text:
    Quinlan v. Fitzpatrick & Teague.
    Administration of estates — appointment of auditor. Tlie probate court, lias no power to appoint an auditor on an estate unless exceptions have been filed to tlie account of the administrator.
    Order of distribution. The probate court has no authority to order the administrator to pay demands on its own motion; but must distribute by its own order the money (not uncollected claims) found upon settlement to be in the administrator’s hands.

      Appeal from Phillips Circuit Court.

    Hon. John E. Bennett, Circuit Judge.
    English, G antt & English, for appellant.
   McClure, J.

It appears that Bridget Quinlan was appointed administratrix on the estate of Thomas Quinlan, deceased, in the month of March 1862; that, in October of 1867, she filed her account for partial settlement, whereby it is made to appear that the said administratrix is charged with $3,874which item is made up of certain writings obligatory, and personal property described in the inventory of the estate; that said administratrix has paid out, on proper vouchers, the sum of $2,369 j3^, thus leaving assets in her hands to the amount of $1,505^^..

Notice was given by publication of the filing of said account for settlement, and, at the January term of the probate court, the same was confirmed, and ordered to be spread upon the records of the court.

At the April term of said court the following order was made:

“This day came John D. Parish, appointed to audit the estate of Thomas Quinlan, deceased, and filed his report as such auditor, which report being examined by the court, the sanie is approved and affirmed. It is therefore ordered by the court, that the administratrix of said estate be and is hereby authorized and directed to pay all claims probated and allowed against said estate, except those classed in the fifth class, and take receipt for the same. And it is further ordered, that she pay John D. Parish the sum of fifteen dollars for auditing said estate; and it is further ordered, that said administratrix of said estate make final settlement of said estate at the next term of this court.” •

On the 7th day of May, 1868, Fitzpatrick and Teague (having previously obtained the allowance of an account against the estate of Quinlan, deceased) filed an affidavit, stating- that payment of said claim had been demanded from Bridget Quinlan, the administratrix of said estate, and' that she had failed to pay the same. Upon the filing of the affidavit, an execution issued against the administratrix.

The administratrix then applied for a writ of certiorari, stating as grounds therefor that the order appointing Parish as auditor was without authority of law, no exceptions having-been filed to her account; that she had no notice of such intended appointment, or the making- of the order compelling- her to pay all but the fifth class claims, and had no opportunity of availing herself of the appeal authorized by statute, and that a supersedeas might be granted until such time as the error complained of could be heard in the circuit court. At the hearing, in the circuit court, the proceedings of the probate court were in all things affirmed, and the supersedeas quashed. Prom- this judgment the administratrix appealed to this court.

The appointment of Parish as auditor seemed to have been made by the corn-ton its own motion. No. exceptions were filed to the account of the administratrix. Our statute provides, in substance, that “where exceptions shall have been filed to an account current of any administrator, that such court may, if deemed expedient, refer such an account to an auditor.” It follows, therefore, that the appointment of Parish as'an auditor was without authority of law. •

The-next question arising in this case is: Had the probate court authority to order the payment of the claims on its own motion, at the April term, the court having at its January session merely confirmed and ordered the settlement 'to be spread upon the record ? Section 14 of Gould’s Digest, chapter 128, says: “At every settlement the court shall ascertain the amount of money which may have come into the hands of the executor or administrator from all sources, and * * * the money remaining, after the expenses of administration are paid, shall be apportioned among the creditors, according to the provisions of this act.”

It will be observed that the . law emphatically declares that the court shall ascertain the amount of money remaining in the hands of the administrator at the settlement. The settlement, contemplated by the act, was made in January, and no distribution of money was ordered. It appears from the record that, at the settlement,” the court confirmed the account, and ordered the same spread upon the record. It does not appear that, at this settlement, any money remained in the hands of the administratrix^ nor is there any order distributing the same. On the contrary, it now appears, from thé showing of the administratrix, that the sum of $l,505y5(£y, that appears as a balance in her hands, consists of a negro woman, now free, valued at $500, and several uncollected notes.

The record shows that the action of the coui't in April was upon its own motion, and fails to show either the presence of or notice to the administratrix. It follows, therefore, that she can not be bound by the action of the court. The object, spirit and intent of the law is, that at the term to which notice is given for making settlement, or to which such settlément may be adjourned, at a time when the administrator is in court, the amount of money (not uncollected claims in his hands) belonging to the estate shall be ordered to be paid to the persons entitled thereto under the law.

If the law required the executor, or administrator, to be held responsible for the immediate payment of the debts of an estate, before the money had been realized from the assets of the estate, -but few persons could be found who would accept such trusts.

The appointment of Parish is without authority of law. The order of distribution made by the probate court, at its April term, is void. The judgment of the eircuit court is reversed, and that court is directed to enter a perpetual supersedeas of the execution, and this cause remanded, with instructions to quash so much of the proceedings of the probate court as conflicts with this opinion.


source: Caselaw Access Project

author: McClure, J.

license: Public Domain

text:
    Jabine & Woodruff v. Midgett.
    Ferries. Ferrymen must use due diligence,' and provide ■ suitable means of transportation.
    Ferrymen must give due attendance on passengers, on all occasions, which, includes high and low water.
    The public grant the exclusive privileges of ferrying upon the consideration that, the traveling public shall be crossed at all reasonable hours, without unnecessary delay.

    Appeal prom verdict. A verdict will not be disturbed by this court if there was any evidence upon which to sustain it.

      Appeal from Pulaski Circuit Court.

    Hod. John Whytocx, Circuit Judge.
    Dodge & Farr, for appellants.
    J. M. Harrell, for appellee.
   McClure, J.

It appears from the record that the appellants were the owners and keepers of a ferry, at the city of Little Rock, and that Midgett, on the 6th day of December, 1866, applied to the persons in charge of said ferry, to be taken across the Arkansas river. It further appears that they did not cross said Midgett until fourteen hours after he made application.

Midgett brought suit against the appellants, under the pro-, visions of section 22, chapter 70, of Gould’s Digest, before a justice of the peace, alleging that he had been detained, without reasonable cause, for the space of fourteen hours.

This cause was submitted to the court, sitting as a jury, and judgment was rendered against the appellants for $56, from which judgment they appealed to the Pulaski circuit court. At the hearing in the circuit court the cause was submitted to a jury, and they found for Midgett, in the sum of $56. The appellants made a motion for a new trial, on the following grounds:

1. Because the verdict was contrary to the evidence.

2. That the verdict was contrary to law-and the instructions of the court.

The motion for a new trial was overruled, and the appellants appealed to this court.

Whether the verdict was contrary to the instructions of the court we are not able to determine, as- the bill of exceptions fails to disclose what instructions were given to the jury-This being true, we will no longer consider the second ground for a new trial.

The remaining question presented for our consideration is, whether the verdict is contrary to the evidence. It has been the uniform practice of this court not to disturb the verdict of a jury if there was any evidence upon which their verdict could be sustained. The bill of exceptions presents no evidence that would warrant us in setting the verdict aside.

The counsel for the appellants urge that ferrymen are of a class known to the law as common carriers, and excusable in a time of high waters, it being the act of God.

The common carrier must use due diligence, and provide suitable' means of transportation. A jury, after hearing the evidence upon this very question, have decided that due diligence was not exercised; that Midgett was unnecessarily detained. /The public grants the exclusive privilege of ferrying for a consideration; that consideration is, that the public, or traveling community, shall be crossed at all reasonable hours, without unnecessary delay.

The law says that all ferrymen shall keep a good boat or boats, if more than one be necessary, in good repair, suitable for the stream they are to ferry over, and give due attendance on passengers, on all occasions.

“ On all occasions,” is certainly comprehensive enough to include high and low water. There was not a single word of evidence showing wherein the ferry-boat, employed at the landing or ferry, was disabled by any unforeseen or untoward event; but-, on the other hand, it is distinctly proven that there was a ferry-boat at the landing belonging to the ferry. The law establishes ferries for the public good and convenience, and not for the individual profit of the keeper; and he who accepts this trust must provide himself with proper boats to accommodate the public at all stages of water, or suffer the consequence of his neglect. ^

Judgment affirmed.


author: Wilshire, O. J.

text:
    Wyatt & Hensley, admrs., v. Burr.
    Writ oe certiorari — to prolate court. The writ of certiorari will not lio to bring up for review a record from the probate to the circuit court, except where there is no opportunity for appeal.
    The proper and usual mode of obtaining a review of the action of the probate court, in disallowing a claim against an estate, is by appeal.

    Attorney. Where the record presented to this court shows that a party was represented in the probate court by attorney, this court will presume such to have been the fact.

      Account in probate court. Wliore an account was presented by B. to the probate court as the claim of B. & Co., and B. did not expressly show that it was his indidviual claim, that court did not err in adjudicating it as the individual claim of B. & Co.

      Appeal from Searcy Circuit Court.

    Hon. Richard H. Powell, Circuit Judge.
    Garland & Nash, for appellants.
    If the judgment of the prohate court ivas erroneous, the appellee could appeal. A writ of certiorari will not lie to, correct error in the proceedings of inferior courts, which could have been corrected on appeal. See Allston, ex parte, 17 Ark., 580.
    The probate court being a court of record, all presumptions are in its favor. 18 Ark., 600; 6 Big., 519; Lenox v. Like, 2 Ark., 14; and if, upon the whole record, the judgment of the probate court appears to be correct, its action will be sustained. 19 Ark., 96; ib., 677; Davis v. Gibson, 2 Ark., 115 ; Lmyne v. Bruton, 10 Ark., 64.
    Watkins & Rose, for appellee.
    Tlie circuit court has 'jurisdiction, by certiorari, over the judgment of the probate court, where the judgment is irregular, and the party had no opportunity of appeal. Derion v. Boyd, 21 Ark., 264.

      Certiorari was the only remedy of the appellee. Chappell v, Jones, 8 Humph., 107; State v. Bill, 13 Bred., 373; Wright v. Gray, 20 Ala., 363; Westv. Williamson, 1 Swan., 21*1; Baker v. Halstead, Busbee Bjüxo, (N. C.,) 41; Darling v. Neill, 15 Texas, 104.
   Wilshire, O. J.

It appears from the transcript, in .this case, that, on the 7th day of February, 1868, E. T. Burr presented a petition to the judge of Searcy circuit court in vacation, for a writ of certiorari, alleging, substantially, that lie was the legal and equitable owner of a demand against the estate of John M. Hensley, deceased; that W. A. Wyatt and John W. Hensley were the administrators' of said estatethat petitioner, on or about the 20th day of September, 1866, made affidavit to the justness of said demand, as required by law, and, for the purpose of presenting the same to the administrators, sent it to Searcy county ; that the same was disallowed by said W. A. Wyatt, as one of the administrators ; that, without the knowledge or consent of petitioner, said claim was presented to the court of probate of Searcy, county, and that said court erroneously rendered judgment against Biirr & Co. for. costs, and not against petitioner, and that the. judgment of said- probate court in this case is in favor of said administrators in their own right, and against Burr & Co., and not against petitioner, and in favor of W. A. Wyatt and J. W. Hensley as administrators, &c.; that the judgment of the probate court does not disclose -who compose the firm of Burr & Co.; and that no such firm as Burr & Co. existed, &c., &c.

A transcript or copy of the proceedings and judgment of the probate court was exhibited with the petition, and, on presentation of the petition, the circuit judge ordered the writ of certiorari to issue.

At the March term, 1868, the cause was heard by the circuit court, and the proceedings of the probate court held to be irregular and the judgment void, and the circuit court quashed the judgment of the probate court, and remanded the. cause to be proceeded in de novo. The defendants in the circuit court excepted and appealed to this court.

The errors assigned are :

. 1. That said cause was taken to the circuit from the probate court, by certiorari, when there was perfect remedy by appeal.

2. That the judgment of the circuit court was to quash the judgment of the probate court, when it should, have affirmed the same..

To determine the first objection made to the proceedings of the circuit court, it becomes necessary to examine the proceedings and judgment of the probate court.

From the transcript of the record, containing a copy of the proceedings and judgment of the probate court, certified as the return of the writ of certiorari, it appears that, at' the October term, 1866, of the Searcy probate court, Burr & Co., by their attorney, appeared and filed, as a claim against the estate of John M. Hensley, deceased, the following writing obligatory:

u $212Arif- Batesville, January 1,1861.

“One day after date I promise to pay to the order of Burr & Co. two hundred and twelve A<r¡r dollars, for value received, with interest at the rate of ten per cent, per annum from maturity until paid. ■ J. M. HENSLEY, [seal.] ”

The statutory affidavit required for the authentication of claims against the estates of deceased persons, was made by E. T. Burr, in the usual form.

It appears, from the affidavit, that there was included in it an account for $17 ; but the record of the probate court does not show that the account was presented with the writing obligatory to the administrators, or the court.

There is no statement in the affidavit to show that the claim was the property of E. T. Burr, individually, at the time the affidavit was made, nor does it appear from the record that Burr was the sole owner of the claim at the time it was presented to the probate court for allowance and classification. The fact that E. T. Burr made the affidavit, required by law, to entitle the claim to presentation to the administrators for their action, was no evidence that he was the sole owner of the claim made out and sworn to, or it was as a partnership demand. The statute in force, when the claim was sworn to by Burr, authorized the authentication of such demand by an “agent or attorney cognizant of the facts.” Acts General Assembly, 1866 and 1867, 818.

It appears from a copy ef the claim in question, contained in the transcript, that it was presented to Wyatt, one of the administrators, and by him examined and disallowed, on the 1st of October, 1866, and on the 18th day of the.same month presented, by the attorney of the claimants, to the probate court, for allowance and classification.

At the October term, 1866, of the probate court, says the record of that court, “ Burr & Co., by. their attorney, appeared in court, and filed a note against the estate of John M. Hensley, deceased, and it appearing to the court that the same was disallowed by the defendants, as such administrators, and the court, after hearing the evidence, being fully advised in the premises, it is therefore considered and adjudged by the court that the same be not allowed,” &e.

The probate court had. jurisdiction of the subject matter, and the claimants appearing, as shown by. the record,' by attorney, and presenting their claim, after one of the administrators had disallowed it, thereby invoking the aid of the court in the allowance and classification of their demand against the estate, if they felt aggrieved by the final judgment of the jirobate court, they should have pursued the means of redress prescribed by law — that of 'appeal.

It does not appear, by the record of the probate court, that an appeal was taken, or attempted to be taken, nor any caiise shown why it was not done by the claimants; and the only excuse shown by the petition of Burr, for certiorari, was that the claim was presented to and passed upon by the court, “ without his knowledge or consentwhich is wholly contradicted by the record of the probate court. Burr alleges, in- his petition for certiorari, that he “ sent the claim to Searcy county to be presented to the administrators,” but does not disclose to whom he sent -it, whether to one of the administrators or to the attorney who presented it to the court; and, from the whole record of the probate court, this court will presume that the claim was placed by the claimants in the hands of the attorney, who presented it to the probate court, and sought to procure its allowance and classification, and. that the claimant will he bound by his action, or neglect, to take an appeal.

This court, in the case of Allston, ex parte, 17 Ark., 580, held that the writ of certiorari will not lie to correct errors in the proceedings of the inferior court, which could have been corrected on appeal. The same doctrine is announced in the ease of Denton v. Boyd, 21 Ark., 267, There the court said: “ If the plaintiff in error, by his petition for certiorari, made a prima facie showing that he was interested in the estate; that the judgment of the .probate court, allowing and classifying' the claim of the defendant in error, was irregular, and that there was no opportunity for an appeal, it was perfectly competent for the circuit court, in the exercise of its constitutional power of supervision over the probate court, to cause a transcript of the record of the proceedings and judgment of the probate court to be removed into the circuit court by writ of certiorari.” • The jurisdiction and powers of the circuit court were • the same when the proceedings in this case were. had as when the cases referred to were before this court.

The appellee alleged in his petition that “he was the sole owner of the demand,” &c. That might have been true, still he did • not so state in his affidavit for the authentication of the claim. But the demand was prepared by E. T. Burr for presentation,, and prepared and authenticated as a demand due Burr & Co. against the estate of J. W. Hensley, deceased; and, as such, was presented, first to the administrator and then to the probate court, and by that court adjudicated. If the demand had been the individual property of the appellee, it was his duty to have so prepared and presented it as to have furnished information to the administrator and the court, to whom the estate was indebted on account of the claim, and his failure to do so was his own fault, and he can not now complain. There was no evidence before the probate court, by assignment or otherwise, to show that the demand was the property of any one other than the firm of Burr & Co.

After a eai-eful examination of the record of the judgement and proceedings of the probate court, we are of opinion that the judgment of that court ought to have been affirmed; and the circuit court erred in quashing the judgment of the probate court, and for this error the judgment of the circuit court is reversed, and the catise remanded, with directions to that court to affirm the judgment of the probate court.


author: .Bowen, J.

text:
    Bostick v. Brittain.

      Replevin — instructions to jury. In a suit brought to replevy cotton, it is; proper to instruct the jury that, “if they believe, from the evidence, that the plaintiff had an interest in the cotton, coupled with the right to take possession and control the same, at the time of the commencement of the ■action, they must find for the plaintiff, although they may believe from the ■evidence that other parties had an ultimate interest in an account for the proceeds.”
    In such a suit it is proper to instruct that, “to enable the plaintiff to sustain this action, it devolves upon him to prove that he was entitled to the possession of the cotton on the day specified in his declaration.”
    A partner may maintain replevin. A member of a firm may maintain rep Zcrm for 7ws interest as.a partner in, and his right of possession as such partner to, the goods replevied.
    Excessive damages. This court will not set aside a verdict for the defendant to this (a replevin) suit, on the ground of excessive damages, since the •evidence as to the value of the goods replevied is conflicting.

      Appeal from Hempstead Circuit Court.

    lion. John T. Bearden, Circuit Judge.
    Garland & Nash, for appellant.
    This court will always award a new trial where the damages are excessive. Walworth v. Pool, 9 Ark., 395 ; 19 Ark., 234; and this rule is one generally recognized. "1 Graham §- Waterman, Neto Trials, 442; 3 ib., 1158.

      A party having the immediate right of possession of personal property, can maintain- replevin regardless of the right of property, or absolute ownership. Gould’s Dig., ch. 145, see. 1; 17 Ark., 450 ; 14 ib., 603 ; 11 Ark.,.,249; ib., 475 ; Hempstead C. G., 66; 7 Johns., 140; 20 ib., 465 ; 14 ib., 84; 19 Barb., 473, 481; 2 Swcm., 358; 4 J. J. Marshall, 255 ; 7 ib., 11; 8 Dana, 270.
    Instructions that are calculated to mislead the jury, or are •erroneous as to any material point, are good cause for reversal. 15 Ark., 491; 16 ib., 308.
    Judgments on the merits, in trials in replevin, against plaintiffs, should not be, in the first instance, for damages, but should be for return of property; or, in default thereof, for damages. Gould’s Dig., ch. 145, sees. 44, 45; 1 Eng., (6 ArkA 506 ; 2 ib., (7 Ark.,) 25. ’
    Gallagher & Newton, for appellee.
    Judgment of the court was in accordance with the statute. See. 45, eh. 145, Gould’s Digest, 909.
    One part owner of chattel can not bring replevin, and this objection is equally as available by plea in bar as by plea in abatement. Cox v. Morrow, 14 Ark., 609; Duval v. Mason, 23 Ark., 31; Chitty’s PI., vol. 1, marg. p. 163.
    To support replevin, the plaintiff must have had, at the time of the capture or detention, either the general property in the goods taken or a special property therein, and the plaintiff must also have had at the same time the right to the immediate possession of the property. Here no interest or property, general or special, or right of possession of the property mentioned, was ever in the plaintiff, as appears from the evidence. 1 Ghitty, marg. p. 163 and 164, and p. 163, a., and «authorities there cited.

   .Bowen, J.

At the November term, A. I). 1865, John S. Bostick brought an action of replevin against Benjamin L. Brittain, in. the Hempstead circuit court, for sixteen hales of cotton. The writ issued and was executed on the 7th of October, and the cotton (16 bales) delivered by the sheriff to the plaintiff.

At the May term of said court the defendant appeared, by attorney, and filed four pleas: 1. The general issue; 2. Property in himself; 8. .Property in the estate of Phillips; 4. Property in Kent.

The evidence is very unsatisfactory, and is such that a court would not disturb the verdict of the jury in favor of either party, and certainly not at the instance of the appellant, against whom the weight of evidence seems to be. Therefore, without noticing the evidence in detail, we pass to the examination of the other points raised.

The plaintiff asked the court to instruct the jury as follows: “ If the jury believe from the evidence that Bostick had an interest in the cotton, coupled with the right to take possession and control the same, at the time of the commencement of the action, they must find for the plaintiff, although they may believe from the evidence that other parties had an ultimate interest in an account for the proceeds.” The defendant objected to the giving of this instruction, which objection was sustained by the. court, to which ruling the plaintiff at the time excepted.

The. court then, at the request of the defendant, gave the jury four instructions, as follows :

1. That, to enable the plaintiff to sustain this action, it devolves upon him to prove that he was entitled to the possession of the cotton as his own individual property, on the c>ay specified in his said declaration, and that, if he fails to make such proof, they must find for the defendant.

2. That the plaintiff must recover on the strength of his own title, and not upon the weakness of that of the defendant; and that, if he fails to prove such superior title the defendant’s possession is good, as against him, and they must find for the defendant.

3. That if the jury believe from the evidence that the cotton in question was the property of Bostick, Penny wit & Co., and not the individual property of said plaintiff, they must find for the defendant.

4. That unless the jury believe from the evidence that the cotton seized in this suit, by virtue of the writ of replevin, is the identical cotton sold by Benfro to Black, and by him to Bostick, and not other cotton, they must find for the defendant, and that the burden of proof devolves upon the plaintiff to show that the cotton seized, under the writ of replevin herein, is the identical cotton alleged to have been sold by Benfro to Black and by Black to Bostick.

To the giving of the first and third of which instructions the plaintiff objected, and, the court overruling the objection, plaintiff at the time excepted.

The jury returned the following verdict: “ We, the jury, find the within cotton to be the property of said defendant, Benjamin L. Brittain; that the same has been replevied and delivered to the said plaintiff, and that the same has not been returned, and assess the defendant’s damages therefor at eighteen hundred and forty dollars.” Whereupon the court rendered judgment for the defendant for that amount with interest and costs,

The plaintiff, by consent of parties, waiving time, made a motion for a new trial, for the following causes:

1. Because he submits that the court erred in giving the jury the first and third instructions asked by defendant against the objections of the plaintiff.

2. Because the court erred in refusing to give the jury the instructions asked by plaintiff.

3. Because the assessment of the value of the property replevied, made by the jury, was excessive, and not warranted by the evidence; which motion was by the court overruled, to which ruling the plaintiff at the time excepted.

This case comes here on appeal. Had the first instruction for defendant omitted the words, as his own individual property,” it would have been correct. As it was given, it is not the law, nor is the third instruction; for, if it he true that the firm of Bostick, Pennywit & Co. had the general property in the cotton, Bostick’s interest and right of possession and control, as clearly shown by the evidence of May and Neal, was such as to entitle him to maintain replevin under our statute.

The court likewise erred in refusing the instructions asked by the plaintiff, which are the reverse of those given for the defendant.

The last cause assigned in the motion for new trial raises the question of excessiveness in the verdict.

John H. Morgan is the only witness who swears to the value of the identical cotton replevied. "When introduced by the defendant, he testified that cotton was worth from 10 to 20 cents, but that this particular cotton was worth only 12 J cents per pound.

The other witnesses for defendant put the price of cotton generally at from 15 to 20 cents, as shown by the depositions of Baird, Taylor and Carruth.

Ferguson alone puts the price of cotton at 30 to 35 cents, but did not swear in regard to the particular lot in controversy. All the witnesses examined on that point say that there is a difference in favor of cotton which has never been rebaled; some say five and some ten cents per pound, and the weight per bale is fixed without question at 475 pounds. Ferguson put the difference between cotton which had and had not been rebaled at ten cents.

In view of all the evidence upon this point, together with the uncertainty as to whether this cotton ever had been re-baled or not, and in view of the uncertainty in relation to whether this was or was not the Black cotton, we think the court was right in not disturbing the verdict on the ground of its being excessive.

A party, however, is entitled to have the jury pass upon the facts, with a correct understanding of the law applicable to them, and when this is not done, and the jury might if correctly instructed as to the law have rendei’ed a different verdiet, this court will award a new trial. Bizzell v. Brooker, 16 Ark., 309.

Therefore, in this case, the instructions objected to by plaintiff being clearly erroneous, and it being impossible from the record to determine what the finding would have been had the law been correctly expounded by the court, the judgment of the circuit court will be reversed, and the cause remanded for a new trial.


text:
    Simpson v. Simpson.
    Chancery practice — -finding of facts. In a divorce ease the Chancellor is not bound to observe the provisions of section 11, article 7, of the Constitution, requiring the court to make a written finding of facts.
    Appeals in divorce cases. An a/ppeal to this court lies from a judgment granting a divorce, and is not taken away by the 16th section of the Civil Code.
    The Constitution secures the right of appeal from all final judgments of inferior courts.

      Appeal from White Circuit Court.

    Hon. John ANhytock, Circuit Judge.
    English, Gantt & English, for appellant.
    Gallagher & Newton, for appellee.
   McClure, J.

In June, of 1867, Susannah Simpson filed hér bill for a divorce against her husband, Enoch II. Simpson. The bill charges cruel and barbarous treatment, and the offering of such indignities to her as would render her marital condition n tolerable.

Before entering into the marriage relation with Simpson, it appears that an ante-nuptial contract was made, wherein it was agreed that, on the death of the parties, the property held by each at the marriage should descend to their children, had before such marriage, respectively.

Enoch H. Simpson answers the bill of his wife, and admits the ante-nuptial contract, but denies all cruel treatment, or the offering of such indignities to her as would render her condition intolerable, and asks that his answer may be taken as a cross-bill; wherein he assigns, in substance, the same causes for a divorce as is alleged in the bill of Susannah Simpson.

Upon the hearing of the cause, the court dismissed the cross-bill of Enoch H. Simpson, and dissolved the marriage relation existing between the parties, and decreed that the complainant should be restored to the possession of the lands held by her at the date of the marriage, and a wagon, or its value, within ten days after demand.

We have examined the record, and find no error in dismissing the cross-bill, and are of opinion that the decree of the Chancellor, in dissolving the marriage relation, is fully warranted by the evidence. It, therefore, follows that Mrs. Simpson is entitled to the possession of her land and the value of her wagon. Gould's Digest, chap. 59, sec. 13.

It is argued by the counsel for the appellant that the decree is reversible, because it does not show such a finding of facts as are contemplated by section 11, of article 7, of the Constitution of this State, which declares that “ judges shall not charge juries with regard to matters of fact, but shall deelai’e the law. In all trials by jury, the judges shall give their instructions and charges in writing; and, if the trial is by the court, he shall reduce to writing his findings on the facts in the case, and shall declare-.the law in the same manner he is required to do when instructing juries.”

The right of trial by jury only extends to cases at law, and not equity. The Chancellor, in a divorce case, is not compelled to observe the provisions of the Constitution that are to govern judges of courts of law, when sitting as a jury. The judgment, therefore, is not reversible for the cause urged by counsel.

The counsel for the appellee urges that, the right of appeal is destroyed by the 16th section of the Civil Code, which declares that, “ where the judgment grants a divorce, * * * the Supreme Court shall have no appellate jurisdiction.”

The appellant, on the other hand, contends that this provision of the Code is unconstitutional, because it denies the right of appeal, which, he asserts, is conferred upon him by the Constitution, and can not be taken from him by legislative enactment.

The right to appeal causes from an inferior to a superior court, is unknown to the common law, and can only exist where expressly given by the organic or statutory law of the land. Edwards v. Vandemack, 13 Ill., 634.

Section 15, of article 7, provides that “all appeals from inferior courts shall be taken in such manner and to such courts as may be provided by law.” This clause in no. manner attempts to confer any general right of appeal, but simply allows the law-making power to designate the court to which the appeal may be taken, and the manner that shall be pursued.

Section4, of article 7,declares that “final judgments in the inferior courts may be brought by writ of error, or by 'appeal, into the Supreme Court, in such manner • as may be prescribed by law.” This clause of the Constitution provides two methods for bringing the final judgments of inferior courts before it. The Legislature, in the exercise of its authority, has provided that “the mode of bringing the .judgment or final order of an inferior court to the Supreme Court, for a reversal or modification, shall be by appeal, which shall be granted as a matter of right,” &c. ¥e think that when the Constitution declared that final judgments of the inferior courts might be brought into the Supreme Court, the intention was to confer the right upon any litigant to bring his cause before the highest tribunal in the State, for their judgment, and that’ the Legislature was only to prescribe the mode and manner that should be pursued in bringing the case up.

The conclusion that we have arrived at in this case places parties to a divorce case in rather an awkward attitude, where the decree grants a divorce, as the law allows three years from the rendition of the decree within which an appeal may be pi’osecuted. The 869th section of the Civil Code says that “an appeal shall not stay proceedings on the judgment or order, unless supersedeas is issued.” If Mrs. Simpson had married after the decree of divorce, and before the taking of an appeal by the appellant, we doubt if the reversal of this judgment would have restored her to the loving embraces of Enoch II. Simpson.

Judgment affirmed.


author: Gregg, J.

text:
    Galbreath, Stewart & Co. v. Davidson.
    Mechanics’ lien — a wharf-boat subject thereto. A wharf-boat is subject to the mechamos’ statutory lien. A wharf-boat is attached to the soil, and savors of the realty.
    It is a good plea in bar to an action to enforce a mechanics’ lien that the claimant was the ostensible owner of the property at the time of the alleged repairs, and that he never authorized the repairs to be made.
    Where it is necessary, to enable the plaintiff to recover, that all the issues made should be found in favor of the plaintiff, it is error to instruct the jury that if either of the issues is found in his favor he must recover.

      Error to Desha Circuit Court.

    Hon. John E. Bennett, Circuit Judge.
    Watkins & Nose, for plaintiffs in eiTor.
    Unless a bailee has the power to contract for repairs, he can not bind the property by mechanics’ lien. Hauptman v. Catlin, 1' E. D. Smith, 784; Story Agency, see. 77, and cases cited.

      The statute (Gould’s Dig., eh. 112) confines the mechanics’ lien to “ work and labor on any building, edifice or tenement.” Neither of these terms could apply to a boat.
    The statute being greatly in derogation of the common law, shall receive a strict construction. The mechanics’ lien will not be extended beyond the strict letter of the statute. Brady v. Anderson, 24 III., 110 ; Farmer’s Bank v. Winslow, 8 Minn., 86; Cook v. Heald, 21 111., 425; Logan v. Attix, 7 Clarke, (Ioiua,) 77; Lord v. Woodward, 42 Maine, 497.
    In Walker v. Anschutz, 6 Watts $ S., 519, it was expressly held that the mechanics’ lien had no application to boats.
    Pindalls and English, Gantt & English, for defendant.
    “ The doctrine of mechancis’ lien rests on the broad foundation of natural equity and commercial necessity. Nothing is more reasonable than that the artificer or business man should have a qualified property in the thing on which he has bestowed his time and labor, and into which he has incorporated his materials.” Houck on Liens, 38.
    “All remedial statutes are liberally construed, and to this class belong mechanic lien laws.” “Mechanics are favored by the courts.” Sioan v. Story, 4 Metcalf, (Fy.,) 316.
    In Tuttle v. Moniford, 7 California Deports, 360, the court gave as the reason for the latitude allowed in construing the statutes in favor of mechanics, “that they have, at least in part, created the very property upon which the lien'attaches.” And in Holliday v. Cromis, 2 California, 60, the subject of controversy was a wharf, built on piles driven in the water; the lien was sustained.
   Gregg, J.

On the 3d day of June, 1868, Davidson filed, in the office of the clerk of the circuit court of Desha county, his account for and claimed a mechanics’ lien for that sum, for materials, work and labor, in repairing a wharf-boat, under a contract with Loftin H. Nunn. On the 25th of September he sued out a scire facias to enforce such lien, which was served on Nunn, and returned to the October term, 1868, of the court, at which time Galbreath, Stewart & Co., appeared, claimed the boat, were made defendants, and filed three pleas.

The pleas were in substance: 1. That Galbreath, Stewart & Co. were the owners of the boat, but that, at the date of the repairs, &c., A. S. Dowd was owner; that the contract was made, repairs done, &c., without any authority from Dowd.

2. That, when said work was had and done, Galbreath, Stewart & Co. were the true and ostensible owners of the boat, and that they are still such owners, and that such labor, etc., was had and done, and the contract therefor made, without any authority from them.

3. That Nunn did not undertake and promise, as alleged, &c.

Davidson took issue upon the first and third pleas, and demurred to the second. The court sustained the' demurrer Galbreath, Stewart & Co. rested; a jury was called, and trial had upon the issues to the first and third pleas ; verdict and judgment had in favor of Davidson, for the amount of his claim. Galbreath, Stewart & Co. excepted to the giving of the first, second and third instructions for Davidson, and the refusing to give the first, second, third and sixth instructions asked by them. They moved for a new trial; their motion was overruled ; they excepted thereto, and took their bill of exceptions, setting out all the evidence, and brought error.

The first error complained of was the sustaining the demurrer to their second plea. We see no valid objection to that plea, if Galbreath, Stewart & Co. were the owners of the boat, really and ostensibly, as averred, thus openly exhibiting their title, and gave no authority for such repairs, they are not liable therefor; and one who would attempt to make gain by meddling with their property, thus openly or “ ostensibly” held, without their direct or indirect consent, would, of course, lose any labor or material he might so expend. But the evidence now before the court shows' most clearly- that such were not the facts; that, if Galbreath, Stewart & Co. were the owners, they were secretly so. In no sense were they ostensible owners. They made no record or other public evidence of their title; they exercised no control over the boat; made no claim to it, or the rents and profits from it; and Nunn, who had entire charge of the boat, had no knowledge of any such ownership or claim. Yet, they had a right to aver such facts, and if they can sufficiently prove their title and non-consent, the defense will be a good one.'

In giving the instructions for Davidson, the court seemed to misapprehend the law arising upon the issues to the separate pleas of Galbreath, Stewart & Co., and instructed the jury on each issue, that, if they found that issue in favor of Davidson, 'they must assess his damages, &c., to the effect, that if either issue was found for the plaintiff, he must recover, when evidently the judgment would have been for the defendants therein, if any one of the issues had been found for them. One good plea, sufficiently proved, will defeat an action. These instructions were substantially good, but for this error,

i The third and last ground assigned as error is, the refusal of the court to give the first, second, third and sixth instructions of Galbreath, Stewart & Co.; which instructions, in effect, required the court to declare a wharf-boat personal property, 'and not subject to a mechanics’ statutory lien. The statute ‘declares that all artisans, builders and mechanics, who shall perform work, &c., on any building, edifice or tenement for ‘the owner or proprietor, &e., shall have an absolute lien on such building, edifice or tenement, for such work and labor, as well as for all materials furnished, &&., and for all sums of money paid on account of materials furnished and used about ‘such work, &e. See Gould’s Digest, p. 768.

"While it is true that this is a statutory proceeding, and can >not be construed to apply remedies beyond the declared intent and meaning of the'Legislature, a large majority of the State courts have holden that such are meritorious remedial laws, ,&nd should have a liberal interpretation. They should be so construed as not to defeat the spirit, true intent and meaning of the acts, and that such laws have been wisely enacted to encourage valuable and permanent improvements, and to secure the industrious mechanic his reasonable reward. See Patrick v. Vallentine, 22 Mo., 148; Barnes v. Thompson, 2 Swan., 315; Tuttle v. Manford, 7 Cal., 360; and 2 Cal., 60; Buck v. Brian, 2 Howard, (Miss.,) 88; Houck on Liens, 38, and cases there cited.

Such laws were not intended to create liens upon mere personal chattels, but upon lands or things in some manner attached to the realty; not to embarrass commerce, or hinder the ready exchange of purely personal property, but to secure the erection of valuable structures, and protect the interests of him who may furnish materials and build the same.

The application of the law in this case is not entirely free from difficulty. Is a wharf-boat a mere personal chattel, or does it savor of the realty ? Is it so attached to the soil as to support such lien? We are of the opinion that it is.

When the term boat is used, we are likely to catch the idea of locomotion — of passing, or transportation from one point to another — without hesitating to inquire whether that term is ever applied to other structures, which have no power of locomotion, no propelling force, by which they can move or be moved from point to point. It may be said the fastenings are easily cut, and a wharf-boat can be readily towed or floated away. So may a house be placed on rollers, and speedily hauled upon other lands, but no one doubts a house being a fixture, simply because it is capable of being removed.

The riparian owner has a just claim to all the soil composing the bank of a stream, and no one can hold or use such soil upon the margin of a river, whether navigable or not, for the purpose of fastening or making safe any structure or building, against the will of such owner, and should any one attempt to so lodge such building upon the private soil of another, forcibly and against his consent, we suppose too attorney w’ould deny but such an one might be ejected therefrom.

The location and maintaining of a wharf-boat must depend upon its attachments to the soil. Such boat or building has no power to retain its position except its bank fastenings. It can not be severed from the soil without destroying the structure — at least its present local utility. Cut such structure loose from its moorings — from its connections — and it is as effectually ruined for all practical purposes, as is a house rolled away from its business location. To this extent it appertains to the realty. It rests against the bank. It supports upon the realty, and, unlike vessels that “ plow the waters,” it has no mobility — no apparatus to change place, or power to retain position — other than land fastenings. It is, in fact, but a floating business house, or rather a business house upon the surface of the water, and stationed by its cables. It is a building — a structure commonly used to facilitate the landing of boats and the storing of freight, and it may have sleeping apartments, may be dwelt in, and it is embraced within the spirit and meaning of our statute, declaring that such liens may be held on “ any building, edifice or tenement.” Gould’s Dig., sec. 1, p. 768. Ilence, w'e are of opinion that the court below did not err in refusing to give the first, second, third and sixth instructions asked by Galbreath, Stewart & Co.

But, for the errors aforesaid, the judgment must be reversed, and the cause remanded for further proceedings, not inconsistent with this opinion.


text:
    Allen & Hill, admrs., v. Smith, admr.

    Proceedings against unknown heirs. An affidavit of complainants" want of knowledge of the residence of unknown lieirs is a necessary prerequisite in the proceeding to obtain jurisdiction by publication.
    Where the complainant proceeds in his bill against unknown heirs, it is necesswry, to enable the court to obtain jurisdiction over them, for him to annex to his bill an affidavit of his want of knowledge of the residence of such heirs.

      Vendor’s lien. In a writ to foreclose a vendor’s lien, where the vendee is dead, the heirs are necessary parties.

      Appeal from Arkansas Circuit Court. '

    Hon. William M. Harrison, Circuit Judge.
    Bice & Benjamin and G-odden, for appellants.
    Bell & Carlbton, for appellee.
   Hon. John Whytock, Special Supreme Judge.

This case is brought here by appeal from the circuit court for Arkansas county, and is a suit upon a complaint in equity by Bazil B. Smith, as administratorof the estate of Pettyman Smith, deceased, to foreclose a vendor’s lien on lands sold by Petty-man Smith and others to Lewis Shanks, who executed his note, at the time, for the purchase money of thepremises. It is alleged that there is due and unpaid on the note the sum of five thousand dollars, with interest. The complaint charges that the note was lost or destroyed; that Lewis Shanks had died, leaving heirs, but fails to state who they were, whether or not they were unknown, or that their residence could not be ascertained. It prays that said debt be decreed to be paid, and, if default be made in its payment, that the lands be sold, and the equity of redemption therein be forever foreclosed.

At the May term, 1867, of the Arkansas circuit court, a decree, pro confesso, was taken against the representatives of Shanks, Allen and Hill, and including, ipsissimis verbis, the “unknown heirs of Shanks.” At the next term of that court, and before final decree, Shanks’ administrators, who were nonresidents, filed a motion, by their solicitors, which was sworn to, praying that the interlocutory decree be set aside. . This motion embraces various grounds for relief, and among them that the heirs of Lewis Shanks, who appear, and whose names are enumerated in it, were minoi’s, and non-residents; and that they had not been served, either personally or. constructively, with notice of the pendency of the suit; that no affidavit had been made, or proof offered, before the publication of the notice to all the defendants.

The motion also alleged that defendants have a' meritorious defense; and they ask that they be permitted to make answer,, &c., and that a guardian ad litem be appointed for the minor heirs..

The motion was denied, final decree rendered at the term last mentioned, and the lands decreed to be advertised and sold,.if payment should not he made, on a day named.

Annexed to the complaint is an affidavit, which was made by the solicitor of the complainant, alleging only that Allen and Hill are non-residents. Publication was had against them,, and, in so many words, against the “unknown heirs,” but there is no proof that the heirs were unknown; nor does it appear from the record that the court was informed, in any manner, as to complainant’s want of knowledge of their residence, or that they were non-residents.

Section 7, chapter 28, Gould’s Digest, prescribes that “in cases where it may be necessary to make the heirs of any decedent defendants, and the names of all or part of them are unknown, and the complainant annexes to his bill an affidavit of his want of knowledge of the residence of such heirs, proceedings may be had against them, without naming them, and the court may make such order in relation to notice as may be deemed proper.”

This statute confers upon circuit courts, in a special manner,, jurisdiction over unknown heirs, who may be necessary parties to a suit or proceeding against them; but,unless its provisions are followed, these courts can acquire no jurisdiction in the cases provided for by the statute.

The facts here present a strong case for the application of the rule, that a strict compliance with statutory authority, under which persons may be deprived of their estate, will be required. Indeed, in every form in which the question has arisen, courts have been prompt and emphatic in the enforcement of this statutory principle. Bloom, et al., v. Burdick, 1 Hill, (N. Y.,) 130; Sibley v. Waffle, 16 N. Y. Rep., 180; Newland v. Gentry, &c., 18 B. Monroe, 666.

The heirs of Lewis Shanks are shown to have been infants, for whom no guardian or next friend was appointed, or has appeared in this case. Where the rights or interests of this class of persons are involved, every step in the proceedings against them will be scrutinized, for it has repeatedly been held that it is the duty of courts to protect the rights of such persons, and to prevent injustice being done them, in,every particular. 2 Story’s Eq. Jur., 1334; Lefevre v. Laraway, 22 Barb., 167; 1 Hill, 130.

In a suit to subject to sale lands for the purchase money, where the vendee or mortgagor is dead, the heirs are indispensable parties to the decree. The State, use of Ashley & Watkins, v. Lawson, et al., 6 Ark., 269; Erwin, admr., et al., v. Ferguson, et al., 5 Ala., 158; Doe, ex dem., Duval’s Heirs v. McLoskey, 1 Ala., (new series,) 708; Smith, &c., v. West’s Executor, 5 Littell, (select cases,) 48; Hare’s Heirs v. Bryant’s Admr., 7 J. J. Marshall, 376.

From any thing that appears to the contrary, by the record in this cause, the heirs of Shanks may have been known residents of the county at the time the order of publication was made.

We are of the opinion that the circuit court did not acquire jurisdiction of the persons of the heirs of Lewis Shanks, in ' this cause, and that this jurisdictional defect is fatal to the decree in that court.

There are other questions raised by the record in the case, but as they do not go to the foundation of the suit, and as the decree must be set aside, it is not deemed necessary to decide them.

The decree is reversed, and the cause remanded, that the heirs, who have appeared by motion, and asked to be made, parties, may be permitted to answer the complaint.

Judge Harrison, being disqualified, did not sit in this case,

Hon. John Whxtock, Special Supreme Judge.


author: Wilshire, C. J.

text:
    Haynes, admr., v. Bessellieu, et al.

    Estates op deceased persons — lands as assets. Where part of the estate of a deceased person consisted of slaves, which the widow, who was the administratrix, sold, and the proceeds of which sale she vested in lands, taking the title in her own name, after dower is assigned to the widow out of these lands the residue of the lands should go to the administrator, as assets for the payment of the debts of the estate, and not to the heirs.

      Until the debts of the deceased are all paid there is no estate for the -heirs.
    Dower. The wife is entitled, in equity, to dower of all the lands purchasedby her, as administratrix of the estate of her husband, out of the proceeds of the sale of slaves, of which he died seized, to an amount equal to her unassigned dower in the slave property.
    The widow had dower of one-third of all slaves of which her husband died possessed.

      Appeal frcmi Drew Circuit Court.

    Hon. "William M. Harrison, Circuit Judge.
    Bell & Carleton, for appellant.
    Garland & Nash, for appellee.
   Wilshire, C. J.

This was a bill filed in the Brew circuit court, on the chancery side, by Eli K. Haynes, as administrator, de bonis non, of the estate of Collins E. Hemingway, deceased, against. B. Oscar Bowles, and his wife, Carrie Bowles, formerly Carrie Hemingway, and widow of the deceased, and the former administratrix of his estate, and certain of the heirs at law of the deceased, to subject certain lands purchased by said Carrie, as administratrix of the deceased, with the proceeds of the sale of certain slaves belonging to said estate, the title to which she took to herself, as the widow, and certain of the heirs at law of the deceased, to the payment of the debts exhibited and allowed against said estate.

The material allegations of the bill of the complainant are, that Carrie Bowles, late widow of Collins 3?. Hemingway, deceased, and the former administratrix of his estate, pursuant to an order of the probate court of Drew county, on or about the 21st day of March, 1864, sold eleven negro slaves for the sum of $27,200; and afterwards, pursuant to the same order of the probate court, she invested $25,300 of the proceeds of said sale in certain lands in Drew county, and took the deeds of conveyance of said lands to herself, as the widow of the deceased, and to certain of his heirs at law; that, when the bill in this case was filed, there was allowed and classed against said estate claims amounting to about $20,000,.and that there were a number of other claims set up against the estate, amounting to about $6,000; that there had been presented to and rejected by the complainant, as administrator de bonis non of said estate, claims that were liable to be allowed and classed by the probate court; that the assets in his hands, other than the lands, for the payment of the debts, amount to the sum of $19,988, and consists entirely of dioses in action, of which, he alleges, not more than about $2,500 can be realized; that it is necessary to sell the lands belonging to the estate, in order to pay the debts of the estate legally exhibited, allowed and classed against it; that the lands could not be sold to advantage until the widow’s dower therein be set apart and assigned to her, and the cloud upon his right to sell such of the lands as were purchased by the widow, or administratrix, with the proceeds of the sale of the eleven negroes, caused by the conveyance thereof being made to the widow, and certain of the heirs of the deceased, by a decree of a court of chancery, removed; praying that commissioners be appointed to set apart and assign to the widow her dower in the lands, and for a decree declaring the residue of the lands to be assets in the hands of the complainant, as administrator, &c., for the payment of the debts of the estate.

The allegations of the bill were not denied, and the court below caused the dower of the widow in the lands to be set apart and assigned to her; and, at the hearing of .the cause, the court, by decree, vested the remainder, in the lands set apart to the widow from those purchased by her as administratrix, in certain of the heirs at law of the deceased, in fee simple, &c._

The complainant appealed to this court, and insists that'the court below erred in decreeing the remainder, in the lands set apart to the widow, out of those purchased by her with the proceeds of the sale of the eleven slaves, in the heirs at law of the deceased, in fee simple.

The widow is entitled to dower of one-third part of all the lands whereof her husband died seized, of an estate of inheritance, at any time during marriage, unless she has, in legal form, relinquished such right. She also had, until they were •emancipated, dower for life of one-third of all the slaves her husband died possessed of. She also has dower of one-third of all the personal estate her husband died possessed of, as her own absolute property. Gould’s Digest, chap. 60, secs. 1 and 21.

The widow of Hemingway was entitled to dower in all the lands of which he died seized of, as an estate of inheritance;. and she was as well entitled, in equity, to dower in the lands purchased by her, as the administratrix of her deceased husband’s estate, with the proceeds of the sale of the slaves sold by her, to an amount equal to her unassigned dower in the .slave property sold.

It appears that the dower of the widow, in all the lands, was set off and assigned to her; but the court below, after confirming the report of the commissioners assigning the widow’s dower, by a final decree, vested the remainder in the lands assigned to the widow, out of those purchased by her as administratrix, with the proceeds of the slaves sold, in certain of the heirs at law of the deceased, in fee simple. The dower .of the widow in the landed estate of her deceased husband is but a life-estate in the lands, the remainder to descend to the heirs of the deceased, after the debts of his estate have all been paid; •and, until the debts are all paid, the remainder in the lands assigned to the widow as dower, after the termination of her life-estate, is assets in the hands of the administrator, for the purpose of paying the debts legally established against the estate; and, until all the debts are paid, there is no estate for the heirs.

■The law has so jealously guarded the rights of the creditor as to require any heir or distributee, receiving legacies or distributive shares, at any time before the expiration of two years after date of the letters testamentary or of administration, to give bond, with good and sufficient security, to refund his proportion of any debt which may afterwards be established against the estate. Gould’s Digest, chap. 4, sec. 150.

The statute provides for the sale of the estate, both real and personal, of a deceased person, for the purpose of paying his debts, and points out the mode of making the sale; and wo think there can be no doubt as to -the power of the administrator to sell the remainder in the lands set off to the widow, as her dower in the lands of her deceased husband, for the same purpose.

It appears, in this case, that there is a large indebtedness already established against the estate, and the appellant alleges that there are a number of claims that have been presented to and rejected by him, as administrator, that are liable to be established and allowed against the estate by the probate court.

We think the court below erred in decreeing the remainder in the lands set apart and assigned to the widow as dower, out of those purchased by her, as administratrix, with the proceeds of the slaves sold, in certain of the heirs at law of the deceased, in fee simple; and, for this error, the decree of that court is reversed; and a decree will be made by this court declaring the remainder in those lands to be assets in the hands of-the administrator, for the purpose of paying the debts that are or may be legally established'against the estate.

Judge Harrison, being disqualified, did not sit in this case.

Hon. John Whytock, Special Judge.


text:
    Dillard v. Parker, et al.

    Bill of exceptions — must set out or identify written evidence. The bill of exceptions must either set out at length, or sufficiently identify, the written evidence used on the trial.
    It is not sufficient for the bill of exceptions to simply describe the document used in evidence.
    Oral or written testimony constitute no part of the record, unless expressly made so by order of court, agreement of parties, demurrer, oyer, bill of exceptions, or special verdict.
    The party making up the bill of exceptions may obtain an order of the court compelling the opposite party to file documents used on the trial.

      Error to Sebastian Circuit Court.

    Hon. E. J. Searle, Circuit Judge.
    Sol. E. Clark, for plaintiff.
    The case of Taylor v. Spears, 8 Ark., 429, is not sustained by the authorities. Barrett v. Tazwell,\ Cal.,216; Beatuv. Tabbs, admr., 2 Munf., 254; Fowler v. Lee, 4 Munf, 378; Brooks v. Young, 3 Band., 106 ; Houston v. Cole, 1 Band., 461; Thompson v. Cummings, 2 Leigh, 322 ; Karnes v. Phillips, 1 Leigh, 483; Bankin v. Holloway, 3 S. ¿•M., 614.
    This case is- not within the case of Taylor v. Spears. Because in that ease like absent documents were not made a part of the bill of exceptions in the first place, for they were neither put into the bill, nor filed and made a part of it by order of the court, and the court indicate that if they had been originally made a part of the record, in either of these ways, they would have granted a new trial. The case was exactly, therefore, like the case of Bankin v. Holloway, above cited.
    But in this case the documents were made a part of the record in the latter mode, i. e., by an order of the court ordering them filed and made a part of the bill of exceptions. See bill of exceptions, in the transcript. We are therefore within the case of Saxon v. Brock, 15 Ark., 845, and cases there cited.

      Taylor v. Spears, we think, was decided upon the express ground that the evidence had never been put upon the record; and not that it had failed to get into this court by fraud or accident, or mistake; which is not the case here.
    Garland & Nash, for defendant.
    The plaintiff did not prove either her legal estate in the premises nor her right of entry. Daniel v. Lefevre, 19 Ark., 201.
    Mrs. Dillard could not, on mere motion, after the decree was made final and enrolled, correct it. The proceeding is a nullity on its face. Keats v. Hector, 1 Ark., 891; 2 Daniel Ch. Pr., 1232, et seq., and notes. In no way could this be done, save by bill of review. 21 Ark., 528; ,17 ib., 45; 14 ib., 568.
    The entry, that it was by consent, is of no force; as the case stands, there were rights of a minor in the case. Trapnall v.. Burton, 24 Ark., 371.' This is an absolute nullity. 7 Johns., 557; Macnamara on Nullities, p. 2 and 3.
    The case of Taylor v. Spears, 8 Ark., 429, has never been overruled; but, on the contrary, has been affirmed and reaffirmed by this court. Bankhead v. Hubbard, 14 Ark., 300; Moss v. State, 17 Ark., 327; Jordan v Adams, 2 Eng., 350 ; Everett V. Clements, 4 ib., 480.
   McClure, J.

The plaintiff commenced an action of ejectment against one William Parker, in the Sebastian county circuit court. At the October term, 1867, Parker moved for an order making Elias Rector and James M. Collins, from and through whom he claims title, co-defendants; and on consent and appearance of their attorney, it was so ordered. The defendants pleaded not guilty, and the plaintiff joined issue. The cause was submitted to the court, sitting as a jury, and the court found for the defendants. The plaintiff made a motion for a new trial upon the following grounds:

1. Because the decision of the court is contrary to law.

2. Because the decision of the court is contrary to the evidence.

3. Because the court erred in admitting the written documents, purporting to be a transcript of the record of the United States District Court for the western district of. Arkansas, as evidence.

This motion the court overruled; the plaintiff excepted, and the cause comes here on error.

What was intended as a bill of exceptions recites that the plaintiff, to maintain the issue on her part, introduced in evidence a transcript of the record of the proceedings of the circuit court of Sebastian county, in chancery sitting, at the August term,' 1859, in the case of Sarah P. Dillard v. John J. Dillard, and the other heirs at law of John •‘Dillard, deceased ; that William A. Parker was in possession of the premises, as tenant of his co-defendant, at the time of the commencement of this suit; that said Sarah P. Dillard was in possession of said premises in 1859 and 1860, andagain in 1865, from which she was ousted by said defendants; that the defendants, to maintain the issue on their part, gave in "evidence to the court a transcript of the record and proceedings of the United States District Court for the western district of Arkansas, in a certain case between Archibald K. Gaines against John Carnall, administrator of John Dillard, deceased, Sally P. Dillard, widow, &c., and the heirs at law of John Dillard, deceased; a deed from Benjamin J. Jacoway to William Walker; a deed from John Henry to William Walker; and a deed from William Walker to Elias Rector, one of the defendants in this case. To the introduction of the record herein alluded to, and the. deeds described, the plaintiff excepted. No other evidence was offered by either of the parties.

At the December term of this court the plaintiff suggested a diminution of the record in this case, showing:

1. That the transcript of the record of the United States District Court for the western district of Arkansas, in the case of Archibald K. Gaines against John Carnall, administrator, Sarah P. Dillard, widow, and heirs at law of John Dillard, deceased.

2. That the deed from Eenjamin J. Jaco way to William Walker, the deed from John Henry to William Walker, and the deed from William Walker to Elias .Rector, are not copied into the record in this ease; and prayed that a certiorari might issue to the clerk of Sebastian county, commanding him to certify to this court a full and complete transcript of the judgment and proceedings in that court. The writ was awarded, and the clerk certifies, in command thereto, “ that the transcript and deed, wherein I am commanded to furnish, were never on file in my office, and that the same, as within named, were .the individual property of Elias Rector, and that the same were used, by and with consent of parties, on the trial of said -cause, and were withdrawn by said Rhetor, after said trial; and that I have asked said Rector to allow me the use of said transcript, for the purpose of making a copy of the same, which he has refused to do.”

'This court is now asked to examine the proceedings of the circuit court of Sebastian county, and ascertain from the record whether that court erted in refusing to grant a new trial.

As has been stated, the bill of exceptions in this case simply describes certain transcripts of records and deeds that were used in evidence on the trial of the cause in the court below. It is true that the bill of exceptions states that these deeds and transcripts are to be copied and made a part of the record; but, on examination of the same, we find that it was not done. This court held,in Taylor v. Spears, 8 Ark., 429, “where papers are read in evidence by a party on a trial, and the opposite party takes a bill of exceptions, undertaking to set out the evidence, it is his duty to insert sudipapers in his bill of exceptions; and, if necessary, the court may compel the party who offers them in evidence to produce them for the purpose. If. he neglects (continues the learned judge) to insert them, or have them filed so that the clerk may insert them, it is his own fault, and he must suffer the consequences.”

The bill of exceptions does not disclose the fact that this evi-. dence was ordered to be filed; and the return of the clerk is so emphatic on that point as to rebut all presumption that it was. Not one scintilla of the evidence offered by the defendants is before this court, and there are grave doubts as to whether there is any evidence offered by the plaintiff. Attached to this record is a paper purporting to be a copy of the transcript of a record, showing an assignment of dower to the plaintiff This transcript is not referreddo in the hill of exceptions, as hereto attached, or as marked “A,” or “No. 1.” There is nothing fixing its identity as being the transcript used on the trial. Chief Justice Watkins held, in Sexton v. Brooks, 15 Ark., 348, that, where the papers used in evidence are clearly identified by the bill of exceptions, they would be treated as though they had been set out at length. But, in the papers before us, there is no attempt at identification. Judge Scott, in Berry v. Singer, 10 Ark., 491, says: “ It may be doubted whether a mere order of court, (and that is all there was in this case,) placing evidence upon the record, unless in response to, or in connection with, or incidental to, some action of the court, in the regular progress of the cause, would legitimately place such evidence of record.”

Judge Lacy says, in Lenox v. Pike, 2 Ark., 14, and the same is approved in Berry v. Singer, that “ whatever is not necessary to be enrolled, such as oral and written testimony, constitute no part of the record, unless they are expressly made so by order of the court, by agreement of the parties, by demurrer, by oyer, by bill of exceptions, or by special verdict.”

The order of the court to this end, if made at all, would appear on the records of the court. If an order of this kind exists, it is not shown in the record. If it existed, the Sebastian circuit court could compel the ■ defendants, by attachment, to produce the absent record and deeds. The absence of any such an order is the best .evidence that it was never asked for.

The counsel for the plaintiff urges that the defect in the transcript is only apparent, and not real, because the clerk certifies that it is a full and complete transcript of the record, and that the bill of exceptions certifies that it contains all the evidence, therefore this court must not regard the apparent defect. The bill of exceptions contains no evidence — it merely describes certain papers and deeds that were used in the progress of the suit, and which the plaintiff wholly neglected to have placed of record. The diminution of the record was suggested by the plaintiff, and against the certificate of the clerk that the record contained a full and true transcript of the papers on file in the case; and now, because the defendants will not voluntarily surrender their muniments of title to the inspection of this court, for the purpose of having it say wéhether a new trial ought to have been granted, we are asked to reverse the judgment. If we should reverse this judgment' because the defendants will not submit their evidences of title, or because the evidence does not appear of record, a precedent would be set whereby the defeated party might reverse almost any judgment of the circuit court. All that the losing party would have to do would be to object to all the evidence introduced by the other party, without assigning any reason therefor, and, if defeated, make a motion for a new trial for the causes assigned in this ease; make up a bill of exceptions, describing the evidence used by himself and that used by the successful party; be careful to attach his own evidence to the record, and let the other party take his evidences of title home with him; bring up the record by writ of error and suggest a diminution of the record, and let the clerk certify, as is done in this case, that the papers are not and have never been on file in his office; and then convince this court that the ends of justice would be best promoted by allowing an individual to take the advantage of his own laches or cupidity.

A bill of exceptions is the means by which matters are placed of record that occur during the trial of a cause, that, but for such bill of exceptions, would not appear of record. What thing, or matter of evidence, is placed of record in this case by what is called a bill of exceptions ? Certainly not the evidence offered by the defendant in this case; and, failing in this, it fails to accomplish the object for which it was designed. It is not absolutely necessary that the documentary evidence should be inserted at length in the bill of exceptions, although it would be better to do so. It will be sufficient if the documentary evidence is described in the bill of exceptions, and referred to as being exhibit A, B, or C, as the case may be. The description of a deed from John Doe to Richard Roe, without mentioning the date, or making any other reference by which it may. be identified, is entirely too loose a manner of doing business, as John Doe may have executed a half dozen deeds to Richard Roe, and for as many different tracts of land.

The hardships that may result, or the inconvenience that may be attendant upon an affirmation of this judgment, are matters that we may deprecate, as individuals, but, as sworn officers of the law, we can not disregard the adjudications of other courts to make this cause an exception to the general rule. If we are to decide that a lower court erred in refusing to grant a new trial, or in the admission of evidence, the party complaining must place the facts or rulings before us, by which* he or she thinks they may have been aggrieved. It will not do to come into this court and say that the absent evidence is in possession of the winning party and can not be obtained. It was before the court, and the exercise of ordinary professional intelligence would have placed the evidence where it could have been examined or copied at any time.

Judgment affirmed.


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    Harris v. Hanks, et al.

    Vendor’s dien — accepting security not always a waiver. Where the vendor accepted an assignment from the vendee, of his alleged interest in a decree against a third person, C., without any promise from C., hut with a warranty of payment from the vendee, and the decree is afterwards set aside and made worthless, the lien of the vendor is unimpaired.

      Prima facie, real estate sold is subject to a lien for the unpaid purchase money.
    The lien attaches if, under all the circumstances, there remains a doubt as to the intention to waive the lien, where other securities are accepted.
    The execution of an absolute conveyance, with acknowledgment of the receipt of the purchase money, is not a waiver. Neither is the taking of a covenant from the vendee a waiver.
    It does not destroy all the equity of a bill, to enforce a vendor’s lien, that household furniture was s'old with the land, and covered by the same common consideration.
    This objection can not be raised by a general demurrer to the bill.

      Appeal from Phillips Circuit Court.

    Hon. John E. Bennett,- Circuit Judge.
    Pike, Adams & Pike, for appellant.
    Where a vendor delivers the possession of an estate to a purchaser, without receiving the purchase money, equity, whether the estate be or be not conveyed, and although there ivas not any special agreement for that purpose, gives the vendor a lien on the land for the money. 2 Sugden on Vendors, ch. 12, p. 62. And this, as well against the vendee himself, and his heirs and others, privies in the estate, but also against all subsequent purchasers having notice that the jyurchase money remains unpaid. 2 Sto. Eq. Jur., sec.' 1217, and note 4; Blackburn v.\ Grayson, 1 Bro. C. R., 423; Grant v. Mills, 2 Vesey and Beam.,\ 306; Gilman v. Brown, 1 Mason C. C. R., 212; Elliott v. Ed-\ xoards, 3 Bos. and Puller, 188; Stafford v. Van Ransalear, 9
      Cowan, 318. See,also, 6 Nesey,483,759; 1 Schoalesand Lefroy, 132; and Garsen v. Green, 1 J. C. JR., 308; and JHerbert v. Scofield, 1 Stockt., (IV. J.,) 327; Hancock vSmith, 3 'Barb., N. Y. S. C. JR., 267; Champion v. Brown, 6 J. C. JR., 398; Shall and others v. Biscoe and others, 18 Ark., 142.
    And so, indeed, do all the eases admit; but the points upon which there has arisen the greatest disagreement between the courts, and which seem to have been the most difficult of solution, are: First, as to what shall be a waiver of the lien; and second, upon whom, vendor or vendee, rests the onus of showing the intent of the parties as to the facts claimed as a waiver.
    In examining the authorities upon this point, let us not forget that this is a proceeding between vendor and vendee — no other or representative right intervening.
    Mr. Sugden, vol. 2, 72, says: “Upon the whole, therefore, it seems quite clear that, taking a covenant, bond, or note, for the purchase money, or any part of it, will not discharge the vendor’s equitable lien on the estate. And it seems that the same rule must prevail, although the estate is sold for an annuity, and a covenant, bond, or note is taken for securing the payment.” Here the estate was sold for an interest in a judgment, and Hanks, by his personal covenant, guaranteed the payment to vendee of the amount transferred.
    The authorities, we submit, clearly establish these propositions :
    1. That, prima facie, the vendor’s lien for the security of the unpaid purchase money attaches to and is a charge' upon the land.
    2. That this lien may be waived and displaced, by the vendor taking independent security for the payment, with the agreement that such independent security is substituted in lieu of the lien.
    3. That it rests with the vendee to show that the lien has been thus waived or displaced, by positive proof, or by such apparent circumstances, constituting a part of the contract, {Dubose v. Hull,) as of themselves show such waiver, as taking mortgage back upon, land sold. These, then, being the legal principles involved, how is the present case affected by them ?
    The cause now standing upon demurrer to the bill, there is, of course, no evidence as to the intention or agreement between the parties, or to the existence or waiver of the lien, save such as is afforded by the bill and exhibits.
    Garland & Nash, and English, Gantt & English, for appellee.
    The equitable lien for the purchase money will be considered waived, whenever any distinct and independent security is taken, unless there is an express agreement that the implied lien shall be retained. 1 Lead. Cases in 364, and cases cited;-Blight’s Heirs v. Banks, 6 Mon., 199; JDucker v. Gray, 3 J. J. Marshall, 163; Wilson v. Graham’s JExrs., 5 Munf„ 297; Williams v. Roberts, et al., 5 Ohio, 35; Mayhan v. Coombs, et al., 14 id., 428. '
    An equity which is confined exclusively to sales of land does not attach when, as in this case, real and personal property are conveyed by one deed, under an entire contract, for one and the same consideration. McCandlish v. Keen, 13 Grat., 605.
   Gregg, J.

On the 11th of April, 1868, Martha J. Harris filed her complaint in the chancery court of Phillips county.

On the 23d of November, 1868, the defendant, Hanks, appeared in that court and filed his demurrer to her bill of complaint. The court sustained the demurrer, dismissed the bill, and decreed costs against complainant; from which decree she appealed to this court.

The bill alleges that, on thé 14th of November, 1861, she owned and possessed lots 464, 465, 466, 467 and 468, in the city of Helena, and certain household and kitchen furniture, which she then sold, and, by deed, duly conveyed to defendant, Hanks, for $8,900; that she ivas then informed by Hanks that he owned a one-third part of an unsatisfied decree, rendered in fa-vor of himself and Adams, against John and Joshua Craig, in the chancery court of Chicot county, for $12,761 ; and, to secure the payment of said $3,900, the said Hanks then assigned that amount of said decree to her, and by his deed of covenant, agreed that' the assignment should have the same force and effect as if made on the day said decree was rendered, to wit, the 16th of October, 1861, and he warranted the payment.

Upon such agreements Hanks took possession of the lots, and that he still holds them, and that the other defendants are mere tenants under him ; that, after the making of such contract, and at the October term, 1866, of the Chicot county-chancery court, the decree against said Craig, in favor of Hanks and Adams, was wholly canceled and held for naught, and that the decree annulling and setting aside said former decree was and is in full force; and that said first decree and the assignment aforesaid to her, became and is valueless; that no part of said $3,900, and the interest thereon, has been paid, (except $250, which she received from said Adams with the information that he had collected that sum on said decree before the same was canceled,) and the balance remaining due-the complainant, on the 1st of April, 1868, was $5,157; that,, at the date of said agreements, a suit was pending by said Craigs, against Hanks and Adams, to set aside said decree,, which had been rendered in their favor for $12,761^/^, and that she had no knowledge of such proceedings; being a woman not versed in such matters, she made no inquiry, but relied on the representations of said Hanks, etc.; but she charges no willful fraud or misrepresentations.

She makes exhibits of the deed and covenant, and offers to exhibit a certified transcript of the record of the Chicot chancery court, in the matters therein referred to, if demanded; but, to save costs, she asked the defendant to waive any right to have such exhibit. She prays for a decree for the balance of the purchase money, and interest thereon, and that a vendor’s lien be declared in her favor upon the lots, &c.

The defendant assigns for causes of demurrer :

. 1. That it appears from the bill that the complainant asks for the enforcement of a vendor’s lien on real estate, sold for a special consideration — that is, for an interest in a decree in the Chicot chancery court, and assigned by the defendant, ITanks, to her, with his covenants of warranty, &c.; that, having accepted the decree under the covenants of the defendant, as recited in the bill, she waived' her right to a vendor’s lien, and must rely upon 'such assignment and warranty.

2. Because there is no equity in the bill, &c.

3. There is no exhibit of the proceedings in the Chicot chancery court.

4. Because the bill is otherwise informal and insufficient.

Upon the hearing the defendant waived the third cause assigned in his demurrer.

The court held the demurrer well taken, and the question here presented is, whether the bill upon its face discloses sufficient equity to entitle the complainant to a decree against the defendant ?

The equities of parties, on applications' to enforce vendor’s liens, have been much discussed, and the rule established is, that, prima facie, real estate sold is liable to a lien for the unpaid purchase money. Walker v. Preswick, 2 Vea., 622; Maddock’s Chy., 130, and cases cited; Halleck v. Smith, 2 Barb., (N. Y.,) 267; Shall, et al., v. Biscoe, et al., 18 Ark., 149, and authorities there referred to.

This privilege or .right of the grantor, like other rights arising upon contract, may be waived, and when the terms of the Contract show an intention on the part of such grantor to waive his lien, and rely upon other resources for the purchase money, he can not afterwards maintain a vendor’s lien, if other securities of his own selection should fail. Naim v. Prowse, 6 Vea., 752; 1 Mason Ct. Ct. R., 216; 4 Kent, 153.

Nor is the taking of other securities always a waiver of a vendor’s lien. If the terms of the contract show that the parties intended to preserve the lien, it may he enforced.

The making of a transfer, absolute upon its face, and the acknowledging of the receipt of the purchase price, will not prevent the vendor from enforcing a lien against the vendee, ■or others holding under him, with notice that the purchase money is not paid. Sugden on Vendors, vol. 2, page 33, and note 1.

"We may lay it down, as a rule, that the transfer of lands and the accepting of security, other than the obligation of the vendee, is, prima fade, a waiver of the lien; and, to enforce a lien in such case, evidence Avould be .required manifesting a different understanding between the parties to the contract. Justice Story says, on this subject, “ if, under all the circumstances, it remains in doubt, then the lien attaches.” 2 Story’s Eq. Jur., sec. 1224 and 1226.

A grantor might lose his lien by an absolute conveyance, Avhere the property passes into the hands of an innocent purchaser ; but no such question is raised here.

The deed of conveyance, in this ease, sets out that the consideration for the lots Avas $3,900, but the bill alleges that certain household and kitchen furniture Avas therewith sold for that sum. Counsel hero place stress upon the fact that a lien is asked for that personal property also. It may be feplied, no such special cause was assigned for demurrer; and if it is equitable to enforce a lien for the lots, the including household furniture, in the aggregate sum for which a lien is demanded, could not destroy all the equity in the bill, and Avas not reached by a general demurrer.

The court having jurisdiction to determine the alleged lien upon the lots, would investigate the Avhole controversy, and decree according to the-merits.

If the defendant wanted a specific statement of the value of the household goods, he should have pointed that out in his demurrer, or he should have ansAvered, averred and proved the value of such furniture, and to that extent reduced the claim of lien.

We assume, as settled, that the execution of an absolute conveyance and acknowledging the .receipt of the purchase money is not a waiver, nor is the taking of a promissory note, or any bond or covenant, from the vendee, such security to the vendor as will defeat his lien. To defeat the lien the grantor must accept the security of a third person, or a secui’ity upon other and different property, and it should appear that it was the contractor’s intention to pass such as security, and not as payment or a mode of payment.

The ground-work of a vendor’s lien is in that very equitable doctrine, that it is unconscientious for any one to hold and enjoy the real estate of another without paying a consideration therefor. And although a vender may take a vendee’s note, or his check, or draft upon some third person, if he can not negotiate such note, or, if such draft be dishonored, he may fall back upon his lien. Such instruments are only evidences of liability ; they are given out as a mode of payment; their issue is but one step towards liquidating the demand ; they are means to effect a payment, and are not such security as can prejudice the vendor. See 2 Vernon, 281; Hughes v. Kearney, 1 Schoales & Lafroy, 135; Maddock's Chy., vol. 2, 130; Conell v. Simpson, 16 Vea., 278; Scott v. Orbison, 21 Ark., 202.

In the case before the coui’t the conxplainaixt accepted axx assignment of an interest in a decx’ee agaixist the Craigs; she received the obligation of the defendant, Haixks, he assux-ing 'her that he owned oxxe-third of such decree, axid that she should be paid out of it. She had no promise from Cx-aigs,- no secuxdty from any one except the defendant. She had simply a transfer of his claim and an authority to her to receive that sum, which he warraxxted to be paid; her axxthority to draw that money was not honored; she was not paid therefrom; and now, when no innocent parties have beexx involved, wheix no intervening equities have arisen, while this whole transaction stands in its primitive nakedness between vendor and purchaser, can a court of equity say it is not unconscientious for this complainant to lose her property, and this defendant to hold and enjoy it without paying therefor ?

She expressed no waiver of her lien; she took no third person’s promise; she took but the assignment from the defendant and his obligation. The making of that assignment was, at most, but a mode of payment; and, when that failed, she had a right to look back to the defendant, not only upon his broken covenant, but to the original equity she had against him, and the lots she had placed in his possession, and to demand of him that payment be made, or the lots subjected to her just claim.

She had been guilty of no laches or faults; no one had been damaged or deceived by any act of hers ; a large amount of her property had passed into the defendant’s possession; except .$250, he paid nothing therefor. Under these circumstances, will the rules of equity grant him a homestead at her expense, upon the untenable ground that she is barred, because she .attempted to collect out of an almost worthless decree ? We think not, and we hold that she is not bound to test' his solvency, at law, upon his broken covenant, before she can resort to her superior equity in the lots.

A recent act of the Legislature, declaring that no lien shall be allowed when the same is not reserved in the deed of conveyance, can not of course affect this case.

The decree of the Phillips chancery court, in this cause, is reversed, and this cause remanded, with directions to overrule the defendant’s demurrer, and allow, him to answer, and to proceed to a final hearing and decree, not inconsistent with this opinion.