text:
    Cunningham et al. vs. Trapnall et al.
    The complainants and defendants, in a suit for title to town lots, which had been decided in favor of the complainants, entered into a compromise agreement that the complainants were to accept the 'purchase money and interest for all lots sold by the defendants and not purchased back; and that where the defendants were in a condition to surrender up the lots, the complainants were to re. eeive the lots and improvements in lieu of rents, etc.: Held, in a suit by the complainants against a party who had been in possession of lots, under a vendee of the defendants, which had been purohased*back by them and surrendered to the complainants, that by the compromise agreement the complainants had abandoned all claim, if any they had, to rents accrued and for waste committed before the date of the agreement.

      Ayypeal from PulasJci OJva/ncery Oov/rt.

    Hon. H. F. Fairchild, Chancellor.
    Garland, for appellants.
    WATKINS & Gallagher, for appellees.
   Mr. Chief Justice English

delivered the opinion of the Court.

This was an original bill, in the nature of a bill of revivor, and to carry into execution the final decree, in the case of Cunningham vs. Ashley et al., which has several times been before this court, and is reported in 7 Eng., 296; 13 Ark., 654; 16 Ark., 168 and 181.

The bill, in the case now before us, was brought by the heirs and legal representatives of Matthew Cunningham, against Martha F. Trapnall, in her own right, and as administratrix of her deceased husband, Frederick W. Trapnall, and guardian of her minor daughter, Mary E. Trapnall.

The object of the bill was to make Mrs. Trapnall account for rents received by her deceased husband, and herself, from a portion of the property in litigation in the original suit, and to charge her with waste, etc.

The facts material to be stated are as follows:

On the 7th January, 1838, Ashley and Beebe entered the south-east quarter of section 3, township 1 north, range 12 west, and having caused it to be laid off into lots and blocks, as part of the city of Little Rock, sold to Wm. Brown block No. 73, September 25th, 1839. On the 27th January, 184-1, Matthew Cunningham, claiming a pre-emption right to the land, commenced the suit above referred to against Ashley’ and Beebe, etc., for the purpose of establishing his claim, and having the title purchased by them of the government vested in him; and the result of the suit was, that his heirs, who succeeded him in the litigation, obtained a decree for the east half of the land, (which included the block purchased by Brown of Ashley and Beebe) with a declaration of law by the court that they were entitled to rents, etc., as may be seen from the history of the case as stated in the reports cited above, and as recited in the bill now before us.

In the meantime, while this litigation was going on, Brown, who was not made a party, erected a brick dwelling, and outhouses, upon block No. 73. On the 21st April, 1845, Frederick W. Trapnall purchased ten of the lots embraced in the block, under executions against Brown, received the sheriff’s deeds therefor, obtained possession of the property, including the dwelling and out-liouses, and availed himself of the rents, etc., for a number of years. In July, 1851, Brown commenced a suit in chancery against Trapnall for the recovery of the lots, on the ground that he had purchased them upon an agreement to hold them until the judgments under which he purchased, and which ho controlled, were paid by the rents, etc., etc., and then to reconvey them to Brown. Trapnall died pending the suit; Mrs. Trapnall, his administratrix, was substituted, and on the 27th December, 1854, Brown obtained a decree against her for the lots, in which she was charged with and accounted for the value of the rents of the property from the time her husband obtained possession of it, to the date of the decree. She appealed from the decree, and it was affirmed by this court in July, 1857. (See Trapnall adx. vs. Brown, 19 Ark., 39.) In the meantime, on the 24th January, 1854, the brick dwelling on the lots was burned down.

On the 12th October, 1853, while the suit between Brown and Trapnall was pending in the Circuit Court, Ashley’s executrix (he having died,) purchased the lots of Brown.

On the 20th April, 1855, Cunningham’s heirs obtained a decree in the Circuit Court vesting in them the title to the east half of the quarter section above described, (including the Brown property,) and awarding them a writ of possession against Ashley’s representatives, Beebe, etc., and persons holding any portion .of the land as their tenants, lessees, etc., but not as purchasers, etc.

On the 21st of September, 1855, and while the appeal was pending in the Supreme Court in the Brown and Trapnall suit, the parties to the Cunningham suit entered into a compromise agreement, as follows:

“ Little EooK, September 21st, 1855.

Memorandum of agreement for a settlement of the suit between Eobert Cunningham and others, heirs of Matthew Cunningham, and Eoswell Beébe, Mary W. "W. Ashley and others, made between Mary W. W. Ashley, executrix, etc., and Eoswell Beebe, jointly and severally of the one part, and Eobert Cunningham and others, heirs of Mathew Cunningham, of the other part :

“ 1st. All sales (with the exceptions that may be hereinafter made,) of lots on the east half of the south-east quarter of sec tion 3, in township 1 north, range 12 west, made by Chester Ashley and Eoswell Beebe jointly, or by Chester Ashley alone, or by Mary ~W. W. Ashley alone, are to be ratified and confirmed, and the said heirs of Matthew Cunningham will execute the necessary quit claim deed or deeds to the proper party, to perfect, by relation, tlie title of all persons who so purchased such lots from said parties in this article named, except such lots as by this settlement are to bo surrendered to said heirs.
“ 2d. Mrs. Mary W. W. Ashley and Boswell Beebe will assume and pay to said heirs of Matthew Cunningham, (with the exceptions hereinafter mentioned,) the purchase money, with six per cent, interest from the time of sale to the present time, on all sales made by Chester Ashley and Boswell Beebe jointly, and will execute their obligations for the aggregate of principal and interest to this time, with ¥m. E. Ashley as security, payable in fire equal annual installments from this date, with interest on the whole at six per cent, from date, and with stipulations that any portion of said amount not paid at maturity, shall bear interest from maturity, at the rate of ten per cent, per annum until paid.
“ 3d. Mrs. Mary W. W. Ashley, with Win. E. Ashley, as security, will in like manner settle and pay the principal and interest on sales añade by her after the division between her and Mr. Beebe.
4th. The heirs of said Matthew Cunningham will make the same arrangement with Mr. Beebe alone, in regard to all lots sold by himself alone, ratifying and confirming such sales, and executiiag deed of quit claim to him for all lots and parts of lots so sold, upon his assuming in like manner to pay the principal and interest of the purchase money, and giving like obligation for the amount, beai’ing like interest, both before and after matul’ity, with satisfactory security, either’ real or personal. But whether he does so or not, the preceding articles shall have full effect, and in no wise depend upon performance of said Boswell Beebe, the said heirs intending and agreeing to look to him, and to the property sold by him, alone, for satisfaction, so far as that part of the property decreed to them is concerned.
“ 5th. In all cases where Mrs. Ashley, executrix, or individually, or Wm. E. Ashley, has acquired title to lots heretofore spld and warranted by said Chester Ashley and Boswell Beebe, or Mary W. W. Asbley alone, (including the Whitaker and Clifton blocks), the heirs will accept such lots or blocks under the decree in their favor, with any im/provements that may be on them, in lieu of such purchase money with interest, as if such lots and blocks had never been sold; — excepting be it understood, the fractional lots sold to Albert Pike, who having purchased the same of Peter Hanger for the same amount due him by said Ashley and Beebe on their warranty, and paid him therefor, and said Win. E. Ashley, for the executrix, having purchased the title so claimed by him, and having paid said Albert Pike $2,500 towards the amount due him on the warranty, Mrs. Ashley will settle the unpaid remainder due on such warranty with said Albert Pike himself: — And in regard to the block sold to Wm. Brown, sr., the heirs will accept it subject to this contingency, that if the title believed to have, been acquired by or for Mrs. Ashley should be lost in the pending suit between William Brown, sr., and the heirs and representatives of Frederick W. Trapnall, then the executrix and Boswell Beebe are to settle and pay the purchase money and interest on that block also, within the same time, and in the same manner as in the other cases above provided for.
“ 6th. In all cases of sales when fractions are made by the exterior lines of the east half of the south-east quarter of section 3, the quantity outside of the lines is to be ascertained by. measurement or satisfactory approximation, and the amount of the purchase money and interest proportional for quantity is to be excluded from the computation in this settlement, the said executrix and Boswell Beebe paying proportionally, for all fractions within the lines of lots sold by them, the proportion of the price of the whole of each lot, that the quantity of the lot witbjn the lines bears to the whole lot.
“8th. When this agreement is consummated, all claims for rents and profits on the one hand, and for the taxes on the other, will be mutually waived and released: all lots and fractions, the purchase money whereof is not settled as above provided, surrendered to said heirs, and their suit in the Chancery Court of Pulaski county now pending for an account of rents and profits, dismissed as to such rents and profits, (the decree for title not being affected,) the defendants paying the costs: and should this arrangement not be consummated, as to lots sold by Mr. Beebe alone, all claims for rents, except the property which fell to him in the division between Mrs. Ashley and himself, ioill be waived and released, so that in any event this settlement will be complete, full and final as far as Mrs. Ashley is concerned, and as to all the lots sold by Ashley and Beebe, or by her alone, or which did not fall to said Beebe upon said division, the taxes for the present year to be paid by the persons to whom the respective lots are assessed.
“ 9th. In case Mr. Beebe makes the payments regularly of the annual installments of principal and interest assumed by him of the .purchase money of lots sold by him alone, no suit shall be brought by said heirs to dispossess any purchaser or person holding under purchase from him, until he makes default in payment, unless it becomes necessary in order to prevent lapse of time from depriving said heirs of power of enforcing their decree against the said purchasers of lots, or the persons holding the same under them." -
“ In testimony whereof, the said parties, by their respective counsel, now sign these presents, and declare them binding.
ALBERT BIKE, for the ,
Heirs of Cunningham.
WATKINS & GALLAGHER,
for Ashley & Beebe.”

George C. Watkins testified that the mutual inducements to the entering into the above agreement of compromise between himself and Mr. Pike, as counsel for the parties, were: That it was notorious, that, in consequence of the decision in Cunningham vs. Ashley & Beebe, much ill feeling existed on the part of those inhabitants of Little Rock, who had bought property in the east half of the south-east quarter of section 3, and made improvements, which they would, or might be required to surrender, and that feeling manifested itself in various ways. It was conceeded by Mr. Pike that in order to recover possession of lots so situated, it would be necessary for 'the heirs of Cnnningham to file supplemental bills, on the footing of the decree in that case, against such tenants in possession claiming under purchase from Ashley & Beebe. It was also claimed by deponent as law, that all the purchasers from Ashley & Beebe, who were not parties to the suit of Cunningham vs. Ashly & Beebe, who had purchased before the institution of the suit, and who had held adversely, as owners for more than ten years, had acquired a title as against the whole world by length of possession; and Mr. Pike was informed that in the event of. supplemental bills being filed, deponent would cause all such persons to be notified, on behalf of Mrs. Ashley and Mr. Beebe, to set up such length of time as a defence, or, in default thereof, to lose their recourse on them as warrantors, or privies, liable thereafter. About one-third of the joint sales of lots made by Ashley & Beebe, were made before Cunningham commenced his suit, in January, 1841.

On the other hand, it was insisted by Mr. Pike that such was not law, as claimed; and that all were liable to a forced surrender who had purchased with a knowledge of Cunningham’s claim. Deponent was fearful that Mrs. Ashley and Mr. Beebe might not be able to pay at once, or in a short time, the entire amount of their outstanding warranties, and interest, and as Mr. Pike proposed to forego all claims to all lots sold by Ashley & Beebe, and which they were not in a condition to surrender to the Cunningham heirs, and settle the warranties by taking their obligations for the aggregate amount then due, payable in installments, running through a period of several years, and bearing six per cent, interest, deponent thought it best and safest for his clients to agree to that proposition, and the compromise and adjustment above copied was the result.

Mr. Pike deposed that the inducements which mutually operated upon the counsel of the parties to enter into the compromise agreement, were correctly stated by Mr. Watkins.

It appears that the agreement was carried out by the parties, and obligations and deeds executed as therein stipulated, and that the Cunningham suit, was finally disposed of according to the terms of the agreement.

It also appears that on the affirmance of the decree in the case of Brown vs. Trapnall, by this court, in July, 1857, the heirs of. Cunningham took possession of the Brown lots, under the stipulation of the agreement in relation to them, and have since continued to hold them.

The substance and effect of the agreement is, that Cunningham’s heirs were to accept of Ashley & Beebe the purchase money and interest on sales of lots made by them (and not purchased back), instead of proceeding against the purchasers, for the lots, improvements, rents, etc., and taking the risk of limitation by adverse possession, etc. And where Ashley & Beebe wrere in a condition to surrender up the lots, they were to take them with any improvements that might be upon them, in lieu of rents, etc.

At the time the agreement was made, the Brown lots had been purchased back of him for Mrs. Ashley, but Trapnall had bought them under executions against Brown, and because the suit between them had not finally been determined, it was not known whether Mrs. Ashley was in a condition to surrender them up to the heirs of Cunningham or not. Hence the stipulation in the agreement that they were to accept the purchase money and interest, or the lots and any improvements upon them, in lieu of rent, etc , the one or the other, according to the result of the suit between Brown and Trapnall. The suit was decided, as we have seen, in favor of Brown, and they afterwards took possession of the lots, with the improvements remaining upon them (the dwelling having accidentally been burned down before the date of the agreement) under the terms and stipulations of the agreement.

The Chancellor held, and we think correctly, that, by the agreement, the heirs of Cunningham and' complainants in this suit, waived and abandoned all claim, if any they had, against Trapnall and his administratrix, etc., -for ar.y rent received by them, or by Mrs. Trapnall individually, or for any waste committed by them before the date of the compromise agreement. And the Chancellor further held, that the proof failed to show that Mrs. Trapnall received any rent, or committed any waste, after the date of the agreement, and in this conclusion, upon careful examination of the evidence, we concur.

Neither Mrs. Trapnall, nor 'her husband, nor Brown, under whom he held the lots, and to whom his estate was compelled by decree, to account for rents, was a party to the Cunningham suit; but whether Mrs. Trapnall, in her representative capacity, or individually, and her infant daughter, were properly made parties to the present bill, to execute a decree to which they were strangers, we need not decide. Nor need we decide whether the demand for rent, etc., sought by the bill to be enforced against the estate of Trapnall, was barred by the statute of non-claim.

The point above decided disposes of the case; and the decree of the Chancellor must be affirmed.

Mr. Justice FaiRchild did not sit in this case.


source: Caselaw Access Project

author: Mr. Justice CoMptoN

license: Public Domain

text:
    Haller vs. Willamowicz.
    "Where articles of co-partnership provide that one partner Bhall exclusively manage the affairs of the concern, and the other partner violates such provision by intermeddling with them, and losses are thereby sustained, they are to be borne exclusively by the intermeddling party; but upon its being shown that such acts were expressly assented to, the articles of partnership will, in a court of chancery, be considered as waived.
    Where one partner commits an injury to the individual property of the other, used in the partnership business, the damage cannot be brought into the partnership account — the remedy is by action at law.
    Partners are not entitled to charge for their services in the business, unless there is a special agreement to that effect, or one can be implied from the course of business.
    The entries made in the partnership boohs are evidence for and against each partner, unless one has been denied access to them ; and especially are they evidence when supported by the sworn answer of a partner from whom discovery is sought.

      Appeal from Pulaski Circuit Court.

    Hon. H. F. Fairchild, Chancellor.
    (IarlaND, for the appellant.
    WatkiNS & Gallagher, for appellee.
   Mr. Justice CoMptoN

delivered the opinion of the court.

This was a bill by Haller against Willamowcz, for an account of their dealings as co-partners in the tanning business. At the final hearing a decree for $583 18 was rendered against Haller, from which he appealed.

In the court below, several exceptions were taken, which are relied on here as grounds for a reversal; and in the order in which we propose to consider them, the first to be noticed is a claim urged by Haller for damages sustained by the co-partnership, in consequence of the alleged misconduct of Willamowicz.

By the articles of co-partnership it was stipulated that Haller — who was a tanner by trade — should have the charge and control of the tan yard, and the stock in it, and should devote all his time and attention to the business of the yard, bestowing his personal labor and superintendence in all its opera-, tions; and that Willamowicz should keep the books, and give his attention to the financial affairs of the concern. It is charged that, in violation of this clause of the articles, Willamowicz, against the earnest objection of Haller, employed a mechanic to build vats for the use of the yard, from whose defects, owing to the unworkmanlike manner in which they were built, and the injury done to certain tunnels in the construction of the vats, the co-partnership sustained a loss. Conceding that Haller had, according to the written stipulation between the parties, the exclusive control of the joint business; so far as regarded the process of tanning, or the preparation for it, and recognizing, as we do, the soundness of the principle, that where the partnership articles provide that one partner shall exclusively manage all the affairs of the concern, or any particular department of the business, and the other partner positively violates such provion by intermeddling where he has bound himself not to intermeddle, and the co-partnership thereby sustains losses or damages, they are to be borne exclusively by such intermeddling partner, still, on the principle, equally well established, that the articles of partnership, however stringent, are liable, in the view of a court of equity, to be qualified or waived, either pro tanto, or in whole, by the assent oí the partners, expressed or implied from the acts and transactions of the co-partnership, (Coust vs. Harris, 1 Turner & Russell, 496; (11 Eng. Ch. Ref. 209;) Story on Part., sec. 192,] the decision oí the chancellor, disallowing the claim, upon the state of case before him, was right, because it is conclusively shown by the evidence, that Haller expressly assented to the employment of a mechanic by Willamowicz to build the vats, and that they were built under his immediate observation. If he knew the vats were being improperly constructed — and he alleges he did — it has not been made to appear that he took any steps to arrest the work, or that he even communicated the fact to Willamowicz: The testimony — so far from establishing the allegations of the bill in this particular — tends to show that if damage was sustained, it was owing to the negligence of Haller, rather than to the misconduct of Willamowicz.

2. The chancellor also properly disallowed the item claimed as damage, arising from the maltreatment of the horses. According to the articles of partnership, Haller was to furnish, at his own expense, horses necessary to grind bark for the tan yard.' The horses supplied were the individual property of Haller — they did not belong to the co-partnership — and if they were injured by Willamowicz, Haller had his remedy at law.

3. By agreement between the partners, Lewis Wehl was employed to superintend the yard in Haller’s stead, and at his individual expense. The item of $372, paid him for his services, was correctly allowed as a charge against ITaller.

4. Haller was properly denied compensation for his services. Partners are not entitled to charge for their services m the care and management of the business of the co-partnership, unless there is a special agreement- to that effect, or unless such an agreement can be implied from the course of the business; and there is none such in this case.

5. There is no evidence in the record conducing to show that Haller was denied access to the co-partnership books. We cannot infer that he was not permitted to inspect the books merely because Willamowicz, as book keeper, had charge of them. It was, therefore, correctly ruled that the entries made in the books of the firm, were evidence for and against each of the partners, and especially so, when, as in Roberts vs. Totten, 13 Ark. 609, the entries were supported by the answer of Willamowicz, from whom discovery was sought.

As to the last exception, it may be remarked, that if there was error in the ruling of the court, it was not to the prejudice of Haller. IJuder the articles of co-partnership, Haller. was to be charged, at the expiration of the co-partnership, with one-half the cost of such improvements as were made upon the tan yard, as also one-half the cost of such tools as were furnished during the continuance of the co-partnership, which was $328 53; but the court charged him with one-half the actual value of the entire improvements and tools appertaining to the yard, which was $250. He was clearly chargeable with the one sum or the other, and being charged with the lesser, he was not prejudiced and cannot complain.

The decree is affirmed.

Mr. Justice Faikohild did not sit in this case.


author: Mr. Justice Fairchild

text:
    Branton vs. Branton.
    If the names of all, or any, or either of a testator’s children, or their legal representatives, be omitted in his will, he will he considered as having died intestate as to those omitted, under sections 11 and 12, ch. 180, &ould’s Digest, p. ÍOÍS, whether the omission be accidentally or purposely made.
    Is such case the will is not void, but those having possession of the estate, will be required to contribute their proportion of the distributive share of the omitted child.
    Although the statute authorizes the probate court to decree distribution according to the 11th and 12th sections of the chapter on wills, the proper jurisdiction of chancery is not taken away; and it is the peculiar province of a court of chancery to afford relief where contribution is to be made by different persons, or to different persons out of a common fund.

      Appeal from Ouachita Ovrcuit Court in Chancery.

    Hon. Lbn B. QreeN, Circuit Judge.
    Gallagher, and Ejught, for appellants.
    Hempstead, for the appellees.
   Mr. Justice Fairchild

delivered the opinion of the court.

Ephraim Branton made his last will, containing this single testamentary sentence: “ 1 give and bequeath to my wife, Susanna Branton, all my real and personal property, goods and chattels, of what nature or kind soever, to my said wife, Susanna Branton, whom I hereby appoint my sole executrix of this my last will and testament.

Ephraim Branton died leaving six children, and two children of a deceased daughter, besides his wife, Susanna Branton, mentioned in the will.

“Wilson II. Branton and Alice J. Webb, a son and daughter of the testator, with JFranldin P. Ellis and Malsy Ann Ellis, infants, by their next friend, the two last being children of Malsy Ann Ellis, a deceased daughter of the testator, preferred their bill in the Ouachita circuit court, sitting in chancery, against the widow and remaining four children of Ephraim Branton, and also against the administrator with the will annexed, in yhich they alleged the making of the foregoing will; that Ephraim Branton owned, at the time of his death, a large amount of real and personal property over what was necessary to pay his funeral expenses and debts : and they pray that the will may be declared null and void for its omission to name the plaintiffs, or other children of the testator, and that the plaintiffs may be declared to be entitled to as much of the property of Ephraim Branton as if he had died intestate.

The bill was met by a demurrer, which was overruled, and the defendants appealed to this court.

Two questions made by the appellants must.be considered: whether the plaintiffs, the appellees, are entitled to the same portions of the estate of Ephraim Branton, as if he had made no will; and whether, if so entitled, a court of chancery is a proper juris-, diction to afford them relief.

Our statute, upon which the plaintiffs rest the claim made in their bill, is a follows:

'“Ssc. 11. ’Whenever a testator shall have a child bom after the Snaking of his will, either in his lifetime; or alter death, and shallNslie, leaving such child, so after born, unprovided for by any settlement, and neither provided for, nor in any way mentioned in his will, every such child shall succeed to the same portion of his father’s estate, real and personal, as would have descended, or been distributed to such child if the father had died intestate, and shall be entitled to recover the same portion from the devisees and legatees in proportion to and out of the parts devised or bequeathed to them’by such will.
“ Seo. 12. When any person shall make his last will and testament, and omit to mention the name of a child, if living, or the legal representatives of such child, born and living at the time of the execution of such will, every such person, so far as regards such child, shall be deemed to have died intestate, and such child shall be entitled to such proportion, share or dividend oí the estate real and personal, of the testator, as if he had died intestate, and such child shall be entitled to recover from the devisees and legatees in proportion to the amount of their respective shares, and the court of probate shall have power to decree a distribution oí such estate, according to the provisions of this and the preceding section.” Gould's Digest, 1075.

The court below sxtpposed that, by the statute, the plaintiffs were entitled to the same portions of the estate of ' Ephraim Branton, their father and grandfather, as they would have been if he had died intestate, because he omitted to mention their names, or to provide for them in the will. And this would seem to be the meaning of the statute, from words so plainly expressed as to exclude all rules of construction that would give them a different interpretation.

But it is earnest^ urged in the argument for the appellants, that the statute intended to provide only for children whose names were accidentally omitted to be mentioned in a will, either from oversight in the scrivener, or forgetfulness of the testator: that if the omission to name them be purposely made, that'%ianifests an intention of the testator to disinherit his childre^ with which the law will not interfere : and that in this case, the intention is as apparent as if the testator had expressly declared that each of his children, and the children of his deceased daughter, after naming them in order, should not have any part of his estate. We do not see why this application would not follow the given construction of the statute; for, taking Ephraim Branton to be like other men, we cannot conceive how, in a condition of extremity, or in a state of health, with his mind fixed upon the event of death, and the consequent disposition of his property by his direction, he can be supposed to remember his wife as the sole object of his bounty, and utterly forget that, through her, or some wife, Providence had bestowed on him the gift of seven children, six of whom were then living, with two descendants of the seventh and deceased child. The inference seems to us to be so natural as to be irresistible, that the testator in this case, in passing by his children, and in devising all his property to his wife, intended to exclude the children from having any part of his property. And this intention must have effect if we construe the statute as the counsel for the appellants urge ns to do. This construction is supported by the argument that the law could not intend to overthrow the radical principle that a man may devise his estate to whom-he pleases ; that his will is the rule and law for itself, and by decisions made upon the statutes of other states, but resting mainly upon the decisions of Massachusetts.

The first decision of that court was made upon a statute passed in 1784, by which it was enacted, “ that any child or children, or their legal representatives, in case of their death, not having a legacy left him, her or them, in the will of their father or mother, shall have a proportion of the estate of their parents assigned unto him, her or them, as though such parent had died intestate: provided such child, children or grandchildren have not had an equal proportion of the deceased’s estate bestowed on him, her or them, in the deceased’s lifetime.” The appellants occupied the situation of the plaintiffs below in this suit, maintaining that no legacy was given to them in the will. The opinion of Sbwall, Judge, is in the following words: “ The question is, whether, under the statute, the appellants are entitled to a portion of the estate oí the testator, as though he had died intestate. This question depends upon the construction of the statute on this subject as applicable to that clause of the will in which the appellants are mentioned. The statute of 1784, is a revision of the ancient statute, but does not repeal it, they being, therefore, vnpari materia, are liable to be considered and construed together; and although the act of 1784 omits the preamble contained in the first act, yet I think it ought to be considered as applying to the new statute. 1 am of opinion, that any child or grand child, being noticed or mentioned in a will, is sufficient,.and that the statutes extend to cases of entire omission only. I am doubtful whether any legacy is given in this will to the appellants ; but I do not think it necessary to decide that question; for, whether there be or not, upon what I think is the true construction of the statute, the appellants are not entitled to come in for distribution, and therefore, the decree of the judges ought to be affirmed.” The other Judges concurred in the opinion of Sewall, J., although they thought that the appellants were not entirely omitted in the will. Terry vs. Foster, 1 Mass. R. 146.

The ancient statute referred to by Judge Sewall, was a statute of 1700; similar in its provisions to the statute of 1784, on which the case was decided. But it will be noted that the preamble of tlie statute of 1700, is referred to in a way as controlling or influencing the opinion of the judge, as he conceived that the preamble must be considered as part of the act of 1784. The Massachusetts statute must then ,be considered as dependent upon the condition contained in the preamble to the act of 1700, which is in those words: “Whereas, through the anguish of tho deceased testator, or through his solicitors, though in health, or through the oversight of the scribe, some of the testator’s children are omitted, or not mentioned in the will, many children also being born after the making of the will, though in the lifetime of the parents.” For, without the preamble, upon the words of the statute, it is difficult to imagine how such a decision as that of Terry vs. Foster could have been made, except upon the assumption that the will contained a legacy for the appellants, the words of the statute being decisive. that if a legacy was not left to a child, it should have such portion of the parent’s estate as if he had died without a will, unless the child had been advanced in the lifetime of the parent.

In Wild vs. Brewer, 2 Mass. R. 570, no legacy was given to a daughter, but her children were provided for in the will, and the court thence thought that the daughter was not forgotten, and was not entitled to a distributive portion of the estate. The same decision was made upon a like state of facts in Church vs. Crocker, 3 Mass. R. 17. In Wilder vs. Goss, 14 Mass. R. 357, the same rule of construction was applied to a daughter, the court supposing she could not have been out of the mind of her father, when the will mentioned her husband as a son-in-law, and provided for one of her children, that was named after the father.

These cases were recognized as authority in construing a statute ot New Hampshire, whose provisions are not set out in the report. Merrick vs. Sanborn, 2 N. Hamp. 499.

Although the foregoing cases acknowedge the principle that the statute of Massachusetts did not provide for a child to whom no legacy was given, unless the child was passed by from accident or forgetfulness, yet it is to be noted that, in all of the eases, there were facts upon which the courts relied to find that the alleged omissions were properly made. This rule of construction did not commend itself to universal acceptance, for in a note to Church vs. Crocker, the editor of a republication of the Massachusetts reports characterizes the decision as clearly contrary to the statute, and says that the words are so plain as to admit of no doubt of their meaning, and that all rules of construction were thence inapplicable to the statute. This, it is true, only shows the opinion of an eminent member of the profession; but a subsequent opinion of the same court is significant to show the consideration in which the series of decisions was held, in saying : The court do not mean to question the authority of the decisions which have held, as the reasonable and true construction of this statute, that it is not to be construed literally, but if it appear that the child or grandchild was fully in the mind of the testator, and was not unintentionally overlooked or forgotten, the statute should hot apply. Whatever we might have thought, if now first called on to expound the statute, the construction has been too long and uniformly adopted and settled as a rule of property to be safely overturned.” Tuckker vs Boston, 18 Pick. 166. And in Massachusetts, this whole question is avoided by an alteration of the statute law; so that by it provision is made for a child omitted in a will, unless it shall appear that the omission was intentional, and not occasioned by any mistake or accident. Rev. Stat. of Mass., 1836, chap. 62, sec. 21, page 419. And so are the statutes of New Hampshire, Vermont, Maine, Wisconsin, Iowa and California; so that decisions made upon them would afford no assistance in the construction of our own law. Yet, these statutes, although avoiding an inconsistent rule of interpretation which the preamble to the Massachusetts act of 1700 entailed, has opened the door for the reception oí parol testimony to show that an omission to provide for a child, by will, was in accordance with the intention of the testator. Wilson vs. Faskel, 6 Metc. 404; Lorieux vs. Keller, 5 Iowa Rep. 202.

Although our statute corresponded more to the old Massachusetts statute than to its lato enactmeut, if the principle of the early decisions had been intended to have been incorporated into our system of law, we think it would have been done by an adoption of the terms of the statute, as that was published before our Eevised Statutes, and must be taken to have been as well known to the Keviscrs as were the old law and its judicial interpretation.

Our statute was a continuation of the Territorial law. Sections 11 and 12 of the chapter upon Wills, copied in the early part of this opinion, embody, without material alteration, the provisions of the 4th section, under the head of Wills and Testaments, in Steele & McCampbell’s -Digest. This was from a law of the Missouri Territory, passed 21st January, 1815, and is the same law of which Tompkests, J., in Block vs. Block, 3 Misso. Rep. 411, said, that no doubt of its meaning could be entertained, which meaning was, that to cut off a child from its distributable portion of its father’s estate, the name of the child must be contained in the will. This is found in a dissenting opinion, but the decision was upon a Missouri statute in different terms from that of the Territorial and our own statutes, yet the majority of the court did remark that, the Territorial statute, which, they said, was taken literally from an earlier statute passed by the Governor and Judges in 1807, was put by the legislature expressly upon the ground that the testator, in omitting the name of his child, forgot it, and therefore the law provided for it.

But the point of difference between the other judges and TompKINS, J., was that, upon the statute under consideration, the latter held that a child that was not named, in the will and expressly excluded from any part of the estate, was not provided for in the will; while the other judges decided the contrary, holding that the words of the statute of 1825, “ not provided for in the will,” meant the same as the old statute, not named in the will: that both meant, being forgotten by the will, and that when a child was mentioned and declared to have nothing by the will, the will provided for the child. We have nothing to say upon the two constructions of the Missouri statute of 1825, as it does not fall within our province to note them, but have no hesitation in discarding the construction of the majority of the court upon the Territorial statute.

The statute of Missouri has been again changed, and in consequence of the decision of the majority of the court in Block vs. Block, as we may suppose from the alteration being made at the next session of the Legislature, so as to read: “ If any person make his last will, and die leaving a child or children, or descendants of any such child or children (in case of their death), not named nor provided for in such will,” then the same consequence was to follow as in all other acts upon this subject.

Under this act, where the name of a daughter was inserted in a will as having received a sum by way of advancement, which wras not as much as other children had received, but the daughter was dead, the mention of her name as being alive was held not to deprive her children from representing their mother, so as to receive her full portion, uiider a clause that all other children, but one otherwise provided for, should share the estate. Guitar vs. Gordon, 17 Missouri Rep. 408. While this case acknowledges the principle of the statute to have been construed to be to provide only for children forgotten, or accidentally omitted, it disclosed a successful struggle to withdraw the case, on slight ground, from the operation of the principle. For it must be evident that the n^qntion of the name of the daughter^ in the*ease under consideration, by the Massachusetts earl}7 decisions, would have placed her as having been in the mind of the testator, and would have excluded her children.

And in 1857, a case exactly corresponding to the present one, arose upon the Missouri statute, as appears by the following testamentary clause: “ Second, that my wife, Ann Bradley, be sole heir to all my estate remaining on hand after the payment of my just debts, real and personal.” The case contains a review of all the previous and different statutes of the State and Territory of Missouri, and then remarks upon the ®ne before the court thus: “ Ours is a positive enactment: no proviso to it on account of mistake or intentional omission. 1^ the name of the child is omitted in the will, and no provision made for such child, then the testator must be considered as dying, as to such child, intestate, and such child will be entitled to his proportional share, unless he has been provided for by advancement by the testator in his lifetime: and this previous advancement is the only thing- that will debar the unnamed and unprovided for child from his share. Had the testator mentioned his children, and cut each off with one cent, we should have sustained the will under our former decisions; hut there is nothing here on which we can, for a moment, withdraw this will from the operation of the 11th section of our statute above cited.” Bradley vs. Bradley, 24 Misso. R. 319.

The case does not pretend to overthrow the rule of construe, tion that the statutory provision is for the benefit of forgotten and accidentally omitted children, and even says that the will does not show, and the court does not infer from it, that the children were in the testator’s mind, though' he left several children surviving him. We approve the conclusion of the court upon the statute, and apply the same to our own statute as being too plain to admit of being construed away, which would be the effect of giving to it any other meaning than what its words plainly express. And not being bound to acknowledge the existence of an erroneous principle engrafted upon the statute, as no such has ever been announced by this court we see no principle in the statute but what is apparent upon its face, that it intended to provide for children and descendants that are not named in the will. The statute does not prohibit a man from disposing of his property according to his own will. He may give his several children more or less than his wife, may give them much or little, or none of Ms estate; but the law will treat him as a father and a man, in making a compulsory provision for his children, as in intestacy, unless he shall express a contrary intention towards everj^ child and its children, by naming it, or them, in the will.

Such is the letter, the meaning of the law: its policy we are not called upon to justify, are not disposed to condemn, if that appertained to a court. Without doubt, it is the general policy of our law, for reasons obvious, and repeated in every elementary treatise, and in almost every case upon last wills, to afford to a man the liberty of disposing of his property when he can no longer use it: but if the statute be supposed to inaugurate a new policy to the extent of its declared meaning, it ought not to be condemned by any that believe that children have claims upon parents for support and protection, and that the state is interested that unnatural, or petulant, or offended parents, for the gratification of passions that should, at most, end with life, or at the instance of unprincipled relations or fortune hunters, shall not, without restriction, throw their disinherited children upon the community as a public charge. But the law, as written, is for us to apply. It is not by construction, or by direct attack or praise, to be assailed or supported.

In Hargadine vs. Pulte, 27 Misso. R. 423, a will like that in Bradley vs. Bradley, and like the one in this case, was held inoperative to deprive the children of their portions as in intestacy.

Although the statute authorizes the probate court to decree distribution according to the eleventh and twelfth sections of the chapter on wills, the proper jurisdiction of chancery is not taken away. Hempstead vs. Watkins, 1 Eng. 317; Patton vs. Wagner, 19 Ark. 233.

This bill is to require, those that claim the estate of Ephraim Branton under the will for distribution or enjoyment, to contribute to the plaintiffs, representing three of his seven children, so that the respective portions of the plaintiffs may be made up to them as if their father and grandfather had died without will. The will is not to be annulled, is not affected in any way, only the wife, that claims under the will, or the other defendants that have possession of the estate, must contribute to the required portions allowed to the plaintiffs; otherwise than this the enjoyment of Susanna Branton, under the will, will not be disturbed, nor will the administrator, with the will annexed, be directed, in this court, to distribute the money or property in his hands otherwise than the will directs except to the plaintiffs.

Often, a suit upon the foundation of the present case, might have to call upon numerous legatees to contribute to children whose names are omitted in a will. Each legatee would be called upon to contribute a part bearing the same ratio to the portion to be raised for the omitted child as the legacy has to the whole estate. This bill is not a suit for contribution, because the demand is more simple from there being but a single legatee. It is the peculiar province of a court of chancery to afford relief when it is to be raised by contribution from different persons, or to divers persons out of a common fund. Armstead vs. Dangerfield, 3 Mun. 20; Hill vs. Martin, 3 Misso. R. 78.

The decree of the Ouachita circuit court in chancery, overruling the demurrer to the bill and declaring the rights of the plaintiffs, and providing for their discharge, is right, except in setting aside the will of Ephraim Branton. That the court should not have been asked to do. The prayer for this special relief should have been refused, and the other relief afforded under the prayer for general relief.

A decree must be entered here affirming the decree of the court below with the exception mentioned, and certified to the circuit court of Ouachita county sitting in chancery, the costs to be paid out of the whole estate.


text:
    Townsend vs. Wells.
    The agent, who pays the taxes upon land for the owner, is a competent witness to prove the payment, on a petition for confirmation by a purchaser of the land at tax sale.

      Appeal from Drew Circuit Cou't in Chancery.

    Hon. J. C. Murray, Circuit Judge.
    Winter, for appellant.
    Garland & Randolph, for appellee.
   Mr. Justice Fairchild

delivered the opinion of the court.

To a petition for confirmation of a tax title to several tracts of land, brought by Wells on the chancery side of the Drew circuit court, Townsend obtained leave to appear, and contest the tax sale of one of the pieces of land, and filed an answer setting up the fact that no taxes were due to the State on that piece of land, as the respondent, the owner of the land, paid them on the day that the land was advertised to be sold, before the hour of sale. The answer is formal, stating the main fact of defense so as to be a bar to the confirmation of the sale of the piece of land mentioned in it; and upon the hearing the respondent offered to prove the fact, and every allegation of the answer in denial of the petition, by the written statement of John S. Winter, which, by consent, was to be received as formal proof, if competent testimony.

The bill of exceptions runs thus: “ Which statement, on motion of the petitioner’s solicitor, was suppressed by the court on account of the interest of the witness arising out of his former relations with respondent, as stated in his statement.” There was no former relation between Winter and the respondent mentioned in the statement, but that Winter paid the taxes on respondent’s lands in Drew county the year that this land in controversy was sold to petitioner, and also in 1852, the year afterwards, and that he was paid for so doing.

Out of this relation no interest arose to exclude Winter’s statement. He was a competent witness for all that relation; and if the court had rebuked the petitioner’s solicitors for interposing a frivolous objection to the competency of the testimony, we should have approved its course. But as the court sustained the objection, and the respondent had no other witness by whom to establish his defense, we reverse the decree, and remand the case for further proceedings according to law.


author: Mr. Chief Justice English

text:
    Kelly vs. Dooling.
    Whether an instrument of writing is a deed, or bond for title, must be determined by the intentions of the parties derived from the whole instrument — one containing words of grant with a proviso for payment of the remainder of the purchase money, and a covenant to convey, on such payment, by deed'with general warranty, declared a bond for title, or agreement to convey.
    It is a good defence to an action for the purchase money that the vendor had no legal title to the land, and it may be made by general demurrer. (Lewis vs. Davis, 21 Ark. 235.)

      Appeal from Phillips Circuit Court.
    lion. Mark W. AlexandeR, Circuit Judge.
    Pike & Son, for appellant.
   Mr. Chief Justice English

delivered the opinion of the court.

This was an action of debt, brought by Thomas J. Dooling against Joshua M. Kelly, on a writing obligatory for §1,625, bearing date 16th November, 1857, and due 1st January, 1860.

The defendant filed two pleas, the first, in substance, is as follows:

That on the 16th November, 1857, the date of the obligation sued on, the plaintiff sold and agreed to convey to the defendant a plantation, embracing certain lands (which are described) for the sum of §6,250, on which the defendant was to pay, and did pay, §3,000 cash in hand, and the remainder in two equal annual instalments, for which he executed two obligations for §1,625 each, due 1st January, 1859, and 1st January, 1860, the first of which he had paid. That the plaintiff, at the time of the sale, 16th November, 1857, by his contract and agreement in writing, of which proferí is made, agreed that when the defendant paid said obligations, he would make him a good an.d sufficient deed for said lands. That the plaintiff purchased the lands from one Wm. Cail, leaving a portion of the purchase money unpaid, and took from him an obligation, as follows: sory notes in two equal instalments, the one payable on the 1st day of January, 1854, for the sum of one thousand dollars, the other and remaining thousand dollars due and payable on the 1st day of January, 1855, the following tracts of land, lyingj situate and being in said county of Phillips, and State of Arkansas, and designated on the plats of public surveys, as the south-west quarter, etc., etc., [here the lands are described,] with all the rights, privileges and appurtenances thereto belonging, to have and to hold the aforegranted premises, with the improvements thereon, and appurtenances thereto belonging,unto the said Thomas J. Dooling, his heirs and assigns, in fee simple for ever; provided, that the said Dooling, his heirs and assigns, shall pay, or cause to be paid unto the said William Cail, his heirs or assigns, at their maturity, the aforesaid two promissory notes for two dollars, bearing even date herewith, then, and in that case, the said William Cail, for himself, his h.eirs and assigns, hereby covenants to, and with the said Thomas J. Dooling, his heirs and assigns, to convey said above tracts of land to the said Thomas J. Dooling, his heirs or assigns, by general warranty deed, said Dooling to have possession of the premises and tracts of land at and from the date hereof, and to have and enjoy all the rights and profits to the same belonging or in any manner appertaining. In testimony whereof the said William Cail has hereunto set his hand and seal, the day above and before written.

“ Know all men by these presents, that I William Cail, of the county of Phillips, and State of Arkansas, have, this 1st day of February, 1853, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto Thomas J! Dooling, of the county and State aforesaid, for and in considetion of the sum of three thousand dollars, to be paid as follows, to wit: one thousand dollars before the signing, sealing and delivery of this instrument, and the said Thomas J. Dooling has, for the remaining two thousand dollars, given his promis-

WILLIAM CAIL, [seal.]”

Which agreement and obligation (the plea continues) was duly acknowledged and recorded, etc., etc. And defendant further avers that he has never received from the said plaintiff any sufficient deed for said lands, or any part thereof; that the said Wm. Cail has departed this life, and defendant has been notified by the legal representatives of said Cail not t.o pay to said plaintiff the said sum sued for in this suit, and the said plaintiff hath not paid to said Cail or bis said representatives, the purchase money for said lands, and that they will not make to said Dooling, or to this defendant, any title or deed of conveyance for or to said lands, or any part thereof: and so this defendant says that he has not received, and cannot receive from the said plaintiff any sufficient deed of conveyance or title to or for said lands, or any part thereof, and that the consideration for which said writing obligatory was given and executed has failed: and this defendant is ready to verify, etc.

To this plea the plaintiff interposed a general demurrer, which the court sustained.

The second plea averred a tender on the - day of February, 1800, on condition that Dooling would make a good and sufficient title, with allegation that he did not make such title, and had since failed to do so. Replication, that he did execute, acknowledge and tender on the 11th of February, 1860, a good and sufficient deed in fee simple, whereof proiert is made, and the same filed in court, and that Kelly refused to accept it and pay the debt. Rejoinder, confessing all this, and avoiding by the allegation that he did not tender a good and sufficient title, because he had not such title, for the same reasons stated in the first plea, to which reference is tnade for the title from Cail, with positive averment that the legal representatives of Cail absolutely refuse to make Dooling any further title, on the ground that he had not paid the purchase money; and with a further averment that Kelly is ready and willing to pay, whenever Dooling can make him a good and sufficient title.

A demurrer was sustained to the rejoinder, the defendant declined to plead over, and final judgment was given in favor of the plaintiff for the amount of the obligation sued on, and the defendant appealed.

The pleadings present but one question for decision, and that is, whether the instrument executed by Gail to Dooling, as set out in the first plea, and referred to in the rejoinder-to the replication to the second plea, is to be construed to be a deed, vesting in Dooling the legal title to the lands, or as a mere bond for title.

Looking at the whole instrument, and deriving the intention of the parties from all of its provisions construed together (Sheppard’s Touchstone, 87), we think it can be regarded as nothing more than a bond for title, or agreement to convey, on payment of the remainder of the purchase money, such instruments being in common use, in our system of conveyancing, where lands are sold upon credit, though it is not usual to find them so unskilfully drafted.

If the parties intended the instrument as an absolute conveyance of the land, why insert the proviso for the payment of the remainder of the purchase money? Or if the instrument was intended as a deed upon condition, to become absolute, and vest the legal title in the purchaser, upon the payment of the remainder of the purchase money, without any further act to be done by the vendor, why insert the clause that the vendor, upon full payment, etc., was to convey the lands to ths vendee by deed with general warranty?

Similar instruments have been construed to be bonds for title. Lafferty vs. Whiteside's Lessec, 1 Swan 124; Curtis vs. Root et al., 20 Ill. 529; Ellis vs. Jeans et al., 7 California 409.

Dooling having no legal title to the land, was not in a condition to make title to Kelly; hence the defence to the action was good, upon general demurrer, according to the principles settled in Lewis vs. Davis et al., 21 Ark. 235.

The judgment must be reversed, and the cause remanded, with instruction to the court to overrule the demurrer, etc.


author: Mr. Justice Compton

text:
    State vs. Kline.
    The qualified voters of a city having elected the mayor and other municipal officers! before the passage of the act of incorporation, it is within the constitutional power of the Legislature to appoint the persons, so intended to be elected, officers of said corporation, and to declare their acts as such legal and binding in every respect — such action on the part of the Legislature does not violate that provision of the constitution which prohibits the passing of ex post facto laws, or of laws impairing the obligation of contracts.

      Error to Desha Circuit Court.

    Hon. John C. Murray, Circuit Judge.
    Garland & Randolph, for plaintiff.
    Clayton, for the defendant.
   Mr. Justice Compton

delivered the opinion of the Court.

The qualified voters of the city of Napoleon, elected a mayor and other municipal officers, on the 3d day of January, 1859, believing that the Legislature had passed an act incorporating the city, and authorizing an election to be then held. Ascertaining, however, that the act of incorporation was not passed until the 24th day of that month, application was made to the Legislature, and, on the 21st day of February, 1859, an act was passed, entitled “ an act for the relief of the citizens of Napoleon;” which, after reciting the election of Cyrus L. Kline, as mayor, and certain other municipal officers, and that in consequence of the “ delay in passing ” the act of incorporation, the validity of said election was doubtful, enacts, that the said Cyrus L. Kline, and other officers, intended to be elected under the charter, approved 24th January, 1859, be and are hereby appointed to fill the respective offices in said city, to which they were so elected as aforesaid, and for the time of their said election, without further commission or qualification and that the acts of said mayor, city council and constable, be legal and binding in every respect, the same as if said election aforesaid had been legal.”

On writ of quo warranto, issued against Kline, the Circuit Court decided that the act of 21st February, 1859, was not unconstitutional, and that Kline held the office of mayor by legal authority: and the decision was correct. That provision of the constitution which declares that no ex post facto law shall be passed, applies exclusively to criminal laws (Taylor vs. The Governor, 1 Ark. 21); and .that provision which prohibits the enactment of any law. impairing- the obligation of contracts, has no application to a case like this. The city of Napoleon was a public corporation, and the right of the Legislature to create, alter, regulate, or abolish public corporations, is a principle inherent in their very nature. They are auxiliaries of the government in the. business of municipal rule, and must necessarily be and are subject to the absolute control of the Legislature. They have no pretension to sustain their privileges or their existence upon any thing like a contract between them and the law making power. Angel & Ames on Corp. (4 ed.) p. 28, and authorities there cited. The proposition that a statute is void merely because it is in terms retroactive, cannot be maintained. True, as a rule of construction, the effort of the courts is-always to give statutes a prospective effect; but where, as in this case, a retroactive effect is expressly and clearly intended, and the enactment does not fall within any of the recognized prohibitions upon legislative power, it would be an unwarrantable exercise of judicial authority to say it should not have that effect. “ There is, indeed, a large number of cases,” says Mr. Sedgwick, “ in which appeals are` made for legislative relief or assistance, in which it would be very injurious to assert the doctrine that the Legislature is incompetent to pass laws having a retroactive effect. Such are laws declaring valid acts of official persons irregularly elected; amending charters of incorporated companies; correcting assessment rolls irregularly made; extending the time for collection of taxes and for reports required by law; altering and amending judicial procedure. In these, and many other cases, it is difficult to avoid giving the acts of the Legislature a retroactive effect; and every such effect must or may influence injuriously some individual case. But the interests of the community are paramount. These cases are not treated as touching vested rights, and the power of the Legislature is admitted.” Sedgw. on Stat. & Con. Law, page 118; Walter vs. Bacon, 8 Mass. 468; Davison vs. Johonnot, 7 Metc. 396; Locke ad. vs. Dane 9 Mass. 362; Syracuse City Bank vs. Davis, 16 Barbour (S. C.) 188.

Finding. no error in the record, the judgment must be-, in all things, affirmed with costs.

Absent Mr. Justice Fairchild.


text:
    Pate ad. vs. Mitchell.
    The covenant of seizin in a deed of conveyance is broken as soon as made, where the grantor, at the time of the conveyance, has no title, and the grantee may-purchase in the outstanding title without waiting until disturbed in his possession; and in such case may recover of the grantor the reasonable price which he has fairly and necessarily paid for it; but in the absence of proof of the value of the title, he can only recover nominal damages, not the amount which he may have paid for it.

      Appeal from Desha Circuit Court.

    Hon. John C. Murray, Circuit Judge.
    Weatherford, for appellant.
   Mr. Justice Compton

delivered the opinion of the court.

Thomas II. Tindall, by deed dat.ed 17th January, 1857, conveyed to Joab Mitchell a tract of land. The deed contained a covenant.of seizin, for breach of which the action in this case was brought.

At the trial — which was before the court sitting as a jury— it appeared in evidence that, at the time the deed was executed, the title to a part of the land was not in the grantor, but was outstanding, and that the grantee afterwards bought it. The court found for the plaintiff, and assessed his damages at $2,180, being the amount, with interest, paid out by him to perfect his title, as ascertained by the court, and rendered judgment accordingly; from which the defendant appealed to this court, and insists here, that, upon the evidence in the record, the plaintiff is not entitled to more than nominal damages.

Though the covenant of seizin is broken as soon as made, where the grantor, at the time of the conveyance, has no title (Logan vs. Moulder, 1 Ark. 313); yet, it has been held, in tome of the sister States, and is doubtless the law, that if the grantee has remained in undisturbed possession until it has ripened, under their limitation acts, into a valid title, nominal damages only will be allowed for such technical breach of the: covenant. Rawle on Cov. 101, and authorities there cited. In this case, however, there was no such length of possession by the grantee, before he purchased the paramount title, as would have barred that title, under our limitation act, had it been asserted; consequently We need make no decision upon the point.

But, upon another ground, the plaintiff has failed to make out a case, entitling him to more than nominal damages. Although the grantee is not bound to wait until he has been disturbed in his possession, but may purchase in the outstanding title, and recovér from the grantor the reasonable price which he has fairly and necessarily paid for the same, it is, nevertheless, incumbent on him to prove not only the amount paid, but that such payment was the reasonable value of the interest acquired. Anderson vs. Knox, 20 Ala. 156. He cannot recover more than the price paid, with interest from the time of payment, but may recover less, as the proof may show that the title bought in was not worth the amount paid, or could, have been bought for less. Harlan vs. Thomas, 15 Pick. 69; Mitchell vs. Hazen, 4 Mass. 412. In order to recover more than nominal damages, the onus is on the plaintiff to show what the outstanding title was worth; and the fact that he paid a given sum for it, cannot be regarded as evidence of its value. In Anderson vs. Knox, supra, it was said that such payment was an act done, in which the grantee and the party holding the paramount title were alone the actors; that the grantor was neither a party, nor privy to it; and that, as to him, “ it was clearly res inter alias acta, and according to the established rules of evidence, inadmissible to fix the amount with which he should be charged, but allowable only as a fact, which, if connected with proof of its fairness, would entitle the (grantee) to recover the sum paid.”

In the case before us, there is no evidence tending to show that the price paid by Mitchell for the outstanding title was fair and reasonable, or what the title thus acquired was worth; and for this reason the finding of the court was erroneous, and the judgment must be reversed.

Absent Mr. Justice Fairchild.


author: Mr. Chief Justice English,

text:
    Biscoe vs. The State.
    The deed of trust, executed by the Real Estate Bank having expressly and plainly fixed the compensation to be allowed the trustees for their services in the execution of the trust, they clearly had no power, by an order passed by themselves, to increase it.; and though it was within the power of the Chancery Court to allow additional compensation, if they had shown a faithful and efficient performance of the duties imposed by the deed, and that the compensation was inadequate, no additional compensation should be allowed where they have not faithfully performed their duties.

      Appeal from Pulaski Chancery Court.

    Hon. II. F. Fairchild, Chancellor.
    Watkins & Gallagher, for the appellant.

      Hemestead, for the appellee.
   Mr. Chief Justice English,

delivered the opinion of the court.

The bill in this case was filed by the state, against the trustees and officers of the Beal Estate Bank, to divest them of the trust, and to compel them to account for the assets which came into their hands under the deed of assignment, made by the bank 2d of April, 1842.

Henry L. Biseoe, the appellant, was one of the original, and also one of the residuary trustees, and acted as such from the time of the execution of the deed, until 20th of April, 1855, when the trustees were removed by an order of the JPulaski chancery court, made in this suit, and the assets placed in the hands of a receiver, to be administered under the direction of the court; which order was confirmed by final decree, from so much of which, and from so much only, as relates to the compensation allowed Biseoe for his services as trustee, he appealed.

■ The assignment was made to fifteen trustees, who were to be succeeded, in the execution of the trust, by five residuary trustees.

The portions of the deed relating to the compensation of . the trustees, are as follows:

“ And it is further hereby declared and agreed, by and between the parties to this agreement, that each of said trustees, and their successors, shall give bond, with security, approved, etc., etc., in the sum of etc., conditioned for the faithful performance of all duties imposed upon them under and by virtue of these presents, and for the faithful execution of the trusts hereby created; and that for and during the full space and term of two years from the date of these presents, there shall be five committees of said trustees, each to consist of three members, and each to act as agencies of said trustees, one committee at each place where the principal bank and branches of. said bank are now situate; and that the following named trustees shall constitute said committees, to-wit: The committee at Little Bock shall consist of James S. Conway, Carey A. Harris and Sam 0. Boane; at Columbia, of Sandford C. Faulkner, Anthony H. Davies and Silas Craig; at Helena, of Henry L. Biscoe, William F. Moore and' John Preston, jr.; at /Washington,. of Daniel T. Witter, George Hill and Enoch J. Smith; and at Yan Burén, of John Drennen, Bobert S. Gibson and Lorenzo N. Clarke.
“ And it is hereby further declared and agreed, by and between the parties to these presents, that the duties and powers of each of said committees shall be to take charge of the books and papers of the respective offices of said bank, to attend to the arrangement and collection of debts due said bank; and the taking and renewal of notes; to determine upon the sufficiency of security offered; to make settlement with the officers and agents of said offices respectively; to pay out all deposits now on hand, and all balances due to officers; and generally to do, perform, and exercise all such acts, duties and powers, as said trustees may lawfully, and in their discretion delegate to them as committees and agencies; that the members of said committees shall act without any compensation, except when actually engaged in the performance of the trusts aforesaid, when each shall receive as his compensation, the sum of three dollars for every day during which he shall be so engaged: Provided, however, That no member of said committee at Little Bock shall be entitled to charge for more than one hundred and eighty days in any one year, and that no member of any other committee, shall be entitled to charge for more than seventy-five days in any one year.
“And it is hereby further declared and agreed, by and between the parties to these presents, that there shall be an executive board of said trustees, to consist of one member from each committee, who shall meet at the city of Little Bock, at least twice in each year, on the first Mondays in June and December, and at any and every other time when two members thereof shall call a meeting and notify the residue thereof; that the members of said executive board shall receive, in full pay for their services, the same compensation as is now allowed to the members of the central board of said bank, and such other traveling expenses as may be necessarily incurred in the discharge of their duties; that thé duties of said executive board, shall be, to make settlements, pay off liabilities, and do all other acts and things, and exercise all powers, which, by this deed, said trustees are authorized to do and execute, in the name of said trustees, or otherwise howsoever, and which are not, by these presents required to be done by, or conferred upon said committees, or which may not be by said trustees delegated to said committees; that each committee shall, whenever any funds are received, forward the same to said executive board, and that each committee shall report to said executive _ board, at each regular meeting of said board, or as often as they may be required by said board to do so, a full statement of their proceedings, and of the condition and situation of the affairs entrusted to them.
“ And it is further agreed, by and between the parties to these presents, that until the first day of July next, or until their successors are elected, as hereinafter provided, said executive board shall consist of the following members, to-wit: Carey A. Harris, Henry L. Biscoe, Sandford C. Faulkner, Daniel T. Witter and Lorenzo N. Clarke, who shall immediately enter on the discharge of their duties; and that previous to said first day of July next, each committee shall elect one of its number a member of said executive board; and from said first day of July next, said executive board shall'remain unchanged, except a vacancy is caused by removal, resignation, death, or otherwise, until the expiration of two years from the date of these presents, that each committee shall be authorized to fill any vacancy in its own number, and in its representative in the executive board, during said term of two years from this date, the concurrence of two members, being in every case necessary to a choice.
“ And it is further declared and agreed, by and between thé parties hereto, that, at the expiration of two years from the date of these presents, the said trustees or a majority of them, shall meet at Little Rock, on a day to be fixed by said executive board, and there elect five of their own number, who shall thereafter be sole trustees, and receive thereafter the samé compensation hereby provided for said executive board: three of whom shall thereafter remain at Little Rock: and that said residuary trustees shall thereafter fill any vacancies occurring in their own number, by election; the concurrence of three members being in every case necessary to a choice; and that each of said committees shall, immediately on the expiration of said term of two years from the date of- these presents, forward to said residuary trustees at Little Rock, all the books, papers, records, funds and assets, effects and property, of said bank in their hands; and the duties of said committees shall then cease and determine.”

The compensation allowed the members of the central board oí directors, etc., of the bank, as fixed by an ordinance of the board, was as follows :

Ohap. 9, seo. 1. The members of the central board, and of the finance committee, shall be entitled to receive four dollars per day, for each day engaged in business, including the number of daj^s usually required to travel to and from their offices to the principal bank; also three dollars for every twenty miles of the distance necessarily traveled, estimated by the- nearest land route, to be paid them upon accounts and receipts.”

The action of the trustees in relation to their own compensation, as it appears in the record before us, is as follows:

At a meeting of the trustees held November 16th, 1842, it was resolved: “that, the pay of members of the board of trustees, when called together by vote of the executive board, be three dollars per day, including a reasonable time for traveling to and from-Little Rock, and mileage as provided for by the deed of assignment, and the allowance for the time of travel to and from each office, shall not exceed four days coming to Little Rock, and four days for returning at any one meeting.”

On the-7th June, 1843, at a meeting of the executive board, present, Henry L. Biscoe, chairman, Sam. C. Roane, S. C. Faulkner and John Drennen, the following order was passed:

“ Ordered,,• That the board understand that each trustee has the right to charge for his servicés in full, the amount allowed by the deed; such compensation being at best but inadequate to pay for thé trouble and labor incurred by each, and that the same can be drawn for quarterly by each.”

On the 6th of April, 1844, at a meeting ot the residuary trustees, present, Henry L. Biscoe, chairman, George Hill, S. 0. Faulkner, John Drennen and Ebenezer Walters: “ Ordered, that there shall be four regular meetings of the board in each and every year, on the 1st Monday of January, April, July and October. That Messrs. Ebenezer Walters, Henry L. Biscoe and Sandford 0. Faulkner, shall, until the further order of this board, remain at Little Rock to constitute a board for the transaction of business; and if either of them be absent at any time, he may be called to attend any meeting by the others, or by the cashier and secretary.”

At a meeting held 15th November, 1844, present, Ebenezer Walters, chairman, John Drennen and S. 0. Faulkner, the following order was passed:

“Ordered, That the pay of each of'the residuary!rustees for daily compensation and ordinary travel, shall not exceed seven hundred and fifty dollars ($750) per year.”

Hpon the face of this order it would seem to have boen intended as a measure oí economy; and to limit the aggregate amount of per diem, etc., to be taken by each trustee as compensation for his services, under the provisions of the deed of assignment, to $750 per annum. But it appears that it was not so regarded by the trustees. On the contrary, they treated it as an allowance to themselves of a salary of $750 per annum for their services, without regard to the number of days occupied by them in attending the meetings of the board, and performing the duties of the trust, as contemplated by the deed. And accordingly Biscoe was allowed a credit upon the books of the bank, in discharge of his indebtedness, of $750 per annum from the time of the adoption of the order to the time of his removal by the chancellor. His account was so made out, from the books, by ¥m. JVÍ. Gouge and ¥m. R. Miller, accountants, appointed by the governor, imder the act of January 15, 1855, to investigate the affairs ot the bank, etc.

But the chancellor made an order, referring the matter to a special master, with directions to re-state the account “by allowing him only the per diem pay provided for in the deed of assignment, for the number of days he was shown by the evidence on file to have been in attendance at Little Rock, in the performance 'of his duties, instead of the annual compensation of $750, included in the accounts made up in the abstracts, etc.”

The special master accordingly, re-stated and reported Biscoe’s account, as directed by the chancellor; it was approved, and a decree rendered .against him for the balance thus ascertained to be due from him to the trust.

He excepted to the order of the chancellor giving the direction above referred to, and to so much of the report of the special master as related to the compensation allowed him.

The deed under which the appellant accepted the trust, expressly and plainly fixes the compensation to be allowed the trustees for their services in the execution of the trust; and they clearly had no power, by an order passed by themselves, to increase it. If they could yote themselves a salary of $750 per annum, without regard to the number of days employed by them in attending the meetings of the board, for the performance of their duties, they could have voted themselves any other sum, however large and unreasonable.

Where the instrument creating the trust fixes the compensation of the trustee, it must prevail. Burr on Assignments, 514; Miles et al. vs. Bacon, 4 J. J. Marsh., 463; Kendall vs. New Eng. Carp. Co., 13 Conn., 392; McMillen vs. Scott, 1 Munroe, 151.

The acceptance of the trust was voluntary, and not compulsory, and if the compensation stipulated to be paid in the deed of trust, was too small, the trustees were under no obligations to accept it: or having accepted the trust, if they found the compensation inadequate to the labor required of them, they had the privilege of ridding themselves of its burthens by resigning.

If, however, experience had proven that the services of competent and efficient men could not be procured for the compensation fixed by the deed, and that the faithful execution of the trust was likely to fail for want of the services of such persons, we doubt not but that it would have been competent for a court of chancery, having jurisdiction of the trust, upon a proper application, to have made an order for additional compensation.

Nor do we doubt but that it would have been within the power of the chancellor to have allowed the appellant additional compensation, even to the extent oí the sum with which he had been credited annually upon the books of the bank, had he shown that he had faithfully and efficiently performed the duties imposed upon him by the deed of assignment, and that the compensation fixed by the deed was inadequate.

In Barney vs. Saunders et al. 16 How. U. S., the court said : “ In England, courts of equity adhere to the principle which has its origin in the Homan law, ‘that a trustee shall not profit by his trust,’ and therefore that a trustee shall have no allowance for his care and trouble. A different rule prevails generally, if not universally, in this country. Here it is considered just and reasonable that a trustee should receive a fair compensation for his services: and in most cases it is gauged by a certain per cent-age on the amount of the estate * * * But on principles of policy as well as morality, and in order to insure a faithful and honest execution of a trust, as far as practicable, it would be inexpedient to allow a trustee who has acted dishonorably or fraudulently the same compensation with him who has acted uprightly in all respects. xYnd there may be cases where negligence and want of care may amount to a want of good faith in the execution of the trust, as little deserving of compensation as absolute fraud.”

Here the chancellor refused to allow the appellant any greater compensation than that which was stipulated for in the deed. The chancellor was of the opinion that the appellant, and other trustees, had not faithfully and efficiently performed their duties, and were not executing the trust with fidelity' — indeed, he was of the opinion that they had abused the trust. Hence he removed them, and placed the assets in the hands of a receiver to be administered, etc. The chancellor also found that by the negligence of the trustees, a part of the trust property had been lost, and charged the appellant with a considerable sum as his portion of the loss. He acquiesced in so much of the decree as removed him from office for want of fidelity, and in so much as required him to contribute to make up the value of property lost by the negligence of him and his co-trustees; and yet he asks us to reverse that portion of the decree in which he was refused, by the chancellor, greater compensation for the services performed by him than that fixed by the deed.

It seems that his per diem, mileage, etc., for attending the meetings of the'board, amounted, according to the report of the special master, to about $590 50; while his compensation at a salary of $750 per annum, with which he obtained credit upon the books of the bank, amounted to over $8,000.

The amount of compensation, under the provisions of the deed, was made to depend upon the number of. days'spent by the trustees in attending the meetings of the board, the distance traveled, etc., and if the reward thus offered them was an inducement to diligence in attending the meetings, its effect, it may be supposed, was in some degree lost, by the order which, as practically construed by them, gave them an annual salary of $750, regardless ot the number of days employed by them in the performance of their duties at the place, and in the manner contemplated by the deed.

It is true that the appellant says, in his answer, that he performed services for the trust when not attending the meetings of the board of trustees; but if he had a claim to additional compensation on account of such services, we find in the record before us no evidence of their character and extent.

The decree must be affirmed.

lion. H. F. Fairchild did not sit in this case.


text:
    State vs. Shall ad.
    A plea of the statute of non-claim, filed by an administrator in a chancery ease where there are several defendants, may be allowed at the time of argument or may stand over until the final hearing of the cause. But if the court sustain the plea at the argument, and render a final decree dismissing the defendant,' after the lapse of the term the decree passes beyond the control of the chancellor.

      Appeal from Pulaski Chancery Court.

    Hon. H. F. Fairchild, Chancellor.
    Hempstead, for the appellant.
    Watkins & Gallagher, for appellee.
   Mr. Chief Justice English

delivered the opinion of the court.

This is a branch of the suit 'of the State against the Trustees of the Real Estate .Bank, and connects with Bisooe m. State, ante.

Ebenezer Walters became one of the residuary trustees, by appointment, 5th of April, 1844, and remained such to the time of his death, 14th' June, 1849. Having left a will on the 10th July, 1849, letters testamentary were issued to his executor, Thomas W. Newton, by the probate court of Pulaski county. Newton died 22d September, 1853; and on the 12th of April, 1854, David E. Shall was appointed administrator of Walters, with the will annexed,'and as such was made defendant'to the bill: which was filed, and subpoena issued 1st May, 1854.

On the 10th of June, 1854, Shall filed a plea setting up the death of Walters, the grant of letters testamentary to Newton, the death of Newton, and the grant of letters of administration to himself, and averred that the demand or cause of action set out in the bill had not been properly authenticated and presented for allowance against the estate of Walters, to Newton or himself, according to the administration law, and relied upon the statute of non-claim as a bar to the suit.

On the 17th of August, 1855, the plea was set down for argument, and was argued on the 6th of November, 1855, and the chancellor being of opinion that the plea was sufficient, and ought to be sustained, and the State declining to reply thereto, a final decree was rendered on the plea, discharging Shall, dismissing the bill as to him, and adjudging costs against the State.

A.t a subsequent term of- the court, on the 24th June, 1859, before final decree, the State, by her solicitor general; moved the court for a rehearing and reconsideration; and for the setting aside of the order or decree, setting the plea down for argument, and adj udging the same sufficient, and that the plea be held insufficient; and also moved that a decree be rendered against Shall, as administrator of Walters, for $2,438 49, in gold and silver coin, with interest, found due by the report of William E. Wait, special master; and also for $2,365, in gold or silver coin, found to be due from Walters, by the report of A. F. Woodard, special master. And the following reasons were assigned, viz:

1. The plea should have been ordered to stand, umtil the final hearing of the cause, and Shall could not be discharged under it if good, until the final hearing.

2. The order discharging Shall, on the plea, was prematurely made, and inadvertently entered, etc.

3. The plea presents no 'matter in bar of the suit, as against Shall, etc.

4. The order was made without due consideration, etc.

The court overruled the motion on the grounds that the order discharging Shall was a final decree in bar, upon plea, and that the decree had passed beyond the control of the court. The court proceeded to render a final decree, disposing of the cause as to the other parties.

The State appealed from the judgment of the court, refusing to set aside the decree discharging Shall, etc., as moved by the solicitor general.

The plea of Shall was in bar, and went to the whole bill, and the order of the court discharging him, was in form and effect a final decree, o as to him, and'was doubtless intended so tobe by the chancellor.

Whether the court would allow the plea at the time of the argument, or let it stand over to the final hearing of the cause, was a matter of practice. Story Eg. Pl., sec. 697; 2 Dan. Ch. Plead. & Prac., 799, 800.

It had the power to allow the plea at the argument, and to render a final decree discharging Shall, as it did; and after the lapse of the term, the decree passed beyond the control of the chancellor, as he correctly held, on the motion for rehearing, made on behalf of the State, several years after the decree was rendered. Brooks vs. Hanauer, 22 Ark., 176; Campbell vs. Garvin, 5 Ark., 455; Ashley vs. Hyde et al. 1 Eng., 101; Rawdon et al. vs. Rapley, 14 Ark., 203; Reif et al. vs. Conner, 5 Eng. 241; Hubbard vs. Welch, 6 Eng., 151; Cossitt et al. vs. Biscoe, 7 Eng. 95; Mayor vs. Bullock, 1 Eng. 282; Miller vs. Hemphill, 4 Eng. 488.

The decree being final, the remedy of the State was to appeal therefrom, during the term of the court at which it was rendered, or to apply to this court, or one of its j udges, within one year after the decree, for an order granting an appeal. Dig., ch. 28, sec. 146-7.

■ The court did not err in overruling the motion to set aside the decree, and for a re-hearing upon the plea, the motion being too late; and this disposes oí the only question legitimately presented upon the appeal.

Affirmed.

Hon. H. F. Fairchild did not sit in this case.