text:
    Drewry vs. Montgomery et al.
    Dower : Claim, of, ly loidow, in partnership, etc.

    On demurrer to bill, by widow, to have dower assigned her in the real estate belonging to her husband in partnership, at the time of his death, and that she be permitted to take the same discharged of all debts of the partnership: Held,

    1. That, in equity, real estate purchased with partnership funds, or for the uses of the partnership, are chargeable, upon settlement of the affairs of the firm, with the debts of the copartnership, and any balance that may be due from one partner to another.
    2. If the realty be acquired in such manner as to make its owners tenants in common, other than that arising from and growing out of the partnership, in such case the widow is entitled to dower; otherwise, if acquired with partnership funds.

      APPEAL from Lafayette Circuit Court.
    Hon. Gr. W. M cOown, Circuit Judge.

      Gallagher & Newton, for appellant.
   McClure, C. J.

Sarah E. Drewry, the appellant, filed, her bill in the Lafayette circuit court, setting up that her husband, in bis lifetime, made a will which, alter his death, was duly probated, the provisions of which, in her favor, she declined to accept. Drewry, at the_time of his death, was one of the partners of a firm known as Howell & Drewry, and of the mercantile house of P. B. Wheat & Co., and the bill prays that she have dower in the real and personal estate of the poperty belonging to these copartnerships.

Howell, the administrator of Drewry, and surviving partner of the firm of Howell & Drewry, and of the firm of P. B. Wheat & Co., demurred to the bill, and assigned the following causes :

“First. Because said complaint does not state facts sufficient to constitute a cause of action for dower against said defend.ant, as surviving partner and administrator of the partnership •effects of said firms or either of them, out of either the real or personal assets of said firm or either of them.
Second. Because Eobert H. Howell, as surviving partner and administrator of the partnership effects of said firm and •each of them, is entitled to all the assets of said firms, both real and personal, for the payment of the debts of said firms .and the costs and expenses of administration during two years from the date of his letters of administration, or until the payment of said debts and costs and expenses, and the closing of tbe affairs of said firms, and said bill shows upon its'face that said two years have not elapsed by more than twelve months.
Third. Because said plaintiff is not entitled to dower out of either the personal or real assets of either of said firms, until all the debts, costs and expenses of administering the same have been paid and their affairs closed, and the excess, if any, paid over to the regular executor or administrator of the said Drewry, deceased, for which purpose the said defendant is allowed two years from the date of his letters as such administrator of the partnership effects of each of said firms, and as much longer time as may be allowed by the proper court, and said complaint wholly fails to show that said debts have been paid or that said two years have elapsed.
Fourth. Because there is no equity in said complaint as against said defendant, Robert H. Howell, as such surviving partner and administrator of said firms.
Fifth. Because the complaint is, and shows itself to be upon its face, a proceeding to recover dower from this defendant, as surviving partner and administrator, out of the partnership effects and property of the firms of Howell & Drewry and P. B. Wheat & Co., whereof this defendant is surviving partner and administrator, by the widow of Drewry, deceased, who was one of the partners in each of said firms, before the expiration of the time allowed by law for the settlement of the affairs of either of said firms, and in priority and preference to the creditors of said firms, and in priority to the right of the defendant, to apply said effects and property to the payment of said creditors, to which dower this defendant says and trusts said plaintiff is not by law entitled.”

The court below sustained the demurrer, and Mrs. Drewry appealed.

The demurrer interposed in this case clearly shows that the party making it relied upon the chapter of the so' called digest in relation to the settlement of partnership estates. But this court, in Vincent v. Knox, 27 Ark., 263, announced that the so called chapters were not legally passed, and it necessarily follows, that so much of this demurrer as is founded thereon must wing its way to some other tribunal, leaving us to determine the rights of the parties as though the chapters had not been. The widow, under the laws of this state, is entitled to dower for life in one-third of the real estate owned by her husband, at any time during coverture, whether unsold at his death, or sold or alienated by him without her consent in legal form ; also one-third of the personal estate, absolutely. In Hill, Adm'r, v. Mitchell et al, 5 Ark, 614, the words “ personal estate ” were so construed as not to include choses in action. By the act of February 21, 185Í), the right of dower was extended to “ choses in action,” subject to the payment of the decedent’s debts, and by an act approved March 8, 1867, she was allowed dower in the choses in action of her husband, absolutely, discharged from the payment of his debts.

The demurrer presents two questions :

First. Under the statute of this state, is a widow entitled to dower in the lands held and owned by a partnership, of which her husband was a member at the time of his death, before a settlement of the partnership estate? and, Second. Is she entitled to a one-third interest in the choses in action or personal property of the parnership estate, before a payment of the partnership debts ?

Real estate purchased with parnership funds, or for the use of the firm is, in equity, chargeable with the debts of the co-partnership, and with any balance that may be due from one copartner to another upon winding up the affairs of the firm, and, in equity, the real estate of the partnership willbe treated as a fund properly applicable to the payment of the partnership debts, and to the satisfaction of any balances growing out of the partnership transactions that may be due among themselves.

How the real property was acquired is not stated in the cpmplaint. The manner of its acquisition, in some instances, has determined the question at bar. If the realty be acquired in such a manner as to make its owners tenants in common, other than that arising from and growing out of the copartnership in such a case, we see no reason why the widow should not be entitled to dower; but if it be acquired as partnership property, with partnership funds, or with funds which went to make up the capital stock of the partnership, in that event, we are of opinion that a widow is not entitled to dower until the creditors and partners are satisified.

The attitude in which the appellant places herself is, that she is demanding a one-third interest during her life, and one-third, absolutely, of the personal estate and choses in action, belonging to her husband in the partnership of Howell & Drewry and of B. B. Wheat & Co., discharged of all the debts of the partnership. We think of no rule, and know of no reason why the death of a party to a partnership should be allowed to increase the burthens and liabilities of the survivors, and it may well be doubted whether the act of March 8, 1867, has that effect as to partnerships and debts created before that time. To extend the right of dower to partnership effects-as contended for, would work manifest injustice, not only to creditors,' but to the partners themselves, and in the absence of express words creating the right, we do not feel like giving it by construction. The view we have taken of this matter renders it unnecessary to determine whether the first section of an act in relation to the chapters of the digest, approved February 25, 1873, continued or put the same in force for the settlement of partnership estates commenced under it.

Finding no error in the action of the court below, its proceedings are affirmed.


source: Caselaw Access Project

author: Bennett, J.

license: Public Domain

text:
    Odd Fellows Building Association vs. Hogan.
    Pleadings : In suit against corporation, etc.

    In suits against corporations, it is not necessary to allege in the complaint the incorporation, further than by a statement of the corporate name.
    Same : When use of abbreviations will not vitiate.

    Where abbreviations or initials of words are used in pleadings, if, when taken in connection with the remainder of the pleading and subject matter, they can be clearly understood, and not be ambigú ous, the same effect will be given to them as if the words were written in full.
    APPEAL from Pulashi Circuit Court.
    Hon. John Whytock, Circuit Judge.
    English, Gantt & English, for appellant.
    Gallagher, Newton & Hempstead, for appellee.
   Bennett, J.

On the 21st of October, 1870, William Hogan filed his complaint, account and affidavit against the Odd Fellows Building Association, claiming a lien for labor, etc., on a brick building, and lot on which it was erected, in the city of Little Rock — lot 12, block 1. On the same day a writ of scire facias was issued, returnable on the first day of the following- November term. It was returned served, on the 22d of October, 1870, on Peter Brugman, president of O. F. B. A.

At the return term, judgment was taken, a writ of inquiry executed, and final judgment rendered in favor of the plaintiff for the amount claimed by him. An appeal was granted by the clerk of this court.

The record in this case shows that on the 28th day of December, 1870, the following order was made by the court.

William Hogan vs. Odd Fellows Building Association of Little Rock, Arkansas. Mechanic’s Lien. Comes the plaintiff by his attorney, C. C. Earrelly, Esq.; comes the defendant by George E. Dodge, Esq., attorney, and said defendant saying nothing in bar or preclusion of said plaintiff’s right to recover, it is ordered that the plaintiff have judgment for the amount of claim, etc. "Whereas, said plaintiff’s demand is uncertain and unliquidated, it is ordered that a writ of inquiry be awarded and issued herein to-ascertain and determine the same.”

January 4, 1871, the writ was returned, and a jury came, and, after hearing the evidence in the case, returned the following verdict: “We, the jury, do find for the plaintiff, William Hogan, and assess his damages at five thousand, one hundred and sixty-six dollars principal, and interest to date; and that the property within described is subject to the lien of the plaintiff for the above amount, and that the lien was filed on the 21st of October, 1870. G. E. BuACKBinur, foreman.”

Does the record disclose such an appearance of the defendant as would warrant a judgment nil elicit against him?

This court, in the case of Murphy v. Williams, 1 Ark., 376, say: “In order to constitute an appearance in a legal sense of the term, there must be some substantive act by the defendant that constitutes him a party to the suit.” When the record shows simply that the defendant appeared by attorney, and does nothing more, it is not such an appearance as will cure any defects in an imperfect writ or service.

Therefore, we shall treat the judgment rendered in this case as a judgment by default, and the defendant entitled to the same defense he might have had under such judgment.

On judgment by default, the defendant below is entitled to all legal exceptions to the writ and service; nor will this court presume in favor of a judgment by default; in such case the record must show affirmatively that the proceeding is according to law.

There are but two questions for our determination that can arise in this case:

1. Had the court below jurisdiction over the subject matter in controversy and jurisdiction of the defendant?

2. Were the proceedings of the court according to law?

It is conceded that the court had jurisdiction of the subject matter, but it is contended that the appellant had not been legally served with notice of the pendency of the suit.

It is alleged, in the first place, that they have not been properly described, either in the complaint, affidavit, scire facias, or any of the proceedings. It is contended that they, the appellants, being a corporation, created under the general incorporation law of the state, it is necessary to aver their corporate existence, and must be described as a corporation in the pleadings.

It was not necessary for the plaintiff to allege, in his complaint, the incorporation of the Odd Fellows Building Association, further than was done by the statement of its name and of the making of the agreement or the creating of the lien between the association and the plaintiff. No more certainty was required in the complaint as to the corporate character of the company, than if the company had brought the action; and in that case it would be clear, upon authority, that at common law no specific allegation of incorporation would be important. The name of the company implies its corporate existence. It is impliedly averred by the name, that the company was a corporation. Hnder a general issue, the plaintiff would be bound to prove the incorporation of the Odd Fellows Building Association. This doctrine is supported by numerous cases, among which we refer to Norris v. Stops, Hob., 211; Henreques v. The Dutch West Ind. Co., 2 Ld. Ray., 1535; The President of the U. A. Bank v. Harkins, 1 Johns. Cas., 132; The Bennington Iron Co. v. Rutherford, 3 Harr. (N. J.), 105; Harris v. The Muskingum Co., 4 Blackf., 267; Richardson v. The St. Joseph's Iron Co., 5 id., 156; Dutchess Cotton Manufacturing Company v. Davis, 14 John., 239; Bank of Utica, v. Smalley, 2 Cow., 770; Bank of Michigan v. Williams, 5 Wend., 478; Kennedy v. Cotton, 28 Barb., 62; Bank of Waterville v. Bellsar, 13 How., 270. If the .defendant had appeared in the court below and put in issue the corporate capacity of the Odd Fellows Building Association of Little Rock, it would have been necessary to have proven it. It is incumbent on- the defendant to raise the objection by plea in abatement or otherwise, to entitle him to avail himself of the omission or defect of proof in respect to the corporate capacity.

The appellants, being a corporation under the laws of the state, how are they to be served with legal service ? This is fully answered by sec. 69 of the Civil Code of Practice, which says: Where the defendant is a corporation, created by the laws of this state, the service of the summons may be upon, the president,” etc. Now, was this done? The indorsement on the summons is as follows: “ Executed this 22d day of October, A. D. 1870, by delivering a true copy of the within writ to Dr. Peter Brugman, President of O. F. B. A. W. S-Oliver, Sheriff, by Yance, D. S.”

It is contended that the abbreviation “ O. F. B. A,” means nothing and does not describe anything; in other words, the-return does not show that Dr. Peter Brugman was the President of the Odd Fellows Building Association. While we-are willing to admit that abbreviations should be very sparingly employed, if at all, informal and important legal documents, yet they are of frequent use, and if by using the initial letters of words instead of the words at length, the same meaning is conveyed, it would not be considered as so informal as to make the abbreviation of no significance. If the abbreviation, taken in connection with the remainder of the writing and subject matter, can be clearly understood, and not be ambiguous, it must have the same effect as if the words were written in full. The scire facias in the hands of the sheriff describes the appellant as the “ Odd Fellows Building Association.” The law required him to serve it upon the president of the association. .His return showed to the court the manner he executed it, which says, “ by delivering a true copy of the within writ to Dr. Peter Brugman, President of the O. F. B, A.” The ambiguity of these letters is entirely removed by examining the “ within writ,” where it is clearly shown that they refer to the Odd Fellows Building Association, and can mean nothing else.

This being a statutory proceeding, the statute creating this special remedy must be followed. To warrant a j udgment by default, the scire facias must be served thirty days before the return day thereof. Gould’s Dig., ch. 112, sec. 9. It is urged that the summons was not served thirty days before the return day. The record shows that the writ .was executed on the 22d day of October, 1870 ; the return day was the 21st day of November, 1870. By usual computation, that is, leaving out either the day on which the writ is executed and counting the return day, or counting the day the writ was executed and leaving the return day out of the count, we find that thirty days had elapsed, and the statute has been complied with.

We therefore find the court below had jurisdiction of the subject matter and the person of the appellant, the summons having been issued, served and returned in accordance with law.

2. Was the proceeding of the court in accordance with law?

No part of the proceedings are controverted except the verdiet of the jury. The 10th sec. of ch. 112 of Gould’s Digest, under which all the proceedings in this case were had, provides that “if the cause shall be submitted to a jury, the'verdict, if for the plaintiff, shall be substantially that the jury find that the property in the scire facias mentioned is subject to the lien of the plaintiff for such sum as shall be found to be due, and that the lien was filed on such a day, and within the time prescribed by law.”

In this case the cause was submitted to a jury, who rendered the following verdict: “We, the jury, do find for the plaintiff, William Hogan, and assess his damages at five thousand, one hundred and sixty-six yinr dollars ($5,166.50), principal and interest to date, and that the property within described is subject to the lien of the plaintiff for the above amount, and that the lien was filed on the 21st of October, 1870.”

The jury did not expressly find that the lien was filed “within the time prescribed by law.” Was this omission a fatal defect in the verdict ?

It will be remembered that the section of law in relation to the rendition of the verdict, says it “shall be substantially” as provided, not mandatory. Therefore, a substantial compliance with it by the jury is all that is necessary. The verdict of the jury was, “ that the property within described is subject to the lien of the plaintiff.” This could not have been if the lien had not been filed within the time, as required by law.

After verdict all errors in civil proceedings are cured by the statute of jeofails, when the error only relates to form, and may be amended either by the court below or the appellate court. Sec. 120, ch. 133, Gould’s Dig. From a full review of the whole case, we are unable to find any error affecting the rights of the appellant by the judgment of the court below; and finding that this judgment has been superseded, we affirm said judgment, and award the additional sum of ten per cent, damages.


text:
    Linthicum, Ex’r, et al. vs. Tapscott, Adm’r, et al.
    Vendor’s Lien: When barred by statute of limitations.

    Bill to enforce vendor’s lien against estate of deceased vendee. Answer, that the claim had not been presented to the administrator within two years after grant of letters. On demurrer to answer:

      Held, that a vendor’s lien is a remedy or security, not a right of property, and does not vary the nature of the debt or take it out of the operation of the statute of nonclaim, and cannot be enforced after the bar of the statute has attached to the debt.
    APPEAL from Woodruff Circuit Court.
    Hon. W. C. Hazeldine, Circuit Judge. .

      U. M. Rose, for appellants.
    Turner, Moore & Jones, for appellee.
   Bennett, J.

The appellants filed a bill to foreclose a vendor’s lien for the purchase money for certain lands for which a note had been given.

Part of the appellees answered, setting up no other defense than that the claim had not been presented to the administrator of the vendee within two years from the grant of his letters. Appellants demurred to the answer. The court overruled the demurrer, and dismissed the complaint for want of equity.

The only question presented for consideration by the record is, whether a proceeding to enforce a vendor’s lien is barred by the statute of nonclaim. Under our administration statutes, a claim prosecuted against an estate must be presented to the administrator, duly authenticated, within two years from the date of administration, or be forever barred.

In the case of Walker, Adm'r v. Byers, 14 Ark., 242, this court, in effect, has said: The claims and demands which the statute contemplates shall be exhibited to the executor or administrator within two years from the. grant of letters, are all claims capable of being asserted in a court of law or equity existing at the death of the deceased or coming into existence within two years after the grant of administration, whether due or not, if running to certain maturity. To this general rule, however, the statute itself points out one exception ; that of a suit pending, against any person at the time of his death, which by law survives against his executor or administrator. The court then says, “And although the express exception might seem to exclude all others, by a common rule of interpretation, there are doubtless other exceptions, as for instance, all proceedings on the part of the widow for dower, which are grounded on a right in the property itself, out of which she is to get her estate of dower; proceedings for the specific performance of a contract, etc., scire facias to revive a judgment, etc. Nor need this enumeration of exceptions exclude the idea of other possible cases that might not interfere with the policy of the statute.”

In the case of Pope's Heirs et al. v. Boyd's Adm'r, 22 Ark., 535, this court has said, in effect, “that the statute of non-claim has no application to a debt secured by a deed of trust, where the creditor seeks to subject the trust property to the payment of his debt, which he may do, without authentication and exhibition of his claim to the administrator of the debtor,” the reason for excepting the execution of a trust deed from the provisions of the statute of nonclaim, being put upon the grounds that no estate in the trust property remains in the grantor.

Is there any good reason for excepting proceedings to en. force a vendor’s lien from the effect of the general rule that all claims and demands against an estate shall be presented within two years from the grant of letters? We think not. A vendor’s lien is not an original, specific and absolute charge on the lands, but only an equity to resort to it, in case of the failure of the vendee to pay the purchase money. And, before it can be enforced, the vendor must have his equity declared by a court of competent authority. It exists solely in the debt, and has no form apart from it. It is held to be capable of being enforced against the vendee, upon the general equitable principle that a purchaser should not be entitled to the land until he had paid for it, and not because there was any substantive agreement between the parties that it should be so created, or that such lien might be enforced against the land.

The appellants insist that the statute of nonclaim only acts on the remedy and not on the debt, and cannot affect a lien which secures the debt, if the general statute of limitation does not bar its collection.

The statute of nonclaim is a general statute of limitations as far as claims and demands against deceased persons’ estates are concerned. In order to make the position of the appellants good, it will be necessary to show that there is one limitation on the debt, and a separate and. distinct one on the security or lien, which we think cannot be done. We are aware that it has been held, that the statute of limitations, which bars a debt secured by a mortgage, was not a bar to the remedy upon the mortgage; yet these decisions are based upon the ground that the security is distinct in its form from the debt, and has a legal import more extensive than the mere evidence of the debt. A mortgage is a conveyance of the legal estate, which, in law, would entitle the mortgagee to his action for the possession of the mortgaged premises. It is also a specific lien on the property, capable of registration, and of which all persons may, and are bound to take notice when registered. In its form it is separate and distinct from the debt, and an additional and more solemn acknowledgment of and security for it. None of these characteristics appertain to the vendor’s lien for unpaid purchase money, as it has no existence until it has been declared to exist by a court of equity. It may be safely said that a vendor’s lien is not a mortgage, but that it has merely the incident of a mortgage, of being enforcible in equity.

It exists solely in the debt; it must be subject to all the incidents of it, and cannot be enforced when the debt could not be; and, consequently it would be barred by the same lapse of time that would bar the debt. A vendor’s lien is a remedy or security — not a right of property, and does not vary the nature of the debt or take it out of the operation of the statute of limitations, and cannot be enforced after the bar of the statute has attached to the debt.

The demurrer of the plaintiff admitting the fact that this claim or demand was not presented within two years after the grant of letters of administration on the estate, the answer was a good defense to the bill, and the demurrer was properly overruled.

Judgment affirmed.


text:
    Van De Griff, Sheriff, etc., vs. Haynie, et al.
    Statutes C.okstkued : Act of March 25, 1871, creating State Board of Equalization, constitutional.

    general power, over the question of taxation, is given hy the constitution to the legislative department, and it has, hy implication, the power to determine the value of property to be assessed, and a power of discrimination in selecting the agents through which it may fix the taxable values of the state, which may be done by itself as a whole body, or its power delegated to others, and which, for certain-purposes, may devolve upon the state senate.without conflicting-with the constitution.
    APPEAL from Nevada Circuit Court.
    Hon. Gf. W. McCown, Circuit Judge.

      Montgomery & Warwick, for appellant.

      Warren & Warren, for appellee.
   Bennett, J.

This is a bill in equity praying for an injunction, presented to the judge of the ninth judicial circuit, to restrain the collection of so much of the taxes of Nevada county, for the year 1871, as was assessed by reason of the appraisement made by the state board of equalization.

Upon the hearing, no answer, plea or demurrer was filed by the defendants, nor was the granting of the injunction resisted in any manner. The prayer of the petitioner was granted, and the defendants appealed.

The general question submitted for our decision is, whether that portion of the 68th section of an act entitled “ an act regulating the assessment and collection of the revenue of the state of Arkansas,” approved March 25, 1871, which reads as follows, viz. : “ The state board of equalization shall consist of the members of the senate, and the auditor of the state-shall; by virtue of his office, be a member of the board and clerk thereof,” is in contravention of any of the provisions of the state constitution.

The petitioners allege that the appraisement of property is not an act properly belonging to the legislative department, and that the senate, being a branch of the legislative department, cannot perform any of the functions belonging to another department of the government.

The question whether a law is void for its repugnancy to the constitution is at all times one of much delicacy, and when a doubt exists, ought seldom, if ever, to be decided in the affirmative. To justify such a decision, the conflict between the constitution and the law should be such that the court feels a clear and a strong conviction of their incompatibility with each other. This is especially so in the class of cases where the object of the law is to provide for an equality of taxation — a subject over which the legislative branch of the government is preeminently qualified to judge of the means best adapted to the accomplishment of the end sought. 'We must also bear in mind that constitutions necessarily deal in general language, and in their intepretation, words are to be understood in the sense in which they are generally used by those for whom the instrument was intended.

Our state constitution, like the constitutions (we believe) of ■every other state in the union, divides the attributes of government into three great branches, the executive, the legislative and judicial, and declares that no person belonging to, or constituting one of these departments, shall exercise any of the powers properly belonging to either of the others, except in the cases expressly provided in the constitution.

It is not necessary for us, on this occasion, to particularize the cases thus expressly excepted, because none of them have .any bearing upon the point to be decided in this case.

A very little reflection is sufficient to satisfy us that the mere use of these terms is no satisfactory definition of these respective powers; and experience has already shown the difficulty attendant on this general language.

In surveying the general structures of all written constitutions, we are naturally led to an examination of the fundamental principles, on which they are organized. Every government must include within its scope the exercise of these three great powers. The manner and extent in which these powers are to be exercised, and the functionaries in whom they are to be vested, constitute the great distinctions which are known to governments. In absolute governments, all three of these powers are confined to one person ; hence such a government is denominated a despotism. But in the more enlightened nations, we find these functions divided and separately exercised by independent functionaries, and in such cases the government is deemed a mixed one.

But in a representative republic, all power emanates from the people, and is exercised by their choice, and this division of power among different branches of government has been a favorite policy with patriots and statesmen. It- has, by many, been deemed a maxim of vital importance, that these powers should be kept separate and distinct. The true nature, object and extent of this maxim, and the reason by which it is supported is, according to Montesquieu, that “ when the legislative and executive powers are united in the same person, or the same body of magistrates, there can be no liberty, because apprehensions may arise lest the monarch or. senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be the legislator. Were it joined to the executive power, the' judge might behave with violence and oppression.” The same reasoning is adopted by Blackstone in his commentaries. 1 Black. Com., 146. And the Federalist, No. 47, has with equal point and brevity remarked that “ the accumulation of all powers, legislative, executive and judicial in the same hands, whether of one, a few, or the many, and whether hereditary, self-appointed, or elective, may be justly pronounced the very definition of tyranny.” This just view of the nature of government, then, is founded upon the safety and liberty of the people, to save them from the tyranny and oppression of rulers. But when we speak of a separation of the three great departments of government, and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. Judge Story, in his work on the constitution, vol. 1, p. 364, sec. 525, says: It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other in the slightest degree. The true meaning is, that the whole power of one of these departments should not be exercised by the same hands, which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free constitution.”

Notwithstanding the strong terms in which this maxim of a division of powers is incorporated into the constitution, the same mixture will be found provided for, and indeed required in the same solemn instrument. Thus the governor exercises a part of the legislative power, possessing a qualified negative upon all laws. The house of representatives is a general inquest for accusation, and the senate is a high court for the trial of impeachments. The governor and senate, in some cases, act together in the appointment of officers, and the constitution has provided that contested elections shall be determined by both houses of the general assembly.

The general declaration in the constitution that the power3 of government shall be divided into three departments, the legislative, executive and judicial, and declaring that neither of these departments shall exercise any of the powers properly belonging to either of the others, except as expressly permitted, is a declaration of a fundamental principle, and although one of vital importance, it is to be understood in a limited and qualified sense. It does not mean that the legislative, executive, and judicial power should be kept so entirely separate and distinct as to have no connexion or dependence one upon the other ; but its true meaning, both in theory and practice is, that the whole power of two or more of these departments shall not be lodged in the same hands, whether of one or many. In the constitutions of the various states, there is a theoretical or practical recognition of the maxim, and at the same time a blending and admixture of different powers in the administration of the government. We are not, therefore, when a question arises as to the extent of the powers of either department, to conform our views to the general clauses, but look to the division actually made, to see what powers are clearly granted to each, and what might, by implication, be but a blending or admixture, in a degree, of two or more of those powers.

This leads us to ask, what is legislative power ? What is executive power? What is judicial power? We shall find these questions, both on abstract inquiry and also in reference to many duties performed, and the necessities of our complex, political organization, not easy to answer; and yet, when answered, how are we to say, with accuracy, in what a legislative, an executive, or a judicial function consists, or where it stops.

In the case of Wayman v. Southard, 10 Wheat., 46, the court said : The difference between the departments undoubtedly is, that the legislature makes, the executive executes and the judiciary construes the law, but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily. According to all constitutional expounders, a constitution is a limitation upon the powers of the legislative department, but is to be regarded as a grant of powers to the other departments. Neither the executive nor the judiciary, therefore, can exercise any authority or power except such as is clearly granted by the constitution. When a claim of power is advanced by them, the question is, whether it has been granted by the people to either of these departments, and if the grant cannot be shown, they have no right to exercise them. Not so with the legislative department; the constitution is only invoked to see what it prohibits the legislature from doing. We do not wash to be understood as saying, that all power must be expressly granted, because under any constitution, the doctrine of implication must be resorted to in order to carry out the general grants of power. A constitution cannot, from its very nature, enter into a minute specification of all the minor powers naturally and obviously included in, and flowing from, the great and important uses which are expressly granted. It is then established as a general rule that when a constitution gives a general power, or enjoins a duty to a particular department, it also gives, by implication, every particular power necessary for the exercise of the one, or the performance of the other.

The petitioners, in the case before us, claim that the equalization of property throughout the state, for the purposes of taxation, belongs to some other department than the legislative. If so, where, in the constitution, do we find any provisions, express or implied, from which such an inference may be drawn? If left to the judicial department or judicial tribunal of the state, to ascertain the amount of indebtedness of the individual taxpayers; and when ascertained, the payment of taxes can only be enforced by a resort to the judicial tribunals of the state, in the same manner that debts are recovered by one citizen from another. If such be the constitutional restrictions imposed on the power of taxation, the sovereign authority of the state is virtually disrobed of its most important and invaluable rights, of the very essence of sovereignty. The delays and expenses incident to such a system of collecting the public taxes would effectually paralyze the right arm of government, and render it wholly incompetent to the -accomplishment of the all important objects for which it was constituted.

“ A tax, in its essential characteristics, is not a debt, nor in the náture of a debt. A tax is an impost levied by authority of government upon its citizens or subjects for the support of the state. It is founded on contract or agreement. A debt is a sum of money due by certain and express agreement. It originates in, and is founded upon contract, express or implied.” Pierce v. Boston, 3 Met., 520; Camden v. Allen, 2 Ducher, 398.

Unless the power is specifically delegated or expressed, no right of action exists for taxes, and they cannot be turned into judgments. Both the state and municipal corporations have a much better and more expeditious remedy. They have the the right by summary process, to enforce collection, by levy and sale, and when .this power exists, complete and ample as it most assuredly is, it would be monstrous, without plain and express authority to that effect, to say that they could abandon, at pleasure, the usual and simple manner of making collections, and resort to judicial power for their enforcement.

Is equalization of property an executive act ? That portion of the constitution which relates to the executive department, and the designation of executive officers, does not mention by expression or implication the revenue of the state, or appraisement or equalization of property, and unless it can be so shown, we must infer that the duties do not necessarily belong to the executive functions.

Taxes are burdens or charges imposed by the legislative power upon persons or property to raise money for public purposes or to defray tbe necessary expenses in administering tbe government. They are contributions levied on individuals for the service of the state. The power to tax rests upon necessity, and is inherent in every sovereignty. Such being the case, the legislature of a state possesses it, whether particularly specified in the constitution as a grant of power to be exercised or not.

Rut our constitution expressly grants the power to this department. See article X, Const. In reference to taxation, the constitution is not so much to be regarded a grant of power as a restriction or limitation of power.

That restriction which requires that all property shall be taxed by a “ uniform rule ” is so manifestly just, that it commends itself to universal assent. It was intended to make the burdens of government rest on all property alike, to forbid favoritism and prevent inequality. That the legislature of a state has power to value any taxable property within the state, and assess thereon a just proportion of the public taxes, we think cannot be disputed. The duty of ascertaining taxable values, and of assessing and collecting the taxes thereon, necesssarily rests in the discretion of the legislature, and it may perform that duty by its own legislative acts, or through the agency of such officers or tribunals, as it may appoint for that purpose. State v. Mayhew, 2 Grill., 487. It is not the fit province of the judicial or executive departments to inquire what degree of taxation is the legitimate use, and what degree may amount to the abuse of power. McCulloch v. State of Maryland, 4 Wheat., 430.

Therefore, the power of taxation a-nd of apportioning taxation, or of assigning to each individual his share of the burden, is vested by the constitution, as it is inherently, exclusively in the legislature, subject only to constitutional limitations. The power of taxing and the power of equalization and apportioning taxation are identical and inseparable. Taxes cannot uniformly be levied without equalizing the value of the property, and apportioning it to the property taxed.

When the general assembly confides to county courts, boards of supervisors, or assessors or county commissioners, the power and duty of making what is called “ assessments,” the “levy of taxes,” that is, of making out the “ tax lists,” and •delivering a copy thereof to collectors, it is done not because the legislature do not possess the power of discharging the same duty itself, but because the power can be more conveniently and advisedly exercised by the justices of the county courts, supervisors, county commissioners or assessors. State v. Mayhew, 2 Gill., 487.

We find this power being exercised every day by legislative bodies. It has been done in the enactments of the state in relation to the building of levees, when by direct legislation, property was valued at not less than a fixed sum.

The statute, now sought to be overturned, by reason of its unconstitutionality, is a literal copy of the equalization law of Missouri, where it has stood many years without being questioned, the constitution of that state, being more guarded, if possible than our own, as to persons charged with the exercise •of powers properly belonging to one department, exercising .any power properly belonging to either of the others.

From a full consideration of the questions as raised by the petitioners in this case, we are led to announce that inasmuch as the constitution gives the general power to the legislative department over the question of taxation, it has, by implication, the power to determine the value of property to be assessed, and a power of discrimination in selecting the agents through which it may fix the taxable values of the state, which inay be done by itself as a whole body, or its power delegated to others, and which, for certain purposes, may devolve upon the senate without conflicting with the constitution.

A secondary point is raised in the petition. It is alleged that the equalization of the state was made by the senate, on the 25th day of March, 1871. On the 20th day of March, 1871, Nevada county was created by an act of the legislature, and that it was not included in the equalization of the senate ; therefore, the clerk of said county had no right to make the additional appraisement on that county.

By reference to the act creating Nevada county, we find that it was made out of parts of the territory of Hempstead, Ouachita and Columbia; and for revenue purposes it was the duty of the clerks of these several counties to give to the clerk of Nevada a complete and accurate list of all taxable lands on the assessment lists of said counties, which shall fall within the limits of said county.

The senate, acting as a board of equalization, raised the valuation of Hempstead county ten per cent., and Ouachita and Columbia eighty per cent., but did not specifically mention Nevada county.

The assessments of these counties were made by the assessors sometime before the meeting of the legislature, which, created the county of Nevada, and if it was right and just that these counties should have their assessments raised in order to establish a “ uniform ” rate of taxation throughout the state, we cannot see wherein there would be any injustice in raising the valuation of the real estate taken from those counties, to conform to the general valuation. If for no other purpose, it would have been necessary in order to have made a uniformity of values throughout the county. The fact that the senate did not expressly mention Nevada county in their equalization can have' no weight as to their intention that its real estate should not be equalized with the other portions of the state, because all of its territory was embraced in the equalization of those counties from which it was formed.

The court erred in granting the injunction as prayed for ; it is therefore dissolved.


text:
    Parke vs. Meyer.
    Practice: When joint obligation sued on.

    Where the obligation sued on is joint, the court, in its discretion, may render judgment against one defendant, leaving the action to proceed against the other.
    APPEAL from Sebastian Circuit Court.
    Hon. E. D. Ham, Circuit Judge.

      Walker & Rogers and A. H. Garland, for appellant.

      Clark & Williams, and Rose & Green, for appellee.
   Bennett, J.

Meyer sued Parke & Tibbetts on an accepted draft, in the circuit court of Sebastian county.. Service was had on Parke, none on Tibbetts. When the cause was called, Parke defaulted, and a final judgment was rendered against him, and an alias writ issued against Tibbetts, and cause continued. Parke appealed.

This cause has been before us on a motion to dismiss the appeal, on the ground that the judgment rendered by the court was not such a final judgment as could be appealed from. The motion to dismiss was overruled'. The cause is now submitted on the same record as to its\ merits.

The record shows that the draft sued on was accepted by the firm of Tibbetts & Parke, and is a joint acceptance in the firm name.

At common law, when a party brought his action against two or more defendants upon a contract, he must recover against all the defendants or none. By sec. 3, chap. 94, Gould’s Digest, the common law rule was changed, and joint obligations have been construed to have the same effect as joint and several, and recoveries had thereon in like manner. By sections 400 and 401 of the Code of Practice, it is provided, that in an action against several defendants, the court may, in its discretion, render a judgment against one, leaving the action to proceed against the others. In the case before us, such discretion has been used and a final judgment given against Parke. No error appearing on the record, the judgment is affirmed.


author: McClure, C. J.

text:
    Swayne vs. Vance, Executor, etc.
    'Deeds : Construction of, when ambiguous.

    Where there is an ambiguity in the language of a deed, the court may resort to extraneous circumstances to ascertain what the parties really intended by the language employed; not for the purpose of changing the contract or agreement, but for the purpose of ascertaining what the parties referred to and intended at the time of maleing the writing.

    APPEAL from Crittenden Circuit Court.
    Hon. James M. Hanks, Circuit Judge.

      B. C. Brown and U M. Bose, for appellant.
   McClure, C. J.

William Yance, as executor of M. B. Winchester, deceased, sold to John Swayne and Bryant Duncan, both of whom are and were dead at the commencement of this suit, a certain tract of land in Crittenden county, which is described in the title bond as follows: “ The south fractional half of fractional section twenty-nine, and that part of the Elizabeth Jones Spanish confirmation, No. 2,327, which lies north of the military road, and joins the fractional half section above described, in township seven north, range nine east.”

Swayne, at the time of the purchase, paid Vance the sum of eight hundred dollars in confederate money, and afterward, the further sum of one hundred dollars in the same currency, and went into possession of the premises purchased, and Duncan, at different times thereafter, paid Vance one thousand dollars in confederate money.

Under the terms of sale, the purchasers were to have the privilege, if they so desired, of paying the balance, over and above the first payment of eight hundred dollars, in two equal annual payments. The land, under the contract of sale, was to be paid for at the rate of fifteen dollars per acre, and the quantity was to be ascertained by survery, which was not made in the life time of either Swayne or Duncan, and for this reason the notes were never given, nor the exact amount of the purchase money ever known by either of them.

Swayne and Duncan, as has been stated, after the purchase, went into possession and erected thereon a steam saw mill, and cut the timber from said land, which constituted its chief value. After having despoiled the land of its timber, the mill was removed, and both Swayne and Duncan died after that event.

John T. Swayne, the administrator of John Swayne, deceased, on the 2d of October, I860, filed a bill in the Crittenden circuit court, asking a revision of the contract of sale and a repayment of the amount of purchase money paid by the decedent, on the ground that Vance could not make title to the property described in the title bond. To this bill Vance, as executor of Winchester, deceased, Edward B. Lewis, administrator of Bryant Duncan, deceased, and the unknown heirs at law of Duncan, were made parties defendant. Lewis, the administrator of Duncan, answers and says, that Duncan was, in his lifetime, the guardian of himself and two sisters, and as such guardian, came into the possession of twenty-five negro slaves belonging to himself and.sisters; and that the one thousand dollars paid by Duncan on the land purchased of Yance was the result of the labor of the slaves; that said Duncan died insolvent, and had made no final settlement of his accounts as guardian at the time of his death, and that in equity and good conscience they were entitled, in the event the contract was rescinded, to the one thousand dollars paid by Duncan to Yance; and prays, in the event the sale is not rescinded, that, upon payment of the amount due, they may be decreed entitled to one-half of the land. The answer of Lewis is made a cross-bill, and the unknown heirs of Duncan are prayed to be made parties defendants, and asks that a special administrator be appointed on the estate of Duncan, which was accordingly done. The special administrator answered that he knew nothing of the facts, etc.

At the May term, 1866, Yance answered the bill of Swayne, and cross-bill of Lewis, and admits the sale of the land, the execution of the title bond, the receipt of nine hundred dollars from Swayne in confederate money, and the further sum of one thousand dollars, in the same kind of currency, from-Duncan. He further avers that Duncan and Swayne took possession of the land, and put up a saw mill thereon, and used up and destroyed the timber on said land, which constituted its chief value; that, in equity and good conscience, the sale ought not to be rescinded under the circumstances ; that Swayne and Duncan both understood that they were not purchasing any lands south of the military road; that, at the time of making the sale, his title papers to the land sold were examined, by Duncan, who was himself a lawyer; that both Duncan and Swayne were well satisfied with their purchase during their lifetime, and that the only reason why final.payment had not been made on said lands was, the number of acres of land had trot been ascertained by survey; that on account of the war some difficulty was experienced in getting a suitable person to survey the same; that the testator of respondent had a good and sufficient title to said lands, and had been in possession of, and holding the same openly and adversely to all others, for a period of twenty-five years; that he is able and willing to make the title covenanted for in the title bond upon payment of the balance due, which has now been ascertained by a survey of said land. He protests against being compelled to pay back the purchase money received from Duncan and Swayne, and asks for a specific performance of the contract, and that he have a decree against the lands, and the executor of Swayne and the administrator of Duncan for the balance due.

At the hearing below the court decreed the relief prayed for in the answer and cross-bill of Yance; and Swayne appealed.

• The matter of difference between the appellant and appellee is one of construction, and construction only ; the one party claiming that the title bond is a covenant to convey the “ south half of section twenty-nine,” while the other claims that no portion of the south half of section twenty-nine lying south of the military road was intended to be convejmd by Yance, or purchased by Duncan and Swayne.

In construing a deed or other instrument of writing, it is the duty of the court to ascertain the intention of the parties; and this intent, when ascertained, fixes their rights and liabilities. The first general maxim of interpretation is, that it is not allowable to interpret that which has no need of interpretation. By this is meant, that if the language used in the deed be plain, certain and unambiguous, that the sense and intention of the parties must be ascertained therefrom. But there is another well known rule of construction equally as imperative as the one just stated, that where there is an ambiguity in the language, the court may resort to extraneous circumstances to ascertain what thepa'rties really intended by the language employed; not for the purpose of changing the contract, or agreement, but for the purpose of ascertaining what the parties referred to and intended at the time of making the writing.

With these two well known rules of construction before us, let us examine the writing out of which arises all matter of difference between the parties to this suit. But, before doing so, it may not be amiss to state that the description attempted to be used by the parties in the title bond, to some extent, discloses an intention to resort to that in use by the government. Land in this state by law of the general government is surveyed and subdivided into legal subdivisions. First into townships, then into sections, half sections, quarter sections, and lesser subdivisions; and, since the organization of the state, whenever reference was made to any of these legal subdivisions, the exact location, the boundary and quantity of land was at once impressed on the mind. Thus, if one should describe a tract of land as being the “ south half of section twenty-nine ” of a certain range and township, the land granted would, at first blush, be supposed to be a tract of three hundred and twenty acres, and the entire south half of that section. Section twenty-nine is an interior section, and, under our peculiar land system, is seldom a “ fractional section,” unless some irregular survey, or a river or lake of some magnitude should trench on its boundary. But the language, descriptive of the land in the title bond, is not as we have stated j on the contrary, it describes the land as being “ the south fractional half of fractional section twenty-one.” The use of the word “fractional,” as descriptive of the half section, and again as descriptive of the section, implies that the parties were attempting to describe an irregular shaped piece of land, the number of acres in which might greatly exceed or fall short of the quantity contained in a half section. The parties themselves have failed to express any number of acres as being contained in the tracts to be conveyed. Had any definite number of acres been mentioned, or had the parties approximated thereto, this might have led us to some conclusion as to whether or not the parties intended to convey or purchase any lands south of the military road, but there is no such expression in the deed. As the matter now stands, we are called upon to determine how many acres of land the parties intended to describe by the use of the words, the south fractional half of fractional section twenty-nine, and that part of the Elizabeth Jones Spanish confirmation, No. 2,327, which lies north of the military road, and joins the fractional half section above described in township seven north, range nine east,” and where it is located. The object of the descriptive part of the grant is, to define what the parties intend, the one to convey, the other to receive, and, with the use of proper care, there would be little occasion for the application of rules of construction to the granting part of the deed. The language used in describing the grant, in the case at bar, is not that used in describing legal subdivisions of land, further than that the land is somewhere in the south half of section twenty-nine. The use of the word “fractional,” as descriptive of the south half of a section, at once raises a presumption that a greater or less number of acres of land than is ordinarily contained in a half section was referred to; and, when we come to take into consideration the fact that “ that portion of the Elizabeth Jones Spanish confirmation, No. 2,827, which lies north of the military road, and joins the half section above described,” was a part of the south half of section twenty-nine, the inference arises, unless it be rebutted by other circumstances, that all the remaining portion of the section lying south of the half section line was to pass by the deed.

The law will not declare a deed void for uncertainty until it has been examined with all the light which contemporaneous facts may furnish. For the purpose of examination, extrinsic evidence is admissible, not to contradict or vary the terms, but to place all the facts, circumstances and positions of the parties before the court, to the end that they may be applied to the subject matter. The appellant, in this case, has entered the portals of a court of equity on his own motion, and it becomes him to have clean hands. The facts in this case disclose that Duncan and Swayne went into possession of the land on the north side of the military road at the time of the purchase, and afterward erected a saw mill thereon; that Duncan, himself, purchased and cultivated the land in the south half of section twenty-nine, which was south of the military road, and only divided from the land purchased of Vance by the road itself. In view of these facts, is it at all probable that Duncan contracted -to purchase the lands on which he lived and had cultivated for a number of years? We cannot indulge any such presumption. Neither Duncan nor Swayne, in their lifetime, complained of want of title in Vance; nor, so far as we can learn from the record, did either of them claim that they had purchased from Vance any land lying south of the military road. This is a circumstance from which an inference may be drawn, that the original parties were satisfied, and in view of these facts, those who now stand in a fiduciary relation toward them cannot have any very grievous cause of complaint.

In order to place the construction on the language descriptive of the grant, contended for by the appellant, we have to start out with the presumption that Vance undertook to sell land he did not own, and that Duncan undertook to purchase of Vance the lands on which Duncan then lived, cultivated and claimed as his own. This is asking rather too much. The reasonable presumption is, that Vance intended to sell what he had a perfect title to, and that Duncan and Swayne intended (in view of the fact that one of them owned all the land in that section south of the road) to purchase that portion of the south half of section twenty-nine, lying north of the military road. No other conclusion than this can be arrived at, if we allow ourselves to become cognizant of all the facts known to the parties at the time of the sale ; but if we shut our eyes to the fact, that Duncan himself was the owner of the lands on the south side of the military road, in section twenty-nine, at the time of the purchase, another construction might be indulged. To allow the' estates of Duncan and Swayne to come into court after having stripped the land of its timber, which, from the evidence, constituted its chief value, and for which they paid nineteen hundred dollars in confederate money, and recover a judgment against Vance for nineteen hundred dollars in good money, is a demand that might with some propriety be urged in a law court, but it will not answer in a court of equity.

Finding no error in the proceedings of the court below, its proceedings are in all things affirmed, and the cause is remanded with instructions to execute the decree.

Bennett, J., being disqualified, did not sit it this case.

Hon. C. C. Farrelly, Special J.


author: Searle, J.

text:
    Rogers vs. Lockett.
    Agents: What purchase ly, fraudulent.

    An agent cannot become the purchaser of property confided to his care a purchase made under such circumstances carries fraud upon its face.
    Same : Where principal’s title defective.

    An agent, discovering a defect in the title of the land of his principal in the course of his agency in relation thereto, cannot misuse his-discovery to acquire a title thereto for himself.
    APPEAL from Arkansas Circuit Court.
    Hon. Henry B. Morse, Circuit Judge.

      A. H. Garland, for appellee.
   Searle, J.

The appellant brought his complaint against the appellee in the Arkansas county circuit court, to the fall term thereof, 1870, for the possession of certain lands, the-same being a farm situated in Arkansas county.

The complaint was originally brought on the law side of the court; afterwards, upon motion of the appellee, equitable issues being presented by his answer, the cause was transferred to the equity side of the court. The appellant replied. The issues were tried and a decree rendered in favor of the appellee, from which this appeal was taken.

The appellant in his original complaint alleges that he is the owner, and entitled to the possession of the farm in controversy, and that the appellee holds possession, etc. He furthur alleges that after the transfer of the cause to the equity side of the court, he acquired title to the farm by purchase thereof, at an administrator’s sale, from T. J. Atwood, as administrator of the estate of Renn and Harris, on the 15th day of February, 1869, and in connection with his deposition, he exhibits the administrator’s deeds in evidence of his title.

The appellee answered, admitting that the appellant purchased the farm as alleged by him, but denying that such purchase vested a valid title in him; and in support of this denial he alleges, substantially, the following facts: That he purchased the farm a long time previous to tbe administrator’s sale, from Harris, in his life time, he being the owner thereof, and received a deed therefor; that, by mistake, the property was improperly described in said deed. That in 1867, he contracted with appellent to go upon the farm as his tenant, to cultivate it, and as his agent to manage his affairs generally; that he accordingly acted as his agent and tenant during the years 1867 and 1868 ; that he remained upon the farm during the year 1869, and until the spring of 1870, when he was dispossessed by legal proceedings; that while he was in possession and acting as his tenant, he procured an administration to be had upon the estates of Renn and Harris (Harris being the party from whom he purchased), long after their decease, bought up long standing and fraudulent claims against their estates, and that the property was sold by order of the probate court to satisfy said claims, and was purchased by the appellant.

The appellant, in his reply to appellee’s answer, admitted his agency and tenancy during the years 1867 and 1868, and alleged that the claims that were bought up against the estates of Renn and Harris were probated and just; that the administration was not had by his procurement; that when he purchased the property, he was not appellee’s agent and tenant, and he prays that the deed from Harris to Lockett be cancelled, etc.

The pleadings and evidence in this case, on both sides, but especially on the side of the appellee, are very meagre and unsatisfactory, and it is difficult to discover the right in the controversy, and justly and understanding^ dispose of the issues presented.

The deed of Harris to Lockett was not exhibited in connection with Lockett’s answer or evidence, nor is it shown by the evidence that any mistake was made in the description of the land in the deed. We presume, therefore, that the issues in relation to the conveyance of Harris to Lockett, and the misdescription in the'deed were abandoned in the trial. Nevertheless, the appellant could not depend upon the weakness of his adversaries’ title; it was incumbent upon him to establish his own, in order to recover. The issue controverted in the evidence chiefly was, as to whether or not the appellant acquired a valid title to the property in question by his purchase at the administrator’s sale, without any reference to the transactions between Lockett and Harris in his lifetime, in relation to the property, and the determination of this issue depends upon the relations in which the appellant stood to the appellee, as his agent, etc., at and before the time of appellant’s purchase.

It is well settled that an agent or trustee cannot become the purchaser of the property confided to his care; a purchase made under such circumstances carries fraud on its face. White v. Ward et al., 26 Ark., 445. Again, an agent discovering a defect in the title of the land of his principal, in the course of his agency in relation thereto, cannot misuse his discovery to acquire a title thereto for himself. Ringo et al. v. Burns et al., 10 Pet., 279.

Now it is urged by appellee’s counsel that appellant’s transactions relative to the purchase of this property at the administrator’s sale came within the reason of the rules laid down in the above cited authorities, and that his purchase therefore gave him no valid title. This argument, we think, has but little foundation in the evidence.

In relation to the issue under consideration, the facts, as they appear from the testimony, are as follows: In January, 1869, Lockett sent a letter to Rogers by the hand of one Bass? in which he informed Rogers that Bass was his agent, etc., and requested him to turn the farm, stock, utensils, etc., over to Bass as such. Accordingly, two days thereafter, Rogers did turn the property over to Bass. By permission of Bass, Rogers remained upon the place. Three or four days after he turned the property over to Bass, he determined to keep possession of the farm, stating as his reason therefor, that “ he had claims against the estates of Renn and Harris,” and that the place belonged to said estates. On the 15th of February following, he purchased the place at administrator’s sale, as alleged in the pleadings, and remained in possession until the spring of 1870. It further appears, that the administration had upon the estates of Renn and Harris was not procured by Rogers, and the claims against the estates had been probated, and were just.

Now it is evident, that on his receiving the letter from Lockett, Roger’s agency, at least, ceased. As to whether his tenancy ceased also we think matters but little in the disposition of this case. His purchase of the farm, then, on the 15th of February, 1869, was when he was not Lockett’s agent. The evidence going to show that Rogers, previous to his receiving Lockett’s letter, knew of the supposed defect in his principal’s title, is very unsatisfactory; nor can we know from the record, whether Rogers became interested in the claims against the estate of Renn and Harris before or after his agency was terminated. The presumption is, we think, that it was after.

The evidence failing to show sufficiently that Rogers, during his agency, acted in bad faith toward his principal, Lockett, in regard to his purchase of the farm in question, we are of the opinion that the decree rendered against him in the court below was without sufficient foundation in evidence to sustain it.

The decree, therefore, must be reversed, and the cause remanded, with instructions to the court below to try the same anew; and also, to permit the parties, if they should desire so to do, to amend their pleadings so as to present more clearly the issues in relation to the conveyance from Harris to Lockett, and the description in said conveyance, and also to introduce additional evidence.


text:
    Coit vs. Elliott, Judge.
    Mandamus : What application for, must show.

    To authorize the issuance of a writ of peremptory mandamus, it must be shown that there has been a refusal by the person against whom the writ is sought, to do the act or perform the duty inqnosed by the law which it is the object of the mandamus to enforce, either in direct terms, or by circumstances distinctly showing an intention in the party not to do the act required.
    Change op Venue : Where motion filed, aftm' order of continuance.

    Where, after a motion for a new trial granted and order of continuance, the defendant presents a motion for a change of venue, it is within the discretion of the court to hear the motion at that term, or postpone its consideration to the term to which the cause stands continued.
    PETITION for Mandamus.

      Compton & Martin, for petitioner.

      Harrison & Jones, for respondent.
   McClure, C. J.

William B. Coit, on the6tbof December, 1873, represented to this court that he was indicted by the grand jury of Ouachita county for forgery of records in the office of the Ouachita circuit clerk’s office; that he was tried, convicted, granted a new trial, and that before the continuance of said cause by the judge of said court, his counsel arose and proposed to file a motion to change the venue in said cause, on the ground that said judge would not give the relator a fair and impartial trial; that said judge declared and announced that no such motion should be filed, and on his own motion, continued said cause arbitrarily, over the objection of the relator and without the motion of the prosecuting attorney to continue said cause.

Upon this showing, an alternative writ of mandamus was asked and awarded, commanding said judge to entertain said motion, and to make an order to change the venue of said cause, or show cause why he should not do so.

The response of the defendant sets out the indictment, trial and conviction of the relator, and the granting of a motion for a new trial; that whilst the court was making the order of continuance, one of the attorneys for Coit arose and offered to file a motion, which he stated to be a motion for a change of venue ; but that the court neither read said motion nor heard it read, but refused to entertain it for the reason that said cause was ordered continued until the next term of the court; that the question of entertaining said motion is one which the court might well defer to a subsequent day of the term, or .postpone its consideration to the next term of said court, and submits that the offer to file said motion, after the order of continuance, came too late; that it was and still is the intention to hear said motion for change of venue at the next term of the Ouachita circuit court and grant the same, if, in the opinion of the court, the relator brings himself within the rules of law in such case made and provided.

To this response a general demurrer was filed.

The question now arises whether, upon this state of facts, a peremptory writ of mandamus ought to issue. In order to lay the foundation for issuing a writ of mandamus, there must have been a refusal to do that which it is the object of the»ia?zdamus to enforce, either in direct terms, or by circumstances distinctly showing an intention in the party not to do the act required. 3 Stephens Nisi Prius, 2292; Redfield on Railways, 441, note 5.

■Has such a showing been made in this case? Standing on demurrer, it is admitted by the relator that at the time of refusing to hear the motion, “the cause was continued, and that it was and still is the intention of the defendant to hear said motion at the term of the court to which the same was continued.” This, in our opinion, is not a showing on the part of the relator that the defendant intends not to do the act required.

But waiving this, let us see if the relator has made such a showing in other respects as would entitle him to the writ. Two things must be shown before a peremptory writ of mandamus will issue: first, that the relator has a clear legal right to have the thing done which he demands; and second, that he has no other adequate remedy. It is not even alleged that the relator has no other adequate remedy, nor is it so shown. This being true, let us examine whether the relator has a clear legal right to the thing demanded.

The relator claims he has a right to have the motion heard without further delay, and the venue changed. This right, he says, is founded on the following section (432, amendments to code, approved April 25, 1873): “Whenever the defendant, under any indictment for felony, shall file the affidavit of himself, supported by the affidavit of some other credible person, stating that he verily believes that the judge of the court in which the prosecution is pending will not give him a fair and impartial trial, the court shall make an order changing the venue in such'cause to the most convenient county in an adjoining circuit, and shall make an order directing the clerk to transmit the papers, as required in other cases of the change of venue in criminal cases, which shall have the same effect as in other cases hereinbefore provided.”

This provision makes it the duty of the judge, whenever the affidavits are filed, to make an order changing the venue to the most convenient county in an adjoining circuit. The relator insists that the moment the proper affidavits were filed, it was the imperative duty of the judge to make an order changing the venue, and that he had no discretion in the premises. Some one had to judge whether the affidavits filed were in strict conformity to the law ; now who was to determine this fact, the relator or the judge ? We think the duty of ascertaining whether or not the affidavit made by the defendant in the court below was within the letter of the law was a question for the determination of the judge, and that he was entitled to reasonable time within which to make the examination. Not only this, but the question whether or not the person making the affidavit in support of the defendant’s affidavit was a “ credible person” was one that had to be determined by the court, and for this purpose the prosecuting attorney ought to have been allowed reasonable time within which to attack the character, if he so chose, of the person making the affidavit as a “ credible person.”

The mere fact that the cause was continued before the motion for a change of venue was made did not relieve or excuse the judge from entertaining the motion. In fact, we think it was his duty, notwithstanding the order of continuance, to have taken up the motion for change of venue and to have made some disposition of it. It appears from the judge’s own showing that, during .the time he was making the order granting a new trial and continuing the cause, the counsel of defendant arose and stated that they wanted to file a motion' for a change of venue. From this, it appears the judge had knowledge that a change of venue was desired before he had concluded his remarks about granting a new trial and ordering a continuance. With that knowledge before him he should have halted and, at least, heard what the defendant had to say, before ordering a continuance on his own motion.

The defendant was entitled to a speedy trial, under our constitution, and no order should have been made which in any manner abridged that right, unless the state could not safely proceed to trial, and of this fact the prosecuting attorney is presumed to know mor,e than the judge. The mere fact that a continuance was ordered did not deprive the court from hearing the motion, as the same power that made it could have set it aside. While the conduct of the judge comes far from meeting the approbation of this court, .his response does not show an absolute refusal to grant the motion, but, on the contrary, an intention to dispose of it at the next term of the court. For these reasons the peremptory writ will not issue.

In the opinion first delivered in this case, there was some allusion to the fact that the legislature could not impose a disqualification upon a judge that would disqualify him from presiding at trials within his circuit.

This assertion has, by some members of the profession, been construed to be a declaration that this court has decided the 432d section of the criminal code as being in conflict with the constitution. No such decision was made, and by a fair interpretation no such conclusion could be drawn from the language. There is a difference between a law that allows a criminal to be tried outside of his circuit, and one that prohibits a j udge from presiding at trials within his circuit, and we are not responsible for the lack of ability that cannot distinguish the difference. In order to prevent confusion, consequent, to a misapprehension of what had been decided by this court, that portion of the opinion from which, and upon which, it might be claimed the profession was or might be misled, is stricken out.

Mandamus denied.

Stephenson, J., dissenting.


author: Gregg, J.

text:
    Haney vs. Cole et al.
    Tax Sales : When set aside, what damages to purchaser.

    Where, on application to confirm a tax title, the sale is decreed to have been void for irregularity or other cause, the purchaser at such sale is entitled to have damages assessed in his favor to the amount of all taxes, costs and interest, with the per centum thereon prescribed by the statute, together with the value of all improvements made thereon, and a lien should be decreed him upon such lands until the same is satisfied.
    APPEAL from Pulashi Chancery Court.
    Hon. T. D. W. Yonley, Chancellor.

      Rose & Green, for appellant.

      Clark & Williams, for appellees.
   Gregg, J.

In May, 1869, the appellant filed his petition in-the Pulaski chancery court, praying a decree confirming his title to the south half of section 2, and northwest quarter of section 10, and west half of northwest quarter of section 11, in township 1 north, of range 10 west (560 acres), assessed for taxes as nonresident’s lands for the years 1865 and 1866; alleging that due notice was given, etc.; that the same were legally advertised, etc., and in March, 1867, duly sold, and that the same were bid off by him at such sale for the taxes, penalty and costs, amounting to $97.97; and that on the 18th day of June, 1868, he'obtained a sheriff’s deed therefor. He alleged that all the proceedings were in strict conformity to law, and he prayed that his title be confirmed and for general relief.

In the progress of the cause, he filed an amendment to his petition, setting out the cost of the lands, his subsequent expenditures thereon for taxes, costs, improvements, etc., and prayed that the same and one hundred per cent, thereon be declared a lien thereon; and if, for any reason his title should be held invalid or defective, said sum be decreed to him, and a lien declared upon said lands for the payment of the same.

Publication was had, and Samuel Cole, as the administrator of John Woods, and the other defendants as the widow and heirs of said Woods, appeared and petitioned to be made defendants, and allowed to resist the confirmation prayed for. Their petition was allowed and the suit ordered to progress against them. They answered that they were the heirs and legal representatives of John Woods, deceased, who died seized and possessed of all of said lands on the 31st of January, 1865. They deny that the lands were legally listed for taxation ; they deny that the sheriff was legally in office, and that the assessment was corrected by the county court, or that the sale was made at a time authorized by law; they deny that the collector filed bond before the 10th of January, 1866, or that proper notice was given of his assessment and collection, or that the lands were valued by three householders; that the assessment lists were not filed by the 15th of April, 1866, but were filed on the 20th; they aver that he gave no notice of such filing; that they resided out of the county of Pulaski, and had no notice; that no court was held on the second Monday after the loth of April, as required by law, and that the collector failed to give bond as required by law; that he failed to give notice of sale, and did not file a list of said lands and have the same recorded, etc.

The parties filed the following agreed statement of facts: That the collector for Pulaski county in 1866 did not file his bond before the 10th day of January; that he did not file his assessment list for that year in the clerk’s office before the 15th day of April, and that it was not filed until the 20th day of April; that he did not give notice according to law immediately after the 15th of April that the lists would be laid before the nest county court for correction and adjustment; that by law there was no regular term of said court after the loth of April until after the second Monday from the 15th of April, and that the first regular term after the loth of April was the second Monday in July; that the county court did not bold a special session on the second Monday after the 15th of April for the purpose of correcting the assessment and hearing appeals; that it did not sit for such purposes until the 15th day of May, 1866.

The deposition of the plaintiff Haney was also filed • and read by consent, in which he testified that the sums of money mentioned by him in his amended petition, to wit:

Original cost of the land in March, 1867, .... $97 97

Tax deed and acknowledgment, June 22, 1868, . - 5 50

Amount paid ior deadening sixty-five acres, September 30, 1868, 146 25

Taxes for 1868, paid March 30,1869, .... 117 00

Amount paid for surveying, December 18,1869, - - 27 50

Amount of taxes for 1869, paid February 19, 1870, - - 138 00

Amount of taxes for 1870, paid April 22, 1871, - - 167 70

were by him actually paid out on said lands as above stated, and that the improvements were now worth $625 more than they cost.

The cause was heard upon the pleadings, exhibits, proof and agreed statement of facts.

The court found that the said tax sale deed was null and void because the lands were not assessed and sold according to law, and decreed that the deed and title claimed thereunder be annulled, and plaintiff’s original and amended petitions be dismissed for want of equity. From which decree the plaintiff appealed.

The irregularities in the assessment and condemnation of this property are so great and so clearly calculated to prejudice the owners, that it does not require comment or citation of authorities in announcing that the decree was correct in annulling the deed from the tax collector.

But our statutes throw very strong guards around those who pay the public revenues of the state, and one who pays his money at a tax sale, and goes into possession of property that he has thus relieved of a public burden, does not occupy the ground of a wrongdoer, if his title' proves to be imperfect and invalid.

Section 7, chapter 106, Grould’s Digest, provides that a claimant, before he shall institute suit for lands sold at sheriff’s sale for the nonpayment of taxes, shall make and file affidavit that he has tendered to the purchaser the full amount of all taxes and costs paid on such lands, with interest on the same at the rate of one hundred per centum upon the amount first paid for said lands, and twenty-five per centum per annum upon all costs and taxes paid on said land thereafter, from the time said .costs and taxes were paid, and also the full value of all improvements made on said lands, and that the same hath been refused. And by the next section the court is required to dismiss any suit brought to recover any such lands if such affidavit is not so filed. And the ninth section provides that if judgment be given against such purchaser in favor of any claimant, no matter by what manner of title, etc.,, damages shall be assessed in favor of the defendant for the full amount of all taxes, costs and interest, as above provided for, together with the full value of all improvements made-thereon, and judgment shall be entered in favor of the defendant, and the same shall be a lien upon such lands until it is satisfied.

Yarious provisions in our different revenue acts declare liens upon lands for the taxes assessed against them, and the clauses above recited clearly show that the purchaser’s lien for the repayment of his money and interest was not dependent upon the regularity of official proceedings, or the validity of his title.

As we find he was entitled to a return of the moneys legitimately paid out on the lands, and such interest as the statute allowed thereon, the only question is, Should the court below have decreed these rights ? We are of opinion it should.

The cause was made by the amended petition and proof of the plaintiff, and not contradicted by the defendants.

The parties were all before that court, and one decree should have settled the entire controversy, and not exposed the appellant to the vexation of another action to recover the moneys paid on said lands to the use of the appellees.

The decree of the court below in annulling the deed made to the appellant is affirmed, but wherein it refused him his lawful expenditures, as above referred to, it is reversed.

And it is found by this court that the appellant is entitled to have of the appellees the sum of $97.97 first paid on said lands, with one hundred per centum thereon; and the three-several sums of $117, $138 and $167.70 subsequently paid as taxes, with interest on said sums at the rate-of twenty-five per cent, per annum from the date of the respective payments as above stated, until the same is fully paid; and said $5.50-costs, with a like-interest thereon; and the sum of $146.25 for improvements, with lawful interest thereon from the date of the expenditure until paid. And that he is not entitled to the $27.50 charged for surveying; that he has alien upon the lands for the payment of the sums so found. All the costs of the court below will ,be paid by the appellant, and the cost of this court by the appellees, and a decree will be accordingly entered in this court.


author: Stephenson, J.

text:
    Wolfe vs. Henderson.
    Tax Sales: Redemption of lands sold for, ete.

    Where a revenue act provided that lands sold for the nonpayment of taxes could be redeemed within a certain time upon the payment of a certain penalty, and such act is repealed by a subsequent one, changing the time for redemption and the amount of penalty, but providing that the former act shall remain in force for the collection of the taxes levied thereunder: Held, that an act in force for the purpose of collection is in force for the purpose of redemption provided the penalty is tendered within the time prescribed by that act.
    APPEAL from Pulashi Chancery Court.

      T. D. W. Yonley, for appellant.

      Gallagher & Newton, for appellee.
   Stephenson, J.

On the 19th of July, 1869, certain lots in the city of Little Rock, belonging to the’appellee, were sold for the taxes due thereon for the year 1868. Appellant Wolfe was the purchaser thereof at said sale.

On the 20th of June, 1870, appellee applied to redeem the lots, tendering to the purchaser the amount of the taxes, penalty and costs arising from the sale, together with twenty-five per cent, penalty thereon. This amount appellant refused to receive, insisting that at the time the tender was made, the law entitled him to one hundred percent, penalty. This sum, which exceeded the sum tendered by him by $260^^, the appellee paid under protest to avoid being dispossessed of the lots.

He sued in the court below to recover back the $260^^, so paid. Judgment was given for the appellee, and the defendant appealed. This sale took place in 1869, and the redemp tion in 1870.

The revenue law of 1869, for the redemption of lands sold for taxes, prescribes that the owner may, at any time within two years, redeem the same upon payment of one hundred per centum penalty. The revenue law of 1868 provides for such redemptions within one year by paying twenty-five per centum penalty.

The levy of the taxes for which the land was sold was made pursuant to the law of 1868, and the act of 1869, section 159, provides “ That an act to assess and collect taxes and for other purposes, approved July 23, 1868, and all acts supplemental thereto, are hereby repealed, but shall remain in full force and effect for the purpose of making the collection of taxes for the year 1868. The collection of the tax therefore, by a sale of the land, was made under the law of 1868. ■ If in force for the purpose of collection, it is in force for the purpose of redemption from sale, and as the appellee applied within one year to redeem his lots, he is entitled to do ■so by paying the penalty imposed by law.

The judgment is in all things affirmed.