text:
    EDWARDS v. THE STATE.
    Criminal Law — Requisites of indictment. — The Code of Criminal Practice, except in reference to particular words employed in the description of certain offenses, is not to be held as dispensing with the clearness and certainty, in charging the offense, recognized by the former practice and the common law.

      Murder — When indictment insufficient for want of certainty. — The charge, in an indictment, that the offense was committed with a “shot gun,” does not set forth the manner and circumstances attending the use of the gun with such a certainty as would enable a defendant to make a complete defense, if innocent.

      Coercion — Declarations of husband not competent. — While a wife cannot be found guilty of a crime, if it is shown, from all the facts and circumstances, she was acting under the threats, commands or coercion of her husband in the commission of the offense, yet, the declarations of the husband to that effect made to another, being hearsay, are incompetent testimony, upon the ■ trial, in favor of the wife.

      How shown — The coercion of the husband must be made to appear from all the facts and circumstances, and is not to be presumed merely from the presence of the husband and, the fact of killing 'being admitted, the wife, to excuse herself from the crime, must show that she was not acting, at the time, from her own volition, but from that of the husband.
    APPEAL FROM DESHA CIRCUIT COURT.
    Hon. M. L. Stephenson, Circuit Judge.

      Pindatts, for Appellant.

      Jñrst. We submit that the indictment is insufficient.
    The indictment must charge explicitly all that is essential to constitute the offense. It cannot be aided by intendments.
      Archibald’s Crim. Prac, and Plea., title Indictment d., and authorities cited and illustrations given in Note 1, Waterman’s Ed., p. 283.

      This Statement Musi be Certain. — This principal rule is thus stated, that where the definition of the offense includes generic terms (as it necessarily must), it is not sufficient that the indictment should charge the offense in the same generic terms as in the definition, but" it must state the species — it must descend to particulars. Id., page 291, and on page 295, n. 1, it is broadly stated that “ at common law, in an indictment for homicide, the means by which the death was effected must be stated. A mere statement that the defendant killed, etc., will not suffice unless the whole tenor of the charge furnish an -intelligible description of the manner of committing the offense; and the kind of death proven must not essentially differ from that alleged.” See the illustrations given in the note. See Chitty Crim. Law, pages 734-5; Starkie’s Crim. Plea., chap. 7, Forcible Means, pages 91-2-3; Wharton’s Crim. Law, sec. 285, note g; Bishop Crim. Pro., vol. 1, sec. 54—vol. 2, secs. 511, 519, 524, 529, 567-68. That the indictment is not good by construction . or intendment of the provisions of the criminal code. See Fouts vs. The State, 9 O. S. R., 122; Rhodes vs. Com., 2, Dural, 159; Ib., 89; Thompson vs. State, 26 Ark., 323.

      Second. The court erred in not admitting as evidence the declarations of Isham Edwards made to Cumby. They were part of the res gestae, and admissible as original evidence. 1 Greenleaf, sec. 108; Lund vs. Inhabitants of Tynqsborouah, 9 Gush. (Mass.) 36.

      Third. That the verbal charge, and fourth and ninth instructions, given by the court to the jury, respecting the threats and coercion of the husband, are contrary to the law.
    By the common law the excuse of the wife was made dependent only upon the presence of the husband (except in case of treason or murder.) Our law abolishes this exception, but makes the excuse dependant upon it appear-iii gfrom the facts and circumstances that threats, etc., were used., (Freel vs. State, 21 Ark., 218; Gould’s Dig., 325), while these instructions further require the wife to sliow that her actions toere influenced by the threats, etc., and not by the promises or inducements.

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

The appellant was indicted in the Desha Circuit Court for the murder of Daniel Jackson, and, upon trial, was found guilty of murder in the second degree, and from the judgment rendered in the court below, has prosecuted this appeal.

The action of the court below is now complained of on the grounds:

First. The court erred to the prejudice of the appellant in overruling her motion in arrest of judgment. The motion in arrest is based upon the assertion that the indictment does not charge an offense with such a degree of certainty as to enable the court to pronounce judgment on the conviction. In determining this point we are limited to the single inquiry, whether the facts, as stated in the indictment, constitute a pjiblic offense within the jurisdiction of the court. Crim. Code, sec. 272.

The indictment accuses Lucy Edwards of the crime of murder in the first degree, committed as follows, to-wit: “ The said Lucy Edwards, on the 23d day of February, A, D. 1871, in the county and State aforesaid, did feloniously, willfully, premeditatedly and with malice aforethought, in and upon one Daniel Jackson, with a shot-gun, make an assault, and him, the said Daniel Jackson, with the shot-gun aforesaid', did then and there feloniously, willfully, premeditatedly and with malice aforethought, kill and murder, against the peace and dignity of the State of Arkansas.”

The requisites of an indictment, under our criminal code, are these : It must contain the title of the prosecution, specifying the name of the court in which the indictment is presented, and the name of the parties ; also a statement of the facts constituting the offense, in ordinary and concise language, and in such a manner as. to enable a person of common understanding to know what is intended; and it must be direct and certain' as regards the party and the offense charged; the' county in which it was committed, and the particular circumstances of the offense charged,. when they are necessary to constitute a complete offense. But no indictment is insufficient, nor can the tried, judgment, or other proceedings thereon, be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits. Criminal Code, secs. 121 to 129 inclusive.

It is admitted by the appellant that the indictment contains all the requisites, as above stated, with the exception that the facts constituting the offense are not set forth in such ordinary and concise language as to convey to a person of common understanding the nature of the offense charged. By see. 128, Criminal Code, an indictment is sufficient if it can be understood therefrom: That the act or omission, charged as an offense, is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according to the rights of the case. In this, and in other similar provisions, the legislature has very clearly manifested an intention to dispense with the rigid adherence, heretofore required, to mere technical fonns which, instead of protecting the substantial rights of the accused, most generally operated to defeat the real ends of justice. The rule, however, is well settled, that an indictment must set forth the offense with such certainty as to apprise the defendant of the nature of the accusation upon which he is to be tried, and with such clearness and conciseness as to constitute a bar to any subsequent proceeding for the same offense. The indictment' under consideration charges the defendant with the felonious, willful, premeditated and malicious killing and murdering of Daniel Jackson, and states the manner of the killing to be “ by making an assault upon him with a shotgun.”

The offense of murder is eleaiiy charged against the defendant, and this ciime is within the jurisdiction of the Circuit Court of Desha county. But the appellant claims that the circumstances and manner of the killing are not fully stated, because the indictment does not allege in what manner the assault was made with the shot-gun — whether the shot-gun was used as a fire-arm or as a bludgeon, or to frighten him to death with it. It would have been much better, and not have been considered as surplusage, to have said in the indictment, that the assault was made with a shot-gun, and with said gun did .kill and murder by shooting him, or that the assault was made with a shot-gun, and by shooting him with said gun did kill and murder him, or any other allegation of the manner of the assault and killing in accordance with the facts. It may be very material for the defendant, as a matter of defense, to know how the fatal blow was produced.

In an indictment for murder the gravamen consists in the killing, which may be distinctly stated, but the manner in which it was done be omitted. The omission to do so may “ tend to prejudice the substantial rights of the accused on the merits,” and so effect the judgment of conviction as to justify the court in reversing it on that ground alone.

. It is a rule of criminal law that every indictment should be certain :

First. A complete description of the offense charged.

Second. It should set foi’th facts constituting the crime with a reasonable degree of certainty, so the accused may have notice of what he is to meet.

The fact that Daniel Jackson was feloniously, willfully, premeditatedly and maliciously killed and murdered by Lucy .Edwards with a shot-gun, is stated with sufficient conciseness to make out the offense charged, but that Daniel Jackson was killed “ with a shot-gun,” does not set forth the manner and circumstances attending the rise of the gun with such a certainty as would ordinarily enable a defendant to make a complete defense, if innocent.

None of the substantial rights of the defendant, in the case at bar, may have been denied her, as appears from tire record, from an imperfect statement of the facts constituting the crime, which might cause us to hesitate in reversing this case upon a motion in arrest of judgment, but the record shows that, before her-plea to the indictment was entered, she demurred. to it, which demurrer was overruled. Whether a new indictment, alleging all the circumstances of the killing, would have given the accused any better notice of what she was to meet upon trial, we are unable to say. Still she was entitled, in the outset, to a more full and complete accusation as to the mode and manner of the commission of the offense.

The court erred in overruling the demurrer to the indict-meat, and the motion for arrest of judgment. The case of Thompson vs. State, 26 Ark., 823, fully decides the requisites of an indictment.

Second. The defendant,insists that the court erred in not allowing certain declarations o'f Isham Edwards, her husband, made after the killing was done and to Esquire Comby, to go to the jury.

Erom the transcript, it appears that the witness, Lilly Jones, called by the defendant, stated on the trial, that when Isham Edwards, the husband of Lucy, the defendant, went up to Esquire Comby and told him, “ that he, (Isham Edwards) had made Lucy, his wife, kill Jackson.”

The court ruled this statement of Edwards as inadmissible, and instructed the jury to disregard it altogether and would not allow Esquire Comby, when called as a witness, to testify to any statement by Edwards to him.

The defense, in this case, seems to have been mainly predicated upon the fact that thé defendant was a married woman, and if she did the killing, it was done under the threats, commands and coercion of her husband, Isham Edwards, and claims any admissions or confessions made by him in her favor were competent testimony and should have been received by the court and jury.

Our statute declares that, “ married women, acting under the threats, commands or coercion of their husbands shall not be found guilty of any crime or misdemeanor, if it appear from all the facts and circumstances of the case that violence, threats, commands or coercion were used.”

It would thus appear that a wife cannot be found guilty of a crime, if it is shown from all the facts and circumstances, she was acting under the threats, commands or coercion of her husband in the commission of the offense.

The declaration of Edwards, the husband, that he “made Lucy, his wife, kill Jackson,” made before another person, would not be competent testimony upon the trial in favor of the wife, because it is hearsay, and such evidence is incompetent to prove a specific fact which is in its nature susceptible of being proved by witnesses, who speak from their own knowledge.

In the case of the United States vs. Douglass, 2 Bl. C. C., 207, the court say: “when, on a joint indictmént against them for murder, one of them is tried separately, it is not' competent to give in evidence a conversation between the other two, when alone, inculpating themselves and exculpating him from all participation in the crime.” These declarations of Edwards were properly excluded from the testimony.

The third cause .for a new trial is, that the court erred in instructing the jury that, “ The burden of proving coercion, threats or commands devolves upon the defendant, and the crime must appear to have been done under the influence-of such coercion, threats or command.”

"We think it clear, under our statute, that if a wife commit a crime under the threats, commands or coercion of her husband, she cannot be found guilty, but this coercion of the husband must be made to appear from all the facts and circumstances, and is not to be presumed merely from his presence. A defendant who virtually admits the killing and attempts to excuse herself from the crime, must show that she was not acting at the time from her own volition hut from that of another. •

' . The instruction was not erroneous. It is not necessary to review the testimony to determine whether the verdict of thejui’y was correct or not, as from the insufficiency of the indictment the judgment must be reversed. The cause is remanded with instructions to hold the defendant im custody until the case is again brought before the grand jury of Uesha county.


source: Caselaw Access Project

author: Harrison, J.

license: Public Domain

text:
    CARNALL v. CLARK ex use HERSHEY.
    Practice— When limitations pleaded after default. — The rule that a default will not be set aside to permit a defendant to plead the statute of limitations has no application when the default has been irregularly taken, or if,, in point of fact, the defendant had no notice of the pendency of the suit.
    Burden oe Prooe — Where limitations pleaded to set-off- — The burden of proof lies on the party who substantially assorts the affirmative of the issue and, on replication of the statute of limitations to a plea of set-off, the defendant will not be permitted to affirmatively show that his cause of action accrued within a time not barred by the statute.
    Conditional Sales — Relationship of parties and remedy. — On a conditional sale, the relationship of debtor and creditor does not exist between the parties — the property in the thing sold passes to the vendee, subject to be divested on performance of the condition as stipulated, and if the vendee part with the property before the time to redeem expires, the vendor’s only remedy is by an action for damages for breach of the covenant, and not for the recovery of the property.
    APPEAL PROM SEBASTIAN CIRCUIT COURT.
    Hon. E. D. Ham, Circuit Judge.

      Clark § Williams, for Appellant.
    . First. "We submit that the court erred in striking out the defendant’s plea of the statute of limitations to the plaintiff’s action; It is true that this court, in the ease of Pennington vs. Gibson, 6 Ark., 447, held that they would not where timely service had been had,, set aside a judgment by default to let in the plea of statute of limitations. The principle of that case was never applied, except where the defendant had been duly served with process, and where he had been guilty of laches •or default. See Wilson vs. Phillips, 5 Ark., 183; Broxoning vs. Poane, 9 Ark., 354; Pobvnson vs. State Bank, 11 Ark., 301; Hudson vs. Breeding, 7 Ark., 445.
    A judgment by default without notice is a nullity.. See Act ■of VUh February, 1859, Pamphlet Acts, page 172.

      Second. The court erred in giving to the jury the instructions asked by plaintiff.
    The written agreement of 3d of January, 1861, given in •evidence, neither involves a promise to pay, nor the acknowledgement of a debt, nor any undertaking of Carnall on which ■ a suit could be brought. If it had, then the suit should have been on the instrument, and debt on simple contract could not be maintained. 1 Chitty PL, 103; Goodman et al. vs. Jenkins, •14 Mass., 93; Andrews vs. Montgomery, 19 Johns., 161; Fletcher vs. Pratt, 7 Black., 522; Compton vs. Jones, 4 Cow., 13; Jewell vs. Shrayrel, 4 Cow., 564.
    The law presumes that it was taken as payment, and the note or obligation is at the risk of the party taking it. White-beck vs. Van Ness, 11 Johns. 408; Breed vs. Cook et al., 15 Johns., 241; Arnold vs. Camp, 12 Johns., 409 ; Maride vs. Hatfield, 2 Johns., 455; Wilson vs. Force, 6 Johns., 110; 1 Smith’s Leading Cases, marg. p., 146.
    But, in case the notes were taken as conditional payment only, and not as mere collateral security, on the one hand, or absolute payment on the other, the plaintiff could not recover without first accounting for these notes, and showing that she had used due diligence to collect them, and failed. Herring vs. Sanger, 3 John’s Cases, 71; Tyson vs. Pollock, 1 Penrose §■ Watts., 375; Chapman vs. Stcrmitz, 1 Balias, 261; Ozee vs. .Spencer, 2 Whart., 253.

      XJ. M. Rose, for Appellee.
    The judgment recites that the defendant was served with process more than thirty days before the commencement of the term. This recital is evidence of that fact, and supplies the place of the summons. Acts 1858, page 172. After the term expired the court could not set aside the judgment. Smith vs. Stinnett, 1 Ark., 497; Byrd vs. Broion, 5 Ark., 709'; Raxodon vs. Rapley, 14 Id., 203 ; Biscoe vs. Sandefur, lb., 568 ; Ashley vs. Hyde, 6 Id., 100; Cossitt vs. Biscoe, 12 Id., 95; Brooks vs. Ilanauer, 22 Id., 176.
    Nor could it ever be set aside by consent: Mayor vs. Bullock, 6 Ark., 282; McKnight vs. Stroxig, 25 Id., 212.
    After setting aside the judgment by default, the only right defendant had, on trial of the writ of inquiry for the assessment of damages, was to cross-examine the plaintiffs witnesses, and doubtless introduce witnesses of his own to lessen the amount of damages: Thompson vs. Hairlip, 14 Ark, 220 ; but he was allowed to plead several pleas to the merits; this was error, but the error was in favor of .the appellant, and therefore he could not complain: Ashley vs. May, 5 Ark,, 408; Swinney vs. State, 22 Id., 216.
    After appearing and having the default set aside, he could not plead that the court had no jurisdiction of his person: 1 Saunder’s FI. Bv., p. 1. The want of jurisdiction.as to the person of the defendant is waived by an appearance: Rhode Island vs. Massachusetts, 12 Pit., 657; Carter vs. Bennitt, 15 How., 354.
   Harrison, J.

This was an action of debt, for money loaned and money had and received, by Sarah Clark against John Carnall, commenced in the Sebastian Circuit Court, for the Port Smith district, and, after the pleadings were made up, transferred by change of venue to the Crawford Circuit Court.'

At the return term, judgment was taken against the defendant, but the same was, at the next term, before the damages were assessed, set aside upon the application of the defendant, and he filed four pleas; nil debit, payment, the statute of limitations and set off..

At the instance of the plaintiff, the plea of the statute of limitations was struck from the record, and she filed two replications to the plea of set off, nil debit, and the statute of limitations, and upon the pleadings as thus stated, issues were formed.

Upon trial, the jury returned a verdict, in favor of the plaintiff, for one thousand dollars debt, and five hundred and ninety dollars damages. The defendant moved for a new trial, which was refused, and he excepted and appealed.

Whilst it may be an established rule of practice that a default will not be set aside to enable a defendant to plead the statute of limitations, it is also well settled, that it has no application when the default has been irregularly taken, and especially, if without notice to the defendant of the pendency of the suit.

No summons is found in the record, and the bill of exceptions shows that the default was.set aside, because the same was taken without notice to the defendant. It, however, appears, by the transcript, that the entry upon the record of the default showed service of process upon him, which according to the provisions of the Act of the General Assembly, of February 17, 1859, is sufficient evidence of the fact; but the default being set aside, the entry thereof is no part of the record. The court, therefore, erred in striking out the plea of the statute of limitations.

The grounds, upon which the motion for a new trial was made, were:

First. That the court refused to allow the defendant to produce proof of particulars of his plea of set off, in respect to which his right of action had not accrued within three years.

Second. Misdirection of the jury, and

Third. That the verdict was asrainst the evidence.

"We are unable to see that the court erred in refusing to permit the defendant to prove the matters of his set off, not within the period of limitations. Upon the issue made upon the replication of the statute of limitations to his plea of a set off, the defendant undertook to show, affirmatively, that his cause of action did accrue within three years. “The obligation of provi rig any fact lies upon the party who substantially asserts the affirmative of the issue. 1 Green Ev. Sec. 74; 2 Cromp & M., 658. The plaintiff, who only adduced any evidence, read to the jux’y the following, instrument of writing:

“This agreement, on the part of the undersigned, with Miss Sarah Clark, of Eort Smith, Arkansas, is as follows, to-wit: I have this day, in order to raise money, sold and delivered to said Miss Sarah, the following writing obligatory, to-wit: dated January 9th, 1860, for $710 dxxe at eighteen months, with ten per cent, from date, and signed by B. T. DxiYal, John.King, "W. B. Calhoun aixd S. Howard Calhoun; and also, the following; note, to wit: dated January 23d, 1860, for $828 ^¿L-, due at twenty-four months, with interest at ten per cent, from date, and signed by Benj. J. Jackoway and Samuel •M. Hays, payable to Samuel L. Griffith’s order, and indorsed by him to mo ;• the first writing above being payable to me or order, at and for the sum of $1000 in cash, with' the understanding, however, that I am to be permitted to redeem said notes'at any time within the ensuing twelve months by paying the said sum of $1000, with' interest at ten per cent, per annum from this date, or at any time within twenty-four months, unless said Sarah Clark shall serve upon me a notice in writing, giving me six months notice, that unless I paid said sum of $1000 and interest within said six months, she will consider I have forfeited all right to redeem said note and writing obligator}'.

Witness my hand and seal, this 3d day of January, 18G1.

John Carnall, [jSW/Z.]”

She also read the following’ indorsemexit thereon.

“The within note of $828 T^-, is this clay given up to the undersigned. January 23, 1862.

John Carnall.”

And the defendant being, introduced by her, testified: That, on the 23d day of January, 1862, Griffith offered to pay him the note in Confederate money; he went to plaintiff and told her that Griffith was ready to pay it; she produced it and handed it to him and he took it to Griffith and got the money, whereupon, he returned to plaintiff, and offered to pay her, without, however, telling her in what kind of money the $1000 and the interest which had accrued. She replied that she did not need it, and that he could keep and use it; that his note, and DuVal’s and .King’s, were amply suffiient to secure her, and she was satisfied with them. He thereupon asked for the agreement, which being produced, he made the indorsement upon it, read to the jury.

The instruction given to the jury was as follows :

“'If the jury find from the evidence, that the defendant borrowed from the plaintiff the sum of one thousand dollars, and, to secure the payment thereof, executed to her the instrument of writing read to them, they shall find for the plaintiff the sum of one thousand dollars, for her debt,-with six per cent, interest from the 3d day of January, 1861.”

This instruction was predicated upon the hypothesis, that the money the defendant obtained from the plaintiff -was borrowed, and the writing obligatory and note were placed in her hands simply as a security for its re-payment; but the contract.between the parties, as evidenced by the instrument read to the j ury, admits of no such construction. The writing obligatory and note, were delivered to the plaintiff upon a conditional sale, in consideration of the money the defendant received; not. as a pledge or security for the re-payment of the money. There was no promise or agreement on the part of the defendant'to repay the money, and the relation of debtor and creditor did not exist between them. The property in them passed to the plaintiff, subject to be divested by the defendant within the time limited, by paying the sum of money lie received with the stipulated interest. If she had parted with them before the time in which he might have redeemed expired, his only remedy would have been an action for damages for her breach of covenant, and not for their recovery. Porter vs. Clement, 3 Ark., 364; Johnson vs. Clark, 5 Arkansas, 321.

The instruction was, therefore, erroneous and as it doubtlessly influenced the verdict, which was not sustained by the evidence,'the motion for a new trial should have prevailed.

The judgment is therefore reversed, and the cause remanded with instructions to set aside the verdict, and reinstate upon the record the plea of the statute of limitations, and proceed according to law.


author: Searle, J.

text:
    MILLS v. JONES & REED.
    Supreme Court — Practice on appeals. — Exceptions taken to the rulings of the court below, but not made the grounds for the motion for a lew trial, will ho considered waived and not subject to review in this court.
    APPEAL I’ROM MONROE CIRCUIT COURT. .
    Hon. John E. Bennett, Circuit Judge.

      Watkins & Rose, for -Appellant.

      Wassell & Moore, for Appellees.
    Tile submit there is no question of law before this court. All exceptions not incorporated in the motion for a new trial are waived. Collier vs. State, 20 Ark., 360; Graham vs. Poark, '23 Ark., 19. That the scope of review in this court is limited by the grounds taken in the motion. Hopkins et al. vs. Dowd, 11 Arkansas, 62T.
   Searle, J.

This suit was brought to the November term, 1868, of the Monroe Circuit Court. The trial was by jury; finding and judgment for plaintiffs, from which this appeal was taken.

Erom the transcript of the record before us, it appears that the only exceptions taken, on the trial of the cause, were to the instructions of the court to the jury. But these exceptions were not made the ground for the motion for a new trial. They were therefore waived. Collier vs. State, 20 Ark., 86; Graham vs. Roark, 23, Ark., 19. No rule is better settled than that the scope of review, in this court, is limited to the grounds upon which the motion for a new trial was based. Hopkins et al. vs. Dowd,, 11 Ark., 627. There is, therefore, no question of law before the court. If errors of law were committed on the trial, they have been waived.

We will remark, further, that it does not appear from the transcript that the overruling of the motion for a new trial was excepted to, and the motion is not, in fact, any part of the record of the case.

Binding no errors in the proceedings of the court below, from the transcript before us, let the judgment be affirmed.

Bennett, J., did not sit in this case.

ITon. W. L Warwick, Special Supreme Judge.


author: Gregg, J.

text:
    DUNNINGTON et al. v. BAILEY.
    Circuit Courts— When no jurisdiction on appeal. — "Where the amount) in controversy, in a suit before a justice of the peace, is above the jurisdiction of the justice, the Circuit Court can- acquire none on appeal.
    APPEAL PROM INDEPENDENCE CIRCUIT COURT-
    IIon. Elisha Baxter, Circuit Judge.

      U. M. Hose and W. Byers, for Appellants.

      A. IJ. Garland, for Appellee.
   Gregg, J.

The appellee, in 1869, sued Metcalf and Seymore before a justice of tlie peace and recovered judgment. An execution was issued and returned, “no property found.” The justice endorsed thereon, “renewed for twelve months.”

Sometime thereafter, the constable seized certain cotton which was claimed by the appellant. Under Section 727 of the Civil Code of Practice, the appellant, in order to hold the cotton, tendered a bond with security, which was approved by the constable and returned with the execution.

The bond did not conform to tlie statute; it was for $3000, not given to the plaintiff in the execution but to him and Burr & Reed. There was no showing as to what the property ivas valued at, or wliat portion was seized under Bailey’s execution, or what under an execution in favor of Burr & Reed, which appeared also to be in the constable’s hands.

On the 4th of Januaiy, 1871, the appellee moved the justice of the peace for judgment on the bond, reciting that it had been executed by Dunnington to him. The justice sets out on his.record the $3000 bond of Dunnington and "Wright to Bailey and Burr & Reed; a jury was empannelod, and they returned that .they found the property not subject to the execution. • The justice rendered judgment that the “levy be annulled, the property restored,” and that Bailey pay costs; from which Bailey appealed to the Circuit Court, and obtained a supersedeas. The record does not show what issues were made up in that court, but shows that a jury was empanneled to try the issues, and that they returned that they found for the appellee $74 05, with ten per cent interest on the amount, for which sum and costs judgment was rendered against Dunnington, and he moved for a new trial and in arrest of judgment, which motions were overruled, and he excepted and appealed to this court.

The motions and bill of exceptions are verbose and lengthy. We deem it only necessary to say that the grounds, in the motion in arrest of judgment, seem to be well taken.

This is not a statutory bond in the form and with the conditions prescribed by the Code and without deciding what was, or was not Dunnington’s liability on that bond, it is not such as authorized a recovery in this form of proceeding. Watson vs. Gabbery, 18 B. Mon. 664. Bailey’s proceeding against Dunnington was commenced by motion upon this $3000 bond, before the justice of the peace. The bond was the foundation of his complaint there, and it being for a sum above the jurisdiction of a justice of the peace, he could not successfully prosecute such claim in that forum.

If the justice of the peace had no jurisdiction, the Circuit Court could acquire none by appeal. Collins vs. Woodruff, 9 Ark., 463; Latham vs. Jones, 6 Ark., 372.

The judgment is reversed and the cause remanded for the ' appeal to be dismissed for want of jurisdiction.


author: Bennett, J.

text:
    WEAVER & WEAVER v. FLETCHER & HOTZE.
    Parol Evidence — TPAere written contract not varied by admission of — The admission of parol evidence to establish a contemporaneous, collateral, substantive agreement, relating to the same subject matter and forming a part of the consideration of a Avritten contract, does not contravene the general rule that parol evidence avíü not be received to contradict; vary, or in any manner control the legal import of a written contract.
    APPEAL PROM PULASKI CIRCUIT COURT.
    Hon. John Wiivtock, Circuit Judge. ■

      Gallagher & Newton, for Appellants.
    We submit that the decision of the court below was erroneous on two grounds :

      First. Mistake of original transaction. See Baltimore etc., Steamboat Co., vs. Featherston, 54 Penn., (4) 77; Woodfin vs. Slader, (.Thill. N. C.) 1. 200.

      Second. It was a collateral substantive agreement, and as such can be proved by parol. Branch vs. Wilson, 12 Fa., 543. Part only was reduced to writing. Cobb vs. Wallace, 5 Cold: (Tenn.) 138; Fox vs. Parker, 44 Barb., 541.

      Farr § Fletcher, for Appellees.
    The note was the written contract between the parties, and it is a well established rule of law that a parol contemporaneous agreement will not be allowed to contradict or vary the written contract of the parties. Borden et al. vs. Peay, Pec., 20 Ark., 294; Greenleaf onFv., vol. 1, sees. 275,282,319; also Featherston vs. Wilson, 4 Ark., 154.
   Bennett, J.

Eletcher & Hotze sued appellants, in the Pulaski Circuit Court, upon their promissory note for $791 35. Appellants appeared and filed their ansAver, wherein they set forth that being indebted to the plaintiffs, Fletcher & Hotze, in a certain sum upon account, they delivered to plaintiffs an amount of cotton, which, at the time of delivery, Avas to be credited upon said account at the rate of fourteen cents per pound, hut, “ if there should he a rise in market when said cotton should be sold in value over and above fourteen cents', the defendants were to receive the benefit of said rise or its market value.” "With this understanding the defendants executed their note for the balance of the account, with the further agreement that the amount, if any, of the excess in price of the cotton, when sold, should be credited upon it. The answer also alleges that the cotton did sell for a greater amount than fourteen cents per pound, amounting in the aggregate to $400, and they claim that said amount should be allowed them in settlement of the note.

Appellees filed demurrer to answer, which was sustained by the court. Judgment was rendered for full amount of note and damages, from which judgment an appeal was granted. Two causes of demurrer were assigned, viz: “1st. Because the said answer sets up a verbal contemporaneous agreement by which the note sued fon should be credited. 2d. Because said answer alleges that there was an agreement between plaintiffs and defendants, at the time said note was executed, that if there should be a rise in the price of cotton, said defendants should have the benefit of the rise in thirty-eight bales of cotton which defendants had previously sold to plaintiffs at fourteen cents per pound, and said answer does not allege that said agreement was in writing.

The demurrer may be considered as a whole, as both causes assigned are based upon the general rule that parol evidence is not admissible to vary or alter a written instrument, and, if admissible for any purpose, it must generally have a foundation in pre-existing evidence of fraud, accident or mistake."

It is certainly true that parol evidence will not be received to add to or take from a written agreement a term or stipulation which, though agreed upon between the parties as part of the contract, urns not introduced into the written instrument, for this would be to alter the agreement. But, consistently with this principle, it is well established that a substantive collateral agreement may be substantiated by parol evidence. Chitty says : “ After an agreement has been reduced to writing, it is, by the rules of the common law, competent to the parties at any time before breach of it by a new contract not in writing, either altogether to waive, dissolve or annul the former agreement or in any manner to add to or substract from, or vary or qualify the terms of it and thus to make a new contract which is to be proved, partly by the written agreement and partly by the subsequent verbal terms engrafted on what will then be left of the written agreement.'” Thus, when there was .a written contract “ for the hire of a horse for six weeks at two guineas, Lord Ellenborough permitted parol testimony to be given that, at the time of the hiring, it was expressly stipulated that the horse would shy, and the hirer, if he took him, should be liable to all accidents.”

In the case of The King vs. Larmidon, 8 T. R. Durnford & East, 379, the question as to. a settlement was, whether the parties intended to contract as master and servant, or as master and apprentice; the written agreement was as follows ; “ I, J. M, do hereby agree with J. C. to serve me three years to learn the business of a carpenter.; .the first year to have, Is 2d per day, as follows, etc’.” In addition to this J. O. was admitted to prove at the trial that, at the time of signing the agreement, he agreed to give J. M. the sum of three guineas as a premium to teach him the trade and that he was not to be employed at any other work; The court of King’s Bench held that the evidence was admissible.

How does the case before us appear from the pleadings‘t By the filing of the demurrer, the plaintiffs, at least for the time being, admitted the truth of the answer. Erom this we learn that the "Weavers were owing Eletcher & Hotze a large sum of money for goods, etc.; that in order to liquidate this sum in part, the Weavers let them have thirty-eight bales of cotton. At the time of delivering this cotton it was stipulated between them that the Weavers were to have credited upon their account the cotton at fourteen-cents per pound, but with the additional understanding, that if it should bring more, when sold, they were to have the benefit of the advanced price. Fletcher & Ilotze credited the Weavers account at fourteen cents per pound. A balance appearing to be due them after deducting the value of the cotton at that price, the Weavers executed the note which is the foundation of this action.. When the cotton was sold, it brought |400 more than the amount which the Weavers had been credited with by Fletcher & Hotze, which amount they .have received from the cotton, and the Weavers claim should be deducted from the note.

If the evidence of the facts, as alleged in the answer of the defendants, would tend to contradict, vary, or in -any manner control the legal -import of the note sued on, als between the parties, its admission could not be sanctioned. But on a careful examination of the answer it will be seen that there is nothing inconsistent with the -written legal effect of the note. -The facts alleged, and the evidence necessary to substantiate them, will only establish a distinct collateral agreement betwmen the same parties, which -was not considered necessary to be put in writing when the note was given, but which, in fact, constituted, in part, the consideration of it. The authorities are abundant that proof of such an agreement, not inconsistent with the terms of the note, may be made by parol evidence. Prible vs. Baldwin, 6 Cush., 567; Nickerson vs. Sanders, 36 Me., 413; Hersey vs. Venel, 39 Me., 271; Burney vs. Morrel, 57 Id., 372; Brunch vs. Wilson, 12 Florida, 543; Cobb vs. O’Neill, 2 Sneed, 438.

Has the fact that the plaintiffs are suing upon a note, given under these circumstances, plaeedthem in any different relation to the defendants than if the suit had been brought upon the original account ?. The promise of the defendants to pay the balance due on an account at a certain time, with the understanding that that balance might be reduced by certain continwhich arise, has, it is true, the modification of having the first part of the agreement put-in'the form of a written obligation, which is the foundation of this suit; hnt still the plaintiffs are in fact seeking to enforce the original contract, and the question of right must be settled in the same maimer as though the action was in form upon the original account. .But the plaintiffs, by their demurrer, urge that the damages or credits claimed do not spring out of the written obligation sued upon, hnt arise under the collateral agreement. It is undoubtedly true that there can he no counter claim by setting up an independent contract on the part of the defendant. Rut that is not this ease. The defendants allege facts which, if true, show that the plaintiffs have appropriated moneys belonging to them which should go in part payment of the note. The amount of $400, so used, grows out of the mutual stipulations between the parties, made at the time the note was given and relating to the subject matter. There can he no difference in principle, whether the whole transaction is embodied .in one written instrument setting forth the cross obligations of both parties, or whether it takes the form of a separate and distinct understanding — one in writing, the other verbal — by each party.

The defendants proposed to the plaintiffs to let them have .a certain lot of cotton, to he credited on their account, at 14 cents per pound — they, the defendants, to be entitled to the rise. Upon this understanding they executed their note as an evidence of the balance due át that time. If the cotton had only sold for 14 cents per pound that would have shown what defendants were owing plaintiffs when the sale was made, hut the cotton brought $400 more when sold, which amount, under the agreement, pays the note to that extent — it having been used by plaintiffs. Had the -agreement, as to tlie rise, been incorporated into the note, this answer would have been a good and valid counter claim under the code. So it would have been had the whole subject matter rested in parol without writing. The nature of this transaction, however, cannot he changed by putting the several stipulations of the parties into the form of distinct written contracts. Nor can it make any substantial difference that the undertakings of one party have been reduced to writing, while the engagements of the other remain in parol. In substance, it is still the case of mutual stipulation between the same parties, made at the same time, and relating to the same subject matter. The forms which the parties may have adopted ' for the purpose of manifesting their agreements cannot affect the rights, so far as the question is concerned. Whether all the mutual stipulations have been embodied in one instrument or in several, or whether some have been put upon paper while others rest in parol, the reason still remains for allowing the claims of both parties, growing out of the same transaction, to be adjusted in one action, if for no other reason than to avoid circuity or multiplicity of actions, and doing complete justice to both parties. In the case of Reab vs. McAllister, 8 Wendall, 109, Chancellor Walworth well remarked that there is a natural equity, especially as to -claims arising out of the same transactions, that one claim should compensate the other and that the balance only should be recovered.” But the question of showing,by parol, independent collateral agreements, in connection with the written cause of action, is well settled upon authority. In Frisbee vs. Hoffnagle, 11 Johns. R., 50, the action was upon two promissory notes, given by the defendant to secure the purchase money for a piece of land which the plaintiff.had conveyed to the defendant with warranty. The defendant 'was allowed to •defeat the action by showing a breach of warranty. The parties to this suit had given to a single transaction the form of two distinct agreements, and yet, when the defendant was sued upon his promise, he was- allowed to set up a breach.of the plaintiff’s undertaking in answer in the action. The case of Spaulding vs. Vandercock, 2 Wend., 431, in every important particular, is like the case under consideration. The plaintiff sold provision barrels and agreed that they should be such as would pass inspection under the law. The defendant had given liis note for the price, while the plaintiff’s promise still remained in parol. Yet, in an action upon the note, the defendant was allowed to show this fact. In the case of Borden et al. vs. Peay, Receiver, 20 Ark., 294, Chief Justice English held: “ That in a suit upon a note, payable at a specified day, the defendant will not be permitted to introduce evidence of a parol contemporaneous agreement that the note was to be paid at a different day or in a different manner, as that the parties had agreed that the note was to be paid in work, and that the collection of it was delayed that the debtor might have the benefit of this agreement.” But, “ it was competent, however, for the parties to show that printing had been done, the time when done and the amount and price thereof, and that by agreement of parties the price of the work so done was appropriated as a payment upon the notes, because such evidence relates to the discharge of the notes, and in noway affects the terms of the written contract.”

The same general doctrines will be found in the celebrated case of Reab vs. McAllister, 8 Wend. 109; also in Burton vs. Stewart, 8 Wend., 236; Still vs. Hall, 20 Id., 57. There is, therefore, nothing hi the position that the defense, set up in the answer, contradicts, varies or alters the note. The defendants do, not deny the execution of the note, but admit it. There is nothing inconsistent with this written stipulation of the parties, and the facts, as, alleged in the answer, are a distinct collateral agreement, an independent substantive matter which was not required to be placed in writing. 'When, in 'the future, the cotton, which had been received, rose in value to the. amount of $400, the defendants were entitled to that much money or credit. If appropriated by the ■ plaintiffs, it virtually became a payment to that extent of the note or other indebtedness of theirs.

The demurrer was improperly sustained; the causéis remanded with instructions to overrule the demurrer, and proceed to trial not inconsistent with this opinion. I


text:
    SIMMONS v. SMITH.
    Practice— When evidence conflicting'. — It is the province of the jury to weigh the evidence and find the facts, and this court will not disturb that finding in doubtful cases, or where the evidence is conflicting.
    APPEAL FROM DREW CIRCUIT COURT.
    Hon. Henry B. Morse, Circuit Judge.

      Gallagher & Newton, for Appellee.
   Gregg, J.

Tliis is an action of assumpsit, brought by the. ¡appellee against the appellant, in the Drew Circuit Court, for $617 61 J, for so much money received' by the appellant of •commissions'due the appellee as the administratrix of the estate of John.Smith, deceased.

The appellant plead non-assumpsit, payment and set-off, upon which issues were formed; a trial was had before a jury; verdict and judgment for the appellee for $617 61J. .

The appellant moved for a now trial, because the verdict was contrary to the law, the evidence, the instructions of the ■court, and the damages assessed were excessive.

The court overruled the motion; he excepted and appealed.

The evidence was conflicting; however, it seemed more favorable to the appellee. It was the province of the jury to weigh the evidence and find the facts; they did so, and the Circuit Court, in its discretion, would not disturb their finding, and, as has so‘often been hoi den, this court will not weigh the evidence in doubtful cases.

There being no sufficient grounds to warrant an appeal in this case, the judgment will be affirmed, and the appellant faxed with ten per cent, damages on the amount of the judgment against him.


author: McClure, C. J. Gregg, J.,

text:
    JONES v. DOSS et al.
    Vendor’s Liens — When notes given for purchase money assigned, etc. — -The vendor’s lien is personal, and the assignment of the notes, given for the purchase money, does not carry with it the lien without words to that effect in the deed.
    APPEAL FROM JEFFERSON CIRCUIT COURT.
    IIon. Henry B. Morse, Circuit Judge.

      A. II. Garland, for Appellant.

      First. As a general proposition, if a debt is secured by an express lien upon property, by agreement of parties, an assignment of the debt, secured by such lien, will give the assignee the benefit of such lien: 2 Wash. Beal. Brop. 92; 4 S. $ N. 294; 5 Hump.,-489; 2 Terg., 84; 4 Iowa, 480 ; 2 Dana, 98 ; 6 B. Mon., 67; 1 Blackf., 417; 7 lb., 329; 5 Bid., 492; 13 Ark., 533; 15 Ves., 339 ; 10 Ala., 441; 7 Blackf., 227. By our law,, the lien is held to pass in certain cases with the note: 18 Ark., 142; 23 Id., 225.
   McClure, C. J.

On the 20th of January, 1860, Bocage sold six hundred and forty acres of land to one Leroy Loss for the sum of seven thousand dollars, one-third of the purchase money in hand, and the balance in two equal payments, due January 1st, 1862-3, respectively.

On the 14th of January, 1862, Bocage and wile made a deed to Loss, acknowledging the receipt of the first payment. The deed alluded to, in addition to the above, recites the fact that Boss has executed his two notes, bearing date January, 20,1860, to Bocage, for $2333 33 each, due as before stated; said deed also contains this further clause, to wit: “it being distinctly understood that a lien is reserved on the above granted premises to se-, cure the payment of the purchase money in full.”

The note due January 1st, 1862, was, on the 15th day of* December, of that year, assigned by Bocage to N. K. Jones,. the complainant and appellant in this case. Doss died and, on the 19th of January, 1867, one Bagg was duly appointed administrator on said estate. On the 9th of April following, Jones presented his note, duly authenticated, to the administrator for allowance, and the same was rejected, but was afterward allowed by the Probate Court, and classed as a fourth-class claim. After the claim was allowed and classified, Bagg, the administrator on the estate of Doss, was ordered to sell the lands of which Doss died seized, to pay debts, which was accordingly done, and one ~\V. P. Grace became the purchaser.

The note which fell due on the 1st of January, 1863, was, by Doss, in his lifetime, taken up by giving to Bocage a note on Davis & Templeman, which was for a like amount, and dire at the same time the note was which Doss took up. Bocage transferred the Davis & Templeman note to one Can-oil, and Carroll transferred the same to IF. P. Grace, who presented the same to the Probate Court, and had the same allowed as a'fourth-class claim against the estate of Doss, de-. ceased. "What authority the Probate Court had to allow the note of Davis & Templeman as a fourth-class or any other class claim against the estate of Doss, is beyond our knowledge, but, as the judgment is unappealed from, we will pass this subject without further comment.

On the 5th of October, 1869, Jones filed his complaint, in equity, asking that he be subrogated, to the rights of a vendor, and that the lands of which Doss died seized, be sold to pay his debts. To this complaint, Francis Doss, Minus Doss, W. P. Grace, and O. M. Bagg, administrator of Leroy Doss, deceased, are made parties defendants. At the hearing, in the court below, judgment was for the defendants, and Jones appealed.

The .complaint, in this case, alleges the sale of the land, the reservation of a lien in the body of the deed, the execution of the notes by Doss to Bocage, and the assignment of one of them to the complainant, etc. The view we take of this matter renders it unnecessary to state any of the matters set up by the defendants, save those presented by a general demurrer to the complaint. Viewed in this light, there is little difference between this case and that of Sheppard vs. Thomas, (26 Ark., 617.)

The only distinction between this case and the one referred to, is, in the language assigning or transferring the note. In the case of Sheppard vs. Thomas, (26 Ark., 617), the notes were simply assigned “ for value receivedin this case, there are two assignments endorsed on the note, one of which reads as follows, and is found on the back of the note : “ Eor value received, I assign the within note to N. K. Jones, December 15, 1862. (Signed) Jos. W. Bocage.”

The other endorsement is written across the face of the note, hut bears no date, and is as follows : “Eor value received I hereby assign all my right, title, interest and equity in this note to N. K. Jones. (Signed) J. W. Bocage.”

If we should treat the assignment, made December 15,1862, as the only assignment of the note, this case would fall within the rule laid down in the case of Sheppard vs. Thomas, (26 Ark., 617), and the doctrine of stare decisis would forbid any extended argument of the question presented in this case. But it is insisted that the assignment of the equity by-Bocage to the complainant, places him on higher and more tenable grounds than one who simply came into the possession of the note in the ordinary course of business. In order to ascertain if this be true, the first question to be determined is, whether Bocage had an equity which was assignable. It was said by the minority, in Sheppard vs. Thomas, (26 Ark., 617), that, “there are too kinds of vendor’s liens/’ and they are described as follows :

First. “A lien by express contract, or by agreementbetween the parties,” and Second; “ An equitable lion arising between the parties, jvliere an absolute conveyance is made and no expi’ession of an intention to reserve a lien is had.”

In speaking, or rather in describing the first lien, the minority say, “ where a vendor stipulates for a lieu to secure the payment of the purchase price, and gives proper notice to all who may be concerned, such lien then becomes a security for such purchase money, and may be enforced by the vendor, or he may assign it to another, and such holder may enforce it.” But how is the “proper notice ” to be given ? Can it be done by making the reservation of lien in the face of the deed and placing it of record? We think not.. To tolerate such a course, would as effectually encourage secret liens, as to hold that the assignee of a note given for the purchase of lauds, took all the equities of the vendor. This deed, says Bocage, shall have a lien upon the lands for the unpaid purchase money — the law gave him such a lien without any such expression in the deed, but, it is argued, because the parties have expressed alien, that the presumption arises that something beyond what the law implied was intended.. Here is where the argument is at fault. The expression of the lien loas not for the purpose of giving to the notes, for the unpaid, purchase money, a greater value than they would otherwise possess. Bocage knew, as does every man who understands the law, that after he executed an absolute deed for the land, that his vendor’s lien was only good against the vendee, his heirs and other privies in estate, and purchasers with notice. What was really intended by the expression of the lien, was to place constructive notice 'on the record, to purchasers of the estate, and not to create an equity which would follow the notes into the hands of an assignee. The law, from-the time the memory of man runneth not to the contrary, has been that the vendor’s lien was personal, and not assignable. With this fact kept well in. view, let us examine the language of the deed and see if the'words there employed evidence an intention to create a lien which should follow the notes into the hands of an assignee; or whether it evidences an intention to warn purchasers of the estate, that not the assignee of the notes has ■a lien, but that the vendor has.

After the words “ to have and to hold the above granted premises to the said party of the second part, his heirs and assigns forever,” is found the following: “it being hereby distinctly understood that a lien is reserved on the above granted premises to secure the payment of the purchase money in full.” By reference to another portion of the deed, we find that the purchase money was due and payable, not to Bocage or his assigns, but to Bocage himself. It is a well known rulé, that a deed will be most strongly construed against a grantor. This being true, and it being conceded that a vendor’s lien, where an absolute deed has passed between the parties, was not a valid lien as against purchasers without notice, the question arises, what was the object of the parties in placing the words creating a lien in the body of the deed ?

There is nothing in this transaction -which indicates an effort on the part of Boss, or Bocage, to do aught else than to notify the public that the purchase money for the lands described in the deed was not all paid. There is nothing in the deed which imports that either Boss or Bocage made mention of a lien for the purpose of imparting a greater value to the note, or for the purpose of rendering a negotiation of the note less difficult. Bocage knew that a vendor had a lien for the purchase money against everybody, save purchasers without notice. Under such circumstances, what would a prudent man do? We think he would do just what Bocage did, take the precaution to place of record a fact which would preclude the possibility of any man purchasing the estate without notice of the non-payment of the purchase money.

It is true, the notes were to remain liens until the purchase money was paid, but it must be borne in mind that this lan-. guage must be restricted in its meaning to the contracting parties, for we are not at liberty to assume, that, at the time of making the contract, either party had-reference to assignees, or third parties. If these parties had desired to create a' security or lien, which would follow these notes into the hands of third parties, language, showing such an intention, should have been employed in the deed. "We have no power to interpolate terms and conditions, at the instance or request of either party. The general rule is, that a deed shall be construed, in cases of doubt or ambiguity, most strongly against the grantor. The vendor’s lien is personal to himself, and cannot be transferred after the title to the property has been alienated. Equity raises the lien in his favor, because it would be wrong for one to have and enjoy the lands of another without payment therefor. When the vendor has received satisfaction, the reason for the equity no longer exists. It may be said, there is no hardship in allowing this lien to pass to the assignee, and that it can make no difference to Doss, whether he pays to Boeage or some one else. We are.not discussing a question of hardship. Older and wiser heads than ours have said the lien of the vendor was personal and not assignable after the vendor had parted with his title, and if the reasons given for the establishment of that rule, fail to carry conviction to the minds of those who yet doubt its correctness, we. acknowledge our inability to do so. After the vendor has been satisfied, we can see no reason why one creditor should be placed upon higher grounds than another.

Boeage had no equity in the note, which was transferrable to Jones, or any one else, of a character to authorize the bringing of this suit. Finding no error in the proceedings of the court below, the judgment is in all things affirmed.

Gregg, J.,

dissenting says : I would have added nothing to what I said in the case of Sheppard vs. Thomas, upon the main question in this case, but it seems that I did not make myself fully comprehended by the court.

In that case I assumed that absolute owners of real property had a right to sell and convey the same or any part thereof or interest therein, or they could sell, subject to any conditions, restrictions or limitations, (not prohibited by law) and they could reserve just such right or interest, contingent or absolute, as they saw fit, and that, under our registry laws, wlien a deed was put upon record, all concerned must know in whom the title vested, and the full extent of, and all limitations upon such title; the record affects such with notice.

I also assumed that the courts, in consuming a deed, should endeavor to arrive at the meaning and intention of the contracting parties; that this fundamental rule in the law' of contracts, as long since declared by this court, Davis vs. Tarwater, 15 Ark., 287, is as applicable to agreements by deed as any other contracts, and when the contracting parties express their intention, the courts are not authorized to attach any other meaning to their agreements than what they themselves do, and that the courts ought to carry out the expressed will'of‘the parties.

And I assumed further, that what is considered odious in secret — hidden,, liens — including what is technically equitable liens, does not attach to any lien created or reserved upon the face of a deed or otherwise published, by recording-under the registry acts, so all can see the extent of the vendor’s claims and the vendee’s title. Every purchaser is supposed to investigate title 'before he invests his money. He would certainly be guilty of culpable laches if he did not ask an exhibit of the seller’s titles, and he has only to read the deed, or its record, to see exactly what title is held by liis vendor; he sees all that has been convoyed to him, and all the incumbrances, conditions and limitations upon such'title, and consequently knows exactly what interest he is getting by the purchase, and cannot be deceived by any parol representations.

The liens disfavored, by courts, are those wherein a vendor makes a clear and unconditional conveyance, evidencing- a receipt of the purchase price, and after that attempts to hold a secret lien for purchase money.

If the intention of the pai’ties is-to govern, when they assert, by a solemn provision in their deed, that a lien shall be held until the purchase mono}' is paid, I know of no law or rule giving us the right to say they meant only so long as the vendor held the notes, and did not mean what they said, until the notes were paid off. Had they wanted a lien in Bocage’s favor only, they could just as well have said so ; they did not say that, and we must presume they did not so intend, and from the stress this court puts upon the presumption that Bocage knew the law, we can certainly be indulged in assuming that he knew the force of common, plain English words. In the argument, the court say: “This deed says Bocage shall have lien;” this is the error; it says a lien is reserved for the payment of the purchase money.

They say the lien was not to give these notes a greater value than they otherwise would have possessed. How was this conclusion reached? . We see nothing of the kind in the deed, and no intimatiou to that effect appearing anywhere between the parties, and by our reflections on the conduct and declarations of the parties, we arrive at exactly the opposite conclusion. ¥e think it was the vendor’s interest, and by his words and actions he has sufficiently shown, that it was his intention to make these notes most valuable, and we are not confined alone to the fact that such notes are commercial paper, and are largely put on the market in the business transactions of the country, but when Bocage so soon put them on the market, we may well conclude he intended to use them in that way, and reserving a lien for their payment, signified his intention to secure such payment.

The court say: “Bocage knew, as docs every man who understands the law, that after he executed an absolute deed for the land, that his vendor’s lien was only good as against the vendee, his heirs and other privies in estate, and' purchasers -with notice.” Now if this stipulation in the deed was sufficient to compel purchasers to see that he was paid, why was it not sufficient to require them to see that the notes were paid, if the stipulation required such payment, which, in this case, is not controverted? But they say when Bocage executed an absolute deed, he knew, etc. Now we think this is a misapplication of a significant term. Tliis* as we understand it, was not aii absolute deed in the legal or common acceptation of that term; to bo absolute is to be free from all condition or limitation. This deed is not such, and to reason from that assumption, the argument is at fault and the conclusion wrong.

The stipulation, in this deed, made it the reverse of absolute, and such condition, incorporated in the deed, carried with it rights that would not follow secret equities upon an absolute deed; hence it seems fallacious to urge such reasons -in this case as are applicable when deeds are absolute on their face. The court say: “It is true the notes were to remain liens until the purchase money was paid, but it must be borne in mind, this language must be restricted in its meaning to the contracting parties,” etc. Why change the meaning in this ? Why restrict it more than any other clause in the deed ? If expressed in the deed, it is no secret lien, it becomes notorious by being of record, and we favor letting the whole deed mean what the grantor and grantee intended it should mean.

' In another paragraph of the opinion it is said: “They only wanted notice’that the purchase money was not paid.” If that be so, then the words, creating or declaring this lien, were without any necessary use or meaning, because, before that time, they had set out in the deed the fact that only one third of the purchase money had been paid, and that two-thirds were not paid, and not to be paid until times fixed long in the future ; and are we to suppose that the parties, after they had shown that the purchase money was not paid, went on to formally declare that a lien should be held merely to repeat what they had already announced. It seems that, this could not have been the intent. As intimated, in the beginning of these remarks, we seem to differ in the groundwork of this question; the majority seem to hold that a vendor cannot pass a legal title, and, in the same contract or deed, hold an equitable one that will enure to the benefit of an assignee of notes, while I hold that an absolute owner can sell what interest in the title he chooses, and withhold what he chooses, and for just such purpose (not unlawful) as he. sees fit, and that the written contract or deed between him and the vendee is to evidence the intention, obligation and rights of the parties, and, in construing a deed, full effect should be given to all its conditions and stipulations as they •were understood between the contracting parties. But I will only refer, to my argument and the authorities cited in the case of Sheppard vs. Thomas, 26 Ark., 617, and not comment at length.


text:
    HERSHEY AND WIFE v. CLARK.
    Tenants in Common — Iiight of possession as respects each other. — ."Where par-" ties in right of title are tenants in common, if one have the possession and the other enter by favor of, or under contract from him so in possession, the . party so entering cannot, while holding possession thus acquired, dispute the title of the other or litigate his own right to possession.
    APPEAL EROM CRAWEORD CIRCUIT COURT.
    IIon. E. D. Ham, -Circuit Judge:

      U. M. Bose, for Appellants.
    We submit that the parties were tenants in common and, in such case, one of the parties had the same right of possession which the other had, and therefore each will be presumed to have held in accordance with his or her title, and. not otherwise : Dresser vs. Dresser, 40 Barb., 300. Nothing but a clear and express agreement will mate one tenant in common a tenant of another holding under him as a landlord, for any interest whatever in the premises: Wilcox vs. Wilcox, 48 Barb., 327. .

      One tenant in common is not.bound to yield possession on demand as was required in this case: Conover vs. Dari, 26 Iowa, 167; Holton vs. B'inns, 40 Miss., 491.
    The possession of one is the possession of all, and an action will not lie by one tenant in common against his co-tenant: Strong vs. Coulter 13 Minn., 82. ' Nothing short of an express agreement, founded on a consideration, will change the legal situation of the parties: Wilcox vs. Wilcox, 48 Barb., 327; Crane vs. Waggoner, 27 Iiul., 52. The possession of a tenant in common will be presumed to be in right of the common title, and all acts and ’ declarations will be construed most strongly to sustain this view: Bailey vs. Trammell, 27 Texas, 317; and a mere silent occupation by him will not be held to bean adverse holding: Murr vs. Gilliam, 1 Cold., 448; and even adverse possession loses its hostile character when the party in possession becomes a tenant in common in the ownership of'the property: Carpentier vs. Mendenhall, 28 Cal., 484.

      A. H. Garland, for Appellee.
    We submit that it was proved, on the trial below, that appellee had title to the property, or, at least, to an undivided portion of it, and appellants went into possession of it under appellee’s lease and consent, and never set up any adverse title at all. This clearly established the relationship of land-, lord and tenant, and gave appellee the right to maintain this suit, and the law declared by the court was correct. See Halliburton vs. Sumner, p. 460 ante-, 18 Ark., 284; lb., 304; 13 Id., 448; Amendments to Code, p. 31, Sec. 495 etseq; Gould’s Digest, Chap. 72, Sees. 2 and 3, p. 541.
    The law having been correctly given, this court will not examine into the testimony to decide the case upon it: 26 Ark., 362, and cases cited,.

   Gregg, J.

On the 15th of July 1871, the appellee brought a suit of unlawful detainer against the appellants for a house and some lots in the city of Fort Smith.

The appellants, by plea, set up that tlio wife was the owner of a one-fourth interest ancla tenant in common with the appellee, and as such, entitled' to the joint possession with her, and also set up the statute of limitations, which was afterward virtually abandoned. The appellee filed a replication which the court properly struck out.

Upon the trial, it appeared that appellee and the appellant, Ann E. Ilersliey, were sisters; that the property, in controversy, once belonged to Abraham and Aaron Clark, two brothers, both of whom had died without issue; that Abraham first died, intestate, leaving these two and one other sister, who are yet living, and another brother and sister who have since died, intestate and without issue. Aaron willed all his property to the appellee and his mother, and the mother has died.

The property, in controversy, had long been in the peaceable possession of the appellee and claimed and controlled by her.

In March, 1865, Mrs. Ilersliey, in the alísense of her husband and, at the solicitation of the appellee, moved into her residence on these premises. In August following, appellant, Benjamin, returned andjoined his family there, and they resided with the appellee until the commencement of this suit. Before suit, appellee, in writing, demanded possession of the appellants, and they refused to surrender possession of the same.

The court instructed the jury, in effect, that if they find from the evidence that the plaintiff was in the sole possession of the propex’ty, and that the defendants entered by her invitation, as- her guests or tenants, then, as to appellee, they occupied the relation of tenants, and they could not set up any adverse claim, and if, under such circumstances, they detained tlio property, after demand in writing, they should find for the plaintiff, and that no express agreement is necessary to fix the relation of landlord and tenant, but that it may arise where the one enters and occupies the premises of another with his permission or acquiescence, and from that a contract may be implied.

The court then instructed, at the instance of the defendants, that if they'had had peaceable and uninterrupted possession for more than three years, next before the commencement of the suit, they must find for the defendants.

Secondly. “If the jury believe, from the evidence, that the defendant, Ann E. Hershey, at plaintiff’s solicitation, moved with her children from Clarksville to Port Smith, and took up her abode with the plaintiff, in the house on said premises, and continued to reside there until August of that year, when defendant, Benjamin P. -Hershey, who went south during the late civil war, returned, and that he and his said wife and children continued to reside on said premises with plaintiff:' until the fall of 1869, with her consent, without any understanding or agreement cither express or implied, in reference to the time or terms of their occupancy, they should find for the defendants.” And,

Lastly. If they find that Ann E. was a tenant in common, and held peaceable possession, etc., for over three years, etc., without attorning to plaintiff', they should find for defendants.

The court then gave an instruction on its own motion, as follows: “ That the deed read in evidence, from Rogers and wife to Abraham and Aaron Clark, is prima facia evidence of title in the latter ; that if the father of grantees died before the execution of that deed, and that if Abraham Clark died before the year 1865, single and unmarried and without issue, and without will, leaving his mother and said Aaron, the plaintiff, defendant, Ann E. Hershey, and two other sisters, since deceased, defendant, Ann E. Ilershey, inherited an equal interest with the surviving sisters in the undivided half of the premises conveyed by the deed from Rogers and wife, and is a tenant in common with the plaintiff; and if such facts appear from the evidence, you would be warranted in finding that said defendants had a right to occupy said property with said plaintiff as a tenant in common,- unless he was plaintiff’s tenant.” To -which the appellants excepted. And it is here urged that this instruction made the jury judges of the law as well as the facts, and expressly 'made it optional with them to follow the law or not, and assumed that a tenant had not always a right to occupy during his tenancy, etc., and that it confused and misled the jury.

The last instruction was a crowd of words, and it had the appearance of leaving questions of law as well as fact to the .jury, but taken in connection with all the other instructions, we are of opinion its inaccuracies did not mislead the jury.

The appellants insist that Ann E. Hershoy was entitled to an undivided fourth interest in the premises; that she was a tenant in common and, as such, entitled to joint possession. This declaration of her rights is not denied as a legal proposition, but this is not an action to determine the parties’ rights in the property, but to decide who shall have the present possession ; and if Ilershey and wife went into possession under the appellee, they became her tenants and could not question her title until tlicjr parted with the possession she had given them. This was the main question before the jury, and they found for the appellee, and as such finding was not without •evidence this court will not question its correctness.

And to assume, as counsel do, that, because Mrs. Hershey had an interest in the property, she could set up her right of co-tenancy to defeat this possessory action, would certainly violate the rule that a tenant cannot dispute-his landlord’s title, but must surrender on expiration of his lease, or on demand, if holding at will. If an adverse title to a part could be set up by. any tenant, certainly a legal right to the whole could be as well pleaded, and thus the door would be open to all tenants to- dispute their landlord’s claims by establishing title in themselves. This would violate well established law, and greatly disturb that relationship which shoxdd exist between landlord and tenant. The policy of the law will not suffer one to go into possession by the favor of another, and then take advantage of that favor and confidence and hold possession while he litigates a claim of title.

The judgment is affirmed.


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      JONES, Receiver v. RATCLIFFE, Assignee, etc.
    APPEAL PROM PULASKI CIRCUIT COURT.
    Jlosr. John AVIiytock, Circuit Judge.

      Duffie & Jones, for Appellant.

      Clark & Williams, for Appellee.
   Gregg, J.

The'attorneys for the respective parties concede that there is no error in the proceedings and judgment of the court below.

The judgment is therefore affirmed, with costs.


text:
    CARTER et al. Ex Parte.
    Commissioners or Courts — Compensation of, etc.- — Courts have a large discretion in determining the allowances to be made commissioners and similar officers appointed 1^ them, and that discretion will not be interfered with, unless palpable injustice should result from its exorcise; but the exercise of that discretion must be done by the court acting directly upon the report or matter before it, and not by or through the intervention of a master or other person appointed for that purpose.
    APPEAL PROM RANDOLPH CIRCUIT COURT.
    IEon, Elisha Baxter, Circuit Judge.

      A. II. Garland and T. J. lialdiffe, for Appellants.
   Searle, J.

The appellants, in this case, brought their ex parte action, in equity, to the Randolph Circuit Court, for the settlement, sale, division, etc., of the estate of Amy C. Man’, deceased,’to which they were beirs. The estate was referred by the court to diaries F. Bode, as commissioner, for settlement,. salo, etc., wlio acted in pursuance of his appointment and made his report to the court. The court, by an .order, fixed bis compensation for these services at five per centum, on a sum not to exceed ten thousand dollars. The appellants objected to this amount as being excessive, and asked for a re-hearing of the matter, and to be permitted to introduce evidence to sliow what would be a reasonable allowance to the commissioner for bis services. The re-liearing was granted, •and the court appointed a spoeial master to determine such allowance. In pursuance of his appointment, the special master incido his investigation, and reported to the court that over ten thousand dollars of assets passed through the commissioner’s hands ; whereupon the court, by an order, fixed the compensation of the commissioner at five per centum of this amount. The appellants again objected, upon the ground that the allowance was unreasonable, and that they should be permitted to introduce evidence to tlio court, as to what was reasonable, and they appealed to this court. Circuit Courts have a large discretion in 'determining the allowances to be made to commissioners and officers of similar character for their services; and this court is not disposed to interfere with such discretion, unless palpable injustice should result from its exercise. In this case the allowance made to Bode, though it seems to he unreasonably large, is not so absurdly large as to justify us in inquiring into it, were it not for tlio manner tlio Circuit Court arrived at its ascertainment. In-, deed, this is the only question wo arc disposed to direct our attention to. The court should have ascertained, directly from the commissioner’s report, and other evidence, if necessary, in order to satisfy itself what should be allowed the commissioner in payment for bis services, and not indirectly by the interposition of a special master.

Bode, himself, acted in the capacity of a special master in chancery, in the settlement of the estate; and it was certainly improper for the court to appoint a special master to determine what amount should be his compensation. Had there been objections as to the allowances of this last special master, would the court have appointed a third ? There certainly would have been as good reason for the appointment of a third, as of the second, and a fourth for that'matter, and so on ad infinitum.

The order of the court below is reversed, and the cause 1 remanded to be proceeded in, in a manner not inconsistent with this opinion.


author: Greqg, J.

text:
    REFELD v. FERRELL.
    Fquitable Liens — May be shown outside of deed. — The parting with the legal title and placing the vendee in possession, when relied upon as a defense by the vendee, in a suit by the vendor to enforce his equitable lien, will not prevent the vendor from showing the fact of sale and non-payment of the purchase money outside of the deed.
    APPEAL FROM ARKANSAS CIRCUIT COURT.
    Hon. Henry B. Morse, Circuit Judge.

      A. II. Garland, for Appellant.
    ¥e submit that, the purchase money being upaid, equity charges the land with its payment, and permits the facts of sale and non-payment to be shown outside. See 18 Ark.; 142; Mackreth 'vs. Lymmans, 1 Leading Cases in Equity, (notes by Hare § Wallace) 194, etseq; top page 248, et sea.

   Greqg, J.

On the 25th' of April, 1871, the appellant brought his action, in the Arkansas Circuit Court, against the appellee, for the possession of cei’tain real estate.

At the September term following, the appellee filed his answer, and on his motion the cause was transferred to the equity side of the docket.

The appellee alleged that, by verbal contract, the appellant sold the lands in controversy to W. R.. "Watkins, on a credit, for one hundred dollars, which was their full valué at that time. That Watkins, with the full knowledge and consent of appellant, put about fifteen hundred dollars worth of improvements on the grounds, and held possession of the same, until the 11th day of July, 1867, when, with like knowledge, he sold the same to appellee, and put him in possession thereof, and that he held the same peaceably, and with appellant’s full knowledge and acquiescence, until the time of making his answer. That lie bought and paid for the premises with full knowledge of the appellant, and that he made no objection. That he has offered to pay the $100 due on the lot, but the appellant refused to accept the same or make him a deed, and he tenders the one hundred dollars and interest, in .court. He prayed that the cause be heard in equity; that the appellant be decreed to make to him, as-Watkins’ assignee, a valid deed, and that he pay -all costs.

The appellant responded to these allegations, that he did sell the premises to Watkins, for one hundred dollars, who was then indebted to him $1700 or $1800, and that it was the distinct understanding and agreement between them, that the title was to remain in the appellant, and tliat no deed was to he made Watkins until said indebtedness, as well as the $100 was fully paid, and with this knowledge and agreement, Watkins took possession and made the improvements, and that the purchase, or pretended purchase of the said Ferrel, was made ■with a full knowledge of these facts* and that appellant., at all times, set up his claim to said premises. That no money was ever tendered until long after the commencement of this suit, and then .only one hundred and thirty dollars. That upon his hearing of the appellee’s proposed purchase, he notified him of his claims upon the premises, etc.

A demurrer was sustained to this replication, and appellaut amended by averring more positively, that the consideration for the lot was the payment of the seventeen or eighteen hundred dollars, as well as the additional one hundred dollars, and that upon this consideration, the improvements were made, and the title was to remain in appellant until that full amount was paid, etc., and that appellee had full knowledge,-at his pretended purchase, and when he took possession of the premises, and that no part of the purchase money has been paid.

The court sustained a demurrer to this amended response, and the appellant rested ; whereupon, the court decreed that the appellant pay all the costs and make a good and valid deed to appellee for the premises and, upon the tender of such deed, that the appellee pay to him one hundred dollars, from which decree tliis appeal is prosecuted.

. If it were true, as the court seems to have hoi don, that the appellant can recover no more than the amount named as the value of the lot, at the date of sale, and that his right of action was cut off by the appellee’s tender, he would certainly have been entitled to interest from sale until the tender was made, and for that reason the decree should have been for more than one hundred dollars.

The decree below was based upon the appellee’s answer, but upon the well established rule,- that pleadings are construed most strongly against the pleader, the whole costs should not have been decreed against the appellant, because the appellee docs not claim that he tendered him any sum, whatever, before the commencement of the suit. This court has repeatedly lioldon that where the purchase money was not paid, the vendor might enforce his lien by an ejectment isuit, thereby placing himself in possession of the premises, where he can convert the rents and profits until his demand is extinguished. Fears vs. Merrill, 9 Ark., 559; Smith vs. Robinson, 13 Ark.., 533; Sullivan vs. Hadley, 16 Id., 144; Pope vs. Boyd, 22 Id., 538. And surely a tender,- after suit, could not relate back and cause him to be taxed with costs which he had been forced to pay to secure his legal rights.

But if these were all, the decree could be reformed in this court. The principal question is the sufficiency of the response to the allegations in appellee’s answer. The answer admitted the legal title to be in the appellant, and that the purchase money had not been paid, but claimed that .certain equities had arisen'in favor of Watkins and himself, upon which title should be made to him upon the payment of one hundred dollars and interest, which he was ready to pay. Upon thus conceding the appellant’s legal rights the appellee desired to change the forum to equity, wherein he might assert his claim, and in so doing he assumed the burden of establishing his own rights, and to that end he alleged the sale, etc., as above stated, and the appellant became the respondent, and that response admitted the sale to Watkins and averred that no part of the purchase money had been paid; that one hundred dollars was not the sole consideration fo’r the lot; that seventeen or eighteen hundred dollar’s then due, in addition thereto, was to be paid, and that it was expressly understood that no title was to be made until the whole-amount was paid, and with that understanding and agreement "Watkins put the improvements on the lot, and‘that appellant in no way relinquished his right or elain upon the property, but always claimed the same, and the appellee knew all the facts at and before his purchase from Watkins.

It seems to us if these allegations be true — and upon demurrer they must be treated as facts — the appellant had a right to recover.

It is true that a litigant is often estopped, in equity, from establishing a claim upon a bare legal title to lands, whereon very valuable .improvements have been made by another with his knowledge and consent, or wherein the parties labored under a mistake as to "their legal rights, for it is unjust and inequitable for him, who knows his "own legal title, to stand by and see an innocent and mistaken holder expend large amounts of capital and labor without notifying him of the outstanding claim.

But if the response, in this case, be true there is no such inequitable circumstances. If Watkins actually owed the appellant seventeen hundred dollars, and agreed to go upon this lot without title until that debt, and one hundred dollars in addition thereto was paid, and in the meantime to put several hundred dollars worth of improvements thereon, it was but' a mode of securing the appellant, to that extent, in what was justly due him.

The replication was a sufficient response to the allegations in the answer, and the demurrer should have been overruled.

The decree is reversed and the cause remanded with directions to overrule the demurrer and proceed to a final hearing, not inconsistent with this opinion.