author: Mr. Justice Waiice»

text:
    Biscoe et al. v. Byrd et al.
    The acknowledgment of a deed is valid, if taken before a judge or justice oí the peace,, within the limits of the State in which he is commissioned to act — it being a ministerial, not a judicial act.

      Ajppeal from the Oi/rmit Oowrt of Pulaslci OownPy.

    Hon. ¥m. H. Feud, Circuit Judge.
    Pike & Cummins, for tbe appellants.
    CuRRAN, for appellees.
   Mr. Justice Waiice»

delivered the opinion of the Court.

As nearly all of the questions arising in this case, depend upon the contingency that we hold the deed of mortgage from Byrd to the Beal Estate Bank, to be improperly registered, we will proceed to state the facts necessary to a proper understanding of the issue touching that point, and to investigate it.

The bill, in this case, was filed by the trustees of the Real Estate Bank, to disencumber the lands conveyed by deed of mortgage to the Bank by Byrd, to secure the payment of all such sums of money as he might borrow from the Bank on account of subscriptions for stock; and, upon which, as such stockholder, he had borrowed $J.600; and to foreclose the mortgage, and subject the property to the payment of said debt.

The mortgage deed was filed and admitted to record, together with the certificate of acknowledgment, taken before a justice of the peace, on the 16th day of September, 183J.

On the 21th day of June, 1840, Andrew B. Jones and William Woodward, recovered judgment, in the Circuit Court of the United States for the District of Arkansas, against Byrd and Dunn, for the sum of $5,661 43 damages and costs of suit; upon which judgment such proceedings were had, that, on the 25th day of November, 1844, George C. Watkins became the purchaser of the land so mortgaged to the Bank, to whom a regular deed was made and recorded on the 30th November, 1844.

On the 10th November, 1840, Edward Pitman & Co., recovered judgment in the Pulaski Circuit Court against Byrd & Dunn, for the sum of $1.617 73 damages, together with costs: and, also, 'another judgment for the sum of $3.668 05 damages, together with costs; each of which judgments, by force of the statute, created liens upon the real estate of the defendants, within the county in which they were rendered, from the day of the rendition thereof respectively.

Under this state of case, the contest, for priority of title, is raised between the Bank, the mortgagee, and Watkins, the purchaser, under the judgment lien.

Conceding that the deed is, in all respects, valid and sufficient, and properly recorded, if the acknowledgment is sufficient, and that the judgment, and 'all the proceedings under it, are valid and regular, and that the judgment lien had not been displaced, by lapse of time, or otherwise; the purchaser, under the judgment lien, contends that the mortgage, although prior in date, and also in its entry upon the record, did not create a prior lien upon the land, in favor of the Bank, to the judgment lien under which he purchased, for the reason, as he alleges, that there was no valid acknowledgment of the deed by Byrd, which was indispensably necessary to affect him with notice under the registry act.

The only objection to the certificate of acknowledgment, is, that the acknowledgment was taken and certified in Pulaski county, where the lands lie, by a justice of the peace, commissioned and qualified to act as such, within, and for, the county of Chicot. There is no question, but that the acknowledgment was taken in Pulaski county by a justice of Chicot county: and, the point at issue, is, was such act valid ?

By the constitution of this State, the qualified voters of each township elect the justices of the peace for their respective townships. They are required to reside in the township for which they are elected. Their jurisdiction, as to the subject matter, cognizable before them, is defined; but, as to the territorial jurisdiction, nothing is said in the constitution. The Legislature has extended the jurisdiction of justices in certain cases, civil and criminal, beyond the limits of their respective townships, and given them jurisdiction, co-extensive with the county in which the justice is elected, not only in regard to ministerial, but also judicial acts. Digest, chap. 95, see. 1, p. 672. And we have held those statutes to be constitutional. Humphries vs. McGraw, 5 Ark. Rep. 62.

If the Legislature had power to confer, upon the justices of the peace, jurisdiction beyond the limits of their respective townships, and co-extensive with the limits of the counties in which they are elected, (and particularly when it is a judicial power thus conferred), there would seem to be no good reason, why a mere ministerial power might not be conferred upon them, any where within the limits of the State. And that they did so, we think fairly deducible, not only from the general terms used in conferring, the power to take the acknowledgment of deeds, but by the previous course of legislation upon the subject.

The deed, in this case, was acknowledged before the Revised Statutes took effect, but after the formation of the State Constitution, and the election of officers under it. Under our Territorial Government, justices of the peace were chosen by a joint vote of the Legislature. Steel & McCampbell's Digest, p. 354, see. 1. And, under the statute in force, during the Territorial Government, justices of the peace- had power to take the acknowledgment of deeds, within the county in which they resided, and were qualified to act, and in whicli the land conveyed was situated. Steel & McCampbell's Digest, p. 133, sec. 4. So, that they were, in express terms, limited to their respective counties by legislative enactment; and so the law remained until after the formation of the constitution; and at the first session thereafter, indeed within a few months, a Legislature, composed of many of the members of the convention, who framed the constitution by an act, approved the 31st October, 1836, enacted “That, in addition to the mode now prescribed by law, the proof or acknowledgment of any deed of conveyance, or the relinquishment of dower of any such deed, &c., may be made before, and taken by, any judge or justice of tbe peace, or notary public, in tbe State, or any clerk of tbe Circuit Court in any county in the State.” Now, by reference to tbe old law, each of these officers had power to take the acknowledgment of deeds, and tbe only difference is, that tbe one-limited tbe officer to tbe county, tbe other does not. What, Ilien, are we to understand by tbe terms, “In addition to tbe mode now prescribed by law ?” Most clearly, that tbe Legislature intended to enlarge the territorial jurisdiction of tbe officer; because, that is tbe only way by which it could be enlarged. There was no addition of officers, before whom tbe acknowledgment might be taken, and no change as to tbe manner of'taking tbe acknowledgment.

These duties are, in no wise, connected with tbe judicial powers of the justice. He is required to keep no record of bis acts; tbe only evidence of which, is bis certificate upon tbe deed. It is, in its nature, an act of personal trust, and is conferred on several officers, some of whom have no judicial power, in consequence of their presumed capacity and integrity. It belongs to that class of duties known and recognized by this and other courts, as strictly ministerial. Thus, it lias been held, that, taking a recognizance is a ministerial act. Albee vs. Ward, 8 Mass. Rep. 84; Levy vs. Inglish, 4 Ark. Rep. 65. Taking an affidavit is such. 4 Bos. da Pul. 87. And so, also, is the taking of the acknowledgment of a deed. Gill vs. Fontleroy, 8 B. Mon. 177; Beaumont vs. Yateman, 8 Humph. Rep. 543; Hopkins vs. Menderback, 5 J. R. 234; Moore vs. Vance, 1 Ham. R. 1; Kinsman vs. Lewis, 11 Ohio Rep. 479.

And being ministerial, it is held that the officer performing them, Is not limited to his appropriate territorial jurisdiction, in the performance of them. Thus, in Loveboard vs. Moorehead, 4 Bos. & Pul. 37, a fine and recovery were allowed to pass, on an affidavit made before two English justices, who were, at the time of taking it, in France. And although it was held in Jackson vs. Humphries, 1 J. R. 498, that an oath, administered by a New York judge in Canada, was void; because, taken beyond his territorial jurisdiction — that case was subsequently, in effect, overruled by the same court, in the case of Hopkins vs. Menderbach, 5 J. R. 234. And in Moore vs. Vance, 1 Ham. R. 1, the case of Jaohson vs. Hwmphries, was reviewed and expressly overruled. In that case, a deed, acknowledged before a United States Judge, for the territory north-west of the Ohio river, taken beyond the limits of the territory, was held to be valid, and this decision was subsequently re-affirmed by the same court in Kinsmam vs. Lewis, 11 Ohio Rep. 479.

These decisions are strongly in point; and some of them carry the rule further than is necessary, in this case, or than we would perhaps feel inclined to do. They all consider the officer, whether judge, justice, or notary public, as acting, in this respect, rather as commissioner, to whom plenary power is given to take the acknowledgment of deeds, than as an officer, in the ordinary discharge of official duties.

"Without, therefore, intending tq be understood as extending this rule to the judicial acts of a judge or justice, or that, even when acting in a ministerial capacity, they may go beyond the limits of the State in which they are commissioned and qualified to act, as would seem to be the case in Moore vs. Vance, and Loveboard vs. Morehead, in which the act of the officer was held to be valid, even when done beyond the limits of the State, under whose authority they profess to act, we feel authorized, in view of the general terms in which the power is conferred, the nature of the act to be performed, and the authoritative precedents of other courts, to hold the acknowledgment of a deed, taken before a judge or justice of the peace, valid; if taken within the limits of the State, in which he is commissioned to act. And even if this was a doubtful question, as the statute may have been so construed, and acted under, and rights acquired to real estate, we should feel it our duty to adopt the most liberal construction, and one which would sustain and uphold the title to property heretofore conveyed.

The case of Share vs. Anderson, 7 Serg. & R. 62, it is true, would seem to bold a different rule. It was, in that case, held, that the power to take the separate examination of a married woman, was limited to the particular district in which the justice presided, but this decision was expressly made upon the ground that the act was a judicial, not a ministerial act; and is, therefore, in direct contradiction to our own decisions, and those of most of the. other States, and can have but little weight, in determining the question before us.

This question being settled, it is unnecessary to pursue our investigation further, of to settle the questions which would arise in case our decision had been different on this point, many of which have been settled by this court since the-submission of the case.

Having decided that the acknowledgment was taken before a competent officer, there is no question but that the deed of mortgage created a prior specific lien upon the land, from the 16th of September, 1831, the day on which it was filed and admitted to record, in favor of the complainants. The court below, therefore, erred in deciding that the judgment lien creditors were not affected with constructive notice of the mortgage lien, and that the same was postponed to the prior rights of the judgment creditors, to satisfaction out of the lands of the creditor, Byrd, and this, wholly irrespective of the question as to whether such judgment creditors, and the purchaser under the judgments, had actual notice of such prior mortgage lien or not, or whether such notice, if given, would be equivalent to registry notice; with regard to which, we express no opinion, because, it is unnecessary to do so, in order fully to settle all the rights involved in the case; and, also, because the mortgage is prior in date to the statute, under which the counsel seem to suppose it must be determined.

The complainants are clearly entitled to prior right to satisfaction out of the mortgaged property, and for that purpose, the mortgage should be foreclosed, and the lands therein described sold, to pay the sum admitted by the parties to be due, together with ten per cent, interest thereon until paid.

The judgment creditors, for whom "Watkins bought the property, no doubt, acquired a valid legal title to the land, subject to the prior incumbrance of the mortgage debt, and if the}' choose to hold their purchase, and pay oft' such incumbrance, they should be permitted to do so; but, if they fail to do this, the lands should be sold, and the proceeds applied to the payment of the debts of the several creditors, giving priority to each, according to date. The sums due to the several claimants seem to have been properly ascertained by the court below, from an agreed state of case submitted by the parties: after which, and the payment of the costs as herein directed, the overplus, if any, to be paid to said Byrd, or his legal representatives.

Let the decree of the court below be reversed, and set aside at the cost of the appellees, and a decree be entered in this court, in. accordance with the opinion herein delivered, in conformity with the practice in equity, decreeing against the appellees the payment of the costs incurred at their instance in the court below, and the residue of the costs against the defendant, Byrd, to he paid out of the proceeds of the sale of the mortgaged premises.


source: Caselaw Access Project

author: Mr. Justice Soott

license: Public Domain

text:
    Guthrie vs. Field et al.
    A Mil in chancery, continued at two successive terms, by consent, with leave to the defendants to answer — at the third term, no steps were taken, nor the case called up — at the fourth term, the complainants, at the calling of the cause, moved for a decree pro confesso; but the court dismissed the cause for want of prosecution:
    That the court erred.

      Appeal from the Circuit Cov/rt of Pulaski County m Cha/ncery.

    Hon. ¥m, H. Field, Circuit Judge.
    TeapNAll, for tbe appellant.
    Tbe complainant was entitled to tbe decree asked for. Sec. 19, chap. 28, Digest.

    S. H. Hempstead, contra.
    It is competent to dismiss a bill for wrnnt of prosecution. Monteith vs. Taylor, 9 Vesey 615/ Lyon vs. Dvmbell, 11 Vesey 608.
   Mr. Justice Soott

delivered tbe opinion of tbe Court.

It appears, from tbe bill of exceptions, that, on the 9th of February, 1854, both tbe complainants and tbe defendants appeared ' by their solicitors, and that this cause was regularly called up for trial, and that thereupon tbe complainants moved for a decree pro confesso against the defendants therein, who had been served with process, and bad failed to answer tbe bill, which motion the court overruled, and thereupon, on its own motion, ordered the cause to be discontinued, upon the ground, as is stated, that no steps had been taken in the cause since in the year 1850, and a decree was made accordingly, from which the complainants appealed to this court.

It appears, from the transcript, that, on the 12th June, 1851,. some of the defendants were allowed, until the succeeding term, to answer, and, by consent, the causé was continued; the complainants, at the same time, obtaining an order of publication against other defendants. It also appears, that, on the 20th January, 1853, the defendants were allowed further time to file their answer until the succeeding term, and the cause was continued. At the next succeeding term, it does not appear that any steps were taken by either party, or that the case was called up at all. Then follows the term -when the decree in question was made, which, to say the least of it, is sustained, under .the circumstances, by no precedent, cited or known to this court. So far from the complainant having failed to prosecute his suit, it appears that, upon the only occasion when the cause was called up, be endeavored to progress in the manner provided by law, (Digest, chap. 28, secs. 13, 19,) which the court would not allow, and without further ado, thrust his cause out of court. The only two cáses cited to sustain the action of the court in the premises, fall very far short of doing so.

The decree will be reversed, and the cause remanded to the Chancery Court for Pulaski county, to be proceeded with according to law.


author: Mr. Chief Justice ENGLISH

text:
    The State vs. Sorrells.
    The usage of the government, continued from the adoption of the constitution, is entitled to regard in the determination of doubtful constitutional questions.
    The enactments of the Legislature are to be upheld by the courts in the absence of any clear and manifest repugnance to the constitution; and there is no such repugnance in the law providing for an election to fill, for the unexpired term, a vacancy in the office of Circuit Judge.
    Under the constitution, as amended, Circuit Judges are elected for a term of four years; and, upon the happening of a vacancy, the election is for the unexpired portion of the term, and not for a full term of four years.

      Writ of Quo Wa/rrmto.

    S. "W. "WilliaMS, Attorney General.
    The only question to be determined in this case, is, whether the resignation of Josiah Gould, in 1851, created a vacancy in the office of Circuit Judge of the 2d Judicial Circuit, or a vacancy in bis term of that office.
    Authorities to show that it created a vacancy in the office: Sec. 7, amt. 6 Const.; The State vs. Seott, 4 Eng. 176/ Story's Com. on Const., seos. 181, 182, 183 cmd 210, 212/ 2 El, Com, 116/ Acts of 1848, page 9/ Const., p. 52/ Hughes vs. Buckingham, 5 8m. do Marsh. 632/ Johnson vs. Wilson et al., H. Hamp. H. 202/ Am. Big. 398/ Rill vs. The State, 1 Ala. 561/ Fletcher vs. Peek, 6 Cranah; Dartmouth College vs. Woodward, 4 Wheat.; The People vs. Yerby, 6 Gowen 651.

    Gallaghek, for defendant.
    TJnder our form of government, no officer or incumbent of any office, has a property therein. State vs. Floyd, 4 Eng. 302/ State vs. Scott, ib. 300. The commission, in itself, gave no right — the same being derived solely from the election. Hill vs. State of Alabama, 1 Ala. R. 561.
    There can be no such thing as an officer de jume, an officer de facto existing at the same time as incumbents of an office. Beamd-mam, vs. HolUda/y, 10 Paige Ch. R. 223/ Smith vs. Half acre, 6 How. Rep. (Miss.) 588.
    The main and sole question upon which the case depends, is simply this: can the people elect a judge of a Circuit Court, the office being vacant by the death or resignation of the previous incumbent, whose term of office has not expired — can there be such a thing as an “unexpired term?” That there can be, see Smith vs. Half acre, 6 How. (Miss.) Rep. 580.
    The distinction we assume, is, that where the appointing power is in an individual, and the appointee dies, then there is no vacancy in the term, but there is one in the office: but in cases where the appointment is in the Legislature or people, ex necessitate rei, upon the death ■ or resignation of the incumbent, there is a vacancy in the term, and there remains a vacancy in an unexpired term of office.
   Mr. Chief Justice ENGLISH

delivered the opinion of the Court.

Upon the order of the Attorney General, the clerk of this court issued a writ of quo warrmito against Thedorie F. Sorrells,, requiring him to show by what warrant he exercises the office of Judge of the 2d Judicial Circuit, of this State.'

The plea of Sorrells, in response to the writ, alleges, that on the first Monday of February, A. D. 1849, an election was held in the several counties composing said circuit, for the election of a judge thereof, under the provisions of the act of ^th December^ 1848, entitled an uact to divide the State into Judicial Circuits, to provide for the election of Judges,” céc., at which election, Josiah Gould was duly elected, and afterwards, on the 26th day of February 1849, commissioned by the Governor, judge of said 2d circuit, for and during the term of four years from the date of his commission, and until his successor should be elected and qualified, according to law. That Gould qualified, and acted as such judge, until the 29th day of March, 1851, when he sent his resignation to the Governer, to take effect on the first Monday of August following. That thereupon the Governor issued writs of election to the sheriffs of the several counties composing said circuit, commanding them to hold a special election on the 1st Monday of August, 1851, for the purpose of electing a judge for the nnexpired term of the said Josiah Gould; at which election John 0. Murray was duly elected, and afterwards, on the 18th day of August, 1851, commissioned by the Governor, judge of said circuit to fill the vacancy occasioned by the resig nation of said Gould, and for and during the remainder of his term, according to law. That Murray qualified, and entered upon the duties of said office, and was entitled to hold the same, until the 26th day of February, 1853, when Gould’s term expired, and until his successor was elected and qualified.,

That, on the first Monday of August, 1854, a general election (being the first general election after the expiration of Gould’s term, and Murray’s commission) was held in the several counties-composing said circuit, for tbe election of a judge thereof, pursuant to the act of the 29th December, 1848, above referred to, and “An act to provide for an election of one Representative to Congress.> <&c., and to cha/nge the time of holding other electionsap-proved 11th December, 1851: at which election, the defendant, Sor-rells, was duly elected, and afterwards, on the 22d day of August, 1854, commissioned by the Governor, judge of said 2d circuit for the term prescribed by the constitution. That shortly after the issuance of his commission, he qualified, and entered upon the discharge of the duties of said office; and by virtue of the premises, claims the right to hold and exercise the same, &c.

The Attorney General demurred to the plea, and the defendant joined in the demurrer.

If Murray was entitled to hold the office, under the constitution, for four years from the date of his commission, and not merely for the remainder of Gould’s term, the election and commission of the defendant, were irregular, and his plea is insufficient.

When the constitution came from the hands of its framers, it contained various provisions in reference to the office of circuit judge, which it may be well first to cosnider; and then to determine how far these provisions have been modified by subsequent amendments.

Original provisions. — 1. “The judicial power of this State shall be vested in one Supreme Court, in Circuit Courts, in County Courts, &c. Art. VI., sec. 1.

2. The State shall be divided into convenient circuits, each to consist of not less than five nor more than seven counties contiguous to each other, for each of which a judge shall be elected, &c. Ib., sec. 4.

3. The General Assembly shall, by joint vote of both houses, elect the judges of the Supreme and Circuit Courts. Ibid.. sec. 7.

4. The judges of the Ci/rcmt Court, shall be at least twenty-five years of age, and shall be elected for the term of four years from the data of their commissions. Hid.

5. Vacancies that may happen in offices, the election to which is vested in the General Assembly, shall be filled by the Governor during the recess of the General Assembly, by granting commissions, which shall expire at the end of the next session. Art. V., sec. 15.

6. The General Assembly shall meet every two yews, on the first Monday of November, at the seat of Government, until altered by law. Art. IV, sec. 7.

7. The Governor may, by proclamation, on extraordinary occasions, convene the General Assembly, &c. Art. V, sec. 8.

8. The 8th section of the “Schedule” provides for the holding of the first session of the General Assembly, under the constitution, on the 2d Monday of September, 1836.”

The constitution was adopted, in convention, on the 30th January, 1836, and the State was admitted into the Union, by act of Congress, approved 16th of June, 1836.

At the first session of the General Assembly held under the constitution, the State was divided into six Judicial Circuits: Acts of 1836, ¶. 138, 181; and a judge elected for each circuit, for the term prescribed by the constitution. Souse Journal, 1836, p. 133,134, 205.

The following persons were elected:

1st CiRcuit — J. O. P. Tolleson.
2d. “ —De La P. Boysdoji.
3d. “ - — Lewis B. Tully.
4th. “ ■ — J. M. Hoge.
5th. “ —Charles Caldwell.
6th. “ ■ — -Allen M. Oakley.

.The Governor, by proclamation, convened the General Assembly on tho first Monday of November, 1837. In his message, he informed the two Houses, that OaMey, who had been elected judge of the 6th circuit, at the previous session, '■'■refused to act,” and that on the — day of February, 1837, under sec. 15, cert. 6, of the constitution, be had “commissioned Levin I. Handy to fill the vacancy occasioned by the refusal referred to.” Also, that the judge of the second circuit resigned his office on the 23d of October, 1887, and that no commission had been granted to fill the vacancy, in consequence of the near approach of the called session of the General Assembly. House Journal, 1887, p. 178,179. Acting on this information, it appears that the two houses proceeded, on the 13th of November, to make an election, and Euclid L. Johnson was elected judge of the second, and Levin I. Handy, judge of the sixth circuit, who were declared, the House Journal says, “duly elected for the term and period prescribed by the constitution of the State, and v/ntil their successors ewe duly eleeted cmd qualified.” House Journal, 1837, p. 224, 225. The Senate Jo%trnal says, “for and during the time prescribed by law,” page 23.

At the same session, on the 13th February, 1838, the two houses proceeded to an election of judge of the sixth circuit, to fill the vacancy occasioned by the resignation of Levin I. Handy, and ¥m. Conway B. was declared duly elected lfor the term cmd period prscribed by the lanes of this State.” House Jou/rnal, 1837, p. 427.

At the regular session in 1838, the seventh circuit was created; acts of 1838, p. 4: and B. O. S. Brown elected judge. House Journal, 1838, p. 318.

At the session of November, 1840, ¥m. X. Sebastian was elected judge of the first circuit; Isaac Baker, of the second; Thomas Johnson of the third; Joseph Hoge of ihofotwth; John J. Clendenin of the fifth; and were severally declared “elected for the term prescribed by the constitution and laws of the State.” House Journal, 1840, p. 295, 299. It does not appear that E. L. Johnson had resigned the office of judge of the 2d circuit, but it would seem that it was considered that the time for which he had been elected at the called session, had expired. Moreover, at ■the session of 1840, Conway B. was re-elected judge of the sixth circuit. House Journal, 184-0, p. 459, and commissi one 1 on tbe 19th of December, 1840, the day of his election.

On the 1st March, 1842, Sebastian resigned the office of judge of the first circuit, and Tolleson was appointed by the Governor to fill the vacancy. At the regular session of the General Assembly, in November, 1842, John T. Jones was elected judge of the 1st circuit “for the time prescribed by law.”

During the same session, Wm. Conway B. resigned the office of judge of the 6th circuit — House Jowrnal, 1842, p. 78/ and John Field was elected to the office, “for the time prescribed by law.” Same Jowrnal) p. 109. II. C. S. Brown was also re-elected judge «of the 7i/i circmt. Ib., p. 110.

At the session of November, 1844, Wm. H. Sutton was elected judge of the second circuit; Wm Conway B. of the thi/rd; Se-■born G. Sneed of the fou/rth; John J. Clendenin of the fifth, •“for the term prescribed by law.” House Journal, 1844, p. 40, ■42/ and John Field having resigned the office of judge of the .sixth circmt (Appendix to House journal, p. 57) George Conway, who had been appointed by the Governor to fill the vacancy, was elected judge of that circuit “for the term prescribed by lam.” House Journal, 1844, p. 42.

The two houses rufused to go into an election for judge of the first circuit, holding that John T. Jones was elected at the session of 1842, for the full term of four years, and not merely to fill out the unexpired term of Sebastian. House Journal) 1844, _p. 32, 36. Senate Jou/rnal) p. 28-’30. This decision will be no. ticed hereafter.

At the session of November, 1846, John T. Jones was re-elected judge of the first circmt; Wm. IT. Field was elected judge of the fifth (Clendenin having resigned and the Governor having appointed Field in his place, September 1st, 1846); Wm. W. Floyd was elected judge of the seventh circuit. House Journal) 1846, p. 154. The eighth circuit was created at the same session, and C. C. Scott elected judge thereof. House Jowrnal, p. 155, and 'Wm. C. Scott was elected judge of -the third, circuit. Ib., p. 214 — -all of whom were elected for the “term prescribed by law.”

By an amendment, proposed to the constitution at the session of 1846, and ratified at the .session of ISIS, the General Assembly was deprived of the power of electing circuit judges, and the elections transferred to the people.

Thus we have endeavord to trace the election of judges, by the General Assembly,' from the adoption of the constitution, down to the session of 1848, for the purpose of ascertaining what the usage of the government has been: because, in the determination of doubtful constitutional questions, such usage is entitled to regard, when it tends to confirm or overturn a particular hypothesis.

From this investigation, it would seem that down to the session of 1844, the usage was not altogether uniform.

Thus, for the second circuit, Boysdon was elected, at the first session, on the 20th October, 1836; on the 23d of October, 1837,. he resigned; on the 13th of November, of the same year, E. L.. Johnson was elected in his place, at the called session; and at the-session of 1840, Baker was elected for a new term. This was all regular, if Johnson was elected to fill out the remainder of Boys-don’s term, but if Johnson was elected for a new and full term-of four years, his term did not expire until November, 1841, and Baker was commissioned a year too soon (23d Nov., 1840.)

For the sixth circuit, Oakley was elected 20th October, 1836;: and declined to accept the office. The Governor, supposing this-to be such a vacancy as he had the power to fill, commissioned Handy, in February, 1837; who was elected at the called sesión in the following November, but resigning, during the session, Conway B. was elected in his place, on the 13th of February, 1838. On the 19th of December, during the session of 1840, Conway B. was again elected and commissioned. Begarding his election in February, 1838, as being for the remainder of Oakley’s original term, which expired 20'th October, 1840. Conway B.’s second election and commission were regular. But if he was elected in February, 1838, for a new and full term of four years, it did not expire until February, 1842; and though the General Assembly, during the session of November, 1840, had perhaps the power to elect him for a new term, over a year in advance of the expiration of his first term, in order that a vacancy might not occur in the recess of that body, yet it was not regular to commission him again until the expiration of his first term, as, under the provision of the constitution, his second term would commence from the date of his commission. But the fact that the Governor commissioned him on the 19th December, 1840, at the time of his election, is an argument to prove that it was then understood? that his first commission was not for a new and full term, but for the remainder of Oakley’s term.

Sebastian was elected judge of the first circuit, at the November session, 1840, resigned in March, 1842, the Governor filled the vacancy by commissioning Tolleson; at the session of November, 1842, Jones was elected, and at the November session, 1844, the question was made before the General Assembly whether Jones had been elected for a full term of four years, or for the remainder of Sebastian’s term. Each house directed its committee on the judiciary to look into, and report upon the subject-

The question was investigated by but two of the members of the committee of the Senate, (Mr. Trimble and Mr. Yell) and, as they say, in their report, only for the “short period of one night f* but they reported it to be their opinion, that “the constitution authorized an election for circuit judge for the period of four years only; and that the Legislature could not elect for a longer or a shorter period: and that, therefore, Jones was elected for a full term. They refer to the case of Smith vs. Halfacre, 6 Howard's Miss. Rep. 582, but thought that case not applicable to the one before them, because in Mississippi the judges were elected by the people, and the provision there for periodical general elections, had some controlling influence in the decision of that case. Their report was adopted by the Senate; but, by what vote, does not appeal-. Senate Journal, 1844, p. 28.

Tlie committee of the House was divided. A majority repor ■ 'ted that Jones was elected for four years, and that there was no vacancy. The minority reported that he was elected but for the remainder of Sebastian’s term, which had expired. The house adopted the report of the majority of the committee on a division of 41 to 33. House Journal, 1844, p. 32, 36.

The opinion of the Attorney General (Mr. WateiNS, recently the Chief Justice of this court) was taken, and accompanied the minority report. He says: “In regard to all officers to be elected by the people, I conceive the intention [of the constitution] to be manifest, that they hold from one general election to another, and all appointments and elections to fill vacancies, can only extend to the next general election, in order to preserve the simplicity and purity of the elective franchise. The decision of the case of Smith vs. Halfacre, 6 How. Rep. 582, turns upon this reasoning.”

After citing the eases of The People vs. Green, 2 Wend. 266; The People vs. Goutant, 11 Wend. 132, and the same case affirmed 11 Wend. 511, and remarking upon them as standing somewhat opposed to Smith vs. Halfacre, he says: “I therefore incline to the opinion that when Judge Jones was elected for the term prescribed by the constitution, he was elected for four years from the date of his commission; at the same time I feel it my duty to say, that this question is not free from doubt in my mind. I can suppose the case of judges elected at irregular or called sessions of the General Assembly; according to the view I have taken, their commissions would expire at the like irregular periods, and those offices would necessarily remain vacant to the great prejudice of the people, until the next session of the General Assembly. The whole subject is an open one in this State, and the question remains to be decided by the Supx*eme Court.”

He concludes his opinion, by advising the General Assembly to make an election, in order that the question might be settled upon quo warranto; but no election was made.

That the constitution fixes the term of the office of circuit judges at four years from tbe date of their commissions, does not admit of question.; but whether its framers intended every judge elected by the General Assembly to hold his office for four years, from the date of his commission, irrespective of the term of his predecessor; or intended that the General Assembly should elect the judges regularly every four years, and if a vacancy occurred in the mean time, the person elected to fill such vacancy should hold only to make up the term of the former incumbent, is a question of some doubt; and it is not necessary for us to express a decided opinion on this point, as the case before us arises under the constitution as amended.

The amendments to the constitution, bearing upon this subject, are as follows:

1. “Judges of the Supreme and Cirowit Courts, Clerks of the Supreme and Circuit Courts, Attorneys for the State, Sheriffs, Coroners, County Treasurers, Justices of the Peace, Constables, and all other officers, whose term is fixed by the constitution, to a specific number of years, shall hold their respective offices for the term now prescribed, and until their successors axe elected and qualified. Ratified Nommber 17th, 1846. -

2. The qualified voters of each judicial circuit, in the State of Arkansas, shall elect their circuit judge.

3. That the General Assembly of the State of Arkansas shall not be restricted, as to the number of counties that shall compose a judicial circuit in this State.” Ratified Rfovem'ber%5th, 1848.

By additional amendments, ratified at the same time, the election of Prosecuting, Attorneys, County and Probate Judges, was also transferred to the people.

It may be observed that while the power of electing the circuit judges was in the General Assembly, the Governor was authorized to fill vacancies occurring in recess, but the amendment of November 25th, 1848, transferring the election of judges to the people, made no provision for filling vacancies happening between times that might be fixed for general elections, by death, resignation or removal; and, therefore, the mode of filling such vacancies was left open for legislative regulation. Though the election of judges for the regular constitutional term of four years, must be made by the people, yet it can hardly be questioned but that in the absence of any constitutional prohibition or restriction upon the General Assembly, they have the power to control the manner of filling vacancies occurring in the regular terms.

The General Assembly of November, 1848, after adopting the amendments to the constitution, transferring the election of the judges, &c., to the people, passed an act providing for such elections, &c. Acts of 184:8, p. 50. This act, passed by the same body of men who ratified these amendments to the constitution, is entitled to some respect, as an exposition of their understanding of the intention and effect of such amendments. Opinion of Chancellor Walworth in Coutant vs. The People, 11 Wend. 512; and Marcy, J., in The People vs. Green, 2 Wend. 266.

The first section of this act, divides the State into six judicial circuits.

The 2d section provides that an election shall be held at the several election precincts of this State, on the 1st Monday of February, 1849, and every two years thereafter, for the election of a County and Probate Judge for each county, and a Prosecuting Attorney for each judicial circuit; who shall hold their respective offices for the-term of two years from the date of their commissions, and until their successors are elected and qualified.

The 3d section provides, that there shall be elected, at the election to be holden as aforesaid, on the first Monday of February, 1849, and every four years thereafter, a judge of the .circuit court for each of the judicial circuits, who shall hold their respective offices for the term of four years from the date of their respective commissions, and until their successors are elected and qualified. .

The 5th, 6th and 7th sections, provide for the mode of conducting the elections, making the returns, &c.

Section 8 is in these words : “If any vacancy shall occur in either oí the offices of Judge of the County and Probate Court, of Judge, of tbe Ci/remt Court, or Prosecuting Attorney, by death, resignation, removal from the county in the case of a Judge of the County and Probate Court, removal from the circuit in case of a Judge of the Circuit Court or Prosecuting Attorney; or otherwise, it shall be the duty of the Governor to issue a writ of election to fill such vacancy, directed to the sheriff or sheriffs of the proper county or counties; which election shall be holden on a day named in said writ of election; and the person so elected to fill a vacancy, shall hold his office for the unexpired term of his predecessor, and until his successor is elected and qualified.”

The wisdom of this provision for filling rácemeles, is so manifest, that it should be upheld by the courts, in the absence of clear-and undoubted repugnance to some clause of the constitution. If no regard were paid to regular terms in the election of judges — if every judge was elected for four years from the date of his commission, regardless of the term of his predecessor, and of the time of his election, no system of periodical general elections could be preserved, but numerous special elections might occur, greatly to the inconvenience of the voters, and at unneces-s ry public expense. But it was argued by the Attorney General, that this inconvenience might be avoided, by a provision of law permitting a judge, elected at a special election, to hold the office for four years, and then to hold over, under the amendment to the constitution of November 17th, 1846, above copied, until the next general election succeeding the expiration of his term. True, this might be done, but it would be a departure from the spirit and intention of this amendment, which was designed not to extend the term of office fixed by the constitution, but to prevent temporary vacancies, between the going out of one judge, and the coming in of another.

At the time the election of judges was transferred to the people, the judges of the first, third, fifth and seventh circuits held unexpired terms. The terms of those of the second and sixth had expired; the fourth had expired, and was vacant by removal; and the judge of the eighth circuit, having been appointed one of the judges of this court, his successor held a temporary commission from the Governor.

Ibe Genéral Assembly seem to have been under the impression that the adoption of the amendment to the constitution, providing a new mode for the election of the judges, worked a vacancy in the offices of all the incumbents; and hence, they provided for a general election on the first Monday of February, 1849.

But there being doubts about the effect of the change of the mode of election upon the unexpired terms of the incumbent judges, the General Assembly, by the 10iA section of the act of December 22th, 1848, directed the Attorney General tou issue a writ of quo warrmto against one of the incumbents, to test the question; and provided that if the Supreme Court decided that he was entitled to hold out his term, then the judges of the first, third, fifth and seventh circuits, who were elected at the previous session of the Legislature, should respectively be judges of the first, third, fifth and fourth circuits, as established by that act, until the first Monday of February, 1851, and until their successors were elected and qualified; “and if a vacancy occur in'the office of judge of either of the circuits last aforesaid, such vacancy shall be filled in the manner and for the time prescribed in the eighth section of this act; and at the general election, to be holden on the first Monday in February, 1851, and every four years thereafter, a judge shall be elected for each of said circuits, who shall hold his office for the term of four years, and until his successor is elected and qualified.”

A quo warranto was accordingly issued against ¥m. G. Scott, Judge of the third circuit, and a majority of this court held that he was entitled to hold out the remainder of his term, notwithstanding' the amendment of the constitution changing the mode of electing the judges. Mr. Justice Soott dissenting. State vs. Scott, 4 Eng. Rep. 270.

On the 1st Monday of February, 1849, under the 4th section of the act of December 29th, 1848, above copied, Gould was elected judge of tbe second circuit, for the full terra of four years, from the date of his commission, (26th February, 1849.)

By sec. 1, chap. 61, Digest, the first Monday of August, 1846, and every two years thereafter, was set apart for general elections.

When the election of judicial officers was transferred to the people, the General Assembly thought proper to separate them from political elections, and fixed them upon the 1st Monday of February, 1849, and every two and four years thereafter.

But afterwards it was deemed expedient to change this policy, and, by act of January 11th, 1851, (Pcm/ph. acts, 1850, p. 129,) the election of Judges and Prosecuting Attorneys was made to fall in with the other general elections; and it was provided, .among other things, “That, after the first Monday in February, 1851, a circuit judge shall be elected, in each judicial circuit, at ihe first general election, after the expiration of the commission of the presiding judge thereof.” This act makes no change in the act of 29th December, 1848, as to filling vacancies in unex-gpired terms.

On the 29th March, 1851, Gould resigned the office of judge of the second circuit, to take effect after the first Monday of August, 1851; and, at a special election, held on the first Monday of August, 1851, ordered by the Governor, under the act of 29th December, 1848, Murray was elected, andón the 18th of the same month, commissioned to fill the vacamcy in Gould’s term, which expired on the 2,6th, of February, 1853; and Murray held over until the first general election thereafter, in August, 1854, when -.the defendant,. Sorrells, was elected, and commissioned for a new term.

That these elections were in accordance with the enactments of fthe Legislature, there is no question, and we have already said .that these enactments are to be upheld by the courts in the absence of any clear and manifest repugnance to the constitution. Our State Constitution is a limitation, and not (like the federal constitution) a grant of powers. The great residiuum of sovereignty is in tbe law making power; and tbe Legislature can pass any law which it is not expressly, or by necessary implication, prohibited from passing. State vs. Ashley, 1 Ark. 538; Smith’s Com. 236 to 312; State vs. Fairchild, present term.

It is a settled principle, in the legal policy of this country, that it belongs'to the judicial power, as a matter of right and of duty, to declare every act of the Legislature, made in violation of the constitution, or of any provision of it, null and void. 1 Kent’s Com. 450. But the question whether a law is void, for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in a doubtful case. It is not on slight implication and vague conjecture, that the Legislature is to be pronounced to have transcended its powers, and its acts considered void. The opposition between the constitution and the law, should be such, that the judge feels a clear and strong-conviction of their incompatibility with each other. Fletcher vs. Peck, 6 Cranch 87; Smith’s Com. 575, 576.

The view that we have taken of the power of the Legislature, to-regulate the mode of filling vaocmeies, occurring in the regular terms of the judges of the circuits, between the periods fixed for general elections, is not only sustained by the case of Smith vs. Halfacre, 6 How. Rep. 582, but is in accordance with the established usage of the government, in reference to vacancies happening in other offices, which are filled by elections of the people, under original provisions of the constitution.

Thus it is provided that the qualified voters, &c., shall elect circuit clerks, sheriffs, coroners, county surveyors, treasurers, justices of the peace, constables, &c., who- are to hold their respective offices for the term of two yea/rs, <&c. Constitution, amt. VI., secs. 7, 15, 16,17.

The constitution is silent as to the mode of filling vacancies in these offices — it provides for the regular terms, but not for vacancies in such terms.

The Legislature has supplied the omission, and provided for-filling all such vacancies. In some instances by Executive appointments, and in others by special elections; and, in all such cases, the vacancy is filled for the remainder of the umexjpvred term, and until the next general election. Thus the frequency of special elections is avoided, and a system of periodical general elections, is preserved. See Digest, ahajo. 165. The necessity, and wisdom of adopting the same policy in reference to filling vacancies occurring in the terms of the circuit judges, is manifest, and we do not doubt the power of the Legislature over the subject.

The demurrer of the State to the plea of the defendant, is overruled.


author: Mr. Justice Scott

text:
    Loftis vs. Glass, Ex.
    A testator directs that his real estate be sold by his executor, and the proceeds divided among his children: such proceeds are personal property; and, upon the death of the children without issue, will be distributed to theft mother as next of kin. Kettnj's Heirs vs. McGuire et at, cmie.

      Ajojoedl from the Circuit Court of Lafa/yette Cowntyy m Chancery.

    Hon. SheltoN WatsoN, Circuit Judge.
    Pro: & CumMINS, for the appellant.
    CukRAN & Gallaghee, contra.
   Mr. Justice Scott

delivered the opinion of the Court.

The complainant, who is the widow of the late Eichard E. Loftis, filed a bill in chancery against the defendant, as executor of the last will and testament of her deceased husband, alleging, in due form, the death of her husband, in the year 1846, in this State, of which he was a citizen: that by his last will, regularly executed before his death, and afterwards admitted to probate, in clue form of law, he directed the defendant, his executor, to sell all of his property, real and personal, and to place the whole proceeds at interest until his lawful heirs should become of age; among whom, at that time, it should be equally divided. But, if either one. should marry before coming of age, he or she should be deemed of age, and the executor should pay such, his or her proper equal share of the money. Besides, his widow, the complainant, (who claimed and received dower out of the estate) he left three infant children, all of whom afterwards died intestate, before arriving at age, and without issue, none of them having married. By a codicil the testator provided that after five years Powell Loftis should be the executor, and that Glass, the defendant, should pay over all the moneys and effects to him, and that he should then take charge of the whole estate, and pay over the same to the testator’s heirs, as directed in the will; and, upon the refusal of the latter, David Loftis was to become executor. That, in accordance with the directions of the will, the defendant, as executor, sold the lands and slaves, has realized the other assets, and has paid the debts; and she prays an account, the correction of various items in the settlements of the defendant, as executor, in the Probate Court, that the residue of the estate may be decreed to her, as distributee of her deceased children, and for general relief.

A general demurrer was interposed and sustained to her bill, and.the complainant appealed to this court.

The lands in question having b.een sold by the executor, in the execution of the power to sell, granted him by the will, the title of the heir was thereby divested; (1 Litt. %>. 169/ 1 Call's B. 429), and the proceeds of the sale in the executor’s hands, was necessarily personal estate. And even before the sale was made, the lands would have been regarded in equity, as the personal estate, of the devisee or legatee upon, the established principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as the species of property, into which they are to be converted. 1 Randolph R. 313; 1 Mad. 289, 317; 2 Mad. 108; 1 Ves. & B. 174; 1 How. Sup. 121.

The whole residue of the estate of the testator being personal, and having vested in his infant children under his will, and they having died intestate, without issue, and leaving no father then surviving, the complainant, as their mother, was next in the order of succession, fixed by our statute of descents and distributions, as construed in the case of Kelly et al. vs. MoGhwvre t& wife et al., decided at the present term, and is entitled to the entire residue to the exclusion of all others. She was, therefore, clearly entitled to the relief sought, and it was error in the court below to sustain the demurrer to her bill; and, for that reason, the decree must be reversed.


text:
    West et al. vs. Williams et al.
    A devise to A. for life, with remainder to B., does not lapse by the death of A., in the-lifetime of the testator, but vests immediately in B. on the death of the testator.
    "Where lands are devised by a maternal ancestor, the devisee, though he acquires the land by purchase, holds them as an ancestral estate ex pm-te materna; and, upon his death, without issue, those only of his heirs who are of the blood of such maternal ancestor, can inherit. Kelly's Heirs et al. vs. Mc&mire el al., amte.

    "Where lands and personal estate are both devised, charged with legacies, the personal estate must first be exhausted in the payment of the legacies, before resort can be had to the land.
    A minor son, possessed of real estate, dies withont issue; the father enters upon the ' land, claiming as heir to the son, and mates valuable- and lasting improvements: he is entitled; in equity, to- set off such improvements against the rents and profits.

      Cross Appeals from the Pulaslci Circuit Court im Chamcery.

    Hon. ¥k. H. Field, Circuit Judge.
    Pike & CuMMINS, for tbe appellants,
    West et al. Tbe first question in this case, is, wbetber the intestate, Eugene L. H. "Williams, took, at tbe death of tbe testatrix, the share devised to bis mother, Henry E. Williams, for life ;• or wbetber that legacy of tbe residuum lapsed.
    Tbe general principle as to lapsing is, that wills not taking effect until tbe testator’s death, can communicate no benefit to persons who previously die. 1 Jarman on Wills, 293. But this rule does not extend to a legacy given, over after tbe death of tbe first legatee ; for, in such case, the legatee, in rema/imd&r, is mtitled to have it immediately. Prescott, adm. vs. Prescott, 7 Metcalf 141; Doe vs. Roach, 5 M. da 8. 482; Uophims vs. Iloplmis, 2 AtK 581; 2 Jarmam 671; 2 Vern. 378; 2 Allí. 320; 2 Keene 555.
    It is clear, therefore, that the lands in Arkansas belonged to tbe heirs'of Mrs. Williams’ child. Who those heirs are, is to -be ascertained by tbe laws of Arkansas. Tbe estate came to tbe child from Mrs. Taylor, its grandmother; because, the child did not take thro’ its mother at all- — 'but \>j pwrchase, and not by descent.
    When legal terms are used, they are to be understood in a legal sense; technically, the words “purchase,” and “on the part of,” used in a .statute, are to be construed as at common law. Ba/rn-its, Lessee vs. Casey, 7 Cranch 468;Uall vs. Jacobs et al., 4 Ua/rr. da John. 254.

      Pwrchase, taken in its most extensive, sense, is thus defined by LyttletoN : “ The possession of -land, n&c., which a man hath by his own act or agreement; contradistinguished from acquisition by right of blood; a/nd includes emery other mode of comimg to am estate.” 2 Bla. Com. 241.
    The intestate in this ease, taking by devise from his maternal grandmother, took by purchase. "When t-lie estate vested in him? his mother was dead. He dies, possessed of the land, in fee. To whom did it go on his death ?
    The counsel contended that the complainants, who are the heirs at law of Mrs. E. M. 0. Taylor, must take the land, to the exclusion of the other heirs (the defendants) of Mrs. Henry E. Williams, not of the blood of Mrs. Taylor, and after quoting and commenting upon the several sections of the statute of descents and distributions, cited Gardner vs. Collins, 2 Peters 58/ 1 Lomax 588/ 2 Bla. Com. 221/ Ilall vs. Jacobs, 4 Ilamr. da John. 256/ 2 Hilliard on Peal Estate, chap. 77, sec. 68/ 4 Kent 405/ Torray vs. Shaw, 3 Edw. 360/ Conn. Stato, 204, 5 id. 34, 5/ Lewis vs. Gormam,, 5 Pa/rr. 164; WalkeSs ad/m. vs. Smith, 3 Yeates 480/ Shippen vs. Iza/rd, 1 Serg. & Pa/wle 226/ Bevcm vs. Taylor, 7 Serg. da Pawle 397/ Majjit vs. Ciarle, 6 Watts & Serg. 253/ StewmTs Lessee vs. Jones, 8 Gill da John. 1/ Burgwyn vs. Devereaux, 1 Ire. 583/ Piplcim, vs. Coot, 1 Law Repos. 104/ 2 Murph. 231/ Ham vs. Martin, 1 Hcvwks 423; Butler vs. King, 2 Yerg. 116.
    It seems to us that, with the light which the law in other States sheds upon the subject, there ought to be no great difficulty in construing our own statute. “If the estate come by the mother, it shall descend to the onother and her heirs,” is the language of the statute. The 29th section then explains the words “come by the mother,” to mean the same thing as the words “come on the pa/rt of the mother,” and provides that the expression shall be construed to include every case where the inheritance shall have come to the intestate by gift, devise, or descent, from the parent referred to, or from any relative of the blood of such parent.
    The common law followed invariably the line of the blood. It is not presumed that a statute is intended to change the common law any further than it does so expressly: and, in the 12th section, the Legislature, by excluding relatives of the half-blood where the inheritance comes to th§ propositus by gift, devise or descent, from a/ny one of his ancestors, and providing that in every such case, all who are not of the blood of that ancestor shall be ex-eluded, malee their meaning and intention, in the other sections, perfectly apparent. Section 12 shows, evidently that they meant to carry out the principle that, in all cases whore an estate comes to the intestate, from a particular ancestor, only such of his next of kin as are of the blood of that ancestor shall take.
    The stcotutory definition of the meaning of the expression “come on the part of the father,” or “mother,” is only the interpretation which the courts would have given to it, on general principles, and in carrying out the leading object of the law under the controlling intention of the Legislature, in the same manner as they construe the word “children” in a devise, to include grand children, which is now well settled. Ewirng vs. Hcmdley, 4 Lilt. 349/ Drayton vs. Drayton, 1 Descm. 327/ Deveaux vs. Ba/rnwell, 1 id. 499/ Izard vs. Izard, 2 Desau. 303/ Tier vs. Pewnell, 1 Edna„ 354/ Marsh vs. Hague, id. 174/ Smith's ease, 2 Desau. 123, n./ Cooke vs. Brookem'g, 2 Vern. 106/ Beeves vs. Bry&r, 4 Ves. 698/ Boyle vs. Hamilton, id. 439/ Mowatt vs Oa/row, 7 Pcdge 328/ Badoliff vs. Buckley, 10 Ves. 195/ Ea/rlof Oxford vs. Churchill, 3 Ves. & Bea. 69.
    Is Dr. Williams -entitled to have the legacies reimbursed to him? In other words, were they charged on the land? His son was legatee of one-third of the negroes, all the land, and the residue of all other property. “Out of the estate,” so devised, these legacies were payable.
    Chancellor Kent said, in Livingston vs. Hewhirk, 3 J. O. B. 319: “It is too well settled to be questioned, that the personal estate is to bv first applied to the payment of debts and legacies; and that a mere charge on the land will not exonerate the personal estate, nor anything short of express words, or plain intent in the will of the testator.” That this is correct, and that the personal estate, where real and personal estates are jointly charged with the payment of debts or legacies, is to be first applied, and the real estate only when the personal estate falls short, is undeniable. See, fully in point, Duke of Ancaster vs. Ma/yer, 1 Bro. G. G. 454/ Lawson vs. Hudson, id. 58/ Bwrtón vs. Knowlton, 3 Ves.

      Jr. 108/ Bmvmmel vs. Prothero, id. 113/ Tait vs. Lord North-wick, 4 Ves. 823/ Hartley vs. Hwrle, 5 icl. 546/ TPaisow, vs. Brick-wood, 9 id. 453/ Hancock vs. Abbey, 11 id 188/ TP"&>5 us. Jones, 1 Cox 245/ £?«•«/ us. Mvnnethorpe, 3 Ves. 103/ Bootle vs. Bl/un-dell, 1 Meriv. 227/ Walker vs. Jackson, 2 Atk. 624/ Kidney vs. Goussmaker, 1 Ves. Jr. 436/ Hamilton vs. Worley, 2 id. 62/ Git-tins vs. Steele, 1 Swanst. 28/ iNii «5. Raymond, cited 2 Hiic. 434/ ChcpUn vs. Qhaplin, 3 P. Wms. 364/ Gallon vs. Hancock, 2 Ath. 424/ Wride vs. Glcwk, Dick. 372/ Davies vs. Topp, 2 Bro. O. G. 259, n.j Mannin vs. Spooner, 3 Ves. Jr. 114/ Ha/rwood vs. Og-ta/nder, 6 Ves. 199/ S. G. 8/ id. 106/ Milnes vs. Slater, 8 Ves. 295/ Minor vs. Wicksteed, 3 Bro. G. G. 627/ Austen vs. Halsey, 6 Ves. 475/ Nyssen vs. Gretton, 2 Yo. & Coll. 222/ Davis vs. Da/rd/ner, 2 P. Wms. 188/ Pa/rker vs. Fearnley, 2 Sim. <& Stu. ■592/ Dol/mcm vs. Smith, Pre. Oh. 456, cited 1 Ropter on Leg. 696/ Philips vs. Philips, 2 Bro. O. C. 274/ Fitzgerald vs. Field, 1 Russ. 428/ Halsewood vs. Pope, 8 P. Wms. 324/ Lord Inchi-qui-n vs. French, Amb. 33/ Scmvwelltvs. Wake, 1 Bro. O. G. 144/ Rhodes vs. Rudge, 1 Sim. 79/ McGlellcvnd vs: Shaw, 2 Sch. & Lef. 538/ Walker vs. Ha/rdwick, 1 Myl. & K. 396/ Roberts vs. Roberts, 18 Sim. 337/ Brydges vs. Phillips, 6 Ves. 567/ Ald-ridge vs. Lord Wallscourt, 1 Ball do Beatt. 312/ Tower vs. Lord Rous, 18 Ves. 132/ Seaver vs. Lewis, 14 Mass. 83/ Lupton vs. Lupton, 2 J. C. R. 614/ Tole vs. Hcvrd/y, 6 Oowen 333/ Wright vs. Deevn, 10 Wheat. 204/ Gridley vs. Andrews, 8 Conn. 1/ Down-ma/n vs. Rust, 6 Ra/nd. 587.
    Fowler, for Williams et al.
    By the the first section of our statute of descents and distributions, the estate of Eugme, so dying intestate, is giving absolutely to tbe father. How far it is qualified, by other sections of the same act, is the question here, and produces the great difficulty in its construction.
    By the 10th section, where'the estate is a new acquisition, it is made to ascend to the father Turing his life, &c. Gren. Williams, my client in this case, insists first, that the estate ascended
      to him in fee, on tbe death of his son, under the first section of the statute; and that this section should not be trammelled by subsequent sections of the staute of doubtful bearing. But, if not his, in fee, that under the circumstances of the' case, and the heavy legacies charged upon it, that under the 10th section, it became a new acquisition in the hands of his son; and ascended to the father for his lifetime. And that such legacies were so charged upon the estate, and so changed its nature and condition, he refers to 1 Roper on Leg. (ls£ Am. Ed. 1829,) p. 448 to 454/ 2 Vern. Hep. 708; Trott vs Vernon, 3 Brown Oh. Rep. 731, Minor vs. Wioksteed.

    If these positions be erroneous, he insists that a proper construction of the 10th and 22d sections taken together, (if the latter really applies to the former, and it fails to quote language used in the former,) is that, on the death of Eugene, his estate having come by the mother, or rather by his grandfather, Lewis 0. Taylor, (which the bill admits) must ascend to the heirs of his grandfather, and not those of his grandmother, as the estate clearly came by the grandfather. 1 ■'
    And the bill having admitted this fact, the complainants are bound by it.
    Or, under the seme sections, whether the estate came to Eugene by devise or by descent, that it came to him “by the mother”• — his own mother, LLemry E. Williams — and should ascend to her heirs/ which heirs are both the complainants and the defendants; and the estate should be divided amongst them ctLl.

      But, if none of the above constructions be the true canons of descent, under our statue, it is insisted, on the part of Williams- and his co-defendants, that Eugene did not take, under his grandmother’s will, as devisee, but inherited the land as her sole heir-at law.

    For, where land is devised to the heir at law in the same estate; ■which he would take as'heir, the devise is inoperative, and the heir takes by descent as the better title. 2 Dev. {ET. 0. Lam Rep.)-323/ LLoyle et ad. vs. Stone. .

      And, if Eugene took by descent, his title came by his moth&r, through her blood — for, without her, he could not have inherited at all — -and his estate would ascend to the heirs of Ms mother.

    And, if the court should deem this a casus omissus in our statute, and unprovided for specifically, the 13th section provides that the estate “shall descend according to the course of the common law.”
    And according to the common law, the heirs at law of Lewis 0. Taylor, the first purchaser, mast inherit. See 2 Blade. Gom., gp. 220.
    In any event, Williams, as a trustee, in possession under the will, or acting as guardian by nature for his infant son, or honestly believing the land was liis own, is entitled clearly in this proceeding to be re-imbursed to 'the extent of his expenditures, for permtmant improvements, and for the lagacies which he paid with his own money. The complainants seeking equity, are bound to act equitably.
   Mr. Justice Scott

delivered the opinion of the Court.

West and others exhibited their bill in chancery, against Williams and others, for the recovery of a tract of land, and the rents, and profits of the same, from the death of Eugene L. TI. Williams.

The land in controversy, was originally owned by Lewis C. Taylor, who, by his last will and testament, devised it in fee to his wife, Mrs. Elizabeth M. 0. Taylor. During her widowhood, Mrs. Taylor, by will, devised as follows: To her brother, William Overton, one-third of her negroes and $1000 in money; to her sister, Mrs. West, one-third of her negroes for life, remainder to her children; to her daughter, Mrs. Henry E. Williams, all the residue of her estate, including a tract of land in Arkansas (which is the land in controversy) for life, remainder to her children, with a proviso, that if any such child come of age, or married in their mother’s (Mrs. Williams) life time, its share should be then delivered to it. In case of Mrs. Williams5 death, without issue, at h&r death, the property devised to ber to go over to Overton and Mrs. West. If any of Mrs. Williams’ children coming of age, or marrying, and receiving tbeir share, should die in their mother’s life time, its, or their share, “to fall bach into the mass,” and go to Overton and Mrs. West., The clause carrying the property over, on the death of Mrs. Williams, without issue, provides that the whole of her share shall go over, “saving such as may have been allotted off to such of the children ás before directed.”

Mrs. Williams died in the life-time of the testatrix, leaving but ■•one child, a son, Eugene L. II. Williams, who died in infancy, without issue, after the death of the testatrix.

Mrs. Taylor also devised to certain nieces and nephews, legacies to be paid in money to the amount of $1,300 in the aggregate. Then follows item 5th of the will-, in these words: “The foregoing cash legacies and bequests, shall be paid by my son-in-law, Joseph R. Williams, out of the estate hereinafter bequeathed and devised to my beloved daughter, Henry E. Williams, wife of said Joseph R. Williams, and her children, with the accompanying limitation over in certain contingencies, as such estate hereinafter bequeathed to my said daughter and children, is to, and is hereby declared, shall be, and remain in,- the care and under the management. of him, the said Joseph R. Williams, free of rent, interest, or hire, so long as, by limitation aforesaid, said estate shall •remain in the use and possession of my said daughter, Henry E. Williams.” And the 6th item of the will, which gave Mrs. Williams all the residue of the estate — that is, one-third of the ne-.groes, all the land, and all other property, real, personal, and mixed, except a carriage and horses, declares that she is “the same to have and to hold, subject to the legacies aforesaid, separately'to herself and her children,” &c.

Joseph R. Williams, and William Overton were named as executors; and, by a codicil, $1.000 were given to Sarah B. Wilkins, a sister of the testatrix, to “be paid,” in the language of the will, “by my son-in-law, Joseph R. Williams, out of the properly devised my daughter, bis wife.” A copy of the will is made a part of the bill.

The negroes were divided, the other legacies delivered, and the pecuniary legacies paid off as directed by the will; the latter by Joseph R. Williams, out of his own funds.

The will of Mrs. Taylor was executed the 10th of November, .1846, and was admitted to probate in Montgomery county, Tennessee, the 2d of April, 1849. She having died, a short time before, in that State, where Eugene L. H. Williams also died, a month or two after the testatrix. Ever since his death, Joseph R. Williams, his father, has been in possession of the land, and in receipt of the rents and profits. After the death of the testatrix, Joseph R. Williams married Jane T. Wilkins, daughter of Jane Wilkins, vice Taylor, who was a sister of Lewis C. Taylor, the deceased husband of the testatrix.

The complainants are the heirs at law of the testatrix, and the defendants are the heirs at law of Lewis C. Taylor, deceased husband of the testatrix.

Williams, in his answer, also claims the land as heir of his deceased son, Eugene L. IT. Williams, and that if not, that it went to the heirs of his deceased wife, (the mother of Eugene), who are both the plaintiffs and the defendants; that is to say, as well the heirs of the testatrix as of her deceased husband, Lewis C. Taylor. He also sets up that if the land should not be decreed to him, the legacies paid by him should be charged upon it, and the land sold:to re-imburse him, and that the rents and profits should not be charged against him further back than to the 1st January, 185.0; because, under the laws of Tennessee, he has already distributed sounuch of them as accrued for the unexpired portion of the year 1849, as part of the personal ''state of the testatrix. And that against the rents and profits, for which he might be held accountable, all valuable and lasting improvements made upon the land ought to be set off. He also submitted that the charge of the pecuniary lega cies, upon the property devised to his son, so changed its nature as to make- it a.new acquisition and not ancestral, within the meaning of the statute, and that thus bis son was constituted a new stock of descent. He does not, however, in any way, allege, or set up that the personalty, devised along with the land, was insufficient to pay off the legacies charged in gross upon the whole estate devised.

The court below decreed the land to the complainants, and that Williams should account to them for the rents and profits, from the 1st day of January, 1850; and directed the master to enquire into, and report the dates when the legacies were paid, the amount of rents and profits, that ought to have been received, the value of permanent and lasting improvements made on the land, with annual rests and interest on both sides. The value of such improvements, and the amount of the legacies paid to be set off against the rents and profits, and that the defendants pay all the costs.

From that decree, both parties appealed to this court.

It is shown, very clearly, by the reasoning, and the authorities cited by counsel on the one side, and is admitted by the counsel on- the other, that, under the facts of this case, the legacy of the residuum to Mrs. ITenry E. Williams for life, with the limitation, over, did not lapse, but immediately upon the death of the testatrix, vested in Eugene L. H. Williams, her grand son. The lands in controversy, then, belong either to all the heirs of the. latter, or else to such of them, onljq as under the provisions of our statute of descents and distributions are capable of inheriting them from him.

Coming to him by devise from his maternal grandmother, Mrs. Taylor, who had taken them by purchase from her deceased husband, and held them as an ancient fee, they were in his hands, an ancestral estate ex parte materna, within the meaning of the 10th section of our statute, explained and enlarged by the 22d section; and the question is, who of the parties in'this controversy, are entitled, under our laws, to inherit these lands from Eugene L. H. Williams, who died intestate, thus seized and possessed of them ?

According to the interpretation of the statute in the case of Kelly et al. vs. McGuire & wife et al., decided at the present term, where the whole subject was fully discussed and elaborately considered, it was held that ancestral estates embrace not only descended estates, but also all others, which may have come to the intestate by gift, or devise, from either parent, or from any relative of the blood of either parent, and that, as to all such, it is the manifest intention of the Legislature, upon the death of the intestate, without issue, to preserve them in the line of the blood from whence they come, to the same extent that descended estates-were so preserved at common law-

To carry out this intention, it is obvious, that the same means, must be resorted to, that were used- at common law, to make it effectual as to descended estates, and should these fall short in any case, when applied to estates given or devised, then that analogous means must be used.. Hence, the inevitable principle, substantially announced in the case cited, that to be of the blood of the last purchasing ancestor, in the line of the transmitting' relative, is as indispensable to enable a collateral to inherit, as heir of the intestate, an ancestral estate which was given or devised to the intestate, as to be of the blood of the last purchasing ancestor was, according to the principles of the common law, to enable him to inherit, as heir of the intestate, an ancestral estate which had come to- the intestate by descent. Consequently, whether an ancestral estate come to the intestate by gift, devise, or by descent, upon the failure of issue, it can be inherited by such of his heirs only as are of the blood of the last purchasing ancestor, in the line of the blood from whence it came, either maternal or paternal, as the case may be. 4 Kent 404. And this is in exact harmony with the provisions of the statute in excluding the half-blood and their descendants from inheritances only, when these are ancestral, and they, not of the blood of the-transmitting ancestor.

Upon this ground, not only is Joseph E. Williams, the father-of the intestate, excluded from this inheritance, but also all the next of kin of the intestate on the side of bis grandfather, Lewis. C. Taylor; none of them being of the blood of his grandmother,. Mrs. E. M. 0. Taylor, from whom the estate came to him, and who held it as purchaser. It is, therefore, only the complainants below, all of whom are of this blood, that are called to the inheritance in question.

In response to the position of the counsel of Joseph E. "Williams,, that inasmuch as the devise was to the same person, who would have taken the estate as heir at law, the devise shall be held inoperative, and the devisee as in by descent, it is to be remembered that, although it might be so held, the result would be pre_ cisely the same, because in that case none of his next of kin could have inherited, upon his death without issue, except such onhj as were of the blood of his grandmother, from whom, as representing his mother, he inherited the estate; his grandmother having held it as last purchaser. In that case, however, the result would have been very different, as to future descents from those who, in either ease, would inherit from Eugene and die without issue; because, only such of the heirs of such intestate-inheriting from Eugene and dying without issue, could be called to the inheritance, as were of the blood of Jhugene's grandmother, who would still remain the last purchaser in the line of descents; whereas, under the actual state of the case, Eugene, having taken an ancestral estate by devise from his grandmother, is m by purchase, and thereby becomes himself a stock of descent as to all those who might inherit from those who inherited from him, it being the rule of the American law, as to such future descents of ancestral estates, to stop at the last purchaser, and ascend no higher for blood. Gardner vs. Collins, 2 Peters Rep. 58; 2 Hilliard, chap. 17, sec. 64; 4 Kent 405.

And, in addition to the reasons already given, this rule would peremptorily exclude all the next of kin of the intestate, who-are of the blood of Lewis C. Taylor, even had he (Lewis) been some relative, either paternal or maternal, of Mrs. Taylor, instead of being her husband, and of no kin to her at all — so far as appears upon this record — because, although he had been such a relative, and had devised the land to Mrs. Taylor, as he did, in calling the next of kin of Eugene to the inheritance left by his failure of issue, the law would have gone no higher v/p the ancestral line for blood, than to the first purchaser of the estate, who, in that case, also, would have been Mrs. Taylor.

According to the actual state of case, however, as it appears upon this record, the estate, when in Mrs. Taylor’s hands, was not an ancestral estate at all, but a new acquisition, within the definition of such estates given in the case of Kelly et al. vs. McQuire & wife et al.; because, she held it by devise from her husband, Lewis 0. Taylor, who, so far as this record shows, was a stranger to her blood, both paternal and maternal; but, in the hands of Eugene, it was an ancestral estate, expa/rte materna; because it had come to him from his maternal grandmother. And this being so, in accordance with the ancient maxim of the common law, “that he who would have been heir to the father of the deceased, and of course to the mother, or any other real or supposed pwehasinq ancestor, shall also be heir to the son” — a maxim that twill hold universally, except in the case of a brother or a sister .of the half-blood. 1 Black. Com. 223; 1 Lomax on Heal Property, 589. None of the heirs of Eugene could inherit the lands from him, who would not also have been heirs of Mrs. Taylor, his grandmother, and these, in this case, are those who were the •complainants below, to whom the Circuit Court of Pulaski county correctly decreed them.

There being, in our opinion, nothing in the position taken in behalf of Joseph E. Williams, that the legacies, charged upon the whole, estate, devised, real and personal, so changed the nature of the real estate as to make it, in the hands of the intestate, a new acquisition, within the meaning of our statute : And there being no pretence that the personal estate was insufficient to pay the legacies charged in gross, upon the whole estate devised, it is perfectly clear, in the light of the immense array of authority, cited to the point, that so much of the decree as directed that the-pecuniary legacies paid by Joseph H. Williams should be set off against the rents and profits of the land since the first day of January, 1850, for which he was properly held accountable to the plaintiffs below, is erroneous, and must be reversed. The residue of the decree is equitable, and ought to be affirmed and executed. The cause will, therefore, be remanded to the Chancery Court for Pulaski county, with instructions to this effect.