author: Mr. Chief Justice English

text:
    Jackson vs. Bob.
    On the trial of a petition for freedom by a negro the presumption is against him, that he is a slave, that being the condition of the negro race generally in this State; and he must prove his right to freedom — either that he was born free, or had been emancipated according to law. .
    The declarations of the master, that the slave, upon arriving at a certain age, was to be appraised, and to be liberated after working out his appraised value, are not competent evidence, to establish the emancipation of the slave, in a suit for freedom either against the master or one holding under him.
    A contract to set a slave free at a future day, upon certain conditions, whether made with the vendor upon a sale and purchase of the slave, or with the slave himself, is an executory contract for emancipation; and a specific performance of it cannot be enforced by the slave, in a court of law or équity.

      Appeal from the Circuit Court of Sevier county.

    The Hon. Shelton Watson, Circuit Judge.
    Pike & Cummins, for the appellant.
    Wherever the law prescribes the form or mode of manumission — that form and mode must be followed, even where there are no negative words, forbidding a resort to other modes. McCutchen vs. Marshall et al. 8 Pet'. 238; Winney vs. Cortwright, 3 Marsh. 403; Bazzi vs. Rose and her child, 3 Mart. La. R. 149; 7 La. R. 135; 14 /. R. 53; Coche vs. Cocke, 3 Litt. 236; Beall vs. Joseph, Hardin's R. 51; 5 Martin's R. 494; 4 Mart. La. R. 212; Negro James vs. Gaither, 2 Llar. & John. 176; 6 Munf. 191; 1 Rand. 15; Bill's R. 57.
    As will be observed by the questions settled in the various cases cited, there must be a strict compliance with the law and form prescribed, before manumission can occur. This proves the right to manumit does not exist by law.
    Besides the general principle upon the subject, the constitution and statutes {Tit. Eman., sec. 1, p. 66; Rev. St. ch. 63, sec. 1, 2,) conclusively show that these rules must prevail, in cases arising under our law; Campbell etal. vs. Campbell et al., 13 Ark. R. 513.
    Emancipation can only exist in consequence and in virtue of a consummated — a perfect instrument, establishing freedom, and requiring no further act to be done. A contract to manumit at a future time — an agreement to manumit on certain conditions is a mere nullity.
    The reason on which this principle is founded is clear and fully shown by the authorities; Patton vs. Norris, 15 B. Monr. 575; Stevenson vs. Singleton, 1 Leigh 72; 13 B. Mon. 347-8, etc.
    Similar grounds are taken in Cuppy as. Castillon, 5 Mart. La. R. 494. The freedom must be created, per se, by the instrument. If not, the slave has no right to or interest in the contract. He is incompetent to do any act for himself — to furnish or pay any consideration.
    In Beall vs. Joseph, Hard. R. 51, it was held that a contract or promise to manumit, could be of no avail. In Will vs. Thompson, cited there, it was held that a written contract by a purchaser to manumit, at a particular time, did not authorize the negro to sue at law. So in Cooke vs. Cooke, 3 Litt. 236.
    Manumission is no contract, nor in the nature of contract. It is a mere benevolence. 14 J. R. 324; 19 J. R. 53.
    Every attempt to extend to a slave positive rights, is an attempt to reconcile inherent contradictions. 2 Strobh. 41; 13
      Ala. 192; 9 Gill. & John. 19; 1 Rich. 196; Dudley’s S. C.R. 220; ,2 Rich. 424; 6 Hum. 294. A slave cannot enforce a contract between free white persons, for his emancipation. 8 B. Monr. 629, 548; 1 Brev. 273.
    Only in the mode pointed out by law can a slave get his freedom, 5 Smed. & Marsh. 609.
    Our constitution and statutes tolerate no contracts for freedom. That is not one of the modes provided for emancipation. They are absolutely void. 11 Leigh 624; 13 Ark. 519; Smith on Con. 123.
    Where a negro is held as a slave, we submit that no oral declaration as. to freedom in future,' is admissible at all. No . such declarations can create freedom however often or solemnly made. The law does not tolerate such evidences of freedom. It declares what shall be evidence to prove manumission, and excludes all other.
    It is ridiculous to claim that such declarations by successive holders may be given in evidence to prove freedom — under our constitution and statute. They never ought to be admitted except as against the party making them; and then only to prove the existence of the very act of emancipation, not general declarations about freedom.
    Gallagher for the appellee.
    Our Circuit Courts, under the powers conferred upon them by statute, (Dig. ch. 74,) in relation to slavery and emancipation, exercise a jurisdiction co-ordinate with the subject-matter, subject to no rules and regulations except such as are laid down by the constitution or statutes, or common usage of this State, and have all the powers, both equitable and legal, necessary to carry into effect, and give efficacy to any order, judgment or decree that may be made, and to afford a full, adequate and complete remedy: and may therefore compel the execution of any deed or other evidence in writing that may be necessary in perfecting a decree for freedom.
    The covenant executed by Hamilton to Brown, was for Bob’s' ’ benefit, as sufficiently, appears by the contract and proof; and Hamilton was bound by that covenant to execute a deed of manumission in such form as the statute may require to make it a valid and perfect emancipation. See Baker vs. Tabor, 7 La. Ann. Rep. 556; Vail et al. vs. Bird, 6 La. Ann. Rep. 223; Fanny vs. Bryant, 4 J. J. Marsh. 368; Isaac vs. Wirt, 6 Rand. 652; Stiles vs. Richardson, 4 Yeates 652; Greer vs. Huntington, 2 Root 264; State vs. Redil, Cox 4; Case of Tom, 5 J. R. 365; Cato vs. Howard, 2 Har. & John. 325; State vs. McDonald, Cox 332; Henriette vs. Arroys, Sup. Ct. La. Dec. T. 1854.
    The Court correctly allowed the admissions of Brown and Hamilton, whilst they had Bob in their possession, touching his freedom. Declarations of a master at the time he owned the slave, are admissible in evidence. Garret vs. Sam, 5 Munf. 572.
   Mr. Chief Justice English

delivered the opinion of the Court.

On the 21st of August, 1851, Bob, a negro, commenced an action of trespass, under the statute, for his freedom, against Isaac N. Jackson, in the Sevier Circuit Court. The cause was submitted to a jury, at the August term of 1853, verdict in favor of the plaintiff, and judgment of the Court that he be liberated, etc. Pending the trial, the defendant, Jackson, took several bills of exception to decisions of the Court, and appealed.

The evidence introduced by Bob upon the trial to establish his freedom, was, in substance, as follows:

George A. Brown, whose deposition was taken, deposed that he was the grandson of Elliott Brown, who died in Mason county, Virginia, about the year 1825; and who, at the time of his death, was the owner of Bob, whose age at that time was about ten or twelve years. On the division of Elliott Brown’s estate, Bob fell to witness. In the spring of 1834, witness took him to Arkansas, and disposed of his claim to his services to Robert Hamilton, of Sevier county, for $600 in goods, at a very dear rate, after informing Hamilton how he came by him, and what was the term of his service. Witness conveyed his claim in the negro to Hamilton, by an instrument of writing, providing in substance, as near as he could recollect, that Bob, after arriving at the age of twenty-five years, and then working out his appraisement, was to be free. Hamilton also gave witness an instrument, by which he promised and bound himself to have Bob appraised by disinterested persons, when he arrived at twenty-five years of age, and after he worked out his valuation, to liberate him. It was handed to the county clerk to be recorded, etc. Witness did not intend any one to infer from any words, acts or deeds of his, that Bob was a slave for life.

A copy of the instrument last referred to by the witness, was produced at the trial, by the defendant, and read in evidence by the plaintiff: and is as follows:

“ Know all men by these presents, that I, Robert Hamilton, do bind myself, my heirs, executors or administrators, to have a certain negro boy named Bob, purchased of Geo. A. Brown, the 15th of February, 1835, appraised six years after date by disinterested persons, and when said negro shall have worked out the sum he may be appraised to, to set him free, and in case of non-compliance with these conditions, I bind myself, my heirs, executors or administrators in the §um of six hundred dollars — this 15th February; 1835.

R. HAMILTON, [seal.]”

The Court permitted this instrument, as well as the deposition of Brown, to be read to the jury against the objection of defendant. ■

Layne testified that he had known Bob since the year 1834 or 1835. Geo. A. Brown then had him in possession, and brought him to the house of witness in Sevier county. 'Bob then appeared to be between fifteen and eighteen years of age.

Plaintiff then proposed to prove by witness the declarations of Brown whilst he had him in possession, in regard to his age condition as to freedom or slavery, the title of Brown to him, and whether he held him as a slave for life, or only for a term of years, or conditionally to be free on the happening of certain events, etc. The defendant objected to the competency of all such declarations of Brown, but the Court overruled the obtion.

Witness then stated, that, after Brown brought Bob to Arkansas, he had heard him say that Bob was a slave until he arrived at twenty-one years of age, and after that he was to work out or be hired out, until he paid for himself, which Brown estimated would require him to serve until he was twenty-six years of age. Brown lived with witness about six months in the year 1834, or 1835, and, during this time, frequently made the above statement to witness and others. Witness had heard Hamilton say, shortly after he purchased Bob of Brown, that he had not bought him as a slave for life, but had bought him to work as a slave until he was twenty-one years of age, after which he was to work out his value and then be free. Bob was afterwards in posession of Hamilton until his death. Bob’s hire would have been worth $150 per annum.

The declarations of Hamilton were admitted against the objection of defendant.

On cross-examination, the witness further stated, that Brown said, in the conversations above referred to, that Bob was left to him by his grand-father’s will, and by it was to be free on the terms above stated. Witness never heard Brown say there was any other right or reason for Bob’s not being a slave for life, or for his being entitled to his freedom on the terms stated, than by virtue of the provisions of said will.

Whereupon the defendant moved the Court to exclude all the declarations of Brown, and to require the will to be produced, but the Court overruled the motion, etc.

Foran testified that Hamilton was in possession of Bob from the time he purchased him of Brown until the year 1845 or 1846, when Hamilton died. Soon after his death, witness saw Bob in possession of defendant, and he held him thereafter as a 'slave until this suit was commenced. Whilst witness was clerk of Sevier county, he was handed the original of the instrument executed by Hamilton to Brown, above copied, to be recorded, and was told that Hamilton would pay for recording it; but on the next day Hamilton told him not to record it, that he would not pay for it. Witness kept the instrument until defendant got Bob, after which, defendant asked him for it; witness gave it to him, and he never returned it. When witness first saw Bob in 1837 or 1838, he appeared to be 18 or 19 years old. His hire from the year, 1840 would average $150 per annum. Hamilton several times stated to witness the terms on which he had purchased Bob. The terms were as recited in the instrument.

The first time witness saw Bob after the death of Hamilton, he was in possession of defendant; who said he had got him of Brittin for fees due him as sheriff. Bob was worth in 1836-7-8 $600 or $700. Negroes were then low. After Hamilton’s death, his negroes were brought to the court-house of Sevier county, and sold finder .execution. Witness thought Bob had run off to Texas, and was not present at the time. Hamilton’s estate was insolvent.

Hamilton’s statements to this witness were admitted against the objections of defendant, etc.

Turrcntine testified that he knew Bob in the possession of Hamilton from the year 1840, to the last of January or first of February, 1846, when Hamilton died. Witness married his daughter, in 1844. She wanted her father to give her Bob, but he said “ he will do you no good, as by right he ought to be free.” Bob ran away in 1845, and when brought back Hamilton whipped him for it, and, while whipping him, said to him, that though “ Brown said you were entitled to your freedom, I will not set you free, and will show those legs that they shall not run away from me.” After Hamilton’s death, defendant had Bob in possession before witness knew any one else to have him. Saw him first in his possession in 1846 or 1847. He held and treated him as a slave from that time until this suit was brought. Witness heard Hamilton say, while he was in possession of Bob, that he bad bought him of Brown, and was to keep him until he was twenty-one years old, after which Bob was to work out his valuation and be free. Bob had run away three times; once from Hamilton, once from his widow, and once from defendant. Vfas gone but a short while each time.

It was further proven that Bob was sold under execution, as the property of Hamilton, at the October term of the Sevie Circuit Court 1845, and bought by Brittin and Roystoni

After the testimony was closed by the plaintiff, the defendant moved to exclude the whole of it, and every part thereof, from the jury, as being incompetent to establish Bob’s right to freedom; but the Court overruled the motion.

At the instance of plaintiff, the Court instructed the jury as follows, against the objection of defendant:

“ 1st. If the jury believed said negro was transferred from Geo. A. Brown to Hamilton, and Jackson obtained his title from Hamilton, or from one who purchased him when sold under execution as Hamilton’s property — then, any statements of Brown made in regard to his title, whilst he held the negro, or by Hamilton, while he held him, are competent evidence in this case.

2. That the only questions in this case, for the determination of the jury, are: 1st, whether said negro Bob is a slave or a freeman, and 2d, whether (if a freeman) he was held in slavery by Jackson at the institution of this suit, and the jury will determine these questions, by weighing and considering the testimony given in this case.”

The defendant moved the following instructions:

“ 1st. Where a negro sues for freedom, the presumption of law is against him, and the jury must find him to be a slave, unless he prove to the satisfaction of the jury, he was legally entitled to his freedom at the date of the institution of the suit.

2d. That the writing given in evidence dated 15th February, 1835, executed by Robert Hamilton, as an instrument of emancipation is void, and confers no right on the negro Bob to his freedom in law.

3d. That, in this State, a negro can only be emancipated by last will and testament, or some other instrument in writing, under the hand and seal of the party, attested by two witnesses, and proved in the Circuit Court of the county where he resides, or acknowledged by the party in the same Court.

4th. That even though Hamilton had manumitted Bob by a formal and legal instrument, yet, if his estate were insolvent, said negro could have been sold to pay his debts, existing prior to emancipation, and treated as a slave for life, unless the negro was entitled by law to his freedom, independently of Hamilton’s act of emancipation.

5. That said instrument of date 15th of February, 1835, if in any event it confers an equitable right in Bob to his freedom, could only be enforced and made available to that end, in a Court of chancery, wherein alone could the execution of the necessary instrument of emancipation, stipulated for frq said instrument of 15th February, 1835, be compelled from the party to execute it.

6. That said instrument of 15th February, 1835, could have no legal binding force upon any one purchasing said negro from Hamilton.

7. No mere contract to emancipate can at law be recognized as an emancipation of a slave.

8. If the instrument of 15th February, 1835, is considered as the foundation of Bob’s right to freedom, it does not confer any legal right to freedom on Bob, and his right to freedom cannot be consummated, so as to be recognized at law, under said instrument, until and by virtue of a subsequent and direct instrument of emancipation executed according to law.

9. That said writing of Hamilton, dated 15th February, 1835, can be used by the jury, and is the higher and better evidence of the terms and conditions on which said negro Bob was transferred from said Brown to Hamilton.

10. The jury must exclude from consideration entirely, all evidence of any witnesses, which refer to, or attempt to detail the contents of, or any right of plaintiff to freedom as derived from, any will of any one giving the negro to Geo. A. Brown, or derived from any instrument executed by Brown — the said instruments being provable by their own production, in the absence, as there is a total absence here, of any sufficient evidence to warrant proof of their contents; — and in like manner, all the statements of any such witness, which the jury may believe to be founded on, or derived from said instruments, or either of them, or the opinion of any such person whose statement is detailed, which opinion the jury shall believe to be founded on their construction of such .instrument. And all such statements as to Bob’s freedom, which the jury may believe to be founded on, or derived from, the supposed effect of any such instrument, must also be excluded.

11. That no statement of Brown or Hamilton detailed before the jury, is evidence at all in the case, and must be excluded by the jury, unless it is proven to their satisfaction that defendant claims the negro under them and the same title they respectively had, and under no other or different title derived from another source.

12. No act, statement or writing of Brown or Hamilton given in evidence before the jury, or all of them together, can operate in law to free Bob.

13. An insolvent man cannot free his slave, so as to prevent his creditors from selling the slave absolutely and holding him in slavery for life.

14. Oral or verbal statements cannot be given in evidence, or treated by the jury as sufficient, to vary, alter or change a written contract, instrument or deed; and if a deed, writing or true copy is in evidence, the jury are bound to take instrument or copy, and disregard the verbal statements.

15. That the evidence in this cause is not sufficient to warrant the jury in finding for the plaintiff, and the, jury ought to find as in the case of non-suit, that is, should find for defendant.

16. A negro can acquire no right to freedom, on mere grounds of equity, but only on the grounds of a strict compliance with the law authorizing manumission.”

The Court gave the 1st, 4th, 11th and 14th of these instructions. and refused to give the others.

The bills of exception taken by the defendant cover the objections made by him to the decisions of the Court above indicated, with others which are deemed of no consequence.

Bob being a negro, he commenced the trial with the presumption against him that he was a slave, that being the condition of the negro race generally in this State; and he was required to prove his right to freedom. Digest, ch. 74, sec. 12.

There was no evidence tending to prove that he was born free. If free at all, it was by some act or instrument of emancipation. If he had been emancipated, it was incumbent on him to produce upon the trial the instrument of liberation; or to prove that it had once existed, and was lost, destroyed or not within his control, and then to introduce secondary evidence of its character and contents. 22 Ala. R. 601.

There was no competent proof that he was emancipated by the will of Brown’s grandfather. The will was not produced, and no foundation laid for the admission of secondary evidencé of its provisions. His counsel here, however, do not insist that the supposed will cuts any figure in the case.

No instrument of emancipation being proven or produced, were the loose statements of Brown, that Bob was to be a slave until he arrived at a certain age, when he was to be appraised, and to be liberated after he worked out his appraised value, competent' evidence that he had been so conditionally emancipated?

To test the legal effect of such declarations or statements in the strongest light, let it be supposed that Brown had not sold Bob to Hamilton or any one else, but had kept him in servitude until the time this suit was commenced, and that Bob had brought suit against him for his freedom, instead of Jackson; would it be competent for Bob to establish his right to freedom by proving such declarations, etc., of Brown?

If there were no persons interested in the controversy but the parties to the suit, perhaps such declarations would be coni-petent evidence against Brown. But slavery is a status or condition of the negro race in this State; the community at large are interested in it, and the mode of emancipation, for considerations of public policy, is regulated by law. If the slave could establish his right to freedom by such declarations of his master, or one holding under him, the emancipation laws might be avoided. The declarations of the owner might, in effect, liberate the slave, and turn him loose upon the community without his actually having been emancipated in the mode prescribed by law.

This subject may be illustrated by reference to rules applicable to the marriage, relation, which is likewise a status; and the mode of dissolving the marriage contract, and the causes for which it may be dissolved, are also prescribed by law, because the public, as well as the parties, are interested in it.

In an ordinary chancery suit by one person against another, if the defendant fails to answer the bill, a decree pro confesso may be taken against him upon his default, which, at a subsequent term, may be made final without proof — his failure to answer is taken as a confession of the grounds of complaint.

But in a bill for divorce, notwithstanding the defendant may fail to answer, the Chancellor will not render a final decree divorcing the. parties, without proof by the complainant of the truth of the allegations of the bill. Viser vs. Bertrand, 14 Ark. 267. Welch vs. Welch, 16 Ib. 525.

So in an ordinary suit, the complainant may obtain a decree upon proof of the declarations or admissions of the defendant. But the Chancellor would not grant a divorce upon such evidence, for, if he would, the parties might obtain a dissolution of the marriage by collusion.

It is because of the interest which the public have in the marriage relation, that suits for divorce, in the respects above stated, are not governed by the rules of evidence applicable to ordinary suits.

For similar reasons, we think the slave cannot establish his emancipation by the mere declarations oí the master, either in a suit against the master, or one holding under him.

It may be next, enquired whether Bob was emancipated by virtue of the contract made between Brown and Hamilton, proven and produced, in evidence.

This contract bears date 15th Feb., 1835, which was before the formation of the State government, and whilst the Territorial Organization was in force. The counsel on both sides, supposing there was no statute then in existence regulating the emancipation of slaves, have, discussed the right of the master to emancipate his slave in a community where slavery exists, in the absence of any statute authorizing it. It is unnecessary, however, for us to speculate on this interesting subject, because there was a statute in force in the Territory at the time the contract in question was made. See Steel & McCampbell's Digest p. 526. This statute made it lawful for the master to emancipate his slave, by will or deed, proved in the Circuit Court by two attesting witnesses, or acknowledged by the owner in the Court, etc.

If the instrument in question could be construed to have been intended to emancipate Bob presently, it would be invalid as an instrument of emancipation, because it was not proved or acknowledged in the mode prescribed by the statute then in force. See the authorities cited below.

There can be no pretence, however, that the elfect of the contract between Brown and Hamilton was to emancipate Bob presently. Hamilton merely agreed to liberate him in future upon certain terms stated in the contract.

After this contract was made, and before the time arrived for Hamilton to have Bob appraised under the terms of the contract, the constitution was adopted containing the clause declaring that the General Assembly “ shall have power to pass laws-to permit owners of slaves to emancipate them, saving the right of creditors, and preventing them from becoming a public charge.” Art. 7, sec. 1. And the Legislature, in pursuance thereof, had passed an act authorizing the emancipation of slaves, and prescribing the mode in which it might be done. Dig. ch. 63. If Hamilton, therefore, had desired to liberate Bob in compliance with the terms of his contract, he would have been required to do it, to make the emancipation effectual, in one of the modes prescribed by the statute: — that is, by will, or some other instrument in writing; under his hand and seal, attested by two witnesses, and proved in the Circuit Court of the county where he resided, or acknowledged by him in such Court. Digest ch. 63, sec. 1.'

In Campbell et al. vs. Campbell, 13 Ark. 519, this Court, by the Chief Justice, said: “We may agree with the counsel for appellants in the conclusion to which his argument tends, that under the constitution and laws of ths State, the power to emancipate slaves is derived from tbe statute, and can only be exercised in the mode directed by the statute. That the act of emancipation cannot be treated as a contract between the master and the slave, or with any person for his benefit; but as an act of renunciation on the part of the master, and until it is consummated, either by deed or will, in the public and solemn manner required by law, the right of the master, or his legal representatives, to absolute dominion and property in the slave remains unimpaired.” See, also, McCutchen et al. vs. Marshall et al.. 8 Peter's 238. Winney vs. Cartwright, 2 A. K. Marsh. R. 493. Lewis vs. Fullerton, 1 Rand. 15. Atwood's heirs vs. Beck ad., 21 Ala. 590.

There was no proof produced upon the trial that Hamilton ever, by will or deed, emancipated, or attempted to emancipate, Bob, in pursuance of his contract with Brown. Either before, or shortly after his death, Bob was sold under execution as his property, purchased by Brittin & Royston, and afterwards, it seems, sold by Brittin to Jackson.

. But it is insisted by the counsel for Bob, that if the proof showed he was entitled to his freedom, and the jury so found, the Court, though a law Court, had the power to order the execution of any instrument necessary for his emancipation. That the statute gives the right of action to the negro for his freedom in the law Court only, and the Court could necessarily exercise all the incidental powers required to make the remedy complete.

If that were true, the proceedings in this case were, nevertheless, erroneous. Bob alleged in his declaration that he was free, the jury so found, and the Court rendered the ordinary statutory judgment that he be liberated. No order was made requiring any instrument of emancipation to be executed by any one. If the Court had attempted to make such order, upon whom would it have imposed the duty of executing the instrument? Not upon the defendant Jackson, because he was under no contract or legal obligation to emancipate the negro. Not upon Hamilton, because he was dead. Not upon his executor or administrator, for he was not a party to the suit.

Hamilton agreed with Brown to bave Bob appraised at the expiration qf five years from the date of his contract, and to liberate him after he'worked out his appraised value. He obligated himself to do this under a penalty of six hundred dollars. If Hamilton had so obligated himself directly to Bob, instead of Brown, Bob could not have compelled him to a specific performance of the contract, in a Court of law or equity, or have recovered the penalty for his failure to do so — because it was an executory contract for emancipation! Emancipation is an act of grace or benevolence on the part of the master to the slave. The slave can furnish no legal consideration for it. If the master contract with the slave, or any one for him, that the slave shall be emancipated upon his paying to his master a sum of money, or rendering him some stipulated amount of labor, although the slave may pay the money, or tender it, or perform the labor, yet he cannot compel his master to execute the contract, because both the money and the labor of the slave belong to the master and could constitute no legal consideration for the contract. See Norris vs. Patton’s ad. 15 B. Mon. 575. Willis vs. Bruce et al., 8 Ib. 548. Cook vs. Cook, 3 Littell 239. Dunlap vs. Archer, 7 Dana 31. Hawkins vs. Hawkins, 13 B. Mon. 245.

As to whether Brown has any remedy upon the contract against the representatives of Hamilton, and if any, what, we deem it unnecessary to enquire in this case.

From the principles above settled, it is manifest that the Court below erred in admitting incompetent testimony, and in giving the first instruction moved' by plaintiff, and in refusing to give several of the instructions moved by the defendant.

The judgment is reversed, and the cause remanded, etc.


source: Caselaw Access Project

license: Public Domain

text:
    Davis vs. Oswalt, ex.
    By the common law, a fieri facias had relation to its teste, though in fact issued subsequently; and bound the goods of the defendant from that date: consequently, if tested before the death of the defendant, it could be taken out afterwards, and executed against his goods and chattels regardless of his death.
    By our statute {Dig- ck. 67, sec. 27,) the lien of an execution, upon goods, etc., commences at the time the writ comes to the hands of the officer to be executed, where the judgment or decree does not constitute a lien upon the property.
    But such is the effect of our probate statutes, that although a fi. fa. comes to the hands of the sheriff, before the death of the defendant, and thereby becomes a general lien upon all his personal property, yet the death of the defendant, before the officer makes a levy and seizes the property into his custody, suspends the execution of the process. (State Bank vs. Etter, 15 Ark. 272.)
    But if the execution be levied upon the goods of the defendant therein before his death, the officer may sell them after his death to satisfy the-execution. (14 Ark. R. 57.)
    And so, where by decree of a Court of equity, certain property is condemned to be sold in satisfaction of a debt due from the defendant, and an execution or order of sale, commanding the officer to sell that particular property, come to his hands before the death of the defendant, the subsequent death will not prevent the seizure and sale of the property.

      Appeal from the Circuit Court of Phillips county in Chancery.

    The Hon. Geouge W. Beazley, Circuit Judge.
    Watkins & Gallagheu, and Palmee for the appellant.
    By the common law, and in those States where the common law is in force and not changed by statute, “ The lien of an execution bears date from the teste of the writ, and although an execution is not, in reality, issued until after the death of the defendant, yet if it is issued and properly tested, as of a day previous to the death of the defendant, it is presumed to have been issued on the day of its teste, and by relation dates from that day, and by relation it can be executed by levy upon the personal property of the defendant, and the same sold to satisfy the execution without reviving against the personal representatives:
    In those States where, by statute, the lien of the execution dates from the time the execution is put in the hands of the sheriff, if the execution comes to the hands of the sheriff or other officer, prior to the death of the defendant, the lien commences from that time, and the subsequent death of the party cannot affect that lien, but the execution can be executed by levy upon the personal property of the deceased, and the same sold to satisfy the execution without reviving the judgment against the personal representative. Fleetwood’s Case 8 Co. 171; Audley vs. Halsey Cro. 148; Erwin’s Lessee vs. Hundas et al. 4 How. S. C. R. 75; Fox vs. Lamar, 2 Ere. 417; Fryer vs. Denio, 3 Ala. 254; Coperton vs. Martin 5 Ala. 217; Boyd vs. Denio, 6 Ala. 55; Colingsworth vs. How, 4 Stew. & Port. 237; Hielman vs. Halst, ib. 280; Harrison vs. Banier, 2 Gill & John. 359; Newellen vs. Biles, 1 Dana 419.
    Under the statute (Dig. sec. 27, p. 498,) an execution becomes a lien upon the personal property of defendant and the real estate to which the judgment lien does not extend, from the time the writ is delivered to the officer in the proper county to be executed. The statutes relating to administration of estates do not interfere, in any manner, with the common law rules on this subject; and whenever the execution is placed in the officer’s hands the lien commences, by presumption of law the execution thereof is commenced, and it being an entirety must be consummated.
    The case at bar presents a much stronger case. Here the decree rendered, created a specific charge upon the identical property levied on, and the writ was ordered to issue against that particular property — being in the nature of a sequestration, and thereby specifically appropriating that to the payment of the particular debt, and in no event could it go to the executor as part of the general assets of the estate.
   Mr. Chief Justice English

delivered the opinion of the Court.

This was a petition to quash an execution, etc., determined on the chancery side of the Circuit Court of Phillips county, at the November term, 1855. The petition was filed by Wm. T. Oswalt as executor of Levisa Dobbins, deceased, stating, substantially, the following facts:

On the 8th of September, 1855, George Davis recovered, in said Court, a decree against "Levisa Dobbins and her husband, Wilson D. Dobbins, for $1,242, with interest from 24th Nov’r, 1853, and costs. By the terms of the decree it was ordered, adjudged and decreed by the Court, that the amount thereof should be made out of, and from the sale of certain slaves, whose names, ages, etc., are stated. On the 23d of Sept., 1855, by direction of Davis, the clerk issued an order of sale, or execution on the decree, to the sheriff of said county, commanding him, that of the slaves aforesaid he cause to be made the debt, interest and costs, etc., returnable to the November term following: which came to the hands of the sheriff on the 26th of Sept., 1855. On the 29th of October, following, the sheriff levied the process upon all the slaves named therein, and advertized them for sale, etc.

On the 18th of October, 1855, after the order of sale came into the hands of the sheriff, and before he levied on the slaves, Levisa Dobbins departed this life, having made a will devising all her property to persons therein named, and appointing petitioner her executor. On the 23d of the same month, the will was duly probated, and letters granted to petitioner by the Probate Court of Phillips county.

The slaves aforesaid were the separate property of Mrs. Dobbins, secured to her by a marriage contract entered into between, her and Wilson D. Dobbins prior to their marriage. He, though a party to the decree, had no interest in the slaves, except the use of them during the lifetime of his wife, Mrs. Dobbins; and by her death his interest terminated. By the laws of the State, she, being the sole owner of the slaves, had, under said marriage contract, full power to make a will, and devise them; and by the provisions of the will the property therein vested in the petitioner as executor, etc.

Petitioner submits tha!t inasmuch as the order of sale, or execution, was not executed before the death of Mrs. Dobbins, the levy made by the sheriff upon the slaves after her death, was void, and that he could not sell them under the process. That the decree, to be effectual as against Mrs. Dobbins, should be revived against petitioner as her executor, or certified to the Probate Court, and allowed and classed there as other claims against her estate. But the sheriff, under the direction of Davis, would proceed to sell the slaves under the order of. sale, etc., unless restrained, etc. Prayer that the process, or the levy thereof upon the slaves, be quashed, etc.

The order of sale, will of Mrs. Dobbins, etc., marriage contract, etc., are exhibited.

The Court, upon the final hearing of the petition, quashed the levy endorsed by the sheriff on the order of sale or execution, and ordered the slaves to be restored to the possession of Os-walt, as executor of Mrs. Dobbins, etc.

Davis appealed to this Court.

By the common law, a fieri facias had relation to its teste, though in fact issued subsequently, and bound the goods of the defendant from that date. Consequently, if tested before the death of the defendant, it could be taken out afterwards, and executed against his goods and chattels regardless of his death.

The theory or fiction, upon which this resnlt was arrived .at, was, that the execution was taken, in judgment of law, to have been issued at the time it bears date, however the fact may have been, and that being prior to the death of the defendant, and the goods being bound from the teste, or presumed issuing, execution upon them was deemed to have commenced in the lifetime of the party, and being an entire thing, might be completed notwithstanding his death. Erwin's Lessee vs. Dundas et al., 4 How. U. S. R. 75. Speer vs. Sample, 4 Watts 369. Fleetwood's Case, 8 Coke 171.

By our statute: “ No execution shall be a lien on the property in any slaves, goods or chattels, or rights or shares in any stock, or any real estate, to which the lien of the judgment, order or decree does not extend, or has been determined, but from the time such writ shall be delivered to the officer in the proper county to be executed.” Dig. ch. 67, sec. 27.

The effect of this statute was to repeal so much of the common law rule as made the lien of an execution upon goods, etc., extend back by relation to its teste, when issued subsequently: and to fix the commencement of the lien at the time the writ comes to the hands of the officer to be executed, where the judgment or decree does not constitute a lien upon the property. So far as this statute is concerned, there is no good reason why an execution coming to the hands of the sheriff in the lifetime of the defendant, might not be levied and enforced against his personal property after his death, without a revival of the judgment against his executor or administrator. This would be consistent with so much of the common law rule as stands unchanged by this statute. See Collingsworth vs. Horn, 4 Stewart & Porter 237. Fryer ad. vs. Dennis, 3 Ala. R. 254. Caperton vs. Martin, 5 Ala. 217. Boyd ad. vs. Dennis, 6 Ib. 55. Abercrombie vs. Hall, Ib. 657. Hanson vs. Barne's Lessee, 3 Gill & John. 359. Center vs. Billingsgate, 1 Cowen 34. Styments vs. Brooks, 10 Wend. 206.

But we think that such is the effect of our probate statutes upon the common law rule, that although a fi.fa. comes to the hands of the sheriff before the death of the defendant, and thereby becomes a general lien upon all his personal property, yet, inasmuch as it does not become a specific lien upon any particular property, until the officer makes a levy and seizes the property into his custody, the death of the defendant suspends the execution of the process, and it is not regular for the officer to make a levy and sell the property after his death. The State Bank vs. Etter, 15 Ark. R. 272. Lessee of Massie’s Heirs vs. Long et al., 2 Ohio 290. Sweringen vs. Adr. of Eberius, 7 Mo. 421. Conkrite vs. Hart, 10 Texas 140.

If, therefore, the execution in the case before us had been a Ji. fa. against the goods and chattels, etc., generally of Mrs. Dobbins, we should not hesitate to hold that the Court below committed no error in quashing the levy made by the sheriff upon her slaves after her death, and directing the property to be restored to her executor tobe administered according to law, for the benefit of all her creditors, etc.

But in this case the decree, it seems, was a specific lien upon particular slaves named therein, which were condemned, by the terms of the decree, to be sold, as the separate property of Mrs. Dobbins, for the satisfaction of the debt adjudged against her and her husband by the decree. As to the slaves, it was a decree in rem, they being, as we must suppose, within the jurisdiction, and under the control of the Court when the decree was made. The execution was -a special one, directing the sheriff to sell the particular slaves condemned to be sold by the decree. The decree was made, and the execution issued and placed in the hands of the sheriff before the death of Mrs. Dobbins. The lien thereby created would not have been made more specific than it was, if the execution had been levied upon the slaves before her death.

After the assignment of the widow’s dower, the estate of a deceased person is subject to the payment of his debts in the order prescribed by the statute. Dig. ch 4, sec. 85. It may be seen that this statute gives no preference to a debt which constitutes a specific lien upon the personal property of the deceased. Yet it is well settled that if an execution be levied upon the goods of the defendant therein before his death, the officer may sell them after his death to .satisfy the execution. The reason of this is, that by the levy and seizure, the officer acquires a special property in the goods, which are thereby detached from the general estate of the debtor, and do not constitute a part thereof for the purposes of administration in the event of his death after the levy, unless the debt is paid, and the property released by his representatives. Arnett vs. Arnett et al., 14 Ark. R. 57. Lessee of Massie's heirs vs. Long, 2 Ohio R. 290. Mundy's adr. vs. Bryan, 18 Mo. (3 Bennett) 29. Grosvenor vs. Gold 9 Mass. 209. 10 Yerg. 328.

In the State Bank vs. Etter, ubi sup., this Court intimated the opinion that even real estate might be sold after the death of the defendant, if the execution was levied before his death, without reviving the judgment against his heirs, administrators, etc., and without probating it, if the sale was made under the execution in the hands of the sheriff at.-the time of the levy, etc.

As above remarked, the lien of the decree and order of sale in the hands of the sheriff, upon the slaves in this case, was as specific as if a levy had been made before the death of Mrs. Dobbins. The creditor had acquired, during her life, a vested right to have his decree satisfied out of the particular property named therein, in preference to her creditors generally, and her-death did not divest this right. Her executor could have no . claim upon these slaves for the payment of other debts, or legacies, until this decree was satisfied. And the process of execution having commenced in her life, and being, according to the common law theory, an entire thing, there can be no good reason why it may not have been completed after her death.

The judgment of the Court below is reversed, etc.

Mr. Justice Hanly, not sitting in this case.


text:
    James vs. Marcus et al.
    Where a fi. fa. comes to the hands of the sheriff before the death of the defendant, it is not regular to make a levy upon and sale of his goods after his death, under our probate and administration'law, except where the judgment or decree is in ran. and the execution a special one. (Davis vs. Oswalt, ante.)

    The placing of an execution in the hands of the sheriff in the lifetime of a husband, does not cut off the widow’s right of dower in his goods; unless the officer proceed to make a levy before his death, as held in Arnett vs. Arnett, (14 Ark. 57.)

      Appeal from the Chancery Court of Pulaski county.

    The Hon. H. F. Fairchild, Chancellor.
    WatkiRS & Gallagher, for the appellant.
    Fowler. & Stillwell, for the appellees.
   Mr. Chief Justice English

delivered the opinion of the Court.

This was a bill for injunction and dower, filed by Pauline Marcus in the Chancery Court of Pulaski county, against Joshua F. James, Henry E. Hezekiah and Michael Gainon, administrator of Edward Marcus, deceased.

The facts of the case, so far as they are material to the question to be determined by us, are as follows:

A fi. fa. was issued to the sheriff of Pulaski county, upon a judgment of the Pulaski Circuit Court, in favor of Allen Gray, against Edward Marcus, which was placed in the hands of Joshua F. James, a deputy of the sheriff, to be executed. After the fi. fa. came to the hands of James, but before he made any levy, Marcus, the defendant therein, departed this life. After his death, and before the return day of the writ, James was proceeding to levy upon and sell the interest of Marcus in a stock of merchandise, etc. Hezekiah claimed to be a partner of Marcus in the goods, etc. Mrs. Marcus, the widow of Marcus, filed a bill for dower, and to enjoin James and Hezekiah from meddling with the goods, etc.

On the final hearing, the Chancellor decreed that Hezekiah was entitled to one-half of the goods, etc., as partner of Marcus; that complainant was entitled to dower in the other half, and after the assignment of her dower, the remainder of that half belonged to Gainon, as administrator of Marcus, to be administered according to law; and perpetually enjoined James from executing the ji. fa. upon the goods. From this decree James appealed to this Court.

It is insisted by the appellant, that, inasmuch as the ji. fa. came to his hands as deputy sheriff, before the death of Marcus, and thereby became a lien upon the goods, he had the right to levy upon and sell the interest of Marcus therein after his death: That the lien acquired by the execution coming to his hands prior to the death of Marcus, was superior to, and cut off the widow’s right to dower in the goods, as well as the claim of the administrator thereto, etc.

We have held, in the case of Davis vs. Oswalt ex’r, that our probate or administration statutes have so changed the rule of the common law, that although a ji. fa. comes to the hands of the sheriff before the death of the defendant, and thereby becomes a general lien upon all the goods which he has in the county, his death suspends the execution, and it is not regular to make a levy upon and sale of the goods after his death, except where the judgment or decree is in rem, and the execution a special one for the sale of the particular goods, etc.

The widow is entitled to dower in all the personal property (except choses in action) of which the husband dies seized and possessed, regardless of the solvency of the estate or the demands of creditors. Dig. ch. 59, secs. 20-1. Hill’s ad. vs. Mitchell, 5 Ark. R. 608.

But if an execution is placed in the hands of the sheriff and levied upon the personalty of the debtor before his death, the officer may proceed to sell the property after his death, and thereby defeat the widow’s dower therein; because, by the levy, the officer acquires a special property in the goods, etc., as held in Arnett vs. Arnett, 14 Ark. R. 57; and the husband does not die seized or possessed of the property within the meaning of the dower statute.

But we do not think that the general lien upon the goods of the husband acquired by placing the execution in the hands of the officer before his death, is paramount to, and cuts oif the wife’s right of dower.

The decree of the Court below is affirmed.


text:
    Biscoe et al. vs. Coulter et al.
    The Auditor’s deed for land, forfeited for non-payment of taxes and sold under the statute, (Dig. eh. 139, sec. 131 to 147,) is to be treated in the Courts as prima facie evidence that all things required by law to be done to make a good and valid sale, were done by the collector and Auditor: and it is incumbent upon the party assailing the title of the purchaser, to show affirmatively a non-compliance with some substantial requisite of the law. (Merrick S¡ Fenno vs. Hictt, 15 Ark. 331; Patrick vs. Davis, 15 Ark. 363.
    Where the collector, instead of offering for sale, separately, each tract of land advertised to be sold for taxes, presents the list to the persons present, and offers to sell if they would buy, and they all reply that they will not buy any of them, it is but fair to presume that no injury resulted to the owners of the lands by the failure of the collector to comply with the letter of the statute in the mode of offering the lands for sale. But this Court would not encourage or sanction any substantial departure from it, under any circumstances.
    A denial in the answer, when responsive to an allegation in the bill, of a matter not alleged to be within the peculiar knowledge of the respondent, will be treated as merely putting the allegation in issue. (Watson vs. Palmer, 5 Ark. 501; Burr vs. Burton, ante.(

      The testimony of the collector of taxes, if competent for such a purpose, is not sufficient to overturn and defeat a tax title to land acquired by purchase from the Auditor, by impeaching the truth of his own official return, attested by the clerk of the county, as to the mode of offering the lands for sale.
    If lands are subject to taxation, they are subject to sale for taxes, the right to tax involving the power to enforce payment by sale of the lands.
    Under section 1, chapter 139, Dig. all lands are made subject to taxation except such as are exempt therefrom by the compactbetweenthe State and the United States; and there is no statute'exempting the lands mortgaged to the Real Estate Bank from taxation; such exemption cannot arise, by implication, from the fact that the State has a contingent mortgage interest in the land.
    Under our statute the land itself is sold for taxes, and not the particular interest or title of the person to whom the land is assessed; and though lands belonging to the State would be exempt from taxation and sale, the State cannot be regarded as the owner of the lands mortgaged to the Real Estate Bank, to secure the stock notes, so as to exempt them from taxation.

      Appeal from the Circuit Court oj Sevier county in Chancery.

    The Hon. Shelton Watson, Circuit Judge.
    Pike & Cummins for the appellants,
    argued at considerable length, that upon the sale of the bonds of the State issued to the Real Estate Bank, it became as impossible for the State to tax the lands mortgaged by the stockholders of the bank to secure their stock bonds, for á tax imposed upon the owners of the lands, as to tax her own absolute property. That if the State could tax the mortgaged lands at all, it was the mere tax on the equity of redemption; that if she could sell at all, the sale merely passed the equity of redemption; that if the tax created any charge on the lands, it was junior to the mortgage liens; that the sale was only of the equity of redemption subject to all the liens created by the mortgages; and that the trustees are entitled to have their decree of foreclosure executed.
    That the collector must comply with all the requisites of the law, (sec. 98, ch. 139, Rev. Stat.,) or his sale carries no title. His total failure to offer the land at all, certainly destroys all claim of the State and the assignee. (Hodge vs. Wilson, 12 Smed. & Marsh. 498.
    That although Hartfield was a non-resident, yet the lands mortgaged to Hamilton and Wright, who were residents of the county, were conveyed to them previously to the assessment. At law the mortgagee holds the fée, and it was illegal therefore to double tax these lands as the lands of a non-resident.
    Watkins & Gallagher, for the appellees,
    contended, that parol evidence cannot be admitted to disprove the return of an officer in a collateral proceeding, and that the testimony of the collector was wholly inadmissible. (Trigg vs. Lewis, 3 Littell 131; Newton vs. State Bank, 14 Ark. Rep. 12.) Butif the testimony were admissible to contradict his official return, it shows a sufficient, if not literal, compliance with the provisions of the statute.
    That it does not appear from the evidence that the lands were taxed at double their value; but the statute expressly requires the lands of non-residents to be assessed at double their value, if they fail to furnish a list of them for assessment; {Dig. ch. 139 p. 873). But if any person be aggrieved by any assessment, he may apply to the county court to have the same corrected; and upon failure to do so, the assessment is conclusive. Dig. ch. 139, sec. 28; 6 Pick. 98; 4 Wend. 227; 3 Mass. 306; 6 ib. 44; 10 Shepley 269; \t% Term. 460; 9 Mete. 191; 6 Watts 325.
    That it is immaterial whether the land was taxed in the name of the owner or of the mortgagee — -the owner was bound to see the taxes paid. Merrick & Fenno vs. Hutt, 15 Ark. 37; 6 N. Damp. 194; 1 Walls & Serg. 166.
    That the lands mortgaged to the Real Estate Bank for stock are liable to sale for taxes, the State being in no sense the owner of them, nor trustee for the owners: that the lands, and not the particular or limited interest of the party in whose name they were assessed, passed by the sale.
   Mr. Chief Justice English

delivered the opinion of the Court.

On the 29th of January, 1850, Biscoe and others, trustees of the Real Estate Bank, filed a bill in the Sevier Circuit Court, against David R. Coulter, Turner H. Buckner, William Wright, Benjamin F. Hawkins, Henry K. Brown, and Wm. Moss, “to carry decree into execution, of revivor, and in the nature of a supplemental bill.”

The bill sets out and exhibits the deed of assignment by which the Real Estate Bank, on the 2d of April, 1842, transferred to trustees all its assets for the benefit of its creditors; and the several occurrences by which the complainants became trustees under the provisions of the deed.

The bill further alleges that one Benj. H. G. Hartfield was a subscriber for ninety-six shares of the capital stock of the Real Estate Bank, for which he made his bond for $9,600, dated 10th June 1837, and due 26th Oct., 1861. To secure the payment of which, and any money that he might borrow upon his stock credit, he executed to the Bank, under the provisions of its charter, a mortgage on the 10th of June, 1837, arid another on the 28th April, 1841, upon the S. E. £ of Sec. 1, and the E. j of the N. E.iof Sec. 12, in T. 13 S. of R. 33 West, which mortgages were duly acknowledged and recorded in Sevier county, where the lands were situated.

On the 16th of April, 1840, Hartfield borrowed of the Bank, on his stock credit, $2,945 33, for which he gave his note, with Robert Hamilton and Benj. F. Hawkins as securities, payable at twelve months from 19th April, 1840.

On the 21st of December, 1839, he borrowed on the same account $1,566 67, for which he made his note to the Bank, with Henry K. Brown aud Wm. Moss as securities, payable twelve months after its date.

These stock notes remaining unpaid after maturity, the trustees of the Bank filed a bill in the Sevier Circuit Court for foreclosure of said mortgages, and payment of the notes. After-wards, ascertaining that, on the 8th of April, 1844, Hartfield had mortgaged to Hamilton and Hawkins, the W. \ of the S. W. ^ of Sec. 6, in T. 13 S. of R. 32 West; and N. E. £ of Sec. •1 T. 13 S'. R. 33 W., to secure and save them harmless as his securities on the note first above mentioned, the trustees filed an amendment to their bill, stating this fact, and praying to be subrogated to the rights of the securities under the mortgage to them; and to have foreclosure thereof.

This bill being against Hartfield, Hamilton, Hawkins, Brown and Moss, the trustees obtained a decree, by consent, on the 16th of April, 1846, for foreclosure of both mortgages and payment of the amount due on the two notes, the lands mortgaged by Hartfield to the Bank to be first sold, and then those mortgaged by him to his securities, if the first failed to satisfy the decree. Brittin was appointed a commissioner to make the sale, but he died in June 1846, and no sale was made, and the decree remained unexecuted to the time of filing the present bill to carry it into execution, etc.

About the time of filing the original bill, the trustees also brought suits at law upon the notes, against Hartfield, Brown and Moss, in Hempstead, and Hartfield, Hamilton and Hawkins in Sevier county. Hartfield, having removed to Texas, his securities applied to the trustees of the Bank late in the year 1845 or early in 1846, and proposed that Hartfield should give up all the mortgaged lands, and also the following lands, and he and they be released from said debts, to wit: the E. £ N. W. ¿ Sec. 1, T. 13 S. R. 33 W., and the TV. frl. % N. W. i Sec. 6, in T. 13 S. R. 32 W., lying in Sevier county, the title to which two tracts, and some of the other lands being in one TVm. Wright. On the representations of the securities, and especially Brown and Hawkins, that the title was good, and the lands unincumbered, the trustees agreed to this proposition.

Thereupon the sureties procured Hartfield to return from Texas to complete this arrangement] and about the 15th April, 1846, it was finally agreed that the trustees would take said lands in full payment of Hartfield’s debts, and release him and his securities therefrom. That the suit in chancery should proceed to foreclosure, and title be obtained by the trustees to the mortgaged lands by purchase under the decree, and that Wright should convey to them the lands to which he held the title.

Accordingly, on the 15th April, 1846, Wright conveyed to the trustees the E\ of the N. W. i, and the N. E. ¿ of sec. 1, in T. 13 S., R. 33 W.; and the W.frl. i of the N. W. i, and the W.' frl. £ of the S. W. i of sec. 6, in T. 13 S., R. 32 W., by deed duly acknowledged and recorded, with covenants of warranty. . On this being done, the suits at law were dismissed, and the decree of foreclosure taken, that the trustees might obtain title to- all of said lands, by sale and purchase under the decree.

The lands, and the titles which the trustees expected to obtain by the above arrangement, are as follows:

No. 1, S. B. i~ sec. 1, (mortgages No. 1 and 2 and decree,) 160 acres.

No. 2, E. \ of N. E. ¿-, sec. 12, (mortgages No. 1 and 2 and decree,) 80 acres.

No. 3, N. E. ^ sec. 1, (mortgage No. 3, decree and deed from Wright,) 160 acres.

No. 4, E. \ of N. W. sec. 1, (deed from Wright,) 80 acres.

No. 5, W. frl. i- of S. W. ¿, sec. 6, (mortgage No. 3 and deed from Wright,) 104.64 acres.

No. 6, W. frl. N. W. {■, sec. 6, (deed from Wright,) 105.52 acres.

Nos. 1, 2, 3 and 4, being in T. 13 S., R. 33 W'., and Nos. 5 and 6, in T. 13 S., R. 32 W.

The bill further alleges that it turned out that all of these lands were assessed for the taxes of 1844 and 1845, by the sheriff of Sevier county, as the property of Iiartfield, a non-resident. On the 13th September, 1845, he advertised them, in some way, to be sold for taxes on the 1st Monday, (being 3d ' day) of November, 1845. The lands were assessed at $6 per acre, or for their whole value $8,694. The sheriff never legally advertised the lands; in point of fact, never sold them, or offered them for sale at all, but reported them to the Auditor as struck off and forfeited to the State for non-payment of taxes for 1844-’5; on the 3d Nov. 1845, he reported the taxes and penalty on them to be as follows:

No. 1, State tax and penalty, $3 00; county tax and penalty, |6 90.

No. 2, State tax and penalty, $1 50; county tax and penalty $3 45.

No. 3, State tax and penalty, $3 00; county tax and penalty, $6 90.

No. 4, State tax and penalty, $1 50; county tax and penalty, $3 45.

No. 5, State tax and penalty, $1 96; county tax and penalty, $4 51.

No. 6, State tax and penalty, $1 98; county tax and penalty, $4 55.

There was some mistake in the description of No. 4 in some of the proceedings, but complainants do not insist upon it as a fatal objection.

The bill alleges that the. lands were either never sold, or offered for sale at all, or if offered for sale, or sold, it was void; because the taxes for two years were added together, and the sale, if made, was for taxes and penalties for both years, without any right to sell for the taxes for 1844; that none of the lands had been omitted in the assessment list for 1844; that the sheriff had not paid all the taxes charged against him in 1844, so as to give him a lien on the lands, under which he could sell; and if he had such a lien he could not include the penalty.

But the said lands being pretended to be struck off and forfeited to the State, they were offered for sale by the Auditor, on the 14th of February, 1848, and not being sold for want of bidders, he sold them on the 28th of that month for the taxes, penalties and costs, to the defendants Coulter and Buckner, and executed to them a deed therefor. -

That the two stock-mortgages of Hartfield were, by the provisions of the charter of the Real Estate Bank, transferred to the State and the bond-holders, so that when the lands included in these mortgages were, or were pretended to be struck off to the State, she had an interest in them as mortgagee.

That the trustees and their officers were wholly ignorant of the proceedings to forfeit the lands for taxes, and of Coulter and Buckner having purchased them of the Auditor, until the summer of 1849, always supposing, up to that time, that the taxes had been regularly paid. Goulter and Buckner had taken possession of the lands, and were using them as their own; and Rad commenced proceedings for confirmation of their title. Hamilton had died insolvent, and Hartfield was in Texas.

The bill prayed revivor and execution of the decree of foreclosure, cancellation of the title of Coulter and Buckner, and an account from them of rents and profits, deducting taxes, penalty and costs justly chargeable to the trustees, etc. But if this relief could not be had, then the bill prayed a rescission of the agreement made by the trustees with Hartfield’s securities, to take the lands in payment of the debts; and decree against Hawkins, Moss and Brown to pay the amounts for which they were respectively sureties; and against Wright on his warranty for the value of the lands conveyed by him to the trustees; and for general relief.

Coulter and Buckner filed a joint answer. As to their title, they allege that the lands were regularly listed, assessed and placed upon the tax books of Sevier county in 1845, for the State, and county taxes assessed and due thereon for the years 1844 and 1845, in the name of Hartfield as, and who then was, a non-resident. That the taxes remaining wholly unpaid, the sheriff and collector made out and transmitted to the Auditor, and also filed in the office of the clerk of said .county, a list of all lands assessed for taxes in the year 1845, belonging to nonresidents, including those assessed to Hartfield, stating the amount of. State and county taxes due thereon and unpaid. That no one having paid the taxes assessed against Hartfield, into the State Treasury, the Auditor, after correcting and adjusting the list, caused a notice to be published, as from the said sheriff and collector, on the 24th Sept., 1845, in the “ Arkansas Banner,” at Little Rock, that the lands in the list so corrected, which was there published, including Hartfield’s, would be sold for taxes, etc., by said collector, at the Courthouse door in said county, on the first Monday of Nov., 1845, unless the taxes, penalty and costs were previously paid. That the taxes, etc., on Hartfield’s lands remaining wholly unpaid, the said collector, in pursuance of the notice, did proced, at the time and place named therein, to offer and expose for sale, separately, each of the tracts of land assessed to Hartfield, and no person bidding for either tract, each was declared and entered as forfeited, and sold to the State in pursuance of law, etc. That the clerk of the county attended the sale, and made a regular record of it in the book kept for that purpose, showing the sale to the State of Hartfield’s lands, and the amount of taxes, penalty, etc., due on each tract, a copy of which record was by him sent in due time to the Auditor. That the lands in question were not assessed in 1844, nor put on the tax book for that year, but were omitted by mistake, and, therefore, assessed for both years in 1845. That the proceedings of the sheriff and collector were regular, and in accordance with the statute throughout- That he did not sell for taxes of 1844, under any lien that he had or claimed, but because the lands were not assessed in that year. That the taxes, etc., charged upon each tract, are correctly stated in the bill, and are not excessive, etc.

The answer admits that the lands were offered for sale, as forfeited lands, by the Auditor, on the 2d Monday of February, 1848, and not sold for want of bidders. That on the 25th of the same month, respondents paid to the Auditor all the State and county taxes, interest, penalties, costs, etc., due thereon, and thereby purchased the said lands of the State, and obtained the Auditor’s deeds therefor, etc.

They admit that the stock mortgages executed by Hartfield upon part of the lands, were, by the provisions of the charter of the Bank, transferred to the State to indemnify her on account of the bonds issued by her for the Bank; that complainants were trustees for the State; and that, at the time the lands were forfeited, the State had an interest therein as mortgagee; but they insist that this rather strengthened than prejudiced the title of respondents, inasmuch as the State, through the Auditor, voluntarily and for a valuable consideration, sold and conveyed to them all her right, title, interest and claim, in and to said lands — and that complainants, being mere trustees of the State, were estopped from controverting the title of respondents, even if the collector had not conformed to the statute in the proceedings which resulted in a forfeiture of the lands, etc.

Respondents did not know what knowledge complainants had of the sale of said lands for taxes, etc., but they insist that the lands being regularly advertised, etc., complainants had the same notice that other land holders have; that it was their duty to pay the taxes; they were chargeable with - notice, and were bound to take notice at their peril.

The other defendants answered the bill also, but by consent of all the parties, the case, as between complainants on one side, and Coulter and Buckner on the other, was heard by itself, without prejudice to the right of the complainants after-wards to bring on, like a separate case, that between themselves and Hartfield’s securities and Wright. It is, therefore, unnecessary to make any statement of the other answers.

The complainants filed a replication to the answer of Coulter and Buckner, and on the final hearing, the bill was dismissed as to them for want of equity; and complainants appealed.

The validity of the tax title of the appellees is the only matter of controversy involved in this branch of the case.

It seems from the pleadings and evidence in the cause, that the appellees purchased the lands in question from the Auditor, under the provisions of sec. 144-’5-’6-’7, ch. 139, Dig. p. 894; and received his deed for each tract thereof.

These deeds are as good and valid, and have the same force and effect as deeds made by the Auditor for lands sold by him at public auction, etc. Ib. sec. 147.

The Auditor’s deed for land sold by him at public auction (under sec. 131 to 143, ch. 139, Dig.,) is to be treated in the Courts as prima facie “ evidence that all things required by law to be done to make a good and valid sale, were done by the collector and the Auditor.” Sec. 142. Merrick & Fenno vs. Hutt, 15 Ark. 331.

In order to avoid the title of appellees, therefore, it was incumbent upon the appellants, who assailed the title, to show affirmatively a non-compliance with some substantial requisite of the law, in the proceedings which ultimately resulted in a sale of the lands, by the Auditor, to the appellees. Merrick & vs. Hutt, ubi sup. Patrick vs. Davis, 15 Ark. 363.

The evidence read upon the hearing conduces to sustain but one of the objections made by the appellants to the regularity of the proceedings of the collector, etc.; that is, that he did not offer the lands for sale, at the time they were forfeited to the State, in the mode prescribed by law.

On this point, the deposition of Jackson, the collector, is as follows:

“ The lands of Hartñeld, with others, were advertised to be sold at the time and place prescribed by law. At the time appointed for the sale, I, as collector, etc., attended at the Courthouse door of Sevier county. Ira N. Holman, the clerk of the county, and Fred. L. Riddy (an attorney,) were the only persons present. I made known that I would sell said lands for the taxes; and Holman and Riddy said they would not buy any of them. I then struck off said lands as forfeited to the State. There being no persons present but those above named, and they saying that they would not buy any of said lands, I did not go over the lands offering each tract separately. I refer to the lands assessed to Hartñeld, as well as those assessed to other persons, which were advertised for sale at that time.”

Cross-examined by appellees — I had, at the time and place of said sale, a list of said lands, and announced and made known that if either of said persons would bid for any tract of said lands, I would cry it; and they said they would not bid for any of them. I had a list of the lands, and exhibited it at the time. If either of the persons present would have bid for the lands, I would have cried the tracts separately, and told them so. The town of Paraclifta, the place of sale, was very obscure and thinly inhabited — But few persons then residing in it— Only five or six men — But few persons living near the town, the settlements being a considerable distance off. It was not usual for many persons to congregate at the town except at Court, and other public days. I was sheriff of Sevier county from 1840 to 1848. At the time of said sale, and for some time before and after, the opinion prevailed to a considerable extent in the county, that tax titles were worthless, and but few persons were disposed to buy at such sales. I do not recollect that any persons were in town on the day of sale except the citizens. I offered the lands for sale at the Court-house door between 10 o’clock A. M. and 3 o’clock P. M. publicly. The sale was conducted as public sales usually are, there being no means used, within my knowledge or belief, to prevent persons from attending it.”

Re-examined by appellants. — “ In the above statements, I refer not only to the lands assessed to Hartfield, but to all lands advertised for sale at the time referred to. The whole list of lands then offered for sale, were stricken off in the same way, there being eleven tracts besides Hartfield’s lands. But I had the list there, and exhibited the sam'e, so persons could see if they wished to do so. I do not know that the persons present knew the numbers of the lands, but they might have seen the list containing the description of the lands, if they wished to do so. According to my recollection, I did not cry the amount of taxes due on each tract.”

Re-cross examined by appellees: — “ said lands had been advertised at the Court house door, in said town of Paraclifta; and Holman, the clerk, kept his office in a few yards of the Courthouse door, and Riddy, the lawyer, resided in the town, about 150 yards from the Court-house. At the time of the sale, I had the advertisement, or a copy, containing a description of said lands.”

This appears to have been the only deposition read upon the hearing. It was read by agreement of parties, with an express reservation of objections to competency and relevancy.

The proceedings of the collector being regular up to the time of sale, his power to sell the lands was complete. The objection made to the validity of his sale of the lands to the State, does not relate to his power to make the sale, but to the manner in which he exercised the power. The objection is, that he did not cry the lands by separate tracts.

The law required the collector to offer for sale, separately, each tract of land contained in the advertised list, etc. Dig. ch. 139, sec. 98.

The person offering at such sale to pay the taxes, etc., on any tract for the least quantity, becomes the purchaser of such quantity. Ib sec. 99.

Every tract of land so offered for sale; and not sold for want of bidders, is entered as sold or forfeited to the State, etc. Ib. sec. 104, 116. '

It is insisted by the appellants that if the collector had offered and cried each tract of the lands in question separately, one of the persons present might have bid, and agreed to pay the taxes, etc., due on each tract for a less quantity than the whole of the tract, and thereby have saved to the owner the remainder.

From all the facts stated by the collector, however, the probability is very strong that the result would have been as it was, had he gone through the form of offering each tract separately, because it seems that the only two persons present stated to him distinctly, after he had exhibited a list of the lands, that they would not bid for any of them. Supposing, therefore, the deposition of the collector to be competent, and all the facts stated by him to be true, it is but fair to presume that no injury resulted to the owner of the lands by the failure of the collector to comply with the letter of the Statute, in the mode of offering the lands for sale. See Blackwell on Tax Titles, ch. 14 p. 305, et seqr.

The mode of offering lands for sale prescribed by the statute, however, is simple and just, and we would not encourage or .sanction any substantial departure from it, under any circumstances.

But if the irregularity in question were fatal to the title of the appellees, can the deposition oí the collector, be regarded as competent and sufficient to establish such irregularity against the other evidence in the cause?

The bill alleges the irregularity. The answer denies it, and avers that the lands were offered by separate tracts. The denial is responsive to the allegation of the bill, but the matter alleged not being within the peculiar knowledge of the respondents, the answer will be treated as merely putting the allegation in issue. Watson vs. Palmer, 5 Ark. 501; Burr vs. Burton, 17 Ark.

The onus probandi was upon the appellants. The only evidence produced by them was the deposition of the collector.

The appellees produced the Auditor’s deeds, which, as we have seen, were prima facie evidence of the regularity of all the proceedings of the collector.

Moreover, the clerk of the County Court is required to attend such sales of lands for taxes made by the collector, and make a record thereof in a book, etc., describing the several tracts of land, etc., as they are described in the (collector’s) list, stating, in separate columns, the State and county tax, with the penalty thereon, and how much of each tract, etc., was sold, and to whom sold; and such tracts as remain unsold, for want of bidders, he is required to enter as sold to the State. Dig. ch. 139, sec. 104.

He is required also to make out and certify a copy of such record to the Auditor, etc., sec. 105.

It appears that Holman, the clerk of the Couuty Court of Se-vier county, attended the sale in question, and in compliance with the statute, kept a record thereof, and certified a copy of such record to the auditor, showing that the six tracts of land assessed to Hartfield, describing the numbers of each tract, with the amount of taxes, etc., due thereon, were not sold for want of bidders, and entered in such record as sold to the State.

The clerk was acting in his official capacity, and made the record and return to the auditor under his official oath, and such return must necessarily be regarded as some evidence that the several tracts of land had been ofFered for sale in accordance with law, and forfeited to the State for the want of bidders.

Furthermore, the statute made it the duty of the collector, immediately after such sale, to make out a correct list of all lands that were forfeited to the State, at such sale, for want of bidders, under his hand, and attested by the clerk of the County Court, and to cause the same to be recorded in the recorder’s office of his county; ánd declares that it shall be evidence, in all Courts of this State, that the title to each and every tract of land, etc., contained in such list, has passed to, and vested in, the State. Dig. ch. 139, sec. 117.

It appears that, in compliance with this statute, the collector returned a list, attested by the clerk, embracing the several tracts of land assessed to Hartfield, and showing that they had been offered for sale, and stricken off to the State for want of bidders, etc.

This return was also made upon the official oath of the collector as well as the clerk.

By these returns, the collector and the clerk had placed upon the public records evidence, under their official oaths, that the several tracts of land assessed to Hartfield had been offered for sale in accordance with law, and forfeited to the State for want of bidders. We say had been offered for sale in accordance with law, because if they had not been so substantially offered for sale, both the collector and the clerk were guilty of fraud, if not of official perjury, in making their returns.

The appellees finding,'as we must suppose, ^such evidence upon the public records that the lands in question had been regularly forfeited to the State, purchased them of the auditor, in good faith, as it may be presumed in the absence of any shot', ing to the contrary, paid their money for them, and entered into possession of them.

Now shall the collector be permitted to overturn and defeat their title by impeaching the truth of his own official returns?

The decisions seem not to be in harmony as to the competency of the officer to be a witness to impeach the truth of his return. In some cases he has been held to be incompetent; in others the objection has been put to his credibility. See Meredith vs. Shewall, 1 Penn. R 496. Carpenter vs. Sawyer et al., 17 Verm. 123. 4 Cowen & Hill’s notes, Phil. Ev. p. 801, 2, and cases cited.

In the case of Tucker vs. Wilamowicz, 3 Eng. R. 166, this Court adopts the comprehensive rule “that every person not interested in the event of the suit, nor incapacitated by his religious tenets, nor by the commission of an infamous crime, is a competent witness. All other circumstances affect his credit only.”

If this rule can be regarded as applicable to the competency of an officer to impeach his official return, and if he must be held competent, notwithstanding the many considerations of public policy against it, yet his credibility, is so deeply affected that his evidence could have but little weight. Because, having made his return upon his official oath, and rightshaving grown up under it, when he is offered as a witness to impeach the truth of that return, it is not only oath against oath, but the integrity of his motives in impeaching the return may well be questioned.

Upon the state of the pleadings, and the whole of the evidence in this case, we shall therefore hold that the deposition of the collector is not sufficient to invalidate and overturn the title of the appellees to the lands in question.

It may be further remarked that the facts appearing upon the record before us, show no such diligence on the part of the appellants in reference to the preservation of their rights to the lands in question, as to give them any peculiar claim to relief in a Court of equity as against the appellees. It appears that they filed the original bill to foreclose their mortgages upon part of the lands in January, 1845, after which the lands were advertised for sale by the collector, etc., and forfeited to the State in November following. That the advertisement was published in a newspaper printed in Little Rock, where, under the deed of assignment, the trustees held their meetings, and their cashier and attorney kept their offices. That in April, 1846, the appellants perfected the arrangement with Hartfield and his securities, by which they were to have acquired title to all the lands. That it was about eighteen months after this, before the time expired in which they had the right, under the statute, to redeem the lands from the auditor, by paying the taxes, etc., for which they had been forfeited to the State. That after the expiration of two years from the time of forfeiture, the auditor again advertised the lands for sale, in a newspaper printed in Little Rock, and on the 2d Monday of February, 1848, publicly offered them for sale for the taxes, etc., due upon them, and they were not sold for want of bidders. After this, they were purchased of the auditor by the appellees. During all this time, and whilst, all these public proceedings were taking-place, the appellants seem to have paid no attention to the payment of taxes upon the lands.

The .counsel for appellants have devoted most of their argument in this case, to the proposition that the two tracts of land embraced in Hartfield’s stock mortgages to the Real Estate Bank, were not subject to sale for taxes, or if subject to sale, that only Hartfield’s equity of redemption could be sold, and that the lands would remain subject to the lien of the mortgages, etc. This proposition applies to all the lands mortgaged to the bank to secure the payment of stock, etc.

It appears that there were 207,101 acres of these lands, valued by commissioners at $3,380,772 38 (Gouge’s Rep. p. 5.) By the terms of the mortgages, the mortgagors were to remain in the use and occupation of the lands until the maturity of the debts secured by the mortgages, and default of payment. The bonds given for stock subscriptions do not mature until the year 1861. In equity, the lands are regarded as belonging to the mortgagors until default, etc. The mortgages are merely securities for the debts, etc.

If these lands were not subject to sale for taxes, they were not subject to taxation, because the right to tax, without the power to enforce payment by sale of the lands, would be of no avail. The consequence of the affirmative of the proposition would be, that the owners of this vast amount of lands might have remained in their possession and use from the execution until the maturity oí the mortgages, without the payment of any taxes upon them.

By section 1 chap. 139 Dig. p. 870, all lands, etc., are made subject to taxation except such as are exempt therefrom by the compact between the State and the United States.

It is said that no species of property is ever to be regarded as exempt from the operation of the taxing power, unless by virtue of some positive law — sucb exemption can never arise by implication. Blackwell on Tax Titles p. 633.

Waiving any question as to the power of the legislature to exempt particular lands from taxes, where lands generally are taxed, we know of no statute exempting the lands mortgaged to the Real Estate Bank from taxation.

The other branch of the proposition, that if the lands were subject to sale for taxes at all, only the equity of redemption of the mortgagor could be sold, is equally untenable. Under our statute the land itself is sold for taxes, and not the particular interest or title of the person to whom it is assessed. A full and perfect title to the land passes by the sale, where the proceedings are regular. See Dig. ch. 139, sec’s 92, 112, 116,117,142, 147.

Lands belonging to the State, of course, would be exempt from taxation. They are not embraced within the object and intention of the statute. The object of the statute is to raise a revenue from land, etc., for the support of the government. If the lands of the State were taxed, the taxes would have to be paid out of the public treasury, and of course no revenue would be gained by the operation, but a loss to the extent of the costs of assessing and collecting the taxes.

But the State cannot be regarded as the owner of the lands mortgaged to the Real Estate Bank, in the sense referred to. She has but an ultimate interest as a mortgagee, to indemnify her against the payment of the bonds issued by her to the bank. See Wilson vs. Biscoe et al., 6 Eng. 44.

It doubtless would be good policy for the legislature to pass an act making some provision for the preservation of the ultimate rights of the State in these lands, under the mortgages, but until this is done they must be held by the Court subject to existing revenue laws.

The decree of the Court below is affirmed.

Absent, the Hon. Thomas B. Hanly.


author: Mr. Justice Scott

text:
    Payne vs. Danley.
    The proceeding for the confirmation of a tax title must be governed by the ordinary rules of chancery practice, except where otherwise prescribed by statute: and all testimony, resting in parol, must be presented in the form of written depositions unless dispensed with, and oral testimony at the hearing be authorized by the direction of the Court..
    The interest of two tenants in common, in a tract of land, may be assessed separately, and upon default by one to pay the taxes assessed upon his undivided half, it may be sold without a sale of the entire interest of both tenants in common — the co-tenant having paid his 3hare of the tax.

      Appeal from the Circuit Court of Drew county in Chancery.

    The Hon. Theodoric F. Sorrels, Circuit Judge.
    S. H. Hempstead,' for the appellant.
    That it is not legal to tax and sell an undivided interest in a tract of land. Such a sale is void. Digest 887, 888] 10 Ohio 433; 12 Serg. & Rawle 299; 9 Ham. 43; 12 S. & M. 498; 23 Miss. 122. Indefiniteness of description renders a sale for taxes void. 4 McLean 481; 13 How. 18.
    The law concerning tax sales must be strictly complied with.
    The tax deed is only prima facie evidence and may be overthrown. 15 Ark. 337.
    Pike & Cummins for the appellee.
    Payne had no right to appear or be heard in this case as to the undivided half in the lands; 1 Ark. Rep. 472; 3 Gilman 158.
    It is plain that all the powers conferred upon the Circuit Courts by chapter 160 Rev. Stat., are in their nature chancery powers. They belong to the chancery side of the court, and the party has no right to produce oral proof at the hearing.

      A man has a right to pay the taxes on his own property, and the officer is bound to receive it, when tendered. The collector then could not sell the entire interest in a tract of land owned by joint' tenants, after one had paid his part: and it follows that he may sell the undivided half of one who fails to pay.
   Mr. Justice Scott

delivered the opinion of the Court.

This was a proceeding on the chancery side of the Drew Circuit Court, for the confirmation to the complainant below, of title to a number of tracts of land specified in his petition, purchased by him at a sale by the Auditor in pursuance of the statute: the undivided half of the lands thus sold and purchased having been previously forfeited to the State for the nonpayment of taxes assessed upon them; and not having been redeemed within the time prescribed by law.

With the petition were filed the several Auditor’s deeds, and the publication prescribed by the statute, under which the proceeding was instituted, duly proven.

The confirmation of title was not sought as to the entire estate in all the lands, but as to an undivided half of all the lands, that only having been sold, purchased and conveyed, as appears by the petition, and the Auditor’s deeds exhibited therewith.

Payne, the appellant, intervened and contested the confirmation, setting up, by answer and by pleas, several irregularities in the proceedings of the collector of taxes.

The answer, and the admissions at the hearing showed that, at the time of the forfeiture, and for some years previous thereto, Payne owned an undivided half of the lands in question, and that the other undivided half belonged to the Bank of Kentucky or some other non-resident. That, for several years, Payne not only paid the taxes on his own half, but on the Bank’s half also. At length he ceased to pay for the Bank’s half, and paying only for his own, and no one else paying for the former, the forfeiture accrued.

Upon the ground that, he had thus paid out money for the Bank, Payne claimed a lien, for the sum paid out, on the undivided half owned by that corporation, and upon that ground predicated his right to intervene and contest the confirmation. No question below seems to have been raised as to the right of Payne to intervene.

At the hearing, Payne, to sustain the several irregularities in the proceedings of the collector of taxes, which he had alleged in his answey and pleas, offered to read in evidence a writing or paper, purporting in its caption, to bé a “ list of lands to be offered for sale on the first Monday of September, 1848 for taxes, etc.,” under which divers tracts of land were described; their value, the years for which they were taxed, the amount of taxes on each, amount of penalty and the aggregate were set out; opposite to which were the respective owners’ names; in which the lands in question were included, and opposite which appeared the words: “ Moses U. Payne and Bank of Kentucky, each owns one undivided half,” signed by no one, but endorsed — “filed September 16th, 1848 — Y. R. Royal, Clerk,” which the petitioner objected to, and the court sustaining the objection refused to allow the paper to be read in evidence. Whereupon, Payne called Young R. Royal, the clerk of Drew county, and proposed to prove by him that that paper was the only list ever filed in his office in respect to non-resident lands in that year and that that related to such lands; and offered to prove by him some other matters connected therewith, which it is not necessary to set out; but the Court refused to allow the witness to be sworn, on the objection of the petitioner, that all such testimony should be by deposition, and not oral. Payne took his bills of .exceptions, and the Court, finding all of the alleged irregularities unsustained by the evidence in the cause, decreed confirmation, according to the prayer of the petitioner, and Payne appealed to this Court.

There are but two grounds of reversal insisted upon by the appellant’s counsel in his argument. The one, that the Court improperly rejected the testimony offered, and the other, that the purchase and sale in question were illegal and void, because the interest and estate of one tenant in common only, was sold, and not the whole tract of land as an entirety, or some specific part thereof as such.

With regard to the first question there can be no difficulty. This proceeding is, substantially, a bill of peace. Overman vs. Parker, 4 Hemps. C. C. R. p. 694. Although special in its form, it is, in its nature, but the application of a well known chancery remedy. (lb. p. 695.) It must, therefore, be governed by the ordinary rules of chancery practice, unless in matters otherwise specially prescribed by the statute. There, does not appear to have been any direction of the Court below, previously, that authorized oral testimony at the hearing, and dispensed with the ordinary necessity of written depositions. {Dig. ch. 28, secs. 65, 66.) The written document offered to be read, was not an exhibit in the case. Nor could it have been read in evidence, anywhere, unless accompanied by other proof, which, resting in parol, ought, in this proceeding, to have been presented in the form of written deposition, unless-dispensed with.

The other ground, although not clear of difficulty when considered in reference to cases that might possibly arise, does not seem tenable as an objection to the sale made in this case.

There is no want of certainty, as to the land bought and sold in this case, to invalidate the sale. It was the undivided equal share in the several tracts of land owned by two tenants in common, listed to both of them, as owning each one-half; the one tenant having duly paid his half of the tax, and the sale was to satisfy the residue of the assessment.

In the case of Roukendorff vs. Taylor’s lessee, (4 Peters R.,) the land was owned by two tenants in common. The assessment lists showed that one-half of the quantity was set down to each tenant — and thus each was taxed separately for his undivided interest. One of the tenants in common paid his part of the tax, and the other failing to do so, his undivided share of the land was sold.

The validity of that sale was contested, and the Circuit Court of the District of Columbia, sustaining the objection, held; “ that the entire land should have been assessed*to the two tenants in common, Taylor and Toland, and accordingly advertised and sold as assessed to them;” and so instructed the jury.

But the Supreme Court overruled the objection, saying (Ib.p. 362:) “ the same valuation was placed on each half of the land, so that so far as the assessment goes, it did not substantially differ from the instruction given. But the sale, to be valid, need not extend to the interest of both tenants; one having paid his share of the tax, the interest of the other may well be sold for the balance.”

This authority goes to the extent of holding the assessment good, whether made in the form used in the case at bar, or in that used in the case cited; became “ substantially” the same. And that a sale to be valid need not extend to the entire interest of both tenants, but would be equally so if the estate in fee of one of the tenants only was sold upon his default, his co-tenant having paid his own share of the tax. Black. on Tax Titles 332.

We see no reason to doubt' either as applied to the assessment and sale in the case before us.

The decree will be affirmed.

Absent, Hon. Thos. B. Hanly.


author: Mr. Justice Scott.

text:
    Payne vs. Danley.

      Appeal from the Circuit Court oj Ashley county in Chancery.

    S. H. Hempstead for the appellant.
    Pike & Cummins for the appellee.
   Mr. Justice Scott.

The facts of this case are substantially the same as in the case, between the same parties, which came up from the Drew Circuit Court. The same grounds for reversal were insisted upon.

Decree affirmed.

Absent, Hon. Tuos. B. Hanly.


text:
    Worsham and wife et al. vs. Field.
    The cases of Lemon's Heirs vs. Rector et al, 15 Ark. .436; peay et al. vs. Anthony, ante; and Slocomb, Richards Co. vs. Blackburn et al., ante, that the administrator, and not the heir, is the proper person to sue for a debt due the deceased, approved.

      Appeal from, the Circuit Court of Pulaski county in Chancery.

    The Hon. William H. Feild, Circuit Judge.
    Trapnall for the appellants.
    Fowler for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court.

The bill was filed in October, 1849. The complainants allege that the wife and the minors are the children and heirs at law of Mary Graham, deceased, the sole devisee of Andrew Graham, deceased, the former husband of Mary, who was' his executrix. That Mary died in Kentucky, where the complainants all reside, in the year 1848. That Mary, after the death of her husband, and while a feme sole and having an absolute title to certain real estate in Pulaski county, Arkansas, sold and conveyed it to Cotter, in September, 1836, for the sum of $4,200, payable in four equal annual instalments, for which Cotter executed his four several bonds, payable the first of August, 1837, 1838, 1839 and 1840, to her as executrix of the said Andrew, deceased, which they exhibit. That Cotter, at the same time, for the purpose of securing the payment of his said four bonds, conveyed the said lands and others to Wm. E. Woodruff and Charles Rapley, in trust. That afterwards, in August, 1837, Cotter conveyed the lands sold to him by Mary to Field, in consideration whereof, Field covenanted with Cotter to pay off the four bonds of Cotter to Mary, as executrix, and to save Cotter harmless from them. That in February, 1845, the trustees regularly sold the property conveyed to them by Cotter for the aggregate sum of $2,224 68. That about the time of that sale, but before it, Field proposed to Mary to pay the whole of said debts in certain property, which was declined. That previous to said sale, Field had paid $1,095 to the credit of the bonds, but that Cotter had never paid anything, and had removed to parts unknown; and that, after deducting all proper credits, there still remained due upon the said bonds upwards of $4,000. That there has never been any administration upon the estates of either the said Andrew, or of the said Mary, and that neither of them owe any debts. Prayer, that Field may be decreed to pay the complainants the residue still unpaid on the four bonds of Cotter, and for general relief.

Field demurred to the bill for want of equity upon its face, and besides, assigned the special ground that the complainants had shown no interest in, or title to, the subject matter of the suit, and no right to call him to account.

The Court below sustained the demurrer, and dismissing the complainants’ bill, they appealed to this court.

The decree of the Court below is fully sustained by the decision of this Court in the case of Lemon's heirs vs. Rector, et al., 15 Ark. R. 436, the doctrine of which has been since applied in the cases of Peay et al. vs. Anthony, 18 Ark. R. ante., and in that of Slocomb, Richards & Co. vs. Blackburn et al., decided at the present term.

The decree will be affirmed.

Absent, Hon. Thos. B. Hanly.