author: Mr. Justice Fairchild Mr. Chief Justice English and Mr. Justice Compton.

text:
    Apperson & Co. vs. Ford et al.
    The defendant purchased lands, for R., of S. and F. &B., agreeing with S. to stand in the place of R. if he did not ratify the purchase: R. declined to take the lands and conveyed them to the defendant, who assumed to pay and did pay the purchase money; the defendant was a member of the firm of F. & B., though not interested in the lands nt the time of the purchase, but afterwards retired from the firm, settling up his co-partnership business and accounting for the unpaid installments of the purchase money. Afterwards, F. & B. became indebted to the plaintiffs, who caused an attachment to be laid on the lands, bought them under'execution, and filed a bill against the defendant, who was in possession of the lands, praying that his deed be canceled, and that the title be vested in them, on the ground that the sale was a contrivance to defraud the creditors F. & B:

      By the Qourt: Upon a careful examination of the allegations and proof, we find no evidence showing that the 'defendant, who was not a voluntary grantee of the lands, and who had the right to take the place of S. as against the vendors, when he declined to take the lands, is chargeable with any fraud in the purchase of the lands, or with being engaged in any scheme to appropriate them to himself without consideration, or to the disadvantage of subsequent creditors of F. & B., or of any person.

      By Mr, Justice Fairchild: A court of chancery will not interpose its assistance to support a mere legal right, but in two classes of cases — as where ajudgment creditor being unable to make his debt by execution, seeks to Bubjeet to its payment a debt, or thing in action, or equitable right or interest, which the common law remedy cannot reach ; and where his judgment, or execution, is a lien on property covered by a fraudulent conveyance, or by a mortgage or incumbrance which he is willing to redeem or remove.
    Where a party has purchased lands under ajudgment and execution, which have been fraudulently conveyed to a third person, he may appeal to the suppletory jurisdiction of a court of chancery, asking that the deed be pronounced fraudulent, so that he may perfect his lien by legal proceedings.
    It is apparent, upon principle and authority, that a bill setting forth a legal claim to lands of which the plaintiff is not in possession, against the claim of one in possession, cannot be sustained, either as a bill for general relief, or as a bill to remove a cloud from the title of the plaintiff under the quia timet jurisdiction of a court of chancery, though it allege that the title which clouds that of the plaintiff was a contrivance to defraud creditors]
    The cases of Ringgold vs.Waggoner, 14 Ark. 69; Mitchell vs. Fitter, 22 Ark. 184, and Shell vs. Martin, 19 Ark. 141, commented upon — the decrees in the first two approved, in the latter disapproved.

      Appeal from Phillips Circuit Court in Chancery.'

    Hon. Charles C. Farbelly, Special Judge.
    "Wateins & Gallagher and Garland & Kandolph, for appellants.
    Pike and Hempstead, for tbe appellees.
   Mr. Justice Fairchild

delivered the opinion of the court.

Previous to the 16th of December, 1853, Smith, and Ford & Brother, a commercial firm of Louisville, Ely., were joint owners of the lands that are the subject of controversy. William Gr. Ford, not one of the firm of Ford & Brother, on that day, made an agreement with the owners of the lands to purchase them for Keid, under which James W. Smith, and James Ford and Charles F. Ford, on the 1th of January, 1851, executed a deed for the lands to John Beid, for the expressed consideration of eleven thousand, four hundred arid eighty dollars, one-fourth to be paid down, and the other fourths, in one, two and three years from the first of January, 1851. Beid declined to ratify the purchase, and on the 27th of January, 1851, he conveyed the lands to William Gr. Ford for the consideration of one dollar, the deed also containing this provision: “ the lands above described were, by deed, on the 1th January, 1851, conveyed “ to the party of the first part by James W. Smith and James “ Ford and Charles F. Ford, the consideration of said convey- “ anee purporting to be for the sum of eleven thousand four hundred and eighty-two 32-100 dollars, one-fourth of which “ was in hand paid, and the balance to be paid in equal pay- “ ments of two thousand eight hundred and seventy 58-100 “ dollars; for which, it appears to be recited in the deed that notes were executed payable in eighteen fifty-five, 1856 “ and 1857: it is agreed between the parties to this indenture, “ that the lands herein conveyed are liable for the payment of “ the three notes above named; and in no event are the parties “ of the first part to be held liable for the. payment. of the same.”

Ford & Brother acquired their title to one-half the lands in March, 1853. William Gr. Ford became associated with them as a partner in September, 1853, and so continued till May, 1851, when he withdrew from the business. The other members of the firm resumed their partnership name, and continued their operations till the 15th of January, 1855, when they made an assignment for the benefit of their creditors, their liabilities largely exceeding their assets.

It does not appear from the record that Smith was advised of the refusal of Beid to accept the purchase which William G-. Ford had made for him, till in May, 1854:, when, as usual with Smith, he left his residence in Phillips county for Kentucky; but against this he was fortified, as, at the time of the sale of the lands, he required William G. Ford to stand in Beid’s place, by taking the land should Beid not confirm the trade.

Smith, being indebted to Ford & Brother in a larger sum than his half of the lands would amount to, by arrangement between him, theMrm and William Gr. Ford, on the 24:th of May, 1854:, was paid all that was coming to him on the lands by a credit upon the debt he owed to Ford & Brother: and upon the same day, the whole consideration for the lands was charged upon the books of Ford & Brothers, the style of the firm when the three brothers were in it, to William Gf. Ford, allowance being made to him, as well as to Smith, for the present, payment of the installments that were not due till 1855, 1856 and 1857.

Upon the withdrawal of William Gr. Ford from the firm of Ford & Brothers, Ford & Brother,, consisting as before of James Ford and of Charles F. Ford, upon the 27th of November, 1854:, became indebted to the plaintiffs on a bill of exchange for sixty days, which, maturing after the failure of Ford & Brother, remained unpaid.- To recover the amount due to them, the plaintiffs, on the 8th of March, 1855, commenced their suit of attachment against James Ford and Charles F. Ford in the Circuit Court of Phillips county, which was levied upon the lands in controversy as their property. In due course of law the plaintiffs obtained judgment and execution, bid off the lands at the sheriff’s sale, obtained a deed for them, and filed their bill in this case: that the title for the lands be decreed to have vested in them by the attachment and the proceedings under it, and that the deed to William Gr. Ford be delivered up by him and canceled by the court: to remove the cloud that it created upon the title of the plaintiffs.

To sustain the prayer for relief made against William G. Ford, the plaintiffs maintain that the lands, by the application of the demand of James Ford and Charles F. Ford upon Smith to the payment of his half of the lands, became their entire property : • that the deed of Eeid to William G. Ford was a voluntary conveyance, and that William G. Ford is a voluntary grantee, not only as to Eeid, but also as to. James Ford and Charles F. Ford, the real owners of the lands, inasmuch as the- amount that was charged against William G. Ford for the lands was never paid: or that it was paid with funds that belonged to the creditors of Ford & Brothers, and could not therefore be drawn out of the firm as the individual property of William G. Ford, the withdrawing partner.

•The plaintiffs also insist that the transfer of the lands from Smith and the two Ford’s to Eeid, and from Eeid to William G. Ford, was a contrivance of the three Fords, by which the lands should be vested in William G. Ford as their nominal owner, so as to hold them in secret trust for James Ford and Charles F. Ford, or for himself, without regard to the rights of their creditors ; and that the plaintiffs as creditors of Ford & Brother, having a claim to the lands, by their attachment and purchase thereunder, are entitled to have their sheriff’s deed declared by decree to have invested them with the legal title to the lands, and that the deed of William G. Ford ought not to be permitted to stand to disquiet the plaintiffs, and to throw a cloud upon their title. On the other hand, the three Fords, defendants to the bill, deny all the charges of fraudulent act and intent with which the bill abounds, aver that the deeds to Eeid and to William G. Ford were made in good faith, that William G. Ford, in taking the place of Eeid, only did what he bound himself to Smith to do? if Eeid should not fulfill the terms of the purchase that William G. Ford stipulated with Smith, and that William G. Ford made full payment for the lands. And upon the state of case as presented in the record, William G. Ford denies that the plaintiffs, as subsequent creditors of James Ford and of Charles F. Ford, can make any valid claim upon the lands under their attachment, and also contends that if the plaintiffs have any right of action against him for the lands, it is one that must be prosecuted at law.

The Circuit Court of Phillips county sitting in chancery, dismissed the bill for being without equity, as William G-. Ford was not a party to the bill of exchange upon which the plaintiffs obtained their judgment in the attachment suit, and was not a member of the firm of Ford & Brother, by whom the bill was accepted. The plaintiffs appealed.

Although William G-. Ford was not liable on the bill of exchange, yet if he received a voluntary deed of lands belonging to James and Charles F. Ford, with the fraudulent intent of holding them free from the just demands of their subsequent creditors, the bill of the plaintiffs should not have been dismissed, unless upon the question of jurisdiction.

Although the point of jurisdiction seems not to have been presented by the pleadings, it was made before the Circuit Court, as we see from the printed arguments used before that court and furnished to us; and it is urged here, but in subordination to the denial of William G. Ford being a fraudulent grantee of the lands in controversy.. Although it may be a subject of interest to William G. Ford to be discharged from imputations of fraud, in the form in which they are made, and of more importance to him, as urged by his counsel, than are the lands in dispute, yet we may not resolve ourselves into a tribunal of honor, and decide even legal questions when unnecessarily presented, that the result might be that, in our opinion, character had been heedlessly or maliciously traduced. The points which we undertake to consider, are, first: may a court of chancery determine the conflict between the the titles of the plaintiffs and. of William G. Ford: and, upon all the facts in the record, which is the better title ?

If the question of jurisdiction be answered adversely to the plaintiffs, nothing further is needful to be done, and wej therefore, first betake ourselves to the solution of this question.

In support of the objection, that the case is not within the jurisdiction of a court of chancery, it is assmed on the part of William Q-. Ford, that the bill, in setting up the title acquired by the plaintiffs under their attachment, and asking it to be decreed that the sheriff’s deed invested the title to the lands in the plaintiffs, is in reality a bill to invoke the aid of a court of chancery to make valid a legal claim. And it is then argued that a court of chancery will not interpose its assistance to support a mere legal right, but in two classes of cases: as first, when a creditor has obtained judgment, issued an execution and can collect nothing thereby, but has information of a debt, or thing in action, or • equitable right or interest, which ought to be subjected to the payment of the debt, but which the common law remedy cannot reach: and secondly, when a creditor has a judgment, or an execution, that is a lien on property that is covered by a fraudulent conveyance, or by a mortgage or incumbrance, which the creditor will redeem or remove by payment.

These are well established heads of equity jurisdiction, and are purely auxiliary to the satisfaction of legal rights by subjecting, in the first instance, that which a judgment debtor has, and which ought so to be applied to his ascertained debts; and in the second class of cases, by removing the fraudulent incumbrance, or permitting the creditor to discharge a prior lien so as to leave his legal charge in full force upon the property. The mode and principle of equitable assistance in these cases are briefly and clearly set forth in Beck vs. Burditt, 1 Paige, 308. See also McDermott vs. Strong, 4 John., ch. 691, 692; Angell vs. Draper, 1 Verm., 399 ; Hadden vs. Spader, 20 John., 574.

When the plaintiff wishes to subject an equitable interest to the payment of his debt, he must show that he has resorted to :the last legal remedy, by producing a judgment, an execution and a return of mdla lona: and when he wishes to redeem an incumbrance, or remove a fraudulent assignment, he must show the existence of his judgment, or execution lien. This appears from the cases above cited, and is also well expressed in Brinkerhoff vs. Brown, 4 John. Ch. 676.

It is evident that the bill here does not present such a case as can successfully invoke the aid of chancery to enforce a legal right.

If the plaintiffs supposed that their attachment and judgment against Ford & Brother would bind the lands, ánd that the deed of William Ford was but an indirect fraudulent assignment of Ford & Brother, the case could have been brought within .the suppletory jurisdiction of chancery, by asking that the deed be pronounced fraudulent, so that they could perfect their lien by legal proceedings. And when that had been done, the sheriff’s sale would have conferred an interest that would.be unaffected by the deed of William G. Ford. Or, if the plaintiffs had been advised that their judgment against Ford & Brother, was a personal demand, that the lands in controversy were equitably subject thereto, but could not be reached by execution from a court of la'w, a bill could have been framed to make any interest of Ford & Brother in the lands liable to the judgment.

The plaintiffs did not adopt either of these modes of relief, although of frequent exercise by courts of chancery, but proceeded to enforce their judgment and execution by sheriff’s sale, at which they bought the lands, obtained a deed, and then came into a court of chancery, setting up their title, claiming it to be the legal title, and paramount to a claim that William G. Ford makes to the land, by virtue of the deeds of Smith, James Ford and Charles F. Ford, to Eeid, and of Eeid to him, as has been above mentioned. Chancery cannot then afford any relief that would fall within the exercise of its jurisdiction, auxiliary to courts of law; and any relief that can be extended to the plain-biffs, must fall under some head of independent jurisdiction'. And this seems to be conceded by the plaintiffs, as, in answer to the objection of William G. Ford, they insist that it is founded on a mis-description of the bill; its object not being to ask of chancery aid, by acting in an auxiliary way to legal authority, but to protect their legal title by removing therefrom the cloud which the adverse claim of William G. Ford tends to gather over it. For William G. Ford, it is then objected to this foundation of the bill, that no person but one in possession of land can sustain a bill to remove a cloud upon title, by cancellation of an opposing deed or claim. It seems to be taken for granted that the plaintiffs are not in the possession of the lands: they do not aver that they are, and holding a sheriff’s deed, is no evidence of possession. Besides,, it is in the record as testimony, but perhaps not as pleading, that the lands are in the possession of William G. Ford.

Considering, then, this case .as the assertion'of a legal claim to lands of persons not in possession, against the claim of one in possession, and the objection to the bill would seem, upon principle, to secure its overthrow. For,' ordinarily, an action of ejectment affords the proper remedy for a person not in the possession of lands to which his right entitles him; and courts of law have the exclusive right of trying questions of mere legal title. A.nd so are the authorities^ as will appear' from the following citations, beginning with a quotation from an opinion of Chancellor Kent. * * k And which this court, as not possessing any direct jurisdiction over legal titles, is not bound or authorized to assume. This court may, perhaps, try title to land when it arises incidentally: but it is understood not to be within its province, when the case depends on a simple legal title, and is brought up directly by the bill. The power is only to be exercised in difficult and complicated cases, affording peculiar grounds for equitable interference. This was the doctrine laid down by respondent’s counsel on appeal, in the case of Welby vs. Rutland, 6 Bro. P. C. 575, and it appears to have been sanctioned by the court. The rule is now so understood, according to a late treatise on the principles and practice of the court of chancery, Maddock's Chan. 135, a work of merit and utility. This point was also discussed much at large, and emphatically laid down by Baron Wood, and not denied by the other Barons, in the case of The Attorney General to the Prince of Wales vs. St. Aubin, 1 Wightwick's Exch. Rep. 184 to 238;” Abbott vs. Allen, 2 John. Ch. Rep. 524.

To the same effect is an extract from an opinion of the Supreme Court of the United States: “ The bill in this cause is, in substance, and legal effect, an ejectment bill. The title appears by the bill to be merely legal; the evidence to support it, appears from documents accessible to either party; and no particular circumstances are stated, showing the necessity of the court’s interfering, either for preventing suits, or other vexation, or for preventing an injustice irremediable at law. In Welby vs. Duke of Rutland, 6 Pro. P. C. 575, it is stated that the general practice of courts of equity, in not entertaining suits for establishing legal titles, is founded upon clear reasons: and the departing from that practice, where there is no necessity for it, would be subversive of the legal and constitutional distinctions between the different jurisdictions of law and equity.” Hepp vs. Babin, 19 How. 277.

In Hamilton vs. Cummings, 1 John. Ch. 520, 524, the English cases, upon the cancelation of writings, were examined, but those cases, as well as the one under consideration, related to matters of personal obligation, as notes and bonds for the payment of money, annuities, policies of insurance and the like: yet the general conclusion which the court announced, that chancery had jurisdiction to require instruments to be given up and canceled that were void in law, whether the matter that made them void was apparent on their face, or had to be established by other testimony, has been affected by this modification: that when the instruments are void on their face, chancery will not interfere to cancel them, not wishing to exercise its power unnecessarily, in doing what a court of law will do, whenever the void instrument is brought forward to sustain an action. The other part of the general doctrine of Hamilton vs. Cummings, that an instrument will be canceled by chancery, which is void at law, but which is apparently good, remains in force, and may apply to title papers, as well as to bonds and papers that witness personal contracts. Piersoll vs. Elliott, 6 Pet. 98; Morse vs. Garner, Mar. & Yerg. 384; Gamlle vs. St. Louis, 12 Misso. Rep. 620; Gray vs. Mathias, 5 Ves. 294; Simpson vs. Lord Howden, 3 M. & C. 102, 108; 2 Stor'y Eg., sec. 700, a; Cox vs. Cleft, 2 Comst. 122; N. Y. & N. R. R. R. Co. vs. Schuyler, 17 N. Y. R. 599; Van Doren vs. Mayor N. Y., 9 Paige 389.

Such is the law, as stated in general terms, but it is equally emphatic when 'applied to bills that do not show possession of lands in the plaintiffs, but are sought to be supported by appeal to the guia timet jurisdiction of chancery.

This question arose in a case before the Court of Appeals of Kentucky, upon which the court remarked, that though bills of this character were always received in courts of equity with great caution, yet if the title of the plaintiff was admitted, the bill might be entertained, without the establishment of the title at law, as a party might be disturbed in his possessions, but not to the extent that would enable him to have his right tried at law, whence the necessity lor a bill of repose. But 'the court held, further, in this wise: “ to enable the court, however, to extend relief to Gray, it' is not enough that he is in possession, it is essential that his possession should be connected with a legal or equitable title. If he has no title, he can have no claim to the conscience or justice of a court of equity. For a violence commit-' ted on his possession by a person having no title, he might sustain an action at law: but we know of no case, and can perceive no principle, which can warrant the interposition of a court of equity, by giving relief to a complainant possessing no title.” Trustees of Louisville vs. Gray, 1 Litt. 148.

In accordance with this principle, in answer to an objection that a plaintiff, wishing to have a sheriff’s deed removed as a cloud upon his title, must show a perfect title, the Court of Appeals of New York decided, that one in possession, under a conveyance from a mortgagee, could maintain the action, as his title was good against the grantee of the sheriff’s deed, and all claimants except the mortgagor. But the court never entertained the notion, that a person, out of possession, could sustain an action for the removal of a cloud upon his title, and thereby obtain possession; for it said, that the objection would be good, if a plaintiff was claiming title, and seeking upon it to recover possession. Croft vs. Merrill, 14 N. Y. R. 460, per Johnson, J., and 464, per Denio, C. J.

So, in another and later case, the same court held that the owner of land, by virtue of a resulting trust, might sustain an application for canceling the certificate of a sheriff’s sale of the land as belonging to the person having the legal title, because the plaintiff having the equitable title was the real owner of the land, and had it in possession. Loundsbury vs. Purdy, 18 N. Y. R. 515.

The two cases last referred to, and Radcliff vs. Rowley, 2 Barb. Ch. Rep. 31; De Peyster vs. Hildreth, ib. 113, and Alien vs. Hightower, 21 Ark. 316, are instances of claims, made under sheriff’s sales, being attacked as clouds upon title, but no instance has fallen under our. 'observation, in which it has been held against the objection of a defendant, that a plaintiff claiming title under a sheriff’s deed, and'not in possession, has obtained a hearing in a court of chancery, either to obtain possession, or to have his claim compared with the title that is connected with the possession.

The Court of Appeals of Kentucky, in a later case than the one before cited, use this language : “ The holder of the legal title, not in actual possession, cannot, as a general rule, maintain a bill to quiet his title and to compel a relinquishment of adverse claims.” Harris vs. Smith, 2 Dana, 11.

The Supreme Court of Illinois, after citing with approbation Trustees vs. Cray, and Hollis vs. Smith, pursue the subject in this way : “The reason why the party out of possession cannot maintain such a bill is, that he may bring an action at law to test his title, which, ordinarily, a party in possession cannot do. Such a bill is only entertained by a court of equity, because the party is not in a position to force the holder of, or one claiming to defend under, the adverse title, into a court of law *to contest its validity; and this, as a general rule, is the test to which a court of equity will look to determine whether the necessity of the case requires its interference.” Alton Marine & Fire Insurance Co. vs. Buckmaster, 13 Ill. R., 205.

“ It is only parties in possession, or who hold some future estate which gives them no right to immediate possession, upon whom any necessity rests of resorting to a court of equity for aid to remove a cloud from their title. But when they have the right to immediate .possession, the common law action of ejectment, as it was formerly called, with a trial by jury, is the proper remedy.” Ward vs. Dewey, 16 N. Y. R., 529.

“ Those only who have a clear, legal, and equitable title to land connected with possession, have any right to claim the interference of a court of equity to give them peace, or dissipate a cloud on the title.” Orton vs. Smith, 18 How., 265. See also Armitage vs. Wickliffe, 12 B. Mon., 494.

The reference to authorities is closed with the'following extract from Haythorn vs. Motgerem, 3 Halst. Oh. JR., 342. “ A party in possession may come into this court under proper circumstances, to remove a cloud from his title. But I am not aware that a party out of possession can come here as against another in possession, and claiming title under a deed, and obtaining a decree declaring the defendant’s deed void, and putting the complainant in possession and giving him an account of the rents and profits.”

It is thus apparent upon principle and the authorities cited, that the bill in this case cannot be sustained as a bill to remove a cloud from the title of the plaintiffs. To do so, would open the door of chancery to every case where a plaintiff might assert a claim to land, and aver that the title of the defendant in possession was beclouding his claim, and ask that his title be declared to be the real title, that it be established and, quieted, and the possession transferred to it by decree of the court. It is not very plain what is a cloud upon title, in the language of the books, that may be canceled, and the authorities refer to the indefiniteness of the term. Wait vs. Dewey, 16 N. Y. R., 529 ; Mayor of Brooklyn vs. Miserole, 26 Wend., 137. Nor do the facts of this case require us to enter into an investigation of what may constitute it, or what has been decided to be so in the various cases found under this head; hut it is plain that when a party may resort to an action of ejectment to test his title, or obtain the possession that belongs to his title, that is a fatal objection to his prosecution by bill for quieting his own title. The foundation of the quia timet jurisdiction of chancery is the apprehension of injury that a party may receive from the assertion of a claim which he has no means of procuring to be tried in the ordinary tribunals of the law. It cannot be admitted that every case of contested title to land at the pleasure of the claimant be brought into a forum, whose special offices are far different from the examination of disputed titles to real estate.

It is, however, insisted for the plaintiffs that this question ought not to be discussed, and cannot be considered in this court, since the cases of Ringgold vs. Waggoner, 14 Ark., 69, Shell vs. Martin, 19 Ark., 141, and Mitchell vs. Etter, 22 Ark., 183, are contrary to the conclusion before stated. If, upon examination of these cases, we agree with the counsel of the plaintiffs in what they decide, it will then be in good time to determine whether we shall adhere to erroneous determinations of this court, or declare the law in this case as, upon sound principle and unquestionable authority, we find it to be.

In Rmggold vs. Waggoner, the judgment of Ringgold against John Waggoner was declared by this court to be a lien upon the lands in controversy between Ringgold and Burr, and that the only other question in the case was, whether Burr could hold the lands as their bona fide purchaser. The question that has been considered in this case was not considered in Rmggold vs. Wag-goner ; and that is no conclusion against the conclusion reached in this case. The foundation of Ringgold’s title was his judgment lien; and the lands being subject to the lien, could not, of course, be transferred from its operation. On this footing the case was submitted to this court on the part of Ringgold, and was decided on this ground, no argument being made here on behalf of Bun*. But it is undeniable that the proper remedy of Ringgold to enforce his lien' was, to have invoked the aid of chancery to remove the fraudulent assignment of John Waggoner, and the subsequent conveyance of Ednkund "Waggoner to Burr, and then to have proceeded to execution and sale of the lands to satisfy his judgment; thus bringing the case within the second class of cases before mentioned, in which chancery acts as an auxiliary to enforce a legal right. But it is enough to say of that case, that it does not conflict with our view of the law as expressed in this case.

The general doctrine upon this subject is well expressed in Shell vs. Martin, and would have been applicable- to that case, if the bill had shown the possession of the land to have been in the plaintiffs, instead of averring it to be in the defendant. The attention of the court seems to have been called only to the re-' cognition of the jurisdiction of chancery -to cancel deeds, which, if left outstanding, would cloud the real title, without reference to the controlling fact that the jurisdiction is exercised to strengthen and protect the title that is connected with actual possession. The general terms used in the opinion affirming the jurisdiction are correct, but the application of the principle to the facts of the case was evidently wrong. The authorities that are cited in Shell vs. Martin only support, m general terms, the jurisdiction of equity to cancel personal obligations and-instruments of title; not one of them intimates in terms, nor do the facts imply, that the jurisdiction has been or can be exercised, but to protect title accompanied by possession, except the Chautauque County Bank vs. White, 6 Barb., 605. That was a contest between purchasers at a sheriff’s sale as plaintiffs, and, the defendant, a purchaser at a sale made by the receiver acting under the- direction of a court of chancery. The- sale of the receiver was prior in time, and the defendant was in possession under the sale. The bill prayed that the judgment under which the .sheriff’s sale was had might be decreed to be a lien upon the premises existing when the defendant bought at the sale of the receiver, that the title of the plaintiffs might. be declared superior to . that of the defendant, and that the defendant should be required to surrender the possession of the premises to the plaintiffs. The vice-chancellor, before whom the case was brought, dismissed the bill, but the Supreme Court reversed his decree, and held that the plaintiffs could entertain their bill, on the ground that the deed of the receiver to the defendant was a cloud upon their title, and this is the decision that is cited in Shell vs. Martín, and also in Mitchell vs. Etter. Bnt the decree of the Supreme Court was reversed by the Court of Appeals; and though there were other points in the case, Gredlby, J., expressly denied the right of the plaintiffs to go into equity to set aside the deed of the defendant as a cloud on their title. Chautaugue Co. Bk. vs. White, 2 Seld., 246. An action of ejectment was said by the Judge to afford the proper remedy for the plaintiffs; yet it is but just to say that, in both courts, the fact of the defendant being in possession does not seem to be insisted upon, the Court of Appeals holding that the alleged defect of •the defendant’s title was apparent upon its face, and that, therefore, there was no need for the plaintiffs to ask the aid of equity to cancel the deed of the receiver to the defendant. This is according to the received doctrine that- has overruled Hamilton vs. Cummings, 1 John. Ch., so far, and is an express authority that an action of ejectment, instead of a bill to remove clouds, is the remedy to recover land for a plaintiff out of possession.

The Circuit Court, in Shell vs. Martin, properly sustained the demurrer to the bill, and this court in reversing its decree, therefore, undoubtedly made a wrong application of a correct principle of law.

In Mitchell vs. Etter, no authorities were referred to but what were cited in Shell vs. Martín, but that case itself and any general observations that may be in the opinion, should be confined to the facts of the case under consideration, if they can be so by any rule of reasonable construction. Conway vs. Reyburn, 22 Ark. 293. And upon the facts of the case, in Mitchell vs. Etter, it was rightly decided that the plaintiffs could maintain a bill for cloud of title against the defendants. For the wife of Mitchell held the lands in controversy by a valid title, and though being wild lands, this court therefore considered them not to be in the actual possession of Mrs. Mitchell, before her marriage with Mitchell, or afterwards in the actual possession of Mitchell and wife, yet it does not thereby follow but that the title of Mrs. Mitchell carried with it the possession of the lands. As against third persons, who were intruders upon the lands, the title would draw to it a constructive possession that would enable Mitchell and wife to maintain ejectment, or tresspass; and the claim of the defendants as purchasers at a tax sale, like that of purchasers of sheriffs and officers that make compulsory sales of lands, does not attach to itself a constructive possession. Crutsinger vs. Catron, 10 Humph. 27, 28. Such persons must prove possession by possessory acts; it will not, as in ordinary cases of ownership, be presumed to be with the title. Mitchell and wife, though not in actual occupancy of the lands, might be construed to be in possession of them, and could not then maintain ejectment, and could, as in possession, file their bill to cancel a tax deed of the defendants as a cloud upon Mrs. Mitchell’s title. The distinction between occupation, or what this court, in Mitchell vs. Etter, and in Fowler vs. Keatts, 22 Ark. 487, termed actual possession, is noticed by Seldbn J., in Warrd vs. Dewey, 16 N. Y. R. 531, who says that there is a distinction between occupation and possession, and that there may be a legal or constructive possession where there is no actual occupation. Or without distinction between occupation and possession, or between actual and constructive possession; and taking neither party in Mitehell vs. Etter, to have been in any sort of. possession, then Mitchell and wife were without remedy at law, and without any means to test the opposing title of the defendants, but by complaining of it in chancery, as a cloud upon their title, and that fact alone would give jurisdiction. Mattingley vs. Corbit, 7 B. M. 376.

Hence, it follows, that in any state of the case, Mitehell and Etter is well sustained upon principle, its decision not being inconsistent with the principle adopted in this case, though some general observations of the opinion are more accordant with Shell vs. Martin than with this case, owing to the lead of that case, and to the point decided in this case not being made before the court.

As the grant of chancery jurisdiction to our Circuit Courts is constitutional, and cannot be limited by legislative enactment without the establishment of separate chancery courts, it is important that the jurisdiction should not be enlarged by the courts beyond its proper bounds. These are tobe determined from the decisions of courts exercising chancery jurisdiction, and from them it has been shown, that as a mere question of conflicting titles between the parties to this suit, the plaintiffs not being in possession of the lands in controversy, the Circuit Court of Phillips county in chancery had no jurisdiction of the case.

And although no objection is taken in the pleadings to the exercise of the jurisdiction by the Circuit Court, still, if it had no jurisdiction, the suit should not have been retained before the court for the want of the proper objection being made. Heyer vs. Burger, Hoff. Ch. R. 7; Foley vs. Hill, 1 Phillips R. 407; Hipp vs. Babin, 19 How. 278.

But, notwithstanding the authorities just cited are very pointed, it has been held by Chancellors Kent and ‘Walworth, though more decidedly by the latter, that the objection to the jurisdiction of chancery, on the ground of a full and adequate remedy at law, should be made before the hearing upon the merits, otherwise it would be disregarded if chancery was competent to afford the desired relief. Underhill vs. Van Courtlandt, 2 John. Ch. 369; Granden vs. LeRoy, 1 Paige 509.

Althoughjwe cannot perceive the reasonableness of the distinction so strongly taken by Chancellor Walworth, for the fact of the existence of an adequate, legal remedy, seems to be as strong a bar to the exercise of chancery jurisdiction as can be conceived, yet the authority of those names is very great, and on account of the doubt thus begotten of the propriety of disposing of this case upon the question that has been discussed, and for two other reasons, we shall proceed to test the decree of the Circuit Court sitting in chancery, upon the question that the parties unite in considering the main question in the case, that is, the alleged fraudulent character of William G. Ford’s title.

This fraudulent imputation is one of these two reasons; and relief against a deed alleged to be fraudulent, has been held to be-a proper case for equitable jurisdiction, though fraud is examinable at law as well as in equity. Apthorpe vs. Comstock, Hopk. Ch. R. 148; Comstock vs. Apthorpe, 8 Cow. 386 ; Apthorpe vs. Comstock, 2 Paige 483.

. The other question of jurisdiction was considered as if the deeds of the parties were merely conflicting, title as was the case of Mitchell vs. Eiter, and as this case was presented in argument, unconnected with any charge of fraud against William G. Ford. We woifldnot assume as a general principle, that a mere allegation of fraud will permit a party claiming title and out of possession, to seek his remedy in equity rather than by a resort to the action of. ejectment, but in combination with 'the other reasons operating upon us, it induces us not to dismiss the bill for want of jurisdiction in the Circuit Court sitting asa court of chancery.

The other reason inclining .us to consider the case upon its merits, that is, to decide whether-William G. Ford holds the land in fraud of the rights of the plaintiffs, is the right of this court to examine and decide every question presented by the record. In this case, the Circuit Court entertained jurisdiction of the bill, tried the case upon its merits; hence, though we had doubts of the jurisdiction, or were clear against the right of its exercise by the court below, we may, as the court did, look into the record and decide the matters presented by it, waiving the question of jurisdiction. This position is strongly supported by Drew Scott vs. Sandford, 19 How. 428, 429, and the opinion of Wayne J. 455, 456. And there is a manifest propriety in pursuing such a course in this case, us the parties have urged the allegation of fraud against William G. Ford, as the great matter of interest and of importance; and because, if we arrive at the same conclusion that the court below seems to have reached, its decree dismissing the bill for want of equity, but without prejudice, should be modified so as to operate as a final bar to the claim of the plaintiffs.

Although we have examined the immense record, made up of allegations and proofs, whose design was to fasten the charge of fraud upon William Gr. Ford, and to exculpate him therefrom, with the care, that the assumed, as well as the actual importance of the case, and of the subject, seemed to require, we shall only announce the conclusions to which we have come.

All the testimony that details the dealings of Ford and Brother. with which William Gr. Ford is not proved to have taken a part, is thrown out of the case as irrelevant. It might not have been improper to have taken such testimony in reasonable amount, with the expectation of being able to connect William G. Ford with the transactions of Ford & Brother. If this had been done, the evidence would have been competent, and it would have been incumbent onus to have pronounced upon their character as fraudulent or otherwise. But after September, 1854, the date of the withdrawal of William G. Ford from the firm of Ford & Brothers, he was a stranger to the transactions of Ford & Brother, he must be taken to be so, because the plaintiffs have not proved otherwise. The witnesses themselves who dealt with Ford & Brother, from September, 1854, till the failure of the firm, and who suffered by it, furnish the proof that William G. Ford’ was not known, or supposed to be concerned in the dealings to which they depose. All of this sort of testimony, which is the great mass of the evidence in the case, cannot be taken into consideration.

And this testimony being out of the case, as disconnected with the acts of William G. Ford, of that which remains, there is nothing tending to show a combination on his part with Ford & Brother to defraud the plaintiffs, or any subsequent creditors of the firm, and no question is 'made in the case, that existing creditors were intended to be, or were, in fact, defrauded. Nor was William G. Ford a voluntary grantee of the lands conveyed to. him by Beid. When Beid declined to take the lands, William G. Ford had a right to take the place of Beid as against Smith and the Fords, and he had a right to do so against the existing creditors of Ford & Brother, if the conveyance was taken in good faith, or payment of a fair consideration, by placing the amount paid into the general assets of Ford & Brother, or by appropriating the price of the lands to the payment of their debts. And the case, as shown by the testimony of Smith and James Ford, that William G. Ford was to take the lands himself, if Reid did not, does not make William G. Ford a voluntary holder, nor show any fraudulent contrivance.

We have looked, with much minuteness, into the testimony upon the payment of the lands, and found that William G. Ford fully paid for them the sum that Reid was to have paid, had he accepted the deed from Smith, and James and Charles F. Ford, by moneys paid and advances made to James Ford and Charles F. Ford, which were applied and used in the business of the firm of Ford & Brothers. The testimony of the two Fords and of Johnson, the only persons shown to have any personal knowledge of the facts, abundantly prove this; nor can we accede to the proposition that the accounts from the books of Ford & Brother show any other result. If-the fact be, as the counsel for the plaintiffs would have it, that the books show no indebtedness to William G. Ford, we cannot so see it; and if it also be, that, by what counsel call “a familiar mystery in the art of double-entry,” the account is “ unsatisfactory and unintelligible,” the charge of fraudulent conspiracy with Ford & Brother, is not thereby sustained against William G. Ford. If we are to give credit to testimony, and not to decide upon the conjectural results, that counsel so plainly see, or upon the criminations of pleading, which, if true, would have been scandalous, but which are not shown to be true, we must hold that William G. Ford made full payment for the lands. Whether he paid on the 4th of January, 1854, or on the 24th of May ensuing, or at any intermediate time, or at any other time before the existence of the debt of Ford & Brother to the plaintiffs, is not material.

The note of Mr. Eden to Andrews vs. Maltby, 4 Bro. C. C. 429. note a; Ex parte Ruffin, 6 Ves. 119; Ex parte Fell, 10 Ves. 347; Ex parte Williams, 11 Ves. 3, contain much stronger law for the right of retiring partners to property that was joint property, than need be applied to sustain the right of 'William G. Ford.

The plaintiffs being subsequent creditors of Ford & Brother, their demand, dating back only to the 27th of November, 1854, the deed to William G. Ford cannot be fraudulent as to them, unless it had been a voluntary deed.

But waiving any legal question that might be urged upon this part of the case, the evidence fails to show wherein William G. Ford is chargeable with any fraud in the purchase of the lands, or with being engaged in any scheme to appropriate them to himself without consideration, or to the disadvantage of any person. Though he took the lands from the assets that would have been subject to the liabilities of Ford & Brother, he left in their Btead ample means, and no creditor could claim that both the lands and their value should remain in the assets of the firm. If William G. Ford was personally liable to the creditors of Ford & Brothers, that is a question that does not arise in this case.

It is not for us to remark upon the character of transactions, when brought under review as a part of a case, further than the decisions of the law upon the facts may require or justify; and so all we feel compelled to say is, that no act of William G. Ford, in relation to the lands, appears to us necessary to be ascribed to any improper motive, or, to speak more in legal phrase, to be tainted by any fraudulent design. If there were fraud in the transaction, the plaintiffs have not made it clear: nor have they adduced facts that, in our minds, beget the suspicion of its existence, although the record shows that industrious, if not pertinacious, efforts have been made by them to establish their charges of William G. Ford’s fraudulent complicity with the other Fords.

That Ford & Brother began the commission business with moderate means; that William G. Ford was their partner from September, 1853, to May, 1854; that he went in and went out of the firm without settlement or statement of the business;' that Ford & Brother, in the latter part of the fall of 1854, and up to the time of their failure, traded outside of the line of their business, and unskilfully or recklessly: those, and more other of the alleged incidents of this voluminous case, abounding in events, do not make good the existence of a scheme which the plaintiffs charge to have been devised, before the 4th of January, 1.854, to place the lands in the hands of William G. Ford to the prejudice of creditors that only became so on the 27th of November, 1854.

Reid and William G. Ford may not have understood each other; for Reid, although he admitted conversations in which he had solicited the assistance of William G. Ford in procuring a southern plantation, did not consider that he had authorized the purchase made for him; but nothing was more' direct and free from suspicion than the subsequent transfer of the lands from Reid to William G. Ford. If Reid had taken the lands, there could have been no charge of fraud made against him, none that he was colluding with Ford and Brothers to defraud their creditors. When William G. Ford was substituted in his place, nothing but after fraudulent conduct could subject him to any fraudulent imputation. No such fraudulent conduct is made to appear.

The case would bear much comment; it is laden with facts that have been subjected to the severe construction that counsel felt obliged, or at liberty to assume, or to endeavor to show, as the proper imputation of acts from which they would have fraud inferred.

The decree of the court below was right in dismissing the bill, but it should not have been without prejudice — should have been absolutely: with this change, let it be affirmed.

Mr. Chief Justice English and Mr. Justice Compton.

In so much of the above opinion as relates to the question of fraud, and in the conclusion, we concur, reserving any expression of our views as to the question of jurisdiction.


source: Caselaw Access Project

author: Mr. Justice Fairchild

license: Public Domain

text:
    Phillips vs. Grayson.
    Gift of a slave, by a mother, to a trustee, for the use and benefit of her daughter, a married woman, and the heirs of her body — to be held by the trustee for her use and benefit — to remain hers during her life, and at her death to go to the heir of her body — to remain in her possession, but not to be subject to the debts or disposition of her husband. The husband died, the wife married again; and the judgment creditors of the second husband levied upon the slave : Hold, on bill by the wife to enjoin the sale of the slave, claiming it to be her separate property, that from the terms of the deed of gift, being but for a life interest, and appointing a trustee, even without the words that free the property from the disposition of the husband and from his debts, the life interest of the wife was her sole and separate property: That the property was subject to absolute disposition by her, to the extent of her interest, while she was a widow. That when she entered into the second marriage, the slave continued her separate property not subject to the control of her second husband, nor liable for his debts.

      Appeal from, Clarh Circuit Court, in Cha/ncery.

    Hon. Len B. Green, Circuit Judge.
    Garland & Randolph, for appellant.
    Gallagher, and Knight, for appellees.
   Mr. Justice Fairchild

delivered the opinion.of the Court.

Amy Calloway, in consideration of the love and affection that she had for her daughter, Charity C. Johnson, wife of Philip P Johnson, conveyed to Jonathan O. Calloway, Rebecca, a negro girl, “ in trust for the use and and benefit of the said Charity C., “ and the heirs of her body.....To have and to hold said “ slave and all her increase, unto the said Jonathan O., for the “ use and benefit aforesaid, but to remain the said Charity C.’s “ during her life, and at her death to go to the heirs of her body; ■£ and it is now expressly understood, and here stipulated, that, C£ from this day forward, the said negress is to be and remain in the possession of my beloved daughter, Charity C., but to be in no ,£ wise subject to the debts or disposition of the said Philip P., l£ the husband of my said daughter, Charity C.” This deed was made the 30th of July, 1845, and was recorded, at the proper office, in Clark county, upon the next day. In course oí time, Johnson, the husband, died, and Mrs. Johnson married Phillips. Judgments had been rendered against Phillips, and, at the instance of the plaintiffs, executions isued upon them were levied upon Eebecca and her children. Mrs. Phillips, claiming the negroes as her own separate property, exempt from liability to the debts of Phillips, her second husband, filed the bill in this case to enjoin the judgment creditors from attempting to subject Eebecca and her children, to the satisfaction of their judgments; and that a trustee in the place of Jonathan O. Calloway, then dead, should be appointed to preserve and perform the trust. A preliminary injunction was granted,- but, upon demurrer, the Circuit Court of Clark county, sitting in chancery, dismissed the bill; from which decree Mrs. Phillips has appealed to this court. She insists here that, under the general doctrine recognized in chancery, and under our married woman’s law, the negroes are her own separate property, and that the decree appealed from is erroneous, in not affirming her claim: while, on the other hand, the judgment creditors, the appellees, sustain the decree, and maintain the negative of the two propositions of Mrs. Phillips, the appellant.

The married woman’s law, if applicable to the claim of the appellant, gives her go better position in this case than she would have by the doctrine of courts of equity upon separate property: hence the decision of this case need not involve a consideration of our statute, but will be made to depend upon the negroes mentioned in the bill, being vested in the appellant to her sole and separate use, free from the liabilities of her second husband.

It seems to be admitted by the appellees, for the purposes of this case, that the deed of Amy Calloway conveyed an interest to her daughter, that was separate in her favor as against Johnson, the existing husband: but as this point may have an important bearing upon the rights, and consequently upon the liabilities of the second husband, without placing our decision upon an admission made, with the view that its principle would not extend to the second husband, we will give an opinion upon the deed itself: which is, that Mrs. Johnson took an interest in Rebecca, that was free from liability or interference of Johnson, the first husband. But whether this results from that part of the deed which expressly refuses-to Johnson any right over the slave, is a question made by the opposing counsel, and one upon which they suppose the case will turn.

The appellant contends that, without the clause in the deed which mentions Johnson, the other words exclude his interest, as well as that of any other husband, and that this effect of the words is strengthened by the interest of Mrs. Johnson and her children being preserved for them by a trustee, and by the limited interest provided for Mrs. Johnson. The appellees insist that the interest conveyed to Mrs. Johnson is not affected by the intervention of a trustee ; that the deed confers upon her the absolute ownership of Rebecca and her increase; that the gift to her use and benefit is only an unconditional gift; that upon the death of Johnson the property belonged to his widow, without any separate character; that her marriage to Phillips transferred the property to him, and that, consequently, his creditors, the appellees, had a right to make their judgments out of the slaves, from which they are hindered by the injunction granted in this case, and by the prosecution of this appeal.

In ascertaining the effect of the gift, from a fair construction of the .instrument, the evident intention of the donor was, that Rebecca, and her increase, should belong to the daughter for her life, and after her death should go to her children, and that the possession and enjoyment of Mrs. Johnson, should be as of her own separate property, as long as she should live. Prom the bare words of the deed, it is plain that a separate interest was confbrred upon Mrs. Johnson, as her husband was excluded from all interest in, or control over, the property, which was also exempted from liability for his debts. Firemen's Ins. Co. vs. Bay, 4 Barb. 414. Yet, without the express, exclusive words against "Johnson, the terms of the gift alone, if an absolute interest had been conferred upon Mrs. Johnson, might not have been sufficient to have created a separate estate under the modern English rule of decisions, which has been followed by this court. Roane vs. Rives, 15 Ark. 330; Kensington vs. Dolland, 2 M. & K. 184; Tyler vs. Lake, 2 R. & M. 183. This rule seems, at times, to have been applied when the principle for the construction of all writings, that of effectuating the intention of the instrument, if not inconsistent with the rules of law, did not require its application. For the spirit of the law, as well as the letter of the authorities, would teach that no particular form of words is necessary to vest property in a married woman for her separate use. Stanton vs. Hall, 2 R. & M. 175; Clark vs. Maguire, 16 Misso. R. 311; Taylor vs. Stone, 13 S. & M. 655. And those cases that hold there must be negative words to destroy the marital rights of the husband, or that a different and stronger rule of construction may be adopted to preserve such right, are subject to the pertinent observations of Yice Chancellor Wigram, made in Blacklow vs. Laws, 2 Hare, 49, 54, in which, in obedience to authority, since overruled, he construed a will in a way he deemed to be against the real intention of the testator.

The strict English rule does not seem- to have been followed in some of the American courts, which follow the intent, irrespective of any particular words to establish the character of the estate. Such are the Missouri and Mississippi cases, above cited, and to the same effect are Hamilton vs. Bishop, 8 Yerg. 40, and Beaufort vs. Collier, 6 Humph. 490.

But, in this case, only a life estate was given' by the deed to Mrs. Johnson, the residuary interest being vested in the heirs of her body. Cox vs. Britt, 22 Ark. 557. The decision in Lindsay vs. Harrison, 3 Eng. 311, is not applicable to the present case, as the estate in that case was held to be an absolute estate of a single woman, witli no attempt to' exclude the marital right of a future husband; while this case is the conveyance of a life estate to a married woman, with a remainder to her children: thus restricting the right of alienation of the property itself, as fully as any prohibitory clause of anticipation can possibly do. All the authorities note the distinction between an absolute and partial interest, when the question is, whether the interest be separate property, or subject to a husband’s claim. The remark made of Lindsey vs. Harrison, may also be extended to Sadler vs. Bean, 4 Eng. 202, and to Roane vs. Rives, 15 Ark. 330, the terms of the will, in the former case, having nothing to show that the creation of a separate estate was intended, while the terms of the gift in the latter case bestowed an absolute gift in terms for the use of a daughter; which this court held to be an executed trust, that is,..an absolute, unconditional gilt to the wife, which, of course, vested the property in the husband.

In the two cases last remarked upon, as in this case, there wore trustees; but unlike the present case, in them there was nothing for the trustee to do, the trusts being finished as soon as made; whereas in this case, the trustee was to hold the legal interest, guard it for Mrs. Johnson against her husband, and after her death to pass the property to her childen. That- a trustee is appointed will not create a trust, and that a trust may arise Without a trustee, are new maxims in equity; and to these doctrines the observations in the opinions in Sadler vs. Bean, and Roane vs. Rives relate, and must be confined; for it cannot be denied that the appointment of a trustee is a fact to be taken into consideration, in ascertaining whether the intention of the person from whom the settlement proceeds, be to confer a legal, or a trust estate. In the language of Lord Eldon : “ The intervention of trustees has never yet gone the length of vesting a sole or separate estate in the wife.” Lamb vs. Milnes, 5 Ves., 521; but that which by Lord Cowper was deemed essential to support a trust (Harvey vs. Harvey, 1 P. W., 125,) should not be overlooked as an important fact in determining upon the intention with which an alleged trust is created.

We have examined with much care the words of the will is Maulding vs. Scott, 13 Ark., 88, and the charge in the bill in Denson vs. Thompson, 19 Ark., 69, and the conclusions of this court in those cases. But the present case does not call for any remark upon those cases, as the terms of the gift and the facts of the case, are stronger than were the facts in those cases, to show an intention to create a separate estate. We have no doubt that this case falls within the principle of Cox vs. Britt, and that the principle properly applied in that case, should control this case. Prom the terms of the deed of gift of Mrs. Calloway, and from the interest of Mrs. Johnson under the deed being but for her life, and from the appointment of a trustee to preserve that interest, without the words that free the property from disposition by Johnson, and from his debts, we are of opinion that the life interest of Mrs. Johnson was her sole and separate property.

It is now to be seen whether Bebecca and her increase, which were the separate property of Mrs. Johnson Avhile her husband Johnson was alive, remained such after she married Phillips, for whose debts the appellees are seeking to subject the property.

It is argued, for the appellees, that, though there were a separate estate in Mrs. Johnson, when she became a Avidow the property became her’s absolutely, and 'that her subsequent marriage to Phillips operated as a transfer of the property to him. Marriage is not necessarily a gift of all the personal property and rights which the wife OAvns at the marriage ; for her chattels real and dioses in action do not belong to the husband till he makes sale, or reduces them to possession. And as separate property, in a married woman, is an interest or estate not known to, or not recognized by the common law, it is not subject to the incidents Avhich the common Iuav attaches to property, unless by the assent of courts of equity. Por nothing is plainer than that an estate or interest created by equity, and that in violation of the common rules of property, must bo subject to the rules which courts of equity adopt for its preservation, as well as for its creation. Against the principle of the common law, that does not allow a married woman to hold property independent of her husband, courts of chancery permitted this to be done, but required the legal title to be vested in a trustee. Then in Bernnet vs. Davis, 2 P. W., 316, it was first hold that property to the separate use of a married woman, should be preserved' to her, though there was no trustee appointed, and that the husband, in whom was the legal title, should hold it in- trust for the wife. So, it has been decided in modern times, that separate property could only be held as such against a named or contemplated husband, hence, settlements upon a single woman, to her own use, exclusive of the right of some future but unknown husband, were said not to create such equitable interests as courts of equity recognized as made for the protection of woxnen already married and about to marry. The same rule <?f construction was followed respecting-' settlements made after inarriage, or in contemplation of a particular marriage, holding them good for that marriage, but not for any other. Barton vs. Briscoe, Jacob R., 603 ; Woodneston vs. Walker, 2 R. & M., 197; Jones vs. Salter, 2 R. & M., 208; Brown vs. Pocock, ib., 210; Newton vs. Reid, 4 Sim., 141; Knight vs. Knight. 6 Sim., 121; Benson vs. Benson, ib., 126; Bradley vs. Hughes, 8 Sim., 149; Massey vs. Parker, 2 M. & K., 174.

Nut this course of decision was vehemently opposed by counsel, in each succeeding case, as being- contrary to law, and to the practice of conveyancers, by whom, in framing- settlements and wills, universal provision, was made for a single or married daughter, or relative, against the control and liability of futuro husbands, and this was so declared from the bench. Davis vs. Morneycroft, 6 Sim., 420.

These and like decisions came under the consideration of Lord Lan&dale, Master of the Nolls, in 1838, when, in a most satisfactory opinion, he departed from their principle, holding- that property given to' a woman for her separate use, might be enjoyed by her during coverture, as her separate estate, no matter when the property vested in her, and that when given without the power to alienate, she could not soil or assign it during ^oye.!--, ture, although while single she could dispose of it as pleased; the restriction to sell, or anticipate, shifting with her condition; being good when she might be a married woman, and being void when single, or discovert. Turlett zs. Armstrong, 1 Beavan, 1, and Scarborough vs. Borman, ib., 34. These decisions were appealed from, and Lord Cottdnham, who, as Master of the Nolls, had decided Massey vs. Parker, the strongest of the cases holding a different doctrine, as Chancellor, affirmed them; and the law in England has ever since been too well settled to be shaken. The importance of the subject, the character of the Judge and the effect of the case, justify the following quotation. After a full review of the authorities, the opinion proceeds: Such is the “ state of the authorities upon this very important question. It “ is said to have been generally understood in the profession, that “ the separate estate would continue to operate during a subse- “ quent coverture, and that conveyancers have acted so exten- sively upon that supposition, that very many families are inter- “ ested in the decision of this question. That circumstance ought “ to have great attention paid to it.

“ ... 1 have over and over again considered this sub- “ ject, with a great anxiety to find some principle of property, “ consistent with the existing decisions, upon which the preserva- tion of the separate estate during a subsequent coverture could “ be supported. I have been anxious to find means of preserving, not only to maintain those existing arrangements which have “ proceeded upon the ground of its validity, but because I think it desirable that the rule should, if possible, be established for “ the future, believing, as I do, that when a marriage takes place, “ the wife having property settled to her separate use, all the par- “ ties in general suppose that it will continue during the cover- “ ture. To permit the husband, therefore, to break through such “ a settlement, and himself to receive the fund, would, in general, “ be contrary to the intention of the parties, and unjust towards “ the wife. . . . After the most anxious consideration, I have “ come to the conclusion that the jurisdiction which this court “ has assumed in similar cases, justifies it in extending it to the. protection of the separate estate, with its qualifications “ and restrictions attached' to it, throughout a subsequent cov- “ erture; and resting such jurisdiction upon the broadest foundation, and that the' interests of society require this to be “ done. When this court first established the separate estate, “ it violated the laws of property as between husband and “ wife, but it was thought beneficial, and it prevailed. •

“ . . . It is, no doubt, doing violence to the rules of property, “ to say that property, being given with qualifications and restric. “ tions, which are held to be void, belonged absolutely to the wo- man up to the moment of her marriage, shall not be subject to “ the ordinary rules of law, as to the interest which the husband “ is to take in it; . . . . but it is not a stronger act to pre- “ vent the husband from interfering with such property, than it “ was originally to establish the separate estate, or to maintain “ the prohibition against alienation.” Tullett vs. Armstrong, 4 M. & C. 404.

In the foregoing case, the gift took effect when the woman was single, and she afterwards married, and that marriage is the subsequent coverture alluded to in the opinion, and the questions were, whether property could be given to the separate use of an unmarried woman, and if so, whether it could be disposed of against a prohibition in the settlement. The first of the questions only, was involved in Scarborough vs. Borman, which was also affirmed, the cases being reported together. The principle now settled in England by the forgoing cases, has the full sanction of American authorities. 2 Kent 170, note a; 2 Story's Eg. S. 1384; Shirly vs. Shirley 9 Paige 364; Beaufort vs. Collier, 6 Humph. 491.

Since the first exercise of chancery jurisdiction over this subject, it has never been doubted, that property could be settled to the separate use of a married woman, and when it was determined that this could be done to a single woman, with the effect of barring the right of a future husband, with whom no marriage was contemplated, it must inevitably follow, that property settled to the separate use of a.married woman, remains stamped with that character when she takes another husband..

As in this case, we have held that Mrs. Johnson was invested with a separate life interest in Rebecca and her increase, this property, although subject to absolute disposition by her when she was a widow, to the extent of her interest, was her separate property when she entered into another marriage, was not subject to the control of Phillips, her subsequent husband, nor, of course, liable to his debts. The principle is this: The husband finds his wife in the enjoyment of property that is separate property ; and though, when a widow, she might do with it as she pleased, chancery will not permit the common, legal rights oí the husband to be extended over such property. 2 Story Eq., sec. 1384, Newland vs. Paynter, 4 M. & C. 417, 418; Nedby vs. Nedby, ib. 376.

Doubtless, a settlement could be so worded as to exclude only the interest of a particular husband, and the intention should prevail when it appears to be directed only against an existing, or particularly contemplated husband. But in this case, as ordinarily in provisions made for daughters; that are, or may be wives, the intention is to provide for the wife, or the wife and children, though all the acts of survivorship are not mentioned. See Allen vs. Crawshay, 9 Hare 382. Upon this principle, when property was settled upon a married woman, to be held against the interference of any future husband, the restriction was held valid against the present husband. Steedman vs. Poole, 6 Hare 193. See, also Brown vs. Baneford, 1 Ph. 624.

Notwithstanding the principle of Tullett vs. Armstrong, and Kewlmd vs. Paynter, would seem to us, as above expressed, to require that property settled to the separate use of a married woman, would not be subject to any charge made upon it by an after taken husband, Yice Chancellor Wise am declined, though manifestly against his inclination, so to decide, thinking himself bound by Knight vs. Knight, Benson vs. Benson and Bradley vs. Hughes, heretofore mentioned. In that case, the settlement was of a fund to the wife for her separate use: her present husband, a party to the settlement, not being permitted to intermeddle with the fund, which after the death of the wife, was to go to the husband, and after the death of the survivor, to the children of the marriage. The husband died, the wile married again, when she, with her husband, charged the fund with annuities, and theques tion was raised by the trustees upon the validity of the charge. The only question between counsel was, whether Txillett vs. Armstrong did not govern the case, and the Tice Chancellor held the contrary, and decided the case in accordance with the cases before mentioned. In Re Gaffee's settlement, 7 Hare 101. This case was taken before the Lord Chancellor, by appeal, and is reported in 1 Hall & Twells, 635, in 1 McNaughten & Gordon 54, and in 14 Jurist, 277. "We have not been able to consult the case in any of the reports, neither of the books containing it being within our reach, but in a note to the 2d American edition of Hill on Trustees, page-, the case is mentioned; and as we should have expected, was reversed, on the ground that the cases that limited a separate estate to an existing coverture were founded on a supposed rule of equity, that separate property could only be settled upon a married woman, or upon one in contemplation of a particular marriage. According to the extract from the report in the note, Lord Cotteniiam, said: “ It being now “ settled that a gift to the separate use, without power of anticipa- tion, will operate on all the covertures of a woman, unless these provisions are. destroyed while she is discovert, these cases [referring to Knight vs. Knight, Benson vs. Benson, and “ Bradley vs. Hughes,'] cannot be considered as applicable to this case, which must therefore depend on the construction to be “ put on the words usedand then is laid down a rule of construction, that if the restriction or anticipation is part of the gift,, .the estate given, and the restriction against alienation or anticipation, must be commensurate. We are satisfied that such a decision as is represented in the note, will be found in the reports of the case; and we cannot think that any other would be made by the court of last resort, after Tullett vs. Armstrong, and the kindred cases.

In this case, there is no construction to be put upon any clause of anticipation, for Mrs. Phillips has not attempted to sell, or charge the property; and the clause against anticipation was in-Produced in settlements for the purpose of defending a married woman against her own act, which the influence of her husband might induce her to commit, and cannot be brought under consideration when the act complained of, is that of the husband, or persons claiming his right.

To decide that Mrs. Phillips’life estate was subject to the debts of her husband, would be to decide that she had no separate pro. perty. We think that Mrs. Johnson acquired a separate interest in Rebecca and her increase, which was not confined by the terms of the gift to the existing coverture: that the property being separate property when she married Phillips, it was not subject to his control, nor to his debts.

The law is, also, well settled that a restriction upon the alienation of separate property, during the life of a married woman to whom it is given, is not unlawful, for this restriction is the only means to make the separate estate effectual to promote its object, the benefit of the married woman. Holding, the contrary of this, and upon authorities repeatedly overruled, was the mistake of Lindsay vs. Harrison, 3 Eng. 311, although that part of the opinion was not a part of the decision of the case.

The appellees have no more right to the property than the husband had. Beekman vs. Cowser, 22 Ark. 432; Bennett vs. Davis, 2 P. W. 319; Langton vs. Horton, 1 Hare 560. And as he had none, they have none; and their executions were properly en-enjoined, and the injunction was improperly dissolved.

Let the decree be reversed, the preliminary injunction be restored, and the case remanded for further proceedings. The hus. band of Mrs. Phillips should have been made a defendant, and she is entitled to leave to amend her bill in this respect, and as she shall be advised.


author: Carleton Harris, Chief Justice.

text:
    Jobe v. Capitol Products Corp.
    5-1738
    320 S. W. 2d 634
    Opinion delivered February 9, 1959.

      Charles F. Cole, for appellant.

      Riddich Riffel, for appellee.
   Carleton Harris, Chief Justice.

This appeal results from a judgment of the Independence County Circuit Court in which an order of the Workmen’s Compensation Commission of February 26, 1958, was affirmed; such order denied appellant’s claim for permanent partial disability benefits, because of hernia, which he sustained in the course of his employment with appellee. The facts are not in dispute. The appeal only questions the construction of the law made by the Commission as it applies to the injury sustained by appellant.

Wesley C. Jobe, a life-long construction worker, was employed as foreman by appellee herein, in installing a modern oven in a bakery at Batesville. A necessary part of this oven was a steel shaft some 12 or 13 feet in length, and some four inches in diameter. Mr. Jobe and three other men were carrying the shaft when appellant’s foot slipped; the other three were unable to support the shaft, and as Mr. Jobe fell, the end of this shaft fell on him, striking him a severe blow in the abdomen. The medical examination revealed that he had sustained an inguinal hernia on the left side, and it was subsequently discovered that he had sustained an inguinal hernia on the right side. The left hernia was repaired by a radical operation January 3, 1957, and .a similar operation repaired the right side on February 21, 1957. In accordance with the provisions of Section 13(e) of the Workmen’s Compensation Act (Ark. Stats. Supp. 81-1313 (e)), appellant was provided with the operations and necessary medical treatment, and compensation was paid for twenty-six weeks following the date of injury. Mr. Jobe later, however, filed claim for additional benefits, contending that because of the right hernia suffered, he was permanently partially disabled, and was entitled to benefits for permanent partial disability in excess of benefits provided in the above named section. This claim was controverted, and was denied by the Referee; the full Commission sulisequently denied the claim, holding:

"In construing the quoted section of the law, we have consistently held that the maximum 26 weeks duration period enumerated therein does not apply as a limitation where hernia results in complications. By ‘complications’ we mean infection, or damage to bodily organs or structures separated and distinct from the hernia itself. Where the hernia alone, and its accompanying effects upon the fascia, disables an injured claimant more than 26 weeks, he is not, under our law, entitled to additional compensation. The very occurrence of hernia denotes a weakness of the fascia, and consequently we do not believe a weakened fascia gives rise to entitlement to benefits for permanent partial disability aside and apart from benefits paid for disability for the hernia itself. ’ ’

Prom the evidence, the left hernia is well healed, and has caused no difficulty, but the right side (which received most of the impact of the falling shaft) continues to cause pain and discomfort, and appellant testified that he had been unable to do any sort of “heavy” work since the aforementioned accident. The proof reflects that up until the time of the injury, he was able to perform all kinds of construction work, including bulldozing work and heavy lifting, but that he is presently unable to do so; that “he just isn’t able to do his customary work around construction jobs.” The medical evidence clearly reflects that appellant received a very severe hernia on the right side, and three doctors rated his permanent partial disability to the body as a whole, from 5% to 30%. According to Dr. Robert Calaway of Batesville, in referring to the tissues of, or adjacent to, the abdominal wall:

“The tissues on that side, the fascia on that side, I would say was separated over a length, of I’d say approximately five inches. It was flared out or separated in three to four places the entire length of that thing, and I attributed that to his blow.”

Dr. Calaway testified that he was able to repair the hernia and the split fascia with the operation, and that he felt the recovery from the wounds had been satisfactory. He found no evidence of a break in the fascia, but stated ‘ ‘ * * * that he is going to have to restrict his heavier lifting. * * *” Dr. Joel Monfort of Batesville testified:

“This man’s fascia over this area above the cord known as the inguinal canal was so thin for about an inch in width and three or four inches long, that yon could see the red musculature beneath the thinned out fascia. Now, if you cut this fascia, lay it back, you find another layer of red muscle like this (indicating), and that is what you could see through there it was so thin. That is the term we use, “splayed out,” thinned out fascia, from his injury and such pressure from underneath, and so the hernia comes up through this internal canal in here, comes down along the cord to what we call the external canal # *

He testified that the fascia is very slow in healing and particularly so when it is torn or cut, and that this hernia was “more extensive than most of them.” The doctor further stated that in almost all inguinal hernias, some weakened fascia is found; otherwise, there would likely be no hernia to begin with.

Section 81-1313,' provides as follows:

“The money allowance payable to an injured employee shall be as follows:”

Thereafter follows a number of subsections listing various categories of disability, and making provision in each for the amount of compensation due for the particular type of disability mentioned in the subsection. Subsection (e) deals entirely with hernia, first setting out the requirements that must be met in order to qualify for benefits, requiring the employer to provide the necessary medical, surgical, and hospital care to effectuate a cure by radical operation not exceeding $250, and providing for compensation not exceeding a period of 26 weeks.

It is, of course, obvious that benefits arising from hernia are to be determined by this subsection; otherwise, there would be no need for a special section dealing with this particular type of injury. Section 1470, Volume 5, Permanent Edition, of Schneider’s Workmen’s Compensation Text relates that specific provisions respecting hernia as a compensable injury are found in thirty-two of the Workmen’s Compensation Acts in this country. A study of numerous decisions from various states whose laws make special provision for hernia cases, results in finding that the limitation placed on benefits in such cases is consistently adhered to. See Williams v. Industrial Commission, 68 Ariz. 147, 202 Pac. 2d 898, Nelson Electric Manufacturing Company v. Lige Cartwright, et al., (Okla.), 277 Pac. 2d 163; Furferi v. Pennsylvania Railroad, Company, 117 N. J. L. 508, 189 Atl. 126.

Appellant cites no authority to the contrary, but simply contends that under a liberal construction of the Act, he is entitled to permanent partial disability benefits. Also, he feels that his hernia was accompanied by complications. As to the latter contention, we agree with a statement made under “Conclusions,” found in the Opinion of the Commission, and heretofore quoted, vis:

‘ ‘ The very occurrence of hernia denotes a weakness of the fascia, and consequently we do not believe a weakened fascia gives rise to entitlement to benefits for permanent partial disability aside and apart from benefits paid for disability for the hernia itself.”

Of course, we are so well committed to the policy of giving a liberal and broad construction to the provisions of the Workmen’s Compensation Act, as to require no citation of authority. However, this does not mean that the plain provisions of the Section can be ignored. Appellant says, “The Section under consideration provides for death benefits in the event death occurs either from the hernia or the operation thereof; we see no reason to exclude benefits for permanent partial disability.” Without discussing the logic of that assertion, let it be said that the best reason for excluding benefits for permanent partial disability is simply that the Section does not provide for them. It is true that Jobe apparently received an unusually severe hernia, and we have no reason to doubt that he will be unable to perform some of his previous work in the usual manner. As stated by Dr. Joseph A. Buchman of Little Bock, “* * * possibly he should never be allowed to do heavy manual labor.” All examining physicians (4) agreed that the operation was satisfactory, and Doctors Buchman and Calaway stated that they were unable to account for the undue amount of pain. While Jobe suffered a double hernia, he would not be entitled, because of that fact, to additional benefits, since both injuries arose from the same occurrence, — nor is this fact emphasized by appellant.

Probably the vast majority of hernia cases follow the pattern of appellant’s left hernia, %. e., there is a period of temporary discomfort and disability, after which the injured person returns to work. Even then, it is frequently necessary that one avoid a strain. While the blow on the right side has caused more suffering and more disability than normally results, still such suffering and disability are the result of a hernia, and the statute does not provide additional benefits because a particular injury in this category happens to be more severe than the usual injury.

The judgment is affirmed.

Ward, J., not participating. Johnson, J., dissents.

       According to Dr. Calaway, the fascia “® * * is a covering over that muscle that lends strength to the abdominal wall. It is your —I don’t know how to tell you, but it is the strength in that abdominal wall. The muscle is not — the muscle bulges and gives, but that fascia is a sheet of thick and strong material. Q. Is it the inner lining of the abdominal wall? A. The covering of the muscle.”

       The Section then enumerates the duty of the employer, and amount of compensation to be paid, where the employee refuses to permit the operation, makes further provision for cases of death resulting in one year, and provides that a recurrence of the hernia following radical operation shall be considered a separate hernia.

       According to the text, including three federal acts, and four territorial acts, there are twenty-two American Workmen’s Compensation Acts that do not have a special provision relating to hernia.

       Also, from Dr. Monfort’s testimony: “Well, I have told him flatly that I thought he would have to quit lifting 200 and 400 pound stones and timbers and straining to start machines, etc., knowing that he has always been what is colloquially known as a horse of a man.”

       According to Dr. Buchman: “The left hernia is well healed. There is no tenderness along the scar. The fascia is tight.”


author: J. Seaborn Holt, Associate Justice.

text:
    Edgar v. Dickens.
    5-1766
    320 S. W. 2d 761
    Opinion delivered February 9, 1959.

      F. G. Grow, for appellant.

      McMillan & McMillan, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellants say: “The question involved in this case is: ‘Who are the heirs of Claude Edgar?’.” Claude Edgar died intestate November 11,1957, never having been married. Appellants claim to be his paternal half brothers and sisters and his heirs at law. Appellees, on the other hand, who are admittedly his maternal half brothers and sisters, deny that appellants have any claim to Claude’s estate. The trial court, after a patient and extended hearing, (compiling a record of 275 pages) denied appellants ’ claim and this appeal followed. Only a fact question is involved and, after reviewing the testimony, we have concluded that the court’s findings of facts are not against the preponderance of the testimony, and that its conclusions of law applicable thereto are correct. We set out the trial court’s opinion as follows:

“Statement. This is a hearing to determine heir-ship. Cland Edgar died on November 11, 1957. His estate is being administered by his former guardian, Honorable L. L. Mitchell, under the authority of Section 57-644, Arkansas Statutes (1947), Pocket Supplement. The issue involved here is who constitute the heirs of the decedent. Claud was never married, and there is one set of alleged heirs claiming through his mother, Julia Beard (Edgar) Dickens. These claimants, for the purpose of this opinion, are referred to as ‘the Dickens heirs.’ Another set of alleged heirs claim through Thomas William Edgar (known as Tom Edgar), who at one time was married to Julia. The second set of claimants may be referred to as the ‘Edgar heirs.’ It is undisputed that the Dickens are the children of Julia Beard (Edgar) Dickens, and that Claud was their half-brother on the maternal side. They are therefore heirs of the decedent without question. They claim to be the only heirs. The Edgars are children of Thomas William Edgar, and they claim that Tom Edgar, their father, was also the father of Claud, and that they are heirs of the half-blood on the paternal side.
“Since it is undisputed that the Dickens heirs are half-brothers and sisters of the decedent, the real question for determination is whether the Edgar children are entitled to inherit. The evidence goes back to 1894 and beyond.
“The Pacts. On May 6,1897, Julia Beard was married to Thomas William Edgar, and the record of their marriage appears in Book 2, at page 237, of the records of Bains County, Texas, where both lived at that time.
“Julia Beard was the mother of a male child named Claud. It is Claud’s estate that is now involved in this litigation. The exact date of Claud’s birth is unknown. Army records indicate that he enlisted in the U. S. Army on October 2, 1917, at the age of 22 years and 5 months. That would place his birth in April, 1895, The census report of 1900 shows the same date. Other evidence, including family history and tradition, place Claud’s birth about 1894 or 1895.
“There is some inference in the pleadings as finally made up, and counsel for the Edgar heirs argues, that a common law marriage may have existed between Julia Beard and Tom Edgar prior to May 6, 1897, but there is no proof of this. In fact, all the evidence in the record on that point is to the positive effect that there was no common law marriage in Texas between these parties. So, from the testimony before the Court, two facts are firmly established by the evidence, and the Court therefore finds:
“First: The only marriage of Tom Edgar and Julia Beard was the ceremonial marriage of May 6, 1897; and
‘£ Second: Claud was born prior to the marriage of his mother, Julia Beard, to Tom Edgar on May 6, 1897. A preponderance of the evidence is to the effect that Claud was about two years old at that time.
“There are other disputed facts involved in this hearing, but the two just mentioned are basic and furnish the starting point from which the Court must approach the other questions of law and fact herein involved.
“A preponderance of the evidence also shows that there was another son born to Julia after her marriage to Tom Edgar. His name was Edward and he was known as ‘Ed.’ The census report, introduced by the Edgar heirs, shows that Ed Edgar was born in February, 1898. Ed was killed in Nevada County, Arkansas, on November 14, 1916, and his death certificate shows the same birth date. Whether Ed Edgar was born in Texas or Arkansas is not clear from the evidence, but the fact that he existed is clearly established, and there is no doubt that he was the child of Julia Beard Edgar and Tom Edgar and was born during their marriage. Both of Julia’s sons went by the name of ‘Edgar,’ the older one as Claud Edgar, and the younger as Ed Edgar.
“Subsequent to their marriage, Tom Edgar and Julia Beard Edgar moved from Texas to Nevada County, Arkansas. The exact date of this move is disputed and cannot be definitely determined from the evidence. And, as indicated, whether Ed Edgar was born before or after the family moved to Arkansas is not clear. Be that as it may, Tom. Edgar was dissatisfied in Arkansas and returned to Texas leaving his wife behind. It is not clear from the proof how long he remained, but the evidence is undisputed that he went back to Texas and that Julia Beard Edgar, his wife, and two boys, Claud and Ed, remained in Nevada County, Arkansas. After Tom’s departure from Arkansas there was no contact or correspondence between him and his wife, and he never saw Julia or either of the boys again as far as the evidence shows. On the 15th day of May, 1899, Tom Edgar divorced Julia Beard Edgar in the District Court of Rains County, Texas, and a copy of that decree is in evidence here. The divorce decree of 1899 refers to one child of the marriage ‘more than a year old’ but no name is given. Ed Edgar would have been either 14 or 15 months old at the time.
“Subsequent to being divorced by Tom Edgar in 1899, Julia Beard Edgar later married Albert N. Dickens on September 16, 1906, and to that union was born the claimants who have been designated as ‘the Dickens heirs.’ Julia Beard Edgar Dickens died intestate on April 8, 1952.
“Tom Edgar remarried three times after his divorce from Julia. His second wife died. He divorced his third, and finally married Wilma Bell in 1923 as his fourth wife and the claimants who have been designated as ‘Edgar heirs’ are the children of Tom Edgar and Wilma Bell Edgar. Tom Edgar died on May 14, 1931.
“As already stated, Ed Edgar was killed in November 1916. He was never iharried. Claude entered the U. S. Army in October 1917, and became mentally incompetent while in the Army. He was entitled to compensation and, on November 20, 1920, a guardian was appointed for his estate by the Probate Court of Nevada County, Arkansas. His estate has remained under guardianship from that time until his death in 1957. A number of persons have served as guardian during those 37 years.
“The Law. At common law a child who was not born or conceived during lawful wedlock was illegitimate and had none of the rights of a legitimate child. Such child had no right of inheritance from either parent. There is an interesting article in the Arkansas Law Review, Volume 12, No. 1, at page 118 on this subject. In modern times, however, many states allow such a child to inherit from its mother. Daniels v. Johnson, 216 Ark. 374, 226 S. W. 2d 571, 15 A. L. R. 2d 1401. Anri Statutes in many states provide methods whereby an illegitimate child may be made legitimate. In some states the subsequent marriage of the putative father and mother is sufficient. In re: Estate of Elliott Ruff, 159 Fla. 777, 32 S. 2d 840 (1947); In Re: Lewis’ Estate, 121 Utah 385, 242 P. 2d 565 (1952). This is the minority rule. The majority rule in most States requires (a) marriage and (b) in addition, public acknowledgment or recognition of the child by its father. Rogers v. Morgan, 213 Ark. 229, 210 S. W. 2d 129 (1948). This recognition may be shown by a combination of words, acts or conduct. In re: Estate of Sadie F. Clark, 228 Iowa 75, 290 N. W. 13 (1940); Lowtrip v. Green, 363 Mo. 519, 252 S. W. 2d 524 (1952); Succession of Cambre, 210 La. 451, 27 S. W. 2d 296. Arkansas follows the majority rule in holding (a) subsequent marriage of the parents and (b) recognition of the child by its father to be sufficient acts of legitimation. Arkansas Statutes Annotated 61-103 (1947). The pertinent Statute involved in Arkansas is Section 61-103, supra, which reads as follows:
“ ‘ If a man have by a woman a child or children and afterwards shall intermarry with her, and shall recognize such children to be his, they shall be deemed and considered as legitimate.’
“In Parker v. Hadley, 227 Ark. 161, 296 S. W. 2d 391, the Arkansas Supreme Court held that this Statute requires proof of three things, (1) the actual parentage of the putative father; (2) the putative father’s marriage to the mother of the illegitimate child, and (3) recognition by the putative father, after marriage, of the child as his.
“Insofar as the case at bar is concerned, the marriage of Julia Beard and Tom Edgar is conceded. But the burden was on the Edgar children to prove the other necessary elements of the Statutes as set out in Parker v. Hadley, supra. An alleged heir has the burden of establishing his or her relationship to the decedent. Therefore, in order to inherit in this case, the Edgar heirs had the burden of proving: First, that Tom Edgar was, in fact, the actual father of Claud; and Second, that Tom Edgar, after his marriage in 1897 to Julia Beard, recognized the child Claud as his son.
“After a careful examination of all of the competent evidence and exhibits in this case, the Court has concluded that the Edgar heirs have not met the burden of proof required. While the modern trend is in favor of legitimation, and while Courts have become quite lenient in requiring proof of acknowledgment, and although Statutes are liberally constructed in favor of illegitimate children, nevertheless, in Arkansas a preponderance of the evidence must show that the alleged father, was, in fact, the parent, and that he recognized the child as his own after marriage to the mother. The proof in the case at bar is not sufficient to establish those two facts.”

Accordingly, we affirm the judgment.

McFaddin, J., not participating.