author: Mr. Chief Justice English

text:
    Gracie vs. White & wife.
    It is not necessary that the power to authorize an agent to pay over money for his principal, should be in writing- — -as where the owner of land sold for taxes, authorizes an agent to pay the taxes, etc., and redeem the land.

      Appeal from Desha Circuit Court in Chancery.

    The Hon. Theodoric F. Sorrels, Circuit Judge.
    Watkins & Gallagher, Yell and Williams & Williams, for the appellant.
    Pike & Cummins, for the appellees.
   Mr. Chief Justice English

delivered the opinion of the Court.

This was a bill filed by White and wife against Gracie to redeem a tract of land sold for taxes.

The material allegations of the bill are’, that the complainants were the owners, by descent from William Woods, the father of Mrs. White, of the north half of sec. 9, T. 9 S. R. 1 west, containing 320 acres and lying in Desha county. That, on the 3d November, 1851, the land was sold by the sheriff of that county for taxes then charged upon it, amounting to $154 03, together with $75, penalty and costs; and purchased by Gracie. That on the 3d October, 1852, and within one year from the date of the sale, the complainants, by their agent, Calvin Stroud, tendered to Gracie the full amount of taxes, penalty and costs paid by him for the land with 100 per cent, thereon, for the purpose of redeeming the land, which he refused to accept.

The complainants offer to pay the redemption money, and bring it into Court: and pray that the sale to Gracie may be set aside, and his title canceled.

The answer of Gracie puts in issue the title of complainants to the land; admits his purchase of it at tax sale as charged; and substantially admits that, on the day stated in the bill, Calvin Stroud tendered him money and offered to redeem the land, but denies that he had any competent legal authority to act for the complainants in the premises, and on that account the tender was refused.

Upon the hearing, the court decreed to complainants the relief sought by the bill, and Gracie appealed.

The complainants being non-residents of the county of Desha when the land was assessed, and sold for taxes, their right to redeem it, at any time within twelve months after the sale, by paying or tendering to Gracie the amount of taxes, penalty, costs, etc., paid by him with 100 per cent, thereon, is not controverted. Digest chap. 139, sec. 122-3-4, p. 890-1.

It appears from the testimony read upon the hearing, that the land was patented to Wm. Woods and his heirs, on the 5th day of February, 1846, by the President of the United States, previous to which time Woods had died, leaving the complainant Mrs. White, his only surviving child and heir.

The question whether the power of attorney executed by the complainants to John P. Stroud, authorizing him to sell the land, was valid and binding on Mrs. White, — in other words, whether a feme-covert can execute a valid power to dispose of hqr land — which has been discussed at length by the counsel of Gracie, does not properly arise in this case, and need not be decided.

The testimony conduces to show that complainants verbally' appointed John P. Stroud their agent to redeem the land; that he substituted Calvin Stroud, and that the substitution was ratified by the complainants before the tender was made to Gracie.

The only question really involved in the case, therefore, is whether the tender and offer to redeem the land, made under a verbal appointment, was sufficient; or whether the power had to be in writing. The Statute provides that the redemption money may be paid or tendered to the purchaser of the land, by the owner or his agent or attorney, (Digest chap. 139, sec. 122,) but is silent as to how the agency shall be created: — the familiar principles of the common law settle this.

What has the agent to do? He has to execute no instrument, sealed, or otherwise. His duty is merely to pay, or tender the redemption money to the purchaser of the land: and when the money is received by the purchaser, the land is redeemed by operation of law. The statute requires him to make no deed.

We know of no principle of law which requires a written power to authorize an agent to pay over money for his principal.

The decree of the court below is affirmed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Cloyes et al. vs. Keatts et al.
    A valid pre-emption right to the land lying- on one bank only of a river, does not entitle the owner to the exclusive privilege of keeping a public ferry — such right, accompanied by possession, would entitle him, under the restrictions in chapter 69, Digest, to the privilege of having a public ferry from the shore on which his own land was situated.
    The complainants allege that they are entitled to a valid legal pre-emption to a certain tract of land lying upon the bank of the Arkansas river: that the land has been illegally selected, under a grant by Congress, for the use of the territory of Arkansas, and a patent issued by the general government; that the complainants have filed a bill against the State of Arkansas and others to cancel the patent and for possession of the land which is now pending: that the defendants, with full knowledge of the complainants’ right, have obtained possession of the bank of the river and now have a public ferry there; and praying that they account to the complainants for the rents and profits of the ferry, and deliver possession, etc. Held that, in no view, does the bill present any case for relief.

      Appeal from the Circuit Court of Pulnski county in Chancery.

    The Hon. William H. Feild, Circuit Judge.
    Fowler for the appellants.
    Watkins & Gallagher for the appellees.
    1. The mere ownership and possession of land even on both banks of a stream, do not give a party a right to keep a ferry. (Digest chap. 69.)
    2. As the bill is silent upon the subject of the proprietorship on the opposite bank, it may well be that the appellees have license based upon their possession on that side; and if so, they could not be prevented from landing on this bank.
    3. But an insuperable objection to the relief sought in this case, is, the bill admits that there is an outstanding patent in full force. It does not seek to cancel the patent and perfect complainants’ equitable, into a legal title. According to our understanding of the law, appellants can have no relief against any one in possession of this land, until the patent is first set aside, and when that is done, then they could have further decree for possession and rents.
   Mr. Justice Scott

delivered the opinion of the Court.

This case was brought here by appeal from the Chancery side of the Pulaski Circuit Court.

The appellants filed a bill, alleging a pre-emption right in the heirs of Cloyes, to the north-west fractional sec. 2, in township 1, north of range 12 west. That, before the same was consummated, Governor Pope, under the pretended and assumed authority of an act of Congress, granting one thousand acres of land to the territory of Arkansas for the erection of a Courthouse and jail at Little Rock, selected, illegally, and by mistake both of law and of fact, or arbitrarily or fraudulently, as a part of said grant, the aforesaid fractional quarter section. That, in pursuance of said selection, a patent was afterwards issued by the general government to the said Governor, for the use of the territory, for the lands so selected by him, including said fractional quarter, under which the Governor for the use aforesaid, took possession of the land patented, and under pretended authority of law disposed of it. That, in April, 1843, the appellants filed their bill in the Pulaski Circuit Court, against the State of Arkansas, William E. Woodruff and others, to cancel said patent, to establish more fully the title of the appellants to said fractional quarter, and to quiet and give the possession of the same to them, and for other purposes: which bill, although diligently prosecuted, is still pending.

That the entire northern boundary of said fraction is upon the Arkansas river, a large, navigable and unfordable stream. That the right and privilege of keeping a public ferry thereon, and the ferry rights and privileges attached to, and pertaining to said fraction of land to the middle of the stream, are the sole and exclusive right and property of the appellants, both at law and in equity. That the same is of the value of at least twenty-five hundred dollars per annum.

That the appellees, with full knowledge of the appellants’ rights in the premises, in April, A. D. 1850, and without authority from them, unlawfully took possession of the whole of the bank of said river, to the full extent of said fraction of land, and of all the rights and privileges pertaining thereto, and by various appliances, obtained from some Court a license to keep a public ferry thereon, and from that time until the present, have continued to hold such possession, and to keep such public ferry, and receive all the emoluments and rents and profits arising therefrom, although often requested to surrender such possession, and to pay such profits to the appellants. And, praying that the appellees may be made parties defendant to the bill. That they may be required to answer it. May be made to account, and by decree made to pay to the appellants, whatever sum they have received, or ought to have received; and to deliver to the appellants the possession of said river bank, and the said ferry privileges, and that they may be enjoined from ever hereafter interfering therewith; and for general relief.

The appellees demurred to the bill, and the Court below sustaining the demurrer, dismissed it, and the appellants appealed to this Court.

It is insisted on behalf of the appellants that, inasmuch as they allege in their bill a valid pre-emption right, which the demurrer admits, they are entitled to the exclusive privilege of keeping a public ferry from the shore of the river on which the land in question is situated.

The Statute does not so provide. Exclusive ferry rights are, in general, allowed only to those who own the land, or have possession of it by pre-emption right, or settlement, on both opposite banks of the river; and even such persons cannot be allowed a license to keep a public ferry unless the County Court shall be satisfied that the public convenience will be promoted thereby; and not even then, if within one mile above or below a ferry is already established, except at, or near cities or towns. {Digest chap. 69, sec. 2, 7, 20.) Where one owns the land, or has possession of it by pre-emption, on one side of the river only, he may, under the above restrictions, have the privilege of a public ferry from his own shore( with that of landing his boat and passengers on the opposite shore, and making the landing and road there, and keeping the same in repair.

But in the case before us, the appellants fail to allege with their pre-emption right, any such possession: on the contrary, they expressly allege, as to the lawful possession of the land, that Governor Pope entered upon it under the patent to him from the general Government; and that they, themselves, have been disseized, and remain so: and the possession of the land is a part of the specific relief, that they pray may be decreed to them, so as to enable them by its union with their alleged preemption, to apply for a license to keep a public ferry. •

In the absence of any allegations in the bill to the contrary, these appellees may be presumed to be in the possession of the bank of the river, to the extent of the fraction of land in question, as alleged, either in virtue of ownership, or of'a pre-emption right coupled with possession of the lands on the opposite bank of the river, and a license to keep a public ferry, from the proper Court, founded thereupon: or in virtue of the patent and alleged possession thereunder, obtained by Governor Pope, and regularly transmitted to them.

And in no view, does the bill present any case for relief. Because, in equity the rents and profits pertaining to the fractional quarter section of land, including any arising from lawful ferry privileges attached thereto, or isssuing thereout, belong to the lawful owner of the land; and according to the bill, that ownership is now in litigation between the appellants and the State of Arkansas, William E. Woodruff and others, who hold under an outstanding patent from the general government. And to allow these appellants to recover, according to their specific prayer, the possession of this land and the rents and profits sought, under such circumstances, would be not only to allow them to recover upon the weakness of their adversaries’ title, so far as this suit is concerned, but to recover moneys which the chancellor may ultimately find rightfully belonging to parties claiming under the patent, whom the appellants have not thought proper to make parties to this suit. The chancet-lor does not thus do things by halves, or grant relief to parties when it is uncertain, according to their own showing, whether or not they are entitled to it. If these points for relief are not already embraced in the appellants’ bill, now pending against those holding under the patent, for its cancellation, and other relief, the chancellor will, doubtless, hear them hereafter, should he determine, after full hearing, that the patent shall be canceled, or that the title obtained under it shall enure to the benefit of these appellants.

Finding no error in the record, the decree of the Court below will be affirmed.


text:
    Anthony et al. vs. Peay et al.
    The heir cannot maintain a suit, in equity or at law, for the unpaid purchase money of land sold by his deceased ancestor, though there may have been no administration on his estate. (Lemon’s heirs vs. Hector el al. 15 Ark. Rep. 436.)
    It is a fatal defect in a decree for the purchase money of land sold by a person since deceased and for which the purchaser has not received a deed, to require him to make full payment, while he is to receive title to the premises from less than the whole number of heirs of the deceased vendor.
    Where a party to a bill in equity avails himself of a legal defence, for the first time, in the appellate court, it is the usual course of equity practice to tax him with costs.
    A bill will not be dismissed “ without prejudice” where there is not much probability that the complainant could derive any benefit from further litigation*

      Appeal from the Circuit Court of Pulaski county in Chancery.

    The Hon. William H. Feild, Circuit Judge.
    Pike & Cummins for the appellants.
    Fowlee. for the appellees.
   Mr. Justice Scott

delivered the opinion of the court.

The original bill was filed by Samuel D. Blackburn, against all these parties as well as others. Upon the hearing it was dismissed, and no appeal was taken. It will be unnecessary, therefore, in the view we take of the case presented by the appeal before us, to state its purport. The cross bill constitutes the suit out of which all the questions presented to this Court arise.

. It was not an independent cross-bill, but the joint answer of the Peays to Blackburn’s original bill, containing special interrogatories touching numerous allegations against the appellants, James C. Anthony, the Bank of the State of Arkansas, William Field and other co-defendants in the original bill.

It set out that Juliet Peay was the only child and heir at law of Letitia Neill. That they were both dead. That the heirs of Juliet Peay were Gordon N. Peay and themselves,her children, and George N. Pope and Ann Neill Pope, her grand children. The mother of the latter, Mary G. (wife of William F.' Pope,) being dead. It may be also stated here, that Major Peay, the father of some of these heirs, and the grand-father of the others, was also dead; that during the progress of the cause, the two children of Mr. Pope died also, and that both of the suits were abated as to them, upon suggestion and proof of their death, but in neither was Wm. F. Pope made a party, either complainant or defendant. Gordon N. Peay released all interest that he might have in the controversy, to his brothers and sisters, and filed his disclaimer.

The complainants in the cross-bill then proceed to set out a great variety of matters at considerable length — the entire transcript sent up numbering near five hundred pages. But the point upon which the cause must inevitably be determined, can be presented by a brief general statement. Letitia Neill, the grand-mother of the Peays, complainants in the cross-bill, was the owner, in fee simple, of the lots upon which is the “ Anthony House” in the city of Little Rock. She borrowed from the State Bank, divers sums of money to expend in the erection of the buildings, and at different times executed two several mortgages upon the property to the Bank, with power of sale. Intervening in point of time between these two, she executed a third mortgage to McQuaid. Besides these mortgage liens, mechanic’s liens were also fixed upon the property. Mrs. Neill was also otherwise indebted; and finding herself much embarrassed before the completion of the buildings, she leased the property, thus encumbered, to James 0. Anthony for a term of five years, at the rate of two thousand dollars per annum to be paid by him quarterly, with a stipulation that he should complete the improvements and reimburse himself out of the fifth year’s rent. Her creditors seem not to have been satisfied to wait to be thus paid. Anthony failed to pay his first quarterly instalment of rent. Suit had been instituted by Brown, who held a lien alleged to be paramount to the mortgage lien of the Bank, and the property was levied upon and sold at his suit. The Bank also proceeded to sell under her mortgages. The proceedings of both are alleged to be irregular and invalid. During all this time, it is alleged that Anthony and his confederates were continually endeavoring to purchase the property; at the 'same time he delayed and finally refused outright to pay the rent due by him. finding no other mode of relief, she yielded to the solicitations of Anthony and his confederates, and sold him the property at the price of twenty thousand dollars — she covenanting to make to him title in fee simple with the usual covenants of warranty, and Anthony covenanting, simultaneously, to assume, and pay to the State Bank, the whole of her indebtedness, estimated at about nine thousand dollars; also her indebtedness to William Brown, estimated at three thousand, three hundred dollars; also her indebtedness to the estate of Ann L. Byrd, dec’d, estimated at seven hundred and eighty-nine dollars and seventy-six cents, and any other debts she might direct and require, not exceeding the whole of the put-chase money altogether — deducting, however, from the amount of the purchase money, in the first instance, the price of a tract of land, being $1,600, and the price of two negro men, being $2,000, and the price of certain horses, cattle and hogs, being $500, which Anthony covenanted to convey to, and deliver into the possession of Thomas ¥7. Newton, in trust, for Mrs. Juliet Peay during her life, and at her death to her children, share and share alike: and any residue of the purchase money not used in the payment of the debts specified, and to be specified, and not thus deducted therefrom, Anthony to pay to Newton, upon the same trusts, in equal instalments at 6, 12, 18 and 24 months, in Arkansas Bank notes, and secure the payment of the same by mortgage upon real estate.

Anthony being in possession under his Jease, retained it under this purchase, there being a further stipulation in the contract of purchase and sale, that, in the event of his failure to comply; the rent was to accrue, as under the lease; otherwise, it was to cease. A memorandum of debts to be paid by Anthony, seems to have been furnished him by Pope, as agent for Mrs. Neill, upon which appear, not only the debts above specified, but also a farther debt to McQuaid of $3,000, one to Woodruff of $226, one to L. N. Clark of $249 65, one to Simpson of $255 40, and one to Morrison & Sullivan of $400. The Brown debt being put down upon this memorandum in two items: First, the amount of his lien upon the property, $2,135 12; and, secondly, .his debt not secured by lien, $1,200.

It seems that Anthony, in a short time, having but partially complied with his covenant, became so embarrassed that he, in his turn, was also compelled to sell the property. Before doing so, however, he had assumed in the Bank the amount of Mrs. Neill’s indebtedness, and also an amount which extinguished Brown’s lien debt (on account of which, the Bank had bought the property, and by quit claim released it to Anthony upon his aforesaid assumpsit,) and other liabilities of Mrs. Neill, to an aggregate sum of over twelve thousand dollars.

He sold the property to Philip L. Anthony, and also sold him all his real and personal estate in Arkansas, except certain lands, horses, cattle and farming utensils, the land which he had agreed to secure in trust for Mrs. Peay, and one of the negroes. In consideration, Philip, with James Lawson, jr. as his security, bound himself to secure to him for his life, the use of certain negroes under a deed of trust made in Virginia, to pay his Bank debt, also certain debts due by him to the Real Estate Bank, and to exonerate him from all liabilities incurred by him in the State of Arkansas up to that period.

Afterwards, upon Mrs. Peay’s relinquishing, as weil as Mrs. Neill, all interest in one of the negro men, which he had agreed to convey in trust for Mrs. Peay and her children, he conveyed the other negro man and the tract of land, according to his covenant with Mrs. Neill. His pretence for requiring this relin-quisbment as to one of the negroes, was, that his several as-sumpsits of Mrs. Neill’s debts, the liens upon the property and his advances for her, added to the value of the land, and the one negro conveyed, were equal to the whole purchase money of the Anthony house property. It seems that the property in question was afterwards mortgaged to Mrs. Mary S. Anthony, and was afterwards conveyed in trust to Albert Pike, and ultimately fell into the hands of John Brown; but it will be unnecessary to pursue its history any further.

The cross bill, proceeding to allege that no administration had ever been had on either the estate of Mrs. Neill, or of Mrs. Peay, and that no debts existed against either, prayed answers, and an account, and that, after giving to J. 0. Anthony credit for all actually due him, including $1,600 for the land, and $1,000 for the negro, complainants might have a decree against him, P. L. Anthony and James Lawson, with enforcement of lien for the same on the premises, and sale thereof under decree for satisfaction.

It seems unnecessary to state all the answers to the cross-bill. Pike, Mary S. Anthony, Philip, and James C. Anthony and Field, all filed their answers. James C. Anthony, among other things, answers that on the 3d of September, 1843, he effected a final settlement with Mrs. Neill, and obtained her receipt in full satisfaction of his covenants on the purchase of the Anthony House property. And he exhibited with his answer such a receipt endorsed on the back of the original covenant, to which the name of Pope and wife appear as witnesses, and along with it, he exhibited a statement of various sums, which he had assumed and otherwise advanced for Mrs. Neill, on account of this purchase, and of rents for the property, amounting to the aggregate sum of $21,061. This receipt was assailed by the cross-bill as a forgery, and testimony was introduced for and against it. There was considerable other testimony taken as to other matters, which it will be unnecessary to set out.

The Court below, upon the whole case that was before it, dismissed the original bill, and denied Blackburn all relief; with which we have nothing to do, as already remarked — no appeal as to that having been taken: and upon the cross-bill decreed that the sales under the mortgages and under Brown’s judgment, were null and void, and canceled them, and the conveyances under them. And then decreed that the complainants had a lien upon the property for all of the $20,000 remaining unpaid, with interest, according to the contract of sale, adjudging that the evidence did not prove it to have been paid in full, and that the unpaid balance ought to be paid to the complainants, and if not paid within a reasonable time, the property ought to be sold for the payment of it. It was, therefore, referred to a special master to take an account of what was so still due to the complainants, as heirs and legal representatives of Juliet Peay and Letitia Neill, upon said contract of sale and purchase, in doing which he should be guided by said contract, and allow only such payments as had been made, under the stipulations, or by express directions of Mrs. Neill: and that this should be done according to the depositions already taken and on file, and not suppressed or declared incompetent: resorting to additional testimony, to be taken in writing, only to explain or elucidate facts already in part established by the pleadings and evidence: and that he allow to Anthony, without further proof, the several items of sugar, coffee, bacon, corn and other like articles of necessary family supplies, annexed to and exhibited with his answer, applying the several credits at their respective dates, and computing interest up to the first day of the succeeding term, when report was to be made. And it was further decreed, that upon the confirmation of the report, or of its modification and final adjustment, James C. Anthony should pay the ascertained balance, and upon his failure to do so, or the failure of the bank, Philip L. Anthony, Mary S. Anthony, or Albert Pike to do so for him, the property to be sold by the master, and the title of all the parties to be conveyed by him to the purchaser: And in case of payment without sale, then the complainants should execute to Anthony a deed in fee for the property, subject to the rights of the other defendants, who have purchased under him, or under the bank. And all the costs in the cross-suit were decreed against James C., Philip L. and Mary S. Anthony, the Bank and Pike, jointly — no decree having been entered as to Lawson, although the bill as to him had been before taken as confessed.

The master reported, allowing as credits, for the Bank debts $8,660, and interest $2,055 01: Brown’s debt, $1,200; McQuaid’s debt, $3,000; Walters’ (adm. of Byrd) judgment of $748 82; Woodruff’s judgment $230 65; Clark’s $240 16; Simpson’s $253 82. Land $1,600; negro, $1,000; bacon and family supplies, and one yoke of oxen, $152 74; in all — $19,580 55; and he made the balance, if payable in specie, $748 57; if in Arkansas bank paper, then its specie value, $561 43.

tie stated this account upon the testimony in the case, as passed upon by the Court, and indicated in the decree; no further testimony having been offered him. He excluded from the account, not only family supplies, but all other sums that appeared to have been payments on account of rents, or for repairs or improvements of the premises, considering 'all such matters as not embraced in the order of reference.

To this report the complainants excepted: first, as to the allowance of the McQuaid debt, $3,000: secondly, as to $748 82, amount of the Watkins debt; thirdly, as to $230 65, the Woodruff debt; fourthly, the Clark debt, $240 16; fifthly, the Simpson debt, $253 82, — upon the ground that, as to the Watkins debt, the evidence showed that only $454 50 had been actually paid, and as to the other three, that there was no evidence that they had ever been paid. The Court sustained these exceptions, and again referred the matter to the master, directing him to allow of these items only such sums as the evidence shows to have been actually paid by James C. Anthony, or other persons for him, under the stipulations of the contract of sale and purchase, or by express directions of Mrs. Neill or her agents. The residue of the report was confirmed, and the appellants appealed to this Court.

The principles, applicable as well in equity as at law, upon which the decree must be held erroneous, are declared in the case of Lemon's heirs vs. Rector et al., 15th Ark. Rep. 436. The recovery of the supposéd balance of purchase money ought to have been sought by an administration. These heirs were not entitled to recover it. Whether the Court below adjudged correctly, that a balance of the purchase money for the Anthony House, upon the sale and purchase by Mrs. Neill and J. C. Anthony, was still unpaid: and whether or not, the special master accurately ascertained this balance, we have not considered with any view to absolute determination — these questions being totally immaterial to that presented by the case; because, although this may be all so, these heirs are not to be allowed to recover such'balance, either at law or in equity, according to the doctrine of the case above cited.

The rights of heirs and distributees are subordinate to the rights of creditors of a deceased person: and the law intervenes between them an officer of its own, whose functions they have no warrant to usurp at will. Although these heirs, apparently proforma, aver in their cross-bill, that there are no debts or liabilities against either of the estates of Letitia Neill or Juliet Peay, the case made by them distinctly shows that this is not true. On the contrary, their exceptions to the master’s report, which the Court sustained, proceed, openly, upon the ground that there are debts against the estate of Letitia Neill, which have never been paid.

Thus, not content with the master’s report, which exhibited a balance, which they might have been ultimately entitled to, after the satisfaction of creditors — -including of course, and subject to any deduction therefrom, necessary to liquidate any balance due J. C. Anthony on account of overpayments by him of the rent, which, the master reports, was excluded from his comr putation — they sought by these exceptions to recover moneys to which they had not the slightest claim, either at law or in equity, because in equity belonging to these creditors, whose rights were paramount to theirs.

If Courts of equity could permit such parties to usurp the functions of administrators, they could, consistently with the principles upon which they proceed, do so only upon the condition that the fund should be brought into Court, and then, under its immediate supervision and sanction, administered according to the administration law of the land.

And besides this insuperable objection to the decree, there are several other minor ones equally fatal to it, that are obvious. Its effect is to require a full payment of the purchase money by Anthony, while he and those under him are to receive title to the premises, with an exoneration from the mortgage lien upon it as declared by the Court, from less than the whole number of heirs, who have such lien, if the decree stands: because Wm. F. Pope is not included among those required to convey to Anthony, and he, by law, takes from his deceased children not only their interest in the purchase money, but also the security for it. It disregarded J. 0. Anthony’s clear legal right to set off any claim of his for overpayment on account of rents, by way of advancements and improvements upon the premises, against Mrs. Neill or these heirs claiming under her. Although it might be conceded, as claimed by these complainants, that these charges of Maj. Anthony for improvements, were, by the . terms of the lease, to be deducted out of the fifth years rent, yet it •would not follow that, because the lease was afterwards abrogated by the sale, he was not to be paid at all.

Why the Court below should have allowed the master to take into,his computation bacon, sugar, coffee, and other family supplies,, and forbid him as to other advances, and for the expenditures for improvements upon the premises, we have not been enabled to divine.

As against creditors of Mrs. Neill, these complainants are but donees, and yet this decree, in effect — upon a bill, to which some of them are not even made defendants, and when no executor or administrator is made a defendant to protect the rights of creditors: — so perverts the law, as to make the rights of these donees paramount and prior to those of creditors.

The decree, as well as other portions of the proceedings, is open to other observations and just criticism: but it seems unnecessary to pursue the matter further, as the case must go off, as we have said, upon the doctrines of the case above cited.

But as these doctrines were not invoked by the appellants, until since the case has come into this court, it seems an equitable ground upon which to withhold costs from them. They ought, at least, to have raised this question at the hearing below, in order to have exonerated themselves from a liability to be taxed with costs upon a reversal here for such a cause, according to the usual course of equity practice. Epps v. Van Denson 4 Paige R. 76, and cases there cited. Hitchcock v. Scribner, 3 Johns. Cases 321. Clark v. Long, 4 Randolph R. 452. Shepherd's Exr. v. Stark, 3 Munf. R. 29. Richardson's Exr.v. Hunt, 2 Ib. 148. Whiting v. U. S. Bank, 13 Peter's R. 14. Harding v. Hardy, 11 Wheaton R. 104.

We shall accordingly reverse the decree and dismiss the cross-bill, at the costs of the appellants, both in this Court and the Court below. And although, within our discretion, we might direct this dismissal to be without prejudice to any rights of these complainants, as heirs of Mrs. Neill and Mrs. Peay, against the defendants in the cross-bill; yet from the pleadings and evidence in the cause, which we have looked through, there is so much reason for believing that further litigation would only subject them to useless and unnecessary expense, from which there is not much probability they could derive any benefit, that this course would seem but encouragement to fruitless litigation. Of course creditors of Mrs. Neill, or any administrator upon her estate, cannot be affected in any way b,y this dismissal.

English C. J., not sitting in this case.


author: Mr. Justice Hanly

text:
    McCarron vs. Cassidy.
    The true doctrine and rule, as to the competency of the vendor or grantor to give evidence in a controversy affecting the property conveyed, are, that the warrantor of property, whether real or personal, is, in general, incompetent as a witness for his vendee or grantee, in an action concerning the title to such property (Arnold et al. vs. McNeill, 17 Ark )

    The testimony of a co-defendant in a chancery cause, may be taken under special leave and order of Court for that purpose (Pryor el al. vs. Ryburn, 16 Ark. 692.)
    An objection to the competency of a witness will not be allowed if taken, for the first time, in this Court on appeal — such objection should be made at the hearing in the Court below.
    Parol testimony is admissible to prove that a deed, absolute on its face, was intended as a mortgage, and as a security for'a loan or debt, (2 Eng. 505; 1 Ark. 119.)
    A mortgagee in possession, without special -authority, will only be allowed for such improvements as are absolutely necessary for the support of the property, and to keep it from waste and damage.

      Appeal from the Circuit Court of Sebastian county in Chancery.

    The Hon. Felix J. Batson,- Circuit Judge.
    Fowler for the appellant.
    Ben. T. Dbval and YvTlliam Walker for appellee.
    That parol testimony is admissible to show that a deed, absolute upon its face, was intended as a mortgage, is no longer an open question. 4 John. Gh. Rep., 167; 4 Kent 141, A. seq.; 3 Dana. 27G; 1 Hozo. 8. C. 11., 118; Russell vs. Southard et al. 12 Hoiv. 189; 4 Blackf., 539; American Notes to Thornbrough vs. Baker, and Howard vs. Harris, Pt. 2d, vol. 2, Lead, cases in equity, 432, et seq.; Blackmore vs. Burnside, 2 Eng. 505; Johnson Esq. vs. Clark, 5 Ark.; Scott, White & Co. vs. Cunningham, 13 Ark.

      Whenever it is made to appear, by any means of proof, that a deed was intended as a security for a debt due by the grantor, payment of the debt will entitle the debtor to a conveyance of the estate. Morris vs. Ninon, \,Iiovj. 118; Taylor vs. Luther, 2 Sumn., 228; Roach vs. Cosine, 9 Wend. 227; Walton vs. Crowley, 14 Wend. 63; Stee vs. The Manhattan Co., 1 Paige 48.
    A mortgagee must account for rents and profits of the mortgaged estate, from the time he takes possession. Smai-t vs. Hunt, 1 Yermont 418; Wheelock vs. Robey, 15 Sim. 265.
    A mortgagee will be allowed for such repairs as are necessary for the support of the property; but not for improvements made to increase the value of the property, without the consent of the mortgagor. Saudon vs. Hooper, 6 Bean 246; Nusom vs. Clarkson, 4 Hare 97; Moore vs. Caber, 1 J. C. R. 385; 1 Hoffman R. 352.
    A party against whom no decree can be taken, is a competent witness and his testimony can be taken by order of Court. Spai’ks’interest; if any, was balanced. Vide Cowan & Hill’s Phil. J0v.,.note 77.
   Mr. Justice Hanly

delivered the opinion of the Court.

This was a bill filed by the appellee, against the appellant and one Mitchell Sparks, in the Sebastian Circuit Court, on the 17th October, 1851, alleging, as far as it is material to notice, that on the 2d January, 1847, he was seized and possessed oí two certain lots in the town of Fort Smith, on which was a large two story brick house, and other buildings and valuable improvements: and being embarrassed with debts, he applied to the defendant Sparks, to advance .to him enough money to pay offhis debts, and to defray his expenses to Texas, whither he was about to leave, and offered him the lots and premises as a security for such proposed advances, to which Sparks consented; and it was thereupon agreed that Sparks should pay off such indebtedness, estimated at about $1,500, and advance enough more to bear his expenses to Texas, and that the appellee should convey the lots and premises to Sparks, in fee, with the express understanding that appellee might redeem them, within three years next thereafter, by repayment of the amount to be advanced with ten per cent, interest, in which event, by the ■ same understanding, Sparks was to reconvey the lots and premises to appellee, in fee; but if he should fail to redeem within the specified time, that Sparks should sell the lots and premises, at public auction, and reimburse himself, and the residue, if any, to pay over to appellee; that in pursuance of this agreement and understanding appellee executed and delivered an absolute deed in fee simple, to defendant Sparks, bearing date as above, 2d January, 1847, which was duly acknowledged and afterwards properly recorded; that after this had been done, appellee and Sparks disagreed as to the amount to be advanced for the expenses to Texas; and then, appellee applied to the appellant to make such advances and offered him the lots and premises as a security therefor, and appellant agreed that he would assume and pay all appellee’s debts, and advance money for his expenses to Texas, if Sparks would convey to him the lots in fee, with the express understanding between the appellant and appellee, that the lots so to be conveyed should remain subject to redemption by appellee, on repayment of such advances to be made, and that whenever appellee should refund the same, with ten per cent, interest, appellant was to reconvey the lots, in fee, to appellee; that in pursuance of such agreement and understanding, Sparks, 'by deed of the 5th January, 1847, conveyed the lots and premises, in fee, to appellant, and that the deed therefor was duly acknowledged and recorded. The bill further charges that the complainant therein, appellee, did not remember all the debts that appellant was to pay for him, but that they were mentioned at the time, and did not exceed $1,500: that among them was one of $651 12 cents, including interest, due to Sparks & Miller, co-partners, the payment of which was secured to them by mortgage on the same lots; that among the debts to be paid by the appellant, under the agreement as before stated, was one of $200, due Rogers, for which Sparks was responsible as guarantor; that there was another of $30, due to appellant, etc. — that appellant had paid the debt of $200 to Rogers — advanced $75 for expenses to Texas. The bill farther charges that the appellant added the two sums of $75 and $30, advanced and due as above, and required appellee to give his note for the aggregate amount thereof, which was done at the sa.me time that Sparks executed and delivered the deed to him for the lots and premises, as before stated. It is further charged in the bill, that appellant agreed with appellee, at the time, and before the conveyance from Sparks to him was made, that he would rent out the houses and premises conveyed, on the best possible terms, and apply the proceeds to the extinguishment of such indebtedness to be incurred by appellee on account of the advances to be made for him by appellant; that notwithstanding this agreement on his part, lie had entered into the possession of the lots and premises, immediately after the conveyance to him, and that they had remained in his possession ever since, he enjoying the rents and profits thereof. Ajapellee further charges that, being desirous to redeem the lots and premises from appellant under the agreement, as above, he had requested him to state an account of the amount of the moneys advanced for him, and the rents and profits of the houses and lots, and offered to pay him the balance that might be due, when it should be ascertained and determined and demanded possession of the lots and premises, which appellant did and would not acceed to. There are special interrogatories propounded in the bill to the appellant, among them the appellant is required to discover the true consideration of said deed, what was the real meaning, agreement and intention of the parties to said deed, at the time it was executed, what was the real consideration between Sparks and appellant, and whether or not it was not the intention that appellee might redeem, and whether the deed from Sparks to appellant was not intended as a mortgage, etc. There was a prayer for an account of money paid, rents, etc., and for payment, redemption, possession, etc.

Sparks answered, admitting the whole bill to be substantially true.

Appellant answered, admitting the title originally in appellee, and bis embarrassment with debts; but positively denies, upon information of appellee himself, that any such agreement was entered into with Sparks, as is set up in the bill, and states, upon the same authority, that the sale and conveyance to Sparks were absolute, and the consideration was, that appellant was to. pay off appellee’s debts, amounting to $2,500, and by a subse-' quent agreement betweem them, made on the 5th January, 1847, Sparks conveyed the lot's to appellant, absolutely, by deed of general warrantee, in consideration of §2,200, the then supposed indebtedness of appellee, to be paid by appellant, and denies positively that he made such advances, and took the conveyance as a security for the repayment, and states that appellant paid appellee’s debts, specifying them, to the amount of $2,406 15 cents, and denies that any part of the consideration of the purchase, was an advance to enable appellee to reach Texas. Admits that after the purchase and sale of the lots were completed, he loaned appellee a small sum to bear his expenses, for which, added to another small debt, appellee gave him his note, in amount $222 91, which he then held. Appellant denies, positively, that he held the lots subject to redemption, or that they were to be reconveyed on the advance made by him being refunded with interest at ten per cent, thereon. He admits, however, that, outside of the contract, he told ap-pellee that if he would repay the money, with ten per cent, interest, and pay him for the amount expended for improvements on said lots, placed there by himself, and ten per cent, interest on that amount from the time of its expenditure, that he would re-sell to him the lots, and avers a readiness and willingness to do so still. The answer of appellant further states, that $1,500 was as much as the lots were worth when he purchased them: that he only agreed to give so large a sum for them to save a part of the debt due to him from appellee. Denies that ho ever agreed to rent out the premises, and charges that, after the purchase made by him, be added improvements and erected buildings on the lots, to the value of about $5,000, and in the event of the conveyance being declared a mortgage, claims to be reimbursed therefor, as well as for the purchase money paid, with interest on each at ten per cent, per annum from the time of their respective advances, and also payment of the said note for $222 91, which he charges to be still due: admits that appellee applied to redeem the lots and premises, and tendered, or offered to pay him $2,000, which he refused, and he denied all fraud, etc.

The deed from appellee to Sparks is exhibited with the original bill, and purports to have been duly and properly acknowledged and recorded, and is an unconditional deed, in fee simple.

A general replication was filed to the answer of appellant, and a motion was at the same time interposed by the appellee, for leave to examine the defendant, Sparks, as a witness in his behalf, which leave was granted. The appellant, after the depositions of the defendant, Sparks, and several others, had been published, moved the Court to suppress such depositions. Afterwards, an amended bill was filed by the appellse, which was answered and replied to, and by consent the cause was set for hearing on bill, answers, etc., “ and on exhibits and depositions, as between complainant and defendant, McCarron,” with leave to take depositions. There apears to have been Ho action on the part of the Court, upon the motion of appellant to suppress the depositions of Sparks and others; but from all that appears in the transcript, that motion was either abandoned or waived by the party who made it.

The amended bill states, in substance, that when Sparks conveyed to appellant, tbe premises were worth $5,000, and at least five times the amount of tbe debts assumed by appellant for appellee; that at the time of the conveyance by appellee to Sparks, appellee was keeping a tavern and coffee-house in the brick building upon tbe lots in question, and had furniture, etc., therein, to the value of $1,000, all belonging to him; which, it was agreed between appellant and appellee, that the former should take and sell, and apply the proceeds to pay the debts of the latter, which it is averred he did not do, but entered on the premiaos, and carried on the same business, and used the furniture, and has never accounted for it at all. The amended bill further charges, that when the appellee made the foregoing arrangements, his mind was impaired by drink to such an extent, that ho had delirium tremens, his health greatly impaired, and that no one supposed he would ever return from Texas; that he was totally incompetent to attend to his business; that appellant often expressed his belief that he would never live to return, and that he should, in that event, hold the premises, absolutely; that during the greater part of the time that appellant has had the premises, he has rented them out and received as rent per annum, from $800 to $1,500; that he, appellee, and appellant and Sparks were old friends, particularly appellant and appellee: — that appellant persuaded him, appellee, to go to Texas, and gave as a reason for taking an absolute deed for the lots and premises, that it would be necessary to enable him to sell them, if it should be thought advisable or necessary for him to do so; that appellant has sued on the note for $222 91, obtained judgment against appellee and certain garnishees therein, and has collected the whole amount from such garnishees, as appears of record; that appellant has, since the execution of the deed, written several letters to him, appellee, expressing his willingness to reconvey the lots and premises, and that he, appellee, left Fort Smith immediately after the deed to appellant was made, and did not return until about the time of filing his bill.

The answer of appellant to the amended bill, denies that the premises were worth $5,000; says that they would not have sold, to any one but himself, for more than $1,500; that appel-lee had endeavored to sell them, to different persons for less than the price appellant gave him; says it is false, that when Sparks conveyed to him, appellant, appellee was keeping a tavern and coffee-house in the building; but avers that appel-lee had sold the premises to Sparks, and had left for Texas two days before he, appellant, bought the premises, and received the conveyance of the same from Sparks; that, after appellee had left, he, appellant, learned that he had sold out and gone, without making any provision for paying his notes to appellant, amounting to $1,005 60, and thereupon, he went after him, induced him to return to Fort Smith, and then the conveyance from Sparks to him, appellant, was made, and that he immediately gave up to appellee his notes, amounting to $1,005 60, as a part of the consideration for the deed from Sparks. It denies that appellant received, or agreed to sell any furniture whatever, and it denies, moreover, every charge in the amended bill in regard to the health of mind or body of appellee being impaired, and his incompetency to transact business. It also denies that appellant expressed the opinion that appellee would not live to return, and that he had rented the premises for from $800 to $1,500 per annum, but admits that he rented out part of them, at times, for small amounts, and avers that the house could not have been rented, one year with another, for more than $30 per month: denies that he and appellee were bosom friends, or that the latter consulted him about his business, or that he induced him to go to Texas: denies giving the reason alleged for making the deed, absolute on its face: admits col- ■ lecting the amount of appellee’s note for $222 91: denies writing letters to appellee, expressing his willingness to reconvey' the property, but admits he may have written to him that he would re-sell the property, if he would pay all advances, improvements, etc. etc., and avers that appellee was frequently at the house prior to October 17th, 1851, and knew and approved of the improvements that were making thereon.

Upon the hearing, the Court found the facts to be as stated in the bill and amendment, and that the deed to appellant was a mortgage, and appellee entitled to redeem, by repayment of the amounts advanced, with interest at ten per cent.: and on taking an account, the Court found the amount due appellant for advances and interest, to be $1,500 09, and the rents and profits to amount to $2,745, and that the difference, $1,244 91, was due from appellant to appellee, and so decreed a recon-veyance and payment of such balance.

The testimony, upon which the decree is predicated, is, in substance, as follows:

The defendant Sparks was positive that the transaction between himself and appellee, was a mortgage: that he was to pay appellee’s debts, amounting to $1,329 61, and advance him money to go to Texas, rent out the property, and repay himself, and if appellee did not redeem the property in three years, he was to sell it, pay the debts, and the residue pay over to appel-lee. He was as equally positive, that appellant sought to have the same arrangement made with himself, in the place of him, Sparks: that appellee agreed to this because appellant would advance to him more money to go away with, and a longer time to redeem in; that when the deed was made, appellant promised to take good care of the property, to rent it out to the best advantage, and when appellee should refund him the money with ten per cent, interest, he should have the property, even if it were ten years afterwards: that the consideration expressed in the deed from himself to appellant, was nominal, and no money really passed when the deed was made, and that the consideration expressed in the deed to him, Sparks, was the estimated amount of all appellee’s debts.

Samuel B. Stephens, sheriff of Sebastian county, testified that, in October, 1851, appellant told him that he had a deed for the property, but that he had said to appellee if he would pay the amount he had expended with ten per cent interest, he could have the property; but that, at the time he said this, he did not expect the d — d fellow would ever come back, orbe seen again. Appellee had been absent from Fort Smith for five or six years, until a few days before this suit was commenced.

Mias Rector proved that, in October, 1851, appellee offered to pay appellant, $2,200 or $2,300 in gold, as the money due him with interest. Appellant said, that all he wanted was what the property had cost him, and that he had built a fine house with other improvements cheaper than appellee could himself have done, — saying, “ pay me for them and take them: I am anxious to get rid of them and get my money for them.”

Gustavus A. Meyer testified, that the property was worth $5,000, on the 1st January, 1847, and would have rented after-wards at $600 a year.

C, B. Johnson and R. M. Johnson testified to about the same facts deposed to by Meyer.

Willard Ayres testified, that soon after appellee went to Texas, appellant said that he had his property, and when he returned, and paid him back his money paid out for him, he would get his property back.

S. H. Montgomery proved that appellant had, a year or two before, asked $1,250 rent per annum for the propert}-.

John J. Johnson testified, that, a short time after appellee left for Texas, appellant said that he had loaned him money to go off on, and was to pay debts for him, not mentioning what debts; and that whenever appellee returned and paid back his money, the property was to be his; that the property, when appellant ook it, was worth from $4,000 to $5,000; that it had been the general understanding in Fort Smith, that the property was subject to be redeemed by appellee; that he, appellee, was intimate with appellant, was embarrassed and dissipated, and more undér the influence of Sparks and appellant than any body else — they being his confidential advisers.

William M. Domrell testified that in November, 1851, he applied to appellant to rent the . premises, offering $800 a year, but appellant would not take less than $1,200: this was forthe building erected by appellee and the ten-pin alley erected by appellant, the latter of which cost some $75 to $100.

William H. Norton testified as to renting part of the property, saying that in 1851 and 1852, the original premises would have rented for $350 to $400 per annum. The improvements made by appellant were an addition at the east end of the main building, two brick shed-rooms in the rear of the main building, with a hall between from 4 to 6 feet wide, a nine-pin alley, an addition to the old kitchen, a frame smoke-house, a ware-house and a privy.

John Gardner, a brick mason, estimated the improvements in brick and stone, made by appellant, to be worth $876. It was measured, and so estimated by himself, and E. Herring, who testified to the same.

Thomas Vernon, a carpenter, had measured and estimated all the wood work, including locks and all hard-ware used, and valued all at $1,400: and the whole premises, as they stood then, in July, 1854, to be worth $5,000.

Dennis Trammell proved that appellee was dissipated and addicted to hard drink: that he and appellant were as intimate as brothers: that appellee was a spend-thrift and prodigal, and appellant prudent and saving, and a shrewd business man. In 1848, appellant sent appellee’s note to Texas, by this witness, for collection: appellee refused to pay it, saying, appellant held all his property in Fort Smith. On his (witness) return, he gave back the note to appellant, who became very angry, and said, he wished appellee would come back and pay him his money and take his property. He said, also, that he had put a great deal more improvements on the property, than he had agreed to do: that he was only to have finished the kitchen, and a few other little jobs. Witness told him he might lose the premises. Appellant said appellee would never have money enough to pay him. He showed witness his bills for improvements; which amounted to a considerable sum. Appellee’s furniture was in the house, when appellant took possession, and he saw part of it, afterwards, in appellant’s, possession.

George S. Bernie said that appellee built, in 1845, on the lots, a two story brick house, a one story frame house, a small stable, and a small kitchen, and also dug a well. He kept a tavern and coffee-house there until he removed to Texas, in 1847. He was an imprudent man; and addicted to hard drink; he and appellant were very intimate, and he was under the influence of appellant, who seemed to be his confidential adviser. He was embarrassed when he went to Texas. Thinks the property was worth, in January, 1847, from three to three thousand five hundred dollers, and would have rented in 1847, and thence to 1850, both years inclusive, for from $300 to $350 per annum— in 1851 and 1852, for from $400 to $500. Rents have declined about 50 per cent, in Fort Smith since 1852. Appellee did not return from Texas until tbe fall of the year 1851. Soon after appellee left, and owing witness a sum of money, he, witness, called on appellant to pay it, and he refused, and appellee paid it after his return. It was over $ 100. The premises would have sold in 1847 for about $3,000 in cash. That w$s their cash value. He describes the improvements of appellant, and says that, without them, the property would have rented in 1847 for $300 to $350, and in 1853 for about the same amount; in January, 1854, for from $275 to $300: would have sold in 1851 for $4,000 to $5,000; or with|all the appellant’s improvements, for from $6,000 to $7,000.

Asa Clark testified to about the same effect as the last witness, and also, that after appellee left'for Texas, appellant still had all the bar furniture in the bar, and continued to keep and use it.

Albert Dunlap rented two rooms on the ground floor of the house in question, in 1853, at $15 per month, and afterwards, occupied the frame building at $100 per annum: says that J. W. Vandever rented the frame building in 1850, at $10 per month, for two months. John N. Slosson rented it in 1852, at $12 per month. John H. Lane rented three rooms and the alley at $30 per month, in 1852. John King testified that in 1852, a literary society rented one room up stairs at $10 per month.

John W. McDonald testified that, in 1853, appellant asked $650 per annum for the brick house, kitchen and stable, he, witness, occupying two rooms in the addition and the one story frame house.

Tapley C. Belling, Benj. F. Doole and Joseph M. Halt, for the defendant, measured and estimated the carpenter’s work and materials, without adding up the items, or stating the aggregate amount. William L. Hundfield valued the painting alone at $600.

John H. T. Main, on the same side, testified that in the fall of 1846, appellee offered him the property for $1,500: seemed anxious to sell; said he was in debt, and wished to sell to pay his debts, and leave the country. There was no demand for property in Fort Smith then. It had no real cash value. Does not think any body else would have given as much for the property as appellant did. Appellee was a hard drinker, but his mind was not impaired. Never saw him drunk or staggering. When appellee offered to sell to witness, he said he wanted to sell for enough to pay his debts, and have one or two hundred dollars left to take him away.

Joseph Benneib thought the property worth, in January, 1847, about $2,000. Property in Fort Smith was then very low.

Michael Manning thinks that when appellant got the property, it would not have rented for more than $10 per month. There was no demand for real property in Fort Smith, and it had no value. He does not think any one would have given more than from $1,200 to $1,500 for the property. Thinks the improvements made by appellee cost from $1,500 to $1,700. When appellee left the county, the lots would have been a dull sale at any price. Appellant and appellee were both Irishmen, and as intimate as brothers.

John P. Smith, a tinner, states the value of the work done for appellant at $108 62.

John Kirchherr thinks the painting worth $600, including glazing and papering.

John II. T. Main thinks the property was worth, in January, 1857, about $2,000 , though it would not have sold for that, as property was low. The lots without improvements were worth about $400.

The appellant took a bill of exceptions to the decision of the Court, allowing parol testimony to be used to prove that the deed, though absolute on its face, was meant as a mortgage.

The appellant complains, in this Court, of the entire decree, as being unjust in every particular, and, with great earnestness, 'insists that it is unwarranted under the law and the evidence.

Before proceeding to determine the main question involved, we will notice and dispose of two incidental questions, to which our attention has been called by the counsel for the appellant: that is to say, 1st. Was the defendant, Sparks, a competent witness'for the appellee, under the circumstances shown from the case as stated? and secondly, may a deed absolute on its face be shown, by parol proof, to be a mortgage, or security for a loan.

1- The point involved in this question, is one of interest, and not without difficulty and embarassment. Of interest, for the reason that it may be regarded as one of novelty, it never having been passed upon in this State, to the extent to which it is involved in the case under consideration, and of embarrassment, for the reason that there seems to be a conflict and diversity in the adjudications to which we have been referred, and which have fallen under our notice in the course of our researches upon the subject. It is insisted, by the counsel for the appellant, that the deposition of Sparks should have been excluded, upon the principle that no man should be heard, as a witness or otherwise, to impeach or invalidate his own deed, or his own title, after he has made a conveyance to a third person; and diverse authorities and adjudications are invoked in support of this position, which we have carefully examined and considered, and which we do not find to sustain the position contended for, to the extent that counsel would have us to apply it in this case. In Arnold vs. McNeill, determined atthe last January term, this Court, by English Ch. J., say: "It had been held, at one time, in England that no party, who has signed a deed, shall ever be permitted to give testimony to invalidate the instrument which he has so signed. But this doctrine was overruled there, and our decisions favor the competency of the witness,” citing Tucker vs. Wilamowicz, 3 Eng. R. 157, and cases there cited; Caldwell Exr. vs. McVicar, 7 Eng. R. 750; Knight vs. Packard, 3 McCord's R. 71; 1 Serg. & Rawle Rep. 102; 2 Binn. 165.

The true doctrine and rule on the subject maybe thus stated. The warrantor of property, whether real or personal, which is in controversy, is, in general, incompetent as a witness for his vendee or grantee, in an action concerning the title to such property. See 1 Greenl. Ev. sec. 397, p. 505. Searle vt. Searle 2 Rolle Abr. 685. 21 Vin. Abr, tit. trial. G. Pl. 1. Steers vs. Carwidine 8 C. & P. 570.

The rule, as insisted upon by the counsel for the appellant, is the one laid down by Loud Mansfield in Walter vs. Shelley, 1 T. R. 296; which was first doubted in Rent vs. Barker, 3 T. R. 27, and, afterwards, in Jordane vs. Lashbrooke, 7 T, R. 601, was directly attacked, and completely overthrown, though defended with much zeal and no little feeling by Mr. Justice Asiiuust. The question has been put completely at rest in this State, by the authority of the cases already quoted. In the case at bar, the witness, Sparks, was proposed by the appellee, who did not stand in the relation to him of vendee or grantee in respect to the property in controversy in this suit, so as to bring him within the letter, or spirit of the rule, which we have stated. His interest, if he had any in the suit, was certainly hostile to that of the appellee, and coincided with that of the appellant, against whom he was offered as a witness. The appellant cannot be heard to complain on account of the testimony of one whose interest may be supposed to bias and warp his leaning in his favor. If the appellee is satisfied to trust to his honesty, candor and truthfulness, we know of no one, under the circumstances, entitled to complain. See 1 Greenleaf's Evidence, ubi. sup.; Gresley's Eq. Ev. 249.

We have been considering the question at hand, as if it had been really and properly presented for our determination, in the case before us. But such is not the case. It will be observed from the statement, which we have given, that the deposition of Sparks was taken under special leave and order of the Court below, and in strict conformity to the rule laid down in Pryor et al. vs. Ryburn, 16 Ark. R. 692, and the authorities there cited in support of that rule. If Sparks had, really and in truth, been incompetent, for the reasons and causes assigned by the counsel in the argument of the cause in this Court, the proper time to have objected to his deposition on that account, would have been at the hearing of the cause in the Court below. See again Pryor et al. vs. Ryburn, as above. But on inspection of the transcript, we find no such objection urged by the counsel for the appellant in the Court below, at any stage of the proceedings. It is true that a motion was made to suppress the deposition of Sparks, but this matter seems to have been abandoned or waived, and appears never to have been acted on by the Court. To allow an objection to the competency of a witness in this Court; for the first time, would be, virtually, to assume for this Court original jurisdiction of the question of competency. We therefore hold in this case, that, notwithstanding we have considered the competency of Spark’s testimony, that question does not legitimately arise in this cause, for the reason that objections, on that account, were not made in, and passed upon by the Court below, at any time during the progress of the cause through that Court.

2. As to this question, we think there can be no doubt. That parol testimony is admissible to prove that a deed, absolute on its face, was intended as a mortgage, and as a security for a loan or debt, is no longer an open question in this State. See Blakemore vs. Byrnside, 2 Eng. R. 505; Johnson Exr., vs. Clark, 5 Ark. R. 321; Scott, White & Co. vs Henry & Cunningham, 13 Ark. R. 119.

And it may be said that such is the law, as held in most of the States of this Union, as well as the highest Courts of Great Britain. 4 Kent's Com. 141, et seqr.; 1 J. Ch. R. 167; 3 Dana R. 276; 1 How. U. S. R. 118; 12 Ib. 189; 4 Blackf. 539; part 2 vol. 2. Leading cases in Equity 432 et seqr.; 2 Atkins 90, 258; 3 Ib. 389; 1 Powell on Mort. 286.

Having disposed of the- foregoing questions, we wall at once proceed to the main enquiry, that is to say, is the decree rendered by the Court below warranted by the pleadings and proof considered at the hearing.

By reference to the statement, we think there can be no doubt but that the deed from Sparks to the appellant was intended to be a security, in the hands of the latter, for the advances in cash that he undertook to make for the appellee. It is equally clear, also, that the terms, on which the deed was made by Sparks to the appellant, were, that the latter was to have paid certain debts, amounting, principal and interest, to less than $1,509, for the appellee, and in addition thereto, loan him a sufficient amount to defray his expenses from Fort Smith to Texas: that appellant was to take and hold possession of the lots and premises, from the time the arrangement was made, until such, time as the appellee should repay to appellant the amount to be advanced by him as above, with interest on said sum at ten per cent, per annum; that the lots and premises, in the hands of appellant, were to have been leased out by appellant, and the income therefrom arising, applied to the discharge of the appellee’s indebtedness to be incurred as above, and that appellant should not appropriate more of the income arising from rents, than the sum of $40 to the improvement and repairs of the premises in question. We say that these facts appear from the pleading and proof in the cause, as we have above stated. We shall not attempt an analysis of each, nor enter into an extended argument with the aim of establishing the correctness of our conclusions in respect to them.

Holding, as we do, that the deed, from appellee to Sparks, was without consideration, and that the one from Sparks to the appellant was executed at the instance of appellee, on the terms and conditions which we have just stated, which, in law, constitute it, to all intents, a mortgage, and in the hands of the appellant, a security for the sums actually paid by him for, and loaned to the appellee, we will now proceed to determine, from the pleading and evidence in the cause, whether those advances have been liquidated by the appellee; and if so, it will follow as a necessary consequence, that he is entitled to redeem the premises, and have the mortgage canceled.

Looking at the original bill, the answer and proof, we think it may be fairly concluded that, on the 18th July, 1854, when the hearing was had in the Court below, the appellant had paid debts for, and had advanced money to appellee, on account of the mortgage security, to the aggregate amount of $992 12. It does not appear, however, from any medium of evidence, when these payments were made; but, conceding that it was done at the date of the deed from Sparks to appellant, 5th January, 1847, he was entitled to interest on this amount from that time to the date of the hearing, 18th January, 1854, at the rate of ten per centum per annum. The interest on the advances and loan, from the time assumed as above to the date of decree, amounts to the sum of $617 47, which, added to the principal, $992 12, constitutes the aggregate amount of the indebtedness of the appellee to the appellant, at the time the decree was rendered, the sum of $1609 59.

' The evidence in reference to the value of the rents and profits of the lots and premises in question, is exceedingly conflicting, so much so, that we have had much difficulty in coming to a conclusion on the subject. Taking the evidence adduced at the hearing, in connection with the concessions of counsel made in their argument, we have fixed the annual rents ol the premises in controversy at $400, which, computed from 5th January, 1847, to the date of the decree rendered by the Court below, a period of a little over seven years, will make the aggregate value of the rents, within that period, $2,800. Deducting the amount of advances made for, and the loan to the appellee by the appellant, will leave the amount of $1,190 41, without taking into the estimate the sum of $40, which the proof conclusively shows was paid out by the appellant for repairs and improvement of the premises, under the contract as established in this cause. Interest added on this amount for seven years, on the hypothesis that it was paid as soon as the mortgagee went into possession, will make the amount to be deducted from the decree on this account of principal and interest $68 00. Deducting the amount of $1,190 41, the difference between the sums advanced for, and loaned to the appellee, by appellant, and the accrued interest thereon, from the amount of $1,244 91, decreed by the Court to be paid by the appellant to the appellee, and we have the sum of $54 50, which, added to the value of the improvements and interest as above, makes the sum of $122 50, as the amount the decree rendered by the Court below, exceeds the true amount due by the appellant to the appellee, under the law and evidence in this cause. The decree for the appellee should have been for $1,122 41, instead of $1,244 91.

In making this estimate we have not taken into the account the interest, which might be supposed to accrue on the yearly rents of the premises. This we have not done for the reason that the appellee did not make the claim, in his bill or amendment, and because the evidence does not show that there was any*agreement as to interest on this account. Interest does nttt, ordinarily, accrue on such demands.

In the estimate we have made, nothing has been allowed to the appellant for improvements placed on the lots, beyond the $40 authorized to be made, for the reason that a mortgagee in possession, without special authority, will only be allowed for such improvements as are absolutely necessary for the support of the property, and to keep it from waste and damage. See Sandon vs. Hooper, 6 Bea. 246; Nusom vs. Clarkson, 4 Hare, 97; Story’s Equity, sec. 1016 V.; Moore vs. Caber, 1 John. Ch. R. 385; 1 Hoffman’s Ch. R. 352.

In Sandon vs. Hooper, Loud Langdale concluded by saying: “ The mortgagee has no right to make it more expensive for the mortgagor to redeem, than may be required for the purpose of keeping the property in a proper state of repairs, and for protecting the title to the property.” Having, previously, in the same case, said: “ He has no right to lay out money in what he calls increasing the value of the property, which may be done in such a way as to make it utterly impossible for the mortgagor to redeem: that is, what has been termed, improving a mortgagor out of his estate.”

The decree of the Court below, for the causes aforesaid, will be reversed, and this Court, under the Statute in such case, will proceed to render such decree, as the Circuit Court of Sebastian county should have rendered, in conformity herewith.

‘The decree is reversed, and a decree for $1,122 41 rendered for the appellee, in lieu of the decree of the Court below.

The costs of this Courtwill be paid by the appellee, and those of the Circuit Court of Sebastian county will be paid by the appellant, except so far as a part of them may, legitimately, be taxed to Sparks, the other defendant.

Except as to the amount, the decree of this Court will conform to the decree of the Court below.


text:
    Trapnall’s adx. vs. The State Bank.
    Where a notice is given to take depositions “at the office of the clerk,” etc., and the officer taking them, certifies that the witness “ was sick and unable to get in the office, and the depositions were taken in front of the office in a carriage,” it is a sufficient compliance with the terms of the notice in the absence of any showing that the opposite party desired to cross-examine the witness, and missed the opportunity of doing so.
    There being a rule of Court, that formal objections to depositions must be made within a reasonable time after publication, or they will be considered as waived, and a motion to suppress depositions for such objections having been made and overruled in the Court below, this Court will presume, in favor of tho correctness of the judgment of the Court, in the absence of affirmative showing to the contrary, that the motion was not made within a reasonable time.
    The estate of the mortgagee in land, before foreclosure, or at least before entry, is not the subj ect of execution, though there has been a default, and the condition is forfeited. (1 Eng. R. 269; 6 lb 94; 7 lb. 581; 15 Ark. Rep. 65.)
    Judgments against infants are not void, even where the Court omits to appoint a guardian for them: they are merely voidable; and can be avoided only by appeal, writ of error, or some other direct proceeding for the purpose of setting them aside, and not by an act in pais — such as the executing of a mortgage of land upon which the judgments are a lien.

      Appeal from the Circuit Court of Pulaski county in Chancery.

    Hon. William H. Feild, Circuit Judge.
    Watkins & Gallasher and Trapnall for the appellant.
    That all the contracts of an infant are voidable, and not void. Bing, on Infancy 11 note 2; 2 Kents Com. 236; Story on Con. sec. 38; Reeves Bom. Rel. ¡¿51, and cases cited; 1 Am. Lead. Cas. 90 et seq., 104 etseq., and authorities cited; 3 Bac. Air. 546-7; Cro. Jac. 465; 2 Tidd Pr. 436; 19 J. R. 422; Bing, on Infancy 27 n 2; Burr. 1794, 1808; 5 B. & Aid. 759.

      JThat a judgment rendered against an infant is not void, but wmly erroneous, and cannot be impeached collaterally. I Read. 'Gas. m-&?. 119, 120, 121, 122. *
    That the infant, or perhaps his executor or administrator, only can take advantage of his disability. Bing, on Inf. 48; Smith vs. Mayo, 9 Mass. 62; Jcfford vs. Ringgold, 6 Ala. 544; Warlin vs. Mayo, 10 Mass. 137; Bac. Abr. Infancy 6; 8 Mete. 196; 1 /■ J. Marsh. 236; 2 Dev. & Bal. 323.
    Hempstead, contra.
    That a mortgagee, before foreclosure, has no estate that is subject to execution. 4 Kent 161; 4 J. R. 41; 1 Eng. 269; 6 Blaclcf. 113; 16 Ohio 469.
   Mr. Chief Justice English

delivered the opinion of the Court.

On the 29th of September, 1848, Frederick W. Trapnall filed a bill for injunction, and to quiet title, etc!, against the Bank of the State, in the Pulaski Circuit Court, alleging in substance, as follows:

On the'22d November, 1843, Richard C. Byrd and wife, and William J. Byrd and wife, executed a mortgage to the Bank, with power of sale, on lots 1, 2, 3, 4, 5 and 6, in block 2, in the city of Little Rock, East of the Quapaw line, to secure the payment of a note for $13,375, which the Byrds had made to the Bank, on the same day, due at twelve months, subject to renewal.

On the 3d of March, 1835, all of said lots were conveyed by Governor Pope to Wm. J. Byrd.

On the-day of- 1840, William J. Byrd conveyed to Richard C. Byrd, lot 6, and 12 feet off of the west side of lot 5.

The lots remained in the possession of the Byrds, who had made valuable improvements thereon, until the said conveyance to the Bank, and up to the sale of them by the Marshal, as hereafter stated.

On the 20th of May, 1842, Trapnall & Cocke recovered two judgments in the Pulaski Circuit Court against William J. Byrd: on which, executions issued 25th February, 1845, were levied b3' tlie Sheriff upon all of said lots, which were sold on the 25th of April following, and purchased by Frederick W Trapnall, the complainant, for $225, who took the Sheriff's deed therefor.

After this, Richard C. Byrd, and E. L. Johnson, the attorney of the Bank, representing to complainant, that the said debt due by the Byrds to the Bank would be lost, unless she could get the title to the lots, acquired as aforesaid by complainant, proposed to him that the Bank should pay to him the amount of the two judgments of Trapnall & Cocke against Wm. J. Byrd, and take a deed for lots 1, 2, 3, 4, and the east half of 5; to which complainant consented; and on the 20th of June, 1845, Thornton, the Financial Receiver of the Bank, paid to complainant $1,075, the amount of said judgments; whereupon, complainant and wife executed to the Bank a deed for said lots, 1, 2, 3, 4, and the last half of 5.

By which sale, purchase, and deed from the Sheriff to complainant, and deed from him and wife to the Bank, it is averred, the title of the Byrds to said lots was extinguished; and all their right, title and interest vested in the Bank.

That at the time it was agreed, as aforesaid, that the Bank should pay off said judgments, and receive a title from complainant to said lots, it was agreed and understood verbally between the Bank and Richard C. Byrd, that the Bank should have the property valued by two persons, one selected by Byrd, and the other by the Bank, and when valued, the Bank should have credit on the amount of the valuation for the sum paid by her, as aforesaid, to complainant, and that the residue of the valuation should be placed to the credit of said Richard 0. and Wm. J. Byrd, upon their said note to the Bank: but for some cause or other the valuation had not been made.

On the 23d of April, 1045, the United States recovered judgment against the Bank in the Circuit Court of the U. S., for the district of Arkansas; execution was issued thereon, on the 1st Nov. 1845, and on the same day levied by the Marshal of the district on the whole of said lots 1, 2, 3, 4, 5 and 6, which were sold by him on the 13th April, 1846, and purchased by complainant at $1,400, and conveyed to him by the Marshal.

That Richard C. and W. J. Byrd had wholly failed, up to and at the time when said levy and sale were made, to pay to the Bank any one of the instalments on their said note, or to renew the same according to the regulations of the Bank, and the conditions of said deed (of mortgage,) so made by them as aforesaid, had in no respect been performed by them, and the mortgage had been forfeited, and the title to said lots had vested, by said failure of the Byrds, in the Bank; and that the entire interest of the Bank in said lots was properly and according to law subject to said execution.

That possession of the premises was delivered to complainant under his purchase, as aforesaid, and he had since expended large sums of money in making improvements thereon.

That the Bank had refused to acquiesce in the title of complainant, and was proceeding to have the lots sold under the mortgage, etc.

Prayer that the bank be enjoined from selling the lots under the mortgage, and that the title of complainant be quieted.

The answer of the Bank admits the execution of the mortgage to the Bank, by the Byrds, as alleged in the bill, — the conveyance of the lots by Gov. Pope to Wm. J. Byrd — that he, when a minor, in the year 1838, conveyed to his father, Richard 0. Byrd, lot 6, and twelve feet off of the west side of lot 5; but respondent avers that this deed was made without consideration, and was a fraud in law.

Admits the recovery of the two judgments by Trapnall & Cocke against Wm. J. Byrd in the Pulaski Circuit Court (the complainant being the same Trapnall,) but avers that said Wm. J. was a minor, of tender years, at that time, and that the Statute in that behalf was not complied with, and that said judgments, and all proceedings had under them, were absolutely void.

Admits that respondent paid to complainant the amount of said judgments, and took from him and wife a conveyance of said lots, as stated in the bill; but avers that she, (the Bank) believed at the time that the title of complainant and his right to convey were good and perfect, when in truth, his title was worthless, and that respondent paid him the money, and took said conveyance, under a mistake, and in equity and good conscience was entitled to relief in the premises.

Respondent denies that the said sale and purchase, and deed from the Sheriff to complainant, and from him to her, extinguished the title of Wm. J. Byrd to said lots, and vested it in her, as alleged, but respondent avers that the whole proceedings, which resulted in the conveyance, by complainant and wife, to her, of lots 1, 2, 3, 4, and the east half of lot 5, were null and void.

Knows nothing of any agreement or understanding between the_Bank and Richard C. Byrd in regard to the valuation of the property, as alleged in the bill, but denies that any such agreement or understanding, was entered into.

Admits the recovery of the judgment by the United States against the Bank, issuance of execution thereon, levy upon and sale of all the lots by the Marshal, purchase by, and conveyance to complainant, as alleged: but denies that the Bank held any property in the lots subject to execution: her only title being the mortgage of the Byrds, which had not been foreclosed, nor the lots sold under the power of sale contained therein. Respondent denies that the failure of the Byrds to comply with the conditions of the mortgage, forfeited their right and title in equity, or vested the absolute title to the lots in the Bank, so as to subject them to execution as her property.

Respondent admits that complainant obtained possession of the lots as alleged, but does not know, nor does she believe, that he has made any improvements thereon.

Trapnall hied an amendment to his bill, alleging that after said judgments were rendered against Wm. J. Byrd, as stated in the original bill, and before said executions were issued and levied on the lots, the said Wm. J. being then of lull age (there being some doubt whether he was of age at the time when the judgments were rendered,) by his writing, under seal, which is exhibited, and for the consideration therein expressed, etc., affirmed said judgments and waived all objections thereto, on the ground of his infancy.

The instrument of affirmance bears date 27th May, 1844.

The Bank- answered the amendment to the bill, alleging that the execution of the instrument of affirmance by Wm. J. Byrd, was a fraud attempted to be perpetrated upon her, and insisting that the whole proceeding under the said judgments, rendered against said Wm. J., when he was an infant, should in equity and good conscience be decreed null and absolutely void in law.

The cause was heard upon bill, exhibits, answer, replication, and the deposition of Richard C. Byrd, taken on the part of the complainant.

Byrd testified that the Bank agreed with him that the lots in controversy, which Trapnall sold to the Bank, were to be valued by two disinterested persons, and all over $1,065, was to be credited on his note, or notes, in the Bank. That the object of this arrangement was to vest the entire title to the property in the Bank.

The Court decreed, that the Bank be perpetually enjoined from selling under the mortgage, lots 1, 2, 3, 4, and the east half of lot 5; but refused the injunction as to the west half of 5, and the whole of lot six.

Both parties appealed to this Court.

In the meantime the complainant departed this life, and the cause was revived in the name of his administratrix.

1. One of the errors assigned by the Bank is, that the Court below overruled her motion to suppress the deposition of Byrd.

The motion to suppress was based upon two objections to the deposition; first, that it was not taken at the place named in the notice, and second, that Byrd was an incompetent witness in the cause.

The notice was, that the deposition would be taken, “ at the office of the Clerk of the Jefferson Circuit Court, in the town of Pine Bluff,” etc.

The magistrate who took the deposition states in the caption to his return, that the deposition was taken, “ in front of the office of the Clerk of the Jefferson Circuit Court in the town of Pine Bluff,” etc., and in his final certificate the magistrate states, “that the said Richard C. Byrd was sick, and unable to get to the Clerk's office,'etc., and the deposition was taken in front of the Clerk's office, in a carryall, that said Byrd was hauled in," etc.

If the witness was sick, and unable to get into the Clerk’s office, but was brought in his carriage to th e front of the office, and the deposition taken there, as appears to have been the case from the magistrate’s certificate, it would seem that this ought to be regarded as a substantial compliance with the terms of the notice. The words, “at the Clerk's office," used in the notice, could hardly be understood to mean that the witness and the officer must be in the office when the deposition was taken. They might be in front of it, and yet be at it. The object of the law in requiring notice tobe given of the place of taking the deposition, is that the opposite party may have an opportunity of being present, to cross-examine the witness if he desires to do so. >

In the absence of any showing that the Bank desired to cross-examine Byrd, and missed the opportunity of doing so, by reason of the failure of the magistrate to comply literally with the terms of the notice as to the place of taking the deposition, we think the Court below did not err in refusing to suppress the deposition for the first objection.

But, there is another ground upon which the refusal of the Court to suppress the deposition for the first objection must be sustained. By a rule of practice previously established by the Court below, and copied in the bill of exceptions, formal objections to depositions, such as the one under consideration, were required to be made within a reasonable time after publication, or they were to be regarded on the hearing as having been waived. The deposition of Byrd was taken on the 3d of May, 1854; but when it was published does not appear from the record before us. The motion to suppress was made on the 19th of December, 1854; and the cause was heard on the 22d of the same month. We must presume in favor of the correctness of the judgment of the Court below, in the absence of any affirmative showing to the contrary, that the motion to suppress was not made within a reasonable lime after publication, as required by the rule of the Court.

But little need be said of the second objection to the deposition, taken in the motion to suppress.

The counsel for the Bank has not in his argument here, nor in the motion, undertaken to specify in what particular he deems Byrd to have been an incompetent witness for the complainant. He was not a party to the suit, and we do not understand that he is in any way legally interested in its result or that his rights are to be affected by the decree. But, in the view that we shall take of the case, his deposition will be of no consequence.

2. The question arising upon Trapnall’s appeal is, whether he had such title to the west half of lot five, and the whole of lot six, as entitled him to the relief sought by the bill, and refused by the Court, as to these portions of the property in dispute.

It is not disputed that Wm. J. Byrd derived title to all of the lots, in the year 1835, from Gov. Pope.

The bill and answer agree that in 1838, or in 1840, Wm. J. Byrd conveyed to his father, Richard C. Byrd, lot 6, and twelve f eet off of the west side of lot 5. The Bank alleges that this deed was void for fraud, etc. She made no proof of this, but it matters not whether it was valid or void, so far as the question now under consideration is concerned.

On the 22d November, 1843, both of the Byrds joined in the mortgage, conveying all of the lots to the Bank; and this is the only title the Bank ever had, upon the record before us, to the west half of lot 5, and the whole of lot 6: which were not embraced in the deed of Trapnall and wife to the Bank. Under the execution in favor of the United States against the Bank, Trapnall purchased all six of the lots, and took the Marshal’s deed therefor, but by this purchase, he obtained no title to the west half of lot 5, and the whole of lot 6, unless the title of the Bank, as mortgagee, was subject to sale under execution.

But it is very well settled that the estate of the mortgagee in land, before foreclosure, or, at least before entry, is not the subject of execution, not even though there has been a default, and the condition of the mortgage is forfeited. 4 Kent, 161. Blanchard vs. Colburn et al., 16 Mass. 345. Glass vs. Ellison, 9 New Hamp. R. 69. Jackson vs. Willard, 4 John. R. 41. Eaton vs. Whiting, 3 Pick. 484. Buck et al. vs. Sanders et al., 1 Dana R. 188-9. Rickert vs. Maderia, 1 Rawle 325. Huntington vs. Smith, 4 Conn. 235. State vs. Lawson et al., 1 Eng. R. 269. Whiting & Slark vs. Beebe et al., 7 Eng. 581. Crittenden vs. Johnson, 6 Eng. 94. Pettit et al. as. Johnson et al., 15 Ark. 65.

For the protection of the interest of the mortgagee, and in order to give him the full benefit of the security, it is held that the legal estate passes by the mortgage: but for other purposes, the mortgage is, in general, held to be a mere security for the debt. Southerin vs. Mendurn, 5 New Hamp. R. 429. Glass vs. Ellis 9 Ib. 69.

The sixth clause of the 25th sec. chapter 67 Digest, p. 498, which subjects to execution “all real estate, whether patented or not, whereof the defendant, or any person for his use, was seized, in law or equity, on the day of the rendition of the judgment, order or decree, whereon execution issued, or at any time thereafter,” has not been held to change the well established rule, that the estate of the mortgagee, before foreclosure or entry, is not subject to execution, -and there are many good reasons, why it should not be so construed, to be found in the authorities above cited.

It follows that Trapnall derived no title to lot 6, and the ivest half of Jive by his purchase under the execution against the Bank.

He shows upon the record before us no title to these portions of the property from any other source. The bill alleges that he purchased, and obtained the Sheriff’s deed for all the lots, under the executions against Wm. J. Byrd issued upon the judgments of Trapnall & Cocke, but the Sheriff’s deed exhibited with the bill, embraces only lots 1, 2, 3, 4, the east half of Jive, and lot 6. It does not include the west half of 5.

Moreover, the bill alleges that in 1840, and prior to the date of the judgments of Trapnall & Cocke, against Wm. J. Byrd, he conveyed to his father, Richard C. Byrd, lot 6; and the bill does not, in any manner, attack the validity of this conveyance. According to the allegations of the bill, therefore, Trapnall obtained no title to lot 6, by the Sheriff’s deed.

The decree of the Court delow upon the appeal of Trapnall’s administratrix, must, therefore, be affirmed.

3. Upon the appeal of the Bank, the title of Trapnall to lots 1, 2, 3, 4, and the east half of five, is to be determined'.

He purchased these lots under the judgments of Trapnall & Cocke against Wm. J. Byrd, rendered 20th May, 1842, conveyed them to the Bank, and afterwards purchased them again at the Marshal’s sale under the judgment of the United States against the Bank.

The Bank insists that the judgments- against Byrd were null and void, because of his infancy, etc.

The bill alleges the recovery of these judgments, the issuance of executions thereon, levy, and sale of the lots, the purchase by Trapnall and the Sheriff’s conveyance to him, but exhibits no part of these proceedings, but the Sheriff’s deed.

The answer of the Bank admitting these allegations, avers by way of avoidance that Byrd was an infant of tender years when the judgments were rendered against him, that the Statute in that behalf was not complied with, and that the judgments were null and void. These were affirmative allegations by the Bank, and the replication putting them in issue, the burthen of proving them was upon her. But she made no proof of the infancy of Byrd, nor did she exhibit a transcript of the judgments and proceedings upon which they were based, in order that the Court might see whether they were regular or not.

It is true that, by an amendment to the bill, Trapnall states that, there being some doubt whether Byrd was of age when the judgments were rendered, he had obtained an affirmance of them by Byrd after he was of full age. Let it be admitted that this is a concession on the part of Trapnall that Byrd was an infant; their, upon the record before us, we have these facts and no others: — that two judgments were rendered against Byrd, an infant, by the Pulaski Circuit Court, a Court of general jurisdiction; and we are to determine upon these facts, whether the judgments were void or not.

In Borden et al vs. State, use, etc., 6 Eng. R. 519, it is declared to be a general rule that, by the common law, the judgment of a superior Court is not void, but only voidable by plea or error.

And Mr. Justice Scott, in treating of the exceptions to this general rule, said: — “ So, a judgment might even be void under some circumstances, from some peculiar and inflexible policy of the law, for the protection of infants, married women, idiots or lunatics.” Ib. p. 551.

But he, by no means, meant that, as a general rule, judgments against infants, etc., are void. It is well understood that infants are liable for necessaries, and for torts, and that most of their contracts are not void, but voidable. And our Statute, recognizing their liability to be sued, provides that the Court shall appoint guardians to defend for them, etc. Digest ch. 126, p. 803.

On the contrary, the well established general rule is, that judgment against infants are not void, even where the Court omits to appoint a guardian to defend for them, but that they are merely voidable. Allison vs. Taylor et al., 6 Dana 88. Porter's heirs vs. Robinson, 3 A. K. Marshall R. 254. Austin vs. Charleston F. S., 8 Metcalf R. 196. Bloom et al. vs. Burdick, 1 Hill R. 130. Patchin vs. Cromach, 13 Vermont R. 330. 1 American Leading cases, Hare & Wallace, p. 120-1-2, and cases cited.

But it is insisted by the counsel for the Bank, that if the judgments were not void, but merely voidable, the execution of the mortgage to the Bank by Wm. J. Byrd, subsequent to the date of the judgments, was a disaffirmance of them, and destroyed their lien upon the lots.

There is nothing upon the face of the record before us to show that the judgments were not regular and valid; but conceding them to be voidable, they could not be avoided by the execution of the mortgage, which was an act in pais. The rule is, that where an infant does a voidable act, in pais, he may avoid it by some other act, in pais, of equal solemnity or notoriety, but where the act is matter of record, it must be avoided by some matter of record. The judgments in question could only be avoided by appeal, writ of error, or some other direct proceeding known to our laws, for the purpose of setting them aside. See the authorities above cited. Also, Bingham on Infancy p. 55-6. Bool vs. Mix, 27 Wend. R. 132. Tucker et al. vs. Moreland, 10 Peters R. 71. Chase vs. Scott, 14 Vermont 77. 2 Kent 237.

Upon the record before us, therefore, we must hold that the judgments in question were valid,- and being prior to the mortgage, Trapnall’s purchase under them vested in him the title to the lots, which he conveyed to the Bank, and afterwards purchased back at the Marshal’s sale.

This view of the case renders it unnecessary to decide any of the other questions discussed by the counsel.

The decree of the Court below, on the appeal of the Bank, is affirmed: and both parties having unsuccessfully appealed, the costs of this Court must be divided between them equally.

Absent, Hon. C. C. Scott.