author: Mr. Justice Soott

text:
    Danley et al. v. The State Bank.
    'The act of the Legislature, exempting the debtors of the State Bank from process of garnishment) declared constitutional; and the decision in The State et al. vs. Curran, (1 Eng. 322,) as to this point, re-affirmed.

      Appeal from PulasM Cvrcuit Coivrt.

    lion. William I!. Eeild, Circuit Judge.
    ■ PiKE & Cummins contended :
    That, as the chancery -cause, set up in the plea, was first instituted, and the subject matter drawn in controversy there; and that the plaintiff was bonnd to defend in the chancery suit successfully before she could harrass the defendants at law by a second suit for the same canse of action; that, the court which first obtains or assumes jurisdiction over the parties and subject matter, can alone judge of that jurisdiction ; that, although this court has decided the principle here involvéd,. in tbe case of State et al. vs.- Owrrcm, (7 Eng. 364,) tbe chancery court having tbe case before it, should be permitted to decide it.
    S. H. Hempstead,
    for the Bank. The only question in this case is, whether a debtor of the State Bant is subject to garnishment by a creditor, and this is decided in favor -of the bant, in -the case of The State vs. Owrrwi, 7 Eng. 322.
   Mr. Justice Soott

delivered the opinion of the Court.

This was an action of debt, upon a promissory note, payable to the Bant. Martin made default, but Danley interposed two pleas, (to which the Bant demurred,) setting up, in substance, that Curran had filed his bill in chancery against the Bank, the said defendant Danley, and others, before the institution of this suit, in-which he had alleged that he had obtained certain judgments at law against the Bant upon her issues for circulation, and for their satisfaction had in vain exhausted all his remedies at law. That the Bank had certain equitable assets; which he specified, and, .among them, the debt in this declaration mentioned, which he prayed the court to cause to be discovered and made subject to the satisfaction of his judgments. That, in obedience to the subpoena, said defendant Danley had appeared, and by his answer had admitted his alleged indebtedness to the Bank, but had set up that he was not subject 'to be garnisheed as the debtor of the Bank, and that said chancery court had not authority-or jurisdiction to grant the relief sought in the premises, and that said chancery cause was still pending and undetermined, and prayed judgment of said writ and declaration, that the same might be quashed. Which pleas were verified by affidavit.

The court sustained the demurrer, and gave judgment in favor of the Bank, to which both defendants sued oiít a writ of error to this COTU’t.

The only question which, as we think, is properly raised by the demurrer, is as to the constitutionality of the act of the Legislature, which enacts that no person indebted to the Bank shall be subject to be garnisheed by any person haying a claim or debt against the Bant, it appearing perfectly manifest that it was the design of the Legislature, as this court has heretofore said, in the case of The State et al. vs. Curran, (7 Eng. 364,) to embrace, by that enactment, not only proceedings at law, but in chancery, the same being clearly ■within the mischief, and therefore embraced within the equity of the statute. There can be no pretence that the enactment in question denies all remedy; and, admitting that “the obligation of a contract, in the sense in which those words are used in the constitution, is that duty of performing it which is recognized and enforced by the laws;” and that if “the law be so changed that the means of legally enforcing this duty are materially impaired, the obligation of the contract no longer remains the same,” the act of the Legislature in question is by no means obnoxious to such an objection; because it can be a matter of no moment to the complainant below whether he subjects the money due by Danley to the Bank, to the payment of his debt in the hands of Danley, the debtor, or of Boss, the Financial Beceiver of the Bank, or of a trustee, who-might be appointed by the court, in a proper case, to collect the debts in the name of the Bank for the benefit of her creditors. So that his remedies are not substantially impaired or materially burthened: he has no cause to< complain; while a sovereign State would be in humiliating vassalage to the Federal Judiciary, if unable to- protect the-debtors of a public institution of her own from the harrassing suits and needless annoyance of every accidental bill-holder, who might choose-to take his “pound of flesh” from where his caprice might dictate.. So that the courts of justice are open to him upon terms that do not deny his right, or unreasonably burthen or delay his remedy, it does not lay in his mouth to object that other creditors of other delators are allowed privileges that are denied to. him. Matters of grace and favor to one, are no ground for a claim of right for another, nor is it inconsistent with the principles of a free government to extend her grace and favor to particular. classes of ber citizens only, wben it may be necessary to ameliorate calamity or promote public policy.

■ In no view presented to our minds is the act of the Legislature in question unconstitutional; and when taken as valid, and as comprehensive as we have considered it, the pleas in question set up no defence to this action; and, in our opinion, were property held bad. Judgment affirmed.

WatKINS, CL J., not sitting, .


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Allis et al. vs. State Bank.
   Mr. Justice Scott

delivered the opinion of the court, affirming the judgment, upon the same, state of facts as presented in the .case of Danley et al. vs. State Bank.

WatKINS, C. J., not sitting.


text:
    Krebs et al. vs. State Bank.
   Mr. Justice Scott

delivered the opinion of the Court.

This cáse, in its facts material to the point of law involved, differs from that of Danley et al. vs. State Bank, and Allis et al. vs. State Bank, only in this, that a decree was rendered against him and his co-defendants, from which the latter appealed to this court, where the whole decree was reversed, from which the cause by writ of error was taken to the Supreme Court of the United States, where it is alleged in the plea to be still pending. In our opinion, the plea was equally bad. Judgment affirmed.

WatKINS, C. J., not sitting.


text:
    The State et al. vs. Curran.

      Appeal from Rulasíd Ci/revÁt Gowrt <m Chancery.

    This cause was decided at the July Term; 1851, (1 Eng. Rep. 321,) and, by writ of error, carried up to the Supreme Court of the United States, where, at the December Term, 1853, it was decided: “That so much of the laws of the State of Arkansas (Act of 31st of January, 1843; act of 10th January, 1845; act of 23d December, 1846; act of 9th January, 1849,) as authorized and required the cancellation of the bonds of the State, given for money borrowed of the Bank by the State of Arkansas, or authorized and-required the withdrawal of any part of the specie or other property of that Bank, and the appropriation thereof to the use of the State, or authorized and required the application of any part of the assets or property of that Bank, to pay bonds issued by the State, and sold to raise capital for the Bank of the State of Arkansas, or for the Beal Estate Bank of the State of Arkansas, or authorized and required real property, purchased for the Bank of the State of Arkansas, or taken in payment of debts due to the Bank of the State of Arkansas, to- be conveyed to, and the title thereof, vested in the State of Arkansas, impaired the obligation of contracts made with the complainant as the lawful holder and bearer of the bills of the Bank of the State of Arkansas, and so were inoperative and invalid;” and said Supreme Court reversed the judgment of this court, and remanded the cause to be proceeded in, as the Constitution of the United States requires.
    The appellee filed the mandate of the Supreme Court of the United States, and moved for an affirmance of the decree of the Circuit Court.
   Mr. Justice Scott

delivered the opinion of the Court.

The appellee, having filed in this court the mandate of the Supreme Coiu-t of the United States for the reversal of the decree rendered here in this cause at the July Term, 1851, (J Eng. 321,) moves for an affirmance of the decree of the Pulaski Circuit Court, made the 20th February, 1850, and for an award of execution thereof, or for such order as may be necessary for its proper execution.

The substance of the decree now moved to be affirmed and executed, is:

1st. That Krebs pay to the appellee the amount of his indebtedness to the Bank, when due, according to the terms of his contract' — that the same be transferred, and set over to the appellee — that, after it falls clue, the appellee have execution thereof against him, and that upon payment, Krebs be released from liability to the Bank. '

. 2d. That, unless, by the 1st day of May, 1851, the Bank should pay to the appellee the residue of the debt, damages and costs, after deducting the amount decreed to be paid by Krebs, that the lots and tracts of land described in the bill, (not including the lots sold to Krebs,) or so much thereof as should be necessary, should be sold on that day at a place specified, by a commissioner appointed by the court for that purpose, and after a specified notice: and that the commissioner execute and deliver deeds to the pux-chasers thereof conveying to them all right, and estate of the several defendants therein, on the 13th day of August, 1849, or at any time since.

3d. That, should the proceeds of such sale fail to produce the aforesaid satisfaction, then, that Boss, the Financial Beceivor of the Bank, should deliver to said commissioner, forthwith, all the bills and notes for circulation issued by the Eeal Estate Bank, (or so many thereof as might be necessary to satisfy the residue of :said debt, damages and costs, and interest,) belonging to the State Bank, that were in his custody on said 13th day of August, 1849, or had come to his custody at any time thereafter, to be sold by said commissioner, at said place, on the 3d day of June,. 1851, after a notice of sale of two weeks, in the newspaper specified before.

4th. That the said'commissioner should have before said Circuit Court, on the second day-of the June Term, 1851, of that court, the moneys realized by said sale or sales, and that the same be first applied to the payment of the costs of this suit and the expenses of executing the decree, and the residue to the satisfaction of the debt, damages and interest.

5th. That the right should be reserved to the appellee, in case the money so realized should not suffice for such satisfaction, to .apply by supplemental bill or other appropriate remedy for the discovery sought by the appellee in his bill, and to pursue such satisfaction out of any other equitable assets of the State Bank.

6th. That the commissioner report bis proceedings to said Circuit Court on the second day of the June Term, 1851, and that for that purpose the cause be continued until then.

We have thus set out the substance of this decree, as of six ■different parts, for convenience and distinctness of remark upon it. As to the first, it is erroneous as to Krebs, because under our statute, which we hold to be constitutional, and to embrace proceedings in equity as well as at law, no person indebted to the Bank is subject to be garnisheed by any person having a claim or debt against the Bank. And had Krebs appealed, the decree would have been reversed for that error. But he did not appeal from the decision in the Circuit Court, and was not a party to any of the subsequent proceedings. Whether or not he has slept too long upon his rights to be now released by the courts, and has no other hope than in such as it may be within the power of the Legislature to afford Mm upon tbe undoubted justice of Ms caso, are questions that we are not called upon to solve, because he has no case before us. But although erroneous as to Krebs, this part of the decree is in no sense injurious to either of his co-defendants, fvhose case only upon their appeal, is before us, and was before the Supreme Court at Washington.

Nor is there any error in the second, tim'd, or fowrth parts of the decree, for which it should be reversed. There is, it is true, no decree of costs against Krebs, nor against the State of Arkansas, upon the overruling of their respective demurrers, as in such cases is directed by the statute, (Digest, p. 230, sec. 29/) and that it is directed in the last named .part of the decree, that the money realized from the sales, shall be first applied to the payment of the costs of this suit; but this can only be injurious to the Bank in case the costs of overruling these two demurrers should be-taxed against her in the bill of costs: and, in that case, the Circuit Court would be bound to relieve her from these items on a motion to re-tax.

The fifth part is but a reservation to prevent any conclusion against the appellee of Ms original right to such discovery of, and to subject to the payment of his judgment, such other or further equitable assets of the Bank as may be necessary for full satisfaction, according to his original right to subject any such assets, and in the maimer allowed by law; and is no adjudication or decree in advance, that any such assets be now so subjected, and by tins, or any other means, lay hold on debts due to the Bank in the hands of the debtors, contrary to the statute which, as we-have already said, forbids it. This part of the decree, therefore, is not erroneous.

The sixth part, specifying a time for the report of the commissioner, wMch has now elapsed, like the second, third and fourth,, as to the-time allowed to the Bankto make payment and in default thereof, the times for the sales, return of the money into court, &c., render it impossible that the decree can be executed according to its literal terms as to time. But these matters relate to tlie execution of the decree only, and do not affect it as for error.

Binding then no error in the decree of the Circuit Court as against the parties before this court, when tested by the opinion of the Supreme Court of the United States in this cause, and that it is proper to make an order here to obviate the difficulties in the way of its execution that have arisen by lapse of time, the motion will be granted in this aspect: the order to be certified to the Circuit Court along with the affirmance that the decree of that court may be executed.

Mr. Chief Justice WatKINS not sitting.


author: Mr. Justice Walxee

text:
    Saunders vs. Wood.
    One partner flies Ills bill after the expiration of the term of partnership against his co-partner for a settlement and share of the profits;1 the defendant, in his answer, denies that there were any profits, and alleges that the complainant is indebted to him on tho partnership account: Held, that a court of chancery, having acquired jurisdiction of tho cause and parties, will dispose of tho whole case and decree for tho one or for the other', as the account may stand; for the defendant, if the balance be due him, without driving' him to a separate suit.

      Appeal from Ashley Cwamb Court m Chcmcery.

    Pice & CuMMiNS, for tire appellant.
    Yell, for tbe appellee.
   Mr. Justice Walxee

delivered tbe opinion of tbe Court.

It appears that Sanders and Wood, bought of Pervis, Wood & Co., $629, worth of groceries on credit, and entered into partnership for the sale of them; by the terms of which it was expressly agreed that Wood should take charge of the groceries, act as sales man and keep the accounts and books of the firm. He was also to pay, out of the proceeds of the sale, their debts to Pervis, "Wood & Co., and defray all expenses. The profits were to be •equally divided between them: the partnership to be limited in time to the sale of the stock of groceries then on hand.

To close this partnership transaction, this suit was brought.

The bill is carelessly drawn, and no doubt demurrable, but as •no exception was taken to it, we will consider it sufficient to bring the parties to an account with each other, and for a final settlement and decree.

It does not appear, either from the evidence, exhibits, or the •answer, for what sum the groceries were sold. The defendant, however, denies that there were any profits whatever realized; but on the contrary that there is a balance due on account of the film debt. He offered to hold the books of the firm subject to inspection, but the complainant seems to have taken no steps to bring them before the court, or to compel a more full and distinct ■answer. The evidence is vague and uncertain upon this point; so ■that it is difficult to say, with any degree of certainty, what the ■true state of accounts is between them. Prom the answer (which is responsive to the discovery sought in that particular) there were certainly no profits to be divided; and, therefore, no decree could properly be renderd for the complainant, and from the weight of the evidence (giving the complainant credit for the small advances made by him) it is most probable that there is a balance due to the defendant fully equal to that decreed in his favor. The facts appear to have been twice submitted to the master to take an account; and finally to have been settled by the court upon examination of the evidence. The sum last found due the defendant by the master, and that found due by the court and decreed, are of, very nearly, the same amount, that decreed being most favorable to the complainant.

The only question of doubt that could arise is as to whether the defendant, under the issue formed, was entitled to a decree in his favor. As a general rule, he would not: as for instance, where his right to a degree depends upon affirmative matter, cross demands or set off, a cross bill should be filed; but where as in the present case, the whole matter, grows out of a partnership transaction, and one partner calls the other to account, each claiming a balance in his favor, upon ascertaining such balance, whether for the one or the other, a decree sbouldbe rendered accordingly. The complainant is not taken by surprise. His defence upon a suit against him for such balance, must be predicated upon the case made by himself here as complainant; and for this reason, as well as upon the general principle, that where a court of chancery has acquired jurisdiction of the person and the subject matter, it will, if it can equitably do so, dispose of the whole case, and not drive the defendant to a separate suit to obtain redress.. Decree affirmed...


author: Mr. Chief Justice WateiNs

text:
    Diamond, Exr., vs. Shell et al.
    A will; though folly proven and established, confers no other power- on the executor^ than for the burial of the deceased, and the preservation of his estate: the authority of the executor to act as such, .is derived from the letters testamentary, and his appointment must be. confirmed by the Probate Court::
    On grant of oyer, the letters testamentary, or a certified copy of them,. without tho proof establishing the will, is. sufficient ff-ima /«¿« evidence of the authority of the-executor--to sue..

      Writ of Error to Phillips Circuit Cowrt.

    EiKE & OúmMins, for the plaintiff.
    The certificate of the clerk-of tbe Probate Court tbat tbe will and other papers, including tbe letters testamentary, bad been recorded, was sufficient. Tbe law does .not require a separate certificate to eacb paper recorded.
   Mr. Chief Justice WateiNs

delivered tbe opinion of tbe Court.

Tbe plaintiff sued as tbe executor of tbe last will and testament of Dennis Griffin, deceased. Tbe defendant craved oyer of tbe letters testamentary, of which profert was made in tbe declaration. Tbe plaintiff granted oyer, by producing what purported to be a copy of tbe letters testamentary, with a copy of tbe will .annexed, which bad been granted to him by tbe Probate Court of Phillips county, authenticated by tbe official certificate and .sealgof tbe clerk of tbat court, to be a true and correct copy of tbe last will and testament of Dennis Grifin, deceased, and the letters testamentary granted to Eli T. Diamond, upon tbe estate of said Dennis, b;f tbe Probate Court of tbe county of Phillips, “as tbe same now appears upon tbe records of my office.” As part of tbe grant of oyer, and included in tbe same certificate, there was also produced a copy of tbe proof m extenso which bad been taken at tbe probate of tbe will, and of tbe bond given by tbe plaintiff when be qualified as executor. The defendants demurred for a variance between tbe declaration and tbe instrument exhibited on oyer, though tbe special cause assigned, appears to have been for insufficiency, because it did not appear, from tbe certificate of the clerk, tbat tbe letters testamentary ever bad been recorded in bis office, so as to entitle a certified copy of them to be used in lieu of tbe original.

Though the ground of demurrer may be frivolous at tbe first blush, it seems to be proper to notice tbe statutory provisions on tbe subj ect. We apprehend tbat tbe primary object of probating a will, is, tbat it may be established and authenticated before tbe Probate Court having jurisdiction. All wills, when proven, to-gother with the proofs and examinations taken in support of them, are required to be recorded by tbe [clerk of tbe Probate Court, and tke^ginals filed and preserved in bis office; so tbat tbe ex-editor is not entitled to, or chargeable with, the custody of them. But tbe will itself, though fully proven and established, confers no more power upon the executor to act as such, than he would have to a limited extent, provided by the statute, before probate: that is, for the burial of the deceased in a manner suitable to his condition, and the preservation of the estate: because, one or more of the executors may refuse to act; and, in case all renounce, the will would have to be executed by a special administrator. The Probate Court must judge, whether the executor named be a suitable person, of fall age, of sound mind, and otherwise qualified to be charged with such a duty. So, though the testator should direct that his executor might not give security, the court would still have a discretion to require it from him, if necessary, (Bankhead, Exr., vs. Hubbard, at July Term, 1853.) It would, therefore, be correct to say that the appointment of an executor by the will, has to be confirmed by the Court*of Probate, or the clerk in vacation, subject to its confirmation or rejection, and who is thus presumed to be acting always under its direction.

If the testator’s appointment be confirmed, the person, who is about to become executor, is required to make an affidavit and enter into bond with security, which are to remain of record in the clerk’s office, and being thus qualified, his appointment and authority to act, are to be completed by the issuance to him of letters testamentary, according to the form prescribed by the statute, and to which a copy of the will is annexed. Before the original letters are given out, it is made the duty of the clerk, under a penalty, to record them, and authenticated copies of them may be read in evidence in the same manner as the originals.

Hence it is, that after these successive steps-, the executor always makes out a prima facie case of authority to sue by producing the letters issued to him, or a certified copy of them. A copy of the will accompanies the letters; but as the granting of them presupposes the establishment of the will by the adjudication of the proper court, the proofs and examinations which may have been taken in support of it, do not necessarily fo:^ any part of tbe letters. Li like manner, we understand the intimation in Newton, Ex. vs. Cocke, Ex., (5 Eng. 176,) to be, that though the oath and bond are essential to the executor’s right to act, they need not be produced or proven when his authority is collaterally called in question; because the statute makes them prerequisites to the final issuance of the letters, and it is not to be presumed that the Probate Court, to whom belongs the appointment and removal of executors, has been derelict in exercising its jurisdiction.

Judgment reversed and cause remanded, with instructions to overrule the demurrer.


author: Mr. -.Chief Justice WateiNS

text:
    Hill & Co. vs. Cawthon & Co.
    The defendants in a suit at law, seeking discovery in aid of their defenoo, must, at least, use such reasonable diligence as would be required in procuring the testimony of an ordinary witness, who was known to them as such, and of the materiality of whose testimony they were apprized: and the petition comes too late, when filed at the third term, and it appears that the plaintiffs are non-residents, and the defendants were aware of the existance of the facts, as to which the discovery is sought, before the institution of the suit. And where tfi'e discovery is sought in aid of a defence as to part of the demand sued for, no order for the discovery and injunction of the proceedings ought to be granted, unless the defendants bring into court so much of the debt as is admitted to be due.
    A petition for discovery, must show, not only that the discovery is material, that the defence would be difficult or doubtful without it, b.ut that the material facts relied upon are not susceptible of proof by witnesses, or the ordinary sources of defence in suits at law.

      Appeal from OuaoMta Gwomt Goivrt.

    Before Hon. Sheltoh WatsoN, Circuit Judge,

      Pro: & CuMMiNS, for tbe appellant
    CueeaN, for tbe appellee.
    Tbe petition was filed too late. It w-as not presented until after tbe cause bad been pending for tliree terms, and when it bad been called and stood for trial, and there was no pretence that any diligence bad been used, or effort made to procure testimony.
    A petition under tbe statute is governed by precisely tbe same rules governing bills for discovery in equity. Digest, cheap. 126, see. 93, 96, 96, 97. Field vs. Pojpe, 5 Arh. 66. Tbe statute requires tbe court to make an order staying tbe proceedings. Digest, cheap. 126, see. 95.

    This bill fails to show that the discovery was material- Ifitf, Dl. 192. Ffewhi/rh vs. Willett, 2 Ocmi&’s Oas. m Eg. 296.
    It does not appear that tbe matters sought to be discovered icould not be established by witnesses. "Where a party asks a ■court to stay proceedings at law, on tbe ground that discovery is necessary to aid him in bis defence, be must not only show that •tbe facts, as to which discovery is sought, are material, but be must also show that tbe defence cannot be established by tbe testimony of witnesses. Leggett vs. Porley, 2 PaAge 601. 2 Hoff. Oh. P. 109. Seymowvs. Seymour, kJ.G.R. 409. Bulloch vs. Boyd, 2 J. J. Marrsh. 323. Bass vs. Bass, 4 Hen. c&Munf. 478. Peese vs. Parrish, 1 MeGord,s Oh. 60. 7 Cremch, 89.
   Mr. -.Chief Justice WateiNS

delivered tbe opinion of tbe Court.

Tbe appellees commenced an action of law against tbe appellants, .as tbe acceptors of a protested bill of exchange. Tbe process, returnable to tbe April Term, 1852, of tbe Ouachita Circuit Court, was served upon tbe defendants on tbe 24th of February, in that year; and, at tbe return term, they appeared and craved ,oyer of the instrument sued on. At tbe October Term following, •they pleaded non assumpsit, and set off. At tbe April Term, 1853, they interposed a further defence, which, without now questioning its sufficiency, may be considered as a plea of partial failure of the consideration, for which they had accepted the bill in suit, and which was drawn by the plaintiffs, payable to their own order. During the same term, the defendants presented their petition for discovery, in which, after alleging the same facts set out in the plea, conducing to show a partial failure of consideration,' the petitioners state that “they are advised they cannot safely proceed in defending the said action, without having such discovery as aforesaid of the circumstances hereinbefore stated from the said defendants.” The bill prayed for an order requiring the-defendants thereto to answer certain interrogatories propounded to them, and for an order restraining or stayinf further proceedings. in the suit until the discovery could be obtained. The transactions disclosed in the petition, showed that the plaintiffs to the1 suit at law, resided abroad, so that an order requiring them to answer the interrogatories, would necessarily have delayed the trial of the cause until a succeding term. It further appears, from the-nature of the facts alleged, and in relation to which a discovery was sought, that the petitioners must have been personally cognizant of their existence as a defence-, before or at the time of the-institution of the suit at law. The petition was verified by affidavit, in conformity with the statute, commented upon in Field vs. Pope, (5 Ark. 66;) and Conway & Reyburn vs. Turner & Woodruff, (3 Eng. 356,) which gives to common law courts the same-powers, in relation to discovery, that belong to courts of equity,, and makes the answer evidence on the trial, in the same maimer as an answer to a bill in equity for discovery. If- the common, law court, or judge, is of opinion that the interrogatories, or any of them, ought to be- answered, it is his duty {Rev. Stat., Title,Practice at La/w,sec. 95,) to make an order requiring the party,, from whom the discovery is sought, to answer the same, or show' good cause why he should not do so, and that the trial of the-suit be stayed until such order be complied with, or vacated.Upon demurrer, tbe petition was adjudged insufficient, and tlie action at law then progressing, tbe plaintiffs bad judgment.

It requires no extended examination of authorities to demonstrate that tbe decision of tbe court below was right. Supposing that tbe petitioners were entitled to tbe discovery as evidence, no excuse is pretended, why they bad not endeavored to avail themselves of it at an earlier period, and with at least such reasonable diligence as would be required in procuring the testimony of an ordinary witness, who was known to them to be such, and of the materiality of whose testimony they must have been apprized. Moreover, we do not see how tbe petitioners could have been entitled to the order for discovery, and injunction of the proceedings St law, without bringing into court so much of the debt, as the petition and plea admitted to be justly due upon the bill of exchange. In Field vs. Pope, tbe law is broadly stated to be, that “the discovery is generally granted upon the principle that tbe party cannot prove tbe facts sought to be discovered, without resorting to tbe conscience of tbe opposite party; and this is of tbe essence of tbe right.” And though that was a ■strong case, where tbe party calling for tbe discovery thought proper to read the answer, though not obliged to do so, and after making a witness of his adversary, by reading the answer, undertook to impeach it by other testimony, we are not prepared to •say that the rule is laid down too broadly, with reference to the allegations which ought to appear on the face of the petition. "We do not wish to be understood as saying that the suitor at law cannot have a discovery in aid of his suiffor defence, in any case where, though he may have some evidence, the proof of the claim or defence relied upon would be doubtful or difficult without the aid of the discovery, in respect of which, there may be debatable ground in theory as well as in practice. It is sufficient to say that this petition does not represent any such state of doubt or difficulty, and for aught that appeal’s, it might be inferred that every material fact relied upon for the defence, was susceptible of proof by witnesses,--and the ordinary sources of evidence in suits at law. In Marsh. vs. Davidson, (9 Paige 584,) Chancellor "Wal-wobth makes what seems to be. a reasonable distinction, that, to sustain a bill of discovery in aid of a defence at law, the complainant must show that the discovery sought is material to his defence; not that it is absolutely necessary. But where the complainant also seeks relief in chancery, upon the ground that the discovery is necessary, the bill must allege affirmatively that he cannot establish such defence at law without the aid of the discovery sought; and the relief may be demurred to, if in such case the bill does not show that the discovery is necessary, as well as material and convenient. And he proceeds to say: “Asimilar averment of the necessity of a discovery in aid of the defence at law, must be made and sworn to, where the complainant in a bill of discovery asks for an injunction to stay the defendant’s proceedings there, until he has answered the bill.” Such was the case here; and, seeing no probable grounds for the appeal to this court, and which the appellants have caused to operate as a supersedeas, the judgment will be affirmed, with damages for delay.


author: Mr. Chief Justice Watkins

text:
    Walker, as Com. vs. Byrd et al.
    A justice of the peace has jurisdiction to ronder judgment for each installment of inter» est, as it fails due, or any number of installments not exceeding a hundred dollars, in any one suit for the interest payablo semi-annually on a bond due at a future day.

      Appeal from PulasM GvtcmL Cowl.

    Hon. ¥m. H. Feild, Circuit Judge.

      ■ CurraN & Gallagher, for tbe appellant,
    contend, tbat if tbe justice of tbe peace bad jurisdiction, tbe writ of prohibition would, not be, although there was an erroneous proceeding before tbe magistrate, (Williams, Ess pcvrta, 4 Arlo. B. 589); tbat an action of debt may be brought before a justice ©f tbe peace for tbe ar-rearages of interest, not amounting to one hundred dollars, upon a bond payable after the- time tbe suit was brought, but bearing interest from date payable semi-annually in advance. 1 Ch. PI. 125. Com. Pig., Debt, A. 1. McClel. & Y. 457. Sparks vs. Ga/rigues, 1 Bwm. 152, cited in 1 Chit. Pl.,p. 129, (Ma/rg.) note 297. Bories vs. Jamison, 5 T. 1}. 557. So, an action of covenant would be in such case. The State vs. Scoggm, 5 Eng. 327. Bern. Stoat., p. 640., sec. 3. Act of 21 si Pec., 1846.
    ■ PiKE & CummiNS, for tbe appellees.
    Debt would not be on these installments for interest. It will not be to recover money due by installments on a bond, until all tbe days are past. Seedier vs. Price, 1II. Bla. 547. Co. Pitt., 47 b. If a bond be with a penalty, and conditioned for tbe payment of tbe installments, debt wib be on failure to pay tbe first installment. Ballet vs. Boclges,, Sa/yer 29. Spa/rks vs. Ga/rrigues, 1 Birni. 152. Gladma/n vs. Binckma/n, 2 Vem. 135. 1 8tra. 515. 2 ib. 957. 3 Bwrr.. 1379.. It is well settled tbat debt will not be for money payable by installments, until all become due, unless tbe payment be secured by a penalty; but where tbat is tbe case, debt may be brought for tbe penalty.. Fontame vs. Aresta, 2 McLem. 127. Fo/rnham vs. Bay, 3 Black. 167; 2 Overt. 231. 2' Balst. 165. The State vs. Scogm, 10 Ark. 331.
    The installments of interest in this case, are not debts. They are. in tbe nature of interest upon tbe principal sum secured, by tbe bond. If not debts, but merely damages, debt will not be-for them. Covenant, in this case, is tbe only action tbat will be;, and of tbat, a justice has no jurisdiction.

      Tucker vs. Ba/ndall, 2 Mass. 283. • Gremleaf vs. KelloggT ib.
      568/ Ooóley vs. Mise, 3 ib. 221, and Hastings vs. Hiswall, 8 ib. 455, show that assnmpsit is maintainable for interest, stipulated to be paid by a promissory note, before the principal falls due. And so may covenant, if the note is under seal; because, it, like assumpsit, sounds in damages: .and though debt will lie where indebitatus assumpsit will, yet it does not lie where covenant will.
   Mr. Chief Justice Watkins

delivered the opinion of the Court.

The appellant, Walker, as successor of Eoswell Beebe, brought suit before a justice of the peace, against the appellees and one William X Byrd, .since deceased, to recover certain installments of interest due upon a writing obligatory, of which, the following is a copy:

“STATE OF ARKANSAS, 1 .

County of PulasKi. j

Enow all men, by these presents, that we, E. C. Byrd, Wm. •J. Byrd, John Kobins, and Albert Pike, acknowledge to owe, and be indebted, for value received, to Boswell Beebe, as commissioner for township one north of range twelve west of the ■ fifth principal meridian, in Pulaski county, appointed under the act of the General Assembly of the State of Arkansas, to establish a system of common schools in the State of Arkansas, approved Eebruary 3d, 1843, and his successors in office, in the just and fall-sum of one hundred and seventy-five dollars, good and lawful money of the United .States, payable within ten years from the date hereof, with interest on said sum at the rate of eight per cent, per annum, payable semi - annually in advance, to which payments well and truly to be made, we jointly and severally bind ourselves,” &e. -“Signed-and sealed, at Little Eock, the 23d day of December, A. D. 1843,” &c.

On the 12th of September, 1851, when the .suit was commenced, .the justice of the peace, after stating the names of the parties and style of the cause, made the following entry on his docket: “This action is founded on interest due on bond given to Eoswell Beebe, as commissioner of the lGth section, T. 1 N. B. 12 W., by the defendants, Bichard C. Byrd, Wm. J. Byrd, John Bobins, and Albert Pite, and is brought to recover five years and six months interest on said bond, amounting to the sum of $98 00. Summons made returnable BYth September, 1851. Bond filed before summons issued, and afterwards deposited with the clerk of the county court, for safe keeping.” The defendant, Bichard C. Byrd, appeared before the justice, and objected to his jurisdiction over the subject matter of the suit. The objection was overruled, and the defendants having been duly served with process, judgment was rendered against all of them for the sum of $98 00, the amount claimed, with cost of suit. The defendants then petitioned the judge of the Pulaski Circuit Court, suggesting the recovery of such judgment against them, and exhibiting a transcript of the proceedings had before the justice, and prayed for a writ of prohibition directed to the justice, prohibiting him from issuing process of execution, or attempting to enforce the judgment, or proceed any further in the premises. The judge of that court granted an order for a rule to issue, requiring the plaintiff to show cause why the writ of prohibition should not be granted in accordance with the suggestion, and that the service of the same upon the plaintiff' and the justice should, in the mean time, operate as a stay of proceedings upon the judgment. The filial determination of the suit for prohibition, resulted in the decision of the Circuit Court, that the justice of the peace had not, by the constitution and law of the land, any jurisdiction to render such judgment as he had given in 'the premises, and making the rule for prohibition absolute: from which decision, the commissioner has appealed.

The position contended for by the appellees, is based upon the distinction between the forms of actions at law, affording appropriate remedies for a broach of contract according as it may be in parol or under seal, and according as the recovery sought is of a sum certain or for unliquidated damages. The argument is, that if the contract be by parol, or in writing, not under seal, in-torest accruing in advance of tbe principal, would be recoverable before justices of the peace, and they have jurisdiction because assumpsit would lie to recover the interest. But that interest, being,a. mere incident to the debt, is not itself recoverable as a debt,* and when the contract is evidenced by a writing obligatory, covenant is the only action, and there is no concurrent remedy which can be maintained to recover the arrears of interest; whereby, the jurisdiction of justices of the peace is excluded under the decision in Crabtree vs. Moore, (2 Eng. 72,) which held that the exception contained in the constitution, as originally framed, of actions of covenant from their jurisdiction, applied only to those causes of action where covenant was the peculiar remedy.

It is to bo observed that, under the system of pleading and practice adopted for the Circuit Courts, the distinctions between the common law forms of action are retained, while they are disregarded'in suits before justices of the peace, the criterion of whose jurisdiction being the amount in controversy, may be understood to have reference to causes rather than to forms of action. But whatever force there may be in the argument, is obviated by the act of December 21st, 1846, passed in pursuance of the 3d amendment to the constitution, which had been ratified by the General Assembly, during the same session, extending the jurisdiction of justices of the peace over all actions of covenant where the amount claimed does not exceed one hundred dollars. This change in the law, consequent upon the amendment, in no ■wise affected the rights of the obligors, or increased their liability upon the contract in question, though pre-existing. It only provided a different mode of enforcing it before another tribunal, affording a new remedy which the obligee was not only at liberty, but compelled, to pursue.

The statute prescribes a legal rate of interest upon judgments, debts due, and accounts stated; where by the terms of the contract the parties have not agreed upon any rate, and in such case, it might be proper to say that the interest is an incident to the debt; and so, though the interest be stipulated, we continue to recover it along with, the principal in the shape of damages, the judgment following the stipulation. (Henry vs. Ward, 4 Ark. 150.) But wheneyer the parties do stipulate for interest, though according to the legal rate, as well as where it is under or over, it must always be regarded as conventional, entering into and forming a part of the Contract itself. Sumner vs. Ford, 3 Ark. 404.

Where the payment of the principal is postponed, and the contract stipulates for intermediate payments of interest, at stated periods, as the court said in Inglish vs. Watkins, (4 Ark. 201,) “the legal presumption is, that the parties contemplated its performance, according to the terms stipulated; that is, that the principal debt would be paid at the end of twelve months, and the interest accruing thereon at the end of every three months from the date of the contract.” The design of the law establishing a system of common schools, was to make the proceeds, arising from the sale of the 16th section, a fund for their support. The sales were upon extended credits, and the obligation here sued upon was drawn in conformity with the provisions of the statute, so that there must be a clear liability upon the obligors to pay each semi-annual installment of interest as it fell due; and it is equally clear that one jurisdiction or the other must have cognizance of that liability. It may not be technically considered a debt; but it is an obligation to pay, at stated periods, a certain sum of money liquidated and ascertainable by computation according to the terms of the contract, and we think it in harmony with the spirit of the constitutional provision to hold that in such case a justice of the peace has jurisdiction to render judgment for each installment of interest as it falls due; or, as in the case before us, for any number of installments not exceeding a hundred dollars, in one suit: the complaint being founded upon the obligation itself, though properly accompanied with an accurate sj>eci-fication or notice to the defendant of the particular installments, of which payment is demanded.

The intention of the provisions in the constitution, must have been to afford, for the benefit of both plaintiff and defendant, a cheap, convenient, and expeditious remedy for the recovery of small debts, which neither should be allowed to evade. It would be a flimsy distinction to make the jurisdiction depend upon the mere form of the instrument, without looking to the real effect of the contract, and the object the parties had in view. If the ob-ligors had given so many separate obligations or distinct underta■kings in the same instrument, to pay each installment of interest, running through a terna of years, it must be admitted that justices of the peace would have jurisdiction. It is not necessary to express any opinion whether interest could, by that mode of contracting, be lawfully compounded; it being sufficient, for the consideration of this case, that installments, like those in question, do not bear interest after they severally become due, though when merged in a judgment, that would bear interest by virtue of the general law applicable to all judgments.

The judgment of the circuit court will be reversed, and the •cause remanded, with instructions to sustain the demurrer to the declaration filed by the suggestors, and discharge the rule for prohibition.


text:
    The State Bank vs. Tucker, Ad.
    Although no affidavit is required for the legal exhibition of a claim against the estate of a deceased person, upon which an action was pending at the time of his death; yet such action must he revived against the administrator, or executor within two . years from the grant of letters, or the claim will be barred, like any other not legally exhibited.

      Appeal from, Jaékson Cvcewt Cov/rt.

      . Hon. B. H. Neelt, Circuit Judge.

      S. H. Hehpstead, for tbe appellant.
    Tbe pleas to tbe scire facias were improper, and tbe demurrer to them should have been sustained. Dig., 126, 5 JEhg. 584, Byars vs. Wallow, July Twin, 1853.
    Byers & PatteesoN, for appellee.
    TJpon tbe principles declared by this court, in tbe Case of WdlJcer, ad. of Pope vs. Byars, decided at tbe last July Term, tbe judgement of tbe Circuit Court must be affirmed.
   Mr. Justice Soott

delivered tbe opinion of tbe Court.

Tbe Bank sued Stitb Tucker in bis life time. Pending tbis suit, it was suggested tbat tbe latter bad departed tbis life, and tbat Gideon Tucker bad been appointed bis administrator, and, with the view to revive against tbe latter as sucb administrator, sci. fa. was sued out and executed. In response, Gideon Tucker set up, by one plea, tbat letters of administration on tbe estate were granted to him on tbe lOtb day of October, 1849, and tbe sci. fa. was not executed upon bim until tbe 14tb of October, 1851; and, by another plea, tbat more than two years bad expired since tbe grant of administration, and tbat tbe claim bad not been ■exhibited to him in any mode provided by tbe statute within tbat period. The Bank interposed demurrer, which was overruled and electing to stand on it, 'final judgment was given for Tucker, and tbe Bank appealed.

Although actions pending against any person at tbe time of his death, which by law survive against tbe administrator or executor, are without tbe rule requiring tbe authenticating affidavit when exhibition of tbe claim is sought by a revival of tbe action against sucb representative, it by no means follows that such claims are without tbe rule requiring imperatively tbe exhibition of all claims within tbe two years, in some one of tbe modes provided by tbe statute. When sucb actions are revived, tbe statute declares tbat “they shall be considered demands legally ex-bibited against tbe. estate from tbe time sncb actions shall be revived-and shall be classed accordingly.” (Dig., p. 126, see. 86.) But if such revival should not be bad until after tbe expiration of tbe two years, like exhibition in any other mode after' tbe expiration of tbe two years, it would be too late. (Walker ad. vs. Byers, 14 Ark. R.) Judgment affirmed.


author: Hr. Justice Scott

text:
    McPaxton, Ad. vs. Dickson et al.
    An executor is not entitled to a credit in the annual settlement of his accounts for payments, without order of court, to legatees or distributees: such payments are at the peril of the executor; and though valid as between him and the legatee or distribuí tee, not so as to others, having paramount rights in the estate.

      Appeal from Bernier Cvremb Cowrt.

    Hon. SheltoN WatsoN, Circuit Judge. .
    S. H. Hempstead and B. 3?. Hehpstead, for tbe appellants, ■cited tbe 101th and 109th sees., eh. 4, Digest.

    CüRRAN & Gallagher, for appellees, cited tbe 130í7¿, 131si, 132d, 135th sees., eh. 4, Devised Btákotes.

   Hr. Justice Scott

delivered the opinion of tbe Court.

Tbe executor, at an annual settlement, claimed credit for several sums of money, which be bad, without an order of court for any distribution of tbe estate, paid out to some two or three of the heirs, in anticipation of, and as a part of their probable distributive shares, respectively, in the ultimate residue of the estate. Other heirs excepted to these items in his account; but the Probate Court overruled their exceptions, and allowed the executor thus to credit himself. Upon bill of exception, and appeal to the Circuit Court, the ruling of the Probate Court on this point, was held erroneous, and the Circuit Court, thereupon restating the account, excluded these items from the credits allowed the executor; and he, in his turn, has appealed to this court.

Although an executor or administrator may pay out legacies or distributive shares, before an order of court for that purpose, it is at his own peril. He has no right to make creditors of the estate, or some of the heirs or distributees, when he has paid out only to others of them, share this responsibility with him against their consent. The several provisions of the statute, relating to the payment of legacies and distributive shares, are not for his protection alone, (Digest, j?. 134, seos. 130,131,132,135); but for that of all persons interested; and especially-for the protection of creditors whose rights are paramount to those of heirs or dis-tributees. The assets are in the custody of the law, primarily for the benefit of creditors; and it is presumed, by the law, that they remain in the hands of the executor or administrator, subject to the claims of creditors only; until ordered by the court to be paid out, or distributed to legatees or distributees. Such orders of court, in the progress of the administration, are easily obtained under the provisions of our statute in cases where the rights of creditors are not jeopardised; andaré always tobe encouraged, when this is not the case: and the voluntary payment of legacies or distributive shares by executors or administrators, without an order of court, are sufficiently encouraged by holding the payment or distribution valid as between him and the legatee or dis-tributee to whom it is made; although not so as to others having paramount rights in the premises.

yfe think there was no error in the action of the Circuit Court. Judgment affirmed.

WateiNS, C. J., not sitting.


text:
    Roberts vs. Williams et al.
    Where the owner of land, through which a road is located, objects to the proceedings of the commissioners appointed to view and mark out the road, it is immaterial whether he was the owner of the land at the time of the view, or succeeded subsequently to the estate of tho then owner: it is sufficient that lie became tho owner before tho final action of the county court, and presented a sufficient objection to the establishment of the road.
    And where the county court proceeds to make a final order establishing' the road, after such owner of land has become a party to the proceeding, he has tho right, upon showing that the final order of the county court is erroneous, and that he has lost his right of appeal in the mode provided by the statute, without any fault or negligence on his part,- to a writ of certiorari, to bring the proceedings before the Circuit Court for revision.
    Without the consent of the owner, private property cannot be taken for private use, even under the authority of the Legislature; nor.can it be taken for the public use without providing for just compensation, to be first made to the owner. (Martin, Ex parte, 13 Ark. 198.)
    It is by virtue alone of the right of eminent domain, that private property is taken for tho purpose of being used for a road, and whether the road be a public or private one, it is equally for the public use.
    No valid and binding order could bo made by the comity court, establishing a private road where the report of tho commissioners failed to advise the county court, in pursuance of tho statute, of the ownership of tho lands, and of the damages to be sustained by each owner, through whose lands the road was laid out.

      Appeal from Phillips Circuit Court.

    Hon. Charles W. AdaMS, Circuit Judge.
    Palmer, for tbe appellant.
    That the petition, of Williams should have accurately described the termini of the proposed private road, See Digest, eA..140, seo. 62. .
    That Williams should have .deposited “a sufficient sum of ino-ney,” before-tbe court could appoint viewers, See Digest, chap. 140, see. 63.
    That tbe viewers should have been sworn before entering upon their duties; and that tbe record should show that fact, See Digest, chop. 140, see. 63, 47. Breekeovridge vs. Ward, 1 Mon. 57. Eolla/rd vs. Ferguson, 1 Ditt. 196. Elliott vs. lewis, 1 A. H. Ma/rsh. 143. Hudson, as ad. vs. Breedmg et dl., 2 Eng. 445.
    That the viewers should have- stated the names of the owners of the particular lands, if known, and if unknown, should have stated that fact, and should have particularly described each tract of land. Digest, chap. 140, see. 64.
    That the viewers should have assessed damages as to all of the lands over' which the road passed. Dig., chap. 140, see. 64, 67, 53. Ma/rti/ri et al. Etapa/rte, 8 Eng..

    That there was error, for which the proceedings should be quashed. See Roberts vs. Williams et al., 8 Eng.

    Pike & Cummusts, for appellees.
    The county courts have general jurisdiction over the matter of public and private roads in this State. See 9 Art. Gon. Chop. 49 cmd 140, Bern. Stat.

    The counties are quasi corporations, whose active- agents are the courts. Their-powers and acts, should be liberally construed. Ang. da Am. on Corp. 17,18.
    The only judgment which can be given on certiorari, is one of quashal or affirmance of the proceedings. 4 Ark. B. 473/ 5 ib. 358. 6 Eng. 613.
    Nothing outside of the record returned, can be assigned fox-error, pleaded or adjudicated upon. 6 Eng. 613. '
    The county courts are not mferior. They have in their favor the presumptions which attach to the proceedings of superior courts of general jurisdiction. It is not necessary that the facts conferring jurisdiction should appear of record, or a strict compliance be shown with the statute under which they act. 6 Eng. 519, 604. 4 Cow. 292. 6 Wend. 447. 6 Eng. 157.
    No objection here raised affects the jurisdiction of the court, so tbat at most, if tbe matter appeared of record, it would only be a mere irregularity, not rendering tbe proceeding void. 1 Bill (B. T.) 130.
    Tbe last proceedings being void and quashed, any thing stated or appearing therein, cannot be used to defeat the first proceeding.
    All citizens were parties to the first-proceedings, and as no objection was then raised, or damages demanded, every supposed objection is now waived. Seo. 67, oh. 140, Rem. Stat. 15 Wend. 374, 610. 3 Mon. 266.
   Mr. Justice Soott

delivered the opinion of the Court.

This is an appeal from the Circuit Court of Phillips county, in a case where a portion only of certain proceedings in the county court of that county, touching a private road, was quashed, the whole proceedings having been brought into the former court by certiorari to the latter. It appears, from the transcript of the certified proceedings of the county court, that, on the 15th of April, 1850, Williams filed his petition representing that he labored under great disadvantage, by reason of not having a road from his plantation to the Mississippi river, and asking that commissioners might be appointed to view and mark out a route for a private road, and assess the damages, which, in their judgment, would be done to the lands through which the proposed road might run. The county court, on the same day, granted the prayer of the petitioner, and appointed three commissioners, requiring them to meet at a specified time and place, “to view and lay out the route of the proposed road, and assess the damages which might be done to the land through which the same should pass,” and to report their proceedings at the nest term. It does not appear whether or not these commissioners were house-holders, or whether any sum of money was deposited.

Qn the 10th July following, two of these commissioners reported that, on the day appointed, they viewed and marked out a route, “commencing at the crossing of Old Town Lake, at John E. Williams’, allowed twenty-five feet on tbe top of the south bank of said Lake, passing through sections 21, 22, 27, and 26, in ■township 3, south of range 3 east, one hundred and eighty poles, or thereabouts, from the north west corner of section 26, and two poles east of two red or black oak trees, which stand two or three feet apart, and under the bank of the Lake with the letter K, cut on each, the road takes a turn to the s. s. east, and runs on a ridge of land, on which old Mr. Owen and Boston D. Owen now live, in section 25. On the top of this ridge, or slue bank, we allow twenty-five feet from Old Town Lake to the mouth of the slue, where it enters into the overflow of Long Lake and Old Town, between the farms of B. I). Owen and John Reader, except in passing through the farms of old Mr. Owen, we remove, or set in his fence sixteen feet along his entire line, and allow him, at the rate of fifty dollars per acre damages for the land thus appropriated. From the mouth of the slue, through the •overflow, the route will pass in a direct line to the nearest point •on Long Lake, twenty-five feet wide, then down that lake to the Mississippi river.” It would seem, from this report, that the 'commissioners failed to describe so much of the land through which the route passed, as lay between the point where the route turned near the oak trees, and the Mississippi river. They also failed to name the owners of the land that they did describe; nor did they state that the owners were not known, if such'was the case, and failed to give their opinion of the damages to be sustained by each land owner, through whose land, the route passed. Nor does it, in any way, appear whether or not the commissioners were ever sworn to discharge their duties faithfully and impartially, or whether they were of ojnnion that the road was necessary and jnoper, otherwise than as an inference from their having laid it out.

The report, however, having been “read and examined by the court,” was, on the day of its presentation, “ approved and confirmed, and ordered to be spread upon the record.” It does not ajrpear whether or not the court was of “opinion that the road was necessary,” nor was any order then made establishing the route reported “as a private road,” as is directed by the statute in case the court should be of that opinion after the coming in of' tlie report.” {Digest,page 908, sec. 66.) No further proceedings-seem to have been taken in the cause, which, by operation of law, was continued from term to term, until in the April term, 1852, when the appellant Roberts appeared in court, and presented a petition, signed by a number of citizens of the township, who seem to have supposed that the route reviewed had been already established as a private road, representing that the supposed road ran directly through the lands of Roberts and R. Owen, Sr.; that their said land was in cultivation and tinder fence, and they desired to cultivate it; that the supposed road materially injured and damaged the farms of both of them, and that another route could be laid out that would be nearer, and on equally as good and high ground, and as convenient for Smith and Williams, for whose convenience the road was laid out, and which would in no way damage the farms of Roberts and Owens; and they prayed .that the route should be so changed, and that Commissioners bo appointed to review, &c.

The court, on this application of Roberts, granted the prayer of the petitioners in his behalf, and, appointing three commissioners, ordered them to meet at the house of Roberts, on the first Mon- ' day of July after, for the discharge of their duties specially pointed out, and to report their doings at the next term (July.) The April term, however, having continued hito the month of June, it appears that, on the 22d day of this ^nonth, a report “ was received, approved, confirmed, and ordered to be spread of record,” by the court, purporting to be made and signed by two of the three commissioners, that is to say, by Daniel McMahon and John Rogers, whose signatures are attested as follows: “Signed by John Rogers, in presence of J. W. Smith,” then endorsed, “This day, appeared before me, John Rogers, legally orthor to subscribe Daniel McMahon’s name to within instrument. Sworn to before me. Berry Talby, J.P.” This report set out that the commissioners bad viewed all tbe proposed routes, and finding no suitable ground — all being subject to overflow — they “decline making any change,” and that the road must “ remain as previously laid out, through the lands of Roberts and others, passing to the right of Owens’ farm.” Thereupon, on the same day, the court order that the road recommended by the report of the commissioners, at the July term, 1850, shall be “confirmed as a private road to' said John R. "Williams and the said James W. Smith, and that a private road be established, in accordance with said report, not exceeding twenty-five feet in width,” and that Roberts pay all the costs. It in no way appears that Roberts was present, either in proper person or by attorney, when this final action was had in the cause; and upon the ground of having lost his right of appeal by surprise, from this premature final action of the county court, and of the errors of that court in these proceedings in which he had thus shown his interest, and had become a party, and been adjudged to pay costs, and had been adjudged no compensation for the injury to his land that had been made known to the court previously to its final action in the premises, he was awarded the certiorari. But,,upon the hearing in the circuit court, that court found error only in the petition for re-view presented by Roberts, at the April term, 1852, and in the proceedings thereon; and quashed these ofily, leaving untouched all the proceedings establishing the private-road in question: from which judgment of the circuit court, Roberts appealed to this court.

In the view we take of this case, it is immaterial whether or not Roberts was the own\r of the land at the time of the original review, or succeeded subsequently to the estate of Ei’win, who was then the owner, as is stated in his petition for the certiorari. It is sufficient that he became owner before the final action of the county court, showed his interest to that court, suggested that his land would be injured, and objected to the proceedings, it is immaterial in what form.

And to sustain his right to bring these proceedings in question by this mode of proceeding, it is sufficient that he has thus intervened, was recognized as a party, as he unquestionably was, in the rendition of a general judgment of costs against him upon the making of the final order establishing the road, if not otherwise, showed that these proceedings were erroneous, and that he had lost his right of appeal in the mode provided by the statute, without any fault or negligence on his part.

"Without the consent of the owner, private property cannot be taken for private use, even under the authority of the Legislature; nor can it be taken for the public use without providing for just compensation to be first made to the owner. (Martin, Ex parte, 13 Ark. 198.) And when rightfully taken for the purpose of being used for a road — whether a public or- a private one — it is in virtue alone of the right of eminent domain, and is equally for the public use in either case; although in the one the compensation to the owner of the land and the burthen of keeping the road in repair, may be assessed and imposed upon one citizen only, or upon a few, or a company, who may be more immediately interested in it; and in the other case, upon a municipality, or upon the public at large. Upon no other ground can the constitutionality of the private road law be sustained; and it can .well rest here in view of the obligation upon the sovereign power, so to provide as to give each individual of the community a reasonable opportunity to enjoy the privileges secured; and to discharge the various duties imposed upon him as a citizen.

In response to the objection of Roberts, in the county court, to these proceedings, there is no .pretence that any vendor of his had either granted such an easement to Smith and Williams, or to the public at large, and no sufficient time had elapsed from which such a grant could be presumed. - So far from this being the case, there is no response at all in-the record to his objection, as affecting him through any previous owner of the land, even if it be conceded that another owned the land wThen the route was marked out in 1850; because the original report of the commissioners failed to advise the county court in pursuance of the statute of the ownership of the lands, and of the damage to be sustained by eacb owner through, whose lands the road was laid out.. And hence, no foundation, is laid, upon which any presumption can be rested that the county court, although it did not appear ■ upon its record, had in fact, by virtue of its general jurisdiction over the subject,-called in .the land, owners, who were likely to be damaged.by.the proposed roadtas marked out, and either adjudicated-upon their right, to compensation and its quantum, if' claimed; ,or by their default had obtained their implied consent to the proposed-public use of their property. There being np; foundation upon.which to presume, in the special proceedings for.the establishment of a private road upon the petition of the party desiring it, as provided by. our. statute, that these land-owners had implied notice;, as in.the. general proceedings for the establishment of new- roads upon the petition of at least twelve householders of the-township,,in which the-statute-provides that, previously to any intended application to > the county court, notice must be given by advertisement set. up at two or more public places in each township through which the proposed road is to pass, for at least twenty days prior to- such application. And. hence, although no objection had been interposed^-and waiving-all other questions as to the other, objections pointed out — the approval of a report so substantially and radically defective as this is in these, two-particulars, and. also any subsequent action of the county court in ordering, in pursuance of the statute, the establishment of the road upon the basis of such a report, had no • other, irregularity intervened, would have been clearly erroneous,, and could, have concluded the rights of no-land owner, until after" a sufficient-time had first elapsed, when ffcom ¡acquiescence a grant- or dedication-might be presumed to have been made, either by himself or by those from whom he derived his title.. Much more1 then was such action erroneous after Roberts had intervened and affirmatively suggested his ownership and the damage to his land; and, by thus interposing his constitutional right of private pro-. perty, had paralised the power of the county court until his rights should be first judicially ascertained and provided for, by Just compensation to.him, in case the court ■ should, find his suggestions true; and determine, nevertheless, that his property, should •be taken for the.public use.

We think, therefore,.that the--Circuit Court erred in its judg.ment, and that the entire proceedings of the county court ought .to.have been-quashed. .The .judgment, of the Circuit Court of Phillips county, in this cause, must therefore be reversed, and the v cause remanded to that court,-with'instructions to quash,the en- . tire proceedings accordingly.


author: Mr. Chief Justice "Watkins

text:
    Campbell et al. v. Hopkins et al.
    -A testator''devised real estate and negroes to be'divided between the ¡defendant arid bis other, children: upon, a settlement and division between the defendant and one of the devisees, acting-for himself wand as agent and guardian for the others, the defendant claimed two of the negroes as a gift from the testator: the proof as to the gift, was in direct conflict: and,-to-settle thematter, it was proposed and agreed to, that a negro belonging:to the defendant should be substituted in place of the two negroes in dispute: Held, That the Chancellor -correctly decided that the settlement and'division ought not to be disturbed.
    : In such ease, without proof to the- 'contrary, 'the '.pourfc might well presume that the negro of the defendant, thus substituted, was equivalent im value to the two negroes in dispute. But if not of equal value, it was of soinewalue, and the bill for a division • of the two negroes was. properly dismissed, because "the complainants made no offer i to restore to the defendant the value of his-negro substituted in the. former division.

      Appeal from Sevier -Oi/rcmt Oowrt in -Chcme&ry.

    .'Hon. SheltoN WatsoN, Circuit Judge.

      CueraN & Gallagher, for the appellants.
    Pike & Cummins, for the appellees..
   Mr. Chief Justice "Watkins

delivered the opinion of the Court.

The controversy in this suit, arises out of the will of William Cook, of Virginia, and may be sufficiently understood without any detail of the pleadings. The testator directed a portion of his estate, including a number of negroes on a plantation in Arkansas, to be equally divided among his six youngest children, Prances A., Mildred E., (wife of Francis Hopkins,) Sarah E., (wife of William E. Campbell,) Edwin B., James 0., and Laura J. Cook; the two last named being minors when the suit was instituted, subject, however, to certain deductions specified by the testator; that is to say, deducting eighteen hundred dollars from Mildred E. Hopkins5 share, expressed to be for advances heretofore made to her, including the negro woman given her in March, 1845,55 and similar deductions, applicable to some of the other legatees, were also specified. The farm and negroes in this State, were in charge of the defendant, Hopkins; and, among these slaves, were two negro children, Jim and Bet, who are the subjects of the present litigation. It is admitted that Jim and Bet are mentioned or referred to in the testator’s will, as being among those negroes whom he wished to be brought into the division before mentioned, but they were claimed by Hopkins, upon the ground that the testator had given them to his daughter Mildred, the wife of Hopkins, in order to make her advancement equal to what he had given to some of his other children. There is, throughout the entire record of this case, a singular omission of the dates of material transactions relied on by the parties, and which ought to conduce to explain them. It appears, however, that the will was probated in Virginia, in May, 184/7, and the executors renouncing, Edwin B. Cook became administrator with the will annexed; and some time afterwards, in that capacity, and acting also for himself; and as guardian for the minors, and having authority from Campbell and wife, be came out to Arkansas, in order to liave a settlement with Hopkins, and make division of the property. A division was accordingly made, by three disinterested persons in the neighborhood, with the fairness of which Edwin B.. Cook expressed himself satisfied'. He now says that lie was only content with the division so far as it went, and that while he had authority to act for the heirs named in making the division, he was not authorized to relinquish any part of their just claims. He insisted, at the time, that .Tim and Bet were part of the property to be divided; and the sole object of the present suit, brought by five of the legatees against Hopkins, is to have a division of those turn negroes. Upon the whole case, it may be considered doubtful whether Hopkins succeeded in establishing a gift of Jim and Bet, to his wife by her father, as alleged in their answers. The testimony on that point, is in direct conflict; and supposing that he had failed in proving a clear title to these negroes, independent of the will, the law, as contended for the appellants, might be conceded, that he could not claim under, and at the same time in opposition, to the will.

But it does clearly appear, that pending the negotiation about the division, Hopkins asserted his right to Jim and Bet as part of the property which had been given to his wife by way of advancement from her father, and it is also proved that Hopkins finally agreed that Nice, a negro woman of his own, should be brought into the division, and she was accordingly allotted to him for what we must suppose was her estimated value, as part of the share coming to him. No question is made but that Nice was the property of Hopkins, she having been given by "William Cook to his daughter Mildred, and included in the advancement of eighteen hundred dollars, which was to be deducted from her share. Hopkins and wife say, in their answer, that Nice was substituted as one of the slaves to be apportioned among the legatees in lieu of Jim and Bet, at the suggestion of Edwin R. Cook, that it would be fair and equitable, to all concerned, for them to do so, and that they consented to this arrangement for the sake of peace and harmony. This statement is also supported by tlie .preponderance of tlie-.competent evidence in tbe cause: and even if it were not, and .‘Edwin H. Cook bad no authority to agree to the-substitution so as to bind the others for whom he was acting, whatdie did, was.certainly binding on himself as one of •theparties'complainant. '-The value of Nice-is no where alleged or shown,.and the reasonable presumption might be that she was equivalent-in valued» Jim.and Bet. But if not equal, she must have been-of some '.value,.and which the bill makes no offer to restore to Hopkins. Bor this reason alone, the complaint must have'been dismissed, though perhaps without prejudice to any right-of. an infant, xipon the like principle adjudged in Fenno vs. Coulter, at July Term, 1853, where an attempt was made to set aside, a judicial saleior mistake anddrregularity, without refunding, to the purchaser .the money paid by :lnm, and of which the .’defendant, in the-execution, ¡had received-.the benefit.

It is evident from .the will, that the testator had an earnest «desire that there shofild be no controversy or litigation about -.the property among his- children. He directedihat, in the event of any disagreement, it should be-settled by the determination, of .three disinterested lawyers, to-be-selected.'by his executors;• and .'he'undertook to declare a forfeiture of His share by. any legatee mho -would refuse to abide such award. .In .another clause, he «ays, -“;I-will,.and desire, that my executors should not be trammeled or1 confined strictly to my said will in any small matter or particular, where'it is obviously-the bestdnterest of .my children to deviate .therefromiin a small degree in the exercise of a ,sound discretion.” ilt may have-beeniin obedience to these wishes of the.testator, that James Q. Cook, who came of age pending the suit,¡appeared in .court-and disclaimed all interest, declaring that his namehád beenused.as a-complainant, without his knowledge or consent. While this may not be clearly -a case of a family arrangement, -and'-compromise to be adhered,to for the.suppression of disreputable -strife, .there is enough-of ¡bitterness and contradiction in the-record :±o justify the sensible ¡¡conclusion-of the chancellor who heard -the ¡cause, that the settlement and division as .made, ought not .to .be'disturbed. ¡Decree affirmed.


author: Mr. Justice WalKEk

text:
    Pettit et al. vs. Johnson et al.
    Ifc'is definitely"settled that,.until a subsisting levy, -whether upon real or personal estate, is discharged, it is erroneous to-make a.second.lcvy;. and, if it be made, it may be set aside; but.if no .objection be.made for such irregularity, and a sale take place under the second levy, the title offa bona fide.purchaser, will not bo divested.
    The case of Tra/pnaU vs..Richardson,. Waterman & Co., (13 Arle.. 543,) deciding that a levy upon land) within, three years from the date of,the judgment, will not continuo' the lien of the judgment, approved; and, a deed oft trust executed, subsequent to a judgment, butibefore a levy within, and; a.sale after, the expiration, of) three years,, held good against the purchaser at sudusale..
    A deed of trust, for. the benefit of creditors, conveying, to the trustees the legal and equitable estate of the grantor, having been given, no , estate remains-imthe grantor.which can be levied upon and sold upon; execution at-law..
    Where a party, having title to land, neither; misrepresents nor suppresses;any fact connected with his title, but, under a misapprehension.of his legal rights, supposes that., another has a prior lien to his-own, and-expresses such opinion, he is not. estopped* from setting up his title against a purchaser, under, the supposed prior lien, having a* full knowledge of. all tko facts..
    A vendor’s lien will-not be enforced against a purchaser, without notice..
    ■ Ayypeal from GMeot Gvrouit Gowri in Glicmoery..

    Hon. Josiaii Hould, Circuit Judge..!
    Pike & OuMHiNS, for tbe-appellants.
    If tbe levy on these lands: under tbe execution of Johnson was regular,.tlie lien of tbe judgment was wholly independent of the levy. As long as the-lien lasted, there was no need of a levy,, and, by allowing the judgment lien to- expire, the lien of. Johnson was -entirely gone. The lien of the judgment continued only three years from the date of the judgmentand was not continued in force by the levy of the execution. Trcvpnall vs. Jiichardson, Waterman c& Gon 13 Ark. 543.

      By the deed, to Petit & Ford, no interest was left in Ware, but a mere uncertain, contingent, resulting trust. Petit & Ford became seized in fee-simple, and the lands could no longer be seized on execution against Ware, except where the judgment has a prior lien. So long as the judgment lien lasted, the levy was good. As soon as it was suffered to expire, the levy fell with it, and became a nullity ab initio.

    The claim of Johnson to a vendor’s lien, could not prevail against the deed of trust; because a vendor’s lien does not hold against a subsequent sale for a valid consideration; and this deed of trust was no mortgage, but a sale and conveyance to creditors. Cole vs. Scott, 2 Wash. 141/ 2 Story Eg. 1225, 1228 to 1232/ 1 Ero. C. 0. 302/ 15 Ves. 336/ 6 J. C. R. 432.
    The deed of trust was made on the 4th May, 1843; after that, Ware had no interest in the land subject to execution, and, consequently, none to which a judgmentlien could attach. Nothing, therefore, passed by the sale under execution. It is not a case of estoppel. The purchaser does not allege that he was ignorant of the existence of the deed of trust. It was of record. He is charged with constructive notice, and the silence of Petit neither misled nor injured him. lie had other means of information, and therefore the conduct of Petit, or of Ford, did not induce him to do what otherwise he would not have done. Where the purchaser or other actor, was, or ought to have been, acquainted with the subject of his action, or even had the means of knowledge, and neglected to avail himself of them, there is no fraud or estoppel. Hefburn vs. McDowell, 17 S. & R. 383/ Com. vs. Moltz, 10 Barr 531. The rule is, that to constitute an estoppel, the actor, homing no means of information, must have been, by the conduct of the other, induced to do what otherwise he would not have done. Com. vs. Moltz, wp step. See also, Casey’s Zessec vs. Buldes, 1 Gill 502 / Gray vs. Bartlett, 20 Rich. 186 / Ma-gee vs. Gregg, 11 Sm. <& Ma/rsh. 75. ceding tbe deed of trust to baye been yalid and unimpeachablé, tbe first and main question in tbe case is, whether tbe fi. fa. clause in tbe vend. ex. was a nullity, and tbe levy under it void; or whether it was merely an irregularity in tbe process, voidable at tbe election of tbe party in a direct proceeding. If voidable, then tbe levy was good until avoided, and tbe title of tbe purchaser is unassailable in this proceeding. (WilTbraham v Snowj 2 Sawid. 47, note 2/ Watson onShff. 199/ 1 JBos. <& Pul. 359.) But if the j/£. fa. clause was irregular, tbe title of tbe purchaser was not affected, "Ware was tbe only person who could object to tbe irregularity. Blcmie vs. The Charles Carter, 4 Crcmoh 328/ 10 Peters 468/ 2 MeLecm 59/ 13 J. P. 550/ lb. 102/ Whi-tmg <& Slavic vs. Beebe, 7 Png. 550.

      S. H. Hempstead, for the appellees. J. M. & S. Craio, con-

      Tbe complainants were present at tbe sale under tbe execution of Johnson; and neither of them forbid tbe sale: one of them proclaimed that tbe lands were liable to be sold for tbe satisfaction of that judgment, and bid for tbe land when offered: and if tbe complainants can now claim tbe land, it is a fraud upon Graig, tbe purchaser. Tbe doctrine is, that a man, having title to an estate, which is offered for sale, and knowing bis title, stands by and encourages tbe sale, or does not forbid it; and thereby another person is induced to purchase, under tbe belief that tbe title is good, tbe former will be bound by tbe sale, and will not be at liberty to dispute the validity of the purchase. 1 Story’s Eg. sea. 385, 386, 387/ Wendell vs. Van Rensselaer, 1 J. Oh. P. 354/ Storrs vs. Bcvrlcer, 6 J. C. P. 166/ 7 Ves. jr. 235/ 13 Peters 119/ 3 Pcmle 492/ 6 Ba/rb. 590.
   Mr. Justice WalKEk

delivered tbe opinion of tbe Court.

The material facts, upon which tbe equity of this case rests, are, that Thomas Ware, who owned several tracts of land and lots in tbe county of Chicot, in which be then resided, was indebted to a number of persons. Amongst others, be owed Abner Johnson $1,344 36, who, on the 10th of December, 1841, obtained judgment thereon; and to Silas Craig a debt of $2,677, in State bonds; to secure the payment of which, be executed to Craig a deed of mortgage on several of tlie tracts of land so owned, .duly acknowledged and recorded on the 24-th of March, 1843. And to William II. Sutton, and divers other persons, he was largely indebted; to secure the payment whereof, he, on the 4th of May, 1843, executed to the complainants a deed of trust on said lands and lots of land, including the tracts conveyed to Craig. He was also indebted to Benjamin Bailey, who, on the 9th of November, 1843, obtained judgment for $1,340 00. These several judgments and deeds, by force of the statute, became liens on said real estate, having priority according to their respective dates of record. After several writs of fi.fa. and vend, ex., issued upon Johnson’s judgment, had been returned unsatisfied, on the 20th of March, 1844, a writ of vend. ex. was issued with a,fi.fa. clause, which was levied on the lands conveyed to the complainants by deed of trust, but no sale was made until May, 1845, at which time they were exposed to sale by virtue of a writ of vend. ex. issued 12th of March, 1845, and bought by the defendant, Joshua M. Craig, for the_ price of $3,031, which he paid, and took from the sheriff a regular deed of conveyance for the same.

Upon this state of case, the complainants filed their bill; the prayer of which was, that the sheriff’s sale and deed, if any might be cancelled, and the lien of the deed of trust to them confirmed and enforced; and the land sold, first,.to pay Silas Craig’s mortgage debt, and the residue to complainants. Johnson, Bailey, Ware, and the Craigs, are made defendants.

Johnson, in. his answer, insists, first, upon his lien and the validity of the sale under it; and, second, that if there were irregularities, such as might have been fatal to his prior lien rights, if asserted, that the complainants declined taking advantage of them, and by their presence and conduct acquiesced in the sale of the land.

Joshua M. Craig relies upon the same defence, and claims, as a bona fide purchaser, who was encouraged to bid and pay his money by tbe acts and declarations of tbe complainants. He subsequently filed a cross bill, but from tbe view wbicb we take of tbe case, it will be unnecessary to notice it; because, unless tbe sale under Johnson’s judgment lien can be upheld, tbe rights of tbe purchaser must necessarily fall;

It has been repeatedly decided, by this Court, and may now be considered as definitely settled, that until a subsisting levy, whether upon lands or personal property, is discharged, it is erroneous to make a second or further levy; and that, upon application for that purpose, such process andlevy may be set aside; but it has also been decided that if no objection is made to such irregularity, and a sale is made under such erroneous process, that a bona fide purchaser, who pays for the property and gets his deed, will not be divested of his title thus acquired, on account of such erroneous pi-oceeding.

But the main ground of objection to the validity of the sale under Johnson’s judgment lien is, that notwithstanding his was the prior lien, and that the levy was made before his lien expired by limitation, he lost the benefit of such lien, because the sale was postponed until after the three years had elapsed, the period fixed by law for its termination. This precise point came up for consideration in the case of Trapnall vs. Richardson, Waterman & Co., 13 Ark. 543, and it was there held, that a levy upon lands within three years from the date of the judgment, will not continue the lien of the judgment beyond the three years. Adhering to this opinion, it follows, that the purchaser acquired no right whatever under the judgment lien, but took only such interest or estate as .existed in the defendant at the time of the sale.

"We will, therefore, proceed to enquire what that estate was. We have seen that the judgment lien had expired by limitation, before the sale, and that although the levy was made before the expiration of the three years, its effect was not to continue the judgment lien, but to create a new lien from the date of the levy, and we have also seen that before the levy was made, and consequently .before the lien attached, the land so levied upon had been conveyed by deed to the complainants; the effect of which was, to vest in them the legal estate in the lands, charged, it is true, with a specific trust, — the payment of Ware’s creditors,'— and it is also true that if, upon the sale of the property, there should be found to be more than sufficient money for that purpose, the residue of the property remaining undisposed of should be recon-veyed to Ware; or if, upon the sale of the whole estate, there should be found a balance in cash, after the payment of the entire trust, such sum should be paid to Ware. Upon this contingency, and to this extent, he may be said to have an equitable interest in the lands conveyed, and although in some respects this interest is much like that of a mortgager’s equity of redemption, it certainly' differs in this, that the equity of redemption, as well as the legal estate, is conveyed by deed, or if reserved, is dependant upon a contingency, which never happens until after the trust sale. And it is for this reason, that a sale by a trustee vests in the purchaser an absolute estate in the lands purchased, free from all equity of redemption. The legal title and the equity must be conveyed, or he could .never convey such title to the purchaser, because no one can convey a more perfect title than he possesses. This view of the legal effect of a deed of trust, is fully sustained by a former decision of this Com-t. (Crittenden vs. Johnson, 11 Ark. Rep.) And in Morris vs. Way, 16 Ohio Rep. 469, the precise question before us was presented, and it was held that a deed of trust passes the legal title, and though given to secure a debt, and so drawn as for most purposes to be treated as a mortgage, yet, as between the grantor and the grantee, the estate passes, so that nothing remains in the grantor, which can be levied upon and sold upon execution at law.

An equitable interest in an estate was not, at common law, subject to sale under common law process; and our statute which subjects equitable estates to sale, although general in its terms, when properly considered, could never have been intended to embrace such equities as those in this case reserved in the grantor. No one acquainted with, the condition of the land titles in this State, at tbe time tbe act passed subjecting equitable estates to sale, doubts but that tbe main object in view was to subject to sale such equitable interests or estates as were acquired by entry and purchase from tbe United States. For, it is a matter of public history, common to all newly settled countries, in tbe United States, that a large amount, perhaps half tbe lands in tbe State then purchased, were held by such equitable titles, and although paid for and unencumbered, remained unpatented, for a greater or less time dependent upon tbe press of business in tbe land office department. Tbe effect of this was to greatly embarrass and delay tbe collection of debts; to remedy which, was tbe leading object of tbe passage of tbe act, and so we find tbe expressions, all real estate, whether patented or not, whereof tbe defendant was seized in law or equity, shall be liable to be levied upon and sold,” &c., showing that tbe Legislature bad directly in view unpatented lands. Without therefore restricting tbe act to such equitable estates as are held by certificate of purchase' from tbe United States before tbe patent issues, or drawing a line-of distinction between such equitable interests as are or are not within tbe sphit and meaning of tbe act, it will suffice for the-present to consider whether equities of this and like kind are,, under the statute, subject tobe levied upon and sold under execution. And that they are not, is evident, as well from tbe fair construction of tbe act, under tbe circumstances under which it was passed, as from tbe consequences bkely to result from such sales, because a sale of aninterestso uncertain, as well to the nature- and extent of the interest, as tbe time when tbe purchaser could take tbe benefit of bis purebare, would, in most instances, be attended with great lost to tbe debtor, and of very little benefit to tbe creditor, which are tbe prominent considerations to be considered and guarded against in judicial sales. We must presume that tbe Legislature did not lose sight of this. They must have known that no one would be inclined to bid tbe value of interests so doubtful, _and to enjoy -which tbe purchaser would have to resort to a court of equity to ascertain his true interest and affirm his title.

In all such cases, where the debtor is possessed of an equitable estate, in which there are conflicting interests, upon the determination of which the debtor’s real interest must depend, and the creditor seeks to subject it to the payment of his debt, his best and in most cases his only remedy is in chancery, where all the parties interested can be heard, and the real interest of the debtor ascertained, and where a sale may be had under process so guarded as to protect the interest of the debtor and give assurance to the purchaser of an unencumbered title.

The second ground of defence is, that the complainants, by their acts and declarations, encouraged the purchaser to bid for the property, and are for that reason estopped from questioning the validity of his title. There can be no doubt, from the evidence, but that the complainants, as well as the purchaser and ■others juesent, believed that Johnson, by virtue of his judgment lien, had a prior right to satisfaction, and acted under this belief; but there is not a qoarticle of evidence to prove that the complainants either misrepresented or suppressed any fact connected with their own title, or that of Johnson. On the contrary, they made their title known, as well by the records of the country, as fey declarations at the time, and insisted upon their rights under it; not as a title superior to Johnson’s, for under a misapprehension of their legal rights, they supposed Johnson’s superior to theirs, but as a title which they would assert fully. There is, therefore, not the slightest ground for charging fraud upon the complainants. The defendant, Craig, has no cause of complaint against the complainants. He was not deceived with regal’d to the facts, for they were well known to him, and as to his mistake in the legal rights of the parties, he must abide the consequences.

So far as regards the title set up under Johnson, as holding a vendor’s lien, for the purchase money, it may suffice to say that, waiving all consideration of the merits of the defence in other respects, it cannot prevail for want of notice to tbe complainants before tbe sale to them.

Tbe determination of these several grounds of defence, in effect, disposes of tbe whole case, because if Ware bad no such estate in tbe lands, legal or equitable, as was subject to sale under execution, Craig, tbe purchaser, acquired no title whatever to the property sold; and tbe same remains now subject to be sold in satisfaction of tbe trust debts, as folly as if no such sale bad been made.

Part of tbe money paid by Craig to tbe sheriff, has passed into tbe bands of Johnson, and beyond tbe control of tbe Court in this case, as there is no issue between Johnson and Craig in regard to tbe sum so paid. Tbe residue of tbe money is in tbe bands of tbe receiver, and as Craig has lost tbe benefit of bis purchase, it is but just that this sum should be restored to him.

The defendant Bailey has not contested tbe complainant’s title to tbe property, and was most probably only made a party, because bis execution against "Ware was also levied upon tbe lands in controversy. TJnder these circumstances no decree, should be taken against him.

Tbe cross-bill of Joshua 3£ Craig depended for its support upon tbe validity of the sheriff’s sale to him; that question, having been settled, the bill must be dismissed at complainant’s costs.

Having thus disposed of tbe several questions presented for our consideration, it only remains for us to direct that tbe decree of tbe Chicot Circuit Court be reversed, and that tbe appellee, Joshua M. Craig, pay the costs in this Court, and that the cause be remanded to said Circuit Court, that a decree may be there entered, declaring the sale, made by the sheriff to Joshua M. Craig, void, and that tbe same be set aside, and tbe deed to Craig-canceled. That tbe cross-bill be dismissed, at tbe complainant Craig’s cost; that tbe title of tbe trustees to tbe property in controversy be affirmed, and tbe lands sold at such time, and upon such terms as may appear to tbe chancellor equitable ; and that the proceeds of the sale be applied, first, to the payment of all costs not otherwise directed to be paid; second, to tbe payment of tbe mortgage debt, due to Silas Craig; third, to tbe debts set forth in the deed of trust, in the order therein directed; and, lastly, the residue, if any, to the defendant "Ware.

lion. Chief Justice "Watkins not sitting.