author: Hon. S. H. HbMpstbak, Special Judge

text:
    Hardy vs. Heard et al.
    The design of the statute, in requiring- the recital of the judgment, execution, &e., in a deed by a'sheriff for land sold under execution, ivas to relieve the purchaser from the necessity of producing the judgment, &c., and to leave to the party, who would contest the sale, to establish its invalidity.
    A deed for land sold under execution, not containing the recitals mentioned in the statute, or not showing on its face a compliance with the law, could not be evidence under the statute. But if such deed is in compliance with the statute, it is only prima facie evidence, and may be entirely overthrown by evidence that the sale had never been made, or had not been made in accordance with law.
    A vendee of real estate, holding under a bond for title, has such an interest in the land as is subject to a judgment lien and to sale under execution; subject to the legal and equitable rights of the vendor for the unpaid purchase money.
    Mere inadequacy of price, without additional circumstances, is not sufficient to invalidate a sale under execution, when fairly and legally made.
    The rule in chancery is, that the admission of incompetent evidence will not vitiate, if there is sufficient competent proof to sustain the decree. 4 Eng. 546.
    Tt is a universal rule, that he who submits to answer, must answer fully and fairly all the material allegations and charges of the bill; and has no right to answer that he is not willing to admit any particular fact; nor take shelter behind sweeping and broad denials and vaguo generalities.
    Where a defendant fails to answer a statement in the bill, which is neither charged nor presumed to be within his knowledge, such failure is not an implied admission of its truth, (Blalceney vs. Ferguson, 14 Arle.); otherwise, where it is charged or presumed to be within the defendant’s knowledge, or where it is answered evasively.
    A. sells and conveys a tract of land to B., reserving, in the deed, all pieces or parcels of land granted, bargained and sold to sundry persons in the town of Arkadelphia, in one and two acre lots: Held, That-the reservation in the deed was sufficient to put B. upon enquiry, and affect him with notice as to the persons to whom the lots had been previously sold; and as to the extent, situation and locality of the lots: and that •a forfeiture of the lots previously sold, could not enure to the benefit of B.
    In the absence of all evidence to the contrary, courts are bound to presume that any purchaser of real estate, informs himself of its boundaries, situation and locality, before making the purchase.

      Appeal from Ola/rle Qvrcwvb Gowt in Ohcmcery»
    The Hon. Johh QuilliN, Circuit Judge.
    CuebaN, for tbe appellant.

      FlaNAg-iN, for tbe appellees.
   Hon. S. H. HbMpstbak, Special Judge

delivered tbe opinion of tbe Court.

In 1846, James K. Bogers, owner in fee, of tbe west-balf of tbe nortb-east quarter of section twenty, in township seven south, of range nineteen west, containing eighty acres of land, situated in Clark county, sold one acre of it, in tbe town of Arkadelphia, described by certain lines, to Kobert Montgomery, for one hundred and fifty dollars, who paid a part of tbe consideration money, took actual possession, and erected, at a cost of one hundred dollars, a dwelling bouse and blacksmith shop on tbe lot, and enclosed a garden. Montgomery took a bond for title, which was not produced ; but tbe scope and purport of it appears to have been that Montgomery was to pay one hundred dollars to Bogers, in two years in annual instalments, and then receive a title; and if not punctually paid tbe lot to revert, and improvements to be forfeited. On the' tbe 15th of January, 1848, Bogers and wife, among other lands, conveyed by deed of bargain and sale with general warranty, to Henry N Hardy, tbe appellant, tbe above described tract of land; but expressly reserving “all pieces and parcels of land granted, bargained and sold to sundry persons, in tbe town of Arkadelphia, in one and two acre lots,” leaving one hundred and thirty seven acres as .the quantity conveyed to Hardy.

Thomas A. Heard and Thomas B. Sloan obtained judgment against Montgomery, on the 25th of March, 1848, before a justice of the peace, for seventy-three dollars and ninety-one cents, and execution thereon being returned “ nulla bona,” a transcript was taken and filed in the office of the clerk of the Circuit Court of Clark county, where the lot was situated, on the 10th of July, 1848, in accordance with the statute. (Digest 661; State use of Brown vs. Crow et al., 6 Eng. 652.) Execution issued out of that office, on the 1st of December, 1848, by virtue whereof the same lot -was levied on as tbe property of Montgomery; and which was advertised, and sold, at the succeeding court, in due form- of law, to Heard and Sloan, the appellees, as the last and best bidders, and as the purchasers at the sum of ten dollars; and, who having paid the bid, the sheriff, on the 24th of September, 1849, made and acknowledged a deed to them in due form, and which was immediately recorded. About this time, they paid to Rogers the balance of the purchase money on the lot, and Rogers and wife made them a quit claim deed, embracing the one acre lot sold to Montgomery, dated the 29th of March, 1849; but which was neither acknowledged nor recorded, and which was certainly defective as a legal conveyance, and fell far short of the title Rogers was bound to make, on payment of the purchase money.

Heard and Sloan filed their bill to obtain title to the one acre lot, purchased by them at execution sale, and for general relief, and they made James 3L Rogers, Henry K. Hardy and Robert Montgomery defendants to their bill. The Court, at the hearing, decreed “ that all the right, title, interest and claim of the defendants to said lot vest absolutely in the complainants, and that the said complainants have an absolute title in fee simple, and discharged from any and all claim of the defendants.” From this decree, Hardy appealed.

The first inquiry is, whether Heard and Sloan had such title to the lot as to authorize them to apply to a court of equity for relief, and of this we think there can be no doubt; nor do we apprehend any question can be made as to the jurisdiction of a court of equity to grant the relief sought. The deed of the officer to them, recited the names of the parties to the execution, and when issued, and the date and amount of the judgment, the return of “nulla bona” on the execution issued by the justice, the filing of the transcript, and other particulars as to the execution and sale; and which recitals are by express statute made evidence of the facts therein stated. (Digest 504.) The manifest design of this statute was to relieve the purchaser from the necessity of producing a judgment and execution, levy and advertisement ¿ or, in. other words, to excuse him from the duty of proving, in the first instance, that the law had been complied with; and leaving it to the party, who would contest the sale, to establish its invalidity. The statute rests on the fundamental principle that public officers, executive, judicial and ministerial, are presumed to discharge their duties, until the contrary is made to appear; and on the further ground that there is no better method of encouraging fair judicial sales, and protecting tona fide purchasers, than to afford all reasonable facilities to enable them to reap the fruits of their purchases. A deed, not containing the recitals mentioned in the statute, or not showing on its face a compliance with the law, could not be evidence under the statute. (Moore vs. Brown, 11 How. S. C. R. 424.) Nor is a deed in compliance with the statute, any thing more than prima faoie evidence, as was held by this Court in Newton vs. The State Bank, (14 Ark. 10); and may, therefore, be entirely overthrown by evidence; because, unless it was competent to prove that the sale had not been made at all, or that it had not been made in accordance with law, the door would be closed to enquiry; the deed, whether true or false, import absolute verity on its face, and so far from being only primiafaeie evidence would become conclusive evidence of the facts recited. Such a doctrine would place it in the power of an officer to deprive a man of his freehold against law, and with comparative impunity. Montgomery had a bond for title, and consequently had such an interest in the land, as was subject to a judgment lien, and subject to sale under execution. Our statute is very comprehensive, and declares all real estate subject to execution, whereof the defendant, or any person for him is seized “in law or equity,” and also the lien of a judgment; attaches to all estates and interests in lands and tenements, whether “ legal or equitable,” liable to be sold under execution. (Digest 498, sec. 25; 627 sec. 36.) The vendee of real estate, holding a bond for title, is in equity considered as the real owner, whether he had paid the purchase money, or actually taken possession or not subject only to the legal and equitable rights of the vendor for the unpaid purchase money. As owner, he has an interest,1 to which the lien of a judgment attaches, and whichfmay be seized and sold under execution. In Smith et al. vs. Robinson, (13 Ark. 534,) the nature of title bonds was elaborately discussed, and the Court held that the parties to such a contract stood in the relative positions of mortgager and mortgagee, and that all the incidents of a mortgage attached to and controlled these kind of contracts. (5 Porter 452.) It follows, then, that the vendee, in analogy to the mortgager, is the owner of an equity of redemption, and that this is the real and beneficial estate, which is descendible by inheritance, devisable by will, and alienable by deed, precisely as if it were an absolute estate of inheritance at law (4 Kent 159, 160); subject, of course, to the rights of the vendor. The purchasers, then, succeeded to all the rights of Montgomery, and although the amount bid by therm was small, yet it was the highest and best bid, at a public sale, on regular notice, at the time and place appointed by law, and which appears to have been fairly and properly conducted. It has become well settled that mere inadequacy of price, without additional circumstances, is not sufficient: to invalidate a sale, fairly and legally made, and the sound reason for the rule is, that the intrinsic value of property cannot be measured by any precise standard; but depends uponopinion, different in different men, and influenced by various circumstances. It must, in its very nature, be fluctuating; high at one time, depressed at another, according to the actual condition of the monetary affairs, and comparative prosperity of the country. (1 Story's Eg. 245.) And there are other reasons equally persuasive. Lands offered for sale on execution, maybe encumbered with prior liens, to nearly if not quite their value, or subject to adverse claims or pretensions, or .there may be defects or suspicions as to the validity of titles; and to expect, under these and like circumstances, that property will sell for what a person, unacquainted with such circumstances, would say it was worth, would be unjust to purchasers, and destroy all confidence in judicial sales. Livingston vs. Byrne, 11 Johns. 566; Williamson vs. Dale, 3 Johns. Ch. R. 292; Osgood vs. Franklin, 2 Johns. Ch. R. 23 to 29.

Lands tbns situated, can hardly be said to have any determinate value, beyond what they will produce at a public sale fairly conducted. It resolves itself into this, that the law, having designated the mode, manner, time, and place of sale under execution, has made that the test of value, and to disregard it, on the isolated ground of inadequacy of consideration, would not only be extremely dangerous, but would be to exert a sort of dispensing power, which is happily unknown to a government of laws. A precedent like that, carried out to its fullest extent, would, in the language of Lord Chief Baron Eyre, in Griffith vs. Spratly, (1 Cox. R. 383,) throw every thing into confusion, and set afloat the contracts of mankind.” It may be stated, then, as a safe and salutary rule of property, that mere inadequacy of consideration, or price, is not sufficient to avoid a sale fairly made.

There is nothing in the title, set up by Heard and Sloan, that renders it unfit or improper for a Court of equity to afford relief, in case they are in other respects entitled to it.

In deciding whether the decree is correct, as to Hardy, the most material point is, as to the identity and locality of the one acre lot sold by Rogers to Montgomery, and for which the latter held a title bond; and this must depend on the bill and answer of Hardy. For, although the deposition of Rogers was taken by the complainants, and read at the hearing against Hardy’s objection, it discloses nothing material to that question, even supposing Rogers to be a competent witness, which we do not decide; although inclined to the opinion that he was-incompetent. Jackson vs. Hallenback, 2 John. 394.

But we think the deposition may be excluded, and the decree maintained. The rule in chancery is, that the admission of incompetent evidence will not vitiate, if there is sufficient competent proof to sustain the decree. 4 Eng. 546.

The bill alleged that, in 1846, Montgomery purchased from Rogers one acre lot in the town of Arkadelphia, described in the ■bill by particular lines, received a title bond, took possession,' built a dwelling-bouse and blacksmith-shop, and enclosed a garden on tbe lot, and resided on it; that, in the purchase made by Ilardy from Rogers, the deed contained an express reservation of one and two acre lots in Arkadelphia, sold previously to sundry persons, whose names are not specified in the deed ; that Hardy knew, at the time of his purchase, that Montgomery had bought, improved, and was then living on, and in the actual possession ■of the one acre lot, mentioned in the bill; that the original title bond was pretended to be lost or destroyed; that Hardy, to defraud the complainants, sets up his pretended title to said lot; and he was specially interrogated and required to state, whether Montgomery had not purchased as alleged, whether the lot as ■described was not excepted from sale, whether Hardy did not 'know, when he purchased, that Montgomery had bought, improved and lived on the premises described; and whether the ■bond for title had not been fraudulently destroyed; and, if not, •where was it, and what its stipulations and conditions?

The description of the lot levied on and sold by the sheriff, as •-contained in his deed to Heard and Sloan, and made an exhibit in the case, was the same, substantially, as that alleged in the bill, and the exhibit was admitted. These allegations were of a nature to require specific answers; and now let us see how they were met. Hardy admits that Rogers contracted to sell Montgomery one acre of land, “somewhere in the town of Arka-delphia, but the exact locality of said land this defendant is not wiWmg to admit.” He is careful to set out that, by the contract, if Montgomery failed to make punctual payment, the land and improvements should revert; but does not show when payment was to be made. He does not state that he was uninformed as to the locality of the one acre lot; or that the description of it in the bill was not correct or substantially correct; or state or hint in what respects inaccurate; nor does he, any where in his answer, deny the locality as alleged, and put the complainants to the proof. He admits that Montgomery erected,- “ in the. town of. Arlcadebphia, in the year 1846, on some pa/rt of said quarter section of land, a log cabin, blacksmith-shop, and fenced in a garden,, but is not fully unformed, as to the exaet location of the land claimed by said complainants.” He states that, in the spring of 1848, as well as he recollects, he bought the improvements “made-in said town",” from Montgomery, for about fifty dollars, “being the improvements in the said bill mentioned,” that Montgomery gave him possession thereof six or seven months afterwards, and stated to Hardy that he was unable to,comply with his purchase, and that the same had reverted, or would revert, to Rogers. He admits that, at the time he purchased from Rogers, the latter made a reserve of twenty-three acres, which had been sold to sundry persons in the town of Arkadelphia, but did not specify to whom, and refused to have the names of the purchasers specified in the deed to Hardy, for the reason that the property might revert to Rogers, and might interfere with his rights. If this be so, it is difficult to account for the statement by Hardy, that:. Rogers was to give him the benefit of all the sales to those. t<* whom titles had not been made. Hardy says he cannot state-joositi/vely what land was reserved from sale in the deed to him,, and refers to the deed, which he well knew contained only a general reservation; and .so the enquiry was not answered at all-. In one part of his answer, he admits that, in 1846, Rogers contracted to sell Montgomery one acre of land in Arkadelphia; and, in another part states, that he “ does not know what time the said Montgomery purchased, or pretended to purchase, of said defendant, Rogers.” He says he cannot state what has become of the-bond or agreement between Rogers and Montgomery; that he recollects seeing it in the spring or summer of 1848; that he cannot state fully its stipulations, but his impression and belief are, that if Montgomery should pay Rogers ninety dollars in one and two years, that he was to have “ one acre of land in the; town of Arkadelphia, fronting on the road leading from thisplaee to old Greenville,” and, on failure to make payment, the acre was to revert to Rogers, his heirs or assigns. He does not state that he bad no presentknowledge of the bond for title, or tliathe did not know in whose possession or custody it was, or whether it was lost or destroyed, but simply that he “ cannot state what has become of it,” without giving us a reason why.

This answer, in no one particular, or as a whole, comes up to the universal rule, that he who submits to answer must answer fully and fairly all the material allegations and charges of the bill, (Story’s Eq. Pl., 846, 847; 2 Daniel Ch. Pr., 255,) and it can seldom fall to tbe lot of any court to pass upon an answer more unsatisfactory or evasive; and which should not have been allowed to be placed on the files of the court, as the decree pro eonfesso had to be set aside to let it in. That it is evasive, is self-evident ; and, as was said in another case, it evinces a studied choice of phraseology,” and loose generalities, “to escape from any direct answer to the allegations in the bill.” (2 Sumner 231.) looking to the circumstances of the case, as developed by the record, and even on the face of the answer, no one, as we think, could come to any other conclusion than that Hardy was familiar with the purchase made by Montgomery from jRogers; the nature of the contract, the locality of the lot, andmade his own purchase with a knowledge of these facts; and that he did not deny the description contained in the bill, because he could not conscien-ciously do it. It may fairly be presumed, that the fact was within his knowledge. Indeed, it could hardly have been otherwise. If this were a ease where Hardy stood in the position of a purchaser of the one acre lot, it would be quite impossible for a court of equity to hold him as an innocent purchaser without notice, and allow him to retain the fruits of his purchase, because he would have to be held chargeable with notice of the prior rights of Montgomery, on the principle, now universally admitted, that whatever is sufficient to put a purchaser on enquiry, is considered as conveying notice. (4 Cow. 722; 1 Johns. Ch. R. 267; 2 Vesey, Jr. 440; 3 Scam. 202.) This is sometimes called'mbnstructive notice, or notice in law, and which is no more than evidence of notice, the presumption of wbicb is so .violent, tbat it cannot be suffered to be controverted. 4 Kent 179; 1 Story’s Eq. 399.

Where a party has possession or knowledge of a deed, under which he claims his title, and it recites another deed, which shows a title in a third person, the Court will presume him to have notice of the contents of the deed thus referred to, or recited, and will not permit him to introduce evidence to disprove it. Notice of a lease, is notice of its contents. (14 Vesey 426.) If a person purchases an estate in possession of tenants, he is bound to enquire into the estate those tenants have, and, therefore, will be affected with notice of all the facts, as to the extent, nature, and duration of their estates. (2 Vesey, jr., 440; 1 Story’s Eq. 399.) If a person is in possession of land, a subsequent purchaser is deemed to have notice of the possessor’s rights, whatever they may be. (2 Paige 300; 5 Johns. Ch. R. 29; 1 Merivale 282; 6 Wendall 226; 3 Paige 423.) A person, being about to purchase a lot of land, was informed that another had “some sort of claim to it,” and this was held sufficient to put him on enquiry, and constitute •constructive notice. 1 Smedes & Marsh. Ch. R. 45.

Now, laying aside all other considerations, there were two facts in this case sufficient to put Hardy on. enquiry, and charge him with notice: first, Montgomery was in actual possession of the lot when Hardy purchased; and, second, Rogers made an express exception, in his deed to Hardy, of lots previously sold by him to “sundry persons in the town of Arkadelpkia.” If there was no other fact or circumstance in the case calculated to put a prudent man on enquiry, this exception was unquestionably amply sufficient to demand from him an investigation as to the persons to whom lots had been sold, and the -extent and situation and locality of those lots, if not already apprised of these facts. And he must be held cognizant of the locality of the lot sold to Montgomery, because the latter was in the actual possession, because it was a part of the reservation made in the deed, and because for Hardy to ascertain and to inform himself of the lines and boundaries of Ms own land, was to learn tbe locality of tbe lot in controversy. Jones vs. Smith, 1 Hare R. 43.

Certainly, in tbe absence of all evidence to tbe contrary, courts are bound to presume that every purchaser of real estate informs bimself of its boundaries, situation, and locality, before making tbe purchase. This is consistent with tbe ordinary course of human transactions, and tbe. experience of mankind. Tbe law itself makes that presumption effectual until destroyed by counter proof, and there is nothing in tbe record tending to weaken, but' there are facts and circumstances, amply sufficient to sustain, that presumption in tbe case now under consideration.

As a defendant in chancery, submitting to answer, must answer fully and fairly, be has no right to say be is not willing to admit any particular fact or facts, and rest bis defence there; nor can be take shelter behind sweeping and broad denials, or vague generalities. (3 B. Mon. 17, 18.) Such a practice would thwart tbe end to be attained by courts of equity, which is to arrive at the real justice of the case by appealing to the conscience of the defendant. And this brings us to the question as to the consequences of a failure to answer a fact charged, and presumed to be within the knowledge of the defendant. The general rule, as to answering in chancery, was elaborately discussed by this Court in Blakeney vs. Ferguson, decided at January term, 1854. The fact in that case was, that the complainants alleged themselves to be, and claimed as widow and heirs at law of Joseph Ferguson, deceasd. Blakeney, in answering, entirely omitted to-notice or answer that statement, and there was no proof of it at the hearing. It was neither charged, nor coulditbepresumed, to be withim, his Imowledge. On this state of case, quite different from the one now involved, the Court very correctly and properly applied the general rule, that the failure of Blakeney to answer that statement could not amount to an implied admission of its truth, and that, as the complainants had omitted to prove it, the decree could not be sustained. That rule is well supported by authority, and with it we are entirely satisfied; and think it should govern in all cases, where the fact is neither charged, nor could be presumed within the knowledge of the defendant.

But, it has now become to be a clear exception to that rule, which we feel disposed to recognize and enforce, that where the bill charges the fact to be within the knowledge of the defendant, and which may fairly be presumed to beso ; or without so charging, the fact may reasonably be said to be within the defendant’s knowledge, if the answer is silent as to that fact, or it is answered evasively, it amounts to an implied admission of the fact thus stated; and no further proof is necessary to warrant a decree against the defendant upon it. (Scotts vs. Hume, Lit. Sel. Cas. 379; Lewis vs. Stafford, 4 Bibb 318; Moore vs. Lockett, 2 Bibb 69; McCampbell vs. Gill, 4 J. J. Marsh. 90; Price adm. vs. Boswell, 3 B. Mon. 17, 18; Mitchell vs. Maupin, 3 Mon. 187; Bright vs. Wagle, 3 Dana 256; Armitage vs. Wickliffe, 12 B. Mon. 488; Neale vs. Haythorp, 3 Bland 551.) Evasion is worse than silence; because the former may be the result of carelessnes or inattention, while the latter springs from design, and is entitled .to no favor whatever.

This exception and qualification of the general rule are only .applicable in cases of knowledge, ^ either charged or presumed; and if a fact should be charged to be within the knowledge of the defendant, which in the very nature of things could not be, or it was extremely improbable it should be so, there could of course be no implied admission arising from either silence or evasion. Before the complainant can have the benefit of the implied admission, it must appear reasonable that the fact is within the knowledge of the defendant. The exception, herein adverted to, was noticed and admitted in Blakeney vs. Ferguson, to exist in cases “ where the omitted or evaded fac.t, may be prima facie within the knowledge of the defendant,” and.although it was not received with favor, but rather regarded as of “ mischievous tendency,” yet the exception was not denied, nor the authorities by which it is sustained at all questioned.

A similar principle seems to have been acted on by this Court in Pelham vs. Floyd, 4 Eng. 532, and wbicb was a case where the facts charged were in the knowledge of the defendant, and not denied. The Court held that where facts are charged andnot denied, but other facts are set up in avoidance, it was not necessary to prove the facts thus charged. And this exception, qualified as it is, does not appear to be unjust, or of dangerous tendency. It rests on the sole foundation, applicable to pleadings) that the distinct and explicit assertion, by one party, of a material fact, reasonably presumed to be within the knowlege of the other, and affecting his interest, will be controverted if it is not true; and the party is not concluded unless he has an opportunity of denying it.

Men act on this principle constantly, in the ordinary affairs of life ; for it is a rule of evidence that what one party declares to another, without contradiction, when it naturally calls for contradiction if not true, is admissible evidence. (1 Greenl. Ev. 199.) It is acted on by courts, for the failure of a defendant, duly summoned, to defend an action at law, subjects him to judgment by default without further proof. Ilis failure to appear, is a tacit admission of the cause of action and the right of the plaintiff to recover.

Bills in chancery are constantly taken for confessed, and, provided the bill is sufficient on its face, a final decree may be made on that admission without further evidence, and indeed proof could not be received to militate against that admission. (2 Bland Ch. R. 447.) It is hot only supported by authority, but it grows out of a principle respecting admissions of extensive application in j urisprudence. And it is not dangerous to defendants, because, if they answer fully and fairly as to matters within their knowledge, the question can never arise, and if they do not, whether it be the result of negligence or design, they would come with an ill grace to complain of that which sprung into existence •from tlieir own default. It does not infringe or touch that cardinal rule,' that where facts within the knowledge of defendants in chancery are clearly and positively denied, it requires one witness and. strong corroborating circumstance to destroy the effect of the answer as evidence. 4 Eng. 550; 1 Greenl. Ev. 260.

Undoubtedly an insufficient answer may be excepted to, and a better one obtained; and it is not "to 'be denied that this is the more appropriate practice, and conformable to the ancient equity practice. But the modern authorities do not permit us to doubt, that the complainant may, if he chooses, file a replication to an insufficient answer; and, if it is a case where the doctrine, as to implied admissions, would apply, have the benefit of that at the hearing. It may then be safely laid down as a general rule, as in Blakeney vs. Ferguson, that if the fact stated in the bill is not answered, and cannot be presumed to be within the knowledge of the defendant, and the complainant, not obtaining a fuller and more sufficient answer on exceptions, replies to the insufficient answer and goes to a hearing, he must rely upon Ms own proof to establish the fact thus stated, and not answered, because there is no implied admission of it. But, on the other hand, it is an admitted and established exception, that if the fact charged is presumed to be within the knowledge of the defendant, to evade, or to omit to answer that'fact, is an implied admission, and, without further proof, it may be taken as true at the hearing, and a decree be rendered accordingly.

It follows that, as the locality of the one acre lot in controversy, may fairly be presumed to have been within the knowledge of Hardy, evading it in his answer, in the manner indicated, was equivalent to an admission of the locality .as alleged in the bill, and was quite sufficient on that point, to support the decree, without further evidence.

Hardy does not show any right to this lot at all. It is true that he states his belief that the lot, as described and claimed by the complainants, embraced twenty-seven feet on the west side of an acre he was residing on, and had improved, .and which was sold by Bogers to one Swink, in 1846 or 1847, and by Swink and Itogers, by deed of warranty to himself. As all pleadings must be construed most strongly against the pleader, it follows' that this sale may be assumed to bare taken place in 1847, tbe latest period, and consequently after tbe sale of tbe lot to Montgomery At all events it is not shown to bave been anterior. But waiving that consideration altogether, it is sufficient to disjjose of this point to observe that, as this was new matter in avoidance, it was necessary for Ilardy to prove it before any benefit could be derived from it, and there is certainly not a particle of evidence to show that twenty-seven feet of bis acre were in fact included, as .alleged by him, in tbe lot claimed by tbe complainants. Tbe plaintiffs by putting in a general replication to bis answer, bad denied tbe matters therein alleged, and tbe legal effect was to put him to tbe proof. (Story’s Eq. Pl. 877; 4 Paige 23; 8 Pickering 113; 10 Yerger 213.) Matter in avoidance must be -proved. 1 Munford 373; 1 Gill & Johns. 272; 2 Johns. Ch. R. 89; 2 Bibb 38; 4 Eng. 532.

• But, it is insisted that, by tbe terms of tbe title bond to Montgomery, on failure to pay at tbe time stipulated, tbe lot was to revert to .Rogers and bis heirs and assigns, and all improvements to be forfeited; and that, as Montgomery failed to pay according to stipulations, tbe right of Montgomery was forfeited.

Now, to say nothing of tbe rule, that courts of equity will never enforce a penalty or a forfeiture, or aid in divesting an estate for a breach of a covenant or condition subsequent, (2 Story’s Eq. 1319; 4 Johns. Ch. R. 431; 1 Peters 232, 236,) and to lay aside tbe doctrine that time is not generally deemed in equity to be of tbe essence of tbe contract, (2 Story’s Eq. 776,) it is not eaáy to perceive what claim Hardy has to avail himself of this forfeiture, supposing it to exist. If it was a right which Rogers could assign, be did not assign it, and, as has been already demonstrated, be did not sell the lot to Hardy, but actually excepted it; nor does it appear that tbe contract between Rogers and Montgomery was assigned, or transfered to Hardy, or that he had any right to it. If, in consequence of the failure to make payment, Rogers might bave demanded tbe reversion of tbe lot, and insisted on the forfeiture; it is certainly true that be could waive it, and, if it were necessary to establish a waiver, we should find abundant evidence of it in the quit claim deed, made by bim to the complainants for the lot in controversy, and in his failure to answer the bill, and thereby confessing it, and submitting to a decree. This, then, is a defence with which Hardy does not appear to be connected, and of the benefit of which he could not avail himself, and it may be dismissed without further remark. In any view of the case, it does not appear to us that Hardy has any substantial reason to complain of the decree. It is true that he had no title to the lot in controversy to divest, and it would have-been more appropriate to have enjoined him from setting up any title to it, and divested the’ title out of the other defendants, vested it in the complainants', and have pronounced a decree quieting the title. But the decree cannot operate injuriously to Hardy, and as we are satisfied that if we were to give him the lot in controversy, we should award him property, which it does not appear by this record he ever purchased, or to which he has any just claim, we shall direct the decree to be affirmed with, costs.

'WatkiNS, C. J., did not sit in this case*.


source: Caselaw Access Project

author: Mr. Chief Justice WatKINS

license: Public Domain

text:
    Cross vs. Haldeman.
    Under the statute, title Practice at law,'sec. 6, which should he construed in connection with ch. I1?, where a suit by attachment is instituted in one county, a separate writ may he issued to another county, and the credits and dioses in action of the defendant attached, as well as his visible, tangible property.
    A garnishee, answering and admitting his indebtedness, as the maker of negotiable paper, without reservo or qualification, does so at his peril. If notified at any time before final judgment that his note had been assigned before the service of the writ upon him, he is bound to apply for leave to interpose the defence.

      Error to Lmormoe Qvrowt Oov/rt.

    Before Hon. B. H. Neely, Circuit Judge.
    Fairchild, for the plaintiff.
    The. Circuit Court had no right ;to issue a writ of attachment beyond its own county, and tbe defendant violated tbe rights of Moses Brown & Co., and their deriva-tire holders of the note sued on, by appearing to tbe suit and ■acknowledging the indebtedness.
    Vm. Byers, for defendant.
   Mr. Chief Justice WatKINS

delivered the opinion of the Court.

For the determination of the questions, argued on this writ of error, the case, as it appears upon the record, may be thus stated: The plaintiff, Cross, on the 4th of October, 1850, instituted suit against the defendant, Haldeman, in an action of debt, upon a note executed by him to Moses Brown & Co., or order, dated at New Orleans, on the 26th of March, 1846, and due six months 'after date, and by them assigned to the plaintiff, without recourse, the assignment being without date. The defendant pleaded, in substance, that on the 7th day of December, 1846, one 'William Byers, being a creditor of Moses Brown & Co., instituted bis action of debt by attachment, in the Independence Circuit Court, against the persons composing that firm, as non-resident debtors, in which suit he caused a'separate writ of attachment to beissued to the county of Lawrence ; which the sheriff of that county executed, on the 10th of December, 1846, by attaching the indebtedness of this defendant to Moses Brown & Co., and also summoning him as garnishnee of Moses Brown & Co., to appear at the return term of the Independence Circuit Court, and answer what might be objected against him in that suit. That at the time of the service of the writ of attachment upon him, he, this defendant, was indebted to Moses BrOwn & Co., the defendants in the attachment suit, in a certain sum, being the amount due upon the promissory note mentioned in the declaration of the plaintiff in this behalf. That he, this defendant, afterwards appeared before the Independence Circuit Court, and, for answer to interrogatories there exhibited against him by the plaintiff in attachment, admitted such indebtedness; and such further proceedings were had in that suit, the plaintiff, having established and recovered judgment for the amount of his demand against the absent defendants, Moses Brown & Co., by the consideration and judgment of that Court, on the 25th day of November, 1847, recovered against this defendant, as garnishee, the amount of his indebtedness to them so admitted to be due; and it was then and there further adjudged that this defendant, as such garnishee, should be, and. was thereby, released from any further liability to said Moses Brown & Co., in respect thereof; that on the 26th day of November, 1847, this defendant paid the amount of such recovery against him to Byers, the plaintiff in attachment. And the plea avers that, at the time of the service of the writ upon this' defendant, as garnishee, and said debt attached in-his hands, on the 10th day •of December, 1846, the promissory note in the plaintiff’s declaration mentioned, was the property of, and owned by, Moses Brown & Co., to whom it was made payable.

The plaintiff rested upon his demurrer overruled to this plea, the sufficiency of which was questioned upon two grounds: 1st. The want of jurisdiction in the Independence Circuit-Court; 2d. That the defendant appeared there in his own wrong, and by confessing his indebtedness, wantonly jeopardized the rights of his creditors, Moses Brown & Co., and of any derivative holder of his negotiable paper by endorsement from them. The statute {Digest, Title Practice at Lem, sec. 6) provides that “ where a defendant in a suit, instituted by attachment, has property in several counties, separate writs of attachment may.be issued to each county.” There can be no doubt of the power of the General Assembly to enact such a law, and the only question is, whether the v$>rd property there used, includes credits or effects, which are aboses im, action, or is to be confined to visible tangible property, whether real or personal, susceptible of being entered upon, or seized into his possession, by the officer. It is obvious, from the context and import of the clause above quoted, that it deais in general terms, and should be construed in connection with the statute concerning attachments; {Dig., cb. 1 ?,) by which' the mode of proceeding- is regulated in detail. That statute {sec. 6) contemplates that the defendant is to be attached “by all and singular his goods and chattels, lands, tenements, credits and effects.” Sec. 8 points out the manner of levying the attachment; which, in respect of credits, is, by the officer going to the person who is supposed to be indebted to the defendant, and then and there, in the presence of two or more citizens of the county, declaring that he attaches the same. Sec. 88 authorizes an inter-pleader by any adverse claimant, other than the defendant, of “the property, credits, or effects, levied on, by virtue of any writ of attachment.” "Writs of garnishment upon judgments are not allowed to be run out of the county, in which the judgment is rendered, because the statute no where expressly authorizes it; and the Court would not be inclined to extend by implication a practice fraught with inconvenience to- debtors, and so liable to abuse; more especially as the judgment plaintiff has a safer and better remedy by creditor’s bill. If it be argued that the plaintiff in attachment, sending ont bis separate writs without control or limit, can at pleasure draw to one forum and from distant counties, a variety of vexatious litigations, and against garnishees who are not joint debtors, or in any way connected by a common interest, the only answer is, that, according to our best judgment in the matter, the statute seems to authorize it. It is to be observed that the plea here also alleges a substantive levy of effects under the writ directed to the sheriff of Independence, by means of which the Circuit Court of that county could acquire a jurisdiction of the proceeding m rem against the property there situate.

"We may concede that, when the garnishee appeared in the Independence Circuit Court, and answered, admitting his indebtedness to Moses Brown & Co., without reserve or qualification, he did so at his peril. If notified, at any time before final judgment against him, that his outstanding note had been in fact assigned before the service of the writ upon him, he was bound to apply for leave to interpose the defence, and should have been allowed an opportunity of proving it. Cases may be supposed where a garnishee, forced into a hazardous position between cross fires, ought to be permitted, for his own protection, to acquit himself of further liability by paying the money into Court, upon his bill in chancery, which would bring all adverse parties interested before the Court in order to assert their claims to it. But here the plea contains a distinct traversable averment, that at the time of the service of the writ upon the garnishee, the note in question was the property of Moses Brown & Co., the defendants in attachment, and the admission of this averment by the demurrer, concludes the rights of the plaintiff now claiming to be the owner of the note by title subsequently derived from them. Affirmed.


text:
    Childs et al. vs. The State.
    Aa affray, and assault and battery, are offences of the same class; and, though tho higher offence may include the less, yet on an indictment charging generally that the defendants “did make an affray by then and there fighting, to the terror,” &c., they cannot bo convicted of an assault and battery.

      Appeal from Lcmrmee CH/ramt Goivrt.

    Hon. B. H. Neely, Circuit Judge.
    Faiechild, for appellants.
    Tbe facts charged in an affray, do not include those necessary to put a party on defence of an assault and battery, for he is not apprised whom, he has assaulted, nor that he has beaten any body.
    J. J. OleNdeNIN, Att’y Gen’l, contra.
   Mr. Chief Justice WatKINS

delivered the opinion of the Court.

The indictment in this case charged that the appellant and three other persons, on, &c., at, &c., “with force and arms, being assembled together and arrayed in a warlike manner, there and then in a public highway, there situate, unlawfully did make an affray, by then and there lighting, to the great terror and disturbance of the people there being,” &c. The defendants being tried separately, the jury found each of them guilty of an assault and battery, and the appellant was accordingly sentenced to pay the fine assessed against him by the verdict. He moved in arrest of judgment, which was overruled, and the question renewed upon his appeal is, whether the conviction is proper.

It is true that every affray includes an assault; the definition of it, at the common law, being “ the fighting of two or more persons in some public place, to tbe terror of tbe Xing’s subjects; for if tbe fighting be in private, it is not an affray, but an assault.” 1 Russell on Crimes 291; Roscoe Crim. Ev. 269.

Tbe essential ingredient’of tbe offence is, that it is done in some public place, whereby terror and alarm may be occasioned to other persons, and it is therefore an aggravated disturbance of tbe public peace, punishable as a common law offence by fine and imprisonment (Digest, eh. 34, see 2); whereas a simple assault or an assault and battery, is punishable' by fine only. (Rev. Stat y>. 246.) All the persons committing an affray, whether it ensue, upon a sudden quarrel or a feud, are supposed to engage in or encourage it, with a mutual or common design, to fight or make a disturbance. -If the like-be done in a private place,'each is, guilty of an assault; and there can be no doubt that, if counts for the assault be added in an indictment for an affray, one or all may be convicted of the assault, if the evidence'falls ¡short of proving an affray. But, without' going over the grounds of the decisions in Cameron vs. The State, (13 Ark. 717); Johnson vs. The State, (Ib. 686); and Strawn vs. The State, (at January term,, 1854), ’otu' opinion here is, that the conviction appealed from cannot be sustained, because although the offences are of the same generic class, and the commission of the higher may involve the commission of the lower offence, yet the indictment in this case does not contain all the substantive allegations necessary to let in proof of the assault and battery. An affray may be well charged as a promiscuous fighting, the offence consisting in .the public disturbance; but it is necessary that an indictment for assault and battery, should describe the offence by disclosing the name of the party injured, or upon whom it was committed, if known or capable of being ascertained,. in order to apprise the defendant of the nature of the accusation, to enable him to defend against it, and identify it with such reasonable certainty as to guard him from any further prosecution for the same offence.

We have met with but one decided case to the contrary. In the State vs. Allen & Royster, (4 Hawks. 356,) the charge in the indictment was that tbe defendants, Allen & Royster, to, with, and against each other, did fight and make an affray, to the nuisance of the citizens,” &c. The jury found that the defendants were not guilty of an affray; but that the defendant Allen was guilty of an assault and battery upon the defendant, Royster; and that the defendant Royster was not guilty. Tayxoe, C J., and the rest of the Court, thought, that although there was no precedent to govern the decision in such a case, the conviction of Allen was right upon general principles, and the reason of the thing, which the opinion there proceeds to enlarge upon. But, by reference to the frame of the indictment in that case, it will be perceived that it was substantially a count for assault and battery; upon which, according to our own view of the matter, the defendant was rightly convicted, without recognizing it as an authority in the case now before us.

The judgment will be arrested, and the appellant discharged. The like decision is made upon the appeal of William and Eliza Clark, two other defendants, joined in the same indictment.


author: Mr. Chief Justice Watkins

text:
    Foreman vs Gibson.
    After demurrer to the declaration and the general issue subsequently pleaded, the ■Court has no discretion to allow a plea in abatement.

      Appeal from WasJvmgton Ovrcmt Court.

    Hon. Felix J. BatsoN, Circuit Judge.

      ENGLISH, for the appellant.
    The plea in abatement was out of time, after demurrer to the declaration, and much more after the plea of not guilty. The proper motion was to strike it out. Knott eb al. vs. Glemmts ad., 13 Ark.E. 335.
   Mr. Chief Justice Watkins

delivered the opinion of the Court.

After a demurrer to the declaration,. and the general issue pleaded at the succeeding term, the defendant, at the third term, filed a plea in abatement, alleging that the appointment of the guardian ad litem for the plaintiff “ was not made on his the said plaintiff’s application.” The Court below overruled a motion to strike this plea from the files, and the plaintiff, resting upon his exception, declined to reply to it; whereupon, final judgment was rendered in favor of the defendant.

The judgment of the Circuit Court will be reversed, and the. cause remanded, with instructions to disregard the plea in abatement, and that the cause be proceeded in to trial upon plea to the, action.


author: Mr. Chief Justice "Wateins

text:
    Melvin vs. s. b. General Shields.
    An attachment bond, with, the condition written under the signatures and seals of the Obligors, held sufficient: and that if an objection to such bond could be taken in the Circuit Court on appeal from a Justice of the Peace,- it must be by plea in abatement, and- not by motion to dismiss.-

      Writ of Error to Well Cvrcmt Qowt.

    Hon. Wm, H. Feild, Circuit Judge.

      JoedAN, for tlie plaintiff.
    The condition of a bond may be either in the same deed or another — it may be included within it or endorsed upon it. (Jacob’s La/w Die., Title, Bond; 2 Baile. 462/ 5 Mod. 281.-) Any words, by which the intention of the parties can be discovered, are sufficient to make the condition of a bond. 2 Golee, 669 a/nd notes.

    After trial and appeal to the Circuit Court, the defendant could not take advantage of any informality in the bond, either by motion to dismiss, or plea in abatement. 3 Arle. 501/ 5 lb. 457/ 6 l b. 37/ 7 lb. 410/ 9 Ib. 159.
   Mr. Chief Justice "Wateins

delivered the opinion of the Court.

The plaintiff instituted a suit by attachment under the statute, before a justice of the peace, against the steamboat General Shields. The master appeared and released the boat by entering .into bond, and the cause progressed to a trial on the merits before ■the justice, where the plaintiff obtained judgment for the amount of his demand. The master of the boat caused an appeal to be taken to the Circuit Court, and there moved to quash the proceedings had before the justice, because the plaintiff had not filed a bond as required by the statute, before the issuance of the writ ■of attachment. The jffaintiff had filed a bond with the justice, and the only objection, made to it in the Circuit Court, appears to be that the condition was written underneath the signing and ■sealing of the obligors. Notwithstanding the condition underwritten was followed and verified by the attestation of the justice ■approving the bond as sufficient, the Circuit Court, upon that motion, dismissed the suit at the costs of the plaintiff.

The proceedings before the justice were regular and conformable to the statute. If the objection taken to the bond could be made in the Circuit Court, it should have beén done by plea in abatement, and, if so made, would be out of time, after a trial and on appeal allowed not for delay, but that justice might be done. But, no matter when or bow taken, there' was nothing in the objection.

Reversed, and remanded, with instructions to reinstate the cause, and proceed in it to trial da novo on the appeal. • ■


author: Pin Chief Justice WatKINS

text:
    Ringgold vs. Patterson.
    In a chancery cause, if the existence of a fact upon which the decision must turn, is doubtful, the chancellor should, of liis own motion, and it is his duty, if insisted on by either party, to cause the fact to be ascertained by a jury.
    The finding- or determination' oí the chancellor concerning a material issue of fact, where the issue has not been sent to a jury,'and there is a conflict'of evidence, is not conclusive on appeal, like the verdict of a jury, or the finding of a common law court, sitting as one. . . . .
    The omission' of the advertisement of an execution sale, or the failure Of the sheriff to make a literal compliance with that provision of law, would not vitiate a -sale to an innocent purchaser, arid if the sale take place without notice or advertisement’by 'the consent and agreement-of the execution debtor, it is valid as to him.
    An execution sale, privately held by agreement of the debtor, at a time or place not. appointed by law, may not be void; but, even where fraud is not alleged, the purchaser being ignorant of the want of notice, it would be reasonable to hold that it is ' voidable at the-election of any junior incumbrancer or creditor, who had no notice."
    The knowledge by the purchaser at executive sale, that it is made without advertisement and by private agreement, though it might not be conclusive evidence of fraud, is always a circumstance, and in connection with other attendant circumstances— such as apparent concert between the purchaser and execution debtor; material misrepresentations as to the property by the latter in the presence of the former, who is presumed to know tile truth, calculated to deceive the plaintiff; the aceptance of a conveyance of the same lands from the debtor on further advances made, — may be a forcible one, from which collusion between the purchaser and the execution ' debtor is to be inferred.

      Appeal from Independence Circuit Court in Gha/ncery.

    lion. B. H. Neely, Circuit Judge.
    Fowler, for tbe appellant,
    contended tbat tbe sale of land by an officer, under execution, is valid, and passes tbe title, although be fails to give notice of tbe time and place of sale, as required by law, and although the purchaser may have been aware that no notice was given, (Turner vs. McRea, 1 Mott & McGordRep. 12/ Lawrence vs. Speed, 2 jBibb Rep. 401/ Hayden vs. Dunlap, 3 11). 216/ Webber <& Go. vs. Gox, 6 Monroe Rep. 111/ Sham-bvrger vs. Kennedy, 1 M. 0. Rep. 1/ Reynolds vs. Rye, 1 Freem. Oh. Rep. 410/ 10 Smedes & Marsh. Rep. 258/ Pepper vs. Thornton, 6 Mon. Rep. 33/ Byers et al. vs. Fowler et al., 12 Arle Rep. 272/) that although no notice of sale in this case was given, it is immaterial, as the execution debtor waived it. (1 N. O. Rep. 1/ 3 Wash. Gir. G. Rep. 553.) That the belief, impressions, recollections of a witness are entitled to no weight as evidence without the facts on which they are based. (Oa/rrico vs. Ffeal et al., 1 Dana Rep. 537/ Span dh Green vs. Welmcm, 11 Mo. Rep. 234/ Clason vs. Morris, 10 Johns. Rep. 531/ Van Dyne vs. Tharpe, 19 Wend. Rep. 165/ 2 J. J. Marsh. 426/ Langford vs. Gum-ordngs, 4 Ala. Rep. 48.) That the execution debtor’s conduct and statements, whether he be viewed as the former owner of the land, or as an accomplice in the alleged fraud, are wholly inadmissible as evidence against the purchaser, who holds the lands in opposition to him, and there being not a particle of proof atironde of any confederacy or collusion. (Greenl. M>. [Ed. cf 1842,] secs. 112, 177, 233/ 1 Bar. Oh. Rep. 115/ Gullet vs. Lam-Tywrton, 6 Ark. Rep. 122/ Trvrpin vs. Marks, 3 J. J. Marsh. Rep. 627/ 4 Bibb Rep. 270/ 3 Litt. Rep. 14/ 4 Dana Rep. 223.) And argued this cause at length as to the effect' of the answer denying the statements of fraud alleged in the bill; and upon the question of fraud or collusion, on the part of the appellant.

      Pike & Cummins, and ¥m. Byees, for the appellee.
    Where a combination or common intent is shown, the declarations of a pa/t'ticeps criminis are evidence against the others. Phill. on Ev., hj Oowen dk Hill,pcurt 1, notes, p. 177, 178/ 6 J. P. 155/ 11 Mass. Pep. 498/ 3 1T>. 559/ Oroft vs. Arther, 3 Desr. Rep. 223/ 6 JIa/r. <& John. 435/ Glenn vs. Keff, 2 Gill de John. 132/ Moore vs. Tracy, 7 Wend.; 8 Smedes & Ma/rsh. 305.
    Where the act has a tendency or operation to hinder and delay creditors, it is void. Story’s Eq., secs. 349, 350, 351/ Merrit vs. Perry, 13 John. R. 471/ 18 J. R. 425/ 20 J. R. 5/ 7 Paige 87/ 3 Eng. 200/ 7 Eng. 218/ 4 Kent Oom. 464, note.

    To authorize an .appellate court, in chancery, to set aside a finding of the facts, there must be such preponderance of evidence against the finding and decree as would entitle the party to a new trial in a case at law. 11 Sm. <& Ma/rsh. 458/ 1 mil Oh. R. {S. Oar.) 58/ 16 Ohio Rep. 417/ 12.Ib. 75.
    That the answer was not sufficient to entitle it to any weight as evidence; and the facts show collusion with Dickinson, to hinder and delay his creditors.
   Pin Chief Justice WatKINS

delivered the opinion of the Court.

The appellee exhibited his bill against Townsend Dickinson, Benjamin Dickinson, Einggold, the appellant, and Hynson and Worley, tenants of his in possession, and also against William Moore, as administrator of Eobert Moore, deceased: the object of which was to quiet the complainant’s title to certain tracts of land, sold by the sheriff under execution against the two Dickin-sons, and to vacate a marshal’s deed to Einggold for the same lands, alleged to have been purchased through fraudulent combination with Townsend Dickinson, to hinder and defraud his creditors, for an account of rents and profits of the land, while in the possession of Einggold or his tenants; and as against the administrator of Eobert Moore, for a decree under the statute requiring him to execute a deed to the complainant, in order to invest him with the legal title to a portion of the land, which his intestate had-sold to Benjamin Dickinson, who went into possession, and held under a bond, conditioned to make title, on payment of the purchase money, which .the complainant represented had been fully paid.

■ Upon examination of this voluminous record of-pleadings, exhibits, and depositions,-extending to near four hundred pages, it appears that the material question, upon which the decision must turn, is one of-fact; that is, assuming that the acts and intentions of Townsend Dickinson were fraudulent, whether the purchaser, ¡Ringgold, was concerned in, or. privy to the same. . It would seem that the chancellor, before whom the cause was heard, did not ■consider "this so doubtful as to induce him to make up an issue and direct a jury to be empanneled for the trial of it, though according to our impression it was sufficiently doubtful to - have . made -it desirable of his -own motion, and his dirty, if insisted on by either party, to cause the fact to be ascertained -by a jury. 'It is now argued, on behalf of the appellee, that the finding or determination by the chancellor, concerning ^material issue of fact, which he did not choose, nor either party ask him to submit to a jury, is conclusive like the verdict of a jury, or the finding of a common law court, sitting as oné, which ought not to be disturbed where there is a conflict of evidence. The argument could not apply in the present case, because, as we understand the decree of the Court below, it went against the appellant upon the ground of legal or constructive fraud. But it can have no application in any chancery canse, where the issue has not been-sent to a jury, beyond that degree of respect which might be due to the opinion of another court or judge. In the State Bank vs. Conway, (13 Ark. 350,) the distinction between appeals in chancery, and writs of error or appéals in common law cases, was adverted to.’ The Court there said, “The appeal in chancery isa rehearing, or trial of the cause de novo, upon the same pleadings and written evidence heard, and determined by the decree’in the Court below, and, to some extent, necessarily involves the determination of facts.” A brief recital in the decree'of the facts upon which itis rendered, is. allowable and may often be useful, but is not now considered any more essential to its validity, than a statement of the reasons or legal argument which'may have induced the conclusion; else a decree, right upon the whole record, might have to be reversed, because of omission or mistake in the recital of some particular fact.

It appears from the transcript, that, in the months of March and April, 1840, two judgments for near four thousand dollars were rendered against Townsend and Benjamin Dickinson, in the Circuit Court of the United States, upon which executions issued, and being levied upon á number of tracts of land, including those now in controversy, as the property of one or both of the Dickin-sons, they were advertised tobe sold by the marshal, at the courthouse door, in Batesville, on the 15th day of March, 1841. Townsend Dickinson deposited with the plaintiff’s attorneys, certain collateral securities, which they supposed tobe valid, amounting to seven thousand dollars, and they.agreed, in writing, to postpone the sale until the first day of May, following, when it was to take place without -further notice, unless the executions should be satisfied by that time. Pursuant to this agreement, the marshal proceeded to expose the lands for’sale, on the 1st of May, when a portion of the tracts were bought by the defendant, Binggold, another portion by William F. Denton, since deceased, and the residue by an agent of the plaintiffs in execution, who attended the sale. Denton, on the day of sale, relinquished his bid to Binggold, who paid-the money and received a certificate of purchase for the tracts bought by himself and Denton, and on the first of June; 1842, obtained a marshal’s deed for the same, being the lands now in controversy. • ,

In April, 1840, T. & B. Dickinson were indebted to one James P: Carter, in the sum of $1,351, for- which he held their promissory note, payable on the 1st of September, following. In October, 1840,. Carter instituted suit upon the note in the Independence Circuit Court, against the two Dickinsons, and,- on-the 9th of June, 18-11, recovered judgment against them for $1,445. In July, 1842, lie caused execution to be issued upon this judgment, which was levied upon the lands in controversy, but they were not sold. In May, 1843, a writ of venditioni exponas was issued pursuant to an order of court. TJpon this execution, the Dickin-sons claimed, and were allowed, the benefit of the appraisement law, and the property, failing to bring two-thirds of its appraised value, was withheld from sale for one year. In November, 1844, an alias vend, ex., for which Carter had obtained an order of court, was issued upon his judgment, and the lands, being advertised, were sold by the sheriff, on the 1st day of the February term, 1845, of the Independence Circuit Court. At this sale, Carter became the purchaser, and, on the 7th day of February, 1845, obtained a sheriff’s deed for the lands. On the 24th of the same month, he convoyed them to the complainant Patterson.

It is insisted, for the appellant, and it may be conceded, that his answer is a full and explicit denial of the allegations in the bill, to the effect that at the marshal’s sale he colluded with Townsend Dickinson to aid him in defrauding his creditors, and •among them the complainant, or that he purchased and held the lands in trust for Dickinson, with a private agreement that they might be redeemed, or sold for his benefit. To the extent that the answer is responsive, the answering defendant is entitled to the protection of the rule, that a decree cannot go against the answer, unless it' is overturned by two witnesses, or one witness and strong corroborating circumstances. The complainant here prays that the defendant may be required to answer the allegations, and especially that he set forth and discover certain matters, about which he propounds a number of interrogatories. The allegations contained in the stating part of a bill, are the pleadings from which the complainant deduces his title to the relief sought It should set forth the facts essential to the relief, but need not detail all the evidence by which it may be expected those facts will be established. By the interrogating part of the bill, the complainant proposes to make a witness of the defendant, and to elicit evidence from him in support of the allegations ; and when he propounds special interrogatories, may shape them in a variety of ways, of a minute and searching character, as he would examine an adverse witness, if they appear to be relevant, so that the answers to them might conduce to establish the complainant’s case or repel some anticipated defence. If the defendant does not plead to the discovery, or except to the interrogatories for being frivolous or impertinent, it is his duty to answer them fully and satisfactorily. Failing to do so, he may be treated as if in contempt, and the complainant by exceptingmay compel a further answer. If he reply, it is a waiver of the exception, and the fact, specially enquired about, and not answered, stands neither admitted (unless peculiarly within the knowledge of the defendant) or denied; to be proved by the complainant, one witness sufficing, like any other fact, where the defendant does not have the benefit of his denial or explanation under oath.

The prominent feature in the complainant’s case, is, that the marshal’s sale took place without any kind of notice contemplated by law to insure publicity. The rules promulgated by the federal court for this district, which were read and made part of the record at the hearing, adopt and conform to the State statute, as to the time and manner of advertising the notice of execution sales; and lands are required to be sold at the court-house door of the county in which they are situate. It is to be regretted that those rules do not go further, in conformity with the system and policy of the State law, by requiring that marshal’s sales of real estate should take place on the first day of the Circuit Court of such county. As those courts are holden twice a year, and the judgment creditor in the Federal Court may sue out his execution, returnable to rule days, it is believed that this practice could be adopted in harmony with that prescribed for the State Courts, without any serious inconvenience.. When it is considered that the levy of an execution on realty is an ideal act without notoriety or any visible change of possession; where the judgment 'confers tlie lien, and the only means appointed by law to insure publicity and fairness in the sale, is by means of the advertisement of it, and the requirement that all such sales shall be held on the first day of each term of the Circuit Courts, usually the most public occasions in every county, drawing together a great concourse of people, and that by such sale the debtor is absolutely divested of his estate, the importance of complying - with those requirements of law will be apparent. But in order to give confidence to purchasers at execution sales, so that property may bring the highest possible price, and which is, no doubt, the true interest of the debtor, the provision of law for advertising the sale, has been held to be directory, and the omission of it, or the failure of the sheriff to make a literal compliance with it, would not vitiate a sale to an innocent purchaser, who did not procure or participate in the irregularity; leaving the debtor, if injured, to his remedy against the officer thus negligent of his duty. In the case under consideration, the sale not taking place on any public occasion or time fixed by the State law, it is obvious that the only notice which could be given of the marshal’s sale, was by means of the advertisement, and the sale as advertised having been postponed by a private agreement, and to take place without further notice upon a contingency known only to the plaintiffs and one of the defendants in the execution, there was really no observance of the usual means of publicity appointed by law'. Now, so far as the defendant in the execution is concerned, it is clear that such a sale, taking place by his own consent and agreement, is valid, and he never can be heard to object to the title acquired by the purchaser, because any requirement of law had not been complied with, and which, being intended for his benefit, he had a right to waive. But other persons may be interested in having notice, actual or constructive, of the sale, at which every junior incumbrancer and creditor of the execution debtor has a right to be present, in order to bid upon the property, or see that it brings its full value. An execution sale, privately held by agreement of the debtor, at a time or place not appointed by law, may not be void ; but even where fraud is not alleged, tlie purchaser being ignorant of the want of notice, it would be reasonable to hold that it is voidable at the election of any junior incumbrancer or creditor, who had no notice, and who, in due season, offering to refund the purchase money, files a bill to have it set aside, the property resold, and the assets marshaled. It must be conceded there is a wide difference between holding the sale thus voidable, and absolutely void. If impeached and sought to be annulled and set aside for fraud, the knowledge of fhe purchaser of the want of advertisement, might not be conclusive against him. Because, in the absence of a provision by statute in this State, as we think would bo desirable, whereby the property and assets of every debtor, in failing circumstances, may be more effectually secured to incumbrancers, according to priority, and apportioned among his general creditors, without being-sacrificed in a scramble for undue preferences, a bill of that description, if sustained, would be attended with the same consequence of taking the property from one purchaser and vesting it' in another, without any benefit to the general creditors, involving ■also a forfeiture, by the first purchaser, of the money he may have paid. But it is safe to say, that know-ledge of such irregularity is always a circumstance, ahd, in- connection with other attendant circumstances, may be a forcible one, from which collusion between the purchaser and the execution debtor is to be inferred.

In the years 1840, ’41, and ’42, the two Dickinsons were deeply indebted, beyond their means or ability to pay, and in 1841 and ’42 there were various unsatisfied judgments against them in the Federal Court, and in the Independence Circuit Court, in addition to those before mentioned. In the month of March, 1841, T. & B. Dickinson, being largely indebted to the branch of the State Bank at Batesville, of which the defendant Ringgold was Cashier, made an arrangement, in which Townsend Dickinson was the principal actor, with the Bank, by which she obtained a deed of trust upon their plantation and negroes in Jefferson county, by making them a further advance of $5,000, a portion of wbicb was to be applied in discharging some previously existing liens upon that property; the whole to be repaid within a year. The result of which was, that the Dickinsons failing to make payment, the Jefferson property was sold under the deed of trust, bringing $2,000 over the debt to the Bank, of which excess one half was retained by the agent for his services, and the residue paid over to Townsend Dickinson. That property and the lands in Independence county, advertised by the marshal for sale on the 15th of the same month, embraced all the property of the Dickinsons, of which the witnesses deposing had any knowledge. At the sale which took place on the 1st of May, 1841, besides the marshal and clerk conducting it, and Townsend Dickinson, there were but few persons present; none who bid or appeared to take any interest in it, except the agent of the plaintiff’s, the defendant Ringgold, and W. F. Denton. The two latter bid against the plaintiff’s agent, but not against each other. They appeared to be acting in concert with Dickinson; that is to say, he frequently consulted with one or both of them, during the progress of the sale, and made representations in their presence and which were heard by others having no greater facilities for hearing, calculated to mislead the plaintiff’s agent as to the situation of the lands, and location of the improvements, and the result was that one and the other purchased the two most valuable tracts, containing the houses and improvements, at comparatively low rates. On one occasion, when the agent was bidding sharply upon a tract of 278 acres, whieh he supposed was cleared land, Dickinson had the sale suspended, until he could step into the clerk’s office and examine the records, and in a- few minutes returned, reporting a mistake by some transposition of the tracts in the levy, so that the agent ceased bidding, and when the adjoining half section came to' be offered, bought it at a higher rate, under the impression, from what Dickinson had said in a distinct and audible voice, that it embraced part of the farm, when in fact it was in the woods. It is proved that the lands in question lay within two or three miles of Batesville where Denton and the defendant Ringgold bad resided for many years previous. The purchases made by them averaged less than one-fifth of the real value of the lands, though this circumstance of itself is not important, since all the tracts, including those struck off to the plaintiff ’s agent, were sold at low rates; and it is part of the hardship of this whole transaction, so far as the general creditors of the Dickinsons are concerned, tkafthe subsequent sale of the same lands to Carter, who doubtless bought at a hazard by reason of the clouds which had accumulated upon the title, was for a mere nominal sum.

There is no room for doubt respecting the acts and declarations of Townsend Dickinson. Previous to the marshal’s sale, he proposed to one witness to sell him those lands, and suggested the plan of having them bought by a third person, under execution, so as to perfect the title to the witness, which was declined. On the day previous, the plaintiff’s agent called upon him for information about the quality of the lands, location of the improvements, &c., and the answers were such as to deceive the agent. He requested the clerk of the court, in case the agent should call upon him for information about the lands, not to give him any satisfaction. On the day of sale, he stated to a witness, that the defendant, Ringgold, was to buy the lands for him, and allow him a certain time in which to redeem them; and, after the sale, he told another witness that such was his agreement with Ringgold. And what is singular, when these same lands were levied upon by Carter’s execution, in 1843, we find the Dickinsons claiming the benefit of the appraisement law. But it is insisted for the appellant that he is not to be prejudiced by any declarations of Dickinson, to which he did not assent, until it is shown that there was a community of design between them, and that he was under no obligation to give, much less to volunteer, information to a rival bidder. ¥e have left out of view every thing said by the witnesses about the impressions left upon their minds, as to what was the intention of the parties, their wish or design, when the acts or declarations, from which those impressions were derived, are not stated. But two of tlio witnesses testify to their impressions of a fact. They are positive that Dickinson told them he was to have the privilege of redeeming, and they had the impression that Binggold, at the time of the sale or shortly after, said the same. The impression, the belief, the recollection of a witness, about what was said, acted or omitted in any past transaction, are equally admissible as testimony, which is not always entitled to weight, because of the reckless or positive manner in which the assertion is made. Tet if that were the only feature in the ease, we should hesitate to allow, impressions, deposed to after a lapse of several years, and about which the witnesses admit their recollection is not clear or distinct, though of, an affirmative fact, to outweigh a broad denial in the answer. So, in regard to the testimony of another witness, 'Win. Lowe, who deposes to a conversation between Binggold and the opposite party, shortly before the institution of this suit, in which he admitted that some limited time had been gi ven to Dickinson to redeem; but, taking the whole together, the inference might be, that the privilege of redeeming was a gratuity, a matter subsequent to the sale, and not connected with any prior understanding.

In this, balance of probabilities, two other facts, not before adverted to, remain to be considered. The appellant answers, that he does not know whether the marshal had given notice or not, of the sale, which took place on the 1st day of May, -1841, but he does not deny a knowledge of the agreement, entered into between Dickinson and the plaintiff’s attorney, and the fact must be taken as established by the testimony, that the sale was not only without public notice, and made by virtue o'f the agreement, but that the marshal so proclaimed at the time, in the hearing of all present, including the appellant, who, if he did not know, had the means of knowing by what authority the sale took place. The other is, that the appellant, on the 28th day of December, 1841, accepted from Townsend Dickinson a conveyance of the same lands, which he had bought at marshal’s sale, in May previous, for the consideration expressed of $1500. The explanation, given of this, in the answer, is, that it was clone to gratify Dickinson, and quiet liis complaints about the low price at which the appellant had purchased the lands in question, and that he agreed to, and did settle and pay that amount of debts, upon which he was already bound as security for Dickinson, and expected to have to pay in any event, and without hope of reimbursement, so that the payment of this additional sum to Dickinson, in that mode, was a matter of indifference. Admitting this explanation, though the debts so paid are neither specified or satisfactorily proved, the acceptance of the deed was an unfortunate circumstance.

"Waiving any enquiry, whether the special interrogatories are satisfied by the emphatic but literal denial of the allegations in the stating part of the bill, and giving to the appellant the full benefit of his answer as evidence, the conclusion of the Court, upon the whole case, is, that the decree appealed from ought to be affirmed. While it may be true, that the appellant was prompted by generous motives, and so unwillingly drawn into these transactions, there is no escaping from the conclusion, that he is chargeable with notice of the fraudulent designs of Dickinson.

The Court have not overlooked the claim, set up by the appellant to that portion of the lands in controversy, which had been sold by Bobert Moore to Benjamin Dickinson, by reason of his having paid for Dickinson Die greater part of the purchase money going to Moore. It does not appear that there is sufficient proof of this affirmative matter on the part of the appellant, upon which to found a partial decree in his favor. Affirmed.


text:
    Patterson vs. Moore as ad.
    A conveyance of real estate to the grantee, without the word heirs, or other words of inheritance, conveyed only a life estate, at common law, and under the territorial statute of 1804. Steele & McCamvp. Dig., Tide Conveyance, sec. 1.
    And such deed does not operate to pass the fee by way of estoppel; because the grantor, in his deed, “ doth warrant and defend from himself, his hens, executors and assigns forever ” the estate conveyed.

      Appeal from Independence Oi/reidt Oowt in Gha/nee/ry.

    Before Hon. B. H. Neely, Circuit Judge.
    PiKE & CuMMiNS, and ¥m. Byers, for appellant.
    "We submit that tbe provision in tbe first section, title Conveyances, (Steele c& MeQamp. Dig.,p. 131,) was designed to abolish tbe common law rule, requiring tbe term “heirs ” to be used in a conveyance to constitute a fee.
    Tbe deed, besides any covenants that may be implied from the words of conveyance, contains an express covenant to wa/rra/nt and defend from himself \ his heirs and assigns soTsrnnss.', which is an express covenant of warranty in fee and an estoppel against tbe grantor and those ‘claiming under him. Rawle on Gov. 188, 196,197/ Shaw vs. Galbrcdth, 7 Barr 111/ Teniett et al. vs. Taylor et al., 3 Oond. Rep. 295/ 5 Oond. Rep. 614/ 3 Piole. 51.
    Fowler, contra.
    We insist that by the deed to Mrs. Moore there is no estate of inheritance “limited to the grantor and his heirs ” — and, there being no words of limitation in and by the deed, either express or implied, it is not a case embraced within the statute of Louisiana territory, of October 1, 1804; but it is left to opei’ate according to its terms as at common law. See Beyer's JDig.,p. 127, see. 1.

      The entire want of any words of limitation to tbe grantor, &c., leaves it, deliors tbe statute; and, at common law, it could only pass a life estate to tbe grantee; as it contains no such words as heirs, inheritance, &c., which are indispensable to pass an estate in fee simple. 4 Kent Oom. (8d Ed.) 5, 6, 7/ 2 Blaok. Oom. 107, 108/ Litt., sec. 1/ Go. Litt. 8, 6.
   Mr. Chief Justice WatKINS

delivered the opinion of the Court.

This is an appeal from a portion of the decree in the case of Patterson vs. Dickinson et al., in which the opinion of the Court has just been delivered, affirming the decree upon the appeal of .Ringgold, one of the defendants in the Court below. A reference to that opinion will serve to explain the character of the bill, and the nature of the relief sought, as against the present appellee, and the only question presented may be understood from the following further statement of the case.

Among the lands sold on executions against B. & T. Dickinson, and about which the appellant and appellee in that case were contesting, were two fractions, one of about 100 acres, and one of about 24 acres, the titles to which were thus derived. Thomas' Moore, the owner in fee of the 100 acre fraction, on the 7th day of November, 1825, executed his deed as follows: “This indenture, &c., between Thomas Moore, of the county of Independence,, and territory of Arkansas, and Mary Moore, of the same place, of the other part witnesseth : That the said Thomas Moore, for, and in consideration of, the sum of five hundred dollars, to him in hand paid, hath granted, bargained and sold, and by these presents doth grant, bargain, sell and convey to the aforesaid Mary Moore, so much of a certain tfhct of land (describing it) so as to contain one hundred acres of land, which aforesaid tract ot land for the stipulation above mentioned, the said Thomas Moore doth warrant and defend from himself, his heirs, executors and assigns forever.” On the 18th of January, 1880, Mary Moore conveyed,, to her son Robert and his heirs, all her right, title and interest-in the same tract, reserving to herself the free use and occupation of one undivided lialf of it, during lier natural life-On tbe 13tli of September, 1835, R. M. Saunders conveyed the fraction of 24 acres to Robert Moore in fee. On tlie 20tli of February, 1837, Robert Moore sold both tracts to Benjamin Dickinson, with bond and covenant to make title to him and his heirs in fee, on payment of the purchase money, which is admitted to have been afterwards paid. On the 18th of July, 1838, Thomas Moore conveyed the entire tract originally entered by him, and including the 100 acres before mentioned, to Townsend Dickinson and his heirs.

Mary Moore having deceased, the chancellor, upon the final Rearing, dismissed the bill, and denied the relief as against ¥m. Moore, the administrator of Robert, who had died without exe■cuting a conveyance in compliance with his bond for title to Benjamin Dickinson. As to the 100 acre tract, the decision of flie chancellor that Mary Moore, by the conveyance to her from Thomas, acquired only a life estate, was correct; and, as the bill was framed for title, without any alternative claim for compensation in damages, in the event of a failure or inability to complete it, the proper course was to dismiss the bill. Upon the question •argued, 'it is proper to say, that since the adoption of the Revised 'Statutes of 1839, such a conveyance as that from Thomas to Mary Moore would pass a fee, the word heirs or other words of inheritance being dispensed with, so that if a less estate is intended, it must be e'xpressly limited by appropriate words. It is believed the territorial statutes, in force at the time that deed was executed, did not make any change in the common law, in this particular. Tire act of 1804, (Steele & McCamp. Dig., Title Conveyances, sec. 1,) providing that all deeds, whereby any estate of inheritance in fee simple, shall hereafter be limited to the grantee and his heirs, the words grant, bargain, sell, shall be adjudged an express covenant to the grantee, his heirs and assigns, to wit: that the grantor was seized,” &c.; and, also, for quiet enjoyment against the grantor, his heirs and assigns,” &c., could only have been designed to abridge and simplify conveyances, by ma-Vino- tbe use of certain words import those covenants usually inserted at full length. It is argued for the appellant, however, that the deed to IVIary Moore operates to pass the fee by way of estoppel, arising out of the special clause of warranty at the conclusion. In the principal case of Shaw vs Gilbreath, (7 Pa. State Rep. 111,) cited for the appellant to this point, the special clause of warranty was from the grantor and his heirs to the grantee, his heirs, and assigns. Here, whether from ignorance or design, the clause of warranty is only against the grantor and his heirs, and that being consistent with the granting part of the deed, which purports to convey only a life estate, could not be so construed as to enlarge it into a fee. The consequence is, that Townsend Dickinson having acquired the title to this tract by the conveyance to him from Thomas Moore in July, 1838, it became subject to the judgments rendered against him, and would follow the disposition of the other property in controversy between Binggold and Patterson.

But the legal title to the fraction of 24 acres, was in the heirs of Kobert Moore, and under the statute authorizing decrees against administrators to make conveyances in completion of sales made by their intestates, the prayer of the bill should have been sustained to that extent. As to so much of the decree in favor of the administrator, dismissing the bill, it will have to be reversed, and the cause will be remanded to the Court below, to modify its decree in accordance with the opinion here exjDressed. The administrator appears to have occupied a disinterested position, not objecting to execute such conveyance as the Court might direct, to either party, who might be entitled to receive it; and the judgment upon reversal in part of the decree here appealed from, will be that each party pay his own costs incurred about the prosecution of the appeal to this Court.


author: Mr. Justice Soott

text:
    Ware & Miller vs. Pennington et al.
    A judgment in the words, “ It is ordered, adjudged and' decreed, by the Oburt,” Sea., is not a nullity; the words used being of fully equivalent import to the words, “It is considered,” Sea.

    An agreement to assign a judgment against a third person, is a valuable consideration for a writing obligatory.

      Error to Bradley Oiromt Oourt.

    ' Tbe PLon. J. C. Mubbay, Circuit Judge.
    PiKE & CraiMiNS, for tbe plaintiffs.

      Balcer vs. State, (3 Arh. Hep. 491,) does not bold that a judgment is void, because it does not contain tbe word “considered.” If equivalent terms are used' — ‘as “adjudged and decreed” — there would be a valid final judgment. Dooley et al. vs. Watldns, 5 Arle. Bep. 105; DrexeVs appeal, 6 Barr. 272; NcmeBs appeal, 5- Watts c& Serg. 473.
    Yell, contra.
    Ware & Miller, by tbeir agent, obtained tbe writing upon wbicb tbis suit was foiinded, by deception, in this: they pretended to- transfer to tbe defendants a good and valid judgment, obtained in tbe Bradley Circuit Court, in tbeir favor, against Denarbus Pennington, when in fact tbe pretended judgment was a nullity in law, and could' not be enforced. Balter vs. The State, 3 Arlt. Hep. 491; 1 Ohitty’s Blaelc. 312, 313.
   Mr. Justice Soott

delivered tbe opinion of tbe Court.-

At tbe January term, 1851, tbe judgment before rendered in tbe Circuit Oourt was here reversed, and tbis cause remanded. (6 Eng. R. 745.) Upon its return into tbe Circuit Court, tbe demurrer to tbe second plea therein was confessed, and by leave of tbe Court tbe defendant filed four pleas.

1st. Nil debet.

2d. That the plaintiff, on the 26th of April, 1841, in Bradley Circuit Court,- recovered, against Denarbus W. Pennington, a judgment for $204 82, and costs, and their agent, "W. "W. Dorris, agreed with defendant, I. IT. Pennington, that if he would execute to plaintiff the instrument sued on, and procure security thereon, he, Dorris, as such agent, would in writing transfer and assign the judgment to said I. H. Pennington, and that neither said plaintiffs, nor their agent, did so assign the judgment, in consequence of which said I. H. never realized anything from the said judgment, and the same is now worthless, and defendants say the eontrraet and agreement aforesaid was the whole and only consideration, for which the wilting sued on was given; and that, therefore, the consideration has wholly failed.

3d. That the only consideration for the instrument sued on, was an agreement of Dorris, as the agent of the plaintiff, to assign to said Isaac JT. a certain supposed judgment, rendered in Bradley Circuit Court, on the 26th of April, 1841, in favor of plaintiffs, against Denarbus W. Pennington, in the words and figures following, to wit: then is copied the style of the case referred to, in the form of the usual entry of judgment on record, stating the appearance of the parties, the empanelling and swearing a jury, their verdict for plaintiffs for $204 82, and the judgment of the Court thereon, in these words: “It is therefore ordered, adjudged and decreed by the Court, that the said plaintiff have and recover of and from the said defendants the sum of two hundred and four dollars and eighty-two cents, together with all the costs in and about this suit in this behalf expended.” The plea then proceeds to say, “Said supposed judgment is a nullity, is no judgment at all, and not recoverable by law, and, therefore, the defendants say that the writing upon which this suit is founded, was executed by them without any consideration whatever.

4th. The general plea of no consideration.

The first of these four pleas was stricken out on motion of the plaintiff, because issue was already formed on one identical with it, and issue was taken on the fourth. To the second and third, demurrers were interposed. Tbe causes of demurrer to tbe second, were:

1st. It did not sbow a failure of consideration.

2d. No demand was alleged for tbe assignment.

Tbe causes of demurrer to tbe third plea, were:

1st. It is contradictory and inconsistent.

2d. It shows a good consideration.

3d. It does not allege ignorance of tbe form or nature of tbe judgment, or that they were deceived or imposed upon.

4th It was in other respects informal and insufficient.

Tbe Court below sustained tbe demurrer to tbe second plea, but overruled that to the third, and tbe plaintiffs declining to reply further, and electing to rest on their demurrer, final judgment was rendered against them, to reverse which, this writ of error was sued out.

Tbe overruling of this demurrer, and tbe subsequent judgment against tbe plaintiffs, upon their declining to reply further, are tbe errors complained of. To support tbe action of tbe Court in tbe premises, it is insisted that tbe judgment, set out in tbe plea, is a nullity, and to sustain this proposition, tbe case of Baker vs. The State of Arkansas, reported in 3 Ark. Rep. 491, and,a citation to Blackstone’s Commentaries, are relied upon. That was a criminal case, and tbe defendant, Baker, was under sentence of imprisonment in the State penitentiary for five years. It is true, however, that there are no indications in tbe report of tbe case that these circumstances either bad any controlling influence in moulding tbe opinion of tbe Court, or that tbe doctrine it established was to be confined to criminal cases alone of such grade. Tbe expressions used are general and sufficiently broad to embrace civil, as well as criminal, judgments. Tbe case was, that in tbe recording of tbe sentence of tbe law against Baker, in pursuance of tbe verdict of tbe jury, the terms “ordered by tbe Court,” were used. Tbe ruling was that these were insufficient to express a judgment, and that tbe words it is considered by tbe Court,” were necessary, for tbe reason, as given, that a judgment is tbe sentence of tbe law pronounced by tbe judges, as tbe organ of tbe law, and is not tbe Court’s own judgment. So subtle and purely technical is tbis distinction, it is fair to presume, if tbe opinion is to be interpreted strictly, that tbe Court never designed it to apply to cases beyond those like that before them, and tbis is the more probable, because in tbe subsequent case of Dooley el al. vs. Watkins, (5 Ark. Rep. 705,) where tbe case of Baker vs. The State, was cited as authority, it was not noticed in the opinion of the Court delivered, nor its doctrine applied in that case to a judg*. ment 'in tbe Probate Court. But, howsoever tbis may be, tbis case does not decide tbe question made in tbe case before us; that was a direct proceeding for reversal, and tbe Court, finding no final judgment from which an appeal would lie, awarded a writ of procedendo, that one might be entered up; and, it seems from a further report of tbe same case, in 4 Ark. R. 57, tbis was after' wards done secundum a/rtem, and tbe defendant ultimately sentenced in pursuance of tbe original verdict. Had tbe question been brought up in a collateral proceeding, as upon habeas corpus, to deliver tbe defendant, Baker, from imprisonment in the penitentiary, instead of in a direct one, "as it was, and in such a proceeding tbe supposed judgment bad been held a nullity, it would have been a direct authority upon tbe question involved; provided it should be taken, that in Baker vs. The State, tbe Court meant to decide that no other words could be substituted for “ oonsideratum est per cwrim%T Tbis latter conclusion, however, could not be fairly arrived at from any expression in tbe opinion, or from' tbe generality of tbe expressions, when considered in reference to tbe precise facts of that case. In tbe judgment entry, pronounced by tbe Court, tbe word “ordered,” alone, was used, which might well have been regarded as not of equivalent import to “ considered,” and as no such word was used, there was no 'occasion to call forth tbe expression of any opinion, whether or not tbe use of such words would not have sufficed in lieu of tbe word “ considered,” so long established in tbe precedents. Thus tbe judgment entry copied in tbe.plea differs materially from that in-the case of the State vs. Baker; since the terms here used are, “ It is therefore ordered, adjudged and decreed, by the Court,” &c., which we think of fully equivalent import to “ considered.”

In no view, then, does the case of the State vs. Baker, supported by the citation from Blackstone, decide the question at issue; since the proceedings in that case, although imperfect, were not held void' — -on the contrary, were ordered to be perfected— and the facts are essentially different, not only in the terms used in the judgment entries respectively, but in the character of the proceedings. Although the established precedents are to be regarded witli^ the highest respect, and should not be departed from without caution, because like pleadings they are a safe-guard to justice in another sense, to hold as a nullity a mere formal departure when the substance is preserved, would be to turn the guns of the outworks upon the citadel of justice. When this point is thus settled, it is clear enough that the plea in question was no answer to the declaration; since, in its terms, it presents a valuable security as the consideration for the instrument sued upon, and not a mere nullity, as was supposed. The Court, therefore, erred in overruling the demurrer in question and in the final judgment rendered. Reversed.