
    IIon. John 'Whytock, Circuit Judge.

      Montgomery & Vi'oririck, for Appellant.

      First, The .Code does not authorize a recovery upon any statement of facts, which, before its adoption, did not authorize a recovery in some form of action. See Hill, for use of Ylintersmith vs. Barrett, etc., 14 B. Monroe, p. 84, 86.

      Second, The body of the petition should show who complains, and if partners, to describe and name each partner, etc., as at common law. 1 Chittg PL, 257-264 ; Stephens’ PL, 302-441; Gould’s PI. 77-8.

      Third, The simple filing of the note, sued on, does not dispense with any necessary allegation to constitute a cause of action. Dodd vs. King2 Met., 430.-

      Fourth,- The complaint is not entitled to any court, nor is relief prayed from any court. Code, see. 109 ; Myer’s {Ky.) Code, p. 326, d.

      Fifth, The indorsement on the note -shows title in some one other than plaintiffs. Mger's {Ky.) Code,p. 326,/.

      A. II. Garland, for Appellees.,
    The only cause of demurrer that, existed at all was obviated or removed? when the case was.dismissed as to Andrews; but really this joinder of parties was always permissible. You had to render separate judgments, hut they could be sued jointly. Code, secs 82, 34, etc., p. 29 ; Gould’s Digest, ¶. 628, chap. 94.
   Gregg, J.

The appellees brought their suit, upon a promissory note, against the appellant, and Marquis L. Andrews, as the administrator of James O. Gill, to the last November term of the Pulaski Circuit Court.

The appellant, and Andrews, as administrator, appeared and filed a joint demurrer, and Andrews filed a separate demurrer.

The court sustained Andrews’ demurrer and the plaintiffs elected to discontinue as to him.. The court, overruled the appellant’s demurrer, and he rested and final judgment was rendered against him, and he appealed to this court and obtained a supersedeas.

This is a suit at law and commences as follows :

“Charles E. Morgan, William B. Buck. Albert Perrin and Emerson G. Elkington, .Firm name of E. C. Morgan & Co., vs. Complaint at law. James MeLeran, and Marquis Tj. Andrews, administrator of James O. Gill.

1 V Plaintiffs. J } -n ¿ , . j Defendants.

The plaintiffs, in the above entitled case, state that the defendants, James MeLeran and James O. Gill, now deceased, the said Marquis L. Andrew's, his administrator, by their promissory note, dated October 6,1868, agreed to pay to the plaintiffs, six months after date thereof, the sum of $1466 T0y, which note is herewith filed and made a part of this complaint.

No part of said debt has been paid, wherefore they pray judgment for their debt and for other relief.”

The note filed answered the description of the complaint and was signed “MeLeran & Gill.”

The appellant set up three causes of demurrer: First, That the complaint is insufficient in law'-; Secondly, The matters and things therein contained, do not constitute a cause of action by -plaintiffs against those defendants. Lastly, that there is a misjoinder of parties defendants. ,

The first and second causes of demurrer amount, in substance, to the same and may be considered together.

It is suggested that the style of the court is not given, which is likely a misprision in making up the transcript; at all events, it is one of those formal defects that the court below should always allow corrected, upon motion, and as no objection was made there, it cannot be successfully urged in this court.

It is urged that the complaint is insufficient, because the body of it does not contain the name of each plaintiff, with the averment that they did .business in a firm name stated, and also an averment that the defendants were indebted to them and that they executed the note in a certain style, etc.

Section 109, of the Civil Code, states what the complaint must contain:

First, The style of the court.

Second, The style of the action, consisting of the names of all the parties thereto, distinguishing them as plaintiffs and defendants, followed by the words “ complaint at law,” etc.

Third, A statement in ordinary and concise language, without repetition, of the facts constituting the plaintiff’s cause of action.

Fourth, A demand of the relief to which the plaintiff considers himself entitled.

Section 138, declares if the action is founded on a note, or ■ other writing as evidence of indebtedness, it must be filed as a part of the pleading. In this case, the style of the action is sufficiently stated, the names of all the parties and.the firm name of the plaintiffs given, and it is not necessary to repeat all these in the body of the complaint if they are sufficiently referred to, as in this case, to fully apprise the defendants, whose complaint they are to answer, and followed by sufficient averments of the nature and cause of the action.

The appellant, also, urges that there is no averment of his. (-James McLeran’s) liability. He (James McLeran) is charged as being one of the defendants; the complaint avers that the-defendants, by their promissory note, bearing date, etc;., six months after date, etc., agreed to pay tlie plaintiffs $1460 etc., and filed the note and made it a part of the pleading.

This sufficiently advised the defendant as to what he was called upon to answer, and the note being on.file and forming a part of tlie pleading,' the defendant was thereby fully advised as to the terms -of the note and the manner of its execution, and consequently could have well set up any defense he may have had to the merits of the action.

There is no error in the judgment rendered by the court below and that.'judgment is affirmed with the usual damages.


author: Bennett, J. Gregg, J.,

text:
    HARRISON & STEWART v. LEWIS, Commissioner.
    Swamp and Overflowed Lands — Statutes regulating sale of, etc. — "Where a party enters swamp lands of the State, at private entry, after the same has "been offered for sale at public vendue, in pursuance of the Act for that purpose, and pays for the same the amount fixed by law, he cannot "bo deprived of that title, which is to he evidenced by a patent, by a subsequent neglect of an officer in not performing an act which the law says shall be done, but which is not necessary to his title.
    Certifícate of Entry — Of what foc'ce and effect. — The regularity of the issuance of -certificates of ontry may be inquired into, and the certificate may he hold voidable for irregularities or fraud, but they are to be held prima facie good and regular, and he, who would seek to deprive the-holders of their rights under them, must assume the burthen of proof, and show sufficient facts to warrant a court of law or equity to sot the certificate aside.
    Commissioner of Immigration and State Lands — Duty of. — Under the. Act approved July 15, 1868, providing for the appointment of a Commissioner of Immigration and State Lands, all the duties that wore required of the Auditor, in relation to such lands, now devolve on said Commissioner.
    PETITION FOR MANDAMUS.

      Watkins & Hose, for Petitioner.
    Tlio entry was properly made, and the neglect of the officer to report it could not void it. Taylor vs. Brotan, 5 Cranch, 241, 2, 3; By tie. t:s. State of Arkansas, 9 How., 333; Craig vs. Bradford, 3 Wheat, 494; Stringer vs. Toney, 3 Peters, 338; Nicks ns. Hector, 4 Ark., 253.

      Montgomery, Attorney General, for Respondent.
   Bennett, J.

Oh the 12th day of December, 1870, plaintiffs filed a petition in the office of the clerk "of this court, stating that, on the 25th day of May, 1859, -Colin J. McRea and Inicien Mead, entered,- in the State Land Agent’s office, at Little Rock, á portion of the swamp and overflowed lands granted to the State by Act of Congress, and that said Land Agent gave Mi;Rea and Mead a certificate of entry, particularly describing (ho lands thus entered,the price paid, and acknowledging the receipt of the payment of the amounts due for the purchase of the land.

The petition further alleges, that the said certificate of entry ivas duly assigned by McRea and Mead to the petitioners ; that petitioners presented said certificate of entry to James M. Lewis, Commissioner of Immigration, the defendant, and demanded that it should be certified by him to the Governor of tlie State, that a patent to the lands might he obtained; but said Lewis, as Commissioner, declined and refused to certify the same. Therefore, they pray for a writ of mandamus, etc.

On the 9th day of January, 1870, the defendant filed his answer, stating that there is no record in his office showing . an entry of the lands as described in the petition, nor do the records or books of his office show that any money was ever paid in consideration of said lands. That he has no means of judging of tlie genuineness of said certificate of entry, mentioned.in the petition; that the records of the Little Rock district, for the year 1859, are in his office; that said records do not show that any such entry was ever made. The defendant also alleges the right of said plaintiffs to the certificate of entry, to enable them to secure a patent, depends upon facts which can only be decided by a court of chancery. The fact that there is any record entry of the lands as described in the certificate of entry, either in the General Land Office of the State, or of the original' hooks of the Little Rock Land Office, is not controverted.

The only question then, to determine, is, whether the neglect of the land officer, to enter and report lands, can void his certificate of entry issued, so as to prevent the issuance of a patent.

The certificate of entry as referred to and made a part of the petition, by exhibit, is numbered 790. and signed by one-B. F. Owen, State Land Agent for the Little Rock district,' and stamped with the seal of his office. SrHion 7, of tlie Act of January, 1850, respecting the State lands, reads as follows : “The Land Agents shall have full power and authority to sell any of the lands granted by Congress to the State, under the designation of swamp and overflowed lands, but in making such sales, shall be governed by the rules, provisions and regulations now in force and hereinafter provided, or which nniy exist by law at the time of such sale.”

The “rules, provisions and regulations in force” were that notice should bo given of confirmation of said lands in the various counties, calling upon persons claiming pre-emptions to any of them, to come forward and prove up the same'; that such lands would be offered at public sale, stating the time and place when the sale would take place, etc. Sections 11 and 12, of the same Act, then provides that “all lands, not sold at the time appointed for such public sale, shall be liable to be entered at any time thereafter, for swamp land scrip, at the rates herein fixed, which is hereby declared to be seventy-five cents per acre, for all lands being more than six miles from a navigable water course; and the Land Agent shall give to the purchaser a certificate of such entry, in which he shall specify the lands entered, and the amount received for such entry, and shall also note such entry on the township maps, and in his book to be kept for that purpose.”

The certificate of entry now before us, was issued in strict conformity to the above enactment, with the exception of making a “note of such entry on his township maps, and in ■his book to be kept for that purpose.”-

It is a well established principle, that when an individual, in the prosecution of a right, does everything which the law requires him to do, and he fails to attain his right, by the misconduct or neglect of a public officer, the law will protect him. Lytle vs. State of Arkansas, 9 How., 333.

In this case, McRea and Mead entered a portion of the swamp lands of the State, at private entry, after the same had been offered for sale at public vendue, in pursuance of the Act of the General Assembly for that purpose, and paid for said land the full amount per acre, as fixed by said Act; nothing more could ho done by them, and.notliing more could be required of them under the Act, and it would be unreasonable to deprive thorn of that title, which is to be evidenced by a patent, by a subsequent neglect of an officer, not appointed by them, and over whose acts they could exorcise no control, in not performing an act which the law says shall be done, but which is not necessary to perfect title.

"We do not say that no inquiry into the regularity of these preliminary measures, requisite to the issuance of a certificate of entry, can be made, nor that these certificates could not be made voidable for frauds or otherwise, but they must bo held to be prima facie good and regular, and he who would seek to deprive the holders of - their rights under them, must assume the burthen of proof, and show sufficient fact$ to warrant a court of law or equity to set the certificate aside.

In the case before us, nothing but the fact that the land agent has neglected to make the proper entry of these lands on his book, and to note the payment of the money for the same, is alleged as an excuse for not certifying the same to the Governor for a patent. No positive allegation of fraud in his issuance of the certificate, nor positive denial of the payment for the lands has been made, and if made, no proof has been adduced to sustain them.

Section 22, of the act of January 12,1853, makes it the duty of the Auditor, to prepare patents for all lands sold by the several land agents, after the same shall have been paid for, or, if paid for at the time of the sale, conveying the same to the purchaser in fee simple,' which patents, with other evidence of payment, shall be submitted to the Governor for his signature for and in behalf of the State.

"Under an act to provide for the appointment of a Commissioner of Immigration and State Lands, approved July 15, 1868, it now becomes the duty of said commissioner to perform all the duties which were required of the Auditor in relation to such lands. Therefore it is proper and right he should make the certificate as asked for by the plaintiff.

Gregg, J.,

dissenting. I concur in the conclusions of the court in this case, but not in the jurisdiction of this court.


text:
    ADAMS, Ex’r, and BERRY v. HEPMAN.
    Practice— When case stricken from docket. — Where no exceptions are taken, nor any appeal prayed for or granted, either in the court below or by the clerk of this court, the case will be stricken from the docket.
    APPEAL FROM FRANKLIN CIRCUIT COURT.
    Hon. William ,N. May, Circuit Judge.

      Robert A. Howard, for Appellants.

      Garland & Nash, for Appellee.
   Gregg, J.

This suit was brought by Hepman against George C. Alclen, James M. Oliver, Charles Berry and William C. Adams, in the Eranklin Circuit Court, and afterwards revived In the name of William A. Adams, as the executor of William C. Adams. '

The whole record is so imperfect and confused, as, in some particulars, to be unintelligible.

The defendants all appeared, and Alden and Oliver’ filed a joint plea of bankruptcy; afterwards, the record says Alden filed a plea, but no such plea appears. Then follows a long-answer of Adams and Berry, setting up several matters, none of .which amounted to a defense, and no distinction of paragraphs was made, if intended for more than one defense.

The record then recites, that the plaintiff' demurred to the first, second and third paragraphs of “the defendants’ answer.” Whether this was intended as a demurrer to the answer of Alden and Oliver, or Adams and Berry, or to both, does not appear. All the defendants are named in the captions, and no distinction is anywhere made in responding to their pleadings. The record then recites, that the plaintiff filed his demurrer to “the last paragraph, or additional answer of the defendants,” but up to this time no answer appears to have been filed by all. the defendants, nor does there appear any separate answer or other paragraph after the answer of Adams and-Berry.

Then follows an entry, reciting that the “ said several demurrers came on to be heard,’ and the court sustained said demurrers, and the defendants, by leave, filed another answer, and the plaintiff filed a demurrer thereto. What disposition was m,ade of this answer and demurrer, does not affirmatively appear; but they are followed by a judgment nil ciicit.. No exceptions were taken; nor was any appeal prayed for or granted, either in that court or by the clerk of this court; and for this reason, the case is ordered stricken from the docket. See Sykes vs. Laffrry, 26. Ark. Henry & Co. vs. Gibson & Helmer, Ib.


text:
    MOORE et al. v. DUNCAN, Trustee.
    Equity— Will not grant relief when remedy at law. — Where a party has a full,' adequate and complete remedy at law, he cannot seek relief in a court of Equity.
    APPEAL PROM ASHLEY CIRCUIT COURT.
    Hon. IIenry B. Morse, Circuit Judge.

      English & English, for Appellants.
    Tunstill was in possession of the land, and there was nothing to hinder Duncan, the .appellee, from bringing ejectment. According to the allegations of the hill, the appellee had an ample remedy at law, and no right to go into equity. See Hanley vs. Byers, decided at present term.

      Gallagher, Newton § Hempstead, and John Carroll, for Appellee.
    The appellants mistook their remedy in attempting to seize' this trust fund through a process from a law court. It should have been attempted only in equity. Pope vs. Boyd, 22. Ark., 535. Biscoe vs. Boyston, 18. Ark., 508. Pettit vs. Johnson, 15. Ark., 55. 4. Kents Com., Mary., p. 303i ITM on Trustees, Mary., p. 229. Trusts and Trustees, by Tiffany § Bullard, 772.
    Since then the property in thé hands of a trustee cannot he reached by an execution at law, on a judgment against the cestui que trust, it is clear that the appellants, holding under such a sale, have no title whatever; and therefore the decree of the Circuit Court, declaring the sale void, is correct, and should be respected and affirmed by this court.
   Gregg, J.

This is a complaint in equity, brought by the appellee against the appellants, to the March term 1870, of the Ashley Circuit Court.

Thp bill alleges that 'William P. Duncan, in July 1864, conveyed to James G. Duncan 440 acres of land, and certain personal property in trust. That afterwards, and without the trustee’s knowledge, the appellants, Moore and Rolfe, obtained judgments, before a Justice of the Peace, against said 'William P. Duncan; had executions issued and returned “nulla bona,” and transcripts filed in the office of the Circuit Clerk of said county, and other executions, issued by said clerk, were levied upon said lands, and they were, by the sheriff, advertised and sold, as the property of William P. Duncan, and bid in by Moore and Rolfe, who afterwards sold and conveyed to Tuntstill. That all the defendants had full notice of the deed of trust and the title in the complainant; that the defendants had wrongfully entered into possession of the lands and received large profits, more than the amount of their judgments, which judgments the plaintiff offered to pay, if found just, and he prayed that the deeds from the sheriff to Moore and Rolfe and from them to Tuntstill, be cancelled, and that they be required to account for rents, and that possession be delivered to him, etc. The defendants appeared and demurred to the bill; the court sustained the demurrer, and the complainant filed an amended bill to the effect above stated, to which the defendants likewise demurred, but, upon the hearing, the court overruled their last demurrer and they excepted and declined to make any further response. Whereupon the cause was heard upon the bill, amended bill and exhibits, and the court decreed that the sale made by the sheriff he set aside, and the deeds to the defendants cancelled and held for naught, and that the plaintiff recover possession of the lands; that a writ issue, etc., and that defendants pay costs. From which decree the defendants there appealed to this court.

In the case of Byers et al. vs. Danley, decided at the present term of this court, through his Honor, Justice Bennett, this court said: “It is a maxim of equity jurisprudence, of universal application, that where a party has a full, adequate and complete remedy at law, he cannot seek relief in-a court of equity,” etc. See Memphis & Little Rock Railroad Co. vs. Wm. E. Woodruff, at same term.

In the case under consideration, the appellee not only sets up a legal title in himself, but he alleges that he has nothing but a legal title; that the equitable estate is in another, and he holds but a naked legal title; hence, his claims are especially cognizable in a court of law. According to his own exhibits, if a recovery is had in his own name, and it is thus he sues,.it must be on purely a legal title.

lie charges the appellants with wrongful and illegal possession of the lands, and he prays that they be ousted and the lands restored to him, his title cleared, etc.

Litigants have a constitutional right to have such facts tried by a jury of their countrymen, and it seems to us he should be remitted to a court of law, there to determine his right of possession, and that the court below erred in not sustaining the demurrer to his complaint.

The decree is reversed and the cause remanded with directions to s\istain the demurrer and dismiss the bill for want of equity.


author: Whytock, Special Supr. Judge.

text:
    PEAY, Rec. R. E. Bank v. CAPPS et al., AND DRENNEN et al. v. PEAY, Rec., On Cross Appeal.

      Trustees — Carchase >•[ trust property by, when set as.de. — A purchase made by a trustee, of trust property, may be set aside, by the beneficiary, on the ground that the same is a fraud either actual or constructive, but the trustee, as such purchaser, will not be allowed to raise the objection.

      Purchasers — Cannot retain possession and avoid payment. — The vendee, 'in possession, under a contract of sale, cannot retain possession and avoid payment of the balance of the purchase 'money, on the ground that the vendor cannot make as good a title as agreed; before ho can avail himself of such defense he must offer to rescind the contract.
    Arre >.L FROM PULASKI CHANCERY COURT.
    Tíos. T. I). W. Yonley. Chancellor.

      O. M. Hose, for Appellant. .

      Garland § Nash and Clark, Williams <f' Martin, for Appellees.
   Whytock, Special Supr. Judge.

This is 'a complaint in equity, by Peay, as Receiver of the Real Estate Bank, against Capps’ and Drennen’s heirs and representatives and others, to quiet title and enforce a vendor’s lieu.

The Pulaski Chancery Court decreed that the title to the land in suit be vested in the defendants, the heirs at law and legal representatives of John Dren non, deceased, subject to the lion of the Bank; and that the heirs of Larkin Capps, deceased, and his widow, and the heirs at law, and administrator of the defendant, Joseph Green, ho enjoined from setting up, .or pretending to set up any title to the premises described in the complaint. The Chancery Court further decreed that the administrator of Drenncn pay to the Receiver the sum of four thousand one hundred and sixty dollars, together with interest thereon, out of the assets of Drennen’s estate, and, in default, that the equity of redemption of the defendants be forever foreclosed, and the land sold.

The Bank Receiver, and. the administrator and heirs at law, both pray appeals from the decree.

The land in controversy, that is, the east half of section twenty-two, township sixteen south, range two west, is situated in Chicot. County. It was a donation claim allowed to Larkin Capps, under an act of Congress passed the 24th day of May, 1828. The claim of Capps was, before obtaining his patent, transferred to Joseph Henderson for the srim of $1004, by deed-bearing date the loth day of January, 1828. This instrument contained a power of attorney, by which Larkin Capps irrevocably constituted Henderson his attorney, to locate and enter a quantity of land, not to exceed 320 acres, to which Capps was entitled by virtue of his being a resident and actual settler in that part of the territory of Arkansas ■which was ceded to the Cherokee Indians. It was further covenanted, that Henderson should have the right to “receive” the same. On the 16th day of March, 1838, Capps, by Henderson, his attorney, in fact, applied to the Register of the Land Office at Little Rock, for the entry of the tract -mentioned. The application, and the affidavit in support, were Aled in the office of the Register, and the patent for the tract ■was issued in Capps’ name, in 1835. It is alleged and proved, that Henderson, acting under a power of attorney, afterwards sold arid conveyed the tract to Thomas Tunstill; -that Tun-still held and possessed the same for three years when, on May 18, 1837, he sold it to Benjamin Hughes. Hughes, after-wards, on the 30th day of May, 1837, mortgaged the tract, amongst other lands, to the Real Estate Bank, in consideration of certain stock of the Bank. Tn November, 1844, the lands of Hughes, including this tract, were sold, under a decree of foreclosure, and bid in by Dronnen, on behalf of the trustees of the Bank. On the 25th of April, 1846, Dronnen entered into a “ verbal arrangement” with the other trustees, for the purchase of Hughes’ lands, embracing this piece. On the 5th. of May, 1852, this verbal or oral arrangement was reduced to writing, and the Cashier and Secretary of the Hoard of Trustees of the Hank were authorized to close the trade with Drennen.

The present suit was brought on the 10th day of May, 1860, and the relief sought is, that the title to said tract of 320 acres be divested out of the other parties setting up titles, and be declared to be vested in Drennen’s heirs and representatives ; that the title be cleared and quieted, and Drennen’s representatives be required to receive the same as sufficient. That upon failure to pay the purchase money, with interest, the tract be decreed to be sold; that the contract be specifically executed, or that, upon refusal to accept title, the contract be cancelled. The complaint sets forth, and insists upon the effects of various statutes of limitation. The proofs show that Larkin Capps moved from Arkansas to Texas, in Í844, and died in the latter State, in 1846; that he continued to reside in Arkansas from the date of his deed to Henderson, that is, from the 10th of January, 1828, uptil his removal to Texas, a period of about sixteen years; that after the transfer to Ilenderson.of his claim or right as mentioned, he never pretended to make or assert any claim to the land, and apparently gave it no further attention.

Capps’ deed to Henderson contained, besides the covenants above stated, others to the effect, that he promised, when required thereto by Henderson, his heirs and assigns, or representatives, to make and deliver to him or to them such deed, with full warranty, as Capps should receive from the Gfovernment; and that Henderson should have and hold the land that Capps might receive from the United States under said claim. The answer of Charles G-. Scott and wife, and Scott, as administrator of Drennen, admits that Drennen died in 1855; that his estate is solvent, and that the administrator refused to- allow the claim against the estate. It denies the actual possession of the tract by Tunstill, Hughes, or their representatives, except of a narrow strip of about three acres; alleges that Capps has children who are minors; and sets up a deed made by Capps’ heirs, which is averred to hear date in 1859, conveying the land to the defendant Green. Green’s answer, in effect, sets up a similar state of facts, but further alleges that he had purchased the said tract, for a valuable consideration, of John Capps and the other Capps heirs, and that the defendant himself was a purchaser without notice of the Henderson and Tunstill title.

The Chancery Court held that the instrument of conveyance from Capps to Henderson of his claim to the land, vested in the latter an equitable title, as soon as Capps’ donation claim was located; that the legal title of Capps, after such conveyance, was held by Capps in trust for Henderson or assigns, and that, upon the issuance of the patent to Capps, the latter was bound by his covenants to convey the legal title to Henderson; that the covenants, in Capps’ conveyance to Henderson, estop the heirs of Capps and those claiming under them, without notice of the covenants, from setting up any title to the land. See Cocke v. Brogan & Thorn, 5. Ark. 694. Kirby v. Vantrece et al., 26. Ark.

That Capps’ deed being- an ancient one, more than thirty years old, proved itself, and that it was a genuine deed, free from grounds of suspicion, and its custody not inconsistent with its genuineness; that after the lapse of so many years- it would be presumed that Capps had conveyed in pursuance of his covenants, or empowered Henderson, as his attorney, to convey the same to Tunstill. Besides that, Tunstill’s. deposition shows that Henderson conveyed the land to him, acting under a proper power of attorney.

Tunstill testifies that the deed from Henderson to him was. recorded in Chicot County, but, as he believes, the records had been destroyed. It appears that the land had been in possession of Tunstill and his grantees, and that they had exex-cised acts of ownership over it, and he and Hughes had thus held it for a period of thirteen years, at the time of Capps’ death. Drennen and his representatives, since his purchase, have been in possession of the tract.

The defendant Green, in view of all these facts, cannot be considered a purchaser without notice. Hamilton et al. v. Foulkes et al., 16. Ark. 340. Byers et al. v. English. Ib. 554.

The Chancery Court held that Capps, at the time of his death, had parted with the title to the land in controversy,, and that consequently no title-descended to his heirs.

The positions assumed by the defendant, Scott, are, that, at the time of the purchase, Drennen was a trustee and could not legally be a purchaser. That Drennen could not have been compelled to pay the purchase money until the title was forfeited; that such was the covenant of the bond; and that the receiver should have sought relief in the Probate Court, where he had all the remedy needed.

The trustee will not be permitted to question the contract. Richardson vs. Jones, 3 Gill & John. (Md.) 163. If there is a case of specification, it is not within the principle contended for as to the proper remedy.

It will be observed' that the defendant, tíeott, a representative of Drenneif s estate, is in possession of the land, and at the same time refuses to pay the purchase money. In other words, the estate retains possession and declines to pay. Nor does the answer seek or offer to rescind Dronnen’s contract.

The obligation, executed by Drennen, is to the effect that he promises to pay to the trustees of the Bank, the sum of four thousand one hundred anil sixty dollars, with interest at the rate of eight per cent, by equal annual instalments, “ whenever the title to .said tract of land is perfected.” This instrument was executed by Drennen, on the 3d of May, 1852, and recites, furthermore, that he had on that day purchased of the Bank this tract and other lands which are deábribed.

It furthermore appears in the ease, that Drennen was aware, at the time ho purchased of the other trustees the tract in question, of the condition of the title, and that whatever defect there was in it, was fully known to him. lie had, in 1850, purchased this tract amongst others, at a sale under a judgment rendered inl849, inthe Chicot Circuit Court, in favor of the trustees and against the heirs and representatives of Hughes.

The land, except a small improvement made on a part of it, by Tunstill, is shown to have been in a wild and uncultivated state. It was held by the parties in .possession, by open and notorious acts of ownership, for a period of thirteen years before the death of Larkin Capps. Conway vs. Kinsworthy, 21, Ark., 9. The deed from Capps to Henderson was more than thirty years old at the commencement of this action„and we think was genuine. Trammell et al. vs. Thurmond et al., 17 Ark. 208.

It seems to us that this case falls within the-principle decided in Hoppes vs. Cheek, 21 Ark., 588; McIndoe vs. Morman 26 Wisconsin’s 538, and that Drennen’s estate cannot resist the payment of the purchase money; the purchaser, by his representative, being in possession and continuing in possession without interruption. There is no question of fraud in the case. Lewis and wife vs. Boskin’s adm’r., etc., p. 61, ante.

As the counsel for the Receiver does not insist upon the question of interest, his ground of appeal is disposed of, and -the judgment as to the subject is not disturbed.

The decree of the Pulaski Chancery Court is affirmed.