author: English, Ch. J.:

text:
    Whittington vs. Simmons et al.
    1. Vendos and Vendee: .Title Bond, effect of.

    When the vendor of land executes to the purchaser a bond for title upon payment of the purchase money, an equitable title to the land vests in the vendee, while the vendor retains the legal title as security for the purchase money, and upon his death the legal title descends to his heirs at law.
    2. --; Judgment lien; Jlemedy of vendor, etc,.

    Upon the assignment by the vendee, of the bond for title, the equitable estate passes to the assignee, and a judgment at law against the vendee for the purchase money constitutes no lien bn the land; the only remedy by which the lien for purchase money can be enforced is by bill in equity.
    S.--:
    Where, after an assignment of the title bond, the land is sold under a judgment for the purchase money against the vendee, an allegation that the assignee of the bond agreed, after the execution sale, for a valuable consideration, to deliver possession of the land to the purchaser, does not ■strengthen his title; the execution sale being void it was necessary to allege a purchase from the holder of the equitable title.
    4,--: Bankruptcy, fraud, etc.

    The question as to whether the sale of an equitable title to land by one about to become a bankrupt was a fraud upon his creditors, must be raised in the bankruptcy proceeding, and cannot be collaterally raised in a proceeding between a third party and the purchaser, concerning the title.
    APPEAL from Ashley Circuit Court in Chancery.
    Hon. Theodoric F. Sorrells, Circuit Judge.

      McCain, for appellant.

      Compton & Parsons, contra.

   English, Ch. J.:

The bill in this case was filed in the Circuit Court of Ashley County, by Thomas M. Whittingtou against John G. Simmons and the heirs at law of John Smith, deceased.

The purposes of the bill were to obtain a decree against the heirs of Smith for the legal title to an undivided half of certain lands known as the Quindley Place, to cancel a sheriff’s deed which Simmons had obtained for the lands, and to enjoin him from prosecuting certain proceedings at law, etc.

The heirs of Smith did not answer. The cause was heard upon the bill and exhibits, the answer of Simmons (which contained a demurrer) and exhibits, and depositions. The bill was dismissed for Avant of equity, and the complainant appealed.

There is no dispute about some of the leading facts of the case, the parties agreeing in their pleadings, etc,, as to them. They disagree about other facts, and out of this disagreement grows the only trouble in ascertaining and deciding the legal and equitable rights of the litigants, so far as they can be settled on this appeal.

The bill alleges and the answer admits that on the 28th day of December, 1861, John Smith, then the OAvner in fee simple, and in possession of the lands in controversy (several tracts containing about 426 acres, situate in Ashley County), sold them to John Quindley for $15,000, of which $9460 Avere paid at the time, and for the remaining $5540 Quindley made to Smith a note of that date, payable 1st of March, 1864, Avith 6 per cent, interest, and Smith executed to him a bond covenanting to make him a good and sufficient deed to the lands on payment of the note, and delivered to him possession of the lands.

The leading effect of this transaction is that Smith, by means of the bond for title, conveyed to Quindley an equitable title to the lands, and retained the legal title as a' security for the payment of the balance of the purchase money. Moore & Cail, adm’r, v. Anders, 14 Ark., 628; Harris v. King, 16 Ark., 122.

It is also averred in the bill, and admitted by the answer, that on the 4th day of January, 1866, Quindley sold the lands to L. H. Belser, and assigned to him by written endorsement, Smith’s bond for title, and put him in possession of the lands.

By this sale and assignment of the bond for title, Quindley transferred his equitable estate in the lands to Belser. Holman v. Patterson heirs, 29 Ark., 364.

On the 8th of December, 1863, John Smith died intestate, in Drew County, and on the 30th of December, 1864, letters of administration upon his estate were granted, by the Probate Court of said county, to his widow, Sarah A. Smith, and appellee, John G. Simmons, who married one of his daughters.

On the 2d of April, 1867, Sarah A. Smith, as administratrix, and John G. Simmons, as administrator, of John Smith, deceased,recovered a judgment in the Circuit Court of Drew County, against John Quindley, upon the note given by him to their intestate, for balance of purchase money of the lands, for $6,757.40, being the principal and interest on the note.

On the 16th of November, 1867, an execution was issued upon-the judgment against Quindley to the sheriff of Ashley County, which was levied on the lands in controversy (except one tract) and they were sold by the sheriff on the 24th day of February, 1868, and purchased by Simmons for $500. It is alleged in the bill, and not denied in the answer, that the sheriff made him a deed for the lands, and the bill professes to exhibit a certified copy of the deed, but we do not find it in the transcript.

The bill alleges that he purchased the land in fraud of Smith’s heirs, but this he denies, and avers that he purchased for their benefit. It seems that in his third and final settlement as administrator of Smith, he credited himself with amount paid the sheriff upon his bid for the lands, etc.

It is manifest that Simmons acquired no title to the land by this purchase. On the death of Smith, the legal title which he held in trust for his vendee, Quindley, descended to his heirs at law. The judgment was no lien upon the lands, and before the execution was issued, Quindley, the only defendant in the execution, had sold and transferred his equitable estate in the lands to Belser.

After Quindley had parted with his interest in the lands to Belser, the legal representatives of Smith could enforce the vendor’s lien for purchase money, and sell the lands so as to convey title as against Belser, or his assigns, by bill in chancery only.-

It further appears from the pleadings and exhibits, that at the January Term, 1868, Sarah A. Smith applied, by petition, to the Probate Court of Drew County, to have dower assigned to her in the notes, accounts, bills, bonds, books and evidences of debt of the estate of John Smith, her deceased husband, and the court appointed three commissioners to assign to her such dower. On the 21st of April, 1868, the commissioners reported that they assigned the amount of $5535.19 in a note against John Quindley for $5540, dated December 28th, 1861, due on the 1st of March, 1864, at 6 per cent, interest from date, belonging to said estate, as the amount of dower due Sarah A. Smith in said estate. The court approved and confirmed the report, and adjudged that the widow have absolute control of said dower.

Simmons, as one of the administrators of the estate, filed exceptions to the report, before its confirmation, but the exceptions were overruled, and he prosecuted no appeal.

• The grounds of exceptions were, that he, as a co-administrator and the heirs had no notice of the filing of the petition, and that all the dower in the personal property and choses in action which the widow was entitled, by law, to receive out of said estate, had already been assigned to her.

There is no showing in the transcript that such dower had been previously assigned the widow; and Simmons, whose duty it was as co-administrator, to assign her dower in the personal property, certainly had notice of her application for dower, for he appeared and contested it.

He admits that he attended to all of the business of the estate, at her request, and at the same term of the Probate Court he filed his account for settlement, and resigned his administration.

It is remarkable that the commissioners assigned $5535.19 of +he Quindley note, nearly equal to the original principal of the note, to the widow as her dower share of the choses in action of the estate, when Belser had previously made large payments to Simmons, as administrator, upon the debt.

It further appears that on the 2d of April, 1869, Mrs. Smith took out an alias execution upon the judgment against Quindley, directed to the sheriff of Ashley County, who levied upon the lands in controversy, as the property of Quindley, offered them for sale on the 28th of March, 1869, and Mrs. Smith purchased them for $25, and on the 13th of May following, the sheriff executed to her a deed therefor.

Quindley having no estate in the lands at the time this execution was levied, Mrs. Smith acquired no title by the sheriff’s sale and deed.

The allegations of the bill by which appellant, Whittington, makes out his claim of an equitable title to an undivided half of the lands, in addition to the facts shown above, are in substance as follows:

That on the 1st day of June, 1868, Belser, for valuable consideration, sold said lands to appellant and I. L. Brooks, to have ■and to hold as co-tenants, and, by an instrument in writing, transferred said title bond (the bond executed by John Smith to. 'Quindley and by him assigned to -Belser), and all his interest therein, to appellant and Brooks; and they took possession of the lands, and held- the same- in possession, by their tenants, until the 25th day of April, 1872, when Brooks sold and conveyed his half interest in the lands to appellee Simmons.

That said instrument of writing signed by Belser had been lost or mislaid and could’not be found.

That the balance of purchase money due from Quindley to 'Smith, with all interest thereon, had been fully paid off and satisfied.

That the administration of the estate of Smith-had been finally ■settled and closed by Sarah A. Smith in 1873.

That on the 14th of August, 1867, Belser thou being the real •owner and in possession of the lands, paid to appellee Simmons, .as one of the administrators of the estate of Smith, the sum of -$2346.07 in part satisfaction of the judgment against Quindley, recovered as above shown on the purchase money note, (Simmons admits this and other payments by Belser). That after said note had been assigned to Mrs. Smith as dower, and after she had purchased the lands at execution sale, as above shown,' ■she, in the .year 1872, executed to appellant and Brooks a deed for said lands.

That in June, 1869, appellant and Brooks paid to Mrs. Smith in full the amount due upon the judgment of Quindley, and she-being the administratrix of said estate, and the owner of said judgment in her own right, acknowledged full satisfaction' Thereof.

That- the legal title to the lands descended to the heirs of Smith, on his death, and was still in them.

That the judgment against Quindley having been fully satisfied by appellant and Brooks, and the administration of the estate of Smith closed, appellant was entitled to a deed from the heirs for an undivided half of the lands. Brooks having, as before shown, conveyed to appellee Simmons his undivided half of the lands, who thereby'became the co-tenant of appellant.

The counsel for appellant does not rely for title on the conveyance made by the sheriff to Mrs. Smith, and her conveyance to him and Brooks; on the contrary, he concedes that she acquired no title by her purchase at the sheriff’s sale, and insists that Simmons obtained none by his purchase at the previous sale by the sheriff, and in this we think he is right as above indicated.

Appellant’s claim to an equitable title to an undivided half of the lands rests upon the alleged purchase by him and Brooks of the equitable estate of Belser in the lands; and he asks a. decree against the heirs at law of Smith for the legal title to an undivided half of the lands, on the ground that they have no claim for unpaid purchase money, Quindley’s note to their father having been satisfied, as shown in the bill.

As against the heirs of Smith, who it seems were of age when the bill was brought, appellant was entitled to a decree for the want of an answer.

It appears that after the alleged sale of the lands by Belser to appellant and Brooks, he was adjuged a bankrupt on his own petition, obtained a discharge, and afterwards died. He did not put the lands in his schedule.

Simmons denies, in his answer, the sale of the lands by Belser to appellant and Brooks.

The only depositions read upon the hearing were those of Brooks and Simmons.

Brooks was a disinterested witness, having conveyed, his interest in the lands to Simmons. Pie proves the sale by Belser of his interest in the lands to him and appellant, substantially as alleged in the bill. He states that they paid Belser about f 500 in legal services, and the advancement of fees, etc., and took his written assignment of Smith’s bond for title, which had been lost or mislaid. Belser was to have until an agreed time to -redeem the lands, but failed to do so. He delivered to them the bond for title. ,

In these statements Brooks is not contradicted by the deposition of Simmons.

Brooks also proves that after the Quindloy note had been assigned to Mrs. Smith for dower, he and appellant purchased it of her, and took her written assignment of it, and the judgment recovered upon it in the Circuit Court of Drew County, which he appends to his deposition, and which bears date January. 15th, 1870.

Simmons states in his answer: That some time in January, 1868, Belser agreed to give defendant possession of said Quindley Place for a valuable consideration, and that afterwards, in the latter part of February, 1868, he did deliver possession of said place to this defendant, and also agreed to deliver up the title bond of said Smith to Quindley, and that such possession was delivered to this defendant after his purchase of said lands at the sale by the sheriff of Ashley County. That at the time this agreement was' made with said Belser, he did not have said bond for title with him, but proposed to defendant to go with him to his house and he would deliver him up the bond. This defendant believing that the whole matter was settled, and that said Belser would not, or could not make any improper use of' said bond, did not think it worth while to go to his house for it. All this occurred before the pretended bargain and sale of said lands by Belser to said plaintiff and Brooks.”

Conceding that Simmons proved in his deposition all that is so ■as above alleged, he fails to make out any valid purchase by him of Belser’s equitable title to the lands. He alleges, in substance, that in January, 1868, Belser agreed to give him possession of the lands, for a valuable consideration, and afterwards in the latter part of February, 1868, and after he had purchased the lands at sheriff’s sale, such possession was delivered to him.

He does not aver that he purchased the lands of Belser for a valuable consideration, and that possession Avas delivered to him under such purchase. McNeill v. Jones, 21 Ark., 277.

If appellant and Brooks did not acquire Belser’s title, Simmons got none by the conveyance of Brooks to him, and his purchase at the sheriff’s sale, on which he relies, being Avorthless, he has no title.

True, he exhibits with his answer a paper bearing date-•day of-, 1869, purporting to be an agreement betAveen him and the'heirs of Smith to compromise some matters in litigation between them,, by Avhich they agreed to make to him a quitclaim deed to all their right, title and interest in and to the Quindley lands, in consideration of Iris releasing certain claims against the estate of Smith, etc., but the execution of the instrument is acknowledged before no officer, and some of the heirs, who seem to have signed the paper, Avere married Avomen, and it was signed for others, who Avere at the time infants, by a guardian ad litem.

"Whether Simmons can enforce this agreement as to the undivided half of the lands not claimed by appellant, whether, regardless of this agreement, he would not, as vendee of Brooks, be entitle-d to a decree against the heirs of Smith for the legal title to an undivided half of the lands, we are not called upon to decide on this appeal, as he did not make his answer a cross bill, or in any mode ask relief.

The counsel for Simmons submits that the sale by Belser of his interest in the lands to appellant and Brooks, made not long before he went into bankruptcy, and perhaps in consideration of legal services and fees advanced in the bankrupt case, was a fraud on the creditors of Belser.

It is sufficient to say of this that Simmons does not claim to have been a creditor of Belser, and if he was, he should have made this plea of fraud in the Bankrupt Court while the proceedings in bankruptcy were pending.

Upon the facts appearing in the record before us, the heirs of Smith hold the naked legal title to an undivided half of the lands in controversy in trust for appellant, and the court below, instead of dismissing the bill for want of equity, should have rendered a decree in accordance with the prayer of the bill.

The decree must be reversed, and the cause remanded with instructions to the court below to render a decree in favor of appellant for an undivided half of the lands as against Simmons and the heirs at law of Smith, and to make such further orders in the cause as may be in accordance with equitable principles and practice, and not inconsistent with this opinion.

As the heirs of Smith did not contest appellant’s claim to relief, the costs of this appeal will be taxed against appellee / Simmons.


source: Caselaw Access Project

author: Hardison, J.:

license: Public Domain

text:
    Davis, adm’x, vs. Hare.
    I. Sow defective complaint cured 6y answer.

    A bill to quiet title to land did not show such color of title in the defendant as cast any cloud upon the plaintiffs title, but the answer set up a title in the defendant under a deed that was good on its face and would require proof of extrinsic facts to shew its invalidity; held, upon demurrer reserved in the answer, that the averments-of the answer cured the detects of the complaint, and the demurrer was properly overruled.

      2. Evidence: Depositions, when suppressed.

    Depositions may be suppressed on account of some irregularity in the mode of taking them, but not for irrelevancy, or because of the matter deposed to.
    3. --: Competency, etc.

    When land is erroneously assessed twice, in different names, the collector, who returns it as delinquent, is a competent witness to prove the payment of the taxes by the owner of the land.

      4. Taxes: Forfeiture.

      ■ Where lauds upon which the taxes have been paid are erroneously returned delinquent and forfeited to the State, the forfeiture is void, and a purchaser from the State acquires no title.
    APPEAL from Gross Circuit Court in Chancery.
    Hon. L. L. Mack, Circuit Judge.

      Adams, for appellant.

      Rose, contra.

   Hardison, J.:

Thomas P. Hare filed his complaint in equity against Thomas C. Smith, in which he alleged, in substance, that, on the 29th day of October, 1851, he purchased from Abel Caudle, the then owner, the southwest quarter of section twenty-two,'in township eight north of range three east, and paid him therefor, and received from him a deed, and had from that time held peaceable and* adverse possession thereof.

But that the defendant had procured from some person, from whom he did not know, some kind of a deed or conveyance of the land, which cast a cloud upon his title; and he prayed that the defendant should be compelled to disclose the nature of his title or claim and that his deed or conveyance be cancelled and his, the plaintiff’s title be quieted.

The defendant filed an answer which he made a counter-claim. He denied that the plaintiff was the owner of the land and asserted and claimed title in himself by purchase from the State, and an Auditor’s deed in pursuance thereof, executed on the 26th day of August, 1875, and prayed a decree for the possession of the land, and for the rents, and profits from the date of his purchase.

The Auditor's deed, which was made an exhibit with the answer, recited, that the said quarter section had been forfeited to the State for the non-payment of taxes for the year 1857; that it had been afterwards offered for sale by the Auditor and not sold for the want of a bidder, and that the defendant had since applied to the Commissioner of State Lands to purchase it, and had purchased the same from the State.

The defendant also filed with his answer a demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, which the court overruled.

The plaintiff answered the counter-claim, and averred that he had paid the taxes on the land for 1857, and denied that it had been forfeited to the State.

The defendant moved to suppress the depositions of the plaintiff and Thomas L. Standley taken in behalf of the plaintiff, on the ground that the plaintiff could not be allowed to contradict the recitals in the Auditor's deed, which motion was overruled.

Upon the hearing the court found that the taxes on the land for 1857, had been paid by the plaintiff, and the same had not been legally forfeited; and decreed that the deed from the Auditor to the defendant should be cancelled and set aside.

The defendant appealed.

Since the cause has been in this court, the defendant has died, and it has been revived in the name of Virginia H. Davis, his administratrix.

The complaint was vague and indefinite, and it did not appear from it, that the defendant's deed showed such color of title in him as required the establishment of extrinsic facts to disprove his title, or that it cast any cloud upon the plaintiff’s. Chaplin v. Holmes, 27 Ark., 414.

But the answer of the defendant dispensed with the necessity for more specific averment because it set up and relied upon, as a defense to the action, and as the foundation of the counterclaim, a deed valid upon its face, and requiring proof of extrinsic facts to show its invalidity and dispel the cloud it cast. Pindall et al. v. Trevor & Colgate, 30 Ark., 249; Williams et al. v. Ewing & Fanning, 31 Ark., 229.

The demurrer therefore was properly overruled.

And so was the motion to suppress the depositions.

Depositions may be suppressed on account of some irregularity in the taking, but not for irrelevancy or because of the matter deposed to. Vaugine v. Taylor, 18 Ark., 65.

The depositioxx of the plaintiff was read in his owxx behalf. He deposed, that he had owned and lived xxpon the land in controversy twenty-five years, and that he paid the taxes on it for the yeax; 1857, to Thomas L. Standley, the- sheriff and collector of taxes of Poinsett County, in which coxxnty the-land then was, and took from him a receipt, but which, after diligent seax’ch, he was unable to find, axxd the same was lost or mislaid.

As further evidence of the payment, he then offered to read the deposition of said Standley, to which the defendant objected because it tended to contradict his official certificate and return that the taxes were not paid. The court overruled the objection. Standley deposed that he was sheriff and collector of taxes of Poinsett County in the years 1857 and 1858, and that the land which was then in that county was assessed in 1857, in the name of the plaintiff, and the taxes for that year were duly paid by the plaintiff; that when the taxes were paid he so denoted or marked them on the tax book, and it so appeared from the old tax books still in his possession, and he thought that he gave the plaintiff a receipt.

The land, he said, might have been returned delinquent for that year, but it was not so returned in the plaintiff's name as owner.

The defendant read as evidence on his part the Auditor's deed, and three certified transcripts from the records in the Auditor’s office, the first showing that the land was that year assessed in the plaintiff’s name; the second that it was also assessed in name of J. Thompson's heirs, and the third that it had been returned delinquent in the name of J. Thompson's heirs.

The objection taken below, and insisted upon here by appellant's counsel that as Standley had returned the land delinquent, he could not be admitted as a witness to prove that the taxes were paid, cannot be sustained.

We can see no just reason why one whose land has been wrongfully sold for taxes, should not be admitted to prove by the collector, the person most likely to know the fact, that the taxes had been paid. It often happens, as it clearly did in this case, that lands are, through error or inadvertence, returned delinquent upon which the taxes have been paid, and it may • be that the collector is the only witness by whom the payment can be proven.

Blackwell says: “The payment of the tax being matter- in pais, may be proven by oral evidence; it is not necessary to introduce the collector's books, or his receipt, or produce the assessment, but the collector or other officer to whom the payment was made, the agent of the owner, or any person present, at the time of the payment, are competent witnesses to prove the fact.” Black. Tax Titles, 489.

In case of Biscoe v. Coulter, 18 Ark., 423, referred to by counsel, does not sustain the objection, but is an authority the other way. In that case the competency of the late collector, whose deposition had been read, to impeach the sale for taxes under which Coulter claimed title, was not questioned, the court simply holding that his deposition, in view of all the facts of the case, was not sufficient to invalidate and overturn the sale.

It is appárent, and made so by the evidence of the defendant, that the land was assessed as the property of two different owners, one of whom the plaintiff, it is also shown, had paid the taxes, when it was returned delinquent. The taxes being paid the forfeiture to the State was void, and she had no title to convey to the defendant.

The decree is affirmed.


author: Harrison, J.:

text:
    Thomason et al. vs. Craighead et al.
    1. Judicial Sales: Within the control of the Court.

    In sales under a decree in chancery the court is the vendor, and will confirm or reject the sale as the law or .justice of the case may require.
    At a sale made under a decree for partition, the land was offered at an unusually early hour, and sold for less than its value, other persons who - arrived after the sale would have hid more than the land sold for; held that the court did not err in setting the sale aside, and ordering a re-sale.
    APPEAL from Mississippi Circuit Court in Chancery.
    Hon. L. L. Mack, Circuit Judge.

      Lyles for appellant.
   Harrison, J.:

(x. W. Thomason, owning an undivided one-eighteenth part of a tract of about 2800 acres of land, known as the Craighead Plantation, in Mississippi County, filed his petition for partition, and upon the hearing obtained a decree therefor.

The commissioners appointed for the purpose, after an examination of the premises, reported to the court that partition could not be made, without great prejudice to the owners; whereupon: the court made an order for the sale of the land, and directed that it be sold at the court house door, in Osceola, for cash in: hand, to the amount of 5 per cent, of the purchase money, and on a credit, as to the remainder, of six, twelve and twenty-four months, in equal payments, and prescribed the notice to be given, and other conditions of the sale.

In pursuance of the order, the commissioners offered the land for sale on the 3d day of July, 1876, and certain parcels of the uncleared and unimproved land, amounting to 1066 acres, were bid off W. I. Bowen, for $100, and the rest by Thomason and E.. B. Friend, for $1100.

Upon the coming in of the report of the commissioners, by which it was shown the purchasers had made the cash payments and given their notes, with security for the remainder of the purchase money, in compliance with the terms of the sale, James B. Craighead, and others of the owners, filed exceptions to the sale of the part purchased by Thomason and Friend, on the ground that the sale had been made at so early an hour in the day — eleven o’clock — bidders had not had time to arrive, and by reason thereof, the price at which it was sold was greatly inadequate, and did not exceed one-fourth of the value; and the court refused to confirm the sale to Thomason and Friend, and ordered a resale of the part bid off by them, and directed that the bidding should be started at $3000, as the bid of said Craighead.

From this order, refusing to confirm the sale to them, and directing a re-sale, Thomason and Friend appealed.

It appears, from the testimony of witnesses, that the sale took place shortly after eleven o’clock; that H. S. Brodie arrived at the place of sale about a half an hour after it took place, and that he came for the purpose of bidding for the property, and would, if preseut, have bid or given $3000, that it was worth $2000 or $3000, and the part purchased by Thomason and Friend embraced all the cleared land, about seventy-five acres,, and the improvements.

It is the well settled doctrine, or at least such is the theory,, that the court is itself the vendor in sales made under its decree, and will confirm or reject the sale as the law and justice of the case may require. Penn's adm’r, v. Tolleson, 20 Ark., 652; Sessions v. Peay, 23 Ark., 39; Deaderick v. Smith, 6 Humph., 138; Tooley v. Kane, 1 S. and M. Ch. R., 518.

It is apparent that the sale, at the early hour at which it was made, operated unfavorably for the interests of the owners, and the court might very reasonably have considered, from its knowledge of the locality, and the practice in such cases, the hour unusually early and inopportune.

No reason is shown, but we suppose sufficient appeared to the-court, for requiring the land in the resale to be offered at $3000: possibly it may not be bid, and the sale shall fail; if so, it can direct it to be again offered without such restriction.

The decree of the court is affirmed.


author: English, Ch. J.: /

text:
    Taylor, Cleveland & Co. vs. Little Rock, Mississippi River and Texas Railroad Company.
    1. Common Carrier: Restriction of Liability by Contract.

    A railroad company which gives a bill of lading for the transportation of goods over its own line, and other connecting carriers, to a point beyond the terminus ol its line, may stipulate against liability for loss of, or damage to the goods, while in the custody of a connecting carrier.

      APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      Wise, for appellants.

      Bell, contra.

   English, Ch. J.: /

On the 26th day of June, 1876, Taylor, Cleveland & Co. sued the Little Rock, Mississippi River and Texas Railroad Company, (successors of the Little Rock, Pine Bluff and New Orleans Railroad Company,) before a justice of the peace of Jefferson County, on a bill of lading.

The plaintiffs filed a formal complaint in writing, to which the defendant corporation filed an answer containing three paragraphs.

The plaintiffs obtained judgment before the justice of the peace, and the defendant appealed to the Circuit Court.

In the Circuit Court, the defendant withdrew the first and second paragraphs of the answer, and the plaintiff demurred to the third paragraph; the court overruled the demurrer, final judgment was rendered in favor of defendant, and plaintiffs appealed.

The complaint is, in substance, as follows :

I. The plaintiffs complain and allege :

“ First — That at the times hereinafter mentioned, the defendant was a common carrier of goods, for hire, between the places hereinafter mentioned :

“Second — That on the 15th day of December, 1875, at the City of Pine Bluff, in consideration of the sum of two dollars per bale, payable upon the safe carriage of the goods hereinafter specified, the defendant agreed safely to carry to the City of Now Orleans, Louisiana, and there deliver to John Phelps &Co. certain goods, the property of the plaintiffs herein, of the value of $480, consisting of eight bales of cotton, covered by the bill of lading hereto attached, and marked Exhibit A, and which the plaintiffs then and there delivered to the defendant, which received the same upon the agreement and for the purposes before mentioned, and which said agreement is hereto attached as aforesaid, marked Exhibit A.

Third — That the defendant did not safely carry and deliver four bales of the cotton as aforesaid, marked respectively as per bill of lading, (here the marks of the bales are copied,) and of the value of $240, pursuant to agreement as aforesaid, but, on the contrary, the defendant so negligently conducted and so misbehaved in regard to the same, in its calling as a carrier, that the said four bales were wholly lost to the plaintiffs.

II. Cause of action.

Find — That the said defendant did not carry and deliver the said eight bales of cotton, pursuant to its agreement herewith filed as aforesaid, marked Exhibit A, but on the contrary the said defendant failed.to carry and deliver four of the said eight bales, marked as aforesaid, in sec. 3 of the first cause of action, to the said John Phelps & Co., of New Orleans, Louisiana, the consignees thereof, or any one else for the said plaintiffs, and the said four bales of cotton have been an entire loss to the plaintiffs, on account of the negligence of the said defendant.

"• Second — That no part of the account hereto attached, and made a part hereof has been paid.

Wherefore plaintiffs demand judgment for $240, and interest,” etc., etc.

The bill of lading made an exhibit to the complaint is, in substance, as follows:

Freight office, Little Rock, Pine Bluff and New Orleans. Railroad.

Bill of Lading :

“Pine Bluff, Ark., December 15th, 1875.

Received of Taylor, Cleveland & Co., in apparent good order,' except as may be herein specified, to be conveyed by the Little Rock, Pine Bluff and New Orleans Railroad, from Pine Bluff, Ark., to elevator, wharfboat, or levee, at Chicot, Ark., from thence by steamer on the Mississippi River, (the dangers of river, collision, explosion and fire excepted,) and connecting railroads, subject to the conditions of their several charters, tariffs and various regulations, which are to be delivered in like good order and condition, without unnecessary delay, at New Orleans, Louisiana, unto John Phelps & Co., marked and numbered as per margin, to be transported from Pine Bluff to their said place of ultimate destination.

The packages aforesaid must pass through the custody of several carriers. It is understood, as a part of the consideration on which said packages are received, that the exceptions from liability made by such carriers respectively, shall operate in the carriage, by them, respectively, of ^aid packages, as though herein inserted at length; and especially that neither said carriers, nor either, nor any of them, shall be liable for leakage of any kinds of liquids, etc., etc., etc. And it is further especially understood, that for all loss or damage occuring in the transit of said packages, the legal remedy shall be against the particular carrier only in whose custody the said packages may actually be at the time of the happening thereof,.it being understood that the Little Rock, Pine Bluff and New Orleans Railroad, in receiving the said packages, to be forwarded as aforesaid, assumes no responsibility for their safety or safe carriage,' than may be incurred on its road, etc., etc.

Cotton, per bale, $2.50.”

The eight bales of cotton are in the mai’gin, marked as indi■cated in the complaint, and the bill of lading is signed by the ■•agent of the company.

The third paragraph of the answer, to which appellants demurred, is, in substance, as follows :

Defendant further says that the said cottton was not lost by the said Little Rock, Mississippi River and Texas Railway; but that said company safely did convey all of said cotton over its line to Chicot City, the terminus of said line, and there did safely deliver said eight bales of cotton to the good steamer Mary Bell, running on the Mississippi River, from Chicot, as aforesaid, to said port of New Orleans, to be transported to said port •of New Orleans, to be delivered to John Phelps & Co., and took the bill of lading of said steamer Mary Bell, for the same, according to the terms and condition of said receipt or bill of lading, (made an exhibit to the complaint,) and that no loss or damage occurred to said cotton while under the control of said Little Rock, Pine Bluff and New Orleans Railroad Company. Wherefore, said last mentioned company was not liable for any supposed loss and damages to said company.”

No question is made upon the appeal as to the liability of the •appellee corporation upon a contract made with the Little Rock, Pine Bluff and New Orleans Railroad Company, the paragraph •of the answer setting up that defense having been withdrawn from the court below.

Though the appellee corporation gave a through bill of lading for the cotton, from Pine Bluff to New Orleans, it expressly contracted against liability for loss or damage to the cotton occurring beyond the terminus of its own line, at Chicot City, on ■the Mississippi River, in this State.

The appellee is responsible as a common carrier. Angel on Carriers, sec. 109.

A common caraier is regarded by law as an insurer of the property entrusted to him ; or, in other words, he is legally responsible for acts against which he would not provide, from whatever cause arising, the acts of God and the public enemy only-excepted. The loss, or damage done to property in his possession, to be carried, is of itself sufficient proof of negligence, the maxim being, that everything is negligence which the law does not excuse; so that in all eases, but those just mentioned as excepted, his faultlessness is no discharge, ib., sec. 67.

How far a common carrier may contract against liability for loss or damages occuring, otherwise than by the acts of God, or the public enemy, has been the subject of much judicial controversy. Sec. 2, Redfield on Railways, sec. 161 to 163, and notes.

In Railroad Company v. Lockwood, 17 Wallace, 357, the Supreme Court of the United States held, upon a very full review of the authorities, that whilst common carriers might contract against liability for losses, etc., occurring from unavoidable accidents, it was against public policy to permit them to contract for exemptions from liability from losses and damages happening from the negligence of themselves or their servants.

In that case, the New York Central Railroad Company gave a cattle drover a pass upon its line from Buffalo to Albany, but declared in the pass that its acceptance was to be considered a waiver of all claims for damages or injuries received on the train. Lockwood, the drover*, sued the company for an injury sustained in consequence of the negligence of the company, or its servants, and it was held that the company Avas liable for such negligence, notwithstanding the stipulation for exemption in the contract.

This case was approved in Bank of Kentucky v. Adams’ Express Company, 3 Otto, 174.

That a railroad corporation, in giving a bill of lading for the transportation of goods over its own line, and other connecting lines of railways, or other public means of carriage, may, as in this case, contract against liability, loss of, or damage to the goods happening beyond the termination of its own line, we think well established by the adjudications. Railroad Company v. Manufacturing Company, 16 Wallace, 324; Railroad Company v. Pratt, 22 Wallace, 129 ; Foy v. Troy and Boston Railroad Company, 24 Barb., 382; Adams’ Express Company v. Wilson et al., 81 Ill., 340; United States Express Company v. Haines, 67 Ill., 137 ; Nutting v. Connecticut River Railroad Company, 1 Gray, 502 ; Buckland et al. v. Adams’ Express Company, 97 Mass., 131; 2 Redfield on Railways, sec. 162, and notes.

Whether the appellee corporation would have been liable for the loss of the cotton occurring beyond the terminus of its own road, in the absence of stipulation in the contract of affreightment against it, we have no occasion to decide on this appeal.

The judgment of the court below is affirmed.


author: ■ English, Ch. J.:

text:
    McCain, adm'r vs. Pickens et. al.
    1. Mistake in- a deed will be corrected in equity.
    2. Assignment: Assent of creditors.

    The assent of creditors to an assignment, apparently for their benofit, will be presumed; but where the assignment is conditional that the assignor shall be released, assent will not be presumed.

      APPEAL from Drew Circúit Court.
    Hon. Theodoric F. Sorrells, Circuit Judge.

      McCain and Carlton, for appellant.

      Rose, contra.

   English, Ch. J.:

On the 25th August, 1875, William S. McCain, as administrator of the estate of Samuel F. Arnett, deceased, brought -ejectment in the Circuit Court of Drew County, against Charles-L. Pickens, for two-thirds of the undivided half of the east half ■of the northwest quarter of section nine, township fourteen south, range seventeen west, situated in Drew County.

The complaint averred that an undivided half of the tract was ■conveyed by defendant to plaintiff’s intestate during his life time, by deed bearing date 13th of April, 1871, which is made .an exhibit'; and that after his death one-third of his undivided half was assigned to his widow for dower; and plaintiff, as his .administrator, claimed the right of possession of the other two--thirds of the undivided half of the tract, which was alleged to be in the possession of defendant.

Warren M. Anderson, who claimed title to the land as a trustee, Avas, on his motion, made a defendant,, and filed an answer and cross claim.

In the first paragraph of his ansAVer he controverts the plaintiff’s right to possession of the land. •

In the second paragraph he alleges in substance:

That on the 19th of Februaiy, 1872, Samuel F. Arnett (since ■ deceased), being in failing circumstances, and unable to pay his debts promptly at maturity, and desirous of making an impartial distribution of all his estate, real and personal, among his creditors, executed to defendant, as trustee, a deed of assignment, by ■Avhich he conveyed, or intended to convey to him, all of his estate, real and personal (except his homestead), for the benefit of his. creditors; which deed of assignment is exhibited and made part of the answer, etc. .That among the matters contained in the deed, is a description and conveyance to Anderson, as such trustee, of an undivided half interest in the land mentioned in the complaint; but described in the deed by mistake as the east half and the northeast quarter of section nine, township fourteen south, range seven west, which should have been described as an undivided half interest in the east half of the northwest quarter and the northeast quarter of section nine, etc. That such was the intention and understanding of said Arnett and Anderson. That Arnett at the time of executing the deed of assignment was the owner of the undivided half of the land mentioned in the complaint, by conveyance from said Charles L. Pickens; and immediately upon making the assignment, placed Anderson, as trustee, in possession of the land, and he had been in possession ever since. •

The premises considered, Anderson prayed that the suit be transferred to the equity side of the court, and that the mistake above specified be corrected according to the intention of Arnett and himself, and that his title to the land, as trustee, (the undivided half of the east half of the northwest quarter of section nine, township fourteen south, range seven west), be quieted, and that plaintiff be forever enjoined from the further prosecution of his suit for the recovery of said land, etc.

The deed of assignment commences thus:

“This indenture, made this the 19th day of February, 1872,-between Samuel F. Arnett of the first part, and Warren M. Anderson, trustee appointed for the purposes hereinafter mentioned, of the second part, and the several persons, creditors, endorsers, guarantors, or sureties of or for the said party of the first part, who have executed, or shall hereafter execute or accede to these presents within ninety days from the date of these presents, of the third part; whereas, the said party of the first part is at present unable to pay the immediate demands upon him, and deems it just and reasonable to secure, pay and indemnify the several persons, parties to these presents, in the manner hereinafter mentioned; now, therefore, this indenture witnesseth that for the considerations and purposes herein contained, and in consideration of one dollar to him paid by the said party of the second part, etc., the party of the first part does by these presents grant, bargain, sell, convey, assign, transfer, and set over to the said party of the second part, and his assigns, all the stock in trade, goods, wares and merchandise, debts, choses in action, property, and effects of every description belonging to him the said party of the first part, or in which he has any right, or interest whatever, mentioned, etc., in the schedule hereto annexed etc., and also the following real estate, etc.”

. Here follow a number of lots in the Town of Monticello, and numerous tracts of land, and among them the undivided half interest in “ the east half and the northeast quarter of section nine, township fourteen south, range seven west, etc.”

Then the deed proceeds to provide that Anderson, as trustee, should with all reasonable speed sell and dispose of such part of the property conveyed to him in. trust, as was of a saleable nature, and use his best endeavors to collect all debts, etc., transferred to him; and forthwith after deducting all expenses, costs, charges etc., “distribute and pay over all of the residue of said trust property to and among all the persons, creditors of said party of the first part, who shall become parties hereto in the manner hereinbefore prescribed, rateably and in proportion to the amounts due to each of them respectively, without any preference or priority; and in case there shall be any surplus of said trust property or effects after fulfilling said trusts, then upon trust that said party of the second part do so and shall convey, deliver and pay over the same to the said party of the first part, his executors,” etc.

Then follows a clause by which the grantor constitutes the trustee his attorney in fact, and empowers him to sue for, collect and compromise the debts, etc., and to sell the trust property for cash or on time, to make deeds, etc., to discharge liens, etc. Then follows this clause :

“'Provided further, that no person shall be entitled to be admitted a creditor under these presents unless notice shall have been given by him of his debt or demand to the party of the second part before a final dividend shall have been made of said trust property, under the trusts herein declared; nor shall any person be admitted a creditor after any one or more dividend or dividends shall have been made under the trust herein declared, but on condition of his not requiring any abatement or .otherwise disturbing the dividend or dividends made prior to his having given notice of his debt or demand.”

And, finally, there is this clause in the deed:

“And the said respective creditors, parties hereto, each and every one of them for himself and herself severally and respectively, and for their several and respective executors, administrators, partners and assigns, do hereby accept and take the estate and effects hereinbefore assigned in full payment, satisfaction and discharge of all their respective debts and demands afore-, said, and of all loss or damage sustained, or to be sustained by reason of any liability aforesaid; and do, and each and every one of them does, absolutely remise, release, discharge and quit claim the said party of the first part of and from all demands which they or any or either of them no.w have, or ever had, claimed or demanded against the said party of the first part.”

The deed is signed by Arnett and Anderson only.

The cause was transferred to the equity side of the court, as prayed by Anderson, and heard upon the complaint and exhibit, the answer and exhibit, and an agreement of facts made by plaintiff and Anderson as follows:

“The land in controversy Ayas OAvned by Samuel F. Arnett. On the 1st day of January, 1872, Arnett was totally insolvent, and made an assignment and conveyance by deed, of all bis property subject to execution to defendant Anderson as trustee to hold, use and dispose of for the benefit of liis creditors. Said deed is here referred to and read as part of this agreed statement. In such deed by mistake, the land in controversy was omitted, but it was the intention of Arnett to convey the same by said deed. Anderson is in possession, holding under said deed of assignment. On the 29th of April, 1872, said Arnett died intestate. ~W. S. McCain, the plaintiff, Avas, on the 1st day of August, 1872, appointed administrator of said Arnett’s estate, and is now such administrator. Debts are probated and unpaid against said estate to the amount of $500. Some of the debts probated Avere made before said deed of assignment and some afterwards.”

The court decreed (26th-April, 1876) that the mistake in the deed of assignment be corrected according to the intention of the parties, and that the title of Anderson, as trustee, to the land in controversy be quieted, and that plaintiff be forever enjoined from any further prosecution of the suit for the land, etc.

McCain appealed to this court.

I. Upon the facts alleged in the cross-complaint, not put in issue by a reply, and proven by the agreed statement of facts, appellee made a case for correction of the mistake in the deed of assignment, if he shoAved that he was entitled to hold possession of the land for the purposes of the trust as against the administrator of the grantor in the deed.

The power of a court of chancery to correct such mistakes is well settled. Steward et al. v. Pettigrew, 28 Ark., 372; Allen v. McGaughey et al., 31 Ark., 255.

II. There is no allegation in the cross-complaint that any creditor of Arnett accepted, or assented to the provisions of the deed of assignment, nor was it shown by the agreed statement of facts, or otherwise, that any creditor accepted or assented to the provisions of the deed, nor that Anderson, who signed the deed as trustee, was a creditor.

"When a deed of assignment to a trustee is apparently for the benefit of creditors, their assent to it is to be presumed. Conway et al. ex parte, 4 Ark., 360; Hemstead v. Johnston et al., 18 Ark., 131.

But where there are conditions in the assignment, as, for instance, that the creditors shall release their debts, there the same presumption does not arise, because it involves a question of discretion, upon which different minds may draw different conclusions. Halsey et al. v. Whitney et al., 4 Mason, 215; Burrill on Assignment, p. 339.

In this case there is a provision in the deed that the creditors should accept the property assigned in full satisfaction and discharge of their debts, demands, etc., and that the assignor should be released, etc.

Who the creditors, were, the nature of their claims, or what securities or liens they may have had, does not appear.

Under such circumstances, though the assignor was insolvent, we are not at liberty to presume the assent of the creditors to the provisions of the deed of assignment.

It may be that some of the creditors assented to the deed, and that the trustee partially executed the trust, and hence the small amount of debts probated against the estate of Arnett, after his death, compared with the seeming amount of property embraced in the assignment; and yet it is remarkable that the trustee, who seeks to retain possession of the land in controversy, as part of the trust property, did not aver in his cross-complaint, or attempt to prove, that any creditor had assented to the deed.

For anything that appears to the contrary in the record before us, the trustee holds the 'title to the land in controversy in trust for the legal representatives of Arnett, and his administrator being entitled to the possession of the land, as assets, for the payment of the probated debts, might maintain ejectment therefor. Halsey et al. v. Whitney et al, supra, p. 214; Carnall v. Willson, 21 Ark., 62.

Neither the appellant nor the appellee appears to have any personal interest in the land in controversy, both occupying trust relations to the estate of Arnett; it is but just therefore that the court below should have further facts before it, if any there be, in order that equity may be done in the premises. The decree must be reversed, and the cause remanded with instructions to the court below to permit apellee to amend his cross-complaint, if he can show the assent of any of the creditors to the deed, and that he is entitled to hold the land for the purposes of the trust; and that appellant be permitted to reply, if he thinks proper to do so.


text:
    Richardson vs. Hickman, adm’r.
    1. Mechanic’s Lien: When Property in hands of Receiver.

    Tiie fact that property is in the hands of a Receiver, in an equitable proceeding, is no defense to an action to enforce a mechanic’s lien against it.
    2. Claims against Estates: Lien, Probate, etc.

    When a creditor has acquired a specific lien on particular property during the life of the debtor, it may be enforced after his death, and the creditor need not resort to the general assets of his estate, through the Probate Court.

      3. Process : Defect in Summons.

    In an action against an administrator his representative capacity was not stated in the summons; held, that the omission did not render the writ void, and the court should have directed it to have been amended, and not have quashed it.
    APPEAL from Bradley Circuit Court.
    Hon. Theodorio E. Sorrells, Circuit Judge.

      Carlton & McCain, for appellants.
   Harrison, J.:

This was a petition filed by Warren M. Richardson, to which William J. Hickman, as administrator of Augustus M. Plargraves, deceased, and James M. Drummond, were 'made defendants, for the enforcement of a mechanic’s lien.

The petition alleged that the petitioner is a mechanic, and, as such, at the instance and request of the said Plargraves, he did and performed for him work and labor in repairing the certain steam saw and grist mill belonging to him in Bradley County, situated in township sixteen, range eleven, and on the left of the road leading from Moco Bay to Johnsville for certain hire and wages amounting to the sum of $480, of which $80 only had been paid.

That the work was completed on the 14th of March, 1874, and, to save and perfect his lien therefor on the mill, he filed with the clerk of the Circuit Court, on the 29th of May, 1874, an account of his demand showing the amount due, and containing a description of the mill as prescribed by the statute. That since the work liad been done, but before the account was filed with the clerk, the said Hargraves had died, and the defendant William J. Hickman had been appointed his administrator; and that since his death the defendant James M. Drummond claimed an interest in the mill.

The petition was filed and summons issued on the 3d day of September, 1874.

The writ commanded the sheriff to summon ¥m. J. Hickman;, without stating his representative character, and James M. Drummond, to answer a complaint in equity, and the defendants, for that cause moved to quash it, which motion the court on the 23d day of March, 1875, sustained, and an alias summons was ordered returnable to the next term of the court.

Upon the return of the alias summons, the defendants filed an answer, in which they set up as a defense, that, before the commencement of the action, the mill had been,, by a proceeding in chancery, placed in the hands of a receiver, but the parties to, or the nature of the proceeding was not stated.

The plaintiff demurred to the answer as presenting no matter of defense. The court, upon the consideration of the demurrer, adjudged that the complaint showed no sufficient cause of action, and dismissed the suit.

The plaintiff appealed.

The matter shown in the answer was no defense to the action. The fact that the property was in the hands of a receiver could not affect the plaintiff's right of action, as a recovery by him and a sale under the judgment could not in any way impair the rights of the parties to the proceedings in equity, the statute expressly providing, and such would be the case we presume without such express provision, that persons interested in the property, who are not parties to it, shall not be bound by the proceeding to enforce the lien. Gantt’s Digest, secs. 4064, 4068.

The possession of the receiver could not be disturbed by a purchaser under the plaintiff’s judgment if he recovered in the action, but the purchaser would be entitled to become a party to the suit in equity, and set up his title against the other parties.

"We are not apprised by the record, upon what ground the court held the complaint insufficient, or why it dismissed the suit. A cause of action was, we think, very clearly and fully stated. If it was uncertain or indefinite in any respect, the defendants might, by motion, have had it made more specific; but we can see no such objection.

Counsel for the appellant suggests — the appellees have no counsel here — that the ground of the objection was that the plaintiff’s claim had not been presented to the administrator for allowance, and as the suit was dismissed, and no judgment on the merits was rendered against the plaintiff, we suppose it wras on that ground. But, if so, it was not well taken.

When a creditor has acquired a specific lien on particular property of his debtor during his life, it may be enforced after his death, and the creditor- need not resort to the general assets of his estate, through the administrator in the Probate Court. Hall v. Denckla, 28 Ark., 506; Nicholls & Barrett v. Gee, 30 Ark., 135; Barber v. Peay, adm’r, 31 Ark., 392.

The statute gave the plaintiff a right of lien on the mill for his labor bestowed upon it, and Hargrave’s death did not have the effect to deprive him of the power • of perfecting his lien, which was before inchoate, by filing the account in the clerk’s office, because it was for the plaintiff’s benefit alone, and entirely independent of the will or assent of Hargrave.

The mistake or error in the original summons did hot affect any substantial right of the defendants or render it void, and the court should have directed it to be amended, and not have quashed it. Gantt’s Digest, sec. 4619; Galbreath et al. v. Mitchell et al., supra; Rudd v. Thompson, 22 Ark., 363; Thompson v. Bremage, 14 Ark., 59; Mitchell v. Conley, 13 Ark., 414.

The judgment of the court below is reversed, and the cause remanded, to be proceeded in according to law and not inconsistent with this opinion.


text:
    Dyer vs. Gill.
    1. Private Seals: Abolished by the Constitution of 1868; Statute of Limitations.

    The Constitution of 1868, contained the following provision: “ Private seals are hereby abolished, and hereafter no distinction shall exist between sealed and unsealed instruments concerning contracts between individuals.” Its effect was to reduce all sealed instruments executed after the adoption of the Constitution to the grade of simple contracts, and a note executed under seal was, in legal effect a promissory note, and subject to the statute of limitation of five years, applicable to unsealed instruments.
    2. ---: Same; Constitution of 1874.
    The Constitution of 1874, contained the following provision: “ Until otherwise provided by law, no distinction shall exist between sealed and unsealed instruments concerning contracts between individuals, executed ' since the adoption of the Constitution of 1868. Provided, that the statute ¡ of limitations with regard to sealed and unsealed instruments, in force at , the time, continue to apply to all instruments afterward executed, until , altered or repealed.” Its effect was to continue in force, subject to legislation, the provision of the Constitution of 1868, abolishing private seals, but to limit its application to instruments executed after its adoption. It also renewed the application of the statute of limitations of ten years (existing at the date of the adoption of the Constitution of 1868,) to sealed instruments executed after the adoption of that Constitution.
    3. -: Power of the Convention to change the period of limitation,
    The Convention of 1874, had the power to restore the application of the statute of ten years to sealed instruments executed after the adoption of the Constitution of 1868, when the instrument was not barred at the time by the limitation applicable to unsealed instruments.
    APPEAL from Conway Circuit Court.
    Hon. J. M. Smith, Circuit Judge.

      Iiallum for appellant.
   English, Ch. J.:

On the 28th of August, 1875, Andrew J. Dyer (assignee of A. B. Boggs,) sued John W. Gill, in the Circuit Court of Conway County, on the following instrument:

“ $700. Lewisburg, Ark., July 1st, 1868.

“On or before the 25th day of December, A. D. 1868, T promise to pay to A. B. Boggs the sum of seven hundred dollars, with 10 per cent, interest from January 15th, 1867, for value received of him. Witness my hand and seal, this July 1st, 1867. John W. Gill. [l. s.]”

The complaint alleged that the defendant made a payment on the note of $500, January 1st, 1870; and that on the 23d of March, 1873, the note was assigned to plaintiff, for value, by Boggs, the payee. The note, with the credit, and assignment-indorsed, was filed with the complaint.

The defendant pleaded that the plaintiff’s cause of action did not accrue within five years next before the commencement of the suit.

The plaintiff demurred to the plea, on the ground that ten-years, and not five, was the period of limitation applicable, under the statute, to the cause of action. In other words, that the-instrument sued on was a writing obligatory, or contract under-seal, and not a promissory note.

The court overruled the demurrer, and plaintiff’s resting,, final judgment was rendered for defendant, and plaintiff appealed.

Had the instrument been executed before the adoption of the Constitution of 1868, it would have been a writing obligatory, and ten years would have been the bar, under sec. 1, ch. 106, Gould’s Dig.; Rose’s Dig., p. 502.

The Constitution of 1868, contained this clause : “ Private seals are hereby abolished, and hereafter no distinction shall exist between sealed and unsealed instruments concerning contracts between individuals,” etc. Sec. 16, art. xv.

The instrument sued on was executed after the adoption of the Constitution of 1868, and was a private contract in writing between individuals. Hence the words, “ witness my * * seal,” and the scroll amounted to nothing. The instrument was, and could be nothing but a promissory note, or contract in writing, not under seal, and was necessarily within the clause of the statute of limitations then, and yet in force, which declares that “Actions on promissory notes, and other instruments of writing, not under seal, shall be commenced within five years after the cause of action shall accrue, and not after,” etc. Gould’s Dig., sec. 15, ch. 106. Gantt’s Dig., sec. 4125, and note.

It was impossible for the maker of the instrument to add anything to its dignity, or raise its grade, by putting his seal to it, after private seals had been abolished by the Constitution; the putting of the seal to the contract had no legal effect upon it whatever — not more than the sprinkling of sand upon it to dry the ink, after it was written.

Such would have been the law of this case, and the cause of action would have been barred by limitation when it was commenced, but for a provision of the schedule of the Constitution of 1874, which, we think, prolonged the period of limitation.

The provision is as follows: “ Until otherwise provided by law, no distinction shall exist between sealed and unsealed instruments, concerning contracts between individuals, executed 1 since the adoption of the Constitution of 1868. Provided, that the statutes of limitation with regard to sealed and unsealed instruments in force at the time, continue to apply to all instruments afterwards executed, until altered or repealed.” Schedule, sec. 1. \

The meaning of this clause of the Schedule, down to the pro- 1 viso, is clear enough. ' It, in effect, continues the provision of the Constitution of 1868, abolishing private seals, in force, subject to legislation, but limits its application to instruments executed after the adoption of that Constitution, and forbids its ápplica- 1 tion to instruments previously executed ; that is, prevents it from having a retro-active effect.

So we think the meaning of the proviso is manifest, from the language employed:

“Provided, that the statutes of limitation with regard to sealed and unsealed instruments,” (ten and five years — Gould’s Digest, sec. 15, ch. 106,) “ in force at that time,” (the time of the adoption of the Constitution of 1868,) “continue to apply to all instruments afterwards executed,” (executed after the adoption of the Constitution of 1868,) “ until altered or repealed ” — that is, until the statutes of limitation referred to shall be altered or repealed.

Thus, the convention thought proper to provide, in effect, that the statute of limitation for ten years should apply to instruments executed in the form of writings obligatory, after the adoption of the Constitution of 1868, until the statute should be altered or repealed.

The power of the convention to make this provision, so far as it does not interfere with vested rights, is not to be denied. It related to the remedy only upon contracts having the foi’m of sealed instruments executed after the adoption of the Constitution of 1868, and put them upon the same footing, as to limitation, occupied by sealed contracts previously executed.

The instrument in suit has the form of a waiting obligatory, though such was not its legal character when issued — then, in law, it was of no higher grade than a promissory note, as above shown. It was not barred by the statute of limitation of five years, when the Constitution of 1874 was adopted. There was a payment upon it, January 18th, 1870, which made a new period from which the statute ran, and five years did not transpire from that period to the time of the adoption of the present Constitution. And if the framers of the Constitution thought proper to prolong the period of limitation as to such instruments, having the form of writings obligatory, and not then barred, their power to do so cannot be questioned; and the maker of the note has no just cause to complain. Whether if the remedy had been barred at the time of the adoption of the Constitution of 1874, it could have been revived, we have no occasion to decide in this case.

There were, perhaps, doubts among business men as to whether ten or five years was the bar to instruments executed in the form •of writings obligatory, after the adoption of the Constitution, of 1868, and debtors may have been indulged, in many instances, under the erroneous impression that the statute of ten, and not ■five years, applied, and it may be that the faamers of the Constitution of 1874 thought proper to prolong the period of limitations as to such instruments, to prevent losses by such misapprehension and indulgence.

The court below erred in overruling the demurrer to the plea •of limitation of five years, and the judgment must be reversed, .and the cause remanded for further proceedings.


author: Harrison, J.: English, Ch. J.:

text:
    Loftin, Sheriff and Collector, vs. Watson.
    1. County Warrants: What county tax not receivable for.

    County warrants, issued since the adoption of the Constitution of 1874, for liabilities incurred by the county subsequent to that date, are not receivable, either under the Constitution, or the statute, in payment of a tax levied to pay county indebtedness existing at the date of the adoption of. the Constitution.

      2. Legislation: Amendment; Constitutional provision, etc.

    An amendment to a bill, which limits or extends its scope, but embraces no new matter not germain to its original purpose, is not within the provision of the Constitution prohibiting the amending or altering a bill, so as to change its original purpose.

      APPEAL from JacJcson Circuit Court.
    Hon. William Byers, Circuit Judge.

      Henderson for appellant.

      Goody contra.

   Harrison, J.:

This was an application to the court below by E. L. Watson, a tax-payer of Jackson County, for a writ of mandamus to compel John R. Loftin, the Sheriff and Collector of Taxes, to receive from him county warrants, issued since the adoption of the Constitution of 1874, in payment of the tax levied by the County Court, in 1876, to pay indebtedness existing at the time of the adoption of the Constitution.

The amount of his tax, to pay such indebtedness, he alleged in his petition, was $33.15, and that he had tendered the sum to the collector, in county warrants, issued since the adoption of the Constitution, and the same had been refused. The collector admitted the facts stated in the petition, but denied the right of the petitioner to pay the tax in such warrants.

The writ was granted, and the collector appealed.

The act of December 14th, 1875, entitled, “An act to prevent discrimination in county warrants or county scrip,” is as follows:

“ Be it enacted, etc.: That all county warrants and county scrip shall be receivable for any taxes for county purposes, except for interest on the public debt, and for sinking fund, and for all debts due the county by whose authority the same was issued; and all city warrants, scrip, acceptances, or money, shall be receivable for any city purposes, except for interest tax, and for all debts due the municipal corporation by whom the same were issued, without regard to the time or date of issuance of such warrants, scrip, acceptance or money, or the purpose for which they were issued ; and it is hereby made the duty, and authority is hereby conferred upon the County Court of the respective counties, or the Judge thereof, in vacation, to make all needful orders compelling collectors, both county and municipal, to comply with the provisions and intent of this act. Provided, that nothing in this act shall authorize the collector to receive scrip issued since the adoption of the Constitution, in payment of the tax levied to pay the indebtedness existing before the adoption of the Constitution.”

The Constitution, art. xvi, sec. 9, fixes the rate of county taxation at one-half of l'per cent., for all purposes, except to pay indebtedness existing at the time of its ratification, for which the levy of an additional one-half of 1 per cent, may be made; and sec. 11, of the same article, forbids any money arising from a tax levied for one purpose to be used for any other purpose.

It is thus seen that the collector was inhibited from receiving the warrants, by both the Constitution and the act of December 14th, 1875. Had he received them, the levy would have failed of its purpose, for the new warrants would have discharged no part of the old indebtedness, and the tax would have been perverted, in violation of the Constitution, to a purpose for which it was not levied, and that also, instead of one-half of 1 per cent, only, that might be levied for ordinary purposes, 1 per cent, would have been collected.

Another thing may be noticed — the old warrants, after they have been presented for payment to the Treasurer, draw 6 per per cent, interest; the new draw none. Sec. 1, of the article of the Constitution before referred to, denying to counties the power to issue interest bearing evidences of indebtedness.’

If the act of December 14th, 1875, had .not been passed, no question could exist as to the right to pay the tax in old warrants, for the law under which they were issued expressly provided that they should be received for all taxes and dues to the county, and they go directly to the extinguishment of the indebtedness.

We are to presume the warrants tendered the collector were upon allowances for liabilities of the county, incurred since the adoption of the Constitution.

The judgment of the court below is reversed, and the case remanded to it, with instructions to overrule the motion for the writ of mandamus.

English, Ch. J.:

When the opinion of the court in the above case was announced, by Mr. Justice Harrison, it was holdup, on the suggestion of a member of the bar, that in another case pending in the court, (Lindsey v. Rottaken,) it was insisted that the act 14th of December, 1875, was passed in violation of a provision of the Constitution, and was void. We have looked into the question, and arc now prepared to announce the conclusions which we have reached, after hearing the oral argument in the case referred to.

Sec. 21, art. 5, of the Constitution, provides that:

“No law shall be passed except by bill, and no bill shall be so altered or amended on its passage, through either house, so as to change its original purpose.”

We have been furnished, from the-office of Secretary of State, with an authenticated copy of the original bill, which, when amended, as shown by the journals of the two houses, and passed, became the act in question.

The original bill, when introduced in the House of Representatives, November 9th, 1875, read as follows :

A bill for an act to prevent discrimination in county warrants or county scrip.

u Be it enacted by the General Assembly of the State' of Arkansas :

Sec. 1. That all county warrants, or county scrip, shall be receivable for any taxes for county purposes, and for all debts due the county by whose authority the same were issued, without regard to the time or date of the issuance of such warrants, or for the purpose for which they were issued ; and it is hereby made the duty of, and authority is hereby conferred upon the County Court of the respective counties, or the Judges thereof, in vacation, to make all needful orders, compelling collectors to comply with the provisions and intent of this act.

Sec. 2. That all laws and parts of laws in conflict herewith be, and the same are hereby repealed; and this act be in force, and take effect from and after its passage."

“ Hill, of Calhoun

It apppears from the House Journal that the bill was read a first and second time, and referred to the Committee on the Judiciary.

On the 9th of November the committee reported the'bill back to the House, recommending that sec. 1 of the bill be so amended as to read as follows :

“ That all county warrants and county scrip shall be receivable for any taxes for county purposes, except for interest on the public debt, and for sinking fund, and for all debts due the county by whose authority the same were issued; and all city warrants, scrip, acceptances or money shall be receivable for any taxes for city purposes, except for interest tax, and for all debts due the municipal corporation by which the same were issued, without regard to the time or date of issuance of such warrant, scrip, acceptance, certificate or money, or the purpose for which they were issued, and it is hereby made the duty, and authority is hereby conferred upon the County Court of the respective’ counties, or the Judges thereof, in vacation, to make all legal orders compelling collectors, both county and municipal, to comply with the provisions and intent of this act.”

And the committee recommended that the bill so amended be passed.

The report and the amendments recommended by the committee were adopted, and the bill ordered engrossed; and on the 1st of December the bill, having been engrossed, was read a third time, and passed.

The Senate Journal shows that the bill, as sent from the House, was read the first time on the 2d of December, the rules suspended, and read the second time, and referred to the Committee on Finance.

On the 7th of December the committee reported, recommending that the following proviso be added to sec. 1:

“ Provided, that nothing in this act shall .authorize the collectors to receive scrip issued since the adoption of the Constitution in payment of the tax levied to pay the indebtedness existing before the adoption of the Constitution.”

The amendment proposed by the committee was read the first time, the rules suspended and read a second time, and, on the 8th of December, the bill, as so amended, was read the third time, and passed.

The bill was returned to the House, the amendment of the Senate concurred in, read a thiid time, on the 9th of December, and passed.

The objection to the validity of the act is, that the bill was so amended by the two houses as to change its original purpose.

The purpose of the bill was to make county warrants, etc., receivable in payment of county taxes and debts, without regard to the dates of such warrants, or the purposes for which they were issued. The original purpose of the bill was preserved in .the act, but the amendments made by the two houses limited the scope of the bill, by exceptions, and extended it so as to embrace city warrants, etc., with like exceptions.

Thus the original bill declared that county warrants should be receivable in payment of all county taxes, etc., without regard to date or purpose of issuance, and the amendment of the House limited the scope of the bill by excepting taxes levied for interest on the public debt and sinking fund.

So, the original bill did not embrace cities, but the amendment of the House .extended the scope or purpose of the bill so as to include warrants, etc., issued by them, with the limitation that Such warrants, etc., should not be receivable in payment of interest tax, etc.

The Senate amendment made a further limitation of the scope of the bill as passed by the House, by a proviso that scrip issued since the adoption of the Constitution should not be received in payment of taxes levied to pay indebtedness existing before its adoption.

The bill, thus limited and extended by the amendments of the two houses, in its scope or purpose, but embracing no new matter not germain to its original purpose, became a law.

No bill shall be so altered or amended, etc., as to change its original purpose.

Purpose, (from the Latin, propositum,) that which a person sets before himself as an object to be reached or accomplished ; the end or aim to which the view is directed in any plan, manner, or execution; end, or, the view itself; design ; intention— Webster.

Though the provision of the Constitution be mandatory, it should not receive so rigid or narrow a construction as to embarrass or hamper the two houses in amending and perfecting their bills, and drive them to accomplish, by a number of bills, that which might well be accomplished by amending a bill, without adding foreign or incongruous matters, or perverting its original purpose. Cooley’s Con. Lim., p. 142, etc.

/To amend a bill for an act regulating attachments, for example, so as to change it into a road, revenue, game, school or estray law, would be palpably in .violation of the Constitution. But a bill for an act to regulate attachments in Circuit Courts, might, we think, be so amended as to embrace attachments before justices of the peace, without any-violation of the Constitution, the subject of the amendment being^ germain, and not incongruous to the purpose of the billy'

Sec. 34 of the same article of the Constitution provides that: “No new bill shall be introduced into either house during the last three days of the session.”

Now, but for sec. 21, the force and intention of this section might be avoided during the last three days of the session, by taking up bills previously introduced for purposes indicated in their titles, and expressed in their bodies, and converting them, by amendment, into bills for totally different puuposes, or en-grafting upon them provisions foreign to their original purposes.

There was a provision in the Constitution of 1868, that no act should embrace more than one subject, which should be expressed in its title. Sec. 22, art. v. But it was regarded as no violation of this clause of the Constitution to embrace, in a revenue act, provisions for levying and collecting State, county, township and city taxes, and such was the habit of the Legislature.

Under a similar provision of the Constitution of Minnesota, in Board of Supervisors of Ramsey County v. Heenan, 2 Minn., 338; held that an “ act to provide for township organizations,” was not void for containing provisions relating to county organizations. That, in a technical sense, the act did embrace more than one subject, and that but one was expressed in the title, but that the subjects were intimately connected and associated, and the embracing of them in the same act, though forbidden by the letter, was not by the spirit and intention of the Constitution.

So, in Tuttle v. Strout, 7 Minn., 468; held, that An act for homestead exemption,” was not void because it treated also of exemptions of personal property. That exemptions for sale on execution was the subject of legislation, and with a provision-for exempting the homestead might be embraced provisions for exempting personal pi’opertv, without violating the spirit of the Constitution.

See, also, Palmore v. State, 29 Ark., 252; Fletcher v. Oliver, 25 Ib., 298.

Counties and incorporated cities and towns are but larger and smaller divisions of the State, for governmental and police purposes, and we can see no violation of the spirit of the clause of the Constitution in question, giving it a reasonable interpretation, in holding that a bill having for its purpose an act requiring county scrip to be received in payment of county taxes, etc., might not be so amended as to embrace city scrip, etc., the subjects being kindred, and usually associated in our revenue acts.

If there be a mere doubt about the constitutionality of an act, the habit of the courts is to solve the doubt in favor of the validity of the act, and thereby concur with the judgment of the Legislature.


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    Littlejohn vs. Lewis.
    Attachment; Judicial Garnishment.
    A filed an account, and affidavit as in case of attachment, with a justice of the peace, against B, and, without process against B, sued out a writ of garnishment against O. At the return day of the garnishment a summons was issued against B, was served, and judgment was rendered against him by default; held, that the proceeding was begun by attachment, and the garnishment pending the judgment was void; held, further, that aa no writ of garnishment was issued after the judgment, there was no seizure of any debtor effects belonging to the defendant in the garnishee’s hands, and a judgment against him would not have had the effect- to release him from liability to the defendant.
    APPEAL from Washington Circuit Court.
    Hon. J. M. Pittman, Circuit Judge,

      Davidson, for appellant.

      J. D. Walker, contra.

   Harrison, J.:

F. N. Littlejohn on the 28th day of September, 1875, filed with a justice of the peace an account againt T. W. P. Wright for §61.50, and an affidavit, as in case of attachment, and, without any process against Wright, sued out a writ of garnishment against A. G. Lewis. The writ of garnishment, which was returnable on the 2d day of October, 1875, was-served on Lewis, and on the return day thereof, Littlejohn filed allegations and interrogatories for him to answer, to which he the same day filed an answer, denying any indebtedness to Wright, or that he-had in his hands any thing belonging to him. And on that day, the 2d day of October, a summons was issued against Wright, which was served on him, and on the 23d day of October, 1875, judg•ment was rendered against him by default.

On the 18th day of October, previous to the judgment against Wright, the plaintiff filed a denial of the truth of Lewis’ answer, and on the 20th day of December following, sued out a summons against him to answer on the 15th day of January, 1875, “the claim of F. N. Littlejohn in the contested garnishment, answered on the 2d day of October, 1875, wherein F. N. Littlejohn is plaintiff and T. W. P. Wright defendant.”

The facts put in issue by the answer and the denial, were tried by the justice, who found in favor of Lewis. Littlejohn appealed to' the Circuit Court, where he obtained a verdict for $61.50, the amount of his judgment against Wright.

Lewis filed a motion in arrest of judgment; the court sustained the motion, and dismissed the case for want of jurisdiction. Littlejohn then appealed to this court.

From the foregoing statement of the case, it plainly appears that the suit was not commenced by attachment, and that the proceedings against the appellee pending the judgment against Wright were unauthorized by law and void. Gantt’s Digest, secs. 388, 419, 423. Leingardt et al. v. Deitz, 30 Ark., 224.

And as no writ of garnishment was issued after the judgment as provided in sec. 2991, Gantt’s Digest, it is equally clear, there was no attachment or seizure of any debt, or any thing belonging to the defendant in the appellee’s hands, and that a judgment against him would not have had the effect to release him from any liability to the defendant.

The court therefore did not err in arresting the judgment and dismissing the case.

Judgment affirmed.


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    Talbot, ex parte.

    Surety on County Treasurer’s Bond: Discharge of by County Court.
    It is in the discretion of the County Court, upon a proper showing by a' surety on the official bond of the County Treasurer, to require the Treasurer to give a new bond, and discharge the surety from future liability: but it has no power to discharge the surety from past-liability.

      APPEAL from Jefferson Circuit Court.
    Hon. J. A. Williams, Circuit Judge.

      White-Bell for petitioner.
   English, Ch. J.:

•On the second day of the May Term of the Circuit Court of Jefferson County, 1877, John H. Talbot presented to the court the following petition:

“ To the IJon. John A. Williams, Judge, etc.:

“Your petitioner, John H. Talbot, would very respectfully represent and show unto your Honor that he, on the 25th day of October, 1875, made and entered into a bond in the sum of ten thousand dollars, as surety for Alexander T. Moon, as Treasurer of the County of Jefferson, and that said bond is now on the files of this court, awaiting approval. Your petitioner would very respectfully show unto your Honor that being on said bond as surety is incompatable with his commercial business, your petitioner being a merchant at the City of Pine Bluff; and he says that for these reasons he very respectfully petitions your Honor to release him from said bond, by appropriate order; and that a new bond may be given, and he will ever pray,” etc.

The petition was sworn to before a justice of the peace, 24th November, 1876.

At the foot of the petition, and below the affidavit, is the following :

“We covenant and agree to the granting of the foregoing petition. W. L. Packard.

C. H. Rice.

A. T. Moon.

Maegabet Rice.”

On Monday, June 4th, the .following record entry was made :.

“■■On this day comes the petition of John H. Talbot, to be released from the bond of A. T. Moon, as County Treasurer of the County of Jefferson, to be heard, and after argument it is by the eourt ordered, considered and adjudged that said -petition be denied on account of insufficiency of the reasons set forth therein for the relief asked for.”

On the 20th of June, there was a record entry that the petitioner excepted to the ruling of the court in refusing to grant said petition, and prayed an appeal to the Supreme Court, which was granted.

There was no bill of exceptions bringing any facts upon the record. The petition, and the above record entries are all that appear in the transcript before us.

The statute requires the County Treasurer, twenty days from the receipt of his commission, to enter into bond, with good and sufficient security to the State, etc., etc. Gantt’s Dig., sec. 1028. (Acts of 1877, p. 10.)

The bond is required to be approved by the Circuit Court; but the Judge of the court, or the County Judge, may approve the bond in vacation, subject to confirmation or rejection by the Circuit Court, in term. Acts of 1874-5, p. 192.

We may suppose that Alexander T. Moon was elected Treasurer of Jefferson County, at the general election in the fall of 1876, and entered into bond, with appellant as one of his sureties i that his bond was appoved by the Circuit Judge or County Judge, in vacation, and was on file and awaiting confirmation by the Circuit Court in term, at the time appellant filed his petition to be released from the bond. Moon, doubtless, had acted as Treasurer under the bond from the time of its approval, in vacation, to the time of the application of appellant to be released.

It was not in the power of the court to release him from any liability which had already accrued upon the bond.

Counsel for appellant say that Moon, the principal in the bond, and the other sureties, consented, in writing, for appellant to-be released.

We find no evidence in the transcript that such was the fact.

The bond is not in the transcript, nor does it appear who the other securities are.

We find written at the foot of the petition, as above shown: “ Yfe covenant and agree to the granting of the foregoing petition,” which purports to have been signed by W. L. Packard, C. H. Rice, A. S. Moon and Margaret Rice, but whether these persons in fact signed this writing, or whether any of them are sureties in the bond, or the only sureties, does not appear in the transcript.

But the court had no power to release appellant from any liability he may have incurred as surety on the bond, if a-11 his co-securities and Moon consented to his release, because the bond was made to the State, and the public had an interest in it.

The court had the discretion, however, upon the application of appellant, and upon a satisfactory showing, to require Moon “to give a new bond and security for the performance of his official duties,” and upon the execution and approval, etc., of such new bond, appellant would be discharged from future, but not past liabilities. Gantt’s Dig., sec. 5705-5711.

Such, perhaps, was the intention of appellant’s application, but the court below deemed the showing insufficient, and refused to make an order upon Moon to execute a new bond.

There was no showing in the petition that Moon was incompetent, insolvent, or guilty of any official misconduct, or that he was in any manner failing to discharge, with fidelity, the duties of his office. Dempsey v. Fenno, 16 Ark., 491.

The only showing made was, that appellant was a merchant, and it was incompatible with his commercial business to remain as surety upon the bond of Moon.

We cannot undertake to say that the court below abused its discretion in refusing the prayer of appellant upon such a showing. Affirmed.