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Mr. Justice Compton,
delivered the opinion of the Court.
This was an indictment for retailing spirituous liquors contrary to the statute. The appellant pleaded in abatement, and upon his plea an issue of fact was made up and submitted to the court for trial, sitting as a jury. The court found the issue for the State, and fined the appellant twenty-five dollars, for which, with costs, final judgment was rendered. This, according to the decision of this court in Cooper vs. The State, 21 Ark. 228, and the authorities there cited, was erroneous. The issue of fact should have been tried by jury, and not by the court. Let the judgment be reversed. | [
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Mr. Justice Fairchild
delivered the opinion of the Court.
Cowser, Locke & Collier having become security for Parks Beeman, upon the 12th of October, 1857, Cowser was obliged to pay the debt, with costs and interest, as otherwise the judgment that had been rendered against the joipt debtors, that is, against Beeman and his securities, would have been made out of Gow-ser’s property, he having before the payment, of the money, availed himself of all the delays of the law. Beeman and Collier were insolvent. Christopher McRae, the father of Bee-man’s wife, had a considerable property, which, after the payment- of liabilities, realized a sum, that, if divided among the eleven heirs, would allow to each, nine hundred and thirty-six 33000 dollars. McRae died in July, 1855, after the debt of Beeman and his securities had been contracted. No division of the estate of McRae was made'or attempted, till after the death of his wife, in July, 1857, when,upon -the 1st of December, 1857, the eleven heirs of McRae, all being of age, agreed that John McRae, one of their number, should be selected as their trustee and agent to divide "he property among the heirs, and if it could not be divided, to sell it and make distribution of its proceeds, giving to each heir its equal part. Thereupon, the ten heirs, other than John McRae, such as -were married women uniting with their husbands, executed a power of attorney, authorizing John McRae to carry the above agreement into effect. The. appointed trustee and-agent accepted the office and agency, made sale of the estate, and 'the share of each of .the heirs was as above stated. The portion doe'to Catharine Beeman had never come to the hands of her husband, cr herself, as at the time of the commencement of this suit, the 20!.h of October, 1857, the estate of Christopher McRae was still undivided and unsold.
The bill was filed by Cowser & Locke against Parks Bee-man and the ten heirs of Christopher McRae, other than Mrs. Beeman, for the purpose of subjecting her interest in her lather's estate to the payment óf the money which Cowser had paid for her husband. She was not herself made a party to the bill, upon the pretence that the husband assumed control of her interest, so that his rights as husband had attached thereto.
Mrs. Beeman filed a petition in the case, denying, as did the other heirs that her husband had received or obtained control of her share in her father’s estate, or that the same had come to her own possession, averring that it was under the control of John McRae, never having been distributed or paid to her. An injunction was obtained against Parks Beeman and John Mc-Rae, to restrain them from concealing furl her, or interfering with the interest of Parks Beeman in the estate of Christopher McRae, and requiring it to remain- as it then was, till the further order of the court. Mrs. Beeman’s petition was allowed to be taken as her answer, shfe being permitted to come in to the case as a defendant.
The case was heard upon the pleadings and accompanying documents: These, that is, reports of the master and'of John McRae and the record entries of the cause make up the whole case as here presented. The court below ascertained the amount of Mrs. Reeman's share in her father’s estate to be 936 33-100 dollars, as before stated, and that there was due to Cowser from Parks.Beeman, on’ the demand of, the bill, eight hundred and six-three 20-100 dollars, which John McRae was ordered to pay to Cowser, out of what was in his hands as the share of Catharine Beeman in her father’s estate.
It is contended, on appeal from the decree of the court below, that this share belonged to Mrs. Beeman, as her separate pro-peí ty under our married woman’s law. And that, as Cowser had applied to a court of equity to obtain possession of an interest that was coming to her, a settlement should be made upon her according to'tjge principle adopted by courts of chancery, in setting apart to a ’wife her equity out of her own portion that is the subject of the suit: And it is claimed for her, that the whole of her portion, as disclosed in this case, should be secured to her as her equity.
To enable a wife to hold property under the married woman’s law, it must be recorded as hers in the county where she lives by means of being scheduled under the law, or by being devised, granted, decreed of transferred to her, by words that expressly set forth that the property is to be held by her exempt from the liabilities of her husband. Although Mrs. Beeman might be fully resolved to place her property in her father’s estate within the provisions of this law, and claim its protection, she had not done so while it was property in kind, as left by her father, nor since it had been changed to money, had she obtained it to invest in any thing that could be described and scheduled and recorded, so as to give her husband’s creditors notice that the particular property specified was not his, but her own separate property. We do not think that Mrs. Beeman’s claim to her share in her father’s estate can be given to her in this case as her separate property, under our married woman’s law. But we do think that such a case is here presented, as authorizes a provision to be made for Mrs. Beeman. This is done when the husband or his representatives, ask the aid of a court of equity to reach the property of the wife. Willards Eq. Jurisprudence 635,038. '
The appellees' misconceive the scope of the wife’s equity in restricting it to to an applicátion against the husband alone. The husband’s creditors represent him, their claim is only his claim, and both are alike subject to a settlement to be made in favor of the wife. So are all of the authorities. Neither does it prejudice the claim that it is made for the proceeds of the sale of the wife’s property in the hands of the purchaser. The following authorities are upon this subject: ,
“ The proceeds of the sale of the wife’s land made by her and “ her husband, so long as they remain in the hands of the pur- “ chaser, constitute a part of the estate, out of which she has “ a right in .equity to a settlement. The money is, according “ to every principle of right and justice, as much her property “ as the land was before its conversion.” Moore vs. Moore, 14 B. M. 262.
“ The question is, has the wife an equitable right to a settlement out of the unpaid purchase money, arising from the sale of real estate, which has not been collected or disposed of by the husband ? If the creditor of the husband should make application to a court of chancery, to subject such a fund to the payment of the husband’s debts, the court would refuse to aid him, unless upon the condition, that a settlement upon the wife should first be made, if her situation and circumstances required it. No injustice is done to the creditors by the operation of this rule, because their rights are the same after the conversion of the wife’s- real estate, that they were previously. The real estate has, with her consent, been converted into personal estate, to which the husband has the legal right; but her consent should not be extended by implication to a surrender by her of all equity to the fund.
“ This is, we believe, the first case that has been before this court, where the wife claimed an equity in the money arising from the sale of her real estate, when the sale was made by her and her husband. In the case of Athey vs. Knolls, 6 B. M. 24, the land that had descended to the wife in conjunction with other heirs, from her father, was sold by a decree of a court of chancery, and that portion of the money to which she was entitled was claimed by her as necessary for a support, and her claim was sustained. There is no substantial distinction between that case and this. In this case, the sale money was in the hands of the purchaser; it had not passed into the hands of the husband, and his right to it was not as perfect as it was in the other case, where the money had been paid by the purchaser, and passed into the hands of an agent, whether that agent professed to act for the wife or for the husband. According, then, to the doctrine settled in that case, the wife here had an equity in this estate, superior to the rights of her husband’s creditors, without any extension of this equitable right of the wife beyond its previously recognized limits. The fact that the note for the purchase money was made payable to the husband, cannot prejudice the claim of the wife ; for if it had been made payable to her, the legal right and title to the debt would have been in the husband, just as if the note had been made payable to himself. Lary vs. Brown, 13 B. M. 296, 297, 298.”
This case does not call for an expression when, and how far, the wife’s equity will be recognized, when the suit is not brought by the husband, his assignees or creditors to obtain her property.
It only remains to determine the extent of the settlement that shall be made upon Mrs. Beeman. She alleges that her husband was insolvent when Cowser assumed the securityship for him, her father was then alive and Cowser could not look to his estate for indemnity, in any event had no right so to do, Cow-ser is rich, she and her husband are over fifty three years old; he is an improvident person, that she is entirely destitute of help in the performance of her household labor, except as she is obliged to call for the assistance of her husband and sons, that her health is feeble, she not being able to do a day’s work continuously, and for many years has not had much use of her right hand. All the assistance that a court of equity can give, Mrs. Beeman ought to have, we mean in connection with the sum that is claimed to be taken from her. The general rule is, that one-half of the wife’s property shall be settled upon her, but the matter rests in the discretion of the court, which will take all the circumstances into consideration and allow to the wife what is equitable, though it be the whole sum in controversy. Willard's Eq. Jurisdiction 638; Kennedy vs. Noble, 5 Jhs. Ch. 479; Athey vs. Knolls, 6 B. M. 29.
Under the circumstances of this ease, Mrs. Beeman should have the whole of the fund in the hands of John McRae, all that is due to her from her father’s estate.
The decree of the court below is reversed, and the case is re manded with instructions to the Circuit Court of Union county sitting in chancery, to dissolve the injunction and dismiss the bill of the appellees, and to settle the amount awarded to Mrs. Beeman by some scheme that shall secure it to her free from the influence of her husband and his creditors, and as shall be most promotive of her comfort, and according to equity.
Let the appellees pay the costs of this court, and their own costs in the court below, the remainder to be paid out of the fund. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
Johnathan Jones, the appellee, and the plaintiff below, for sometime previous to the 17th of August, 1857, had been subject to great depression of spirits and distress of mind from unhappy domestic relations, and to an extent that induced the generality of his neighbors to suppose him to be, so impaired in mind, as to be unfit for the management of his affairs; while a few of his neighbors, and casual acquaintances, or such as had not known him till the time mentioned, did not discover but that he was equal to the discreet transaction of ordinary business.
Without detailing the testimony upon this part of the case, we are satisfied to say from it, that, in August, 1857, Jones was enfeebled in mind so as to be plainly perceptible to his neighbors and intimate acquaintances, but not to strangers, or those who did not know him well. The result of our investigation upon this subject is, that if the question of the validity of the contract made between the parties depended upon the capacity of Jones to bind himself, it would be difficult to release him from its performance upon the ground of incapacity alone; but his weakness of mind should be taken into consideration as one circumstance in determining whether a completion of the contract he made with Beller,-the defendant below and appellant here, should be exacted of him, by the reversal of the decree of the court below, and the dismissal of his bill.
Although many witnesses testify upon the condition of the mind of Jones, not many of his acts, but few specific facts are stated, from which an opinion can be formed by us independent of the opinions of those who are competent to give an opinion. And in accordance with the ruling of this court, in Kelly vs. McGuire, 15 Ark. 601, we hold them to be competent to give such opinion as ought to be respected, who from habits of daily or common intercourse with, or observation of appellee, could make an intelligent comparison of his mental manifestations with his conduct when he was admitted to enjoy the full use of his natural faculties.
According to the opportunities, intelligence, and impartiality of the witnesses, their opinions will be more or less valuable; but their opinions as such, with the facts upon which they are founded, are competent evidence.
On the 17th of August, 1857, Jones executed a conveyance to Beller, of his lands, negroes, and other effects, in short, of all his property for the expressed consideration of three thousand dollars.
A few days after, before Beller had paid, or executed his notes for the three thousand dollars to be paid to Jones, it was agreed between them, that the consideration for the property should be changed, and that, as the consideration for the deed, Beller should take the five children of Jones, Margaret Ann, eighteen years old; Rennick R., fifteen; William W., eleven, Albert, eight; and Susan five years old, board and clothe them; give each of them a good English education, and treat them in all respects as his own, until they should respectively become twenty-one years old, or marry, when Beller should pay to each, five hundred dollars in cash; and to secure the performance of such agreement by Beller, he was to make to Jones a good and satisfactory bond, with appropriate covenant's, which Jones could not indicate, but which were to be approved by him upon such advice as he should obtain in Washington.
Such is the agreement as charged in the bill.
Other matters are stated as inducing Jones to make the proposition, and' hinting at Beller’s procuring the wife of Jones to urge him to the new arrangement, but are not stated, because it does not appear in the subsequent part of the case, tliat Bellerj up to this time, can be charged with stimulating Jones to the engagement as made, or to that which was first proposed, a purchase of the property for three thousand dollars.
The defendant Beller, in his answer, admitted the making of the conveyance for'the expressed consideration of three thousand dollars, and the substitution of another by the agreement asset forth in the bill, saving that he modifies Jones’ statement of the agreement, by saying that it was a part of the agreement, that if either of the children should die before arriving to manhood, or womanhood, he should pay the living children such sum as the board, clothing, education, etc., of the decased one would have been worth, from its death till the age before mentioned, which provisions for the children were upon the condition that they would stay with him, and if they would not, he was to be free from all obligation touching their board, clothing and education, and that the education of the children was dependent upon their willingness to go to school.
Subject to these modifications, Beller admitted the agreement, and that it was the consideration of the deed from Jones to him, and that he agreed to execute his obligation to that effect when he should return from Washington, where it could be properly prepared.
The deed made by Jones in Washington, the 17th of August, 1857, was not substituted by one reciting the agreement, or new consideration, but as it had been written, it was acknowledged, at the residence of Jones, by him and his wife, the 20th of the same month.
Beller admits that before he left Jones’ house, he gave to Jones a short, informal instrument, certifying the substance of the agreement, bjit he denies the allegation of the bill concerning its delivery to Jones without its being read to him, and just as he himself was about to leave, or that he had any intention to defraud or injure Jones, by means of the writing, and admits that he was to have the agreement properly drawn when Jones should come to Washington, but did not promise to have it drawn to the satisfaction of Jones.
That paper contained the following words:
“This is to certify that I am to pay Margaret A. Jones, Rennick R. Jones, William W Jones, Albert T. Jones and Susan E. Jones, heirs of Jonathan Jones, five hundred dollars each, on his or her arriving at lawful age, or when M. A. Jones shall marry, in consideration of a certain list of property set forth and described in a deed, bill of sale, and obligation executed to me on the 17th day of August, 1857. Miss M. A. Jones is to have for her part a negro girl named Frances, if she chooses, at a fair valuation. A. T. BELLER.”
The answer admits, that on the 26th of August, 1857, Jones came to Washington to see Beller, and was then dissatisfied with the contract, and wished to cancel it, and offered to pay Beller for his expenses in the business; that he refused to accede to the request. He admits that another writing was drawn up by Mr. Thomas, of the firm of Young & Thomas, in accordance with his promise at Jones’ house to have his agreement fairly drawn up; but denies that it was prepared under his direction, and that Jones was dissatisfied with it, but avers that it was drawn under the direction of Jones and himself, and that .Tones was satisfied with it as embodying the conditions of Beller’s agreement.
And Beller insists that it is a full compliance with what he promised, and his promise was to give a bond with appropriate covenants to bind him to the performance of his agreement, touching the maintenance and schooling of the children, and paying their portions at the proper time.
That second writing is as follows:
“ For and in consideration of certain lands and personal property embraced in a deed executed to me by Jonathan Jones, on the 17th day of August, A. D. 1857, and now of record in the clerk’s office of the county court of Hempstead county, and State of Arkansas, I obligate myself to pay Jonathan Jones, for the benefit of Margaret A. Jones, Rennick R. Jones, William W. Jones, Albert T. Jones, and Susan E. Jones, children of the said Jonathan Jones, five hundred dollars each, when they severally arrive at lawful age, or marry, and as a further consideration for said lands, slaves and property aforesaid, I oblige myself to take the above children of the said Jonathan Jones, raise them, board and clothe them, and send them to school, in case they will go, until they secure an ordinary English education, and should either of said children die before arriving to man or womanhood, then I am to pay to those of them that are still living, such sum or sums as the said board, clothing, education, etc., would reasonably be worth from the time of their death until they would have arrived to the age aforesaid. I further oblige myself to let Margaret A. Jones have the negro girl named Frances and specified in said deed aforesaid, in lieu of the five hundred dollars as specified above. Given under my band this 26th day of August, A. D. 1857.
A. T. BELLER.”
Attest: J. W. Thomas.”
Beller admits that Jones submitted the last writing to counsel, and that it might have been pronounced informal and insufficient, without the proper covenants; but avers that it was sufficient, and in accordance with the stipulations of their trade, except that in it he was not guarded from being bound for the maintenance and education of the children if they should refuse to live with him, which he avers was the agreement, and its omission was by mistake, and unnoticed by him.
He admits that Jones offered to return this second writing to him, but he would not take it, and that Jones left it on the floor, whence it was taken and kept by a clerk of Beller; that Jones again proposed to cancel the trade, and offered to give him the negro girl Ellen for so doing, but that he refused; but he denies that Jones demanded any bond with conditions for the performance of his part of the contract, or demanded any further bond. He denies that the property conveyed to him was worth more than four thousand dollars.
It is not proposed to detail the pleadings, or to refer to them further than has been done to ascertain clearly what the agreement was, how it was complied with by Beller, and what steps were taken by Jones for its cancellation.
No evidence was introduced by Jones so effective, none could be adduced more convincing, to show mental derangement, or want of natural sense, as is the agreement itself charged by him, and admitted by Beller to have been made. It is such a contract as no man in his senses, and with right feelings would have proposed; and it ought not to have been accepted. A court of chancery would never enforce the performance of a contract by which children were to be torn from their home and their only parent, and committed to the care of one who might have no feeling for them, and whose interest was to have them refuse to live with him, that he might be free from an onerous part of the agreement. No man could have expected otherwise than that the children would be dissatisfied, and that the daughter of mature years should determine for herself, as she did, to go home with her father, the first opportunity; and it must have been anticipated by all who knew the facts, and had even a conjecture of the feelings of a father, or of a man, that Jones, after the fit of the time was over, would direct his efforts to a destruction of the contract, and not to its fulfillment.
But it does not follow that a court of chancery will rescind a contract, because it would not be enforced. There must be imposition, fraud, or undue influence, with weakness of mind, to cell into exercise the power of canceling the aets and contracts of beings w'ho are supposed to take care of themselves; or suffer from their folly.
But for such a contract to stand, the defendant should show a compliance with his undertakings, a disposition to act in good faith, by doing to th'e utmost what he can, and what he ought to do, to calm the apprehensions, and quiet the suspicions so unnatural a condition must engender.
The bill and the answer agree that Beller was to give bond with appropriate covenants binding him to the performance of his agreements. He insists that he has done so by the execution of the writings, or rather of the last writing hereinbefore set forth. We do not think so, and only refer to the writing itself. We do not understand from the testimony of Mr. Thomas, that he drew the writing, as in his judgment expressing the sense of any agreement made by the parties, but as a reduction to form, in a way that would not be prejudicial to Jones, of the first memorandum made by Beller himself. Thomas states that Jones received the paper drawn by him reluctantly, seemed to prefer the memorandum, was intent, upon rescinding the contract. This accords with the bill so far as it shows his dissatisfaction wdth Beller, with what he had done, with what he would be likely to do, either in the preparation of papers, or in the fulfillment of his contract. His credulous confidence had given way, he did not now regard Beller as a friend and adviser, and he was fearful that every step would more deeply involve his property,, himself and his children.
There appears to be no cause of complaint against Beller that Jones can establish, till after the delivery of the deed in Columbia county.
It is evident from both bill and answer, that Beller hurried off the children and the negroes from Jones’ house, before he wished, or expected, or agreed for them to go.
And from the deposition of B. B. Jones, the tavern keeper in Washington, it appears that Beller had agreed to assist Jones in getting his daughters home from the tavern where Beller had put them, and when Jones was about to start, Beller, in a bustling way, informed Jones, that it was against his, Beller’s, will for Jones to take his daughters away. This is proven in opposition to .the denial of Beller’s answer.
Before Beller left the house of Jones he asked his witness, Cleary, to encourage the old man Jones in the trade.
From the deposition of Cleary, it also seems that Beller was willing to let Jones depend upon the first memorandum, as Beller’s undertaking to perform his part of the contract. For Cleary says, that when he, as justice of the peace, had received the acknowledgment of Jones and wife to the deed to Beller, the latter handed a paper to Jones, saying it was his bond, and that upon Jones remarking that he would have it recorded for the benefit of thé children, Beller replied that if'hat was to be done, he would give one in a little better form, when Jones came up to Washington. Neither of them read the paper at the time. Beller did not offer to do so, and did not explain its contents. Jones probably could not read, or at least understanding^, as we learn of its being read to him afterwards and of his immediate dissatisfaction, and going to Washington, and trying to have the trade rescinded.
When a permanent misunderstanding exists relative to the fulfillment of such a contract, as the one under consideration, involving such interests as it did on the part of Jones, and being executory and prospective, on the part of Beller, for sixteen years, it is evident that a rescission is the only adequate remedy; that a breach cannot be compensated in damages; that a court of chancery cannot execute the agreement for the parties.
Again, in October, 1857, after the second writing had been delivered to Jones by Beller, and Jones had legal advice thereon, that the paper did not provide for the perfermance of Beller’s part of the agreement, Beller refused to give up the business which he must have known could result only in continuing and increasing difference and mistrust; though it would seem that if his motive had been the accumulation of gain he would have been satisfied with what seems to be the extravagant compensation Jones offered him, to rescind the contract, that is, the negro Ellen, proven to have been worth seven hundred dollars.
All these facts and many others, scattered through the account of the case, though transpiring after the contract was made, assist to give character to it; and tend inevitably to the conclusion, that the arrangement made by the parties was an unsuccessful one, that it cannot be executed.
Jones, the plaintiff, is proven to be a credulous man, liable to be led away by those in whom he confided; he is shown to have had unlimited confidence in Beller, to have looked upon him as a friend, and as'an adviser; at the time of the trade he was in great depression of spirits about his children, and domestic troubles; was completely under the influence of his wife, ready to promise and attempt any thing, if she would live with him, or agree to do so.
"When he became suspicious of Beller, he still offered to compensate him for his trouble, he made a liberal pi’oposition to induce him to rescind the contract, and upon the refusal of Beller to do this, demanded only his right to be secured, and to have Beller bound to the performance of his agreement.
Beller was inordinately hasty to get the negroes into his possession, did not act fairly about the papers by which he professed to be bound, from the delivery of the memorandum at Jones’ house, to the rejection of the Thomas paper in his store: has placed himself in such a relation towards Jones, towards the children, tb whom he was assuming the place' of a parent’ before the court by his answer, as to show that all the interests of the children, the objects of the trust, or of the contract, mental, pecuniary, and moral, will be best promoted by leaving this case where the Circuit Court sitting in chancery left it.
We do not think it essential, or profitable to collect for preservation in this opinion, the scattered but abundant facts and inferences afforded by the whole case, that induce the concia sion to which the two courts have come, to which all fair minded, uninterested men must have come, as we think, upon an inspection of the record of the case. It is from all the circumstances of the case, as the influences operating upon Jones, the conduct of Beller after the contract was made, the inadequacy of the price, the unreasonableness of the contract, the character of the interests involved, the insufficiencies of any legal remedy, and from the whole case that this result is assumed.
We approve of everything contained in the decree appealed from, but this controversy ought to be ended; and to insure this, it should be added to the decree that neither party shall molest the other for anything growing out of the actions of replevin prosecuted by them respectively, and mentioned in the pleadings.
Let the decree be affirmed with costs, the replevin bonds in the suits mentioned be canceled, the legal proceedings of both parties involved in this suit perpetually suspended. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was an action of covenant brought in the name of the State, for the use of Arkansas county, against Bushrod W. Lee, Alfred 0. Douglass, Robert H. Douglass and James L. Goree, as sureties in the official bond of Pleasant P. Cross, deceased, as collector of said county.
The bond, as set out in the declaration, bears date 31st of October, 1855, conditioned as follows:
“ The condition of the above obligation is such, that the above bounden Pleasant P. Cross, sheriff and ex-officio assessor and collector of the r'evenue of the county of Arkansas, in the State of Arkansas, for the year 1855, shall well and truly do and perform all and singular the duties of such collector as aforesaid, and pay over to the proper officers according to law, all moneys collected by him, or by virtue of his said office as ex-officio collector as aforesaid” — with the further condition that he was to be subject to distress for failure to pay over the State revenue, etc., prescribed by section 54, ch. 148, Gould’s Dig.p. 939.
The breaches assigned in the declaration are as follows :
“ And plaintiff avers that said Pleasant P, Cross, sheriff and ex-officio collector of the revenue of the county of Arkansas, failed to keep and perform the conditions of his said writing obligatory, but broke the same in this, to-wit: That at the April term, A. D. 1857, of the county court of Arkansas county, the said Pleasant P. Cross, collector of revenue as aforesaid, settled with said county court, in respect to revenue collected or which should have been collected by him, for the years eighteen hundred and fifty-four and fifty-five, in which said settlement the said Pleasant P. Cross, sheriff and collector as aforesaid, was found to be in arrears and indebted to the county of Arkansas, in the sum of three thousand and eighty-nine dollars and seventy-seven cents, a portion of the revenue for the year eighteen hundred and fifty-five, and plaintiff avers that said Pleasant P. Cross, in his life time, and said defendants, since the death of the said Cross have neglected and refused to pay over the said sum of three thousand and eighty-nine dollars, and seventy-seven cents, found to be due on settlement as aforesaid, but the same still remains due and unpaid, by reason of which said failure to pay the said sum of three thousand and eighty-nine dollars and seventy-seven cents as aforesaid, the plaintiff avers that said defendants became indebted to said county of Arkansas, as a penalty for said failure, in the further sum of twenty-five per centum on the amount found due as aforesaid, and also in the further sum of fifty per centum peí annum on the said sum of three thousand and eighty-nine dollars and seventy-seven cents, from the date of said settlement until the same shall be paid, and which penalty and per centum as aforesaid, the said Pleasant P. Cross in his life time, and the said defendants have wholly neglected and refused to pay, and the same is now wholly due and unpaid; and so the plaintiff in fact saith that the said defendants have not kept the said covenant, so by them made as aforesaid, but have broken the same, and to keep the same with the said plaintiff, have hitherto wholly neglected and refused, and still doth neglect and refuse to the damage of the said plaintiff eight thousand dollars,” etc.
The defendants demurred to the declaration, the court overruled the demurrer, and they rested. A jury was'sworn, who found the breaches assigned in the declaration to be true, and assessed the plaintiff’s damages at $6,175,with interest on $3089,-77 thereof, from the date of the verdict until paid, at the rate of fifty per cent, per annum, and judgment was rendered for the damages and penalties so assessed; and the defendants appealed.
The action appears to have been founded on the following sections of chap. 147, Gould’s Dig. p. 922 :
Sec. 37. All collectors, sheriffs, clerks, ■ constables, and other persons chargeable with moneys belonging to any county, shall render their accounts to, and settle with the county court at each regular term thereof, and pay into the county treasuiy any balance which may be due the county, and take duplicate receipts therefor, and deposit one of them in the office of the clerk of the county court, within five days thereafter.
Sec. 38. If any person thus chargeable shall neglect to render true accounts, or settle as aforesaid, the court shall adjust the account of such delinquent according to the best information that can be obtained, and ascertain the balance due the county.
Sec. 39. In such case the court may refuse to allow any commission to such delinquent', and he shall moreover without delay, pay into the county treasury the balance found due as aforesaid.
Sec. 40. If such delinquent shall not pay the amount thus found due the county, and produce the treasurer’s receipt therefor within ten days after such balance is ascertained, the clerk shall charge such delinquent as a penalty for such failure, twenty-five per cent, on the amount then due.
Sec. 41. Unless such delinquent shall appear, on the first day of the next succeeding term of the county court, and show good cause for setting aside such settlement, the court shall enter up judgment for the amount due, with the penalty added thereto, and fifty per centum per annum thereon, until the same shall be paid, and may issue execution thereon.
Ses. 42. If good cause be shown for setting aside such settlement, the court may re-examine, settle and adjust the same, according to law, and may remit any penalty that may have been imposed.
It is clear, we think, that the penalties prescribed by sections 40 and 41, are to be visited upon the collector who neglects to render his accounts, and settle with the county court, as required by section 37. Lawson sheriff vs. Pulaski Co. 3 Ark. 9; Trice vs. Crittenden Co. 2 Eng. R. 159; Carnall vs. Crawford Co. 6 Eng. 623.
It is not alleged in the declaration that Cross failed to render his accounts and make settlement as required by the statute, and that as a consequence of such failure, the penalties prescribed by the statute were imposed upon him by the county court. On the coiitrary, it is averred that at the April term, 1857, he settled with the county court in respect to the revenue collected, or which should have been collected by him for the years 1854 and 1855, and in such settlement he was found in arrear and indebted to the county, in the sum of $3089,77, a portion of the revenue for the year 1855, which he and his securities had failed to pay over, etc.
• The 8th section of the same chapter imposes a penalty upon any collector, who, having made his settlement with the county court in respect to the county revenue, fails to pay over the amount due from him upon such settlement, but the declaration in this case does not claim the penalty imposed by that section. See Jones et al. vs. State use Pope Co. 14 Ark. 172.
The declaration having laid no foundation for the recovery of the penalties prescribed by sections 40 and 41 of the statute, it was erroneous to claim them in the breach, and the verdict and judgment for them were also erroneous.
The objection to the declaration, made in the demurrer, that the action should have been debt and not covenant upon the bond, is not well taken. It is true that the statute regulating the practice in suits upon penal bonds (Gould’s Dig. Ch. 27,) seems to contemplate the action of debt upon such bonds, but it does not expressly, nor by necessary implication, repeal the common law remedy by the action of covenant, which is con' current with debt upon such instruments.
The judgment must be reversed, and, the cause remanded, with instructions to the court below to permit the plaintiff to amend her declaration, etc. | [
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Mr. Justice Fairchild
delivered the opinion of the Court.
The affidavit of Benjamin C. Brown, that the complainants and hirpself did not know the place of residence of John B. Smith, was not sufficient to authorize an order of publication against him, or to make such order any notice to him of the suit. Nor is the affidavit attached to the amended and supplemental bill, sufficient for a foundation upon which to obtain constructive notice against William Park. A glance at the statute is enough to show that the first affidavit does not conform to the 13th see. of Chap. 28, Art. 1, Gould's Dig., and the plaintiff could not obtain publication against Smith, under the 15th section, until a subpoena had l^een returned not found, and the court had made an order of publication on being satisfied that ordinary process could not be served upon him.
The same affiant, in his second affidavit, says that he is informed and believes that William Park is not a citizen of this State. The statute contemplates that the oath shoujd be made by some one who knows what he is swearing, and so provision is made that the affidavit may be made by the plaintiff, or some person for him. What the affiant’s information and belief might have been was immaterial; what the statute required is an oath founded upon knowledge of the fact. Nor was it enough that Park was not a citizen of the State. He might reside in the State and not be a citizen of it, either from having his legal domicil in some other State or country, notwithstanding a temporary residence in this State, or he might have been an alien subject of some foreign potentate, or authority, and yet not liable to be sued, except upon actual notice as a resident of the State.
No decree pro confesso, or decree of any sort could be legally made against Smith or Park, as they were not liable to the constructive notice sought to be charged upon them. Brodie vs. Skelton, 6 Eng. 131, 132; Saffold vs. Saffold, 14 Ark. 408. We are not disposed to recede from the strictness which these cases, and Clark vs. Strong, 13 Ark. 291, exact, in proceeding under the statute that deals with parties as in court, without actual notice being given to them of the beginning of the suit. If we had any dispensing power over the statute we would not exercise it.
The orders of the court, recite that Smith and Park were, by the affidavits accompanying the bills, shown to be non-residents of the State; but to us the affidavits are significant of what is in them, and we are not required to gather their meaning from •the interpretation put upon them in the orders of the court below.
At the November term,'1857, of the circuit court of Critten-den county, the defendant Turnage, filed his answer, to which the plaintiff excepted, specifying three causes of exception; that the answer was vague and indefinite; that it admitted that Turnage claimed title to the land in controversy, under a patent issued to John B. Smith, of which he had an exemplification, and did not produce it; that he claimed title to the land under a deed from Smith, and did not exhibit or produce it, notwithstanding the plaintiff wished the original to be brought into court to be canceled. The court sustained the exceptions at the May term, 1858, and required Turnage to answer further within sixty days, and ordered that, in default thereof, the bill “ would be taken for true and confessed as against” him. At the November term, 1858, it was recited in an order, that Tur-nage “had wholly failed to appear and show cause why the decree pro confesso heretofore made and entered against him should be set aside, or otherwise to plead, answer, demur, or defend said suit.” Then the order continues to make the decree pro confesso final against Turnage, which is drawn out in full form.
Every thing done affecting Turnage, after he came into court, is erroneous. No decree pro confesso was ever taken against him; it only was to be dpne if he failed to answer further within sixty days, when, at the next term of the court, it was assumed, against the fact, that a decree pro confesso had been taken, against him, as it had been against Park. We need not inquire what Turnage’s rights would have been, if, upon his default to answer further, a decree pro confesso had been taken against him, as the order of May, 1858, declared would be done upon such default; as it was wrong to enter'a final decree upon a decree pro confesso, when none had been rendered, or taken against Turnage. But Turnage was not subject to a decree pro confesso, and to have entered one against him would have been an illegal act.
The first exception to his answer was itself vague and indefinite, not specifying wherein were the vagueness and indefiniteness of the answer. It was a general exception and should have been overruled-. 2 Dan. Gh. Pr. 882, (Perkins’ Ed.) There was no occasion for Turnage to file 'with his answer & copy of the patent to Smith. The patent was as important to the plaintiffs as to Turnage, and their interest was the same as his to exhibit a copy, which they did in their bill; they had no claim upon Turnage to require him to bring his copy into court. The second exception was not well taken. It was important for Turnage to exhibit with his answer and to produce on the trial his deed from Smith, if he wished to avail himself of it, as a ground of defense. But this was a consideration for himself alone, to be determined as he might be well, or ill advised, or as he might insist on, or yield his defense of having purchased the land and taken the deed in good faith. The plaintiffs had no claim upon the deed, and had nothing to do with it, except, to have it canceled, which could be done, and which they had done, without its production. The third exception contained no cause for declaring the answer insufficient. Without the deed it was a response to the bill, and put the plaintiff upon proof of its allegations. . Of course, the papers mentioned by Turnage in his answer, and all in his possession relating to the matter in controversy, were subject to the call of the court, on motion of the opposite party ; but an order could have been made upon Turnage to produce them, if proper to have been made, but that they were not exhibited with his answer was no cause for him to be burdened with filing another answer, and was no ground for the rejection of his defense.
The decree against Fisk will not be disturbed. His acknowledgment of service of the subpoena was good notice to him of the suit. The decree as against Smith/Park and Turnage is reversed, .The cause will be remitted to the court below-^Smith and Park to be taken as in court from their appearance to the case here, and will interpose their defenses under the direction of the court, and according to law. The exceptions to Turnage’s answer must be overruled, and Turnage is to file an amended answer if he shall wish to do so..
Smith, Park, and Turnage are to' have their costs in this court. | [
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Hon. Harris Flanagin, Special Judge,
delivered the opinion of the court.
This is replevin in the detinet for negroes, the stock of which, as claimed by'appellees (the plaintiffs below), were bought by Samuel Burke with his means, and by him conveyed to one Glover in trust, for the use of one Lucy Ann Burke, the wife of Virgil J. Burke, (the son of the grantor), for life, or until the youngest child of Lucy Ann Burke, by Virgil J. Burke, should arrive at twenty-one years of age, when the remainder should vest in the children of Lucy Ann Burke by Virgil J. That thu. purchase was made in the year 1841, and that the slaves remained in the family of Virgil J. Burke until after the death of Lucy, when he sold them to appellant, in the year 1851, who had notice of the appellees’ title. That the deed of trust was acknowledged and recorded in the State of Mississippi, where Virgil J., Lucy and Nathaniel Glover then lived, and where the negroes then -were, and it is admitted that, according to the laws of Mississippi, the acknowledging and recording had the same effect as the same acts would have under the laws of this state. That at the time of Hector McNeill’s purchase the children of Virgil J. Burke and wife were all minors.
On the part of the appellant, it is insisted that the negroes were bought by Virgil J. Burke with his means, and that, in order to hinder, delay and defraud his creditors, he caused the deed to be made to his father, Samuel Burke, and that the deed from Samuel Burke was made not by him, but by some one else in carrying out the same design. That Virgil J. Burke sold the negroes to him, who was an innocent purchaser without notice.
The appellees represent the children of Virgil J. Burke and wife. There was judgment for appellants, and the case brought to this court, (see 17 Ark. 173,) reversed, and upon a trial anew judgment was given for appellees, and appellant, without moving for a new trial, excepted and appealed.
The court below gave the followinginstruction: “ If the jury even believe from the evidence that Virgil J. Burke himself purchased the said negro slaves with his own money, and caused the title thereto to be vested in Samuel Burke, and the same to be conveyed by him to the wife of Virgil J. Burke until her death, or until the youngest child became of age, for the purpose of hindering, delaying or defrauding his creditors, or other persons, of their lawful actions or damages, etc., and that the defendant purchased said slaves from Virgil J. Burke, said McNeill cannot recover upon that ground, if the jury believe from the evidence that the said defendant, at the time of the purchase of said slaves, had actual notice thereof.”
The appellant says that this instruction is abstract, because there is no evidence of notice. R. E. Carrington, a witness, testifies that “ McNeill stated that they” (the notes for the purchase money) “ were given for the purchase of some negroes from Burke, and that they were made payable to Mildred Burke for the purpose of enabling him to show to the old man Burke that the proceeds of said negroes was for the benefit of Y. J Burke’s children, and that he was then corresponding, or had done so, with the old man, through whom he expected lo get a title.”
This court has nothing to do with the truth or weight of this testimony, but only to say, could a jury find notice to McNeill from it.
Under a statute requiring actual notice it was held in Curtis vs. Monday, 3 Metcalf 405, that in order to affect the purchaser “ it was held sufficient if it be such as men usually act upon in the ordinary affairs of life;” that the statute uses the phrase actual notice,’ as equivalent to the constructive notice which is to be presumed from the registry. “ But the party claiming under the unrecorded deed is not required to prove that the party claiming under a subsequent deed or attachment had certain knowledge of the deed, from the debtor to the party claiming under it; such knowledge, for example, as the party claiming by the attachment, or subsequent conveyance, would have if he had seen the first deed executed and delivered to the grantee. Something less than positive knowledge of the fact of the conveyance would be sufficient to constitute actual notice, within the true intent and meaning of the statute.” In Pomroy vs. Stevens, 11 Metcalf, it is held, that occupation and cultivation are not sufficient to find actual notice• of the deed under which the occupation was held. In Maine, two cases, reported in 26 Maine 484 and 29 Maine 140, distinctly hold that implied or constructive notice was not sufficient to meet the requirement of the statute of actual notice. Without holding that the testimony was such as a jury should have found actual notice, yet we think there was some evidence,'and the instruction was not abstract.
It is insisted that the eighth instruction was also erroneous, because the latter clause of the fifth section of the statute of frauds, page 518 oj Gould’s Digest, is added to the instruction. The clause is, “ unless it appear that the grantee in such con veyance, or the party to he benefited, was party or privy to the fraud intended.” The appellants claim that this clause destroys, for the purposes of this case, the balance of the section, as they insist that Glover, the trustee, and Lucy Ann Burke were parties or privies to the alleged fraud. Glover is not the party benefited, and any fraud by him committed would not affect the appellees.
Without deciding what effect Mrs. Burke’s coverture (if any fraud was committed by her) might have in saving her from the exception — the children do not claim through her, and are not affected by her acts. They claimed under a deed from Samuel Burke. It is proven they were minors in 1853, and consequently the oldest was only nine years of age at the time the deed was executed.
The ninth instruction was given, which is: “ That if the'jury believe from the evidence that Alexander, under the direction of Virgil J. Burke, made the bill of sale of the slaves, Lizzie and her children, to Samuel Burke, that forever precludes Virgil J. Burke from setting up any title thereto, whether the said Virgil.J. intended thereby to defraud his creditors or not.”
This instruction is not apphcable to the case; but would it be likely to mislead the jury? At the defendant’s instance, the court instructed the jury, that a conveyance of slaves made with intent to hinder or delay creditors, or other persons, in the collection of debts, is void as to creditors and purchasers prior or subsequent to such conveyance. Take the two instructions together, and the appellants could not have been prejudiced by the first being given.
It is again objected that an answer made by the witness Alexander to the interrogatory “ state, if you please, if you know any thing of the pecuniary condition of Virgil J. Burke, at the time or after you sold him said slaves,” was stricken out. The answer was, “ I knew nothing of his circumstances at the time, but the fact of his having said, bill of sale made in the name of his father, caused me to suspect he was embarrassed, and on enquiry afterwards I learned that he was.” The answer amounts to this, that he was told that Virgil J. Burke was embarrassed, whether by one or two he does not say. It is possible that on this subject common rumor or general notoriety might be sufficient. Common rumor or general notoriety are the concurring declarations of many persons. 1 Greenleaf on Evidence, 101. The statement here is too general to prove any thing.
It is urged that the court erred in refusing to permit the appellant to discredit a witness’ deposition by reading a former deposition of the same witness.
The former deposition does not appear in the record, but as it appears from the plaintiff’s brief, the difference is unimportant, it being in one instance that he delivered the negroes to Virgil J. Burke and wife, and in the other that he delivered them to Lucy Ann Burke. The delivery to Burke and wife of the wife’s property would have been a delivery to the wife, in law.
The court instructed the jury, at the instance of Arnold, that if the jury believed from the testimony that the said Hector McNeill did not pay the purchase money agreed upon to be paid, prior to notice of the plaintiffs’ claim, the jury must find for the plaintiffs.
It is unnecessary to decide this instruction, because it has been held by this court that where a jury would be compelled to find the same way upon the same state of facts, this court will not reverse, as held in Patterson vs. Fowler, 21 Ark., and numerous other cases.
The instruction is intended to prevent.McNeill from sustaining his defence under the 5th section of the statute of frauds, Dig. 548, which provides that “ no such conveyance or charge shall be deemed void in favor of an innocent subsequent purchaser, if the deed or conveyance shall have been duly acknowledged, or proven, and recorded, or the purchaser have actual notice thereof at the time of the purchase.”
In this case, the deed was, without question, acknowledged and recorded, and whatever strength there might be in other branches of the defence, the question of notice is wholly immaterial.
Holding, theiefore, there are no errors which can prejudice the appellant, the decree is affirmed.
Mr. Justice Compton did not sit in this case. | [
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Mr. Justice Compton
delivered the opinion of the Court.
Wilson Guthrie was sued in the Jackson Circuit Court on a bond executed by him to the plaintiffs, for the payment of $143-67, with interest at ten per cent, per annum.
He pleaded infancy, and the plaintiffs replied that the bond was given for necessaries.
A demurrer to the replication was overruled, and Guthrie saying nothing further, judgment was rendered against him, and he appealed.
The question is whether the plaintiffs are entitled to recover the value of the necessaries in an action on the bond. It is contended that, although an infant is liable for necessaries, he is not liable on a bond, especially one providing, as this does, for the payment of conventional interest.
Though there are highly respectable authorities to the contrary, the better opinion is, that where the instrument given for necessaries, is such as to admit of enquiring into its consideration, the infant is liable upon the instrument, and if the evidence be such as not to warrant a recovery for the amount, judgment may be rendered, pro tanto, for that part due on the instrument for which a minor would be legally liable. Earle vs. Reed, 10 Metc. 389; 13 Pick. 1; Haines vs. Tenant, 2 Rill (S. C.) 400; Dubose vs. Wheddon, 4 McCord 221; Reeves' Dom. Rel. 230 It is admitted that between adults, a contract may be apportioned and judgment given for that part of the consideration which is good, (Parish vs. Stone, 14 Pick. 198; Harrington vs. Stratton, 22 Pick. 516;) and no good reason can be given why the rule should not apply where an infant is concerned. Being liable for the value of the necessaries upon a quantum valebant, what protection would there be in permitting him to defeat an action on the instrument for the same amount ? Protection is the sole end of the infant’s privilege, and the latter should never be extended further than is demanded by the former.
Under our statute the consideration of a bond may be en-quired into and impeached, Gould's Dig., 666, 856 ; hence the rule above laid down applies to this case, and the judgment must be affirmed. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
Although this suit was brought by William K. Brinkley, and Nancy Brinkley, his wife, for themselves and for others, who are the children of a former wife of Willis, the principal defendant in this case, it must be treated as the suit of Brinkley and wife alone.
That there was a unity of legal interest between Brinkley ■and wife and the children of Ann Willis deceased, as legatees of the will 'of Alexander Floyd, did not authorize the former to institute a suit for the benefit of the latter.
Except in the instance of one or more creditors suing for all that may be interested in a fund, and in a few other instances, not including such a case as this, and not necessary to be mentioned here, persons whose interests are to be affected by a decree, should be made direct and original parties to a suit, so that they themselves, or their next friends, or legal representatives, may be liable for costs, and be personally subject to such orders as the condition of the case may require to be made upon the parties.
And no person is authorized to use the name of other persons interested in the subject of a suit, as acting for and on behalf of them, except for married women, infants, lunatics, or persons under some disability to sue for themselves; and in such case legal authority must be shown for interfering in their business. Otherwise, the persons who are to be co-plaintiffs must become so in their own persons, in their own names, and not by the intervention of an irresponsible person, who may be willing to urge a suit in their behalf. And if such as are interested with a plaintiff, will not unite with him in a suit, the rules of chancery practice afford a remedy by which his own interest need not suffer from their disinclination to sue.
In June 1831, Alexander Floyd, of Franklin county, Tennessee, made his last will, in which was the following clause, and upon which this suit.is founded:
“ Sixthly. I will that in twenty days after my burial, I wish all the balance of my personal property to be sold, and the amount thereof, together with all the balance of my effects or money I leave, to be equally divided amongst the surviving lawful heirs of my son William Floyd, deceased, and the heirs of my daughter, Ann Willis, deceased, intermarried with Anderson F. Willis.”
The above named Anderson F. Willis, defendant in this case, was appointed executor of the will.
On the 27th of May, 1833, the testator was dead, as his will was then offered for probate to the court of Pleas and Quarter Sessions of the coupty before mentioned, but owing to a legal contest of the will, it was not established till the Juty term, 1835, of the Circuit Court of Franklin county, whither the contest had been taken by appeal of Willis, executor of the will.
Although at the same term, Willis seems to have failed to give the bond required of him as executor, yet there is an order showing that, on the 23rd of November, 1835, he qualified as executor in the court of Pleas and Quarter Sessions.
The records furnished to us are wholly silent in the description of any property that came to the hands of Willis as executor, only showing that David McElroy, who had charge of Alexander Floyd’s estate during the latter part of the contest about the will, had obtained Willis’ receipt in full for all moneys, bonds, and effects of the estate, the receipt feeing dated 28th November, 1835.
Mrs. Brinkley is the survivor of, and represents the interests of the heirs of William Floyd, at least such is the claim of the bill, and is not controverted in the answer of Willis; and the bill preferred for her, by her and her husband, claims that Willis, as executor of Alexander Floyd’s will, received in trust for the heirs of William Floyd, and of Ann Willis, seven slaves, none of which have ever come to the hands of Brinkley and wdfe, for which, and for their hire to the amount of twelve hundred dollars, Willis is charged to be liable, one-half to the use of Brinkley and wife.
For the times of the events related, reference has been made to the after papers of the case, as the bill seems to have been drawn without the date of the transactions it narrates, and probably for this, and for other defects of indefiniteness, could not, without amendment, be the foundation of any decree.
Although the answer of Willis and its attempt to account for the disposition of the slaves of Alexander Floyd’s estate, may be indefinite in many parts, and unsatisfactory when definite, it shows that whatever responsibility may attach to him, accrues not from bad faith or fraudulent action, but in conse quence of having undertaken a trust, and of not procuring a legal discharge therefrom.
But before examining the facts which would determine the relative rights and responsibility of the plaintiffs, and of the defendant Willis, it may be well to ascertain whether the length oí time that intervened between the accrual of the right of the plaintiffs, and. its assertion by this suit, shall have the effect to make such examination unnecessary.
The defendant Willis, the executor of the will of Alexander Floyd, sometime after the will was made, appears to have married the widow of William Floyd, whereby Nancy Floyd, now Nancy Brinkley, became a member of the family of Willis, and was supported and treated by him as a child, till her marriage to William R. Brinkley, in February, 1841, -when she was still under twenty-one years of age.
It is abundantly shown by the evidence that in 1843, and before that time, William R. Brinkley was informed that his wife had a claim to negro property against Willis, under the will of Alexander Floyd, and that, in 1845, he employed alaw-yer to attend to this|interest. During this interval, from 1843, till the beginning of this suit in January, 1853, the parties were living in the same section of country, and no reason is shown why the suit could not have been as well begun at any time during the interval, as when it was begun.
While Nancy Floyd was an infant, the statute of limitations could not run against her; yet if it began to run before the marriage, it would not for that cease to run. Gould's Dig. ch. 106, sec. 31; Carter vs. Cantrell, 16 Ark. 165.
Though Brinkley and wife cannot have the benefit of different disabilities cumulative one upon another, it may not have any practical effect upon this case; because we are not certain that any cause of action existed against Willis concerning the slave George, till Willis had swapped him to Russey, which was about or near the time when the infant Nancy Floyd became Nancy Brinkley, and who thenceforward has been under the disability of coverture.
And more especially because the defendant Willis, as an executor and therefore a trustee, charged with the execution of an express trust till discharged therefrom by due course of law, would hold the property, or its proceeds, in trust for the legar tees, without he had by notorious acts hostile to their claim and right, renounced the trust and converted the property to his own use. Ferrill vs. Murry, 4 Yerg. 106; Kane vs. Bloodgood, 7 John. Ch. 124.
And after having done so, if called to account for the administration of his trust in a court of equity, the statute of limitations would not exchange his violation of' trust into a perfect title by the the flux of time. Courts of equity, which, in cases for the assertion of a right that is concurrent or analogous to a legal right, will apply the statute in obedience to legal rules, will not allow a defence founded upon the breach of an express trust to prevail: that is, will not give a faithless trustee of an express trust any benefit from a plea of limitations. Decouche vs. Savetier, 3 John. Ch. 215.
Still, any cause of action must be prosecuted within a reasonable time, and what shall be such time, so as to save the case from the bar of lapse of time, must be determined in each case upon its own circumstances. Hercy vs. Dinwoody, 2 Ves. jr. 93; Pomfret vs. Winsor, 2 Ves. 482.
We a^’e entirely uninformed how' long Willis would be held to be an executor, or a trustee, in Tennessee, where he assumed his trust, but if he had been an executor of an estate in this State, against whom an action accrued for non-performance of his duty as such, for eight years from the accrual of such action, he and his securities would be held' liable in an action at law upon his bond. Gould’s Dig. ch. 106, sec. 15. He would, also, be an executor, would hold property as such, until, upon settlement with the Probate Court, or removal from his trust by the court, he would be found subject to the consequences of a disobedience to legal authority. Baker vs. Grimes, July term, 1860.
But if it should be admitted that, in 1843, or 1844, the time when Mrs. Brinkley became of age, Willis as an executor in this State was obnoxious to such a suit as this, for the betrayal of a trust committed in 1840, the trust being undertaken in 1835, and not being closed in the Probate Court, we should hold that a period of ten years would not be a sufficient lapse of time to save him from rendering an account of his trust.
Lapse of time is allowed to be a defence to an equitable claim, because in the interval between the transaction complained of and sued for, the defendant may have discharged himself from the charge made against him, and have mislaid, lost, or failed to preserve the evidences of his discharge. Bud vs. Graham, 1 Ired. Eq. Rep. 198.
This defence ought not to be allowed when the defendant furnishes the facts upon which to charge himself, and shows by his own statement that he has not made restitution to'the beneficiaries whose rights he has violated, though, as in this case, the violation may have been committed under bad advice, and with no fraudulent intent.
Although in this case it may be that the defendant Willis, from his domestic relations to Mrs. Brinkley and their pecuniary consequences, ought not, by the exactions of retributive justice, to have been called upon to make the response as trustee, which the bill demands of him, we think that the time that has elapsed does not excuse him from making such response as he can, or from the consequences of the charges which his answer fastens upon him; and that the statute of limitations affords him no defence to the bill.
The negroes Ned, Jack, Esther, Sal, Jerry, and another one, whose name it is difficult to ascertain from the transcript, are not shown by the proof ever to have been in the possession of Willis, and except there be admissions in his answer, he cannot be charged with them.
The answer of Willis avers the delivery of Ned, Jack, and Esther to the widow of Alexander Floyd, as a part of her dower right. A reference to the will of Alexander Floyd, and to the inventory and sale list of his personal property, shows that he was in possession of considerable property, and upon the establishment of the will in the Circuit Court of Franklin county, the widow claimed her dower, renouncing the provision made for her in the will.
Then from the answer of Willis, supported by these circumstances, and by the testimony of the witnesses Willis and May, and in view of the lapse of time, we take it for granted that Jack, Ned and Esther were, for dower, or for some other good reason, passed over to Anna Floyd, widow of Alexander Floyd, soon after Willis obtained his letters testamentary upon the estate of Alexander Floyd, and that he is not liable to be called to account for them, for anything contained in his answer. The negro Sarah or Sal was passed to Mary Ann Floyd, as was required by the will of Alexander Floyd.
As to the slaves Jerry and the other one, the averment that they were delivered to Joseph Floyd with other property as his share, or part of his share of the estate, is very unsatisfactory, when the will leaves him but ten dollars, because he had before received such portion as the testator wished to give him. Yet the averment in the answer is but a faint one, qualified expressly by want of memory to give a distinct account of the matter, and in the answer there is no such admission, as in the absence of proof adduced by the plaintiff, ought to charge Willis on account of these two slaves.
But the case is different as regards the slave George, for without doubt, by the proof and by the answer, Willis received him as executor, as part of the undevised estate of Alexander Floyd; and he then belonged to the heirs of William Floyd, and of Ann Willis, his own former wife, and he had no right to take George as his own property, because some one ignorantly or wrongfully informed him that he was so entitled to do. That is not the way in which a testamentary agent should or can dispose of property, specially bequeathed, and no matter that is relied upon in the answer, or that can be conceived capable of being alleged, will justify such self-appro priation of property by an executor.
Although, there is no record of George having come to Willis’ hands as an executor, the proof and answer are sufficient to show such to be the fact. And it will not do for the possession of an executor to be called his own, and adverse to that of the legatees, because he may hope that such ill-advised information as he recites, may turn out to be good, or because he may rashly act upon it as good.
The interest of Mrs. Brinkley has been treated of in this opinion as the whole interest bequeathed to the heirs of William Floyd. That however may, or may not be so. There were three children of William Floyd; Leonard Floyd, who died before his father; Robert Floyd, who died in Texas in 1844; both without issue, and Nancy Floyd, the plaintiff, Nancy Brinkley. But whether Robert Floyd’s interest passed to his sister, or to his mother, the wife of Willis, we need not say as it is not before us, yet it would have to be determined before any final decree in favor of Brinkley’s wife could be made.
So far we have proceeded upon the idea that the residue of property mentioned in the will, included George and such slaves of Alexander Floyd as were not specifically bequeathed. This will deserve the consideration of the parties upon a further investigation of the case.
But conceding, for the present purpose, that George is so included, upon the principles expressed in this opinion the court erred in dismissing the bill of Brinkley and wife as against Willis. For not being entitled to plead the statute of limitations, and the lapse of time not being sufficient to discharge him from what his answer has charged upon him, he ought to account to Brinkley and wife for the wife’s interest in George. William Floyd’s heirs had the one-half interest; that belonged to Nancy Floyd and Robert Floyd, and when Robert Floyd died his part of the interest devolved as he willed it, or as the law of Texas, or of his domicil cast it.
But under the circumstances of this case, we are of opinion that no interest should attend that part of the value of George that shall fall to Brinkley and wife, before the beginning of this suit, as there has been delay in its commencement, which ought to operate against the plaintiffs. Lindsey vs. Lindsey, 1 Dessa. 155.
As to Russey’s administrator the decree is affirmed. Rus-sey’s title was perfect under the law of five years adverse possession of George.
As to Willis the decree is reversed, and Brinkley and wife will be permitted to amend their bill so as to sue only for themselves; and their right as to George is considered as established, unless impeached by other evidence, which both parties have leave to adduce; but whether that right be one hall or one fourth is to be made apparent upon a further trial. And Willis is to have leave to show, if he can, that the sixth item of the will of Alexander Floyd does not make him liable in this suit.
Brinkley and wife will pay the costs of Russey’s administrator, but will recover their own costs in this court against Willis. | [
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Mr. Justice Fairchilb
delivered the opinion of the court.
Joel Kelly, as common school commissioner of Union county, brought an action on a note which runs thus: “ Four years “ after date, we, or either of us, promise to pay J. L. May,com “ mon school commissioner of township eighteen south, of range “ fourteen west, or his successor in office, the sum of four hun- “ dred and sixty-five 11-00 dollars, with eight per cent, interest, semi-annually in advance from date, value received, this 20th “ day of .April, A. D. 1855.
W. M. WARE,
S. D. DRENNEN.”
The declaration alleges that May was described as commissioner of the township, when he should have been described as commissioner of Union county, that as common school commissioner, he held the note for the township., there being no trustees for the township, that the plaintiff was the successor of May, and as such, received the note from May.
It is immaterial whether the money represented by the note belongs to the county or the township, as, by the terms of the note, the legal title to it was in May or his successor in office. And it was proper for the plaintiff to show that the note was made payable to May, commissioner of Union county, by the style of commissioner of the township, and this is the effect of tire averment of the note. Nicholay vs. Kay, 1 Eng. 59.
This averment, with that of the plaintiff being the successor in office of May, stated a good cause of action in favor of the plaintiff, upon the note. Though, as has been stated above, the right of action on the note did not depend on the ownership of the money due upon the note, being in Union county, or in the township specified in the note, our opinion of the law arising upon this point is given in the case of Kelly vs. May, decided at the present term.
The declaration appears to be in debt, though the caption and the writ describe it to be in assumpsit, but the defect is cured, not being included in the points of demurrer.
The judgment of the court below in sustaining the demurrer was wrong, and must be reversed, with instructions for the defendants to plead to the declaration. | [
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BRANDON J. HARRISON, Judge
l/The issue here is whether one instance of corporal punishment of a four-year-old child with a leather belt, that spanned from the child’s upper-back to his knees and caused some bruising and mental anxiety, was sufficient evidence to support the entry of an order of protection against the child’s father, for five years. We hold that it was and affirm.
I. Background
The case started when Michelle Murphy filed a verified petition in the Saline County Circuit Court alleging that Timothy Smith had injured one of their children, S.S., while S.S. was visiting Smith in Texas. In the petition Murphy stated that Smith “had a very abusive past” and that he had been charged in Texas in 2008 for child endangerment and domestic violence. Murphy further alleged that when she picked up the three children from Smith after his summer visitation, S.S. “had bruises half way up his back across his buttocks Land down his right leg, from a belt.” Murphy stated that S.S. had been admitted to Pinnacle Pointe Hospital “because of the mental and physical abuse his father put him through” and because S.S. “threatened to kill himself, because he didn’t want to be part of a family anymore, because all families do is hurt each other.” Murphy asked the court to prohibit Smith from contacting her and the children and to award temporary custody or establish temporary visitation rights. An ex parte order of protection was filed the same day as the petition, on 10 August 2015. The order awarded custody of the children to Murphy.
A “Final Order of Protection” was entered on 16 November 2015 following a hearing that same day. The order states that it is effective until 16 November 2018 and prohibits Smith from having visitation with the children “unless and until modified by the judge on the divorce.” It was signed by a district court judge. Smith filed a timely motion for a new trial on 30 November 2015, alleging that the recording device present during the hearing was not fully operational and that the court erred in granting a protective order because “child abuse does not include physical discipline of a child when it is reasonable and moderate and is inflicted by a parent or guardian for purposes of restraining or correcting a child.” The district court granted the motion for new trial, and a second trial was held on 24 May 2016."
Smith appeals the final order of protection that was entered on 25 May 2016. His notice of appeal states that the “Order was entered by the District Court pursuant to Administrative Order 18(b)(2) and is therefore a final order of the Circuit Court.... Appellant takes this Appeal to the Arkansas Court of Appeals.”
| aII. Jurisdiction
An appellate court must raise jurisdictional issues even when the parties do not. See Barclay v. Farm Credit Servs., 340 Ark. 65, 8 S.W.3d 517 (2000). In this case, a district judge signed the order of protection; the order was then filed with the circuit court clerk. District courts’ subject-matter jurisdiction is established by supreme court rule. Ark. Const, amend. 80, § 7(B); Ark. Code Ann. § 16-17-704 (Repl. 2010). Arkansas Administrative Order Number 18(6)(b) provides that a state district court judge may be referred matters pending in the circuit court: “A state district court judge presiding over any referred matter shall be subject at all times to the superintending control of the administrative judge of the judicial circuit.” Ark. Sup. Ct. Admin. Order No. 18(6)(b). Referred matters can include any case in the civil, probate, or domestic relations division in which the parties have agreed in writing to proceed in the district court, “protective orders,” forcible entry and de-tainers and unlawful detainers, and other matters. Ark. Sup. Ct. Admin: Order No. 18(6)(b)(l)—(4). If there is an appeal, the court reporter assigned to the circuit judge who referred the case to the state district court is charged with transcribing the audio tape and certifying the transcript. Ark. Sup. Ct. Admin. Order No. 4(e)(1)—(2).
Administrative Order No. 18(6)(c) states that
[ejxcept for the exercise of consent jurisdiction which is governed by subsection (d), with the concurrence of a majority of the circuit judges of a judicial circuit, the administrative judge of a judicial circuit may refer matters pending in the circuit court to a state district court judge, with the judge’s consent, which shall not be unreasonably withheld. A final judgment although ordered by a state district court judge, is deemed a final judgment of the circuit court and will be entered by the circuit clerk under Rule 58 of the Arkansas Rules of Civil Procedure. Any appeal shall be taken to the Arkansas 14Supreme Court or Court of Appeals in the same manner as an appeal from any other judgment of the circuit court. An order that does not constitute a final appealable order may be modified or vacated by the circuit judge to whom the case has been assigned as permitted by Rule 60 of the Arkansas Rules of Civil Procedure.
There is no evidence in this record that the parties consented to the district court’s jurisdiction; nor is there evidence of a referral from the circuit court to the district court. But there is no objection to the fact that a district-court judge decided the ease, and the 22nd Judicial District of Arkansas Administration Case Allocation plan provides that the Saline County District Courts shall have all authority permitted under the Arkansas Supreme Court’s Administrative Rule No. 18 and that the Bryant division shall hear all final orders of protection cases. District Judge Casady is the only judge in the Bryant division. So pursuant to Administrative Order No. 18(6)(c), the final order of protection may be appealed directly to our court as could be done from circuit court, and the appeal procedures embodied in Arkansas District Court Rule 9 do not apply.
A final order of protection entered in circuit court pursuant to section 9-15-205 is appealable under Ark. R. App. P.-Civ. 2(a)(1). See Steele v. Lyon, 2015 Ark. App. 251, 460 S.W.3d 827; Hancock v. Hancock, 2013 Ark. App. 79, 2013 WL 543901. Smith filed a timely notice of appeal to this court from the final order of protection. We therefore conclude that we have jurisdiction to decide his appeal.
III. Sufficiency of the Evidence
Because Smith essentially raises a sufficiency-of-the-evidence point, we will provide a more detailed factual background before addressing his argument. During the May 2016 trial, licensed counselor Sun-nie Butcher Keller testified that Smith’s child, S.S., was referred |sto her care from the Sheridan School District around the last week of August 2015. Sunnie was also a counselor for E.S., S.S.’s older sister. In the fall of 2015, Sunnie transcribed E.S.’s version of the leather-belt incident. The transcript was admitted as Petitioner’s Exhibit 2.
According to E.S. the incident happened in July. She recalled eating breakfast and then going outside to play. S.S. wanted to play on his tablet in the kitchen, but Dad would not let him. E.S. said that S.S. became upset and kept asking Dad, who threw the tablet to the ground and it shattered. Dad walked away to his bedroom, and E.S. gave crying S.S. a hug and told him everything was fine. Dad returned to the living room and began to play a video game that S.S. wanted to also play. S.S. kept asking to play and Dad became “aggravated,” dropped the video-game controller, and went back to his bedroom, slamming the door. S.S. was upset and crying and E.S. gave him another hug. E.S. asked Dad if they could play outside and he said ‘Tes but stay out of trouble.” E.S. said that the spanking occurred in the living room with a plain leather belt, that S.S. was crying, that Dad hit him “a bunch,” that Dad screamed “Go to your room,” and that she saw bruises on S.S.’s back.
E.S. also testified during the trial that she wrote the document that Sunnie had typed. She said that Dad had spanked S.S. with a black leather belt and that S.S. cried “for like an hour.” According to E.S., Dad gets mad “often” when she and her brothers are with him. She said that she misses her dad but she is scared that “he’ll do that to me, [my brother], or [S.S.] again.” When asked on cross-examination if Dad said, “I promise to not use spankings at all, I promise not to hit children at all; would you then—would you want to go back and see him again?” She said yes.
|flS.S. testified that he was five, almost six, years old. He said that he remembered a spanking that happened, he didn’t want to talk about it, and he denied that it was scary. On cross-examination, he responded “Uh-huh” when asked if he would like to see his dad again,
When examined by the court, S.S. acknowledged- that he remembered the spanking, that he received it because he “got in trouble,” but that he didn’t remember what he got in trouble for. S.S, said that his dad caused bruises on his “hiney” and his leg.
Sunnie, the counselor, testified that she had no reason to believe that either S.S. or E.S. had-been coached or told to say something. She explained that S.S. had been diagnosed "with post traumatic stress disorder after his behavior was becoming “unmanageable • across all settings.” S.S.’s symptoms included hypervigilance and trouble sleeping. Sunnie said that S.S. throws tantrums when his mother leaves and has to be “literally physically taken out of a vehicle.” When questioned by- the court, Sunnie said that she felt that “not being around Dad has been beneficial” and that because of his age and lack of insight 5.5. had not been able to process his feelings about the incident. She explained to the court that E.S. and S.S. have had a difficult time with two types of emotions they have for their father: feelings of anxiousness/not wanting to get hurt again and feeling that they both really want to see their dad.
On cross-examination, Sunnie acknowledged that the children have expressed a willingness to see their father. When asked if the children would be able to visit their father if he was “willing to commit to just simply not use corporal punishment,” Sun-nie responded that if Smith were closer in proximity and “mom was readily available to [S.S.] at any time |7... that might be a possibility.” She further explained that 5.5.’s attachment to his mother “is definitely one you would have to—you would have to see in a setting ... the physical aggression to slapping her, cussing her out ... but yet he wants mom ... that is what you call an insecure attachment.”
She further acknowledged that there were periods of time when S.S. got better and suddenly worse and that he had no contact with his father “at the time he got worse.” Sunnie also testified that she never talked to Smith because “it wasn’t on the consents to do so.” She acknowledged that, per his mother, S.S. had behaviors like opposition, defiance, and arguing “to a certain degree” before the incident. But that after the incident. S.S. reportedly “wanted to die,” which is why he was referred to Sunnie for outpatient therapy after his discharge from acute inpatient treatment in August 2015.
Cody Evans, a friend of Murphy’s, said that she went with Murphy to pick up the kids from Smith at a' halfway point in Texas. Evans did not recall the date. They stayed with the children in a hotel and when S.S. began to change into his pajamas, Evans noticed red marks on his back and “bruises on his back, down his legs, and all the way to his ankles.” She took pictures of S.S.’s back and described the bruises as ones “in the shapes of belt marks.” The photos were collectively admitted as Exhibit 1.
Murphy testified that the visitation schedule with Smith was one weekend a month, every spring break, alternating holidays, and a six-or-seven week visitation period during the summer. She also said that she and Smith had discussed trying to get S.S. to therapy for his hyperactivity before the incident occurred. After Murphy saw the bruises on S.S. in the hotel room, she called a child-abuse hotline, filed a police report, and took S.S. to a hospital. | gin August 2015, S.S. told Murphy that he wanted to kill himself, which was about a week and a half after he had returned from his father’s, stating that if “he wasn’t here, then we wouldn’t be arguing over him.” S.S. was referred to and received acute mental-health inpatient treatment.
On cross-examination, Murphy stated that Texas child-protective services investigated- Smith. Exhibit 3 is a letter from the Texas agency stating that “a preponderance of the evidence supports that the alleged abuse or neglect did occur.” It lists Smith as the perpetrator, S.S. as the victim, and physical abuse as the finding. Murphy also said that there was a prior incident in Corpus Christi involving E.S. and that Smith had been ordered to take anger-management classes.
Smith testified on his behalf and said that he had spanked his children “less than three times in their entire life.” According to Smith, S.S. went inside the neighbor’s house without permission after Smith had told him specifically not to go there. When S.S. returned, Smith said that S.S. stated that “he was fixing to go back home to his mom's house, and that there was nothing I could do about it,” and then S.S. punched Smith’s face. Smith then said he gave S.S. three swats with a belt. Smith testified that while Texas child support services did not “recommend against using corporal punishment” he had made a decision that using corporal punishment “seems like it’s more trouble than it’s worth.” He also said, “I’ll never spank my kids again. I never liked spanking in the first place. That was her punishment. Her type of punishment was spanking.” He also said that Murphy had accused him of raping E.S., but no one ever followed up on that accusation. Smith thought | gthat E.S.’s story about the spanking was inaccurate because his girlfriend was not present and she “usually came over in the evenings.”
On cross-examination, Smith testified that he is five feet eleven and weighs 210 pounds and that S.S. weighs about 40 to 55 pounds. He also said that Murphy’s testimony that he was ordered to take anger-management classes was a “bold face lie” and that the spanking occurred “earlier that week sometime”; he did not say which day it occurred or how many days before the children were driven to the halfway point for pick up.
As we said earlier, the court entered a final order of protection on 25 May 2016. The order states, in part, that
1. The burden of proof has been met.
2. The testimony regarding how [S.S] obtained the bruising is consistent and it is not disputed. The father caused [S.S.’s] physical injuries. As a result of that physical harm, there has been harm to all three children.
3. The “spanking” was not reasonable. It was NOT moderate. It is not appropriate discipline. The Court resents that the term “spanking” is used to describe what happened in this case. Corporal punishment is allowed by Arkansas law. If this were reasonable and moderate, the order of protection would not be necessary to prevent future harm.
4. The Court heard testimony of several witnesses and assessed the credibility of each person. Various weight was given to each based on how truthful they were found to be.
5. The therapist was genuine and unbiased. She is concerned with the children and what is in their best interest. She testified that [S.S.] has a PTSD diagnosis and that he can’t begin specific treatment for that diagnosis until he is six years old.
6. The mother was a credible witness. She did all that she could when she discovered the bruises. She contacted Lufkin Police, she contacted CPS in Corpus Christi, she took [S.S.] to Arkansas Children’s Hospital, photographed the bruises, and got [S.S.] in therapy.
| in7. Specifically, the Court considered the fact that the father does not believe his actions were wrong. He did not indicate any remorse through his words or how he conducted himself in the courtroom. The Court watched him throughout the entire hearing, his demeanor was completely inappropriate. He smirked throughout the hearing. He did not display proper emotion as the witnesses testified about things that were very serious and painful for his children.
8. [E.S.] and [S.S.] were asked if they wanted to see their father. Of course they do. Children who suffer way more serious abuse still want to see their abuser. That is not uncommon. It is not their decision. The Court must decide for them. In this case, there was no testimony to allow the Court to believe the father won’t do this again. He has not participated in any services. He doesn’t even think he did anything wrong.
9. The order of protection will expire on May 24, 2021 unless a court of competent jurisdiction finds otherwise.
IV. Analysis
At the hearing on a petition filed under the Domestic Abuse Act, upon a finding of domestic abuse, the circuit court may provide relief to the petitioner. Ark. Code Ann. § 9-15-205(a) (Repl. 2015). “Domestic abuse” is defined as “[p]hysieal harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members.” Ark. Code Ann. § 9-15-103(3)(A). Our standard of review is whether the court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Bohannon v. Robinson, 2014 Ark. 458, at 5, 447 S.W.3d 585, 588. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Id.
InSmith’s essential argument is that a single incident of spanking with a belt is not sufficient to justify the order of protection; he believes the court’s order is a “severe deprivation of parental rights.” And he cites several eases for the proposition that “corporal punishment by a parent is not per se child abuse under Arkansas law” and “the existence of bruising after a spanking is not adequate to establish excessive corporal punishment.”
We are not moved. None of the cases Smith cites were decided under the statutory definition of domestic abuse contained in Ark. Code Ann. § 9-15-103(3)(A), which is part of the Domestic Abuse Act and is the law that governs the issuance of protective orders. Smith instead relies on cases that addressed corporal punishment within the context of the criminal law and the juvenile code. See, e.g., Johnson v. Ark. Dep’t of Human Servs., 2012 Ark. App. 244, at 7, 413 S.W.3d 549, 553 (child not dependent-neglected when spanking caused only transient pain); Brown v. Brown, 76 Ark. App. 494, 503, 68 S.W.3d 316, 322 (2002) (corporal punishment by a parent was not necessarily child abuse); Sykes v. State, 57 Ark. App. 5, 940 S.W.2d 888 (1997) (holding that grandmother did not commit second-degree battery by spanking 11-year-old grandson with telephone cord when there was no evidence of bruising or bleeding); see also Ark. Code Ann. § 9-27-303(3)(A) (defining “abuse” under the juvenile code and excluding “[pjhysical discipline of a child when it is reasonable and moderate and is inflicted by a parent or guardian for purposes of restraining |12or correcting the child”); Ark. Code Ann. § 5-1-102(14) (defining physical injury); Ark. Code Ann. § 5-2-605(1) (defining justifiable physical force).
These cases inform, but do not control, our decision today because we must apply the statutory definition of “domestic abuse” under section 9-15-103(3)(A). “The remedies available under the Domestic Abuse Act are unknown to the common law and are completely governed by statute.” Wills v. Lacefield, 2011 Ark. 262, at 5, 2011 WL 2412904 overruled on other grounds by Bohannon v. Robinson, 2014 Ark. 458, 447 S.W.3d 585. Also, the “statute does not mean that a petitioner who alleges domestic abuse or the threat of domestic abuse is precluded from seeking an order of protection if he or she could also seek other remedies, such as criminal charges or civil damages.” Steele v. Lyon, 2015 Ark. App. 251, at 3, 460 S.W.3d 827, 830; Contra Mark M. Killenbeck, And Then They Did ...? Abusing Equity in the Name of Justice, 44 Ark. L. Rev. 235 (1991).
Not many cases have determined the scope of the term “domestic abuse” as it is defined in section 9-15-103(3)(A); fewer still have addressed the corporal-punishment context. But here are examples where domestic abuse has been found:
• When a boyfriend grabbed a girlfriend, screamed obscenities in her face, and burst a beer bottle behind her at a party, causing her to fear for her safety. Pablo v. Crowder, 95 Ark. App. 268, 236 S.W.3d 559 (2006).
• Threats to beat up a girlfriend four months before the petition was filed can constitute domestic abuse under the statute. Simmons v. Dixon, 96 Ark. App. 260, 240 S.W.3d 608 (2006).
• A girlfriend hitting a boyfriend and then sending text messages threatening that she would kill herself in front of him, among other things. Steele v. Lyon, 2015 Ark. App. 251, 460 S.W.3d 827.
• Gunshots fired outside house by a spouse. Davenport v. Burnley, 2010 Ark. App. 385, 2010 WL 1790780.
| ^Events that have not met the definition of domestic abuse are:
• Teenage boyfriend procuring morning after pill for teenage girlfriend. Claver v. Wilbur, 102 Ark. App. 53, 280 S.W.3d 570 (2008).
• A car accident. Bohannon v. Robinson, 2014 Ark. 458, 447 S.W.3d 585.
• Some bruising on a neighbor that “was not inconsistent with fingerprints.” Newton v. Tidd, 94 Ark. App. 368, 369, 231 S.W.3d 84, 85 (2006).
• Husband pulling phone out of wall and closing living-room blinds. Oates v. Oates, 2010 Ark. App. 345, 377 S.W.3d 394,
Recall that the definition of domestic abuse is “[pjhysical harm, bodily iryury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members.” Ark. Code Ann. § 9-15-103(3)(A). Given the statutory definition and the facts of this case, we hold that the court’s finding of domestic abuse is not clearly erroneous or clearly against the preponderance of the evidence. A four-year-old child incurred a bodily injury when his father struck him up and down with a leather belt, leaving bruises. (Color photographs of the child’s bruised body were introduced as evidence.) The child’s therapist testified about how traumatic the experience was for S.S. and that is why the child said he wanted to kill himself and needed inpatient mental-health treatment. E.S. testified that she feared her father would do the same thing again, and Murphy expressed the same fear. There were true Endings against Smith by child-protective services in Texas. The court did not find Smith to be a credible or remorseful witness. The court credited Murphy and weighed the therapist’s testimony heavily in favor of issuing the protection order. We defer to the court’s assessment of the witnesses’ credibility and its determination | uthat the way Smith struck S.S. with a belt was not a reasonable or moderate discipline technique and affirm on this point.
After finding domestic abuse, the court may grant relief for a fixed period of time not less than ninety days, nor more than ten years, subject to renewal at a subsequent hearing upon finding that the threat of domestic abuse still exists. Ark. Code Ann. § 9-15-205(b). One of the options available to a person seeking a protective order is to award him or her temporary custody of minor children; temporary visitation rights may also be established. Ark. Code Ann. § 9-15-205(a).
Here, the district-court judge found that Smith should have no visitation with his children for five years (until 24 May 2021). In his appellate brief Smith makes a passing, one-sentence argument on this point: “The duration of the order is far out of proportion for the alleged conduct here.” But he does not develop the point or cite any authority for reversal. So we will not address the order’s duration. See Baptist Health v. Murphy, 2010 Ark. 358, at 30, 373 S.W.3d 269, 289 (appellate court need not address arguments that are not sufficiently developed and lack citation to authority). We are, however, impelled to state that the court’s visitation determination is a temporary determination under the Domestic Abuse Act and may stand until the court with original jurisdiction enters a subsequent order regarding the children under the Uniform Child-Custody Jurisdiction and Enforcement Act. Ark. Code Ann. § 9-15-205(3); Ark. Code Ann. § 9-15-215; Ark. Code Ann. § 9-19-204. Orders of protection are also subject to modification .under Ark. Code Ann. § 9-15-209.
The entry of the final order of protection against Smith is affirmed.
h ¡Affirmed. ■
Gladwin and Murphy, JJ., agree.
. Murphy says that Smith’s arguments are not preserved, She is mistaken. The district court made findings that specifically addressed Smith’s corporal-punishment argument; and he could have challenged the sufficiency of the evidence for the first time on appeal following a bench trial. Bohannon v. Robinson, 2014 Ark. 458, at 5, 447 S.W.3d 585, 588 (A party who does not challenge the sufficiency of the evidence during a final hearing on a protective order does not waive the right to do so on appeal.). | [
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Hon. Harris Flanagin,
Special Judge, delivered the opinion of the Court.
The trustees of the Real Estate Bank, on the sixth day of August, 1851, filed their bill in chancery, in which they charge: That on the fourth day of August, 1837, William Cummins executed a mortgage as a stockholder in the Real Estate Bank, in the usual form, on the north fractional half of section 33, and the south west fractional quarter of section 28, in township two north of range twelve west, which was acknowledged and recorded October twenty-third, A. D. 1839. Cummins died April 7th, 1843.
In December, 1843, the trustees, who had become possessed of the-assets of the Bank, brought their bill to foreclose for money borrowed by Cummins, and a decree was had. On the 20th day of May, 184G, a sale was had under the decree, at which the trustees bought the land. On the 14th day of September, 1839, David Walker, by Absalom Fowler, his attorney, recovered a judgment against William Cummins, which was a lien on the land. A fi. fa. was issued, and was levied on the seventh day of June, 1841, on the “fractional south west quarter of section 33, and the south west fractional quarter south west quarter of section twenty-eight,” and was suspended from sale for one year, under the law, because they did not bring two-thirds of their appraised value.
Before the expiration of twelve months, an alias fi. fa. was issued, and was returned by Fowler with a credit endorsed thereon.
On the third day of August, 1842, another fi. fa. was issued and levied on other lands which were appraised and offered for sale, and not sold because they would not bring two-thirds of their appraised value.
On the third day of November, 1844, a ven. ex. was issued commanding the sale of the property levied on June 7th 1841; a sale was had and Milton Fowler bought them, and on the 23d day of April, 1845, received a deed from the sheriff for the lands described in the levy, i.- e., the fractional north west quarter of section 33, and the fractional south west quarter of the south west quarter of section 28, in township two north, in range 12 west.
The judgment against Cummins was not revived against him in his life time, or against his heirs or administrators after his death.
Milton Fowlei had possession from shortly after the sale until his death in January, 1849, when Absalom Fowler administered and took possession.
An action of ejectment was instituted for the lands and was suspended by the death of the defendant and the plaintiffs George Hill and Ebenezer Walters.
Prayer for rents and that the complainants’ title may be quieted and have possession.
The case was ordered to progress in the name of Peay, as receiver.
The answer of Fowler and of Walker and wife denied that the irregular executions were issued by the direction of the plaintiff — pleads the five years limitation — avers that the suit was voluntarily dismissed by plaintiff — denies the jurisdiction— and says Milton Fowler was an innocent puichaser without notice. The answer was filed February, 12th 1857.
The parties made an agreement whereby the exhibits were to be read without further proof. That William Cummins died April 7th, 1843. That Milton Fowler had possession from his purchase until his death. That his heirs and administrators had possession up to February 22nd', 1853, and that Green Walker and wife had possession from tha.ttime until now.
The annual rents were worth $50.
A transcript of the ejectment suit was read in evidence, whereby it appeared that complainants and George Hill and Ebenezer Walters brought ejectment-on the ninth day of October, 1848, for the land in .controversy — -a scire facias to revive in the name of the surviving plaintiffs against Milton Fowler’s representatives was issued September, 10th 1850 — a plea filed by the representatives of Milton Fowler, December 14th, 1850— plaintiff took a non suit.
There was a decree for the complainants, and the defendants brought this case here by appeal.
The first error assigned is, that the record in the ejectment was received in the case as testimony.'
It was ruled in Trapnall’s adm'x vs. Byrd et al., decided at this term, that a record referred to in the pleadings and proving itself could be read at the hearing.
The second point urged by appellants is, that the complainants had a remedy at law, and that the court had no jurisdiction.
It has been held in this court as well as by most other chancery courts that a court of equity has jurisdiction to remove clouds from the title to real estate. Shell et al. vs. Martin, 19 Ark. 139.
It is insisted that the dismissing of the action of ejectment is not equivalent to suffering a non suit: that a suit at law will not save the limitation in a chancery proceeding and that this was instituted whilst the other action was pending.
The act of Virginia provides that on a reversal or arrest of a judgment for the plaintiff, a new action may be commenced in one year. In Brown's Executors vs. Putney, 1 Washington R. 390, the court held that a suit that went out of court by abatement was within the act, and if another was brought within one year, it was sufficient.
The British statute is, in substance, the same as in Virginia, and there are numerous authorities that a suit abated by death is within an equitable construction.
In Coffin vs. Cottle, 16 Pick. 683, the court held: “ This is a remedial statute, both in its enacting and qualifying clauses, and should have such construction as will best carry into effect the intent of the legislature. The statute is founded on the presumption, that if a creditor has permitted his debt to remain a certain length of time without an attempt to enforce it, or to revive and perpetuate the evidence of it, it is paid or otherwise discharged. This presumption arising out of the nature of the fact itself, for the convenience of having a certain and practical rule, is limited to a certain fixed time, and after such time made a positive bar by the force of the statute. But this presumption does not arise if the creditor resorts to legal diligence to recover his debt within the time limited.”
This court decided, State Bank vs. Magness, 6 Eng. 344, that a judgment by dismissal was sufficient to sustain a plea of action within the limitation and non suit: and the court say, “it is the apparent intention of the framers of the act, to secure that class of suitors from loss who, from causes incident to the administra,tion of the law, are compelled to abandon their present action, whether by their own act or the act of the court, where either would leave them a cause of action yet undetermined, by giving them a reasonable time within which to renew such action.
The remedy was intended to be co-extensive with the evil, and will be so held unless some sensible reason to the contrary shall be shown. This cause was dismissed by the court for want of a bond for cost.
In Biscoe et al. vs. Madden as ad., 17 Eng. 533, it is held that where a former suit is an erroneous proceeding on account of error in formal parties, if brought for the same beneficiaries on the same cause of action, it is sufficient.
We have no difficulty in holding that section twenty-seven in Gould’s Digest, under the head of Limitation, is to-have a liberal construction, in order to save the rights intended to be preserved, and that a voluntary dismissing of- a suit is as effectual as a formal non suit, and - that it makes no difference that the first suit is at law, and that the second is in chancery. The plaintiff took no steps in the ejectment suit, except to dismiss it, after the commencement of the chancery suit, and as he might have then dismissed his suit, and commenced anew within one year in chancery, it can be no objection that one then commenced should progress.
Again, it is objected that section 21, page 530, Revised Statutes, which prescribes where a plaintiff shall commence an action within the time prescribed in said act, and shall suffer a non suit, he may bring another action within one year, does not apply to a plea under section 35, for the reason that section 35 was approved March 3rd, 1838, while the remainder of the general act of limitation was approved on the 5th day of March, 1838.
On page 697, Revised Statutes, it is provided that: “ For the purpose of construction the Revised Statutes passed at the present General Assembly, shall be deemed to have been passed on the same day, notwithstanding they may have been passed at different times, but if any provisions of different statutes are repugnant to each other, that which shall have been last passed shall prevail, and so much of any provisions as may be inconsistent with such last provisions shall be deemed repealed thereby.”
Under the above enactment all the statute provisions under the head of limitations become one law or act by virtue of the proclamatioirof the Governor, in the year 1839, and are to be construed together when they do not conflict. There is nothing in these enactments, which prevents them from standing together.
The thirty-fifth section fixes a limitation upon actions for property held by virtue of judicial and tax sales, and contains its own exceptions, which do not save the rights of married women, as held in Pearce et al. vs. Elliott et al., 20 Ark. 508. The first five sections contain the general limitations as to real estate, with savings or exceptions, while the sections from five to twelve inclusive fix the limitation to personal actions, to which are added the exceptions in the thirteenth section. ‘Each act of limitations has its own exceptions while all are affected by the general provisions which were intended to regulate the practice on this subject.
While fully recognizing the rule that a limitation law is not affected by exceptions not included in the act, on this point we hold that, for the purpose of costruction, the thirty-five sections under the head of limitations in the Revised Statutes, are to be construed as one act, and actions barred by the thirty-fifth section are subject to the provisions of the twenty-first.
Let the decree be affirmed.
Mrl Justice Fairchild did not sit in this case. | [
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Mr. Justice Compton
delivered the opinion of the court.
On the trial of this case in the court below — it being an appeal from the decision of a justice of the peace to the Circuit Court — the appellant offered in evidence the writing obligator! sued on, which was payable to him in his official capacity as Internal Improvement Commissioner, for one hundred dollars, “with ten per cent, interest per annum semi-annually in advance from date till paid;” but the court excluded the evidence, upon the ground that the writing obligatory was usurious and void. Yerdict and judgment followed for the. defendant, and a new-trial being denied the plaintiff, he prosecuted his appeal to this court, and contends here, that the instrument sued on was not usurious.
Under our statute, creditors are allowed to receive interest at the rate of six per centum per annum, where no other rate is agreed upon, though the parties may agree in writing for the payment of interest not exceeding ten per centum per annum; and by the 7th section, it is provided, that-all contracts or securities whereby there shall be reserved, taken or secured, any greater sum or value for the loan or forbearance of money, &c., than is prescribed in the act, shall be void, Gpuld’s Dig., chapter 92.
It is obvious, that by receiving the interest in advance, the plaintiff would get more than ten per cent, per annum for the money actually loaned ; and such being the agreement of the parties in the case before us, as appears by the face of the obligation, it was a palpable violation of the statute, and therer fore, usurious. The authorities cited by the counsel for the defendant in error, are cases where it has been held that bankers and those dealing in bills of exchange or promissory notes, by way of trade, are allowed to take interest in advance, though, by doing so, it exceed the legal rate. But this privilege, as will be found on examination of the cases, has been uniformly confined to such person, and may be regarded as an exception to a general rule. Bank of Utica vs. Wager, 2 Cow. 769, (opinion of Savage, Chief Justice,) 3 Pet. 40; Fleckner vs. U. S. Bank, 8 Wheat. 338; The Manhatten Comp. vs. Osgood, 15 Johns 108; Marsh vs. Martindale, 3 B. & P. 154.
It is the duty of the Internal Improvement. Commissioner to loan the public funds in his hands as by law he is directed, and it is not contemplated by the statute that the bonds taken shall circulate as negotiable instruments for the benefit of trade ; it cannot, therefore, be seriously contended that he comes with-, in the exception.
To render the obligation void, it was not necessary that the plaintiff should actually, receive .the interest in advance ; the agreement that it should be so paid, was sufficient within the meaning of the statute.
Let the judgment be affirmed. | [
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Mr. Justice Fairchild
delivered the opinion of the Court. .
On the 21st of January, 1853, Samuel F. Mains executed’his bond for the proper administration of the estate of Elizabeth Cameron, with Levi B. Stroop, as one of his sureties. In November, 1854, Stroop having died, the Probate Court of Ashley county ordered Mains to give a new bond, and on the 23d of January, 1855, he gave a new bond with other sureties, in compliance with the order, which was accepted' by the Court. On the 23d of October, 1855, the Probate Court ordered Mains to pay to the distributees of Elizabeth Cameron, fourteen hundred and fifty-two 9-100 dollars, and the non-payment of this money is the breach of Levi B. Stroop’s bond, alleged in this suit as a sufficient ground for recovery against his administrator, the defendant below, and the defendant in error.
Although the pleadings are drawn out to considerable length, being a declaration in debt upon the first administration bond» five pleas thereto, with two replications to several of the pleas, and demurrers to the replications, there is but a single question growing out of them for our consideration, and that is, whether the sureties in the first bond, by the giving and approval of the second bond, were discharged from liability for subsequent breaches of the administrator’s duty ?
Upon an affidavit by any person interested in an estate, that a security in an administrator’s bond has died, the Probate Court may require an additional bond, if fifteen days notice of the proceeding has been given to the administrator. Gould’s Dig., chap. 4, sec. 36. And section 37, is as follows: “ If an additional bond be given and approved, it shall discharge the former securities from any liability from the misconduct of the principal, after the filing of such additional bond ; and such former securities shall only be li-able for such misconduct as ¡happened prior to giving the new bond.”
It is contended by the plaintiff in error, that the additional bond given by Mains should not have the effect given to an additional bond in the foregoing section, because it was given in pursuance to an order of the Probate Court made upon its own information or motion, and not upon complaint of an interested party. But we see no reason for the distinction taken between bonds given upon orders of Court made upon, or without complaint of an interested party. It was the order of the Probate Court requiring an additional bond, that made the second bond of Mains necessary ; and it is immaterial whether the action of the Court was induced by the sworn complaint of a creditor, surviving security, heir or other person interested in the estate of Elizabeth Cameron, or upon its own knowledge of the death of Levi B. Stroop, and its unprompted view of the propriety of ordering Mains to file an additional administration bond.
The necessity for such bond was equally urgent, the consequences of not giving bond under the order would be the same, in either case ; and when the bond is given and approved under the order of the Court requiring it, its effect must be that given to an additional bond in the 37th section before quoted. That effect is, that the securities in the second bond are alone liable for the subsequent misconduct of the administrator. And this inflicts no hardship upon the estate, as without the additional security of a new bond, the letters of administration would be revoked. All liability for the administrator rests upon the securities in the original bond till the additional one is filed and approved, when the new bond becomes an assurance for the proper administration of the estate. The object of the law was to hold an administrator to the performance of his duty by responsible and living securities, and to relieve the estates of securities from liabilities to accrue after the death of the security. We should frustrate the design of the law by holding the second bond of Mains to be in force for the acts of Mains in October, 1855, only as a cumulative security to the first bond.
The first replications to the second, third and fourth pleas were not legal answers to them ; the Court properly quashed them on demurrer, and its judgment must be affirmed. | [
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Mr. Chief Justice English
delivered the opinion of the court.
This was assumpsit by the Mississippi, Ouachita & Red River Rail Road Company, against William Gaster, for the recovery of asséssments made by the Company upon shares of its capital stock taken by Gaster. The court sustained a demurrer to the declaration, and the plaintiff brought error.
The objections taken in the demurrer to the first count in the declaration are fully answered in the case of M. O. & R. R. R. R. Co. vs. Gaster, 20 Arks. 455. In the second count notice of the assessment was not sufficiently averred, according to the rule settled in that case. The notice alleged was general and not specific. ,
The judgment must be reversed, and the cause remanded, with instructions to the court below to overrule the demurrer to the first count in the declaration. | [
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Mr. Justice Compton
delivered the opinion of the Court.
Final judgment upon a forfeited recognizance was rendered against the appellant at a term of the Circuit Court, begun and held for the county of Scott, on the first Monday after the fourth Monday in February, 1859, being the 7th day of March, 1859.
The only objection insisted on in the argument is, that the court was held at a time not authorized by law.
By act oí first of January, 1855, it was provided, that the Circuit Court of Scott county, should be held on the first Mondays after the fourth Mondays in February and August, and the court in question seems to have been held under the provisions of that act.
By the 3d section of the act of 21st February, 1859, it is provided, that the Circuit Court of the county of Scott, shall be held on the second Mondays in February and August in each year ; and by the fourth section, it is provided, that this act shall take effect and be in force, so far as the same relates to the county of Scott, from and after the 1st day of March, 1859. The 5th section provides, as follows : “ That this act shall take effect and be in force from and after the 1st day of May next.” Acts of 1858, p. 9, 277.
We would hold, if we could, that the Legislature did not intend, by this enactment, to deprive Scott county of one term of her court; but there is no room left for construction ; the 4th section expressly provides, that as to Scott county, the act shall take effect on the 1st day of March, 1859, thus cutting off all authority to hold the March term of the court for that year, under the old law, and making no provision for holding it under the new act. In such a case, we cannot enquire, as we did in Hellems vs. The State, at the present term, what the Legislature intended to do ; but can only declare what it expressly did do. Nor can we say that the 4th and 5th sections are so repugnant that both cannot stand, without doing violence to a leading rule of construction, which requires that all acts of the Legislature shall be so construed , if possible, that one section or clause shall not frustrate, or destroy, but on the contrary, shall explain and support another. Smith's Com. sec. 575. An application of this rule to the case we are considering, requires us to hold that by the 5th section the act was to take effect on the first day of May, 1859, except as to the county of Scott, as to which, by the 4th section, it was to take effect on the 1st day of March, 1859.
The court being held, then, at a time not authorized by law, the judgment rendered, was coram nonjudAce and void, as held in Brumley vs. The State, 20 Ark. 77, and Dunn vs. The State, 2 Ark. 229.
Let the appeal be dismissed, a perpetual supersedeas awarded, and the recognizance stand as though no judgment had been rendered. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
After Bertrand had obtained his judgment against Mary E. B. Viser, in the Pulaski Circuit Court, on the 9th of January, 1856, it being the judgment mentioned in the preceding case of Stillwell, as executor, against Bertrand; Mrs. Viser, by writ of error, caused the judgment to be removed to this court for review ; and to stay proceedings upon the judgment until its alleged errors could be adjudicated, under an order from one of the Judges of this court, on the 25th of June, 1856, a supersedeas recognizance was executed for her, in which Absalom Fowler and Stillwell, the surviving plaintiff in error in this case, joined as her securities. The judgment to which the writ of error was brought having been affirmed, (Viser vs. Bertrand, 19 Ark. 487, at the January term, 1858, of this court) on the 15th of March, 1858, Bertrand brought his action of debt upon the supersedeas recognizance. Stillwell demurred to the declaration, because it did not show that execution was stayed by the recognizance, and because it did not deny but that Bertrand had been paid his damages for the forfeiture of the recognizance and that no specific breach of the recognizance was alleged.
The declaration avers that the judgments of the Circuit and Supreme Courts are in full force and remain unsatisfied, which is a good denial of payment of damages to Bertrand, and the penalty of the recognizance is declared to be unpaid, both which averments are breaches alleged, and sufficiently specific to have required an answer from Stillwell.
Fowler plead that the judgments of the Circuit and Supreme Courts were rendered against a married woman. These pleas have been sufficiently noticed in the case of Fowler's Exr. vs. Bertrand. He, also, pleaded that another action was pending against him for the same subject matter, meaning the action upon the bond given to release Mrs. Viser’s attached property. The same question was made upon the inquest of damages, and properly decided by the Circuit Court. If the causes of action' in both cases were the same, founded upon'different securities, Bertrand could prosecute them all to judgment, contenting himself with one satisfaction. And for a stronger reason a judgment against Fowler would not preclude Bertrand from ajudgment against Stillwell.
The demurrers to Fowler’s first, sixth and eight pleas were well sustained-', and the judgment is affirmed. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
On the 5th of November' 1849, the south half of section 26, township 2 south, range 11 west, was offered for sale, by the collector of Pulaski county, for the taxes, penalty and costs charged thereon for the years 1844 to 1849, inclusive, and struck off to the State for want of any other bidder. On the 9th of February, 1852, Alfred Wallace purchased the land at the Auditor’s sale, and obtained the Auditor’s deed therefor in the usual form. He afterwards sold it to George 0. Watkins, who filed a bill in the Chancery Court of Pulaski county for confirmation of Wallace’s tax title.
James A. Scott and wife, Calvin M. Thompson and others, heirs, &c., of David Thompson, deceased, who claimed title to the land under John R. Fitchneal, the original patentee, were permitted to make themselves parties, and interpose objections to the confirmation of the tax title ; but on the final hearing, their objections were overruled, the tax title confirmed ; and they appealed from the decree.
1. It was objected by the appellants that Watkins had not such title to the land as gave him the right to maintain a bill for confirmation.
Watkins purchased the land from Wallace, 9th July, 1855, for $1,280, payable in one year, with the privilege of extending the credit for five years, by paying the interest annually ; and Wallace executed to him a sealed instrument reciting the terms of the sale, and covenanting to make him a deed, on payment of the purchase money, with special warranty of title against all persons claiming under Wallace.
The application for confirmation was made at the February term, 1857, after six months public notice ; and after the death of Wallace.
The statutory remedy for confirmation of title, is given to “ the 'purchasers, or the heirs and legal representatives of purchasers of lands''' at judicial and tax sales. Gould's Dig., chap. 170, sec. 1.
We think, as did the Chancellor, that Watkins was the legal representative of Wallace within the meaning of the statute. It would be an exceedingly technical and narrow /construction of the terms employed in the statute, to hold that Watkins could not proceed for confirmation of the tax title until he obtained the legal title to the land from Wallace.
Nor was it necessary to make the heirs and executors of Wallace parties to the bill, as insisted for appellants.
2. Nor is it a valid objection to the right of Watkins to maintain the bill that he was not in the actual posession of the land, which was wild and unimproved. Bonnell vs. Roane, 20 Ark. 114.
3. It was alleged in the response of the appellants, that Dan-ley, the sheriff of Pulaski county, did not make and file in the office of the Clerk of the County Court, on or before the 10th of January, 1849, the affidavit required by statute, {Eng. Dig., Ch. 139, Sec. 7,) for the faithful performance of his duties as assessor, etc.; and that consequently the assessment of the land in question by him, in that year, and all of the subsequent pro-ceediiigs based thereon, were null and void, etc.
It was proven on the hearing, by depositions, that Danley made and filed the affidavit in the form and within the time prescribed by the statute; and that it was put, by the clerk, with a bundle of similar affidavits, which had been mislaid, and could not be found.
Tax titles would be exceedingly precarious if their validity was made to depend upon the preservation of official affidavits deposited in the clerk’s office, but not recorded, or the memory of witnesses that they were made in the form, or filed within the time prescribed by law.
If the proof had not been satisfactory that Danley in due time made and filed the affidavit required by law, yet having acted as assessor for the year, 1849, and there having been no proceedings to declare his office vacant, (State vs. Carneall, 5 Eng. R. 161,) we should be loth to hold in a controversy to which he is not a party, that his acts as assessor de facto, were null and void, with all due respect for the opinion of the Supreme Court of the United States, in Parker et al. vs. Overman 18 How. 137. See Black, on Tax Titlesp. 122. But it is not necessary to give any decided opinion on the point in this case.
4. The next objection is, that the county taxes assessed upon the lands for the years 1844,1845 and 1846, were~excessive, or at a higher rate than authorized by law.
It appears that the county court of Pulaski county fixed the rate of county tax, upon the value of lands etc., for each of said years, at three eighths of one per cent, and that the land in dispute was assessed, upon a minimum valuation of $3 per acre, at that rate for those years.
By sections 1 and 2 of Chap. 128, of the Revised Statutes an ad valorem tax of one eighth of one per cent, was fixed upon lands and personal property, made subject to taxation, for State purposes.
By section 1 of Chap 38 Rev. Stat., certain objects of taxation for county purposes are specified, and section 2 of the same chapter, provides that, in addition to the objects of tax. tion .mentioned in Sec. 1, “ the several county courts shall have power to levy such sum as may be annually necessary to defray the expenses of the several counties, etc., on all the objects of taxation for State purposes,” etc. But the power thus conferred is limited by section 3, which provides that “ the county tax levied in any one year, shall not exceed the one-half of one per cent, on the assessed value of the property made taxable for State purposes.”
These provisions of the Revised Statutes were in force during the years 1844-5-6, and the county court of Pulaski county had discretionary power, under them, to levy a tax for county purposes as high as one-half of one per cent, upon the value of lands etc., taxable for State purposes; but it fixed the county tax for those years at but three-eighths of one per cent., and consequently did not exceed its authority. It is manifest that the last clause of section 3, (C4. 38, Rev. Stat.) applies to licenses and privileges taxed for State purposes, and not to lands, or other property.
5. The fifth objection is, that there was an error in the advertisement, etc.
It appears that the State tax assessed upon the land for the years 1844 to 1849, inclusive, was $10 80, to which a penalty of twenty-five per cent, was added, making $13 50; and that the county tax for the same years was $18' 00, to which a like penalty was added, making $22 50. But the collector in advertising the land for sale, transposed the sums, and put the State tax and penalty at $22 50, and the county tax and penalty at $13 50 ; and this error of transposition was carried into the list of lands returned as forfeited to the State for Want of bidders. In all other inspects, the advertisement seems to have been in good form!- The land was assessed as the property of a non-resident. The statute requires the advertisement to state the time and place of sale, the owner’s name, a description of the land, the taxes charged thereon for the current and preceding years, with a penalty of twenty-five per cent on the amount of taxes due. Eng. Dig. Ch. 139, Sec. 95-6-7.
The statute does not require the advertisement to state the sums of the State and county taxes severally, though it is perhaps customary to do so. If the advertisement had stated the aggregate amount of taxes due upon the land, with the penalty added, it would have been sufficient, we think, without setting forth what sum was due for State, and what for county■ taxes.
From the advertisement in question the aggregate amount of taxes and penalty charged upon the land was ascertainable by the simple process of adding the two sums stated as State tax and penalty, and county tax 'and penalty, together; and it is not perceived how the owner of the land, or any person interested in the sale, could have been prejudiced by the transposition of the two sums in the advertisement. If the land had been sold for the aggregate amount of taxes and penalty charged upon it, the appropriation of the money between the State and the county would have been a matter for the collector; and the tax book, on which the sum due to each was correctly stated, would have been his guide, as it would have been in settling with the owner of the land, had he offered to pay the taxes before the sale. To hold the forfeiture of the land to the State void for an error in the advertisement so immaterial and harmless iti its character, as the one in question, would be a departure from the rule of interpretation furnished by the statute {Gould's Dig. Ch. 148, Sec. 131,) and which the court has repeatedly approved and followed.
6. The sixth objection is that a penalty of twenty-five per cent, was added to the taxes charged upon the land for the years 1845 and 1846, under Sec. 79, Ch. 128 of the Rev. Stat., which stood repealed during those years.
If the act of January 8th, 1845, (Pamph. Acts 1844, p. 68,) had simply repealed the section of the Revised Statutes referred to ; and there had been no statute in force prescribing the same penalty for non-payment of taxes, etc., until it was revived by the act of tilth Nov. 1846, (Pamph. Acts 1846, p. 25) the penalty added to the taxes charged upon the land for the years 1845 and 1846, might have been illegal and excessive, as insisted for appellants. But such was not the case.
By section 79, Ch. 128 Rev. Stat., each collector was required, on or before the 15th of September of each year, to make and file in the clerk’s office, a list of lands assessed to non-residents, charging therein the taxes due for the current and preceding years, with a penalty of twenty-five per cent, upon the amount of taxes due.
By section 80 lb. the collector was required to advertise the list of lands, so made out, to be sold on the first Monday of November following, unless the taxes, penalty etc., should be paid before the time of sale.
In other words if the non-resident land owner failed to pay the taxes assessed upon his land, to the collector, by the 15th of September, he was charged with twenty-five per cent, upon the amount of taxes due, as a penalty for his default, and the land was subject to be advertised and sold as well for the penalty so incurred, as for the taxes.
By the act of 8th January, 1845, non-resident land owners were allowed to furnish the Auditor with lists of their lands, and pay the State and county taxes chargeable thereon directly into the State treasury, or to furnish the lists to the assessors, and pay the taxes to the collectors, of the counties in which the lands were situated, at their election. It was made the duty of the collector of each county, on or before the first Monday in August of each year, to make out and transmit to the Auditor a list of lands assessed to non-residents, on which the taxes had not been paid to the collector by that time, stating the amount of taxes due thereon, etc. The Auditor was required to strike from the lists, so forwarded to him by the collectors, the lands upon which the taxes had been paid into the State treasury, and the remaining lands were subject to be advertised and sold for taxes, penalty, etc., the advertisement to be made out and published by the Auditor, as if by the collectors of the several counties in which the lands were situated. But the Auditor was required to charge upon the lands of each defaulting land owner a penalty of twenty-five per cent, upon the amount of taxes due, for failing to pay the taxes into the State treasury, or to the collector of the proper county, on or before the return of the list to the Auditor above referred.
Section 8 of the act repeals sections 79 and 80 of Ch. 128, Revised Statutes, and declares that the lands etc., of non-residents should not thereafter be advertised or sold for taxes by the collector, until the list had been reported to, and examined by the Auditor; and the lands should then be advertised as aforesaid, and sold in accordance with existing laws for taxes, penalty and costs, if not paid before the day of sale etc.
Thus it will be seen that it was not the intention of the act of 8th January, 1845, merely to repeal the penalty to which the defaulting non-resident tax-payer was subject under section 79 Ch. 128, Rev. Stat., and to leave him liable to no penalty for default, but that the act changed the time at which the penalty was to be incurred, the officer by whom it was to be charged) the mode of advertising the lands for sale, etc., etc., as above shown.
The entire act was repealed by the act of 27th November 1846, and sec. 79, and 80, Ch. 128, Rev. Stat. revived, but before its repeal and while it was in full force the land in controversy became chargeable with the taxes which the owner should have paid upon it for the years 1845 and 1846, together with the penalty of twenty-five per cent, upon the amount thereof for his failure to pay the taxes at the time prescribed by the act; and the taxes and penalty so in arrear, and constituting a debt due to the State, and a charge upon the land, were collectable under the laws in force in 1849, when the land was offered for sale, and forfeited to the State. Blackwell 195.
True the act under which the penalty for the years 1845 and 1846 occurred, was repealed when the land was offered for sale, but the repealing act, as above shown, revived the two sections of the Revised Statutes, which provided for the collection of the penalty upon all taxes in arrear. 5 Branch 283.
7 — But it is insisted for appellants, that the statute providing for the collection of the penalty of twenty-five per cent, upon the taxes due from the defaulting non-resident land owner, is in violation of that provision of the compact between the State and the United States, which declares that in no case shall nonresident proprietors be taxed higher than residents. Gould’s Dig. p. 65-G.
The land in question was assessed and forfeited in the name of Fitchneal, as a non-resident, but whether he was a non-resident of the State, or not, does not appear. The act applies to all non-residents of the county in which the lands are situated and assessed, whether they reside within, or beyond the limits of the State. But it may be conceded, for the benefit of appellants, that he was a non resident of the State when the land was assessed, and when it was forfeited for non-payment of the taxes and penalty.
The rate of taxes upon all lands subject to taxation for State purposes, for the years 1844 to 1849, inclusive, was prescribed by law, and was equal and uniform, without discrimination — as to the residence of the owner. Rev. Stat. Ch. 128, Sec 12; Eng. Dig. Ch. 139, Sec. 1-2. And the record, in this case, shows that the county court of Pulaski county attempted to make no distinction between resident and non-resident proprietors, in fixing the rate of taxation for county purposes, in those years.
The twenty-five per cent, which the law directed the collector to add to the amount of taxes due from the non-resident proprietor, if his taxes were not paid by the 15th of September, cannot be regarded, we think, as an additional tax, within the meaning of the provision of the compact referred to, but as a penalty imposed upon him for his delinquency in not paying the taxes charged upon his land within the time prescribed by law.
The law subjects the resident delinquent land-holder to distress of goods, and seeks to quicken the diligence and insure promptness of payment on the part of the non-resident, who is supposed to have no goods within the reach of the collector, by holding over him the terror óf a penalty.
8. But it is moreover submitted by appellants, that if the twenty-five per cent, be not regarded as a tax upon the land, but as a penalty for the failure to pay the tax within the time prescribed, the act is in conflict with the 10th section of the Bill of Rights, because it provides for no judicial ascertainment of the delinquency upon which the penalty, or forfeiture, is made to attach.
If the act is void for the reason urged, all of our revenue statutes which empower a ministerial officer to proceed to sell the goods and lands of the delinquent tax-payers without regular •judicial proceedings — without the judgment of his peers etc., etc. — must fall for the same reason.
If the State had to proceed by regular suit, trial, judgment and execution, according to the forms of law, through the judicial tribunals, against every delinquent tax-payer, in order to subject his property to'the payment of the taxes charged upon it, the government might become impotent, and perish for the want of means to support it-
So if the State was compelled to ascertain, by judicial inquest, that the non-resident tax-payer had failed to pay his tax* s within the time fixed by law, and thereby incurred the penalty prescribed, a wise policy would dictate that it were the better economy for the State to abandon the penalty, than to incur the labor and cost of collecting it through the courts.
The mode of enforcing the payment of taxes, and incident penalties, must, in the nature of things,be summary and prompt, through ministerial agents ; and it was hardly within the contemplation of the framers of the Bill of Rights to require the government to proceed, through the tedious forms of the courts^ to force from the reluctant tax-payer the contributions required of him by law, for its support.
It is true that the delinquency upon which the penalty in question is made to attaches to be ascertained by the collector, who is required to return a list of the delinquencies, with the penalties attached, to the clerk’s office, whereby they become matters of record, and to proceed to collect the taxes and penalties by sale of the lands, yet his ascertainment of the delinquency is by no means final and conclusive upon the tax-payer. On the contrary, if he has in fact paid his taxes within the time prescribed by the act, and is no delinquent, notwithstanding he has been returned by the collector as such, and the collector is proceeding to make sale of his land for the taxes, and penalty added thereto, he may arrest his proceedings, by applying to the proper court, where he is at liberty to show that he was not delinquent: Or he may permit the land to be sold, and the purchaser to obtain the collector’s deed, and yet in any judicial proceeding, where the validity of the deed is called in question, he, or any one claiming through him, may prove that he was no delinquent, and thereby avoid the deed.
With this privilege to the tax-payer to assert, and protect his rights through the courts, the power vested by the act in the collector to ascertain and declare the delinquency, without judicial inquest, and to collect the taxes and penalty by sale of the land, so essentially necessary to meet the wants of the government, cannot be regarded as unreasonable, or oppressive to the taxpayer. See Blackwell p. 53G, and cases cited.', Sedgwick on St at. & Const. L. 97.
In this case it is not pretended that the taxes charged upon the land, and for which it was forfeited to the State, were ever paid by any one.
The decree of the court below must be affirmed.
Mr. Justice Fairchild did not sit in this case. | [
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Mr. Justice Fairchild
delivered the opinion of the Court.
E. C. Bacon of whom, being dead, Rainey is the legal representative, brought his action of ejectment in the Circuit Court of Ouachita county against the appellee for two tracts of land, of which he recovered one. The verdict of the jury did not respond to Bacon’s claim of the other piece of land, the east-half of the south east quarter of section three, in township eleven, south of range eighteen west, but considering that to be a finding against his claim, Bacon moved for a new trial because the verdict was against law and evidence, and because the court permitted improper evidence to go to the jury ; and upon his motion being overruled, appealed.
The verdict was not against evidence, if that introduced by the appellee to show title in himself was admissible, as the court below decided it to be, against the objection of Bacon.
That evidence was first a copy of a certificate from the Secretary of the Board of Swamp Land Commissioners, that the appellee, on the 31st of January, 1853, applied at his office to enter the land in controversy, in payment for levee work done, and received by the Board of Swamp Land Commissioners, or scrip. This certificate was marked, “received and filed, and “ patent certificate issued, No. 98, Jan. 7th, 1856.
B. F. HEMPSTEAD, Land Agent.”
The second part of the appellee’s evidence was a deed, from the Governor of this State, of the land to the appellee, which referred to the patent certificate, and is dated 11th January, 1856.
Both parties claimed the land under deeds from the Governor as part of the swamp land grant, but that of Bacon was subsequent to the deed of the appellee, bearing date the 15th of January, 1856. It referred to a certificate of entry issued by the Land Agent, on the 10th of December, 1855.
If we are allowed to look beyond the deeds, which we doubt, thinking them to be the sources of legal title, the inception of Bacon’s title was on the 10th of December, 1855, that of the appellee the 31st of January, 1853 ; while the former was consummated by deed on the 15th of January, 1856, and that of the latter on the 11th of the same month.
Bacon’s title was then overthrown by that of the appellee, which is prior in point of time, which makes it paramount in legal right, if the evidence of the appellee was admissible. We do not see why the deed to the appellee was not evidence. The deeds were issued by the same authority, were both under the seal of the State, ¡both signed by its Chief ^Executive Officer, upon whom the law charged the conveyance of the swamp lands.
If the deed to the appellee was not well founded from illegality of the certificate of Butts, from a wrongful issue of a patent certificate thereon by the Land Agent, or from an unadvised issuance of the deed itself, it nevertheless is the fact that the previous steps of the appellee’s title were considered good by the State authorities, and that the deed conferred the legal title of the State on the 11th January, 1856, so that on the 15th of that month the State had no interest to convey to Bacon. The oldest patent must prevail in a court of law. Bagnell vs. Broderick, 13 Pet. 450; Stoddart vs. Chambers, 2 How. 318.
If Bacon’s right to the land were the better, it was still an equitable right, which was not available to him in this action of ejectment. Campbell vs. Garvin, 5 Ark. 491.
Let the judgment be affirmed. | [
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Hon. H. Flanagin, Special Judge.
This is an action by petition and summons, by L. Hanauer, et al. vs. William P. Brooks on a promissory note.
There was judgment for the plaintiff below, and the defendant below made a motion for a new trial, which was submitted to the court, and by the court taken under advisement, and the next day an entry was made in the following words. “ On this day come the plaintiffs by Cain & Marvin and Byers, & Neely, their attorneys, and the said defendant, by A. C. Harris & Patterson, Rose & Gibbs, his attorneys ; and the court, being sufficiently advised in the premises, is of the opinion that the defendant’s motion ^for a new trial should be sustained, on condition that said defendant will pay all costs in this case up to and including the piesent term, and that he shall withdraw his plea in abatement, and enter of record a waiver of all matters in abatement whatever, and file his pleas to the merits of the cause, all of which must be done at this term, with an agreement of record that the said defendant will throw no obstacles in the way whatever to the trial of this cause, at the next term of this court, on the merits, and the said defendant filing and entering of record his acceptance of the above conditions : It is therefore considered by the court that the judgment rendered in this case be set aside and a new trial granted in this case upon the conditions aforesaid ; to which opinion, ruling and direction of the court in setting aside the judgment and granting a new trial upon the conditions aforesaid, the plaintiff, by attorney, at the time the same was made and done, excepted, and to save said exceptions asked and obtained leave of the court to file his bill of exceptions at any time during the present term ; and thereupon the defendant filed his pleas of nil debit and pay ment, to which the plaintiff joined issue in short upon the record, by consent, with leave to the plaintiffs to amend their pe tition, if necessary, to conform with the note sued upon, by the first day of the next term, and the defendant filed his pleas of partial failure of consideration with leave to the defendant to verify said plea by affidavit by the first day of the next'term.”
The acceptance of the conditions referred to in the above order is an undertaking in writing, waiving all matters in abatement, agreeing to pay all the costs and to throw no obstacle in the way of a trial at the next term.
The defendant filed three pleas, and issue was taken to them. At the next term of the court there was a motion to set aside She order for a new trial and enter a judgment for the defendant in error, and the court decided that: “ The said order of this court made on the first day of December, A. D. 1856, allowing the defendant a new trial on the conditions aforesaid, be, and is hereby vacated, set aside and held for nought, and the defendant be disallowed a new trial in this case, and that the judgment against the defendant, by this court, on the 29th day of November, 1856, be and is hereby made absolute.”
The last judgment or decision is assigned for error.
It is held in Smith vs. Danley, 2 Ark. 66, that after a term has expired, the court has no longer any control over a judgment rendered.
In Walker et al. vs. Jefferson, 5 Ark. 25, it was held, that to allow an opposing party to show cause at a succeeding term to the granting of new trial was irregular, and in contravention of the practice as prescribed by the statute.
A petition for reconsideration in the Supreme Court must be determined at the term at which the decision was made,'or the decision will be final—Ashley vs. Hyde & Goodrich, 1 Eng. 101; Rawdon Wright & Hatch vs. Rapley, et al. 14 Ark. 203.
A judgment is final after the term at which it is rendered—Reiff et al. vs. Conner et al. 5 Eng. 241; Hubbard vs. Welch. 6 Eng. 151; Cossett et al. vs. Biscoe, 7 Eng. 95.
From the foregoing decisions it is certain that, according to the settled practice in this court, a court after granting a new trial, at one term, cannot set it aside at the next.
It remains to ascertain if the judgment was set a.side and a new trial granted.
It is clear that the payment of costs may be made a condition precedent to the granting of a new trial — 2 Tj.dd’s Practice ,917.. But did the court in this case intend to make this a condition precedent to the granting of a new trial ? This question is not without difficulty.
The court, in fixing the conditions upon which a new trial should be granted would seem to have intended, merely, to impose upon the defendant the payment of the costs in the case, but not that they should be paid before the grant of the new trial. . The defendant below filed an agreement to accept the terms fixed by the court, and the court, upon this being done, set aside the judgment and granted a new trial “ upon the conditions aforesaid.” At the next term of the court the counsel-for the plaintiffs below, in their motion, and the court, by its decision, recognized that the previous order had set-aside the judgment and granted a new trial.
There is another reason which tends to show that it was intended that the costs of the court should not be paid -until the term had elapsed : it is that the costs accruing during the-pending term, in the case, should be paid. The amount of costs accruing during the term could only be positively ascertained at the conclusion of the term.
It seems to have been contemplated that the costs should have been paid after the term and before the next term.
The order must be construed to have given or refused the new trial, as if it was not granted the judgment became final.
From the record the court holds that the judgment was set aside, and a new trial granted, and that any intention that some future act should be performed could not affect the new trial already granted.
Let the judgment be reversed.
Mr. Justice Faíechild did not sit in this case. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
In Dardenne vs. Hardwick, 4 Eng. 485, it was said : “ Fraud will never be presumed in a court of law, although a somewhat different rule prevails in a court of equity; but even there, when an act does not necessarily import fraud, and may have as well occurred from good as bad motives, fraud will not be inferred.”
We do not suppose that it was intended, in the above extract, to assert as a legal principle, that fraud would be presumed in a court of equity without legal grounds of presumption ; but simply to show that in comparison with the modes of establishing fraud in a court of law, the means adopted by a court of equity for an examination of alleged fraudulent conduct, would sometimes induce the conclusion, and affirm the existence of fraud, when no inquiry of the sort could be prosecuted in a court of law, or when, if the question of fraud were raised, no affirmative response could be had upon the same facts that would cause its'assertion and exposure in a court of equity.
.In equity, as in law, the facts must be shown to exist that constitute fraudulent dealing ; that is, that show something to be done with dishonest intentions, and with an injurious effect, or tendency, against the interest of the party complaining of the alleged fraud. But courts of law, from being confined'Ho the literal construction of deeds, and to the validity of rights dependent upon them, and from being compelled to declare the character of acts from their outward manifestations, and as apparent to the observation of others, compare disadvantageously in the ascertainment of frauds, and in the administration of remedies against them, with courts that appeal to the consciences of the actors, and, in the construction of acts and writings, consider the positions, motives and influences that operate upon men in any given state of mind, or social or pecuniary condition ; and, in affording relief, hold as done, and compel to be done, that which ought to be done, and undo that which ought not to be done.
The differences in the practice observed, and remedies afforded by courts of law and equity, which are the main constitutional differences between them, afford an explanation to expressions that would otherwise be repugnant to each other, and inconsistent with settled legal principles. Hence, there is no real conflict between the quotation made from Dardenne vs. Hardwick, and this that follows :
■“ It is equally a rule in courts of law and equity, that fraud is not to be presumed; but it must be established by proofs. Circumstances of mere suspicion leading to no certain results, will not, in either of these courts, be deemed a sufficient ground to establish fraud. On the o'ther hand, neither of these courts insists tlpon positive and express proofs of fraud ; but each deduces them from circumstances affording strong presumptions. But courts of equity will act upon circumstances as presumptions of fraud, where courts of law would not deem them satisfactory. In other words, courts of equity will grant relief upon the ground of fraud, established by presumptive evidence, which evidence, courts of law would not always deem sufficient proof to justify a verdict at law.” Hempstead vs. Johnson, 18 Ark. 144: see also Clinton vs. Estes, 20 Ark. 245, 246.
No general rule is laid down in the books, by which conveyances, alleged to be fraudulent, can be so adjudged, but we are often admonished that each case must depend upon its own circumstances. Then, whether the deed of trust made in Amite county, Mississippi, on the 13th of April, 1854, by which the negroes involved in this suit, were conveyed by Charles Ratcliff to Reuben L. Huff, to secure a debt acknowledged to be due to William Woodward and Seymour Taylor, administrators of Joicy B. Ratcliff, deceased, be valid, and uphold this suit of Huff, the trustee, or invalid and thus make good the defence of Benjamin G. Ratcliff, Henry Jones, and Julia Roane, subsequent purchasers of the negroes, must depend upon the attendant facts and circumstances that are brought into the case as evidence to maintain and overthrow the trust deed. The consideration of such evidence may then be the first effort of this opinion, and its only one, if the conclusion deduced therefrom be unfavorable to the claim of the plaintiff, the trustee of the deed and the prosecutor of this appeal.
It is evident from the record, that Charles Ratcliff was em barrassed by debts, when he made the trust deed. This is implied in the parol testimony, is shown by documentary evidence, and by the admissions of the trustee, the plaintiff and appellant. The demand of Michael Simon, on which judgment was rendered for twelve hundred and twenty-two 97-100 dollars, was in existence at the time of the execution of the deed of trust; and it may well be inferred that the eight other judgments admitted in the court below to be evidenced by transcripts on file in the cause, amounting to seven thousand dollars, were represented by demands in some form, on the 13th of April, 1854, they being, according to the admission in the record, like suits with that of Simon. The validity of the deed of trust does not, however, depend upon the fact of Charles Ratcliffs indebtedness, and though made in failing circumstances, if it was made to secure a real, an honest demand, the maker had a right to give that demand preference to other debts he owed, as the right of an insolvent debtor to prefer favorite creditors, or demands, is tolerated by the law. Thus, we held, at the|preserit term of the court, in Carnall vs. Duval, that Johnson, Grimes & Co., might well prefer the debt due from them to Marcellus Duval; not because the debt was a meritorious one, as we characterized it, but because the law gave them the privilege of a preference. Equity never commends a man for making a distinction between just debts; it only holds that preferences made without bad faith to the unpreferred creditor, may be endured. Upon the subject of distribution of the property of a bankrupt, or an insolvent person, its favorite maxim is,‘equality is equity.’
The deed of trust was made to secure William Woodward and Seymour Taylor, administrators of Joicy Ratcliff deceased, in a note executed to them by Charles Ratcliff, of the same date as the deed, and for the sum of eleven thousand, two hundred and sixty-eight 63-100 dollars, payable ten days afterdate.
Joicy Ratcliff was the wife of Charles Ratcliff, and died in 1848. That she had any separate estate that ought to be ad-ministerd upon, or taken away from Charles Ratcliff, is not shown to have occurred to the mind of any body, till on the se cond Monday of April, 1854, William Woodward and Seymour Taylor, the son-in-law of Charles Ratcliff, sued for, and obtained letters of administration upon her estate. On the 13th of the same month, a settlement was made by Charles Ratcliff with Woodward and Taylor, of his dealings with the separate property of his wife, as he and they considered it, which resulted in his falling in debt to his wife’s administrators in the sum for which the note was given; as above stated.
The avowed consideration of the note, as showm by the testimony concerning the settlement, was made up in part of the hire of sixteen negroes for the years 1848, to 1853, including those years; which negroes, in the settlement, were dealt about by the parties as belonging to Joicy Ratcliff in her own right. Of these sixteen negroes, but four ever came to the hands of Charles Ratcliff, as his wife’s property. In twelve of the ne-groes Mrs. Ratcliff had no interest as heir, as vendee; had and made no claim to them as her separate property. Some of the slaves, as Peter, Linda and Mary, Charles Ratcliff had bought, and had owned fifteen or twenty years before 1848, the beginning of the term of years for which he accounted to his wife’s administrators for their hire ; Katharine he had owned <pght or nine years before 1848 ; Tilly he derived from his father’s estate, from her came Martha and Emily; Eliza was Linda’s daughter; Loyd was from Mary; Jack, Adam, and Eve he raised; while four of the sixteen, Aggy, Wiley, Job and Ephraim came from the estate of Holloway Huff, the father of Joicy Ratcliff. According to the estimate of the hire made in the settlement, more than five thousand dollars of the acknowledged indebtedness, accrued from the labor of the slaves that belonged absolulely to Charles Ratcliff himself, to which Joicy Ratcliff his wife, under the Mississippi Married Woman’s law, had no claim, and to which it is not shown that she or her friends for her,' before or after her death, made any pretence of right, till the concession made in the settlement by the husband, and accepted by the beneficiaries in the deed of trust. These facts appear in the depositions of William L. Huff and Peter Ratcliff, and were also so stated on the public record, by or for Charles Ratcliff himself, as will be seen hereafter.
The four negroes, Aggy, Wiley, Job and Ephraim, that Charles Ratcliff received as part of his wife’s portion of the estate of her father, Holloway Huff, were delivered on the 27th of January, 1845 ; by virtue of which, under the law of Mississippi, Charles Ratcliff acquired a life interest in them, so as to be entitled to their hire and services against the representatives of his wife. This is testified to by David L. Huff, a pz-acticing lawyer of Mississippi, since 1842, and agrees with the information we have of the law of that State from its authorized publication and exposition by the High Court of Errors and Appeals; though we disclaim acting upon foreign law, unless it comes to us thi’ough the channel of testimony. That part of the consideration of the note secured by the deed of trust, and represented by the hire of negroes, amounting to about eight thousand four hundred dollars, was a feigned consideration, and could not impart any obligation to the note, or validity to the deed of ,trust.
Another .item of the indebtedness found by the settlement, was for eight hundred and thirty-three dollaz-s, and sixteen years interest thereon, which principal sum Charles Ratcliff confessed to have received fz-om his wife’s father, about the early part of 1839. In another deposition of the same witness who testifies to the above, that witness being William L. Huff, the item is spoken of as one thousand dollars. This part of the foundation of the note and trust deed was no support for either. The money came to the hands of the husband ; if it had been given to the wife*directly, it would no less have been the husband’s. The ziote was without consideration so far ; and this seems to have been well understood by Charles Ratcliff, when, as the time transpired for him to be sued on the note, which was the next month after it was given, he pleaded a failure of consideration as to the eight hundred and thirty-three dollai-s and interest, and as to the hire of slaves that had never been the separate property of his wife, which plea and trial thereon reduced the judgment upon the note to four thousand six hundred and twenty-one 35-100 dollars. This appears by the testimony of David L. Hurst, and by an exemplification of the judgment and proceedings in the case of Woodward & Taylor against Charles Ratcliff, in the transcript. When this settlement was made of the interests of Joicy Ratcliff’s estate, Charles Ratcliff and Woodward and Taylor settled individual dealings, in which a balance was struck upon the opposite side in favor of Ratcliff, for which he took their note for twenty-eight hundred and ninety-two dollars, but when payable, or how secured has not been made to appear in the record. Many other negroes in the possession of Charles Ratcliff were levied upon by different executions, but were claimed by Woodward and Taylor as the property of the estate of Joicy Ratcliff.
Notwithstanding the default in the payment of the note, the suit and judgment thereon, no steps were directed to be taken by the trustee to enforce the remedy provided for in the deed of trust. Charles Ratcliff’s possession of the negroes in controversy was not disturbed, and they remained with him till on the 6th of December, 1854, he transferred them to Benjamin C. Ratcliff and Henry Jones, through whom they soon appeared in Jefferson county.
Such are some of the facts of this case that an inspection of the transcript has brought to our notice. We forbear all comment upon them, being desirous to observe that decent temperateness of language that is becoming to judicial expression.
But we do not need to be informed of the character of the transaction, by the opinion of witnesses who were present at the settlement, or were acquainted with the facts upon which the deed of trust is founded. Those opinions, however accordant with our own, and however inevitable to be entertained by all who know the facts, or become informed of them, by their record in this case, are not taken by us as evidence. On the facts themselves we base our conclusion, that the letters of administration upon the estate of Joicy Ratcliff were procured with the design of concocting a simulated demand ; that the settlement, the note, the deed of trust, are the fruits of that scheme, which was fraudulent in design and in execution, in its beginning, progress and end.
We have examined the Mississippi Reports upon the subject of fraudulent conveyances, and no where do we find more'evidences of an elevated judicial sentiment than is manifested by the highest court of that State. If we had found any reason; from its decisions, to suppose that the deed of trust in this case would have been regarded in that court, differently from the way we have found ourselves compelled to regard it, our respect for that court would have caused us to doubt the soundness of our conclusion. But though we find many cases of fraudulent acts and conveyances to have been passed upon and annulled, we find none that would have been more reprobated in the Mississippi court, than the transaction which the courtbelow refused to sanction, by allowing it to be the foundation of an action, and whose decree we approve by entering its affirmance in this court. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This suit was founded on the following letter of guarantee:
“ Camden, Ames., 6th October, 1857.
Messrs. Cushing, King & De Graw:
Gents — -'We take pleasure in introducing to your acquaintance, Mrs. Hitchcock, a lady of this place, who visits New York for the purpose of purchasing a small stock of goods in the millinery line. Should she wish to purchase; a part of her bill on time, we would say that she would meet the bills promptly, and that we will guarantee for her to the extent of five hundred dollars, to be paid in six months. Mrs. II. has resided here for the last year, and her business has been successful and profitable. Any attentions or civilities extended to her, will be duly appreciated by her and
your ob’t servants,
P. MoCOLLUM & CO."
Cushing, King & DeGraw, the plaintiffs below, declared specially, in assumpsit, upon the letter, against McCollum & Co;
On the trial before the court, sitting as a jury, upon the general issue, the above letter was introduced in evidence, and it was proven that the plaintiffs sold goods to Mrs. Hitchcock, to whom the letter was given by defendants, and took her note for $405, dated New York, October 22d, 1857, payable six months after date. The note was read in evidence, with the indorsement showing a payment of $200, May 31st, 1858. The court rendered judgment in favor of plaintiffs for $202, damages, the defendants moved for a new trial, and in arrest of judgment, which were overruled, and they appealed.
It was not averred in the declaration, nor proven on the trial, that the appellees ever gave any notice to appellants, that the letter of guarantee had been accepted, and goods sold to Mrs. Hitchcock upon faith of the guarantee.
The law on the subject of notice of acceptance of the guarantee is expressed by Mr. Justice Story, in Douglass et al. vs. Reynolds et al., 7 Peters 125, thus:
“ A party giving a letter of guarantee has a right to know whether it is accepted, and whether the person to whom it is addressed means to give credit on the footing of it, or not. It may be most material, not only as to his responsibility, but as to his future rights and proceedings. It may regulate, in a great measure, his course of conduct and his exercise of vigilance in regard to the party in whose favor it is given.” See, also, Lane vs. Levillian, 4 Ark. 84.
Nor did the declaration aver, nor was it proven upon the trial, that appellees demanded payment of Mrs. Hitchcock, on the expiration of the credit and maturity of the debt, and gave the appellants notice of non-payment by her.
On the subject of demand of payment upon the principal debtor, and notice to the guarantors, the learned judge, above quoted, states the law to be as follows:
“ By the very terms of this guarantee, as well as by the general principles of law, the guarantors are only collaterally liable upon the failure of the principal debtor to pay the debt. A demand upon him, and a failure on his part to perform his engagements, are indispensable to constitute a casus foederis. The creditors are not indeed bound to institute any legal proceeding against the debtor, but they are required to use reasonable diligence to make demand, and to give notice of the non-payment. The guarantors are not tobe held to any length of indulgence of credit which the creditors may choose; but have a right to insist that the risk of their responsibility shall be fixed, and terminated within a reasonable time after the debt has become due.” Douglass et al. vs. Reynolds, ubi sup. See, also, Lane vs. Levillian, ubi sup.
The appellants were declared against as Peter McCollum and John E. McCollum, partners, etc., under the firm name and style of P. McCollum & Co.; and the declaration charged that they, by their firm name, executed the letter of guarantee sued on. They pleaded non-assumpsit, but their plea was not verified by affidavit. The court below decided that it was not necessary for the plaintiffs, under the issue, to prove the partnership; and the decision, we think, was right.
The instrument of guarantee was made the foundation of the action, and, in the language of the statute, it was charged to have been executed by both of the defendants as partners, etc., and the allegation not being denied by sworn plea, the instrument was admissible in evidence without proof of its execution by either of the defendants, or of the alleged partnership. Gould’s Dig., chap. 861, sec 103.
The case of Alford use, etc., vs. Thompson et al., 5 Ark., was upon a different statute. See Gould’s Dig., chap. 99, sec. 111, p. 668,-9.
The judgment must be reversed, and the cause remanded for further proceedings, etc. | [
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Mr. Justice FaiRceuld,
delivered the opinion of the Court.
The plaintiff did not unfold his case in the bill, by statement of the exact consideration of the trust deed; of the amount due under it; of the way in which the debts he was seeking to have paid to him, or to be indemnified against, accrued: of what had been done under the trust deed, or with the trust property, so as to assure for himself the favorable consideration of a court of equity. It should not have been, that a party, seeking a benefit under a deed of trust, should first disclose the actual consideration of the deed, and what had been transacted with relation to the trust property, in an answer to interrogatories propounded in the answer; but the bill ought to have shown fully and fairly, all these facts, manifesting a case that should show the practicability, the right, and the necessity of equitable interposition for his relief. Besides the good faith that should be apparent in the exhibition of an equitable demand, especially in one asking the assistance of a court to enforce a trust, the interest of a plaintiff requires him to make specific and certain charges of the grounds of his action, which must include a narrative of his rights and of their violation, or of the damages to which they are exposed. And he can have no decree but what is founded upon an allegation in his bill, and the allegation should be as certain and explicit as the decree; although the decree may not, for want of evidence, or legal authority, be comformable to the allegation.
In this case, the bill is indefinite in stating that the plaintiff became liable to pay divers large debts for Nolley, was his security, and had paid some security debts for him, when the facts should have been stated with precision. A reference to the deed of trust might show the indebtedness of Nolley to the plaintiff, and the amounts and persons, for, and to whom, the plaintiff was liable on Nolley’s account; but it does not show the amounts paid by the plaintiff for Nolley, and for which the trust deed became a security. Neither does the bill contain any averment more certain, than that the amount due to the plaintiff is not less, as he believes, than five hundred and fifty-eight 17-100 dollars; and that the amount of debts remaining due and unpaid, amount to “say near five hundred and sixty dollars.” What debts these are is left to conjecture; for there is no explanation of them in the bill, and the answer to the cross-bill admits that the only debts for which the plaintiff was liable to others for Nolley, were a judgment of Galloway, for two hundred and eighty-five dollars, and two notes to Dennis, due the first of January, 1852, for one hundred and twelve dollars, and for one hundred dollars.
Upon the necessity of distinct allegations in a bill, upon which to found a decree, see Lacefield vs. Stell, 21 Ark.; Hoppes vs. Cheek, 21 Ark.; Carneal vs. Banks, 10 Wheat. 189.
The facts of the case are few, and are, simply, that the plaintiff being liable for Nolley on the Galloway judgment and Dennis notes, Nolley, on the 18th of December, 1857, in Shelby county, Tennessee, executed a deed of trust to Magilbra Rogers, to secure the plaintiff against loss, in which were conveyed a a negro girl, Lucinda, about fifteen years old, eight town lots in Fort Pickering, a wagon and harness, household furniture, and stock of liquors in a retail grocery.
The deed of trust recited, besides these liabilities, that Nolley was indebted to the plaintiff in two notes, one for three hundred and sixty dollars, dated 15th December, 1851, and due the 25th December, 1852, and the other for two hundred and twenty five dollars, dated 18th December, 1851, and due 1st January, 1853. But it is admitted by the plaintiff in the answer to the cross-bill, that the first note was expected to be put into market, and by its sale or discount, to obtain money with which to pay the Galloway judgment: That this was done, the note being shaved and sold for three hundred dollars with which the judgment was satisfied, and the overplus paid by plaintiff to Nolley. And it was admitted that, in the same way, the two hundred and twenty-five dollar note was executed to obtain funds to meet the Dennis notes, but the plaintiff asserts that it was never used and that the note has been lost.
On the Dennis notes, which were afterwards transferred to Stout, judgment was obtained, and out of the property named in the trust deed, sixty-five dollars were made by execution. The deed of trust, then, stands as an indemnity to the plaintiff for the amount of Stout’s judgment, lessened by the sum of sixty-five dollars, but cannot be enforced by a condemnation of the property till the plaintiff shows payment of the judgment. This is all for which the plaintiff can have any claim, on his plead ings, and whether he could so far, if the right were denied, we need not say. But the Dennis notes are mentioned in the deed of trust, an exhibit to the bill; they are now in the Stout judgment, unpaid, except the sixty-five dollars made on execution, and plaintiff, as exposed to liability for the residue of the judgment, may, at a proper time, resort to the trust property for reimbursement.
The plaintiff should have an indemnity, in the trust deed, against any loss on account of the three hundred and sixty dollar note executed by Nolley to plaintiff, and which was sold for three hundred dollars, and used to pay the Galloway judgment. But there is no allegation that he endorsed the note, that he became, or is liable on account of it, that he has paid, or will be compelled to pay anything tor endorsing or transferring the note.
Every thing else, that was brought into the case, was illegally considered; other dealings, liabilities and indebtedness than those mentioned in the trust deed, and than the one above specified, have no connection with the trust property, are not covered by the deed of trust.
In New York, Chancellor Sanfokd held that when the object of a suit was to foreclose a mortgage, the suit was, in effect, against the land, and that set-off, arising from other dealings, could not be made. Troup vs. Haight, Hopk. R. 270.
Although set-off is a distinct head of equity jurisdiction, it was not allowed to vary the condition of a mortgage lien. So, here, if the plaintiff have other demands against Nolley, he may prosecute them at law, or wherever the appropriate remedy can be administered, but nothing but demands provided for in the trust deed, ought to be, or can be charges upon the trust property. And the plaintiff expressly disavows, in his answer to the interrogatories appended to Nolley’s answer, that in this suit, he claimed or hoped to be reimbursed for payments of money for Nolley, not connected with the trust relation.
The decree must be reversed, but to enable the plaintiff to show, if he can, that he has paid the amount appearing to be ■unpaid of the Stout judgment; and that he has paid, or will be obliged to pay, money on the transfer of the three hundred and sixty dollar note, he must be permitted .to file amended and additional pleadings, as he shall be advised, within such time as to the court below shall seem reasonable, and if he does not comply with such order, his bill must be dismissed without prejudice, the girl Lucinda, in the meantime, to remain where she now is, under the bond already given by Nolley, if sufficient-, or othei’wise to be under the direction of the Circuit Court of Union county, sitting in Chancery, to which this cause is sent back, to be proceeded in according to law. | [
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Mr. Justice Compton
delivered the opinion of the court.
Gentry, the plaintiff in error, on the 21st day of April, 1855, entered into a recognizance in the penalty of one hundred and ten dollars, conditioned for the appearance of Eli Tucker — who was principal in the recognizance — before the Circuit Court of Clark county, at September term, 1855, to answer an indictment preferred against him for assault and battery. As shown by the record, the September term, (1855,) of the court was not held, owing to the illness of the presiding Judge. At March term, 1856 — which was the next regular term thereafter — Tucker failed to appear, and the recognizance was forfeited. At the September term following — scire facias having been regularly served — the plaintiff in error defaulted, and judgment was rendered against him.
It is insisted that, according to the condition of the recognizance, the principal recognizor was not bound to appear at March term, 1856, and that his failure to do so, did not warrant a forfeiture of the recognizance. The court thinks differently. True, a part of the condition is, that “the said Eli Tucker shall be and appear at and before said court at the place aforesaid, on the first day of said next term, (Sept., 1855,) thereof, then and there to answer said charge,” &c. But this is not all — the condition proceeds “and shall not depart thence without leave of said court.” This condition is, substantially, in accordance with the statute, (Gould’s Dig., chap. 52, sec. 59,) and by its terms, the principal recognizor was bound to appear, not only at the term mentioned in the recognizance, but at each succeeding term thereafter, until acquitted, or otherwise legally discharged, or if found guilty, until sentence was passed on him— if not permitted to depart sooner by leave of the court.
Finding no error in the record, the judgment must be affirmed | [
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Hon. Harris Flan agin, Special Judge,
delivered the opinion of the Court.
The appellant brought her bill in chancery on the 17th day of October, 1854, and which bill was lost and a new bill was substituted, which charges:
That on the 16th November, 1846, the appellant recovered against the defendants, Fowler and Pike and Thomas W. Newton, deceased, $4,850, together with ten per cent, interest from the 7th day of July, 1844, and costs. The debt was the personal debt of Fowler, and Pike and Newton were his securities. On the 28th day of June, 1853, a writ of scire facias was issued, and on the 26th day of January, 1854, the death of Newton was suggested, and the suit abated as to him and progressed against Pike and Fowler, who filed a plea of payment, and the case being submitted to a jury they found that $1,721 53, with interest from October 12th, 1847, were still unpaid. That Fowler, to defraud the Bank, offered in evidence and obtained the benefit of a record entry dated December 10th, 1847, whereby the Bank, by her attorney, acknowledged in open court that she had received from the defendant Albert Pike, full satisfaction of one-half of said judgment. Fowler had full knowledge that that entry was a mistake, and that Pike had paid nothing, and obtained a credit equivalent to $3,242 4-100. Within a year after it was made, Albert Pike informed him, Fowler, it was a mistake, and that he had never paid it. Neither of the defendants had paid it. That the officer of the Bank, who directed the entry, was dead at the revivor. That there was no officer of the Bank, at the time of said revivor, who knew of the mistake, and that Albert Pike was absent at the time, and only informed the receiver of the Bank of the mistake after his return. Pike could not be a Witness, and a court of law could not now correct the error. The receiver of the Bank did not suspect the mistake. That Albert Pike and Absalom Fowler were the securities of George Waring, and Pike paid his half of the judgment, when by mistake the judgment against Fowler, Pike and Newton was credited. Prays that the record entry of satisfaction be set aside, and for general relief.
Fowler demurred and his demurrer was overruled: he then filed an answer denying that there was either fraud or mistake, and insisting that the money was paid, and if not, he supposed it to be so, at the return of the scire facias. Newton as administrator of his father adopted Fowler’s answer as the best of his knowledge, information and belief.
Pike answered, that he believed all the allegations in the bill to be true. That the credit of record was entered by mistake of the clerk. That he never paid anything in satisfaction of said judgment. That he paid one half of a small judgment, on which there was also a judgment on a forfeited delivery bond, against Waring, Pike and Fowler, and requested Lincoln, attorney for the Bank, to acknowledge satisfaction of the original judgment, and one-half of the one on the delivery bond; and the clerk, by mistake, entered the half satisfaction on the much larger judgment for Fowler’s own debt. He thinks he informed Fowler of the mistake, and that nothing had been paid, within one year after the transaction and before the enquiry about it — after Lincoln’s death, informed Ross. He has never concealed it, but has told every one that asked him.
The case went to hearing upon bill, answers, replications and exhibits to the bills and answers, without proof, and the court decreed that the bill be dismissed.
This case is brought by the complainant to this court by appeal.
As Fowler and Newton’s answers are responsive to the bill and deny its equity, and there is no testimony to overthrow the answers, it is not contended but that the decree must be affirmed as to them.
The question remaining to be disposed of, is; whether relief can be given against Pike, the security of Fowler, (who is charged with no fraud or unfairness) on the ground of accident or mistake on the part of the Bank, of fraud upon the part of Fowler, notwithstanding the absolute discharge, upon a plea of payment, of his principal, Fowler, and co-security, Newton.
If the judgment and the satisfaction had been against Fowler and Newton only, and this had been a proceeding at law against Pike, the authorities are clear that the discharge as to Fowler and Newton would have discharged Pike, on the ground that the payment by one of a common liability would operate as a payment as to all. This would have been the law of the case, if the contract had been made by partners in interest, and not by principal and security as is the case here.
The relation of principal and security, although it may cease to exist so far as to make them all principals at law, continues in chancery even after a judgment at law. Thompson et al. vs. Adams et al., Freem. Ch. Rep. 225; Thruston vs. Prentiss, Walk. Ch. 529.
It is not pretended that Albert Pike was guilty of any fraud. On the contrary, this matter would never have been explained but for the reason that he explained it himself. His whole conduct in the matter has.been marked with the utmost fairness.
The question presents itself, what remedy would Pike have against Newton’s administrator, were he to pay this judgment? There having been a judgment in his favor at law, and a decree upon the merits of the case, there could no claim be made against him in favor of the creditor, and according to the authorities, none for contribution to a co-security.
In Littledale vs. Robinson, 2 Brock. 159, it was held that the security took the place of the creditor, after paying the-secured debt, against a co-security. And in Lowndes vs. Pinkney, 1 Rich. 155, the court quoted approvingly Littledale vs. Robinson, and say: “So, if a co-security has a receipt in full, or other satisfactory defence, it would not be contended that a verdict against the other security would debar the use or validity of the ' defence. According to' Littledcde vs. Robinson, this is the criterion; the co-security take's the place of the original debtor, and may be resisted upon the same principles, and in the same way.” Under these circumstances was Pike the complainant in a bill in chancery against a suit at law, he would be released from one-half the liability. 1 Story Eq. Jur. 498, a.
A security is entitled, upon the payment to a creditor, to an assignment of the cause of action, and to be subrogated to his rights. In Eppes vs. Randolph, 2 Call 125, it was held that a security paying a bond creditor was entitled to take his place as a bond creditor. The decision was affirmed in Littledale vs. Robinson, 1 Breck. 159. Lord Hardwick, in 1st Atk. 133, declared that when a security pays off a debt, he is entitled to have an assignment of the security. The same principle is recognized in Rushforth ex parte, 10 Vesey 420; Wright vs. Morley, 11 Ves. 22; Cragthorn vs. Swinburn, 14 Ves. 102; Hays vs. Wood, 4 John. ch. 129,
In this case, the Bank, by an act of her own, has utterly placed it out of her power to turn over the security to Pike should he pay the judgment. It is at least doubtful, whether, if this judgment should be paid by Pike, he would have any remedy against Newton.
In Thornton et al. vs. Prentiss et al., Walker’s Ch. R. 529, it was declared, that if a security pay a judgment, which is void for usury, he pays it in his own wrong, but if it is not void he may recover of the principal the sum due. In Shaw vs. Loud, 12 Mass. 446, the security was released by the statute of non-claim, but the principal was still bound, and the debt was paid by the security: the court held that the principal being bound to the creditor, the security could recover. In Ford vs. Keith, 1 Mass. 140, it is distinctly implied that had the principal given express notice not to pay a usurious contract to the creditor, the surety paying it would pay in his own wrong. In this case, in law and in chancery, the principal is absolutely discharged, and should Pike pay it voluntarily, he could not recover from the principal. If a surety pays after the obligation has been discharged he has no remedy. Addison on Contracts 672.
A surety who pays money on a judgment absolutely barred has no remedy against his principal. Randolph vs. Randolph, 3 Rand. 490.
If a surety pays a debt with notice not to pay, and sues his principal, his principal will have the same remedy as against the original creditor. Mims vs. McDowell, 4 Geo. 182.
Upon general principles it seems clear that he is not liable.
A surety is no longer obliged when the principal debtor for whom he is bound' is discharged. Pothier on Ob. 306; Chitt. on Con. 415.
When a principal is discharged by anything that is not personal to him, as infancy, bankruptcy, etc., the surety is discharged. Pothier on Ob. 307.
It is “the essence of this contract that there should be some one bound as principal,” and the liability ceases as soon as the principal is discharged. Chitt. on Con. 441; Burge on Siiretyship 3.
In this case, Pike has incurred a liability which is strictly legal and supported by no consideration going to himself, and is only liable according to the strict terms of the contract. United States vs. Cushman, 2 Sumn. 426; Ludlow vs. Simond, 2 Caines Cases 1; Brooks vs. Brooks, 1 Gill & John. 306: and the creditor has discharged that contract, including the contract of the principal and co-security, by mistake, without the fault of Pike, and now either the creditor or surety must lose. The equities are equal, and the law must prevail. ] Story Eq. Jur. 64.
Admitting the law to be settled that equity will relieve against the security for fraud, accident or mistake, and that a party cannot avail himself of the fraud of another, we hold that Pike was discharged at law by the judgment, and that, under the circumstances, he cannot be held responsible in equity.
The decree is affirmed.
Mr. Justice Fairchild did not sit in this case. | [
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lion. Thomas Johnson, Special Judge,
delivered the opinion of the court.
The indictment in this case contains |three separate counts, but they are all substantially the same. The essence of the ■ charge is, that the defendant, on the 10th of December, 1856,'at the county of "Callas, in the State of Arkansas, bet the sum of fifty cents on a game of hazard, played with dice, and commonly called lottery.
The indictment is believed to be in accordance with the statute, and the only question to be determined is, whether the case as developed by the proof, comes up to any one of the offences contemplated by it. The 9th section of the act provides that “ if any person shall be guilty of betting any money, or other valuable thing on any game of hazard or skill, he shall be fined, etc. And the next further declares that, in prosecutingunder it, it shall be sufficient for the indictment to charge that the defendant bet money or other valuable thing, on a game of hazard or skill, without stating with whom the game was played.
James B. Thrasher, the first witness introduced, testified that within twelve months before the finding of the indictment, there came to the place a stranger, who was traveling with a circus, that the stranger had an oil cloth which was .checked off into small squares and that upon each of the squares there were different numbers in figures, that the oil cloth was placed on a table.- He also had a small box and six dice which were^thrown from the box by the player, that every man who played had to pay him fifty cents for each throw of the dice from the box, that if the player threw the number corresponding with the one on either of the prize checks on the cloth, he won the prize of that check, that; the prizes ranged from one to two hundred dollars, that there were several checks on the cloth with numbers that were not prize numbers, and that when the player threw one of these numbers he did not win any thing. ■ That the stranger or owner of the cloth did not throw the dice, that he got the half dollar which the player gave, for the privilege of throwing the dice absolutely, and without any regard to the result of the throw, and the privilege of throwing the dice was given by the owner to all who desired, upon their paying the half dollar, and that the owner called the game a lottery. He further stated that he had seen William H. Martin (the defendant) bet at said game in the county, and State, and within the time aforesaid.
William Hamilton testified that the other witness (James B. Thrasher) had correctly described the game, and that the stranger called it a lottery, but that he had not seen the defendant bet on said game. Neither of the witnesses had ever seen the oil cloth off the table.
Robert Martin, a witness introduced by the State, then stated that he was a member of the grand jury that found the indictment in this case, that the grand jury tried.to ascertain the name of the game, hut could not, that he had heard the stranger call the game lottery, but that they did not know that it was its true name. That he had seen a game like this in every particular on a steam boat, but that the prizes were not all-in money, and that it was called a lottery.
This is the. substance of all.the testimony submitted in the case. Upon this testimony the State asked the court to instruct the jury, first, that if they believed from the evidence that the defendant bet money upon a game of hazard played with dice, commonly called lottery, in the county of Dallas and State of Arkansas and within twelve months before the indictment was preferred against him, they must find him guilt}*-: 2d. If they believed from the evidence that the game was abankinggame they must find him guilty, provided he bet upon it in manner and form as charged in the indictment, and 3d. That abanking game in the meaning of the law, is one upon which the owner or exhibitor of the game bet against all persons who come.
The court gave the second and third but refused the first.
■ The defendant then asked the following which was given by the court. If the jury-believe from’the evidence that the betting- of the defendant was on a gaming or gambling device adopted, devised, or designed for the purpose of playing any game of'chance, at which any money or property might be won or lost, and upon which the setter up or owner of the device bets against all who wish to bet with him they wohld find defendant not guilty. ■ . ’ ■
The State, who prosecutes the appeal, complains of the court below for refusing the first instruction, and also for giving the one asked by the defendant. It is clear that there is no error in giving 'the instruction asked by the defendant. The indictment was not framed in such a way as to embrace any one of th« offences contemplated by the iirsc section of the act. Tire court has repeatedly held that the first section relates exclusively to the banking games, so called, whether played with cards, or by means of any other contrivance, whether called by the names specified, or by any new name or device, and the distinguishing feature of which is, that they are set up or exhibited to be bet against by all comers. See State vs. Hawkins 15 Ark., 259. The indictment in this case could not have been preferred under the eighth section of the statute against gaming, for this applies only to games played with cards. It is obviously founded upon the ninth section, which is not a repeal, but simply a cumulation of the first, and consequently, if the evidence proved a betting on any one of the banking games, the defendant not having been indicted for such offense could not be legally convicted. The point then tobe determined relates to the correctness of the refusal to give the first instruction moved by the attorney for the State.
The ninth section, upon which this indictment was framed, was not intended to re-enact any one of the offenses contemplated by the eight preceding sections, but on the contrary, was designed to commence where they stopped, anu to embrace every other game of hazard or skill. The distinction recognized in the case of the State against Hawkins and already referred to, was first laid down in Drew vs. The State 5 Eng. 84, and has been uniformly adhered to ever since by this court. In the case of Drew vs. The State, this court, by Scott J. said : “The gist of the offence created by that section, which we are now considering, is the betting of money, or other thing of value, or the representation of any thing that may be esteemed of value, at or upon that Ishmaelitish class of gambling devices and games of chance, described and indicated in the first section of the act, which are to be distinguished from that other class of small games described and indicated in the eighth sec tion, not only by the general feature of supposed predominance of chance over skill, but also in the further general feature of being bank games, or devices, against which banks or devices many play for and against the money exhibited or understood to be in the bank to be bet against and paid out by the conductor of the game or device to those who inay win on the chances. The offence of betting that is, by this section, designed to bo proscribed, has no necessary or usual connection with mutuality of betting as between individuals, but simply consists in the wilful act of betting or venturing of money or other thing of value, or that which represents a thing that is esteemed of value, at, upon, or against any of these banks, games or gambling devices of chance, at which money or property may be won or lost, whether they be named or unnamed, propelled by any agency visible or invisible, known or unknown, by which this money is paid or received according to the exigency of the'so supposed chances.
That the device exhibited in the present instance was adapted, devised and designed for the purpose of playing a game of chance, we think there cannot exist a doubt. This is manifest from the arrangement of the cloth, as some of the checks upon it contained no prizes, and as a matter of course, if the throw of the dice for which the party paid his half dollar corresponded with the numbers inscribed upon them, they lost their money and won nothing. It is equally certain that it falls within the denomination of a banking game. When the table was placed upon the floor, and the cloth with its checks and prizes stretched upon it, and the exhibitor seated behind it with his box and dice in his hand, the game was complete and ready for action, and hus exhibited to be bet against by all persons who should see fit to make a trial of their fortunes.
The exhibitor does not receive the money from the player as a compensation for the use of the device, as in Rondo, Billiards Ten Pins, Fives Court, and the like ; but on the contrary, he fakes it absolutely as the price of whatever he may lose upon the chances of the throw of the dice. There is no error there fore in the refusal of the first instruction asked by the State. The proof was not competent under the indictment, which was predicated on the ninth section ; but on the contrary, would only have been admissible in a prosecution upon the first, and upon an indictment properly framed upon that section. This being the case the instruction, if given, would have been merely abstract, and consequently not entitled to any consideration whatever.
Let the judgment be in all things affirmed.
Mr. Justice Compton did not sit in this case. | [
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Mr. Justice Fairciuld
delivered the opinion of the Court.
When things that become property from being appropriated are the property of nobody, are in a state, of negative community, the first finder may reduce them to possession, which is a good claim, and under the name of title by occupancy is regarded as the foundation of all property. 2 Blk's. Cora. 3, 258; 1 Bouv. Am. L. 194, No. 491; Pothier Droit De Propriete, Nos. 20, 21; La. Civil Code, Art's 3375, 3376.
Hence, wild animals, that are not property in their natural condition, may be captured, will belong to the first taker by occupancy, and will so belong while in the keeping of the taker, or person claiming under him, or while in domestication. 2 Kent. 348; Coop. Just. Lib. II. Tit. 1. sec. 12; 1 Bouv. Am. L. 194, No. 492; La. Civil Code, Art. 3379.
So, the finder of things that have never been appropriated; or that have been abandoned by a former occupant, may take them into his possession as his own property; and the finder of any thing casually lost is its rightful occupant against all but the real owner. 1 Blks. Com. 295; 2 Ib. 3, 9, 402; 16 Vin. Abr., Possession F. 3; 1 Domat's Civil Law, by Cushing, 856, No. 2155; Coop. Just. Lib. II, Tit. 1. sec. 18; La. Civil Code, Art's 3,383, 3,384; Pothier Droit De Proprieie, Nos. 58, 60, 267; Armory vs. Delamirie, 1 Strange, 505; Brandon vs. Huntsville Bank, 1 Stew. 342, 344; Eastman vs. Harris, 4 La. Ann. R. 194.
The bill in this case is founded upon a right of occupancy which Brazelton, the plaintiff, insists was vested in him by his discovery of the wreck of the steam-boat America, and by his intentions and acts relating thereto. Because this right was not respected by the defendants, partners and servants of a firm of wreckers doing business in the Mississippi river and its tributaries, under the style of Eads & Nelson, Brazelton filed his bill on the chancery side of the Circuit Court of Mississippi county, to obtain the protection of the court, to relieve him from the interference of the defendants in his own intended labors, to recover the property in the wreck, and to obtain compensation for what they had taken therefrom.
From what is before us it maybe taken as shown in the case that, in November, 1827, the boat named sank in the Mississippi river, within the limits of Mississippi county; that, of her cargo, shot and bundles of bar lead of an unascertained quantity, and lead in nigs to about the numher of three thousand, remained in the river, wholly abandoned by the owners; that Brazelton, having information of the place where the boat sank, proceeded, in December, 1854, to ascertain its exact locality in the bed of the river, with the view of raising the sunken lead; that, in January 1855, he arrived at the vicinity of the wreck, with his diving boat, to carry out his intention, and fastened a buoy to a weight that rested upon the wreck, with the expectation of putting his boat over it the next day, but that he was detained by other business, and by the difficulties and dangers of the work in the existing state of water, with boats like his, and by the necessity for making repairs upon his boat, and apparatus for raising the cargo, till the defendants, upon the 28th of September, 1855, caused one of their boats to' stop at the shore near the wreck, to search for and find it, to place their boat over it, and to commence raising the lead.
The quantity of lead raised by the defendants Was stated in their answer, and applying'the price thereto, as shown by the evidence, its value was found to be four thousand, five hundred and seven dollars and ninety-six cents, for which sum the court below gave a decree, perpetuated the preliminary injunction which was granted at the beginning of the suit, and which arrested the defendants in their labor upon the lead.
After the injunction had been served, and the defendants, in obedience thereto, had withdrawn their boat from the wreck, and while the plaintiff in his turn, was engaged in bringing up the lead left by the defendants, they brought their boat back near to the plaintiff’s boat and anchored, thereby obstructing his operations, for which two of the defendants that were within the jurisdiction of the court, were brought before it for contempt in disobeying the injunction, and were fined one thousand dollars, which was, by order of the court, paid to the plaintiff for-his damages from the obstruction.
The defendants appealed, and contend here that the injunction was illegally granted, for being granted by the judge in vacation, that it was issued against acts for which a legal remedy was the only proper one to be pursued, and upon a case that failed to show a right to the plaintiff to any relief, and that the decree is for a sum too large, in being for the gross value of the lead without any deduction for the expense of its being raised. Questions are also made upon the testimony.
The foregoing summary, although it may embrace all, or the more important of the facts upon which the injunction was obtained, and which must be the grounds of final relief, is intended, as was in effect stated, to be a recapitulation of facts, either admitted or established, and not a statement of allegations that were not proved or were disproved, or of testimony that was insufficient to establish the positions for which it was adduced, or that was neutralized or overthrown by counter evidence. But as the principal ground of controversy in the case, and one that may supercede all others, is Brazelton’s right of occupancy of the wreck by finding, and as that may depend upon its possession, the pleadings which allege and deny the possession, and the facts relative to this issue may well be subjected to closer scrutiny.
When Brazelton found the wreck he traced lines to it from different points on the Arkansas side of the river, so that their intersection would show the situation of the wreck, and the lines were indicated by marks upon the trees. It was upon the return of Brazelton from St. Louis with his bell boat that a float or buoy was placed by Brazelton over the wreck, and this was done with the intention of signifying the place to which the diving boat was to be dropped the next morning. It was not to be expected that such objects would remain permanent fixtures, as the wreck was in the main channel of the river, and it is evident that Brazelton considered them as guides to the sit-' uation of the wreck, as the marked trees were, as he stated to Seth Daniel, in the presence of Reese Bowen, that it would make no difference if they should be washed away, as he could find the wreck from the ranges of his lines. Brazelton does not pretend to have put his boat over the wreck, or to have had any claim to the wreck but by occupancy, which depended upon his finding it, upon his providing means for easy approaches to it by land-marks, and floats upon water, and upon his being in the neighborhood of the wreck from January to the last of September, without any other appropriation of the wreck, but with a continual assertion of his claim, and with the intention of making it good by future action. This, doubtless, he would have done in the winter of 1855, had not the sinking of the steamboat Eliza afforded the opportunity of other work to which he confined himself till June. Then he would have applied himself to the America, but the periodical rise of the river at that season prevented him from so doing, and when he was nearly ready, with his boat and machinery in order for effective labor, with favorable water for work, safe from rafts and flat and coal boats, the Submarine, No. 4, belonging to the defendants, passed him on the 28th of September, and within two days was placed over the wreck, and thenceforward the defendants were its occupants in fact, and claimed to be so by right.
If Brazelton’s boat 'had been accompanied with steam power as was the Submarine, No. 4, the rise of the water in June, or the season of floating boats and rafts would not have been uncontrollable obstructions to his desire to save the lead of the America ; and he could, while the boat of the defendants was hovering in the vicinity of the wreck, have placed his own boat over it, and thereby acquired a possession which the custom of the river, as alluded to in this case, would have respected as a right. But it is for us to declare the legal effect of what he did, and not speculate upon the possible result of a different course of action, which he might have pursued had wind and water permitted, and if other business had not called him from the prosecution of his original purpose.
But before examining the law of possession of goods claimed by occupancy, which is the question of the case, two sorts of allegations in the bill may be noticed, which were conceived by the plaintiff to have an effect upon the case, but of which we should need to be convinced, had not the failure of his proofs to sustain the allegations made the effort to convince us unnecessary. They relate to Ihe abandonment or loss of the lead in the river beyond the memory, knowledge or information of boatmen or residents of Mississippi county ; and to the alleged intent of the defendants to overreach the plaintiff in die occupancy of the wreck, and, in finding it, to use his marks upon the trees. ,
Neither the sinking of the America nor its locality seems to have been so obscurely remembered as the bill supposes. Captain Eads, one of the defendants, told the witness, Cunningham in 1843, according to his recollection that the America was under the tow head often mentioned in the case, which the witness afterwards was satisfied to have been the fact, from his acquaintance with the wreck after the tow head and island were washed away, and the wreck was left in the main river. Cunningham, in 1853, sounded for the wreck, and found it as he believed. Captain Swan, who was upon the America when she sunk, and who had been familiar with the river at the place of sinking from that time, in 1827, till 1854, and who communicated to Brazelton his information of the situation of the wreck, deposed that the bank has in all the time mentioned changed but very little, though the bars have been continually changing, and that from marks upon the bank he knew where the America was, and after 'the island which had covered the wreck about twenty years, was washed away, he is of the impression that, from the break of the water where he supposed the America to be, he could upon a clear bright day have pointed out the situation of the wreck. From the description of the place given by Captain Swan to Brazelton, he was able to find the wreck, as he afterwards told Swan that his supposition that the break in the water was caused by the wreck, had been verified. And Captain Swan further said that the pilots of the present time were as well advised, as a matter of news, of the loss of the America in the vicinity where the wreck lay, as the pilots were when she was sunk.
Josiah Sellers, who was a steam-boatman at the time the America was lost, and who passed the wreck a few days after her loss, and who both in going down and returning up the river stopped at the wreck, made such observations that, when the bar was washed away that had protected the shore and hid the wreck, he was satisfied that the America was in the channel of the river, and that the ruffling of the water, which he and Captain Swan saw in the river at that point, was caused by the wreck of the America. And he informed Capt. Eads in 1853 or in 1854, and he believes in both of these years, of the situation of the wreck, giving him the land marks and the break of the water as indications where to find it, as Swan did to Brazel-ton.
So, in February, 1855, Captain Turner found the wreck, and he says without the assistance of Brazelton’s marks.
The witness, Garrett, also referred William H. Johnson to ne-groes who were probably living on the river when the boat was sunk, and Captain Neaves, of the Submarine, No. 4, almost admits that the information given him by negroes that stood upon the bank when he was searching the water for the wreck hastened its finding.
From these facts, and from every thing in the case, we think there could have been but little difficulty in finding the wreck after the island that had so long concealed it, was washed away, and the labor or good fortune of Brazelton in ascertaining its locality affords no reason for assigning it to him as his property, aside from the legal consequences'of its possession, even if courts had the power of such assignment, which we disclaim, and which we do not understand Brazelton to claim but by implication.
With reference to the tree marks of Brazelton it may be said that there is no satisfactory evidence that they were used on the part of the defendants in finding the wreck.
Andrew Skelton says that one of the divers of the defendants showed him marks upon trees, but what or whose marks we do not know. George Young relates that the morning after the boat landed near the wreck, the Captain hired a negro to show him Brazelton’s marks, while Johnson Reeves says that on the same morning the Captain offered the negro money to show him where the wreck lay. The language of the Captain to the negro, if the two witnesses were testifying to the same conversation, was very differently understood by them, and we have no means of testing their comparative correctness.
Captain Weaves in his answer denies this, and Johnson, a diver, who seems to be most implicated m the talk on shore at Garrett’s, and with Young, and who was referred to the negroes, positively denies that he knew of Brazelton having made any marks, or being in the vicinity; asserts that he was on shore looking for marks, he said, and supposed Turner to have made. He, Turner, had found the wreck while in the employ of the defendants, and had made a chart which is alluded to in the case as a guide to the boat in finding'the wreck.
The evidence too is abundant that the defendants, or Capt. Eads, one of them, had knowledge of the place of the wreck, and they aver a persistent intention to have taken up the lead, which the allegations of the bill against them as being extensive, determined and monopolizing wreckers, and the deposition of Turner, confirm.
It is not established that the defendants knew that Brazelton was about to work upon the America, although a witness so inferred from the conversation of the Captain and others of the boat, while there is no room for suspicion that they intended to interfere with any occupancy of the boat by Brazelton, and the whole case is, that they did not do so according to their understanding ef Brazelton’s right.
But what that right was remains to be determined.
Notwithstanding the point made by the defendant, that Braz-elton had no right to the lead which the law would protect, it being the property of the original owners of the cargo, there is no room for doubt that the lead was abandoned by its owners; and even without the positive testimony of an owner of the boat and cargo in affirmation of the fact, the law would so imply from the term of the loss, and from the fact of its having been covered by an island formed upon it, which sustained trees grown to the height of thirty or forty feet. All reasonable hope of acquiring the property must have been given up from the nature of the case; and the evidence shows that during the two years that intervened between the sinking of the boat and its being covered by the tow head and island, no effort was made or design entertained to save that part of the cargo that was abandoned when the high water interrupted the labor of saving it, that was prosecuted for two weeks after the loss of the boat, save that an excluded deposition mentions that one hundred and sixteen pigs of lead were afterwards got out by residents of the neighborhood. Having saved the specie that was on board belonging to the United States, the furs and one-half of the six hundred pigs of lead, and a part of the shot, with which articles the boat was laden, and the boilers and machinery of the boat, the owners of the America seem to have contented themselves therewith; and to have wholly abandoned the remaining shot and lead.
Unlike The Barefoot, 1 Eng. Law 4* Eq. Rep. 664, which was the loss of lead and iron in smacks, in^which Dr. Lushington held, that the property was left but not abandoned, because the place of the property was well known, and because the property was unmovable until recovered by human skill, this case, from the length of time that had passed, from the shifting nature of the bars and channel of the river in Plumb point bend, as well as from the testimony of Captains Swan and Sellers, of William H. Johnson, and of Mr. Ruble, an owner of the boat, shows not only that the lead in the wreck was left, but that it was abandoned. But whether the property when saved would have been the property of Brazelton, or of an occupant, or of the owner, would not give right to the defendants to resist the suit of Brazelton : lor if he were a finder of the wreck, as such he would be entitled to the property as owner, or to its possession as salvor, and would be protected from the interference of the defendants or other persons. And for this reason decisions in admiralty upon the conflicting claims of salvors to the possession of deserted property are authorities to be considered in the settlement of the pending controversy.
Property is said to be abandoned when it is thrown awaj, or its possession is voluntarily forsaken by the owner, in which case it will become the property of the first occupant; or when ( it is involuntarily lost or left without the hope and expectation of again acquiring it, and then it becomes the property of the finder, subject to the superior claim of the owner; except that in salvage cases, by the admiralty law, the finder may hold possession until he is paid his compensation, or till the property is submitted to legal jurisdiction for the ascertainment of the compensation. 2 Blk. Com. 9; 1 Bouv. Am. L. 195, No. 494-Coop. Just. Lib. II, Tit. I. S. 46; Abbott on Shipping 555, Am. note; Woolrych on Waters 15; Rowe vs. Berg, 1 Mas. 373; Lewis vs. The Elizabeth & Jane, Ware’s Rep. 43; The Bee, ib. 344, 345; The St. Peire, Bee's adm. 82; The Mary, 2 Whca. 126 and note (A.); Steamboat J. P. Leathers and cargo, Newb. A. D. 325; Marvin on Wreck and Salvage, s. 124, 125.
Some authorities refer to things found at sea as belonging to the finder, in distincticyi from wreck, that is, goods lost at sea and floated to land, of in general terms excluding the sense of derelict as used in Maritime cases, or as distinguished from custom and statutory law, and in extreme cases property wholly derelict and abandoned has been held to belong to the finder against the former owner. Woolrych on Waters 14; Constable’s Case, 5 Coke 108, 6; Marvin on Wreck & Salvage, sec. 131, note; 1 Bouv. Am. L. 196, No. 496; Wyman vs. Hurlburt, 12 Ohio 87.
The occupation or possession of property lost, abandoned or without an owner, must depend upon an actual taking of the property and with the, intent to reduce it to possession. The intent may not be that this possession shall be an absolute or perpetual appropriation of the property to the use of the finder, it may be subject to the claim of the real owner, the possession may be taken for his exclusive good, or it may be taken as a means of subsistence or accumulation, according to the course of business of the parties to this suit. But in any case, title by occupancy must rest upon intentional actual possession of the thing occupied.
Such is the meaning of the Commentaries, from which are the following extracts.
“ The acquisition of things tangible by occupancy, must be made corf ore et animo, that is, by an outward act signifying an intention to possess. The necessity of an outward act to commence holding a thing in dominion, is founded on the principle that a will or intention cannot have legal effect, without an out-tward act declaring that intention; and, on the other hand, no imán can be said to have the dominion over a thing which he /has no intention of possessing as his. Therefore a man can's'not deprive others of their right to take possession of vacant I property by merely considering it as his, without actually ap- | propriating it to himself; and if he possesses it without any will of appropriating it to himself, as in the case of an idiot, it cannot be considered as having ceased to be res nullius. The out-Íward act or possession need not, however, be manual; for any species of possession, or as the ancients expressed it, custodia, is in general a sufficient appropriation^ 1 Bouv. Am. L. No. 495. Possession in the civil law “ implies three things ; a just cause of possessing as master, the intention to possess in this quality, and detention * * without the intention there is no pos- , session * * * *. Without the detention the intention is useless, ,¡ and does not make the possession.” 1 Domafs civil Law, by Gushing 859, No. 2161. “ The possession of the things which we acquire by their falling into our hands, such as that which we find * * * * is acquired by the bare fact of our laying our I hands upon them” — lb. No. 2102. “ Found — means, not merely J discovered, but taken up.” Notes to Coop. Just. 458. “Treasures naturally belong .to the finder; that is, to him who moves them from the place where they are, and secures them;” lb. 461.
The law is happily stated in the code of Louisiana thus : “ To be able to acquire possession of a property, two distinct things are requisite : 1. The intention of possessing as owner ; 2. The corporeal possession of the thing.” La. Civil Code Art. 3399.
Pothier, with his characteristic, accuracy and perspicuity, has fully stated the law upon this subject, and the rule as stated by him is to this effect; that to acquire possession of a thing there must be a desire to possess it, joined to a prehension of the thing. See in full Nos. 39 to 42 & No. 55 of his Traite De La. Possession, & Nos. 63 & 64 of his Traite Du Droit De Propriete, Marvin on Wreck & Salvage s. 127.
Such are the doctrines of the Louisiana code, of the Commentators upon the Common, Roman, French and Admiralty law, and applying them to the facts of this case, we hold that Bra-zelton never attained to the possession of the wreck of the America, that he therefore had no title to it by occupancy, had no right upon which judicial protection could operate, none which the court below should have recognized. He had considered the wreck as his as its finder, but had not actually appropriated it to himself; his intention to possess was useless without detention of the property; he had not found the lead in the required sense of discovering it, and taking it up ; he was not a finder, in that he had not moved the wrecked property, or secured it; he had the intention of possessing it as owner, but did not acquire its corporeal possession; to his desire to possess there was not joined a prehension of the thing.
Brazelton’s act of possession need not have been manual,he was not obliged to take the wreck or the lead between his hands, he might take^such possession of them as their nature and situation permitted ; but that his circumstances should give a legal character to his acts, making that to be possession which the law declares not to be possession, assumes more than a court can sanction. Marking trees that extended across the wreck, affixing temporary buoys to it were not acts of possession; they only indicated Brazelton’s desire or intention to appropriate the property. Placing his boat over the wreck, with the means to raise its valuables, and with persistent efforts directed to raising the lead, would have been keeping the only effectual guard over it, would have been the only warning that intruders, that is, other longing occupants would be obliged to regard, would have been such acts of possession as the law would notice and protect. If Brazelton in the winter of 1855, deferred raising the lead to wreck the steamboat Eliza, he was free to do so, but must abide the legal consequences of his choice. If afterwards he could not work in the main channel of the river, owing lo high water, strong wind, or to damaged boats and rigging, his ill fortune could not bend the law to his circumstances, nor could he with right warn off the defendants from the occupancy of the America, when they were as willing and more able than himself to raise the lead in her hold.
The following adjudged cases may have a bearing upon this case, and illustrate the general principles of the last cited authorities :
In Pierson vs. Post, 3 Caines Rep. the plaintiff was pursuing a fox and had not got it within his control; and the defendant was held not to be liable for killing it. The plaintiff had established no claim by occupancy. His intention against the fox was unmistakable, but his act of possession was incomplete.
Marking a bee-tree was a more emphatic claim against the bees than Brazelton’s marks were upon the wreck, but was not sufficient to vest a right in the finder. Gillet vs. Mason, 7 Jhs. 17.
And when one had found bees and had got leave of the owner of -the tree in which they were to cut it, and take the bees, he acquired no property in the bees, he had not taken possession of them. Ferguson vs. Miller 1 Cow. 244.
It is not trespass to take wild bees or honey. Wallace vs. Mease, 3 Binn. 553.
A deer had been wounded and followed with dogs for six miles, and the pursuit was given over for the night by the plaintiff, though his dogs continued the chase ; the defendant and the plaintiff seized the deer together, but, because this did not show an occupancy of the deer by the plaintiff, he could not recover the skin and venison of the defendant, who killed the deer. Buster vs. Newkirk 20 Jhs. 75.
The next authority is from an accomplished admiralty Judge, several of whose decisions are cited in this opinion:
“ The title which is acquired to property by finding, is a species of occupation; and it is laid down as a rule of law, by the civilians, that the mere discovery and sight of the thing, is not sufficient to vest in the finder a right of property in the thing found. ’ Fothier, Traite de la Propriete No. 63. E acquired by possession, and this must be an actual He cannot take and keep possession by an act of the will,ocw-Zis' et affectu, as ne may when property is transferred by consent and the possession given by a symbolical delivery. To consummate his title there must be a corporeal prehension of the thing.” The Amethyst, Davies Rep. 23.
From the foregoing quotation may be seen the inapplicability of the citation from Parson’s Merc. Laws, in the argument for Brazelton, as it relates to the delivery of bulky articles, the right of which is passed by sale.
The reference to the next case, except the extract from the opinion of the chanceller, is taken from the printed brief furnished for the defendant.
The case of Deklyn vs. Davis is like the present case. About the year 1781, the British frigate “ The Hussar” sank in the East river in sixty or seventy feet of water.
The bill averred that she “ was abandoned and derelict,” and that “ with much labor and expense” the complainants, in the summer of 1823, had discovered the “ precise situation of the ship — had fastened chains around her, which they secured to floating timbers, and raised her about ten feet from her bed, and perfectly occupied the vessel, and continued their occupancy, by which she became their property. That at the approach of winter they desisted from their labors, by reason of the weather, designing to rernme the work in the following season. That the occupancy of the complainants continued until the defendants, with knowledge of complainant’s rights, on the twenty-second of March, with vessel, etc., moored and anchored over and around the sunken ship.” An injunction was granted, restraining the defendants “from the further interruption of the complainants” and also enjoining them “forthwith to remove the sloops.”
“ The defendants set up that the property was not abandoned or derelict when complainants took possession in 1823; that defendants, at great cost, had made preparation to raise the vessel ; that they had “ ascertained the precise situation and position of said frigate, took possession thereof, and to occupy the same, made their marks and ranges on the adjoining shore so as to identify the spot and enable them to commence their operations thereupon at the opening of the following season.” That the complainants, “ in the absence of the defendants and their men, fraudulently and forcibly took possession of the frigate ; ” and afterwards Davis, in the absence of Deklyn and his men, took possession of the frigate by anchoring sloops over her and surrounding her with machinery “ The right claimed by each of the contending parties is the right of occupancy. Both parties have prepared means and have taken measures to raise the sunken frigate ; neither party has yet effected that object; and such being the state of the facts, the court says : “ Neither parly has yet obtained an actual or exclusive possession of the derelict subject. * * * The complainants allege in their bill that their acts of occupancy have obtained for them a title ; and the defendants, by their answer, insist that their acts preparatory to an actual possession, have been such as to give them a prior and superior right.”
But if the acts of the complainant Deklyn did not constitute any “ actual or exclusive occupancy,” and if the acts of the defendant Davis were merely ‘preparatory to an actual posses sion,’ much less did the acts of Brazelton constitute such occupancy. Hopkins, Ch. Rep. 135.
The next two cases referred to, and from one of which a lengthy extract is given, were decided by Judge Betts of New York, a very high authority in the matters treated upon : “ * * * “ but it is in consonance with the established principles of mar- “ ritime law to hold those beginning a salvage service, and who “ are in the successful prosecution of it entitled to be regarded “ as the meritorious salvors of whatever is preserved, and enti- “ tied to the sole possession of the property.” The Brig John “ Gilpin, OlcotVs Rep. Adm. 86.
“ An impression seems to have obtained, that one who finds derelict property under water or afloat, acquires a right to it by discovery, which can be maintained by a kind of continued claim, without keeping it in possession or applying constant'' exertions for its preservation and rescue. There is no foundation for such notion. The right of a salvor results from the fact that he has held in actual possession, or has kept near what was lost or abandoned by the owner, or placed in a dangerous exposure to destruction, with the means at command to preserve and save it, and that he is actually employing those means to that end.
‘ The finder thus becomes the legal possessor, and acquires a privilege against the property for his salvage services which takes precedence of all other title.” Lewis vs. The Elizabeth & Jane, Ware, 41 ; The Bee, Ware, 332 ; The St. Peter, Bee, 82. “ * * * The fact that property is found at sea or on the coast in peril, without the presence of any one to protect it, gives the finder a right to take it in his possession; and the law connects with such right the obligation to use the means he has at control, and with all reasonable promptitude, to save it for the owner. lie can therefore be no otherwise clothed with the character of salvor than whilst he is in the occupancy of the property, and employing the necessary means for saving it.
“ Notorious possession, with the avowal of the object of such possession, are cardinal requisites to the creation or mainten- anee of the privileges of a salvor; where they do not exist, any other person may take the property with all the advantages of the first finder.” The Schooner John Wurtz, Olcott Rep. Adm. 469—471. Marvin on Wreck and Salvage, s. 128.
No reasoning, no comment can make more imperative the action of this court than it is made by the foregoing cases and authorities, taken in connection with the facts of the case, or with the allegations of the bill alone.
The decree of the Circuit Court of Mississippi county sitting in chancery is reversed ; and the case must be sent down with instructions for the dissolution of the injunction, and that a decree be entered for the recovery of the thousand dollars, with interest, that were assigned to Brazelton as his damages for being obstructed by the defendants in his work upon the wreck after the service of the injunction upon the defendants Patrick & Neaves.
If the fine inflicted had been considered in the court below, and had been a punishment for the contempt of the two defendants’ disobedience to the process of the court, a different decree would have been called for upon this branch of the case
The defendants below, the appellants here, must recover their costs in this court, but to show our disapprobation of the conduct of defendants Patrick & Neaves in disregarding the process of the court, we direct that the costs in the court below be paid by them. | [
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Mr. Justice Fairchild
delivered the opinion of the Court.
To fjjn action of assumpsit upon a note executed hy William M. Ware and Shadrick D. Drennen to John L. May, Common School Commissioner of Union county, or to his successor in office, Ware and Drennen pleaded in bar of the action brought by Kelly, as successor of May, that May represented to them, Drennen and Ware, that he wished to use the money in his hands as School Commissioner, and that if they would give their note for it, so that he could have the money, he would indemnify them against loss from the note by a mortgage on property, or by bond and security, to which they agreed, and executed the note, but upon condition that May should make them secure as he promised, before he should use the note, or put it in circulation ; which he had not done and refused to do, and had turned the note over to his successor in office. A demurrer was sustained to this plea, which is one of the grounds of complaint preferred by the appellants.
It was not essentia] that Ware and Drennen should reap any benefit from their agreement with May, or from the money drawn by the note sued on, to afford a valuable consideration for the note. The School fund parted with its money and for the note of Ware and Drennen, and if May violated his agreement with them, and obligation to them, in leaving them exposed to hazard, May was not the agent of the fund, to make it stand in his place, to atone for his faithlessness to Ware and Drennen. The agreement stated in the plea was no defence to the note. Such a disposition of the School fund might be expected to be ruinous to it, was impolitic in its example, if safe in its consequences, was illegal and immoral in diverting the fund from its proper course, which was to be loaned out by May to others, upon undoubted security, not to appropriate it to his individual use.
The demurrer to the plea was well sustained.
Aside from the practice of this court, not to control the discretion of the Circuit Courts in refusing continuances except upon evident wrong done to the applicant, Ware’s motion for a continuance discloses, that the evidence he expected from the absent witness was not pertinent to establish a legal defence to the note. It would have supported the plea that was properly quashed on demurrer; but if the witnesses had been present, and had testified as the affidavit for a continuance stated they would, their testimony would, or should have been disregarded on trial of the cause.
Whether the pleas and affidavit for continuance of the appellants should have been excluded from the jury, when offered in evidence by Kelly against the appellants, we need not decide, for they did not increase the verdict, and without them, the note itself was ample evidence of the indebtedness ol the appellants to the School fund ; and there was other evidence in the case whence the jury might suppose that Kelly was the successor of May, and as Common School Commissioner of Union county, entitled to the possession and management of the School fund.
Our laws frequently visit defaulting officers and debtors with penalties, in the shape of a higher interest than was contracted for, and more than the law implies for the detention of money without a contract. As officers that sell property under execution, and do not pay over the money, are subject to pay the amount of the sale, lawful interest thereon, and damages at ten per cent, a month, Gould's Dig., chap. 68, see. 76 ; Borden vs. The State, 4 Eng. 256. Officers required to settle with courts, and pay the amounts due to the collector, and who fail to pay, forfeit five per cent, a month. Gould's Digest, chapter, 148, section 79. And by section 99 of the same chapter, the default of a collector produces a forfeiture of commissions, the payment of twenty per cent, on the amount and interest on the amount withheld at five per cent, a month. So in other cases, as was considered in Goree vs. The State and Lee vs. The State, decided at the present term. And with regard to Bank debtors, it' was provided that notwithstanding full legal interest was payable, if payment was made without suit or protest, that after suit or protest, ten per cent, per annum interest was recoverable. Sec. 3 to act supplemental to act incorporating the Bank of the State of Arkansas, approved 3d March, 1838. And the Real Estate Bank, as well as its debtors, was made subject to a penalty of this sort for not paying its notes, or funds received on deposit. Real Estate Bank, charter, sec. 38 ; Ringo vs. Biscoe, 13 Ark. 585.
The provision that debtors to the School fund for lands bought or for money borrowed, are to pay interest attenper cent, per an-num on the principal and interest reserved in the note, is not subject to any legal objection. If debtors do not wish to incur the penalty of the 66th section,they can pay the principal and interest reserved by contract under the 65th section. Gould’s Dig. chap. 154. The law was in force when the note in suit was made.
Ware, with Drennen,had pleaded one plea of -no consideration, and there was no propriety in his encumbering the record with anolher plea of the same nature. The note was itself evidence of consideration, which the plea of no consideration did not rebut. Richardson vs. Comstock, 21 Ark. 76.
Other objections to the judgment are urged, but none that ought to affect it. The defense below, and appeal here, present no meritorious grounds to relieve the appellants from the payment of their note.
Let the judgment be affirmed. | [
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Mr. Justice Compton
delivered the opinion of the Court.
This was an action of debt brought by Mary- S. Anthony, against the securities in an injunction bond, to recover damages assessed to her on the dissolution of the injunction.
On demurrer to the declaration, two questions were raised : 1st, Whether after the dissolution of the injunction and before the final determination of the suit in chancery, an action on the bond would lie; and 2d, whether the obligee should have sued out an execution on the decree dissolving the injunction before resorting to her remedy on the bond. The condition of the bond is an answer to both these propositions ; that states— after reciting that Philip L. Anthony was about to sue out of the Prairie Circuit Court in Chancery a writ of injunction to restrain Mary S. Anthony and others from removing certain negro slaves beyond the jurisdiction of the court — that “ if the said Philip L. Anthony shall abide the decision that may be made in the matter of said injunction, and pay all sums of money and costs that may be adjudged against him if said injunction shall be dissolved in whole, or in part, then the above obligation to be void, otherwise to remain in force ; ” and there is nothing in the statute {Gould’s Dig. Ch. 88,) regulating the issuance of writs of injunction which requires that the suit in chancery shall be finally determined before an action, on the bond can be maintained. On the contrary, upon a sound construction of the statute, when the injunction was dissolved, Mrs. Anthony’s right of action on the bond to recover the damages decreed to her, was complete Nor was she compelled to pursue her remedy on the decree before resorting to that on the bond, for the reason, that neither the.bond nor the statute requires her to do so.
The court did not err, therefore, in overruling the demurrer to the declaration, and the judgment must be affirmed with costs. | [
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Mr. Justice Faiechild
delivered the opinion of the Court.
We do not think that the State Bank vs. Noland, 13 Ark. 299, is any authority against the petition offered by the appellants in the court below. For in that case, the petition was made in a court of law, and not at the same term in which the property sold was conveyed, but many terms thereafter, when other persons than the purchaser at the execution sale, had become interested in the property which the petition claimed — while here, the petition was presented at the same term of the court, at which the commissioner, who made the sale, reported it to the court of chancery, that is readier to hear, and to act upon irregularities connected with sales made under its authority, than courts of law are to quash, or to interfere with sales made under execution.
We see no objection to the court in this case entertaining the petition, if the petitioners had shown such an interest in the subject matter of the suit as to entitle them to be heard against the confirmation of the sale. What that interest should be we need not decide, nor whether it would be necessary for the petitioners to have been parties to the suit, before they could be listened to as interveners in the case. But we are clearly of the opinion that the petition does not disclose any right or interest which the petitioners have in the property, of the sacrifice and fraudulent sale of which they complain.
That the lots sold were mortgaged by Norton, that he was the guardian of the petitioners, that he had mortgaged the lots to his securities in the guardianship, that some of the securities were insolvent, cannot afford any reason for allowing the petitioners to have the sale set aside. That could only be done upon the application of persons interested in the proceeds of the sale, or of junior incumbrancers, who could show the court that the sale ought to be set aside, and that another sale would result to their advantage, without prejudice to prior rights, or of some one who wished to buy the property, and was prevented from so doing by the illegal and fraudulent management of the sale, or fraud of the purchaser, and who would before the sale, advance upon the price at which the property, was sold. But it is not.;expi.ained, nor can we anticipate, how a re-sale of the property could'he beneficial to the petitioners. For they would not be entitled to:tthe proceeds that should exceed the payment of the mortgage*, owned by Carnall: and whether they would ínevitably be pvaíd over to Norton, or could be retained in court for indemnity of the securities of the guardian, we do not perceive that the rights of the petitioners could be secured, further than the additional means of indemnity conjoined with the prudence and probity of the securities would better their condition. The interests of the petitioners are too remote to permit them to interfere w'ith the disposition of the lots upon such a summary proceeding as their petition exhibits.
We have examined the cases which the brief of the appellants cites, but we do not find that any conclusion different from our own is deducible from them. ■ If the petitioners could aver that the securities are all insolvent, that they have a fixed demand against them as securities, adjudged by the proper authority, after the liability and default of their guardian are legally apparent, that Carnall ought not to have the property, if more than an indemnity for his mortgage debt, these alome, or with other circumstances, would be better grounds for complaining in a bill, and by regular course of proceeding against the sale, than by petition or remonstrance against a sale made in a case, in which they were not parties. But upon this we wish to make no suggestion except to volunteer an opinion that the petitioners are without remedy by bill.
It is much to be regreted if the petitioners can have no remedy against such misfortunes as they allege in their petition; but even for infants and orphans, and against squandering guardians and securities we cannot afford relief, but out of property upon which an equitable claim can be fastened, and in the modes prescribed by'law.
We cannot disturb the order of the court below refusing to grant the prayer of the petition. | [
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'. Chi.: C MirtMo M r: ,;r ;
delivered the opinion of the Oourt.
hi' -ms rn actLn of d -bt in die name of the Cíate, for the " r -1 f.i-brea ceu Ay, >; no an interna.] briproYeroont coini'nis-ebnv bond. The ecfMn was brought nyajiast íilicajah B. ib. CMy, the prlneip ■ S in ;Uo bend, and Jesso VI. Gtokcs rod * . .ri'.'i y’;lvy, two of If ¡ ¡'Ciadas. Mho bond bears date f/th of C> i 1 .-r, iff -od ’ /- Mhioned as prcn-cribad by the statute, f d'g. Í 'll. 7, M vc. S:. The ele,fiar?.1 tier, -'db-yes > - ■';•• 1 special bro.n h-v of íbe bond, b:o came in substraen, and 'bf ry br.í Utile b f •!■ i.
If to substance of die breaches is, that llie tor;r» of oíleo of b oí 'ey,as internal i:.t prose neat coirnms.donor of Jackson county, d on the Ifni* bnyust, MMG, vlion ifonry /I. Miller, who Í ; -I boon elected as Mr. ¡ ..¡c ce war in the chine, riuiliilcd as sndi. h >i.-, [■ on that (bey v,f; ¡y vra.. iadebt-'d to the f minty for niumoya vodi bod crane to hr; hands as each coiiinii.v.ioac;.' in the san», cf Mb'7 79. That MM-wardy on the SMb January, 1077, a *ya.3 had by the county court of mid county with '......Coy, v, Uh respect to said laoupya, and the sum aforesaid was focad duo from Iñm ¡o fbe, eoumty; and lie was ordered by the or-'r-l to nay the reine, over to Miller, las successor' in office,bet (huí; ho I;ad wholly frlird and r.egleclcd, Ibouyh a flea raqnesiod so to do, to pay the ramo or any part thereof, to Lullc:.'or to the c-nuidy, etc.
Thé defendant Stokes made default. Silvey interposed a demurrer to the declaration, which was overruled, and he made no further defence.
The causes of demurrer assigned were, 1st. That the declaration was, in form, in detinue, which could not be maintained on a bond: 2d. That there was no breach alleging the nonpayment of the money demanded, in the declaration, to the State.
The first cause assigned is not true in fact; the declaration is in debt, and not detinue. There is nothing in the second cause-The special breaches allege the non-payment of the amount found due from McCoy, on settlement, to his successor in office, or to the county; and the general breach avers the non-payment of the penalty of the bond sued on to the State.
The defendant McCoy interposed seven pleas, in substance as follows:
1. That he has not, and does not detain from the plaintiff said sum of $11,000 (the penalty of the bond) demanded, etc.
2. That he, on the 1st day of January, 1855, fully paid to the State the said sum of $11,000 in the bond mentioned with all interest due thereon.
3. That the said county court did not, on the 26th day of January, 1857, or thereafter, make and enter an order requiring said defendant to pay over to his said successor in office the sum of $5,647 79, as in the first and'second breaches alleged — ■ concluding to the country.
4. That he was not, on the 15th of August, 1856, indebted, as such commissioner, to the said county, for moneys which came to his hands as such, in the said sum of $5,647 79, or any part thereof, as alleged in the second breach.
5. That on the 26th of January, 1857, a settlement was not had by the said county court, of the accounts of the said defendant as such commissioner, or with the defendant of all sums of money which had come to his hands, as alleged in the first and second breaches — concluding to the country.
6. That there is no record of any such settlement, by the said county court, with said defendant, as alleged, etc.
7. That the said settlement alleged to have been had, by the county court, with said defendant, on the 26th January, 1857, was not made with him, nor was it made on a copy from the books of said defendant kept by him as such commissioner; nor did the said county court,, in such alleged settlement, audit any such account furnished by defendant; nor had defendant any notice of, or participation in such alleged settlement, in any way whatever; wherefore defendant avers that such alleged settlement is null and void for want of jurisdiction in said court) and not binding upon him, etc.
The plaintiff demurred to the third, fifth and seventh pleas, and the court sustained the demurrer.
The counsel forM’Coy, here,have not insisted in their argument that the court erred in sustaining the demurrer to these pleas.
The plaintiff took issue to the 6th plea, which was submitted to the court, and on inspection of the record, the court found the issue for the plaintiff.
On the trial of this issue the plaintiff read in evidence, from the records of the county court, entries showing that on the 26th of January, 1857, McCoy, as late internal improvement commissioner, appeared before the court, and filed his account current as such; a statement of his debits and credits, and of the balance of f5,647 79, due from him to the county. Also an order of the court directing Miller, his successor, to call on him to pay over all moneys etc. in his hands, and on his failure to do so, to employ counsel to institute suit against him (see copies of the entries in the case of McCoy Ex parte 21 Ark.)
McCoy objected to the admission of these record entries on the grounds that they were void, etc.
The county court had jurisdiction, and it was its duty to audit the account presented by McCoy for settlement, and if found correct to approve it, and if not, to cause it to be corrected. See Gould’s Dig. Ch. 101, Art. 3, sec. 48. And it was proper for the court to order the moneys, etc., in his hands to be paid over to his successor in office, and that suit be brought against him on his failure, do,, Ib. szc. bb. Cuoh matters belong app; o-, priaícly to Lhe jurisdiction oí the county court.
Tho plaintiff 1 alio in evidence, asprut of ib o the account cüvs’í’uí Ciad by ¿Icüoy jo/ r.oiílonioní, in iba u.im.y court, anti to v, Mcu bis ñamo K.u signed, without proving No gencineneoe of hia signature.
It iras the province of the county court, when iho account vas presented for settlement, io ascertain whether it war presented by McCoy, or mads out by or for him, or v, ho tin r h¡;¡ signature thereto vos genuine or not. The record, slated that he appeared, and hied hie account current, and the account wan made part of the records oí ike cor: l. and'the fact of Lin any • arr-unce, or the íuVihouíicify oí iho account, we re not props? subjects of enquiry in iho ciividt court, on the trial of iho hrj.‘ to the plea of nul U. I record, or on the trial of t3:e oilier is.’lieu mads up in the cauro.
Issues were also taken to the let, bd and 4th pican, tiro ca, ie-rran submitted io a. jury, and ike plainii<Ts damages asseaued ct £Ghí-,I 5Ci.
On the tried, the, plaintiff read in evidence, against the objection of the do fend an to ills record of the seUlemenc oí LliCoy with the county court, the order directing the fluids, etc., in bin hands to be paid over to bin successor, etc., etc.
the Iiave above decided the questions made in relation to iho admissibility oí the record of the seUkuaent, etc., etc., at iho trial before the jury, in determining the points reserved on the trial before the court, 0.1 the issues to the plea of r.al tie! record — - the (lili plea.
The defendants appealed from the judgment rendered upon the verdict, and they insist, in addition to the points above decided, that the jury was not properly sv. ora.
Tiler judgment was rendered against Otokcs on default, and against £5¡Ivy for want of further defense upon Lis demurrer to the declaration being overruled, rad after the issues were made up between the plaintiff and ¿IcCoy, the. record states that they announcing themselves ready for trial, “ came a jury, to wit, cíe., who were duly cmpanneled and sworn. to well and indy try tlie truth oí the /readies, find rave.;;; the pl'daliTs d. mages, and a true veril kit give according' in the evi.L-'eeo.”
‘r And thereupon [coalin''- a i.’ic r. cord] the, issues of fact ¡«ride ry bctv.’i’en raid plainiiT ;;nd defend.mi, LloCoy, were submit-ied to the jury, who after hearing the evidence, etc., etc., returned into court the fdlov. dig verdict: “ V7e, the jury, do find
icr iiic plnmfiu, and that tlio breaches in the declare;!¡cu ore tree, and that the plaini'iif has sustained damages in the sum oí “ etc., etc.
In íJU.'tc 'ime of Pelcrsnn vs. Gibson, et oh Si Ark. id., we held liv'd' the correct practice (in suits upon penal bon !•) warn ‘,: . i i!’c jmy to enquire into the breaches, and assess the danmg.v as to the parly in default, as well as to try the issnoa rud a veso the damages as to the defendants who pie;'.led to the action.
In JGcL'rii vs. Tmj/or,'! hhrj.Sñl, she court held that: wear-in j ft:.: jury to try the, Irenes joined was neee.vaniy ecu!-, sleut to swearing them to enquire into the truth of the breather; and it would set'in that the rule Ought to work both way!--, and that í wearing them to enquire into, or try, the truth of the 1,readier, skeidd be regarded as equivalent to ew<-aring them to try the Arnes, etc.
It in insisted, however, for the appellants, that tyro of the picas of MoOo}', upon which issues were made up, were entirely outside of the matter of the breaches alleged. The picas rder-cc\I to are the first and second. The fifnt alleged that be did net eLloin Horn the plain Lift’ the amount of the penal!/ of the ¡mnd : The second, that be had paid it to the Ctate.
These jileas were certainly not outside of the general nreach of non-payment of the penalty of the bond; and they were not responsive to any other breach alleged.
If they were outside of all of the breadles, as submitted by the counsel for the appellants, they were outside of the case and the issues on them immaterial.
It is also insisted that the declaration is defective in not averring a special demand upon McCoy, by his successor in office, for the funds in his hands before suit.
It was not necessary to allege a special demand.
When the county court settled the account of McCoy as commissioner, ascertained the balance due from him to the count.y> and ordered it to be paid over to his successor, his right to hold the money as public bailee was terminated, it was his duty to pay it over to his successor at once, and no demand was necessary before suit. See Byrd et al. vs. State use etc., 15 Ark. 175.
Nor is the objection that the suit should have been brought for the use of McCoy’s successor in office well taken. The statute (Gould’s Dig. Ch. 101. Art. 3, sec. 21,) required the bond of McCoy, as commissioner, to be executed to the State for the use of Jackson county, and the bond sued on was so executed, and it was proper to bring .the suit in the name of the State for the county. The money sued for belonged to the county, as a corporation, and the successor of McCoy was merely entitled to its custody and management as an officer or agent of the county. The case of The State vs. Wright, 8 Blackf. 65, cited by the counsel for appellant, was founded on a statute of Indiana, which required the suit to be brought on the relation of the successor in office.
The judgment must be affirmed. | [
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Mr. Justice Compton
delivered the opinion of the court.
The appellant, Dixon, was convicted and fined in the court below, for gaming; and he brings the case before this court on exception taken to the decision of the Circuit Court overruling his motion for a new trial.
The only error assigned is, that the verdict of the jury is without evidence to support it. But one witness was examined, and he testified, that within twelve months, to the best of his recollection, before the finding of the indictment, he saw Dixon exhibiting Chuck-a-luck in the back room of a grocery in Jackson county; that Dixon was dealing, and a number of persons betting; and that Chuck-a-luck was a game adapted, designed and devised to play a game of chance, at which money might be won and lost. It would be difficult to imagine how the jury could have found other than a verdict of guilty on this evidence. There is surety no total want of evidence to support the verdict, and unless there was, we could not disturb the finding.
Let the judgment be in all things affirmed wish costs. | [
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Mr. Justice Fairchfld
delivered the opinion of the Court.
“ John 0. Morrill plaintiff and appellant, commenced an action of covenant against Samuel Kennedy, defendant and appellee, on the following indenture, in the Prairie circuit court, viz:
“This indenture of apprenticeship made and entered into at the town of Des Arc, on this 22d day. of September, 1856, by and between Samuel Kennedy of the first part, and John C. Morrill of the second part, both of the county of Prairie and State of Arkansas; Witnessefh : That the said Samuel Kennedy, for. the consideration hereinafter mentioned, has this day, and does by these presents, bind as an apprentice unto the said John C. Morrill, his son Samuel J. Kennedy, for and during the term of three years from this date; said term ending the 22d day of September, 1859, at which time the said Samuel J. Kennedy will have arrived at the full age of twenty-one years; and the said Samuel Kennedy covenants and agrees with the said John G. Morrill that he shall have peaceable and lawful control and managment of the said Samuel J. Kennedy as an apprentice, for and during the said term of three years; and the said John G. Morrill, on his part, covenants and agrees to and with the said Samuel Kennedy, that he will teach the said Samuel J. Kennedy the art of printing in all its branches, so far as the same can be taught during the said term of three years; that he will furnish him with a sufficiency of good wearing apparel, suitable for a young man of his age; pay all his medical bills and furnish him with all other things, boarding included, necessary for his comfort and health for and during the said term of apprenticeship, and that he will treat the said Samuel J. Kennedy humanely, and in all respects act towards him as a good apprentice master should, and is bound by law to act toward his apprentice.
In testimony whereof the said parties hereunto set their hands, and affix their seals, this day and date above written.
SAM. KENNEDY, [seal-]
JOHN C. MORRILL, [seal.]
It was acknowledged before a justice of the peace the same day, and was recorded in the recorder’s office of Prairie county, the 15th September, 1857.
The instrument was set out in the declaration according to its legal effect, and proferí made; and the declaration averred that in vii'tue of the indenture, Morrill received the said apprentice, who remained in his service until the first of October, 1857, when he unlawfully absented himself from the service of the plaintiff contrary to said covenant, and has remained absent, although the plaintiff had truly kept the covenant in all things on his part, and whereby the said covenant had been broken to the plaintiff’s damage f900.
The defendant demurred to the declaration on the following grounds:
1. No valid cause of action is disclosed by the declaration.
2. The deed of indenture upon which the action was brought, has not been approved by the probate court of Prairie county, as required by the statute in such case made and provided.
3. The indenture does not contain a covenant requiring the minor to be sent to school, at least one fourth of his time, as required by the statute above referred to.
4. The declaration does not show that the minor’s failure to serve the plaintiff faithfully, or his absenting himself was caused by the interference of the-defendant, in any manner whatever, or has ever been sanctioned by the defendant.
The court thinking that the second ground of demurrer was good, and that no cause of action existed, sustained the demurrer, and the plaintiff electing to stand on his declaration, final judgment was pronounced, dismissing the suit with costs, and Morrill appealed.”
The foregoing is taken from the brief of the appellant’s counsel.
He contends that l-he second cause of demurrer on which the demurrer was sustained by the circuit court, was not well taken because only such indentures of apprenticeship need to be approved by the probate court, as are made by parents who have not che means of maintaining their children, or wilfully neglect to support and educate them. But to this we cannot agree. The children of such parents are to be bound out by the probate court, and the indenture is to be made on the part of the child by the probate judge. Gould's Dig. Ch. 11, sec. 4. The next section provides that the father of a minor, or the mother, when the father is dead and no guardian has been appointed, may bind their children, as guardians are authorized to do by the second section of the act, for the purpose of learning some useful art, trade or employment.
The 6th section enacts that all covenants made by parents binding their children, shall require the children to be sent to school at least one fourth of their time, after they are seven years of age.
And the 7th section is that “ such indentures by parents shall not be obligatory until the same shall be approved by the pro bate court, and recorded in the office of the recorder of the county.”
The parents that are referred to in this section are not those mentioned in the 4th section, but those referred to in the 5th section.
We do not doubt the power of the General Assembly to prescribe, as the regulation essential to the validity of indentures of apprenticeship, that they be approved by the probate court. The State has an interest in its children; that they may not be' removed from the care and influence of parental affection, except upon conditions that shall ensure their suitable education, and shall commit them to persons proper to take thé places of parents, and to teach “ some usfful art, trade or employment.’
The regulation then being prescribed by proper authority should be observed by parents and masters, and must be en- ' forced by the courts. We think the court below took the right view of this subject, but as to the other causes of demurrer, or subjects of argument before us, offer no opinion.
Judgment affirmed. | [
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Mr. Chief-Justice English
delivered-the opinion of the Court. The suit in this case was founded upon a covenant executed by Nichols to the the State for $640, payable in six equal annual instalments, with interest, etc.
The defendant interposed a plea of partial failure of consideration, in substance as follows:
That as to the sum of $240, with interest thereon from the date of the covenant sued on, the plaintiff ought not to maintain the action, etc. Because the defendant says, that on the 20th December, 1844, and for some months prior to-that time, lands had been selected by, and confirmed to the State as part of the 500,000 acres granted to the State, by Congress, for internal improvement purposes, and that the defendant was settled upon said lands at that time, and had valuable improvements thereon, and remained in possession thereof thenceforth; and that by virtue of such settlement and improvemement he was entitled to a pre-emption right to purchase said lands of the State under the 9th section of the act of 20th December, 1844, regulating the price and sale of the internal improvement lands, and establishing a land office therefor. That accordingly, on the 4th of August, 1845, the defendant- (by Hudspeth his agent) applied to Reardon, the land agent of the State, for pei*mission to enter said lands at $1 25 per acre, under the provisions of said act, and offered to make proof of his settlement and improvements thereon, and of his pre-emption right thereto, and to execute his bond for the purchase money, payable in five equal annual instalments, etc. But that the land agent refused to receive proof of his settlement and improvements; or to permit him to enter said lands under the provisions of said act; but on the contrary, would only permit him to purchase said lands at $2 00 per acre, secured by his bond payable in ten equal annual instalments, with interest from date, such bond to be antedated as of the 28th of November, 1844, and so the defendant was by the illegal requirement of the land agent; obliged, in order to secure his rights, and preserve his improvements, to enter the lands of the State, and did execute therefor the covenant declared on; and he avers that the sum of $240, the difference between the sum specified in the covenant, and the price of the lands at $1 25 per acre, was mere extortion and without consideration in law or fact.
The plaintiff took judgment for so much of the demand sued for as was not answered by the plea; and interposed to the plea? a general and a special replication. A demurrer was sustained to the special replication, an issue to the general replication was submitted to the court, sitting as a jury, and finding and judgment for defendant. No motion for a new trial was made^ and no exception to the opinion'of the court upon any matter of law, except to the admission of some evidence offered by the defendant in support of the allegations of the plea, which was admissible if the plea was good.
The correctness of the judgment of the court upon the demurrer to the special replication, is the only question legitimately presented for our determination.
The substance of the replication is as follows:
Precludi non, etc., because the plaintiff says that the defendant, on the 30th of September, 1844, made application to the governor, to locate and purchase from the State the lands, referred to in the plea, containing 320 acres, as part of the 500,000 acres donated to the State for internal improvement purposes by act of Congress, etc.; which application was made under the act of the General Assembly of 31st December, 1842, entitled “an act for the benefit of such persons as have settled on, or made improvements on the public lands in the State,” etc.: And the defendant did then and there purchase the said lands, and agree to pay the State for the lands so located and purchased the price of $2 00 per acre, then fixed by law. That said application was by the governor, on the 30th September, 1844, received and allowed, and entered upon the proper books containing a list of the lands so located and sold by the State; and nothing remained to be done by the defendant to secure a certificate of purchase thereof, but to execute his bond therefor to the State payable in ten annual instalments, with interest, etc., as required by the act under which the application was made. And the plaintiff avers that the defendant, on' the 20th March, 1845, executed to Hudspeth a power of attorney whereby he authorized and empowered him to execute to the State, in the name of the defendant, any note or notes that might be necessary to effect and complete the aforesaid contract for the purchase of said lands, so made by the defendant on the 30th September, 1844, and to obtain a certificate of purchase therefor; and the said Hudspeth, in the exercise of the power and authority in him vested by said power of attorney, did execute the covenant sued on, in the name of the defendant,' bearing date, etc., in pursuance of the application of the said defendant to purchase said lands as aforesaid, etc.
It is insisted for the plaintiff in error that the plea was bad, and that on the demurrer to the replication the judgment should have been against the plea.
Passing over mere formal objections to the plea, [we are inclined to think it good in substance. If the defendant was entitled to enter the lands under the act of 20th December, 1844, at $1 25 — if that was the price fixed upon the lands by law, and at which the land agent was legally bound to sell them to the defendant, and in disregard of the statute he required him to execute his covenant for the lands at $2 00 per acre, it seems to us that the excess would be wholly without consideration, and that the State could not enforce the payment thereof. Conceding, therefore, the sufficiency of the plea, was the replication a good answer thereto ?
By act of Congress of 4th September, 1844, 500,000 acres of the public lands within the limits of Arkansas was granted to the State for purposes of internal improvement, to be selected in such manner as the legislature might direct. By act of 19th March, 1842, the act making the grant was so modified as to authorize the governor of the State to cause the lands to be selected without the necessity of convening the legislature. See Gould's Digest p. 73-4. Under the authority of this act, a portion of the lands was selected by locating agents, appointed by the governor, before the meeting of the legislature in November, 1842.
As a mode of making additional selections, and for the pur. pose of securing titles to persons who had settled upon, or improved, or who might thereafter, within a limited time, settle, or make improvements, upon the public land subject to the grant, the legislature passed the act of 31st December, 1842, referred to in the replication. See Acts of 1842, p. 42.
By the provisions of this act, the Governor was authorized, upon the written request and application of any person who had settled on, or made improvements on any .of the public lands, or who might thereafter, before the expiration of the act, settle on, or improve any such lands, to locate the lands including the settlement or improvement of the applicant, not exceeding 320 acres, as part of the -500,000 acre grant: Provided, the person at whose 'request, and for whose benefit the location might be made, would agree to pay the State $2 ÓQ per acre for the lands so located, and would also thereupon execute his obligation to the State for the amount of such location, as ascertained by the number of acres located, payable in ten annual instalments, etc. It was also made the duty of the Governor, upon the person for whose benefit the location was made executing such obligation, to grant to him a certificate of purchase, and upon full payment of the obligation, to execute a deed for the lands.
By the last section, it was declared that the act shoúld continue in force till the 1st of January, 1845.
On the 20th December, 1844, after the defendant had made Ms witten application to the Governor to have the lands in question located for him, and to purchase the same under the provisions of.the act of the 31st December, 1842, and after the application had been allowed and entered upon the proper books, etc., as alleged by the replication, and nothing remained tobe done by the defendant.but to execute his bond for the purchase money, the legislature passed the act referred to in the plea, to regulate the sale of internal improvement lands, and to establish a land office for that purpose. See Acts of 1844, p. 29. By the provisions of this act, the land agent to be elected under the act, was directed to offer at public sale, after forty days notice, all of the internal improvement lands that had been located or taken up, and to sell the same to the highest bidder for not less than §1 25 per acre, and such of the'lands as were not sold for that sum, were to remain subject to private entry at that price.
In order that the land agent might know what land had been located for the State, under the grant, and which of them had not been sold, the Governor was required to turn over to him the plats that had been prepared, etc.
By the 9th section of the act, persons who were settled, or had valuable improvements on any of the unsold lands, were given a pre-emption right to enter the same at $1 25 per acre, on five years credit, provided they made proof of their settlement, etc., previous to the time the land agent offered the lands at public sale, etc.
It was under this section of the act that the defendant, as alleged by his plea, and impliedly confessed by the replication, applied, through his agent, to the land agent, on the 4th August, 1845, to prove his settlement, etc., and to enter the lands in question at 'fl 25; and the land agent refused his application, and his agent thereupon executed the covenant sued on, in pursuance, as alleged by the replication, of the defendant’s original application and agreement to purchase the lands, under the provisions of the act of 31st December, 1842.
It was assigned as a cause of demurrer to the replication, that it sets out a contract which the Governor of the' State had no authority to < nter into with the defendant — meaning, as shown by the argument of the counsel for the defendant here, that after the 1st of January, 1845, when the act of 31st December, 1842, ceased to be in force, the Governor had no power to take the covenant of the defendant, and grant him a certificate of purchase, under the provisions of the expired act.
Neither the plea nor the replication was intended to question the defendant’s title to the lands, or to put in issue the validity of the entire covenant sued on. On the contrary, the plea seeks, by setting out part of the facts, to show'that there was no consideration for a portion of the sum which the defendant bound himself by the covenant to pay the State; and the replication attempts to show, by alleging additional facts in relation to the contract, that there was no such partial want of consideration.
During the time that the act of 31'st December, 1842, was in force, the defendant being a settler, and having improvements on public lands, made a written request of the Governor to locate 320 acres of land embracing his improvements, for the State, as part of the internal improvement grant, and by such written •request offered to purchase the same of the State, at $2 00 per acre, on ten years credit, and to execute his bond therefor. The request was granted by the Governor, the lands accordingly located, and entered upon the plats as selected and sold, etc. All this was done within the life of the act, and it is by no means clear, that the State could not have compelled the defendant, had he refused to do so, to execute his covenant for the purchase money, and complete the 'contract of purchase. The lands were selected by the State, on his written application and agreement to purchase them at $2 00; and they may not have been such lands as the State, through her locating agents, would have selected, as part of the grant, but for his application and agreement to take them.
The defendant neglected to execute his bond for the purchase money, until after the expiration of the act, he then claimed the privilege of entering them under the new act; at a reduced price, but failing in this, he executed the covenant sued on, in pursuance of his original application and agreement to purchase the lands under the act of 31st December, 1842. He retained possession of the lands, as alleged by his plea, took the full benefit of the ten years credit, and then when sued upon the covenant, undertook to avoid the payment of part of the purchase money by the plea in question.
The act of 31st December, 1842, did not cease to exist for all purposes on the 1st January, 1845, because under its provisions lands were to be sold on ten years credit, and the Governor was authorized to execute deeds to the purchasers on full payment of the purchase money, and must necessarily have done so after the expiration of the time limited for the act to continue in force.
The object of the legislature in limiting the duration of the act, appears to have been to fix a period within which persons were to settle upon, or improve the public lands, in order to have them selected as part of the internal improvement grant. He executed his covenant after the expiration of the act, in pursuance of a contract made while it was in force, and in affirmance of the contract, dating it as of a day when the act was in force, and when he should have executed it under his application. We do not think that the facts alleged in the replication show the covenant to be void.
It is assigned as a further cause of demurrer, that the replication neither denies, nor confesses and avoids the allegations of the plea.
It is true of the replication, as of the plea, that it is not drawn with technical formality; but, in effect, it substantially confesses the facts alleged in the plea to be true, but avoids them by the allegation of additional facts.
The judgment is reversed, and the cause remanded with instructions to the court to overrule the demurrer to the replication. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was an indictment for gaming, containing two counts, the first charging:
“ That John R. Holland, late of etc., on etc-, atete., then and there being, did then and there unlawfully exhibit a certain unlawful gambling device commonly called a faro bank, contrary to the form of the statute.
The second count charged, “that defendant did then and there unlawfully bet twenty-five cents, in money, on a certain unlawful game played with cards, commonly called faro, which was then and there played, contrary to the form of the statute,” etc., etc.
Holland moved to quash the indictment, because the first count did not charge that the faro bank was exhibited for the purpose of money being won or lost thereon; and because the second count was for a separate and distinct offence, requiring a separate and distinct judgment, different from the first; and because the offence was not sufficiently described.
The court quashed the indictment and the State brought error.
1. It was not necessary for the first count to charge, in terms, the purpose for which the faro bank was exhibited. The language employed in the count sufficiently indicates its exhibition for the unlawful purpose intended to be prohibited and punished by the statute. No specific objection to the form of the second count has been made. Both counts substantially follow precedents which have been repeatedly sustained by this court. See Brown vs. State, 5 Eng. 607; Warren vs. State, 18 Ark. 195; State vs. Grider, Ib. 297; Drew vs. Slate, 5 Eng. 82; Johnson vs. State, 13 Ark. 684.
2. The counts are for different and distinct offences, the first for exhibiting a faro bank, and founded on the first sectibn of the gaming act (Gould’s Dig. p. 369,) and the second count for betting at faro, and founded on the third section of the act. For an offence under the first section the party may be fined in any sum not less than f 100, and may be imprisoned any length of time not less than thirty days nor more than one year. For an offence under the third section the accused may be fined in any sum not exceeding $ 100, nor less than $50. But the offences belong to the same class; they are both misdemeanors; and may be joined in the same indictment. State vs. Cryer, 20 Ark. 64; Orr vs. Stale, Ib. 543.
In the case of misdemeanors, says Mr. Chitty, the joinder of several offences will not, in general, vitiate in any stage of the prosecution. For in offences inferior to felony, the practice of quashing the indictment or calling upon the prosecutor to elect on which charge he will proceed does not exist. 1 Chitty Cr. L. 254.
Mr. Aechbold, says: In cases of felony, indeed, the judge in his discretion may require the counsel for the prosecution to select one of the felonies, and confine himself to that. This is what is technically termed putting the prosecutor to his election. But this practice has never been extended to misdemeanors. 1 Arch. Cr. PI. 95.
In the case now before us, should the defendant be convicted upon both counts, there will be no difficulty in rendering the proper judgment. The jury will state in their verdict* the amount of fine assessed by them upon the first count, and the period of imprisonment, if any, and also the amount of fine assessed by them upon the second count, and the court will render judgment for both fines, and for the imprisonment.
The judgment of the court below must be reversed, and the cause remanded, with instructions to the court to overrule the motion to quash, and permit'the defendant to plead to the indictment. | [
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Mr. Justice Fairchild
delivered the opinion of the Court.
Scott executed the following writing:
“ State of Arkansas, County of Crawford.
I, James A. Scott, have this day assigned to Paschal & Ogden a judgment by me recovered in the Probate Court of Fannin county, Texas, against the estate of James A. Caldwell and Silas 0. Colville, deceased, as will more fully appear by the record of said Probate Court, for or near the sum of twenty-five hundred dollars, for the benefit of certain of my creditors, to-wit: Thomas and Philip Baltzell of Baltimore, for their note against me, dated May 11th, 1840, for the sum of fifteen hundred and two 62-100 dollars — Biscoe and McCutchen for the amount of their account rendered January 5th, 1841, against me, for five hundred and ten 65-100 dollars. To Fant & Sutton of Baltimore for three notes dated May 11th, 1840, for nine hundred and fifty nine 96-100 dollars, and another for a note dated February, 15th 1839, for five hundred and thirty-two dollars; and it is also understood, that in this transfer, that Libby, Leutze & Flack, another of my creditors, at their election, have the right to their proportion as one of my creditors of said judgment; and the said sum of twenty-five hundred dollars by said judgment assigned shall be divided fro rata with my creditors above mentioned, and should Libby, Leutze & Flack refuse to accept the terms of this assignment, then I have the right to withdraw the proportional amount for my own benefit and use.
“And I further hereby bind myself that should said claim above assigned not net or realize to the said assignees the above sum of twenty-five hundred dollars, then I hereby obligate myself to pay any and all deficits that shall or may occur to make the said judgment or claim net to my above mentioned creditors the full sum of twenty-five hundred dollars. In testimony whereof, I have hereunto set my hand and seal, this 12th day of June, A. D., 1846.
J. A. SCOTT, [Seal.]
Witness:
J. W. Washburne,
Ed. A. Scott.”
The name of Briscoe in the copy has been corrected to Biscoe according to the amendment asked and allowed.
Upon this writing Paschal & Ogden brought an action of covenant, alleging as a breach, that the judgment assigned did not yield anything, that nothing could be realized therefrom; therefore the whole sum of twenty-five hundred dollars was demanded of Scott. He demurred to the declaration, the demurrer was sustained and the plaintiffs appealed.
The action is not brought on the judgment that was assigned, but on the covenant to make the judgment realize twenty-five hundred dollars, and that covenant was made to the plaintiffs.
The legal title to the damages arising from its breach, is in Paschal & Ogden; how they will dispose of those damages is a matter between them and Scott’s creditors, with which he has nothing to do. Hence the first and second causes of demurrer assigning that the transfer of the judgment passed only an equitable interest, and that the beneficiaries, creditors of Scott, had not accepted the deed, do not-meet the cause of action.
The objection that the the interest of Libby, Leutze & Flack was a conditional one, and that it did not appear by-the declaration, whether any, or wdiat sum of the assigned judgment was accepted by them or reverted to Scott, is not good; as the declaration shows that the judgment was not productive of any amount fpr any of Scott’s creditors. And upon the whole demurrer, we think it ought to have been overruled; and accordingly, we reverse the judgment of the Circuit Court of Pulaski county, and direct it to overrule the demurrer. | [
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Mr. Justice Compton
delivered the opinion of the court.
On the 13th November, 1841, Sarah Walker, then living in North Carolina and being the owner of certain negro slaves, made a vkill, by which, as is insisted for the appellants, she devised said slaves to her daughter Nancy Johnson — then the wife of Earkin Johnson — for life, with remainder to the children of the said Nancy. After the decease of Mrs. Walker, her will was duly admitted to probate in North Carolina, and Lar-kin Johnson who wms appointed executor thereof, qualified as . such, and took possession of the slaves. Sometime in the year 1849, he, with his wife and their children, and most of the slaves, moved to Arkansas. After his arrival in Arkansas, he, on the 2d September, 1854, sold one of the slaves, his wife joining him in the bill of sale. In October 1854, his wife died, and after her death the remaining slaves were sold, most of them, under execution-at the suit of his creditors.
The bill was filed on the 13th March 1857, to recover the slaves, or their value, and their reasonable hire, and to have distribution thereof among the children of Mrs. Johnson. The chancellor being of opinion, on the final hearing, that there was no equity in the bill, dismissed it; and from his decision the complainants have prosecuted their appeal to this court.
For the appellants it is insisted that Mrs. Johnson took but a life estate in the slaves, with remainder over to her children; while for the appellees it is contended that she took the whole estate. This involves a construction of Mrs. Walker’s will, and inasmuch as the unskilfulness of the draughtsman in the use of language has some bearing on the question .presented, we deem it proper to quote not only that part of the will out of which the question arises, but also so much of it as relates to the disposition of the entire estate of the testatrix ; which is as follows :
“ And my will is, first; that after my decease my body shall be decently buried, without extortion or unnecessary expense, and that my funeral and just debts shall be paid by my executor hereinafter named; and as to the residue of my estate and property with which God has blessed me with, and which shall not be required for the payment of my debts, funeral charges, and the expenses of the administrator of my estate, I give and devise unto my grand daughter, Martha Johnson, one bed and furniture, one cow and calf. I give and bequeath to my beloved daughter Nancy Johnson, all the rest and residue of my estate, real and personal or mixed of which I shall be seized of, or possessed of, or to which I shall be entitled to at the time of my decease, during my natural life, and then to be equally divided between the children of the said Nancy Johnson. To have and to hold the same to her, the said Nancy Johnson, her heirs, ex' ecu tors, administrators and assigns to her and her use and be-" hoof forever.”
The word “ my” occurring in the above quotation before the words “ natural life,” was doubtless a mere clerical mistake, and to give effect to the manifest intention of the testatrix as collected from the context, must be read her. 1 Jarman on Wills Chap. XVII; Keith vs. Perry 1 Dessaus. 353 ; Bowers vs. Porter 4 Pick. 198. But the main argument is, that the limitation of the remainder to the children, being immediately followed by the words “To have and to hold the same to her the said Nancy Johnson, her heirs, executors, administrators and assigns forever,” etc., is controledby these latter words, and can have no effect, according to the rule laid down in the cases cited by the counsel for the appellees, that where two parts of a will are to tally irreconcilable, the latter overrules the former. Far from being satisfactory in itself, as shown by some of the cases in which it has been applied, this rule is never to be resorted to, except for the purpose of escaping total inconsistency. The court in Covenhaven vs Shuler 2 Paige 130, remarking upon this rule said : “ It is only applied in those cases where the intention of the testator cannot be discovered, and where the two provisions are so totally inconsistent that it is impossible for them to coincide with each other, or with the general intention of the testator. The great and leading principle in the construction of wills is, that the intention of the testator, if not inconsistent with the rules of law, shall govern; and that intent must be ascertained from the whole will taken together; and no part thereof to which meaning and operation can be given, consistent with the general intention of the testator, shall be rejected. Where the words of one part of a will are capable of a twofold construction, that should b.e adopted which is most consistent with the intention of the testator, as ascertained by other provisions in the will. And where the intention of the testator is incorrectly expressed, the court will effectuate it by supplying the proper words. The strict grammatical sense is not always regarded, but the words of the will may be transposed to make a limitation sensible, or to carry into effect the general intent of the testator.” So in Jesson vs. Wright, 2 Bligh's Rep. 56, Lord Redesdale said : “ It cannot at this day be argued that because the testator uses in one part of his will words having a clear meaning in law, and in another part other words inconsistent with the former, that the first words are to be cancelled or overthrown.” To the same effect are the remarks of Mr. Jarman, in his work on wills, Vol: 1 Marg. pg. 420. He says : “ It is clear, however, that words and passages in a will which are irreconcilable with the general context, may be rejected, whatever may be the local position which they happen to occupy, for the rule which gives effect to the posterior of several inconsistent clauses, must not be so applied as in any degree to clash or interfere with the doctrine which teaches us to look for the intention of the testator in the general tenor of the instrument” — citing Boon vs. Conforth, 2 Ves. sr. 576; Elton vs. Stenlake 12 East 515, Smith vs. Pybus 9 Ves. 556. See also, Lane vs. Vick 3 How. U. S. 472; Morton vs. Barrett 22 Maine 257; Lucas & wife vs. Duffield 6 Grat. 456. And where the intention of the testator clearly appears from the context, the courts, in order to effectuate that intention, have not hesitated to change the language of the testator. Ellis vs. The Proprietors of Essex Merrimack Bridge 2 Pick. 243; Keith vs. Perry, 1 Dessaus. 357; Morton vs Barrett 22 Maine 257; 1 Jarman on Wills, Ch. XVII p. 417. Testing the will in the case before us by ?.n application of these principles, we hold that the children of Mrs. Johnson as remaindermen, are entitled to the slavesin controversy, The total inconsistency contended for is found in one and the same clause — the latter part of the clause seeming to be irreconcilable with the former. We think, however, taking the intention of the testatrix as a guide, that there is no real inconsistency. The language employed in the first part of the clause, limiting the remainder to the children, was clear and explicit, was adapted to the commonest understanding,/and was doubtless well understood by the testatrix. But that employed in the latter part of the clause, immediately following, was, in substance, such as is used in the habendum or formal clause, ordinarily inserted in deeds of conveyance — it was technical lan-» guage, inappropriately and unskilfully used, the legal meaning of which it may be supposed was unknown both to the testatrix and the draughtsman. Inasmuch as, in common parlance5 the word heirs is often inaccurately used to designate children, it might be inferred that the language was employed with the view of completing, but not changing, that which was done by the former part of the clause — though, most likely, it was used as mere matter of form, unintelligible to the testatrix, and to which she attached no definite meaning. To suppose that the testatrix, after giving to the children, in language too plain to admit of construction, an interest in the slaves, meant to deprive them of that interest by the use of the technical phraseo- gy — to her a mere form of words — immediately following, without so much as expressly mentioning or referring to the children, would be most unreasonable. We cannot hold that such was her meaning. On the contrary, consistently with what seems to have been the intention of the testatrix, we reject the latter part of the clause in question as incongruous words, serving only to embarrass the ^lain provision with which they are connected.
As to the argument touching the statute of limitation, it is only necessary to remark, that the bill was filed within less than five years after the death of Mrs. Johnson, and that until she died, the statute did not begin to run — the appellants having no right of action until then.
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Mr. Justice Fairchild
delivered the opinion of the Court.
This suit has been pending since the 22d of March, 1848. On that day, Fleetwood Hanks filed his bill on the chancery side of the Circuit Court of Phillips county against Robert M. Ferebee, the Trustees of the Real Estate Bank, and William Russell, to obtain- partition of certain lands which Hanks alleged he and George W. Ferebee had formerly held in common, and which he insisted were still subject to partition ; himself being entitled in equity to an equal undivided part thereof, the other part belonging to William Russell, who claimed to be the purchaser of the one half interest of George W. Ferebee in the lands at a judicial sale, or to Robert M. Ferebee the heir of George W. Ferebee, who was dead when the bill was filed.
It seems to be unnecessary to take any trouble with the Real Estate Bank branch of the case. For although the lands in question were transferred by Hanks to George W. Ferebee to enable him to pledge them to the Bank for stock subscription, and although Ferebee did mortgage these and other lands to the Bank, upon which was awarded to him the maximum of stock allowed to a subscriber, Ferebee, as between himself and Hanks, was still the owner of but an undivided half of the lands, and also held the same portion of the stock awarded to him in trust for Hanks. And out of three hundred shares of stock, which Ferebee acquired, two hundred and sixty-two of them were by his executors transferred to Perry W. Porter, which transfer seems to have been properly made on the books of the Bank, to have been accepted by it, and the transferred shares were secured by the mortgage, by Porter, of other lands to the bank. The Trustees of the Real Estate Bank do not seem to have defended the suit, nor has any one representing its interest interfered in the litigation. Hence, whatever liability may rest upon the lands to the State, or the bond-holders, upon Ferebee’s mortgage, as covering the thirty-eight untransferred shares of stock, or otherwise, we may follow the example set by the litigants and the court below, in considering the contest, as to the lands mentioned in the original bill, as one not concerning the Real Estate Bank.
Between Hanks and Robert M. Ferebee there was no contention as to the right of the former to an undivided one half of the lands, of which Hanks sought a partition by his bill; nor is any opposition made to the relief Hanks prays for, by Margaret F. Neely, who has succeeded to the rights of Robert M. Ferebee, and who represents the interest of George W. Fere-bee. But Russell objected to the right claimed by the bill, that Hanks, by his deed to Ferebee, divested himself of all title to the lands, so that Russell, as a purchaser of them at an execution sale, acquired the full title against any claim that Hanks should be allowed to make.
Upon the 29th June, 1837, the day after Hanks had conveyed the lands to George W. Ferebee, as above mentioned, the latter executed a writing under seal, in which he recited that the deed had been made to him by Hanks that the lands might be used for their joint benefit in obtaining stock in the Real Estate Bank, and that he was bound to transfer to Hanks one half of the lands and proceeds of the stock subscription. This paper was filed for record the first day of September, 1843. The execution under which Russell bought the lands, was levied upon them on the 12th June, 1843, but the sale wrns not made till the 30th of September, 1844. Russell admits that he had knowledge of the writing executed by Ferebee, recognizing the right of Hanks in the lands, which knowledge was acquired by him between the times of the levy and sale of the lands.
A judgment against Ferebee was a lien only upon his own lands ; when a levy was made of an execution against another person upon the lands of Hanks, it should have been discharged ; and if the title depended upon notice, a purchaser with notice could hot obtain any title. Byers vs. Engles 16 Ark. 543; The State vs. Swigert decided at the present term.
But although the bill charges notice of the interest of Hanks upon Russell, both constructive by the record of the writing, and actual, which latter sort of notice is admitted in the qualified way above stated in the answers of Russell, the question is not one of notice, but of the interest of Hanks, at the time of the levy and of the sale. The process against Ferebee’s executors could not affect the right of Hanks. He may concede that Russell by his purchase acquired the interest of Fe-rebee in the lands, but may successfully deny that his own title shall be affected by proceedings against another person.
In this condition the suit was as between Hanks and Russell, but at the May term, 1353, Russell set up in bar of the claim of Hanks to a partition of the lands, that on the 30th of March, 1841, he obtained a judgment against Hanks in the Circuit Court of the United States for the district of Arkansas, that an execution issued upon that judgment, was levied on the lands described in the bill, on the 29th May, 1841, and thaton the 5th of February, 1849, the lands were sold under the execution to’ Russell, whereby he acquired all the interest of Hanks in the lands, which is evidenced by a Marshal’s deed that was after-wards executed and delivered to him. Russell was apprised of the object of this suit before his attempt to subject the lands to his judgment against Hanks was accomplished by the sale of the 5th of February, 1849. He appeared to the suit, at the May term, 1848 of the court, by filing a demurrer to the bill and at the May term 1851, he filed an answer, in which he made no mention of his succession to the interest of Hanks. At the May term 1853, he first presented his purchase under his execution against Hanks as a defense to the bill.
The law is expressly written, that the right of a plaintiff must be adjudicated upon as it existed at the time of the filing of his bill. Adams Eq. 413; Barfield vs. Kelly 4 Russ. 359. And this court has decided that where a bill disclosed a good cause of action, but which had not accrued when the bill was filed, the bill could not be maintained. Phebe vs. Quillin 21 Ark. 499. And it would seem to be against the policy of a court of chancery to allow a defendant to cut off, or to modify the relief to which the whole case may show the plaintiff to have been entitled upon the condition of the case when the suit was begun, by the use of legal process or remedies after the defendant is brought into a court of equity, there to make his defense. For the object of a chancéry suit is to administer entire justice, by a settlement of the whole controversy between all the persons affected by it, and this it can do only by engrossing the consideration of all the points of prosecution and defense that may be allowed to the respective parties. Hence Russell would have done well to have defended the bill of Flanks upon its deficiencies, and his own rights, as they were when the bill and his answer were filed. He could not of course have been deprived of any benefit that might attach to his levy of the lands made before the beginning of the suit; neither, on the other hand, does it follow that his execution sale against Hanks can assist his defense here, though he may be guiltless of a contempt of court, in completing, by sale, the inchoate claim which was dependent upon his levy. Russell might have set up the lien of his judgment, or of his levy, as a defense, which would have been as effectual in a court of chancery as their merger by sale during the progress of a suit against him for the lands, and he would have occupied an attitude less exceptionable before the court.
We have seen that the levy of Russell’s execution against Hanks was made upon the 29th May, 1841, and that the sale took place on the 5th of February, 1849. Any favorable effect that would be produced in this case from these legal proceedings of Russell, must arise from the sale, for the durability of the levy cannot be sufficient to uphold a levy lien for nearly eight years. Nor did Russell after his alleged purchase qf the interest of Hanks, make the same’ known to the court with promptness ; making no mention of it, till in his answer filed the 27th May, 1853. In that answer, he sets up mutual releases and agreements executed by Hanks and himself, produced as exhibits H. No. 3, and H. No. 4, as barring Hanks from any right to the lands embraced in his bill, when those papers could not be construed to relate to the sale of such lands as had been sold on the 30uh of September, 1844, as the property of Hanks. And the answer of Russell to the supplemental bill of Hanks, which was filed on the 27th of November, 1855, pleads an exoneration from the stipulation contained in exhibit H. No. 4, not further to molest Hanks upon Russell’s judgments against him in the Federal Court, on account of previous violation by Hanks of his agreement contained in exhibit H. No 3. Upon the subject of the violation by Hanks of his agreement, there is nothing to guide us, the record containing nothing but allegation against allegation ; while it is manifest that Russell’s agreement of exhibit H. No. 4, was violated by his sale of the lands in question, on the 5th of February, 1849, by means of an execution against Hanks, unless Hanks had before that time discharged Russell from the engagement contained in exhibit H. No. 4, by his disregard of his own stipulations as set forth in exhibit H. No. 3.
Hanks had once aright to a partition of these lands: that is unquestioned'by Russell; and when the impeachment of that right by Russell amounts only to an averment that Hanks has been divested of his right, we must uphold the right.
Although Hanks may have been present at the^sale of these lands on the 30th of September, 1844, Russell, from knowing the claim of Hanks, cannot reap any benefit from his silence, for what would have been announced by Hanks concerning the claim, was already within the knowledge of Russell. Hanks had the same right as any body else to bid upon the offered sale of Ferebee’s interest in the lands, although he denies making any bid for them. From both of these facts, if they are such, Russell had no reason to infer that Hanks had abandoned his claim to the lands. Hanks is not brought within the rule recognized by this court in Shall vs. Biscoe et al. 18 Ark. 165, and applied in other cases cited by the counsel for Russell, which is an elementary principle pervading all the cases upon the subject.
We approve of so much of the decree of the court below as awarded a partition of the lands mentioned in the original and' supplemental bills, on the ground that the plaintiff was the owner of an undivided one-half of the lands.
In the controversy between Margaret F. Neely and Russell, growing out of the cross-bill of Robert M. Ferebee, two main points are to be considered ; whether the cross-bill shall be allowed to include other lands than those which are embraced in the original bill; and whether Russell obtained title to the lands of George W. Ferebee by his purchase of them under execution, which will be good against the effort of the cross-bill of Robert M. Ferebee to have such title canceled.
The latter point presents the important question of the case, and will be first taken up, for if the title of Russell be unimpeachable in this proceeding, Mrs. Neely has no claim upon any of the lands involved in the original or cross-suit, and the scope of the cross-bill need riot be considered.
In a suit begun by Russell against the executors of George W. Ferebee after his death, judgment was rendered in favor of Russell in the Circuit Court of the United States for the District of Arkansas, on which executions were issued, and large quantities of land were sold under the executions, of which Russell became the purchaser.
It was contended by Robert M. Ferebee, and is now maintained by Mrs. Neely, the successor to his claim, that the executions and sales had thereunder were illegal, that the titles procured by Russell witnessing his purchases at the sales are worthless and fraudulent against the inherited title to the lands which the law cast upon Robert M. Ferebee, as the heir of George W. Ferebee. ■ The executions and proceedings dependent upon them are alleged to be irregular, because they violated the letter and policy of our administration laws; that the judgment obtained by Russell could be collected, only bj being brought within the jurisdiction of the Probate Court, there to be classified in its legal order, as an allowed demand against the estate of George W. Ferebee, and to be paid out of the assets of the estate, under the direction of the Probate Court, in accordance with the requirements of the administration law, and as other debts of the same class.
This is clearly the law that controls demands agaiqst deceased persons, that had not become liens upon specific property, before the death of the debtor. When a man dies, his estate is subject to the payment of his debts; but under our system of law, the debts must be paid under the direction of the Probate Court, in the order in which they are there classed, and all debts of the same class must be paid together, either in whole or in part. Bomford vs. Grimes, 17 Ark. 571; Clark vs. Shelton, 16 Ark. 483.
A creditor need not reirair to the Probate Court to have his demand passed on there, he may proceed by suit in the Circuit Court, or other court of competent jurisdiction, obtain his judgment, which wall be taken as ail established demand, ready for classification by the administrator, and for payment in its rank, under the order of the Probate Court. Outlaw vs. Yell, 5 Ark. 472; Ryan vs. Lemon, 5 Eng 78; Clark vs. Shelton, 16 Ark. 480 And he may do this because the law allows it to be done; yet in every step of his proceeding he must conform to all legislative requirements. It has been expressly decided by this court, that a judgment in the Circuit Court does not confer authorityupon the plaintiff to collect thejudgmentin the ordinary mode, by the process of the Circuit Court. The judgment, though it has settled the existence of a demand, has comületed its allowance, and has imposed upon the administrator the duty to classify it, and cause it to be recorded in the Probate Court, cannot be allowed to sweep its way through an estate, appropriating its assets in disregard of the existence of demands that are more worthy in the eye of the law, without notice of claims that are upon an equal footing, from being placed in the same class. Adamson vs. Cummins, 5 Eng. 541. The policy of our law, and the ill consequences that would attend a departure from it, are sufficiently set forth in that case, and we need say no more than to express the continued assent of the court to the result reached in that case, that judgments of the Circuit Court against executors or administrators, on debts due from deceased persons, can support a compulsory satisfaction, only by being brought under the administration of Piobate Courts like other demands against estates, that they cannot be enforced by ordinary existing process, as if rendered against living persons.
Such is the law with regard to judgments of our own courts, and we know of no principle that requires a different rule to be applied to judgments of the Federal Courts. They may not be, like the State Courts, subject to statutory modes of proceeding, but their judgments are of no higher grade than ours ; and no constitutional or paramount law gives to creditors out of the State greater privileges iu the distribution of estates than creditors in the State enjoy. Federal judgments are within the reason of the law, the unrestrained execution of them by the courts, as if the debtors were alive, would induce the evils, that the law designed to prevent in placing estates within the custody of the Probate Courts to be applied to debts in the way directed by our administration law. And they are also within the letter of the law, as expounded by the highest Federal Court.
In Mississippi, the jurisdiction of the courts exercising Probate authority does not attach to the estate of a deceased person, till it is found to be insolvent, when its assets are equally distributed between all the creditors.
But, in accordance with the Mississippi statute, the Supreme Court held that a judgment of the District Court of the United States given before the estate was declared insolvent, could not be satisfied out of the assets by execution. The following extract from the opinion of the court, plainly shows the principle of its decision : “ As, therefore, the judgment obtained by the plaintiffs in the court below, did not entitle them to a prior lien, or a right of satisfaction in preference to the other creditors of the insolvent estate, they have no right to take in execution the property of the deceased which the Probate Court has ordered to be sold for the purpose of an equal distribution among all the creditors. The jurisdiction of the court has atttached to the assets ; they are in gremio legis. And if the Marshal were permitted to seize them under an execution, it would not only cause manifest injustice to be done to the rights of others, but be the occasion of an unpleasant conflict between courts of separate and independent jurisdiction.” Williams vs. Benedict, 8 How. 112.
In the above extract, all is said that need be said to show the reasonableness of applying to the judgments of the United States Courts the same rule that we enforce upon judgments of our own courts. And we do not understand the succeeding qualifying remarks to be opposed to our system of distribution of assets, for this does not attempt to exclude residents of other States from obtaining judgments in the United States Courts, but places them only upon the same level with our own judgments. If our stature considers all estates as insolvent, or likely to be, or treats them as such until the contrary is shown, they are entitled to the same protection from non-resident interference, that the estates in Mississippi are, that are saved by its law from being seized in a race of diligence for the satisfaction of the whole of one debt, to the loss of all other debts. To the same effect are Peale vs. Phipps, 14 How. 374; The Bank of Tennessee vs. Horn, 17 How. 160.
We are not the constituted judges of the good policy of our laws, yet we may be indulged in the remark, that its wisdom cannot be impeached, that its equity is apparent. And though the decisions of this court are our highest and only controlling authority, in construing our own statutes, we are glad to see that Adamson vs. Cummins falls within the principle distinctly enunciated by the most august tribunal of our country
To the same effect are the decisions in Mississippi upon its statute, like ours in principle.
Except the case of The United States vs. Drennen, Hemp. R. 320, we have not found or been referred to any authority that sustains the executions of Russell. For the cases of which Suydam vs. Brodnax, 13 Peters 67, and Hyde vs. Stone, 20 How. 170, may be taken as instances, have relation only to the right of suit, or to affording redress to suitors in ordinary cases, and do not deny the right of the States to compel all the creditors of an estate to be placed upon an equitable foundation, securing an equal partition of the assets among all established claims according to a priority that shall depend upon the worthiness of the claims, and not upon the residence of the claimants.
Our administration law is not within the observation of Voorhees vs. The Bank of the United States, 10 Peters 449, and Huff vs. Hutchinson, 14 How. 588, as it does not interfere with the plaintiffin getting his judgment, and does not take away his right to process for its execution, although it changes the mode of execution, by remitting the judgment to the Probate Court, and to satisfaction under its rules, instead of permitting the ordinary legal process.
The case from Hempstead’s Reports, to which we have been cited, does contain a sound exposition of our statute.
A court does not cease to be a court, because it cannot by its own power execute its judgments. This .prohibition rests upon our own courts of superior jurisdiction with regard to their judgments against the personal representatives of deceased per* sons. But in considering the premises upon which judgments are given, and in giving them, the Courts actas courts, are such in the highest and most appropriate sense. The rendition, more than the execution of a judgment, is an exercise of judicial power. The argument for Russell, and the United States vs. Drennen, would make a court consist mainly in the discharge of ministerial offices, making them asnecessary to the constitution of a court, as.its judicial functions. The argument is unsound, the case is not law.
It is insisted for Russell that, though the executions under which the lands included in the cross-suit were sold, were irregular, the sale must not be interfered with in this suit; that the proceedings were not reviewed by appeal, or writ of error, and cannot be attacked by this litigation.
A bill in chancery prosecuted for the single purpose of canceling titles founded upon irregular sales, is not an indirect or collateral proceeding. This case has no analogy to Scott vs. Pleasants, 21 Ark. 364, and the numerous cases that hold a judgment or decree good against an objection made in a collateral proceeding.
Nor does Russell occupy the situation of the purchasers in Adamson vs. Cummins. Their title was maintained because they were unconnected with the irregular execution that was quashed. If they had been, like Russell in this case, the pro-i>.oters of the illegal proceeding, the sale as well as the execution would have been quashed ; they would have been subjected to the same decision that we make concerning Russell: that his executions were irregular, that they are questionable bj direct proceeding against them in chancery, and that he derived no title to the lands he bought, at the sales, which he can hold against those that are entitled to the estate of George W. Ferebee.
The order canceling the titles of Russell must except the lands purchased by him under decrees for the foreclosure of two mortgages given to him by George W. Ferebee to secure the payment of part of the debts on which Russell’s judgment, was obtained. These lands are those conveyed to Russell by John S. Horner, commissioner, upon the 23d of April, 1849, and those conveyed to him by William Harvick, commissioner, on the 3d of February, 1846.
Upon these lands mortgaged to Russell, he had a specific lien, which George W. Ferebee’s death did not displace. Russell had a right to enforce that lien without application to the Probate Court, and the title he obtained to the lands under the mortgage sales is good.
We assent to the proposition, that the heir of George W„ Ferebee cannot cancel Russell’s title to the lands, without paying his judgment.
The judgment was an allowed demand; it was the duty of the executors of George W. Ferebee to classify and list it in the Probate Court, among the ascertained claims against the estate. The estate has been discharged from the Probate Court; the property divested from Russell’s trustee goes to the grantee of George W. Ferebee’s heir, and it is not equitable for her to have it, and for the beneficiaries of Russell’s trust to lose the lands, without beinginderonified by payment of the judgment, to whose satisfaction the lands were applied.
Such is the principle of certain decisions of the Supreme Court of the United States, which do not conflict, but were argued as conflicting with the irregularity of the Marshal’s sales. Un Bk. Ten. vs. Jolly, 18 How. 507; Green vs. Creighton, 23 How. 107.
Russell is not to be considered as a trespasser, but rather as a trustee, holding the lands charged with the payment of his judgment. It does not appear that he acted corruptly, or more exactingly than might be expected of a diligent creditor. He avers in his answer that he only took the course pointed out by his counsel, that he did not interfere in the direction of the coercive measures against the lands, and only did what he thought and was advised he had a right to do. The unsettled condition of the law and practice in our State Courts, and the doctrine of the Federal Court in this State, as asserted in The United States vs. Drennen, make the answer reasonable in this respect.
Russell will be credited with his judgment and its accruing interest. He will also be credited with the amount he paid to the United States for the lands marked No. 5, in his answer to the cross-bill setting forth the lands bought by him under the executions against George W. Ferebee, from which it appears that Ferebee claimed those lands under a Cherokee pre-emption, which did not hold them, and that Russell was obliged to enter them.' On this credit six per cent interest will be allowed.
Russell will be charged with the sums he bid for the lands and town lots he bought at the two mortgage sales.
And as there will be a large balance on the judgment, after taking into account the prices which he has realized from the sale of lands not included in the mortgages, he will also be charged with those prices, taking the prices in his answer as the true price and value of the lands sold.
But from the price of survey, No. 2391, sold te the Martins for $9,800, a deduction of 498 70-100 dollars, with ten per cent interest from the 23d of September, 1845, to the 3d of February, 184G, must be made, which amount Russell was obliged to pay to Cephas Knowlton, to remove an incumbrance upon the lands in the survey.
Russell will also be charged with the value, in February, 1850, of the north-east fractional quarter of section twenty-nine, township two south, range four west, which he then conveyed to James M. Williamson for a price not stated ; with the value of lot No. 2, in Helena, on the 1st February, 1850, which Russell donated to the Presbyterian Church, and with the value of lots 69 and 71, in Helena, at the beginning of this suit.
The residue of the amount due on the judgment, which is likely to be about twenty-five thousand dollars, will be a charge upon the lands, and Mrs. Neely will be entitled to have them divested out of Russell’s trustee, and to have them vested in her, on payment of what is due upon the judgment, or to have the lands or enough of them sold to pay the amount, and to hold the overplus of lands, or of their proceeds, as the grantee of Robert M. Ferebee, or if she declines the offered relief the cross-bill of.Robert M. Ferebee as adopted by her will be dismissed.
This .does not include the lands which Russell bought at the mortgage sales, or those which he sold, as specified in his answer. As to them, the cross-bill of Robert M. Ferebee, and the dependent bill of Neely and wife are dismissed.
The conclusion upon the execution sales would be without effect in this case, except upon the lands subject to partition between Hanks and Mrs. Neely, unless the cross-bill can extend beyond those lands. For Russell, it is contended that the cross-bill must be confined to the lands that are the subject matter of the original suit.' And such is the general law. Story Eq. Pig. s. 401; 3 Day Ch. Pr. (Perkins Ed.) 1746; Galatier vs. Erwin, Hopks. Ch. Rep.
The reason of the law is to confine suits within reasonable bounds, and to do this, the litigation is restricted to the matter of the complaint, as otherwise an indefinite number of subjects of controversy might be brought into a case, delaying the suit and burdening it with costs, not appertaining to its subject matter, and perplexing the court.
More often than otherwise, a cross-bill is to obtain discovery from the plaintiff of facts contrary to, or different from those stated in the bill, but concerning its matter; or to obtain a decree against the plaintiffin the original suit, and the authorities refer to this sort of cross-bill, unless special mention is made of a cross-bill, filed to obtain a decree against a co-defendant. This latter sort of cross-bill is as well grounded in practice as the other, although it partakes somewhat of the nature of an original bill against the co-defendant, it being necessary to compel an answer from him by process, that not being necessary in this State as against the plaintiff in the original suit. Walker vs. Byers, 14 Ark. 262; Josey vs. Rogers, 13 Geo. 481.
As against a co-defendant, a cross-bill is not a defense to the original bill, and thus loses the most striking characteristic of a cross-bill. Anderson vs. Ward, 6 Mon. 420.
There would be but little difficulty on this point, in the case before us, if the parties, made defendants to the cross-bill, can be held to waive the objection to its scope. For Hanks makes no objection to the cross-bill being entertained, though the effect of it has been to overshadow the original suit; and Russell comesup without hesitation to the fullest possible defense against all that is charged, or can be inferred from'the cross-bill. It is his copious documentary defense to the cross-bill, that has swelled the case to such unwieldly propositions. If he, or if Hanks, had called upon the court below to have confined the case to the lands in which Hanks had the interest, alleged in his bill, it would have been the duty of the court to have sustained the desired restriction. But Russell not only answered the cross-bill fully, but he first brought the fact into the case, that his purchases extended to other lands of Ferebee, than those that were the subject of Hanks’ complaint. This was done in his two answers to the original bill; and the cross-bill is only an amplified specification of what the answers stated in a comprehensive way.
Still we do not say that a cross-bill, by tíie acquiescence of parties, may have indefinite extent, for the books seem to imply that there is a want of power to make a decree upon matters unconnected with the original suit.
A critical examination of the authorities will, however, confine the general expression to cases where parties have made the proper objection at the proper time, or where the cross-bill concerned only the plaintiff in the original suit, when it was a pure defense, or when the matters in the cross-bill were entirely disconnected from the subject of the original bill. And there will be found authority to show that this confinement of the cross-bill to the matter of the original bill, is only a usual, or rather is not a universal quality. As in May vs. Armstrong, 3 J. J. M. 262, after stating the law in the general terms in which it is mostly found, it qualifies the restriction by making it inoperative, if “ there exist some special circumstances, such as insolvency, non-residence. &c., which would render it necessary in order to avoid irreparable injury. * *• * * The cross-bill must relate exclusively to the subject matter of the bill, and things connected therewith, and foreign matter cannot be introduced unless under special circumstances.” The same qualification is contained in the Georgia case, already cited upon another point. Josey vs. Rogers, 13 Geo. 482.
Russell is proved to have been a non-resident, and that is one of the standing facts, classed by the authorities as among the spe cial circumstances that may remove the general rule. Yet we place this matter upon another, and we think higher ground. The matters of the cross-bill are not unconnected with the matter of the original bill. That relates to certain tracts of land, and Russell and Robert M. Ferebee were called to answer, as owning or claiming the half of the lands the plaintiff did not claim. Russell appeared, and asserted his claim to the lands as a purchaser of them at an execution sale. Ferebee appeared and claimed the title of Russell. But according to the principle of this opinion and of the argument for Russell, he was not entitled to all the lands Russell bought under executions against the assets of George W. Ferebee, without paying Russell’s judgment. That principle would have required the part of the lands to be partitioned between Ferebee and Hanks, to have been, charged with their ratable part of the amount due.Russell upon the judgment, and thus the whole matter that has been under consideration in the cross-bill, as extended to all the purchases of Russell, would necessarily have been brought under review, to ascertain the charge upon Ferebee’s half of the lands mentioned in the original bill. The litigation, in its-subjects of en-quiry, would have been as extensive as it has been. There is no propriety in the decree being narrower than the requisite subjects of examination and controversy between,parties already before the court. From this cause, from the claimant of all the lands being the sanie as the claimants of the half of the lands Hanks did not claim, from Russell claiming all the lands under the same title, and from Ferebee’s deducing them all as his by descent, we decide that the matter of the cross-bill is not foreign to that of the original bill. Though more extensive, it grew out ofthe matter of the original bill. Daniel vs. Morrison 6 Dana. 187.
Even if there had been no cross-bill filed, we think the court might well have regretted losing the opportunity of settling a controversy that was so deeply involved in the enquiries which must have been made to deal out equity with respect to the lands of the original bill.
When necessary, the court will order a cross-bill to be filed to insure a complete determination of the matters involved in a suit. 2 Madd. Ch. 433.
The following is apposite to this case, and we think decisive of the propriety of the cross-bill: “Upon hearing a cause, it sometimes appears that the suit already instituted is insufficient to bring before the court all matters necessary to enable it fully to decide upon the rights of all the parties. This most commonly happens where parties in opposite interests are co-defendants, so that the court cannot determine their opposite interests upon the bill already filed, and the determination of their interests is yet necessary to a complete decree upon the subject matter of the suit. In such a case, if upon hearing the cause the difficulty appears, and a cross-bill has not been exhibited to remove the difficulty, the court will direct a bill to be filed, in order to bring all the rights of all the parties fully and properly for its decision, and will reserve the directions or declarations, which it may be necessary to give or make touching the matter not fully in litigation by the former bill, until this new bill is brought to a hearing.” 1 Smith Ch. Pr. 460.
Upon this, the most difficult point of this difficult case, we maintain the cross-bill to the extent it was presented and defended, and decreed upon in the court below.
The decree of the Circuit Court of Phillips county sitting in chancery is reversed, and a decree must be made in this court, in conformity to this opinion, which will be remanded to the court below for execution. Let each party pay one-half the cost3 in this court, and the costs of the further execution of the decree, the costs in the court below to remain as provided for in its decree. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
The plaintiff in error was the plaintiff below. The case is presented here on the action of the Circuit Court in overruling a demurrer to the plea of justification, which defendant had pleaded to the plaintiff’s action of trespass for false imprisonment.
Although there is a bill of exceptions in the transcript, which seems to have been taken to preserve evidence of the fact, that the court overruled the demurrer, and in the bill, the demurrer is stated to have been in short upon the record, by consent, for the legal insufficiency of the plea, we shall take no notice of the bill of exceptions as part of the record; it not being the office of a bill of exceptions to include or state what must necessarily be put upon the record. The" order of the court, setting forth its final action upon this subject, simply asserts that the plaintiff demurred, in short, upon the record, to the amended second plea of the defendant. We hold this demurrer to be such a demurrer as would raise all legal objections to the plea. Higgs vs. Warner, 14 Ark. 194; Harlan vs. Bernie, decided at'the present term.
The plea shows that a capias writ was issued by a justice of the peace of Poinsett count}, commanding the officer to take the body of the plaintiff, and bring him before the justice, to be dealt with according to law; that it was executed by the plaintiff being taken before the justice, to answer the charge of killing a dog, preferred against him, before the justice, on the affidavit of the defendant; and that the detention and custody of the plaintiff under the writ are the trespasses complained of in the declaration. Waiving the points made, that the writ is not shown by the plea to have been issued in the name of the State, or that the arrest was made within the territory where the writ might be used, we will consider the graver objection, that the plea does not disclose that the plaintiff was not arrested to answer a criminal charge.
The defendant caused the plaintiff to be arrested, by making an affidavit before the justice of the peace, who issued the warrant. To save himself from unlawful interference with the liberty of the plaintiff, it should have been his care, not only to, prefer a criminal charge against the plaintiff, but to see, and to know that the accusation was recited in the warrant. Eng. Dig. Ch. 52, S’s. 20-21; Floyd vs. The State 7 Eng. 49. For without such a recital the warrant was not a legal cause for the restraint of the plaintiff’s person. And the plea of justification was not a legal defence, without a statement that the defendant acted, in procuring the arrest of the plaintiff, upon a legal writ. Having attempted to justify under a writ, nothing but such a writ could protect the defendant. Any other detention of the plaintiff would, under that plea, he an imprisonment without justification, and would subject the defendant to an action by the plaintiff for false imprisonment, Eng. Dig. Ck. 51, p. 332, sec. 1. Floyd vs. The State 7 Eng. 47; Mitchell vs. The State Ib. 55.
The plea does not aver that the writ made mention of any crime charged against the plaintiff, only that the writ issued upon the affidavit made by the defendant, for killing a dog. But passing this by, and supposing that the warrant contained the same charge that the defendant’s affidavit had preferred against the plaintiff, and conceding, though we only do so for the purpose of this argument, that a dog is such an animal, as would be included in the description contained in Eng. Dig. Ch. 51 Art. VI, sec. 3, page 341, by being the subject of larceny, the mere killing of a dog is no offence against the law. The plaintiff, must have been guilty of a wilful and malicious killing of the defendant’s dog, or of the dog of somebody, before he could be liable to be arrested therefor. To kill a dog without an owner, to kill the defendant’s dog to save himself, or any body else, from injury, or his property from destruction, or to kill it unwittingly, or any way, except in the forbidden way of killing it wilfully and maliciously, would be no crime, would not subject him to arrest. The plea is clearly bad, in not stating a writ that could afford a justification for the plaintiff’s arrest, and the circuit court was wrong in overruling the demurrer thereto.
After the decision of the court upon the demurrer, no notice seems to have been taken of the case, as depending upon the general issue, but judgment was given for the defendant without any trial.
Let the judgment be reversed, the second plea of the defend ant be quashed on the demurrer of the plaintiff, and the defendant have leave to file an amended plea of justification under the writ set' forth in his second plea, if he can do so. | [
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Hon. Harris Flaitagin, Special Judge,
delivered the opinion of the Court.
The facts, so far as material to the question to be decided here, are:
The bill was filed on the twenty second day of October, 1851, by Absalom Fowler, against John H. Leach, John W. T. Leach^ and Jacob W. Parker, and charges:
That John H. Leach was indicted in the District Court of the United States for the district of Arkansas, for cutting and removing timber from the lands of the United States: he pleaded not guilty, was tried and a judgment was rendered against him for sixty cents fine, and one hundred and forty-six dollars and five cents costs.
A fi. fa. issued on the judgment, on the sixth day of August, A. D. 1851, and was levied on John H. Leach’s property, which was sold to Fowler, who received a deed. Leach had rented the land to Jacob W. Parker, who was in possession, and refused to recognize Fowler’s title. The rents are of the value of $300.
John H. Leach being in debt, and anticipating a judgment on the indictment, in order to hinder, delay and defraud his creditors, and especially the United States, conveyed the property, afterwards levied on, to John W. T. Leach, his minor son, without consideration.
The deed was made at Little Rock, wdiile the son was in Louisiana and knew nothing of it. The minor had no money, made no contract: has always lived at his father’s.
Prays for a decree for rents; that the deed to Leach be canceled and his title be quieted.
On December 9th, 1851, a decree pro confesso was taken against John H. Leach, and a guardian ad lilem, was appointed, who answered for the minor, and who exhibited a deed from John H. Leach, to John W. T. Leach, dated and acknowledged on the tenth day of April, 1851, acknowledged in Pulaski county, and recorded in Pulaski county, on the twenty second day of April, A. D. 1851. The deed contains a general warranty, and is for the expressed consideration of twelve hundred dollars.
The record of the indictment and proceedings is exhibited with the proper certificates, to Fowler’s bill.
Before the hearing in this cause the chancellor, on the motion of the complainant, suppressed the deposition of Mary Leach, on the ground that she was the wife of John H. Leach, against whom a decree pro confesso had been rendered.
The chancellor also suppressed the following clauses in the deposition of William H. Toler: “That within the last four years he has heard John H. state that John W. T. has loaned him money at different periods: that he has heard John H. say, that he intended to give John 'W. T. the house and lot owned by him in Little Rock: he understood that John H. made a deed of the same to the said John W. T. for twelve hundred dollars some months ago.” “John H. also stated to him that he, intended to give the said property to the said John W. T.” These clauses were suppressed because they were the declarations of the defendant John H. Leach.
The case was heard upon the bill and exhibit, answer and exhibit, replication, and the testimony of John Wassell, and Thomas D. Merrick, for complainants, and Henry Griffith, Joseph Faquino, and a part of the deposition of William H. Toler for defendant.
John Wassell, on the 29th day of January, 1858, testified that John H. Leach left Little Rock, six or eight years before, was well acquainted with John H. and his family, and knew of no property left by him except that in controversy.' John W. T. Leach was the son of John H. I suppose him to be 14 or 15 years old when he left. Do not know of John W. T. having any property when he left. John H. afterwards had a flat boat loaded with lumber at Little Rock.
On the same day, Thomas D. Merrick testified, that he was well acquainted with the defendant John H. Leach, and his family. His family left before his conviction in the Federal Court. He staid about one year after his family left, and I know of no property subject to execution and belonging to him when he left. When he left, John W. T. Leach was about 14 years of age.
Henry Griffith, on the 11th day of October, 1856, testified that he is acquainted with John H. Leach. He left here about 1851; thinks when he left there were two lots or fractions owned by him. Does not know that he had any other kind of property.
Joseph D. Faquino, on the seventh day of June, 1852: John W. T. Leach is about 17 years of age, and the son of John H. Leach. John W. T. was a clerk in a provision store, pilot on a ferry boat, and was then pilot on a job boat. He has been working for himself for some years.
That part of William H. Toler’s deposition not suppressed. June 7th 1852: Has known John W. T. Leach for nineteen years, he is-near twenty years of age, and is the son of John H. Leach. He has followed various occupations, and is now engineering. He has been working for himself for four years.
At the hearing there was a decree for the complainant, and the defendant John W. T. Leach appealed.
Appellants contend that the chancellor erred in suppressing the deposition of Mary Leach, wife of John H. Leach. They contend that John EL Leach would have lost the land if either the complainant or defendant recovered; and of course his interest was equal. Without noticing other objections to the deposition, John H. Leach had given a deed with general warranty to John W. T. Leach, and if he failed in sustaining it, he was liable to him for twelve hundred dollars (the consideration.)' This interest would of course disqualify him, see Arnold vs. McNeill, 17 Ark. 178; and the same interest which would disqualify him would disqualify his wife. 1 Greenleaf 341.
It is objected that the chancellor ought not to have suppressed the declarations of John H. Leach, as detailed by the witness, William El. Toler; and the appellant gives as a reason that his declarations were against his interest; and for this reason admissible; but on the contrary, they were directly calculated to relieve him from any liability on his warranty, and consequently inadmissible, and for the same reason his testimony would have been inadmissible.
It is contended that the complainant, by showing that he was the attorney of the United'States, in the case wherein the fi. fa. was issued upon which the property was sold, showed that the title was in the United States, and not in the complainant. This court in Estes vs. Boothe, 20 Ark. 583, decided that this is a question between the plaintiff in execution and the attorney, and does not concern other parties.
According to the testimony of Wassell, John II. Leach’s family left, from 1850 to 1852; according to Merrick, before April, 1851. Leach staid one year after. According to Griffith, John H. Leach left in 1851. This testimony can all stand, and John H. Leach’s family have left early in 1850.
John W. T. Leach was, in April, 1851, 15 or 16 years of age, according to Wassell; 15 years of age, according to Merrick; 16 years of age, according Faquino, and 18 years of age according to Toler.
According to Toler, John W. T. had been at work for himself after June, 1848, and.according to Faquino, at least as early as June, 1849, It appears his acquaintance, Wassell, did not know of any property he had in 1850; and it is not proved that he saved anything before April, 1851: That John H. Leach was in Little Rock when he executed the deed, and John W. T. Leach was in Louisiana: That John W. T. Leach was the son of John H. Leach.
That the deed was made in the expectation a recovery would, or at least might be had against him, which would amount to one hundred and, forty-six dollars, and,might have been for' much more: That he conveyed all his property subject to execution in the State.
Where a father, immediately before a judgment, conveys all his property subject to execution to his minor son, of from 15 to 18 years of age, in his absence, and who does not appear to have the means to purchase, it is sufficient to put the grantee upon the proof that it was a purchase upon an actual consideration and made in good faith.
This conclusion is arrived at, while conceding that fraud must be proven, and a deed imports the payment of the consideration expressed.
Let the decree be affirmed.
Mr. Justice Faieciiild did not sit in this case. | [
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Mr. Justice Fairchild
delivered the opinion of the Court.
In the early part of 1858, a man passed through Burrow-villein Searcy county, who was recognized by the appellant as a fugitive from a criminal charge in Missouri, for whose delivery in Cassville, Missouri, a reward had been offered. While Dawson was conferring with a neighbor about Blankenship, the fugitive, he learned that he had just passed the place where he was, and that Gurley, the appellee, was in pursuit of Blan kenship, for the perpetration of an offence against him. Accordingly, the appellant and Jno. J. Dawson went on in the direction Gurley had gone, and soon John J. Dawson and John M. Hensley overtook Gurley, when the former informed the others that the man whom Gurley was in pursuit of, and who had given his name to Gurley as Williams, was a Blankenship, who was charged with poisoning his wife, and for whose delivery in Missouri a reward had been offered. The three persons, John J. Dawson, Hensley, and the appellee, then agreed to arrest Blankenship, take him to Missouri, and if there should be any reward for him, divide it equally between the three, and Allen Dawson, the appellant, and if there should be no reward, that each one of the four should bear his own expenses and lose his own time. The arrest was made, Blankenship was taken to Cassville, Missouri, and the citizens of the vicinity subscribed between one hundred and ninety and two hundred dollars for the captors, of which eighty-two and a half dollars were collected, and received by John J. Dawson, who paid out of it twelve dollars and a half, the tavern bill of himself, the appellant and the appellee. The appellee went to Springfield to obtain an additional reward that was expected from that place or neighborhood, and upon his return to Cassville, he informed John J. Dawson that he had taken a note of the father of Blankenship’s wife for five hundred dollars, as his reward for the arrest and delivery of Blankenship, which he had cashed for four hundred and fifty dollars. The parties returned to Searcy county, and at parting, the appellee told John J. Dawson to meet .him in Burrowville the next day, to settle about the reward received.. In several conversations between the appellee and John J. Dawson dbout a settlement of this matter, the appellee did not deny thq' agreement, but refused to settle, and John J. Dawson once heard the appellant demand of the appellee a settlement, and the part of the reward money that was due to the appellant under the agreement, the appellee refused to pay any money, but did not deny the agreement.
Such is the substance of the evidence of John J. Dawson Jno. M. Hensley testified to the same facts,so far as concerned the arrest, and the agreement about the reward, and that the three captors of Blankenship, other than himself, the next day after the arrest, started toward Missouri with Blankenship. This was all the testimony of the case; it being an action of assumpsit, by Allen Dawson against Gurley for his portion of the four hundred and fifty dollars received by Gurley for the arrest of Blankenship. The case was on trial before a jury, on the general issue. After the appellant had introduced the testimony above given, the appellee moved the court to dismiss the case, as in case of non-suit, which motion the court sustained, by discharging the jury,ordering the suit to be dismissed as in case of non-suit and by adjudging costs against appellant, who excepted and appealed.
The record discloses no ground on which the motion was made or sustained. It is argued here that the action of the court was right, as the evidence disclosed a partnership between Allen Dawson the appellant, Gurley, the appellee, John J. Dawson and John M. Hensley, and that an action at law could not be supported by one of the partners against another partner before settlement of the partnership adventure.
The undertaking of the parties was not a partnership. Gur-ley on receiving four hundred and fifty dollars for the arrest of Blankenship, received one-fourth of it for the benefit of Allen Dawson, and was liable to him for it in this action.
Let the judgment be reversed with costs. | [
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Mr. Justice Fairchild
delivered the opinion of the Court.
. At the term of the court at which the indictment in this case was preferred, after the grand jury had been empanneled, and engaged in the discharge of their duties, the court upon the application of two of the grand jurors, to be excused from fur-' ther service on the grand jury, discharged them that they might attend to their private business.
The appellant interposed such discharge as a defence to the indictment, by two pleas in abatement, alleging that the said jurors were not discharged because they stood charged before their fellows with any crime or misdemeanor, or that an indictment might be preferred against them, or because they were sick, or unable to perform the labors of jurors, but for the reason above assigned. The pleas show further that two other men were summoned and substituted, by order of the court, in place of the discharged jurors, who helped to compose the jury that presented the indictment; for which the defendant was not legally indicted.-
The court below sustained the demurrer to the pleas, and upon the defendant declining to plead further, entered the plea of not guilty for him, on which were a trial and conviction and judgment, from which the defendant appealed.
Although the grand jury is a co-ordinate authority with the Circuit Court, and independent of it in the business of making presentments, ignoring bills, and finding true bills, it is still a part, a branch of the court, of which the judge of the court is the head and the controlling superior power.
This is shown by his authority to cause vacancies in the panel to be filled, by his duty to charge them as to the performance of their duties, by their application to the court to obtain evidence from contumacious witnesses, by their punishment by the court for continued contumacy, and by the general supervision and authority which, by custom and by statute, the court is called upon to exercise over them. I Arch. Cr. Pr. & Pl. by Waterman 98, 99, (note 5.)
It has been the uniform practice of courts of this State, to excuse from service, before and after the organization of the jury, men who were unable to perform the duties from their own sickness, or that of some member of their families.
We have not seen in onr statutes any specific cause for the discharge of a grand juror, but upon the information that there are grounds for proceeding against him; and we do not know why it is implied in the pleas of abatement, that the excuses of the two discharged jurors would have authorized their discharge, had sickness instead of business been alleged as the reason of such excuses. For we know of no statutory authority that can be invoked to sustain a discharge for anything, except for an impending accusation or inquiry.
Yet, from the necessity of the case, a grand juror that sickens suddenly and violently, ought to be excused, and it is plain that the court alone can excuse him.
The same conclusion might be drawn from sufficient sickness of his family, or from other great emergency. And it would seem a grand juror might properly be excused, to attend the funeral of a near relative, to save his houses, crops, or property from the destruction that an impending fire or flood may threaten.
If the court can discharge a juror, it can fill his place, for the course of public justice must not be obstructed. If a juror is discharged, it must be for some reason that seems to the court to be 'good, but it would not nullify the discharge to assign an insufficient reason therefor.
In the absence of statutory regulation, the rules of the common law must be the bases of action, and we know of no rule that interferes with the discretion of the court to excuse or discharge a member of the grand jury upon such cause as seems to it to be sufficient.
That discretion may be abused is not conclusive that it will be, and at most cannot be a ground of interference of a higher court, though it may be a good foundation for precaution, by way of legislative enactment.
The 68th section of chapter 52 of Gould’s Digest, implies that the foreman of a grand jury may be excused, or discharged any time before the jury is dismissed.
. Any person held to answer a criminal charge may object to the competency of a grand juror that is summoned to take the place of one excused or discharged, as well as to one of the original selection; hence this objection, which is the strongest argument noticed for the pleas, is of no avail.
In the selection of grand jurors this court has been careful to require the statutory regulations tobe strictly followed. State vs. Brown, 6 Eng. 78; The State vs. Cantrell, 21 Ark. 127; Wilburn vs. The State, ib. 198.
Due regard to the peace of society, and reputation and liberty of the citizens demands this; but the court should not be obliged to depend upon a disabled or distracted grand jury, for the performance of its important duties.
Let the judgment be affirmed. | [
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Mr. Justice Fairchild,
delivered the opinion of the Court.
In this case, as in Ford vs. Ford, decided at the present term, the plea of limitations' of three years was put in to a declaration in trover, which was stricken out by the court, on motion of the plaintiff. Following the decision named, we hold that the court erred, and reverse its judgment, with instructions to overrule the motion to strike out the second plea of the defendant below. | [
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Mr. Justice Compton
delivered the opinion of the Court.
This was an action of assumpsit brought by Harris & Levi against Touchstone and others.
. At the return term judgment by default was entered against the defendants, which, however, was afterwards set aside, on motion of the plaintiffs, they having discovered that there was no service of process as to one of the defendants. A discontinuance was entered as to the defendant not served, and judgment by default again rendered against the other defendants. The record entry then continues as follows : “ And because said damages are unliquidated, it is ordered that a jury come to assess the same, whereupon comes a jury of good and lawful men, to wit, Larkin Skinner and eleven others, who, being duly elected, empanneled and sworn to well and truly assess the damages herein, after hearing the evidence adduced, the argument of counsel, and the charge of the court, retire to consider of their verdict,” etc.
The jury assessed the plaintiff's damages at $5166 70 ; and it appears from the bill of exceptions, as also from several record entries in the cause, that the defendants appeared and contested the assessment of damages, excepted to the decision of the court overruling their motion for a new trial, and appealed.
It is urged in argument here, that the service of the writ as to one of the defendants against whom judgment by default was rendered, was defective. Conceding the service not to have been sufficient to warrant the judgment, by subsequently appearing and contesting the assessment of damages without moving the court to set aside the judgment by default, the defendant waived the defective service, and so of the other irregularity complained of as occurring prior to the rendition of the judgment. The defendants being in court, if they desired to plead to the action, they should have taken such steps as would have enabled them to do so. If, on motion and for good cause shown, the court had refused to set aside the judgment by default, the defendants would be in an attitude in this court to complain that they had been injured.
It is also insisted, that the jury were not sworn to assess the damages. It appears from the statement in the record entry above quoted, that they were, and the bill of exceptions states, that they were not. Which is to prevail? When the bill of exceptions undertakes to state matters which should properly appear of record, such as the pleadings in the cause, or the like, a statement in the record entry should prevail over a contradictory one in the bill of exceptions; but where the record is made to assume the office of a bill of exceptions in stating, for instance, what evidence was offered or rejected, the statement in the bill of exceptions will prevail. Lyon vs. Evans 1 Ark. 360; Rogers et al. vs. Diamond 13 Ark. 482-3. In this case the swearing of the jury was matter which should properly appear of record, and consequently the record entry must prevail.
There was no objection made, in the court below, to any of the evidence introduced, and, of course, none can be entertained here, nor will we review the testimony, there being no total want of evidence to support the verdict of the jury. Finding no error in the record, the judgment must be affirmed. | [
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Mr. Justice Compton
delivered the opinion of the court.
On the first day of March, 1852, Richard C. Byrd, who was then indebted to the legal representatives of John Pope, deceased, and others, executed a deed of trust, to secure the payment of said indebtedness, by which he conveyed to Frederick W. Trapnall, as trustee, certain lands, and the following negro slaves; Clarissa, Scott, John, Narcissa and Matilda, together with sundry articles of personalty, other than slaves. Under the provisions of the-deed, Byrd was to make payment within five years by fixed instalments, payable annually; and in default of payment, he was to surrender possession of the property to Trapnall, who was authorized and required to sell it for the benefit of the creditors. After the execution of the deed, Trapnall and Byrd died; Trapnall, in June 1853, and Byrd, in June 1854. Previous to the death of Byrd, two of the slaves, John and Scott, were sold by the sheriff under execution against Byrd, at the suit of a creditor not provided for in the deed of trust, and are now in the possession of Mrs. Boyd, who claims title to them under the sale made by the sheriff.
The bill which was brought by the heirs of John Pope’ deceased, and others claiming as beneficiaries, against Mrs” Boyd, Marcus L. Bell as admistrator of Byrd, and others— sought to subject the two slaves, John and Scott, to the payment of the debts secured by the deed of trust;' and was, at the hearing, dismissed for want of equity.
Sever al^questions have been raised and argued.
1. The claims mentioned in the bill not having been duly authenticated and presented to the administrator of Byrd, within the time prescribed by law, it is contended for Mrs. Boyd, that they were barred by the statute of non claim. True, it was laid down in Walker as admr. vs. Byers, 14 Ark. 246, and is now the settled doctrine in this court, that any claim or demand against the estate of a deceased person, capable of being asserted, at law or in equity, against the executor or administrator, must be authenticated by the affidavit of the claimant, as provided by statute, before it can be legally exhibited against the estate, or paid-by the representative. But in that case, after laying down the rule as we have stated it, the court said: “ To this general rule, however, the statute itself points out one exception — that of a suit pending against any person at the time of his death, which, by law, ^survives against his executor or administrator, and although this express exception might seem to exclude all other by a common rule of interpretation, there are doubtless other exceptions, as for instance all proceedings on the part of the widow for dower; which are grounded on a right in the property itself, out of which she is to get her estate of dower: proceedings for specific performance of a contract which do not seek to diminish the assets, that the law takes into custody — scire facias, to revive a judgment against an executor or administrator, because, such revival does not operate to exhibit the judgment revived, affidavit being nevertheless required, when it might be presented for allowance and classification. Nor need this enumeration of exceptions exclude the idea of other possible cases, that might not interfere with the policy of the statute.” ’
Looking at the grounds upon which these exceptions stand, as well as at the general rule itself, it would seem to be clear that, within the meaning of the decision in Walker vs. Byers, the statute of non-claim has no application whatever to the case now before us. The complainants do not assert their claims against Byrd’s estate, or ask any decree against his administrator ; on the contrary, as before stated, and as shown by the frame of the bill, they seek to subject to the payment of their claims the two slaves as part of the trust property, which Byrd, in his life time, conveyed to the trustee for that purpose — thus divesting himself of title to the slaves, and making it impossible to regard their condemnation, after his death, to the payment ofthe trust debts, as diminishing the assets of his estate. If, instead of proceeding against the trust property, the complainants had proceeded, as, at their option, they might have done, against the estate of Byrd, (Sullivan vs. Hadley, 16 Ark. 144,) then the statute of non-claim would have been an insuperable obstacle to a recovery — but not so, as to the remedy which the complainants have adopted in this case.
2. It is also insisted for Mrs. Boyd, that the trust property other than she holds, having gone into the possession of several persons, by purchase or otherwise, subject to the provisions of the deed of trust, such persons should have been made parties to the bill; and compelled, individually, to contribute to the extinguishment of the trust debts, in proportion to the value of the interest which each held in the trust property. The principle contended for, is founded in natural justice, and has been in some cases applied by courts of equity, (Stevens vs. Cooper, 1 John Ch. Rep. 423); but it can have no application in this case. On the execution of the deed of trust to Trapnall, no such estate, legal or equitable, in the trust property, as was subject to sale under execution, remained in Byrd, the grantor, (Crittenden ve. Johnson, 6 Eng. 94; Pettit vs. Johnson, 15 Ark 55; Biscot et al. vs. Royston, et al. 18 Ark. 519); consequently, Mrs. Boyd acquired no title whatever, under the execution sale, to the slaves, John and Scott, and having no title or interest in them, she is not in an attitude to ask that the equitable doctrine of contribution shall be applied. If the conveyance of Byrd had been a mortgage, Mrs. Boyd would have acquired, by her purchase, Byrd’s equity of redemption ; and if she were vested with such an interest in the slaves, then the proposition insisted on, would deserve a more extended examination.
The only remaining objection urged in the court below and insisted on here, is, that in behalf of Pope’s estate, the bill should have been prosecuted by an administrator, and not by the heirs. This objection was, wn think, well taken, and ought to have been sustained. The facts in this case, are substantially the same as those in Lemon’s heirs vs. Rector, 15 Ark. 438, where, after referring to the general rule, that there can be, regularly, no suit for the recovery of the personal assets of an estate, but by the executor or administrator, who has the right to sue both at law and in equity, as also to the special cases in which this general rule had been relaxed, the court held that the heirs could not maintain the bill.
No ground of defence reaching the equity of the case having been successfully urged, the decree of the Chancellor dismissing the bill for want of equity must be reversed, and the cause remanded with instructions to the court below, to grant the complainants leave to amend their bill so as to bring the proper parties before the court, and to dismiss the bill if they fail to do so. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
This suit was begun by an action of ejectment, and its effect is to determine which must prevail of two titles to a quarter section of donation land, to-wit: the south-east quarter o séction thirty-six in township eight, north of range fourteen west, in Conway county.
Hiram Cogle’s donation of the land upon the 12th of May, 1854, is precedent to the claims of both of the parties, and though neither of them can be said to claim under him, the claims of each are based upon Cogle’s non-performance of the conditions of the donation made to him by the State. As upon his not paying the taxes due upon the land in 1855, it was sold by the collector on the 10th of March, 1856, to the plaintiff, who is the appellant here, who obtained a collector’s deed the 17th of June, 1857, and had his tax sale confirmed by a decree of the Conway Circuit Court sitting in Chancery, at its March term, 1859, The defendant’s claim is that the Auditor re-donated the land upon the 20th of October, 1856, because Cogle had failed to furnish evidence that he had made the improvements upon the land which were the conditions of his donation. Defendant claims under the second donee, and the conditions of the second donation have been observed. All the proceedings on both sides are admitted to be regular and defendant is admitted to be in possession of the land.
The sheriff of Conway county, upon the non-payment of the taxes by Cogle in 1855, proceeded under the 23d section of chapter 101, Art. II, of Gould's Digest, to subject it to sale as if it had not been donation land ; while the Auditor, in re-donating the land, was acting under the 11th section of the same division, Avhich provides that donation land maybe re-donated when it is abandoned, or when it is forfeited to the State by a noncompliance with the donation laws.
In this case, there was a failure to pay the taxes due upon the land for 1855, which made it the duty of the collector to treat the land as if it were not donation land ; and there was also a forfeiture of the land to the State for neglect of Cogle to comply with the conditions of improvement required by the donation laws ; for which the land, after eighteen months from the 12th of June, 1854, was subject to re-donation.
But the State could not both hold it liable and sell it for taxes, and also donate it the second time.
The first and principal liability of the land, as of all property, is to the State for its taxes, and when the land was re-donated on the 20th of October, 1856, the donee took it incumbered with any claim the State had levied upon it for the taxes of 1855. In other words, the title depending upon the condemnation of the land for taxes in 1855, if properly condemned, is superior to that which is founded upon- Cogle’s forfeiture of his right for not performing the conditions of his donation. That right of forfeiture did not accrue till the 12th of December, 1855, which was not enforced till the 20th of October, 1856 ; while the land had been liable for the taxes of that year from a time anterior to the right of forfeiture, which liability was enforced by the sale of the land to the plaintiff upon the 10th of March, 1856.
Upon the facts set forth, exclusive of the decree of confirmation, which appear both by admissions of the parties and documentary evidence, the title of the plaintiff was better than that of the defendant, unless it should be that the right to forfeiture of the land made it the property of the State, so that she could not in March, 1856, sell it for taxes, and the court sitting as a jury should have found for the plaintiff instead of finding, as it did, ’for the defendant.
From what we have said, it follows that the first and second propositions- of the plaintiff were legal and applicable to the case, and should have been so declared by the court. The third, relating to the inviolability of the confirmation of the tax sale was also legal and applicable, as the tax sale that was confirmed by the decree, made it unimpeachable for any of its irregularities, and the propositions should have been sustained.
The judgment is reversed, with direction to grant a new trial, and for proceedings in the next trial in accordance with this opinion. | [
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Mr. Justice Fairchild
delivered the opinion of the Court.
In 1840, Abner Johnson sold to Worthington, the appellant, a large quantity of lands in Chicot county, and gave a deed of general warranty, for which Worthington was to pay him twenty-five hundred bales of cotton; two hundred and fifty bales a year. Ten notes or bonds were given, each for the last named amount of cotton, payable at the beginning of the successive years from the purchase. All were paid but the last two, falling due in 1849 and 1850. To avoid their payment, Worthing-ton filed his bill, alleging that the lands were subject to a stock-mortgage to the Real Estate Bank for twenty thousand dollars of stock subscription, for money obtained on stock credit; which, with interest, amounted on the 1st December, 1852, to nineteen thousand four hundred and eighteen 13-100 dollars: that the title to the south-east quarter of section twenty-two, included in the purchase, was not in Johnson; that Thomas T. Tunstall claimed by suit one piece of the land, for which, at sheriff’s sale, to discharge that claim, Worthington was obliged to pay eight hundred and fifty dollars; that Chester Ashley’s representatives had sued him for one quarter section of the land; and that another tract in the purchase was swamp land, and was owned by the heirs of Silas Craig: for all which incumbrances, and failures of title in Johnson, Worthington claimed an abatement of the consideration for the land, out of the two notes mentioned.
Wo money has been paid by Worthington to remove the incum-brances, or on account of the defects of title, but for buying in the Tunstall claim, and for the stock credit debt. Worthington has been in possession of the lands since his purchase in 1840; how long Johnson and others, with whose possession that of Worthington could be connected, had the lands is not stated.
The note due.in 1849, was, by the court below, canceled, and Worthington discharged therefrom on decree against Abner Johnson, or against his unknown heirs: while Curd & Co., who hold the note due in 1850, resisted the bill, obtained its dismissal, and a dissolution of the injunction which had been granted against the collection of a judgment at law, which they had procured on the note. This judgment was rendered in the Circuit Court in October, 1852, and was affirmed by this court at its January term, 1855, and is reported in 15 Ark. 491.
With regard to the piece of land that Johnson is charged to have no title to, that is, to the south east quarter of section twenty-two, and to the swamp land said to be claimed by the heirs of Silas Craig, no proof seems to have been attempted to be made to support the bill. And though the bill is confessed against Johnson and his heirs, no right of compensation for those lands, by deduction from the price of the whole, could be made without evidence from which to ascertain what should be its amount.
We do not think that Worthington is entitled to any relief on account of the claim made by the Ashley .suit for the south east quarter of section twenty-three, township sixteen south, range one west. No evidence of title of Ashley is before us; none of a claim, but that a suit was pending at the March term, 1858, of the Chicot Circuit Court; for William E. Ashley’s deposition bsing only a verbal statement of the effect of Ghester Ashley’s papers, cannot be dignified into evidence by being so called. What the claim is we do not know: whatever the title was, so far as this suit is concerned, we may suppose that the adverse possession of Worthington and of Johnson may seriously affect it. At least, nothing is in the case whence we ought, on account of that claim, to infer anything against Worthington’s right, so as to protect it by the indemnity sought in the bill.
For the Tunstall land, the south half of.the north east quarter of section twenty-three, the original bill averred that a large deduction ought to be made, as it was valuable from its appurtenances, it being the site of the dwelling house, and main plantation improvements. But what was claimed by the bill subject to the event of Tunstall’s suit, which was then pending, by the sale of Tunstall’s interest under execution, and consequent dismissal of his suit, was reduced to eight hundred and fifty dollars, the sum Worthington paid for it, which a supplemental bill claims he was obliged to do for his protection, .and for which, he should be reimbursed out of the two unpaid cotton notes. We do not perceive the force of the claim. It cannot be said that Tunstall had any right to the land, that the result of his suit would have charged the land with any incumbrances, until a final decree had so declared. And if Worthington thought proper to bid and buy, at the sheriff’s sale of Tunstall’s interest, he did so for his own convenience, and at his own cost, unless he could show Tunstall’s title to be paramount to that of Johnson, and to show this, no attempt was made in the case.
It is objected to the relief sought concerning the Real Estate Bank stock mortgage, and stock loan, that they had been subjects of a common law defense, and that hence Worthington could not urge them as grounds of equitable consideration.
The seventh and eighth pleas to the action of covenant upon one of the bonds included in this suit, presented these subjects as defenses. And if they were proper subjects of defense at law, the decision upon them there would preclude their presen tation in a court of equity, though equity had a jurisdiction over them concurrent with that of law. So is Hempstead vs. Watkins, 1 Eng. 317, and the cases of this court to the same point are numerous. But if these defenses could not be made at law, but are the exclusive subjects of equitable jurisdiction, the attempt to use them as legal defenses could not prejudice the right to make them the foundation of a bill in chancery.
What was stated in the seventh and eighth pleas were partial failures of title, and were the subjects of equitable relief alone. Hence they were quashed on demurrer, and the quashal was not alleged as cause of reversal of the judgment. Worthington vs. Curd, 15 Ark. 496; Wheat vs. Dotson, 13 Ark. 709; Kerr vs. Henson, 17 Ark. 254. Whatever relief could be had upon these matters in equity, if orignally introduced there, can then still be had, notwithstanding they .were set up as legal defenses.
The money obtained by Johnson from the Real Estate Bank on his stock loan, Worthington was obliged to pay to protect himself, as otherwise, the decree pro confcsso rendered against Johnson and Worthington would have been made final and would have been enforced by a sale of the lands. Accordingly, about the first of December, 1852, Worthington paid this debt by substituting his own note for. nineteen thousand four 'hundred and eighteen 18-100 dollars. Thenceforward the debt was his own, and he cannot charge the interest accruing afterwards to Johnson. His note was a payment of Johnson’s note, as much as if he had paid the money. Neale vs. Newland, 4 Ark. 509.
It is then immaterial how much more Worthington paid the Real Estate Bank than the original amount assumed, as it was paid for the accommodation that was extended to himself. By the course of dealing between the trustees of the Real Estate Bank and its debtors, we must conclude that the amount assumed by Worthington could have been paid in the bonds of the State issued for the Real Estate Bank, as all debts could always have been paid in overdue coupons. The evidence of the value of State bonds, like that of every fact in the case, is very meagre, it being only that of Davies, that in 1854, they were worth sixty-three cents in New Orleans, and of Peay,that at. the same time they were worth from sixty to sixty-four cents, which was much higher than their subsequent market value.
It may then be supposed that the value of State bonds was not more in 1852, than it was in 1854. But even if neither party be prejudiced by such a computation, we regret the indefinite nature and lack of evidence perceptible upon this point, and upon the other points in this case. But Worthington is proved to have made a special contract to pay this debt in bonds of the State except five per cent, which he was to pay in cash. Conceding even that he might charge Johnson according to his own contract, and counting State bonds at sixty-three per cent., this debt was payable with twelve thousand six hundred and ninty-two 68-100 dollars.
By the decree of the court below as between Johnson and himself, he is indemnified against that by his discharge from the cotton note due 1st January, 1849.
And what two hundred and fifty bales of cotton were worth at that time, we have no information. But taking cotton to be what Rowlett,- a witness in the law suit, who_e evidence is included in an exhibit, showed Worthington to admit it to be worth in 1850, that is, ten cents a pound, the note, with interest to the time when Worthington made his note to the Real Estate Bank, would amount to twelve thousand three hundred and fifty dollars, leaving Johnson a loser of only the sum of three hundred and forty-two 68-100 dollars. It was on Worthington, the plaintiff, to have made clear by evidence, that his loss was greater than his indemnity; and if we believed that there was such a balance due him, not having shown it, we should not remand the case to ascertain an amount so small compared with the interests involved in this suit. But we have no such belief; and there is as good reason, as the contrary, to conclude that the canceled cotton bond of 1849 fully indemnifies Worth-ington for all he has paid the Real Estate Bank.
We cannot disturb the decree of the court below on account of anything connected with the stock loan to Johnson, or its payment by Worthington.
We have thus far foreborne any discussion of the right of Worthington to have the value of the incumbrances set forth in the bill deducted from the price of the lands. And the decision of this court, in the recent case of Hoppes vs. Cheek, made the ■present term, having announced the rule of law upon this subject, we need only refer to that case. The rule laid down is, “ where a purchaser has been let into possession, and continues “ without interruption under a paramount title, he is not, in “ the absence of fraud, entitled to equitable relief from payment “ of the purchase money, upon the ground of defect of title.” * * “ There are cases, however, in which it seems to have been “ held that the assertion and prosecution of an adverse title, “ coupled with the insolvency, or non-residence of the party “ bound by the covenants, are sufficient to bring the case witli- “ in the quia timet jurisdiction, which, in extraordinary cases, “ courts of equity have exercised.”
In this case the non-residence of Johnson is proved, and Worthington claims that he is dead, and has continued the suit against his unknown heirs; but as yet there has been no assertion or prosecution by suit of the stock mortgage incum-brance as covering the stock subscription of Johnson, whitrh is the alleged paramount title. We do not know from anything in the case, that this prior incumbrance will be asserted, or that if so done, to what extent it will be an incumbrance; and no means of acquiring exact information upon this matter have been suggested to us, nor do we know how this can be attained until there shall have been a settlement of the affairs, and application of the assets of the Real Estate Bank to the payment of its liabilities. The authorities are decisive that, where there is no actual prosecution of the paramount title or incumbrance, “ the insolvency or non-residence of the vendor will not, when coupled with the mere existence of such title or incumbrance, give to the purchaser a right to equitable relief.” Rawle on Cov. 687, (2d Ed,.]) Latham vs. Morgan, 1 Sm. & M. Ch. 618.
Worthington accepted the deed from Johnson with full knowledge of the Real Estate Bank mortgage, and according to the testimony of Adair, relied confidently on Johnson’s promise to remove all incumbrances from the lands. Such also is the effect of the testimony of Davies, who expresses a belief that this would have been accomplished by Johnson, but for the assignment of the Bank’s assets to trustees, and the general confusion into which its business and affairs were precipitated. And it appears in the case, that the stock mortgage, so far as concerned the stock subscription, was not considered by Worth-ington as a serious objection to the purchase of the lands. But however this might be, buying with a knowledge of the incum-brance, he must be held in equity to have waived any right to enjoin the collection of the purchase money, much more to abate from the price of the lands the amount of the incum-brance. Rawle on Cov. 680.
A knowledge of incumbrances, or defects of title, is no objection to recovery upon the covenants of the deed in a court of law; but it is a ground for equity to refuse relief out of the unpaid consideration, because it supposes that, with such knowledge, the vendee chose to rely upon the covenants; and to their legal effect he will be remitted. As to the latter part of the proposition, see Rawle on Cov. 680, and as to the former, Walker vs. Johnson, 13 Ark. 526.
"We have treated the note sued on in the hands of Curd & Co., as if it were belonging to Johnson, for under our statute, the assignee of a bond or note is not free from any defence to which it was liable against the maker. Walker vs. Johnson, 13 Ark. 531.
The decree of the court below must be affirmed. | [
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Hon. Harris Fx.anagin, Special Judge,
delivered the opinion of the court;
Tin's was a bill in chancery, brought by Brooks against Isbell for several tracts of land.
The hill alleges that Isbell sold to Brooks several tracts of land, for which Brooks was to pay two thousand dollars in swamp land scrip, and that a deed was made, executed and delivered by Isbell, when, upon reflection, the deed was returned to Isbell upon his promise to get his wife’s signature, have the deed acknowledged, and return it in the course of a week. The deed was made June 24th, A. D. 1853. The complainant paid three hundred and seventy dollars; has offered to pay the residue, but could not get the deed.
The defendant admits the negotiation and sale, and that a deed was made, executed and acknowledged by himself and wife, but denies that it was delivered; avers that a part of the contract was that Brooks was not to enter any more lands in his neighborhood for settlers, and that the inducement to the trade was future profits, which he expected to make upon the entering of swamp lands. That complainant made all the entries he desired, and prevented him from using the scrip profitably, when defendant determined not to complete the sale. He denies that Brooks ever paid anything on the land.
The testimony on this point is, first: The deposition of Silvey, which is, that Brooks and Isbell were in his office as swamp land agent of Arkansas, at Jacksonport, which was also the law office of William S. Keith, and a conversation in regard to a sale from Isbell to Brooks of certain lands, in which it was stated they were sold for swamp land scrip, the amount of which he cannot say, but about the sum of two thousand dollars. Brooks had six or seven thousand dollars in swamp land scrip deposited in the office, and witness paid Isbell on the trade for Brooks three hundred and seventy dollars. He thinks Keith drew up a deed, it- was in Keith’s hand-writing, for the land— Keith read the deed. He thinks Mr. Isbell signed the deed in his office, and, at the time spoken of, “ Mr. Isbell handed the deed, after he signed it, to Mr. Brooks or Keith; Keith at the time was acting as attorney for Mr. Brooks. I stated to Mr. Brooks privately that the deed was imperfect for the want of the relinquishment of the wife’s dower.” Isbell, afterwards, in talking about it, offered to take the deed home and get his wife’s signature and return it. Thinks Brooks handed the deed to Keith, who wrote out a relinquishment of dower and gave it to Isbell, who promised to bring it back in a few days. Brooks directed witness to pay the balance of the scrip on the return of the deed. Isbell entered a part of the land mentioned, about the time of the sale. Isbell afterwards sent an order for sixty dollars in scrip, which witness refused, because the deed had not been returned.
"William S. Keith deposed, that the parties to the suit came into his office and told him to draw a deed for lands that Isbell had sold to Brooks. He drew a deed in fee simple, and handed it to Isbell, who signed and handed it to Brooks, and then he wrote an agreement for them. Brooks told Isbell he would furnish some scrip to enter land (witness thinks part of the land sold), and Silvey, as Brooks’ agent, let him have it. He let him have three hundred and seventy dollars. Witness attended to Brooks’ land transactions, and knew more about them than Brooks did himself. After this was through, Brooks asked him if it would not be necessary to have Isbell’s wife’s relinquishment of dower; Brooks handed the deed to Isbell, which he said he would carry home and. have his wife’s dower released, and bring it back in a few days; witness wrote out a relinquishment of dower to be executed. Brooks told Silvey, when the deed was brought back, to pay him the balance. Brooks told Isbell that he wonld not enter any more lands for the people living in his, Isbell’s, vicinity after Mr. Joney, his agent, had carried out what contracts he had made to enter lands in that neighborhood. He thinks Brooks wrote to Joney to that effect, and sent the letter by Isbell.
On the part of the defence it is proven:
William H. Swan heard Brooks say, in the presence of Isbell, that he had purchased Isbell’s place in Lawrence county, and that Isbell had the deed, and he was to take it home on the same day and sign and acknowledge it.
Thomas J. Isbell deposes, that defendant brought home from Jacksonport a blank deed from himself to Brooks. Isbell and his wife both signed it, and called upon him to witness the same, which he did.
It appears that a certain paper about a mill, which is also a subject of litigation, was executed on the same day, the twenty-fourth day of June, A.. D. 1853; that a portion of the lands included in the deed -was entered also on the same day, and this furnishes supporting and corroborating testimony to that of Keith. Keith swears positively to the signing and delivery; Silvey, it is true, says he thinks it was signed, but he adds positively that it was delivered, and Isbell afterwards received it back, and he privately suggested the defect. It is impossible to think that the deed was not signed and delivered at Jack-sonport without thinking these witnesses have not sworn the truth; on the other hand, one can well imagine the witnesses swore the truth, and Isbell might have been mistaken in the fact about the signing by Isbell. The testimony, upon our minds, leaves the conclusion that the deed was signed and delivered at Jacltsonport, and afterwards taken by Isbell for a special purpose, and, as a consequence, that the title to the lands vested in Brooks.
It is urged that the evidence is such that it cannot be ascertained what was conveyed by the deed.
The bill alleges that the land conveyed was: S. E. {- 31, N. E. Í- 29, E. £S. E. i 29, S. W. £ S. E. 29, E. £ S. E.£31, S. W. i 28, W. i N. £ 32, S. E. i N. W. ¿ 32, S. W. £ 32, E. £N. E. * 32, N. W. £ 33, Township 17 N., R. 1 E.
The answer, as aided by the appellee’s brief, admits the lands sold to be, S. E. i N. E. i 29, E. * S. E. ¿ 29, S. W. {- S. E. ¿ 29, S. W. 28, N. W. 33, N. E. 32, S. E. N. W. 32, S. W. £ 32, 17, 1; denying that the negotiation extended to the south-east quarter of section twenty-one, to one hundred and twenty acres in the north-east quarter of section twenty-nine, the east half of the south-east quarter of section thirty-one, and one hundred and twenty acres in the north-west quarter of section thirty-two.
It was admitted that the north east quarter of section thirty-two was included in the trade, but it is not so charged in either the original or amended bill as to the west half of the northeast quarter of section thirty-two.
Silvey testifies that the parties were seated around a table, and Isbell presented a diagram, and said that was the way the land lay. The diagram is made an exhibit; thinks it the same one showed by Isbell. Isbell marked the boundaries by d®ts. The witness gives the numbers as he writes them down from the diagram, and they correspond with the answer, except that they include the west half of the south east quarter of section thirty-two, and also included the north-west quarter of 23, but omitted the north-west quarter of 33, the numbers being given in figures. He says that he understood the dotted lines to include the lands sold.
Keith testifies to certain numbers as included in the deed, which correspond with the answer, except that the north-east quarter of section thirty-two is omitted, and the east half of the south-east quarter of section thirty-two is put in the deposition twice. He states that the diagram attached to Silvey’s deposition “ was made out by Isbell and shown to witness, from which he drew the deed above referred to, and by reference to which he now thinks the numbers correctly stated.” Mr. Isbell stated that the lands enclosed by dots were the lands sold to Brooks.
Thomas J. Isbell testifies that the numbers included in the deed were the same as those mentioned in the answer, except he testifies that the west half of the south-east quarter of section thirty-two was included in the deed.
The plat corresponds with the answer, except that owing to some indefiniteness, it may possibly include the west half ot the south-east quarter of section thirty-two.
As Silvey and Keith evidently intend to copy the numbers from the diagram, and as the bill does not allege, nor the answer admit, the west half of the south-east quarter of section thirty-two was included in the deed, and it not appearing positively that this tract is included in the plat, the numbers inclu ded in the answer will be taken to be the numbers sold by-Isbell to Crooks.
The north-west quarter of section thirty-three is alleged in the bill, admitted in the answer and proved by the witnesses to be one of the tracts conveyed, and it appears'also that these lands had before been entered by the complainant and one Brinkley. Of course the court will not compel a conveyance of this tract, but will deduct from the purchase money the amount that would have been necessary to have entered this land at the swamp land office had it been vacant.
The east half of the north-east quarter of section thirty, appears by the ceriificate of the auditor, Huey, to have been entered by Brooks before the alleged sale by Isbell. This fact is also established by the evidence of Board, a witness. This must be excluded from the decree, and the amount which it would take to enter it in the swamp land office, taken from the consideration.
It is urged that the appellant has not a right to the interference of equity, because he did not do equity.
It clearly appears that a part of the consideration was paid; that Isbell expected to get the balance from Silvey, as he drew an order on him for scrip afterwards. It further appears that a demand was made for the deed, and refused on the ground of a breach.of contract and not for want of payment, or readiness to pay. The contract alleged to have been violated was that Brooks should enter no more land in the neighborhood for others. This contract is alleged in the answer and proved with essential modifications by Keith, but there is no certain competent proof that either the contract alleged, or the one proved was ever violated. Isbell, it is true, makes some statements about entries made and numbers sent to the land office. Whether these lands were ever entered, the witness does not appear to have any means of knowledge, or if he does, he does not state it. He does not state that these lands were in Isbell’s neighborhood. If there was a valid and binding contract, and it had been violated, then a court of law could have enforced it. It is no ground for refusingto deliver a deed which he had already executed and delivered, and which he had received back for a specific purpose.
It is insisted that this contract was abandoned by Brooks. The deed was returned to Isbell for a specific purpose, and did not amount to an abandonment of the contract. See authorities cited in Strawn vs. Norris et al. 21 Ark. 82. Brooks wrote to Isbell, November 3d, 1853, “Mr. Isbell, I will be al, Mr. Bate’s to-morrow, and would like to see you, I am ready to move my hands, and would like to have the lands I contracted for last June.”
Beal deposes, in the autumn of 1853, he heard Brooks say to Isbell that he would trade one thousand dollars worth of goods for his place, which Isbell refused.
Kely Isbell testifies, about the 4th of November, 1853, Brooks asked Isbell if he still considered it a contract, and Isbell said he did not, as Brooks had not complied with his contract. Brooks seemed to blame his agent, was sorry he had forfeited, his contract — hoped that Isbell was not disappointed, and thought Isbell would get more for it, and proceeded to suggest a second trade for the land. Brooks said he had not paid anything to Isbell.
The whole of this testimony cannot prove more than he thought he could not hold the land. He does not. do any act to relinquish. He does not voluntarily surrender any claim, but he seems in the conversation to think he had not the title.
The Supreme Court of Massachusetts held, in the Boston Hat Manufactory vs. Messinger, 2 Pickering, that the admissions of the legal effect of a contract cannot bind the party. In Moore vs. Hitchcock, 4 Wendel, 292, it was held that an admission of a party under a misapprehension of his legal rights does not affect his interest. In the case of Lefevre vs. Robinson, Littell's Select Casis, 22, the case was much stronger for the defendant than for the appellee in this case, and the court hold “ that admissions of an adversary’s right, when that right depends as much cm matters of law as of fact, will not prejudice the party making them.” An admission of title and declarations of acquiescence made under a mistake of law, do not bind the party making them. Hardin Rep. 282.
An admission made and not acted upon is not conclusive against the party making it. 1 Greenleaf Ev. 209.
Whatever the proof may show the admissions to be, we hold that he is not bound b} them so as to prevent a recovery.
It was alleged in the bill, that a part of the agreement was the construction of certain improvements upon the lands sold, and the answer admits the agreement, which is as follows:
THE STATE OF ARKANSAS,
County of Lawebnob.
Whereas, I, Josiah H. Isbell, having this day sold to W. P. Brooks, my plantation, where I now reside, also the farm known as the Bently farm, in said county, situate on the southwest quarter of section thirty-two in town 17 north, of range 1 east, I, by these presents bind myself, by the first day of February, A. D.- 1854, to build and put on the last mentioned place, or premises, a good gin-house, pick-room and press, with a good set of running gear, a good gin stand and horse mill, all in good complete style and ready for running, to be completed in a good workmanlike manner, and of good materials.
In testimony whereof, I have hereunto set my hand and seal this 24th June, A. D. 1853.
J. H. ISBELL, (Seal.)
As matter of defence, the answer sets up that the timbers were got out at the time of the contract on vacant land, and that Brooks entered the land and would not let him have the timbers.
It is proven that one Joney forbid the removing of the timber by public notice, and witness says he was Brook’s agent, and that Brooks entered the land, and then goes on to say that Brooks said he did not believe the land entered, but if it was entered to take the timbers axid use them.
The testimony does not show that Isbell was prevented from building by acts of Brooks; but on the contrary, it appears that he intended to violate his contract soon after it was made.
It was proved that the improvements which were to be made were of the value of six hundred and fifty dollars.
The decree will be reversed, and a decree entered for appellant for the following lands:
S. E. of the N. E. section 29; S. W. ¿ section 28; E|- of the S. E. ¿ section 29; S. W. \ of the S. E. £ section 29; S. E. of the N. W. section 32, S. W.¿ section 32, Township 17 North, Range 1 East;'and if the complainant elects he will be permitted to file a supplemental bill for the west half of the northeast quarter of section thirty-two, but to be confined to that purpose alone, and upon the papers to decree a title for that tract also.
The chancellor will deduct from the price (two thousand dollars) six hundred and fifty dollars, the value of the improvements, three hundred and seventy dollars, the amount paid on the trade, the amount necessary to enter at the swamp land office the north-west quarter of section thirty-three, and the east half of the north-east quarter of section thirty-two, (which will be taken for the purpose of this calculation, to contain two hundred and forty acres) and upon the balance to calculate interest at the rate of six per cent, until the decree shall be rendered, which will be taken as the sum due from Brooks to Isbell.
Brooks must be required to bring the money into court at the rendition of the decree.
Hon. H. F. Fairchild did not sit in this case. | [
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Mr. Justice Compton
delivered the opinion of the Court.
The plaintiff in error brought assumpsit against Ringo as surviving partner of Ringo & Trapnall — the declaration con taining the money counts only. To reverse the judgment of the court below — which was for the defendant' — the plaintiff brings the case before this court on wi’it of error.
At the trial the plaintiff read in evidence a receipt in the words and figures following:
“We have received of James Lawson, Frederick Notrebe’s “ note, due twelve months after 1st day of April, 1848, for one “ thousand dollars, which is to be appropriated towards the “ payment of two judgments in Pulaski Circuit Court, one in “ the name of William Russell, and another in favor of George “ W. Johnson, against James Lawson, as sheriff of Pulaski “ county,. and which we promise to account for in that way. “ The judgment q£ Russell to be first paid in full, and the resi- “ due on the judgment in favor of Johnson. February 2d, 184,8.
RINGO & TRAPNALL.”
It was then proven that Notrebe was solvent; that by due diligence the above amount could have been made out of him at any time; that the first judgment above mentioned was renr dered on the 10th of December 1846, for $645 19, and the second on the 4th December, 1846, for $543 11; that no executions appeared to have been issued on the judgments; nor did satisfaction thereof, in whole or in part, appear to have been entered. That Ringo & Trapnall were the attorneys for the plaintiffs in obtaining the judgments, and that Lawson died in January, 1855.
The plaintiff requested the court to instruct the jury as follows :■ 1st. “That if the jury believe from the evidence, that the sum of money mentioned in the receipt of Ringo & Trap-nall, could have been made by the exercise oí due diligence, the defendant is responsible, and if he fails to íáiow that he has appropriated the same to the payment of the judgments, also mentioned in said receipt, they must find for the plaintiff; and 2d: “That the solvency of Notrebe being established, it is a fact from which the jury may infer the collection of the money, and it is incumbent on the defendant to prove that it was not collected.”
The court refused so to instruct the jury; but charged them, at the request of the defendant: “ That unless it appeared from the evidence that the note mentiond in the receipt, was actually collected, and was not appropriated to the payment of the judgments, they should find for the defendant.”
That the court properly refused to give the instructions moved by the plaintiff we think there can be no doubt. The first instruction was foreign to the issue made by the pleadings, if, as is insisted,the money could have»been made out of Notrebe by the úse of due diligence, and Ringo & Trapnall from negligence failed to make it, the plaintiff should have declared specially. He was not entitled to recover on the common count for money had and received; As to the second instruction, it may be remarked that, though Notrebe was shown to be solvent, still, that fact did not raise the legal presumption that Ringo and Trapnall had received the money on his note so as to shift the onus probandi, and make it incumbent on them to show they had not received it. Conceding the solvency of Notrebe to have been a circumstance in evidence, tending to show that the money had been received, it was entitled to no such weight as that given to it by the latter clause of the second instruction.
The rule deducible from the adjudged cases, is, that to maintain assumpsit for money had and received, it must appear that the defendant had received money due to the plaintiff or something which he had received as money and instead of it, or which he had actually or presumptively converted into money before suit brought. Hatten vs. Robinson, 4 Blackf. 479; Beardsley vs. Root, 11 John. 464; Witherup vs. Hill, 9 Serg. & Rawle 11.
It does not appear from the face of the receipt that Ringo & Trapnall received Notrebe’s note as money. They were the attorneys who had recovered for their clients the judgments mentioned in the receipts, and upon a fair construction of that instrument, they received the note for collection with the undertaking, on their part, to appropriate the proceeds of it to the payment of those judgments. And, as has been seen, the sol vency of Notrebe, though a presumption of fact, to be weighed by the jury, and taken for its worth, was not a presumption of law, that the note had been converted into money. Hence the instruction given at the instance of the defendant was applicable to the state of case made by the evidence, and was striefly the law'.
Finding no error in the record, the judgment must be affirmed. | [
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Hon. Harris Flanagin, Special Judge,
delivered the opinion of the court.
This was an action of replevin in the cepit and detinel against the defendant as administratrix of Robert J. Raiford, for twelve slaves. The defendant intermarried with John B. McDonald, and the case was ordered to progress in the names of the husband and wife, as administrators de bonis non of the intestate.
The defendants afterwards plead as follows:
First. The defendant did not unlawfully detain; second, the defendant does not unlawfully, detain; third, the defendant did not unlawfully detain at the commencement of this suit; fourth, the defendant did not at the institution of this suit unlawfully detain; fifth, limitation of two yeárs; sixth, limitation of three years; seventh, non accrevit within five years; eighth, the defendant has been in peaceable possession for more than five years; ninth, the defendant and Raiford have had peacéable possession for more than five years; tenth, the defendant and Raiford have had peaceable possession for more than five years without demand; eleventh, the defendant and Raiford have been in the peaceable and uninterrupted possession for five years; twelfth, the defendant has had peaceable and uninterrupted possession for more than five years; thirteenth, the defendant and Robert Raiford have had peaceable and adverse possession for more than five years fourteenth, that the slaves were the property of the defendant as administrator; fifteenth, non cepit; sixteenth, property in the defendant as administrator de bonis non.
The first four pleas were to the first count; the fifth to the thirteenth inclusive, are to both counts, and the last three to the second count. The second, third and fourth pleas were stricken out on motion; a demurrer was sustained to the fifth, seventh and tenth pleas, and the thirteenth plea was withdrawn before trial.
The object of pleading is to ascertain the matter in dispute between litigants, by letting them affirm and deny specific facts upon which the relief asked depends, and the truth of which facts in afterwards to be ascertained by a jury. When two or more are filed which would be sustained by the same testimony, a court should, upon motion, compel the pleader to elect upon which plea he will stand. Lawson et al. vs. the State, 5 Ling. 36, and Sumpter vs. Tucker, 14 Ark. 185. Pleas of this nature are only calculated to render obscure the matters in litigation.
In this case there are sixteen pleas, more than twenty demurrers, fourteen replications, as many rejoinders, and five surre-joinders. It would be a wonder if a judge in the hurry of nisi frius practice, should decide the law on all these points correctly.
This case was tried on the first, sixth, eighth, ninth, eleventh, twelfth, fourteenth, fifteenth and sixteenth pleas. The first, sixth, eighth, ninth, fourteenth and fifteenth pleas will admit all the defence offered below. The eighth and ninth pleas would be sustained by the same testimony as. would be required by the twelfth and thirteenth, and the same testimon}^ would sustain the fourteenth as would be required to sustain the sixteenth.
It will only be necessary to notice the eighth, ninth and eleventh pleas to decide the legal points raised in relation to the pleadings, and the only question presented is whether a demurrer is rightly sustained to a replication or surrejoinder, which responds to a plea oí five years peaceable possession, or a rejoinder setting up the same fact, “ that the possession was not adverse,” or “ that the defendant held as bailee,” or “ that the negroes were loaned to defendant, and that he held them as such.”
Our statute prescribes that “ peaceable possession of slaves etc., for the space of five years shall be sufficient to give the possessor the right of property therein.”
It has been often ruled, and may be said to be settled law? that where a right of property is given by statute it is sufficient for the pleader to assert his claim in the words used by the lawmaking power. In this case, it is five years peaceable possession that gives title, and the defendant can only be required to plead five years peaceable possession, and can only be required to prove what he pleads. But what does the word possession, .when used in acts of limitation, mean?
It will hardly be contended that possession, as used generally in statutes of limitation, must not be adverse, or in other words, under claim of title, however unfounded that claim may be. Wood vs. Bucker, 2 Har. & M. Hen. R. 145; Callis vs. Totson, 7 Gill & Johnson's Md. R. 81; Art gel on Limitation, 829, 896, et seq.; Weeks vs. Weeks, 5 Iredel N. C. 111.
In regard to the statute under which this defence is interposed, this court held in Pryor vs. Ryburn, that Ryburn’s title was good, for the reason that his possession was adverse. Pryor vs. Ryburn, 16 Ark. 671. In Machin vs. Thompson, 16 Ark. 199, the possession was adverse, and the court seem to rely upon this in sustaining the case. In Crabtree vs. McDaniel, the answer says the defendant had “ continuous peaceable possession as his own property,” and the court say there was no evidence of any adverse claim. 17 Ark. 222. In Harriet vs. Swan, 18 Ark. 399, the defendant set up five years possession. The court say “ But the difficulty in the vray of that theory is the want of the indipensable prerequisite, adverse possession on her part. In Saddler et al. vs. Saddler, 16 Ark. 628, there was adverse possession. In Anderson vs. Du.nn, 19 Ark. 650, the court say, that under the general issue the defendant may have title to a slave by adverse possession and lapse of time.
The court seems, in all these cases, to have studiously avoided the raising of an inference that possession was sufficient if it was not adverse, while in Harriet vs. Swan, it is positively decided that the possession must be adverse. Was this question a new one we would have no difficultly in holding that a possession under another and not adverse to the true owner, would not be sufficient to sustain the defence.
Under this plea of peaceable possession for five years when possession was proven, it would be presumed to be adverse, unless the proof showed the contrary, and the finding such a plea proven would include the fact that the defendant had been in adverse possession for five years. The plaintiff, by a replication traversing the plea and concluding to the country, could introduce any proof which tended to show that the defendant did not have adverse possession. This court has ruled in several cases that a party is not prejudiced by a demurrer being sustained, when the same evidence which would support the pleading could be introduced under other pleading in the case.
The plaintiff replied to the eighth plea; first, traversing the plea and concluding to the country; second, the possession was not adverse; third, that the negroes were received by Raiford as a loan.
The defendant took issue to the first, demurred to the second, and filed three rejoinders to the third. The plaintiff filed surre-joinders to the second and third rejoinders, to one of which the defendant demurred. The court sustained the demurrer to the second replication and also the demurrer to the surrejoinder, and held chat it be held to reach back to and be sustained to the third replication.
As the evidence which would be required to sustain the second and third replications, could be given, under the first replication, the plaintiff was not prejudiced by the demurrers being-sustained. The demurrer to the second replication to the ninth and eleventh pleas is a denial of the adverse possession, after a first replication traversing the possession and concluding to the country. The plaintiff was not prejudiced by the ruling. The same conclusion results from an examination of the judgment on the demurrer to the surrejoinder to the third and fourth replications to the ninth and eleventh pleas.
There were twenty-five instructions asked for the plaintiff, and eight for the defendant. Without undertaking to review all the instructions the court will adjudicate the principles necessary to a decision.
It is claimed by the plaintiff that Robert J. Raiford, many years since, married a daughter of the plaintiff, who placed in the possession of Raiford and wife, some of the negroes sued, for, who aie the parents of the vest. That Raiford held at the will of Spencer, and that his wife was dead.
There is in the record a copy of an act of the legislature of North Carolina, which makes it indispensable to the gift of slaves that it should be evidenced by writing, proven or acknowledged as conveyances of land, and registered in the register’s office.
In Shelby vs. Grey, 11 Wheaton, 361, the defendant claimed slaves by a parol gift and possessi m for five years, in the state of Virginia. At the time of the alleged gift, there was an act which made a parol gift of slaves either void or voidable. The court held that if the gift was void or voidable, still the possession going with the gift, the statute gaAe title by limitation.
In Prince et al vs. Broach, 5 Sneed, 318, a slave was claimed by a gift by parol and limitation. At the time there was a statute which made a gift of slaves by parol void. The court say, “ But an adverse possession by or for the donee of three years under such invalid gift will make a good title. The same principle is decided in Wheaton vs. Weld, 9 Humphries, 773.
A parol gift accompanied with possession of land was held by the Supreme Court of Massachusetts, as vesting title in the donee. G Mass R. 337.
These authorities are in point to show that if there was a gift and an adverse possession, our statute would run notwithstanding the gift was void.
It is contended by the appellees that the statute could not run while the property was in Raiford’s possession in North Carolina. This court has decided in Blackburn vs. Morton et al. 18 Ark. 384, that when parties come into this state they must be held as submitting themselves to all laws in force for the redress of grievances. The court will not disturb that decision-
It is claimed that if Raiford held the negroes as bailee, then no time can change the relation. If Raiford received the negroes as a gift and held them adverse to Spencer, then, as we have held, the limitation law would run from the time he received them. Rut if he received them as Raiford’s property and held them as such, until within the period of limitation, then of course the act does not apply. If Raiford received them as bailee, then that relation is presumed to remain until it be shown to have terminated, or the bailee have indicated an intention to hold adversely by acts or declarations notorious in their character and inconsistent with the title of the bailor.
A demand is necessary in replevin in the dotinet .when the defendant holds as the bailee of the owner. Rut if he has determined that bailment, by any act which is open and notorious in its character and utterly inconsistent with the title of the plaintiff, then no demand is necessary.
In this case the slaves were inventoried and appraised as the property of Raiford, and if there had been a bailment before, by this act a demand was rendered unnecessary: on the other hand, if Raiford had claimed them as his in his life time, the plaintiff could only fail on the merits, and not for the want of a demand.
The court instructed the jury that a demand was necessary, which was erroneous. The court also refused to give instructions for the plaintiff, which indicated that adverse possession was necessary to sustain a plea of the statute of limitation.
The case is reversed with directions to the court below to sustain any motion to require the defendant to elect between pleas which may be in substance the same.
Mr, Justice Compton did not sit in this case. | [
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RHONDA K. WOOD, Associate Justice
|, This appeal returns to us after we remanded for the circuit court to hold a hearing on two of Robert Sandrelli’s claims for ineffective assistance of counsel. After holding the hearing, the court denied relief on both grounds. We affirm the circuit court’s judgment.
Robert Sandrelli was charged with four counts of rape. The victim was Sandrelli’s fourteen-year-old son. A jury trial was held in August 2013. This first trial resulted in a hung jury, and the circuit court declared a mistrial. A second trial was held a month later, which resulted in Sandrelli being convicted on all four counts. Our court of appeals affirmed the conviction in Sandrelli v. State, 2015 Ark. App. 127, 2015 WL 831195.
Following direct review, Sandrelli filed a petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1. Sandrelli propounded three claims of ineffective assistance of counsel that he alleged occurred at his second trial: (1) defense counsel was under emotional and professional stress; (2) defense counsel failed to call any character witnesses; and (3) defense counsel unilaterally decided that Sandrelli would not testify. The 12circuit court denied Sandrelli’s petition without holding a hearing. Sandrelli appealed to this court, arguing that he was entitled to a hearing on his claims.
We affirmed in part and reversed and remanded in part. See Sandrelli v. State, 2016 Ark. 103, 485 S.W.3d 692. We held that Sandrelli’s first claim was conclusory; therefore, he was not entitled to a hearing on it. But we remanded for a hearing on the last two claims. Because the circuit court apparently struggled to understand why this court was remanding the matter and did not understand the concept of a “control-case,” we once again explain. This is similar to control-groups in scientific experiments. Here, two different trials took place, with two different outcomes. The first trial resulted in a hung jury and the second trial resulted in a conviction. Sandrelli’s petition for postconviction relief claimed that the only fact distinguishing the two trials was the lack of defense witnesses at the second trial. The circuit court, based on the record alone, found that counsel and Sandrelli “must have agreed no witnesses would be called.” This was speculative. We held that the circuit court could not conclusively determine, without some evidence, that counsel’s decisions were supported by reasonable professional judgment. The circuit court should not guess the reasons behind the trial counsel’s decisions; rather, the court should establish those reasons based on evidence presented at a hearing.
On remand, the circuit court held a hearing on these two claims. Sandrelli testified at the hearing. He stated that he testified in the first trial and intended to testify again at the second trial. Yet he claimed that his attorney, Ray Spruell, never asked him to make a decision whether to testify. Rather, Spruell informed him, after the first day of trial, that he | awould not be testifying. Sandrelli also stated that Spruell never discussed with him his decision to call no character witnesses at the second trial.
Spruell testified as well. He stated that while the first trial ended in a hung jury, the vote was 11-1 in favor of conviction. Spruell thought the character witnesses who testified in the first trial played an insignificant role in the jury’s decision: “The bottom line is I never felt that character witnesses were the key to why we got a hung jury the first time around.” For instance, Spruell noted that one witness, Betty Turner, was nervous on the stand and agreed on cross examination that she “assumed that if something was going on [the victim] would keep quiet and wouldn’t say anything about it.” Spruell also noted that the witnesses appeared to be surprised when they were confronted with Sandrelli’s earlier conviction-for domestic battery against his son,
Spruell testified that the best character witness, Woodrow Star, told him between the first and second trials that he would no longer be a good character witness for Sandrelli. According to Spruell, Star told him that Sandrelli had displayed behavior that would cause Star to change his testimony about Sandrelli’s truthfulness. Star testified as well, but he denied that this interaction ever took place.
Finally, Spruell stated that he told San-drelli that the decision whether to testify rested with Sandrelli. Spruell asserted that he recommended that Sandrelli not testify: “I knew that Mr. Sandrelli didn’t like to testify in the first [trial]. So, I explained to him that it was going to be rough on him the second time around and I didn’t think he would look good up there.” Spruell stated that Sandrelli agreed that he should not testify. One particular concern Spruell had was Sandrelli’s testimony during the first trial. When questioned about his 1 ¿domestic-battery charge against his son, Sandrelli initially maintained that it was a football injury. Yet when pressed by the prosecution, Sandrelli admitted that the he had thrown his son across the room. This spontaneous admission contradicted a video-recorded interview that was admitted during the second trial, wherein Sandrelli “adamantly” denied to the police that he had ever thrown his son. Spruell was concerned how the inconsistencies would affect Sandrelli on cross.
The circuit court issued a written order denying Sandrelli’s petition. The court found that counsel’s decision to call no witnesses in the second trial “was a sound professional judgment by an experienced advocate and that it was reasonable.” The court further found that “not only was counsel’s advice [whether to testify] a matter of professional judgment of a very experienced attorney, but the decision was made by the Defendant.”IFinally, the court noted that Sandrelli’s testimony was “self-serving, inconsistent, and totally unreasonable and not believable.”
We do not reverse the grant or denial of postconviction relief unless the circuit court’s findings are clearly erroneous. Lemaster v. State, 2015 Ark. 167, 459 S.W.3d 802. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.
Under the two-prong standard from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a petitioner seeking postconviction relief must show that his counsel’s performance was deficient and that the deficient performance resulted in prejudice. See Feuget v. State, 2015 Ark. 43, 454 S.W.3d 734. Under this standard, the petitioner must first show that counsel’s ^performance was deficient. Id. This requires a showing that counsel made errors so serious that counsel deprived the petitioner of the counsel guaranteed to the petitioner by the Sixth Amendment. Id. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Id. Both showings are necessary before it can be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. There is no reason for a court deciding an ineffective-assistance claim to address both components of the inquiry if the defendant makes an insufficient showing on one. Fukunaga v. State, 2016 Ark. 164, 489 S.W.3d 644. As we discuss below, counsel’s performance was not deficient, so we decline to address whether Sandrelli suffered prejudice.
“There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and the petitioner has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment.” Feuget, 2015 Ark. 43, at 4, 454 S.W.3d at 738. “Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of counsel’s professional judgment and are not grounds for a finding of ineffective assistance of counsel.” Noel v. State, 342 Ark. 35, 41-42, 26 S.W.3d 123, 127 (2000).
Sandrelli’s argument on appeal takes issue with the circuit court’s performance as a fact-finder. For example, he argues that the circuit court “focuses on the points that would support the trial counsel and ignores the facts that would support the appellant.” He highlights testimony from Woodrow Star, who testified that he never told Spruell that he Rhad reservations about testifying in the second trial. Sandrelli notes that Star’s testimony contradicted Spruell’s testimony. However, as we have repeatedly held, it is axiomatic that credibility determinations are within the province of the trial court. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. When there is a conflict of testimony, it is the trial court’s job to resolve it. Atchison v. State, 298 Ark. 344, 767 S.W.2d 312 (1989). The circuit court credited trial counsel’s testimony and concluded that the decision to call no character witnesses was based on reasonable professional judgment. This ruling was not clearly erroneous.
We also affirm on the second point. Sandrelli argues that the court erred when it “did not address the fact brought forth on the failure to Spruell to get on the record the decision of appellant to not testify.” We have held in an earlier case that the failure to make a record on the waiver of the right to testify does not constitute ineffective assistance of counsel. Williams, 2011 Ark. 489, at 14, 385 S.W.3d at 237. In any event, the court credited Spruell’s testimony that Sandrelli agreed not to testify and found Sandrelli’s contrary testimony unbelievable. Spruell explained that in the first trial the State did not play the video interviews with Sandrel-li; however, in the second trial, the State did introduce the video. Spruell was concerned by Sandrelli’s demeanor in the video as well as the video interview depicting Sandrelli giving different answers than he gave on cross-examination in the first trial. Spruell stated that he explained these facts to Sandrelli and that Sandrelli agreed that he should not testify. The circuit court did not clearly err when it found that Spruell’s advice to not testify was based on reasonable professional judgment.
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Mr. Justice Faiechild,
delivered the opinion of the Court.
This case was either decided erroneously by the Circuit Court sitting as a jury, or a very bad reason was given for a good decision. For the plea of the defendant admitted that to be a fact, which the court declared to be its reason for finding against the plaintiff. The defendant having pleaded the general issue, it was thereby admitted that Sarah P. Williams was what she described herself to be in the declaration, the administratrix of the goods of Samuel N. Williams. Kowanchi vs. Askew, 17 Ark. 596.
But by the rule of proceeding at law, the judgment, despite the reason given for rendering it, must be regarded as a judgment, and the reason assigned for the finding of the court must be disregarded. That reason is no part of the judgment, is simply a misconception by the court of what was to be proved under the pleadings. It is the same as any judgment that is founded upon a verdict, that is against the evidence; as here, no evidence was needed to show the representative character of the plaintiff. But the recital in the judgment order of the want of evidence, there being no such defect, does not make the error of the court a matter of record. We must treat all but the judgment as irrelevant, as no part of the record.
In Hezekiah vs. Montross, 21 Ark., in which objections to the evidence were spread upon the record entry, we held that such statement was surplusage, and could not be regarded as part of the record, not being brought there by bill of exceptions. The same principle applied to this case, will cause the reason of the judgment to be disregarded, as forming no part of the record.
There was no motion for a new trial, no prayer that the court should hold evidence of the grant of administration to the plain, tiff unnecessary; the attention of the court does net seem, during or after the trial, to have been called to the point on which it erred. The case is clearly within the rule of State Bank, vs. Conway, B., 3 Ark 354, and the numerous cases in which it has been followed; and the application of that rule being insisted upon, the judgment must be affirmed. | [
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Hon. Harris Flanagin, Special Judge,
delivered the opinion of the Court.
The trustees of the Real Estate Bank, on the 29th day of January, A. D. 1850, filed their bill in chancery against the present defendants, David R. Coulter and Turner H. Buckner, and it was heard as to Coulter and Buckner and a decree for them. The trustees appealed, (See Biscoe et al. vs. Coulter et al. 18 Ark. p. 23,) and the decree was affirmed. By consent the case was not disposed of as to the present defendants before appeal, and the case was sent back to be determined as to them. .Upon the hearing the bill was dismissed as to the remaining defendants. In the meantime, the case had been ordered to progress in the name of Peay as receiver, and Peay appeals. The facts of the case, so far as it affects Coulter and Buckner, are stated in the opinion, and will not be stated here, except to show the case as against the appellees.
The bill charges that Benjamin H. G. Hartfield borrowed of the Bank, on his promissory note with Robert Hamilton and Benjamin F. Hawkins as securities, two thousand nine hundred and forty-five dollars and thirty-three cents, on the 19th of April, 1840; also on his writing obligatory with William Moss and Henry K. Brown as securities, $ 1,566 67, on the 21st December, 1839. Suits were brought at law against the securities, and a foreclosure had in chancery on lands mortgaged to the Bank. Hartfield’s securities applied to the trustees and proposed that Hartfield should give up certain lands to the trustees and the debts should be released. The legal title of a part of the lands was in the name of William Wright. The complainants consented upon the representations of the securities, and especially upon the representation of Brown and Hartfield, that the title to said land was good and unincum-bered. The securities induced Hartfield to return to perfect the agreement, and it was perfected at the earnest solicitation of Brown, Moss and Hawkins, and their distinct assurance that the land was unincumbered and the title good. The agreement was perfected the 15th April, 1846. A part of the lands were conveyed by William Wright.
To secure Hawkins and Hamilton, Hartfield had conveyed Ihnds to them, which were included among the lañds which were charged with the debt in the chancery suit, and decree without objection on the part of Hawkins and Hamilton. Some of these lands were stricken off to the State, on the third day of November, 1845, and were sold to Coulter and Buckner, February 28th, 1848. The forfeiture was not discovered until the summer of 1849. Hamilton is dead and insolvent. Prays that the agreement as against the securities be set aside, and that the value of the lands conveyed by Wright be decreed against him.
Complainants exhibit deeds from William Wright to trustees for some of the lands, amongst which are the east half of northwest quarter of section one, south-east quarter of section one, fractional west half of south-west quarter of section six, with covenants of seizin, against incumbrances and generaj warranty.
William Moss filed his answer August 18th, 1854 — acknowledges his original liability as charged; denies that he did anything whatever in making representations to the trustees in relation to the land, or in inducing them to receive the land in lieu of debts, or that he knew anything about it until it was done — urged Hartfield to return, to release him from his liability, but did not suggest any particular way of doing so — -knows nothing of the land and incumbrances except from complainant’s bill.
Benjamin F. Hawkins on the same day filed his answer. He acknowledges his liability as charged in the bill: Denies that he ever applied to the trustees, and proposed to them to take the land and release the debts: Denies that he ever made any declaration or statement to the trustees in regard to title, or ever gave them any assurance in regard to the title: Admits that he urged Hartfield to return and release him, but did not suggest any particular way of doing so. He knows nothing of the title except from complainant’s bill.
Henry K. Brown, on the twenty-first day of August, 1854, filed his answer: Admits the original liability as security: Applied to the trustees and asked them to take Hartfield’s land and release the debt: Denies that he made any representations or assurances about the title to the land in controversy, except that there were no mortgage or judgment liens on record. He was present and assented to the consummation of the agreement: The agreement was made between Hartfield and the trustees.
William Wright answers: Benjamin H. G. Hartfield made his deed voluntarily to defendant, for the lands mentioned in the deed to complainant, without consideration; requested him to hold the lands, and convey them to complainants upon such agreement as he, Hartfield, might afterwards make: Did not know that there was any incumbrance for taxes, and made no representations in relation thereto. He was a trustee, and complainant knew it — never received anything from complainants as consideration: Refused to execute the deed with the covenants, but was persuaded to do so under an assurance that he would not be liable. Propounds several interrogatories to the complainants.
The trustees in response to the interrogatories propounded: Admit that George Hill as trustee, and the attorney of the Bank had information that Wright held the lands as trustee for Hart-field: That no consideration passed from the trustee to Wright for the deed and that Edward Brittin was the agent of the trustees.
The case abated as to Robert Hamilton.
The parties made an agreement whereby the case was to be heard upon the bill and exhibits, answers and exhibits, depositions, interrogatories and responses, subject to objection for want of competency and relevancy.
At the hearing there was read the deposition of Albert Pike, and William Wright.
A. Pike’s deposition, taken December 12th, 1854: He was attorney of the trustees, and had control of the claims against Hartfield; he had taken his negroes from Sevier county to Texas: Brown first made the proposition to take Hartfield’s land in the payment of his debts: He assured me that the lands were worth the debt; witness declined to have anything to do with it, and referred Brown to Hill the trustee: After-wards, Brown and Hawkins came to me, and urged me to advise the taking the lands, and urged various reasons for so doing. I was unwilling to consent, because most of the land was mortgaged to the Bank, and I doubted their value: Witness consented not to oppose the taking the land because the defendants were securities: Nothing was said about the lands being.sold for taxes, and witness supposes defendants did not know it: Had Hartfield made the proposition, it would have been rejected: George Hill assented, and I do not recollect that he consulted me as to the propriety of doing so: Wright received nothing for his deed, and witness understood that he held the lands for Hartfield: Brown or Brown & Hawkins told me that the title was in Wright: “ I have no recollection that General Hill consulted me about the matter at all. I am sure I had nothing to do with making the arrangement to take the land. The trustees left such matters to each trustee in his own district, and except in cases where they referred a matter of the kind to myself, or to one trustee and myself, it W'as no part of my business to meddle with it.”
William Wright, on the the 20th day of December, 1843, testified: Benjamin H. G. Hartfield, in October, 1845, handed me a deed for some lands to convey to the trustees if they accepted a proposition he had made to take his lands and release his debts: I applied to George Hill to see if the trustees had acceded to Hartfield’s proposal, and was told that they would take one-third of the lands and release Brown; which I told him I had no authority to do, but only upon Hartfield’s proposition being accepted. The proposition was afterwards accepted-When I made the deed reference was made to Hartfield’s stock note, and it was understood that the deed was made in satisfaction of all of Hartfield’s indebtedness. In making this arrangement with Brittin & Hill I acted, and no other person. The securities had nothing to do with it.
The charge as against Wright is, that he had the legal, title to certain lands on the third day of November, A. D., 1845, and on that day the lands were forfeited to the State of Arkansas for the non-payment of taxes, and that on the fifteenth day of April he conveyed the lands to the complainants with covenants of seizin, general warranty, and against incumbrances. It is evident that whatever remedy the plaintiff’s had, it was at law, unless upon some principle of chancery jurisdiction, relief might be had against him on the ground that he was a necessary party to the suit, and after he was once in court the chancellor would retain the case and give relief without sending the complainants to a court of law.
The rule as to party defendants, is, that those only shall be made parties against whom a decree may be had, Storifs Equity Pleadings 231; Trecothick vs. Austin, 4 Mason R. 42; but this rule is qualified (if it can be called a qualification) by the rule that a defendant, generally, has the right that all persons, who would be liable over to him in case of decree against him, should be made co-defendants, /Stones Eq. PI. 173; 1 Daniel Chancey Practice 329; Wiser vs. Blackly, 1 John. Ch. Rep. 437.
In this case, if the complainants had obtained a decree against Coulter and Buckner, they would have had no remedy as against Wright, and the only relief asked against him was in case the relief was denied as against Coulter and Buckner, and then for the breach of the covenant; upon which the remedy was strictly legal.
That Wright was not a proper party, is sustained by,the Supreme Court of Kentucky. 4 Bibb 223. The complainant brought his bill for title against a claimant, and, also, against the complainant’s warrantor and the vendor to his warrantor for damages for breach of warranty in case he failed in his claim for title. The court decided that neither the immediate or remote vendor was necessary parties, and the court had no jurisdiction as against them.
In Watkins heirs vs. Owen, 2 J. J. Marshall 142, there was a bill alleging an outstanding title, and seeking for an adjustment of the title, and in case the oustanding title should be found to be superior, that he should have damages against his warrantor. It is decided that a court of equity, as against the. vendor, had no jurisdiction.
When these authorities are considered in connection with the facts, the conclusion is inevitable, that Wright was not a party against whom á decree could be had, nor was he a party against whom Coulter and Buckner could have had a decree, had they been unsuccessful.
The bill having been properly dismissed as to him, the question arises, was his deposition, taken for his co-defendants, competent evidence for them ? His deposition was read by consent, subject to objection on the grounds of competency and relevancy. This court has ruled that this agreement cures the objection that the deposition was taken without an order of court. Pryor et al. vs. Ryburn, 16 Ark. 671.
The remainining objection, that he was interested, does not appear to be sustained by the facts. If satisfaction is had from Moss, Brown and Hawkins, then there would be no recovery against him upon his covenants of warranty., At all events the discharge of Moss, Brown and Hawkins could not help to discharge him from a broken covenant.
These preliminaries being determined, we have to see whe.ther the charges of the bill as against Moss, Brown and Hawkins are admitted or proven, and whether the facts charged are sufficient to justify a decree.
The charge in the bill rests upon the allegation that the lands were taken upon the false representations of defendants Moss, Brown and Hawkins, that the land was free from incumbrances, and that the title was good. It is specially denied by each of the defendants, that such representations were made, and although partially proven against Brown and Hawkins, it is only by one witness; and even this proof does not bring home the misrepresentation to Hill the trustee. If the misrepresentation had been by the vendor, as a general rule, a court of chancery will not rescind a contract after conveyance on account of mere defect of title, but will leave the purchaser to his remedy upon the covenants. Woodruff vs. Bernie, 9 Paige 443. In this case the vendor averred that he was the owner.
A purchaser of real estate, upon a failure of title, is confined to the covenants contained in his deed, unless in case of fraud. Frost vs. Raymond 2 Caines Rep. 188; this rule is re-affirmed in Abbot vs. Allen, 2 John. Ch. Rep. 519.
In Edwards vs. McLeary, Cowpers Eq. Rep. 305, there was a concealment of material facts known to the vendor, and the court rescinded the contract on the ground'of fraud alone. <
In Beall vs. Seively et al. 8 Leigh Rep., the court .held, in order to have a contract rescinded in equity, after deed, the complainant must show first, a defect in title; second knowledge and concealment by the vendor; and third, ignorance on the part of the vendee.
In Tolman vs. Green, 3 Sandford 439, it was held, that after deed the vendee must rely on it alone, except for fraud. Falsef representations are not ground of equitable relief, unless the vendor knew them to be false, and the vendee had no means of discovering their falsity.
In this case, waiving all questions as to the amount of testimony necessary to overturn the answer, it does not appear that the vendors, Hartfield and Wright, ever made any representations true or false, about the land ; and if it could be held that Hartfield’s securities are to be bound by their representations, then, according to the testimony of Pike, Moss never spoke upon the subject, but.Brown and Hawkins did make represen tations about their value, which are true, so far as the record goes. He supposes they knew nothing about the forfeiture for non-payment of taxes. Brown, or Brown and Hawkins, told witness that the title was in Wright.. The witness does not recollect that he ever communicated the matter to Hill, who made the contract, nor that Hill ever consulted him about it. The witness had nothing to do in making the trade.
Wright testifies that he, as Hartfield’s agent, made the trade with Hill, the trustees and Brittin the agent; that the securities had nothing to do with it.
The facts sufficiently show that a few dollars would have released the lands for some eighteen months after the sale, and no one could have" supposed, that the forfeiture, if it had been known, would have been regarded as important. The amount necessary would have been a matter of indifference to the parties in a negotiation where such an amount was involved.
It is altogether likely, that if Hartfield and Wright had not made the sale of the lands, and the complainants had not released the securities, that they, during the interval between the time.the lands were stricken off to the State in November, 1845, and the absolute forfeiture, would have redeemed them, and thus protected themselves from a great loss. The lands, which Hawkins held as an indemnity, might or might not have been made available towards his discharge.
In this case, the securities are discharged at law; they have committed no fraud; they cannot be placed in the position they were in before the discharge, in relation to collaterals. It is therefore held that, under these circumstances, the bill was properly dismissed as to the remaining defendants.
Bet the decree'be affirmed.
Mr. Justice Fairchild did not sit in this case. | [
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Mr. Justice Compton
delivered the opinion of the Court.
Conflicting applications were made to the Probate Court of Hempstead county, for the guardianship of Luany I. and Joseph E. Green, minors under"twenty-one, and not over fourteen years of age.
Henry L. Nelson and Jane D., his wife, their mother and stepfather, petitioned that James R. Page should be appointed, and their uncle,. William D. Green, petitioned that he should be appointed their guardian. The court rejected the application on behalf of Page, and appointed Green. An appeal was then taken to the Circuit Court, where the judgment was affirmed; and by appeal the matter is now brought before this court-
Pending the trial below, the petitioners in behalf of Page proposed to prove, in substance, that Green was at enmity with the mother and step-father of the minors, especially with the mother, holding, no intercourse with them ; that he used violent and abusive language towards their mother, threatening to injure her if she married Nelson ; and that Green was a man of much “sternness of temper”' — all which, the Probate Judge declined to hear,and why he did so, we are not informed. It may be, however, that he was of opinion Green ought to be appointed, though the facts proposed to be proven were true.
The language of Green was certainly improper in itself, but in the absence of any information as to the merits of the controversy which occasioned it, or his general conduct towards the mother-and step-father, and especially in the absence of evidence touching his general character, we are not prepared to differ with the Probate Judge, and hold that Green was not fit to be the guardian of the minors. We have held that in the appointment of guardians, the Probate Court is invested with a sound legal discretion, and that its judgment will not be overruled by the supervising tribunals, except in cases of manifest abuse of such discretion. Sadler vs. Rose, 18 Ark. 600 ; and in this case no such abuse has been made to appear.
Let the judgment be affirmed with costs. | [
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Mr. Chief Justice English
delivered the opinion of the court.
Tumlinson brought ejectment against Swinney, for the N. E. quarter of section 29, and the south half of the S. E. quarter of section 20, in T. 3 N. It. 29 W., Scott county.
On the trial before the court, sitting as a jury, the following evidence was introduced :
On the 16th of January 1855, Swinney gave his bond to Joseph J. Tumlinson for $2,961 50 with interest at 10 per cent.
On the 3d of March, 1858, Olivia Tumlinson, executrix of Joseph J. Tumlinson, obtained a judgment against Swinney, in the Scott circuit court, for the amount of the bond.
On the 19th of March, 1858, an execution issued on the judgment, which, on the 25th of the same month, was levied on the lands above described, together with two other tracts, (S. E. -j- of S. E. J section 6, and S. W. of S. W. section 5, T. 4 N., R. 30 W.,) on which last named tracts there was situated a steam mill. The lands were all sold by the sheriff, on the 20th August, 1858, and the tracts sued for purchased by Yandever, who took the sheriff’s deed therefor, and afterwards, and before the commencement of this suit, conveyed them to Wiley A. Tum-linson, the plaintiff.
The return of the sheriff shows that when he offered the lands for sale, Swinney claimed as his homestead :
The E. -J- of the N. E. ¿ section 29.
The N. W. of the N. E. J section 29,
The S. E. of the S. E. % of section 20, and two acres in the N. E. corner of S. W. J of S. E. £ of section 20 — all in T. 3 N., R. 29 W. — and that the lands were offered for sale, and sold subject to the homestead claim, provided Swinney had any.
A witness for plaintiff testified that defendant was in possession of the lands described in the declaration, at the time the suit was commenced — (28th June, 1859.)
A witness for defendant stated that he, defendant, had resided on the lands for several years, until a year or two before the sale, when he purchased a tract of land and mill, some seventeen miles distant, and then moved to the mill. That witness rented the land in dispute under an agreement that he was to hold possession until the defendant might want it, and whenever he desired it, the witness was to surrender possession. At the time he took possession, defendant charged him to take good care of the fence, as it was his homestead. A few days before the sale defendant moved a part of his furniture and his wife from the mill, and occupied one room in the house on the lands, until a short time after the sale, when he returned to the mill with his wife, and they remained there for some months. That he did not take the furniture back to the mill with him. That after he returned to the mill, the room occupied by him and wife at the time of the sale, was occupied by a young man in his employment.
The defendant also proved, by the sheriff, that on the day of sale he claimed a homestead of 160 acres, a part of the lands in the declaration mentioned, and that the whole of the lands were sold subject to his homestead, if he had any, which was announced at the time of the sale.
The plaintiff then introduced a witness, who stated that when defendant purchased the land on which the mill was situated, he moved to the mill, and resided there one or two years. That a few days before the sale of the lands described in the declaration, by the sheriff, he brought his wife to the place, and remained there until a few days after the sale, and then returned to the mill, with his wife, and remained there for two or three months, for the purpose of settling up his business, when he returned to the premises mentioned in the declaration. That on the day of sale, the defendant claimed a homestead on the lands in question, or on the mill property, and said he was entitled to a homestead on one of the places and would have it. That at the time of the levy he was residing at the mill.
Which was all the evidence introduced by the parties.
The court, sitting as a jury, found that the defendant was entitled to a homestead of 160 acres, out of the lands described in the declaration, composed of the portions of the land designated by him as his homestead on the day of sale, and described as above in the sheriff’s return; and that the plaintiff was entitled to the remainder of the lands, and judgment was rendered accordingly.
The plaintiff moved for a new trial, on the grounds that the finding of the court was contrary to law and evidence; the motion was overruled, and he excepted, and appealed.
The first section of the homestead act (Gould's Dig. Ch. 68, Sec. 29,) provides that:
“Every free white citizen of this State, male or female, being a householder, or the head of a family, shall be entitled to a homestead, exempt from sale or execution (except as hereafter mentioned) not exceeding one hundred and sixty acres of land, or one town or city lot, being the residence of'such householder or head of a family, with the appurtenances and improvements thereunto belonging.”
By the second section, the homestead is exempt from execution, etc, during the time it shall be occupied by the widow, child or children of any deceased person who was, when living, entitled to the benefit of the act.
The homestead is the place of a home or house. That part of a man’s landed property which is about and contiguous to his dwelling house. Called anciently a homestall or homestale. 2 Bom). L. Die.) 1 Bouv. L. Die.) 2 Met. R. 45, note.
Mr. Ch. J. Hemphill, remarking on the homestead law of Texas, in Franklin vs. Coffee, 18 Texas, 415, said : “ A homestead necessarily includes the idea of a house for residence or mansion house. On town or city lots,it cannot exceed a certain value. But on the rural homestead there is no restriction. The dwelling may be a splendid mansion, or a mere cabin or tent, open to the winds and rains of heaven. If there be either, it is under the protection of the law, but there must be a home residence before the two hundred adjoining acres can be claimed as a homestead.”
It is clearly intended by our statute, that the homestead is to be the home, the place of residence, of the party claiming the benefit of the act. The legislature intended to secure to the householder, or head of a family, a home, a dwelling place, free from the claims of creditors, and protected from the invasion of officers of the law — an asylum, where the family may live in independence and security, and which they may improve and make comfortable, without the fear of being deprived of it, and turned houseless and homeless upon the world, by improvidence, or by the misfortunes and vicissitudes incident to life.
In the case of Franklin vs. Coffee, above cited, Mr. Chief Justice Hemphill also said :
“ Where a home, residence, or settlement has once been acquired on lands, it would not be necessary that there should be continuous, actual occupation, to secure the land from forced sale. If the citizen or family should leave in search of another home, the first would remain until the second should be acquired. If a husband remove his wife and family into another county, and without providing them a home, abandon his wife, she might again resume possession of the homestead (Fullerton vs. Boyle supra.) And no absence, on pleasure or business, temporary in its nature, and not designed as an abandonment, would work a forfeiture of the right.”
In Walters vs. The People, 18 Ill. R. 194, it was held that an absence, by reason of ill health, from the homestead for a year, by the widow, after the death of her husband, without any intention of abandonment, will not deprive her of the benefit of the homestead act. The court, by Mr. Chief Justice Scales said : “ It is contended here that the homestead was abandoned and lost, by the widow having rented the premises for some ten months, during which time she resided with her father, some six or eight miles distant, where her bad health, and approaching confinement required her to find that attention and care, that she could not obtain by remaining in the dwelling house of the homestead. "What is the meaning of “ occupy” or ‘ continuing' to occupy,’ within the meaning of the legislature ? In common parlance, and in reference to house-keeping, we at once attach the idea of actual residence, dwelling, abiding on, the place of bed, board and washing, three acts of conptant recurrence, to supply the necessaries of life, and renew the physical man. This is the second sense given it by Webster, but it is used also in the sense of possess, generally, and Webster also uses the word possess in the same variety of senses in the main as is given to occupy, or occupancy. Turn to 2 Bouvier’s Law Dictionary 240, ‘ occupancy;’ 336 ‘ possess,’ and we find the words used and understood in the same great variety of senses. If a man go abroad, animo revertendi, and reside for temporary purposes of trade or business, he >vill not lose his domicil; and yet we know that the party’s domicil follows his actual residence. So it is with foreign ministers and diplomatic agents. In contemplation of law they continue to occupy their mansions or dwellings in their own country, though actually resident abroad for years. A person may have a constructive possession or occupancy and he may have a posscssio pedis by tenants, or actual enclosures, and in contemplation and within the meaning of law, he may have actual possession,^ actual occupation, without residence. Such is the difference between the statutes of limitation of 1835 and 1839. The object of a temporary absence here was the preservation of health, it may be also of life. The farm is made productive in the mean time, by renting, thus contributing to the end designed in a homestead — the support, in part, of the family. There was no intention of abandonment, as a constant anxiety was shown and expressed to do nothing to lose the right to the homestead as such. We shall put no such harsh and narrow construction upon the language and intention of the legislature, as to take away the estate, when it becomes impolitic, or impracticable to continue to occupy by actual residence for a season — the possession — the occupation being preserved for the benefit of the family in the meantime, by a tenant, or by the storage of the household furniture, etc., until the family can return. The best intention of the legislature will> doubtless, be promoted, by allowing that continuing occupation of some of the family in the form and upon the terms best calculated to aid them in providing for their wants, whether by themselves or by their tenants. For it may be, at times, that food and clothing are paramount wants to shelter- At least for the purposes of this case, we find no forfeiture or abandonment, in the acts of the widow in proof here.”
In Cook et al. vs. McChristian, 4 California R. 26, Mr. Chief Justice Murray, remarking upon the homestead act of California, said :
“ The statute does not require any record of the selection of the homestead, and points out no mode in which the intention to dedicate property as a homestead shall be made known. In this particular, the statute is lame, and it will be observed, from reading the whole act, that the legislature, by accident, has omitted this necessary provision. In the absence of any statute regulating the subject, the filing of notice in the recorder’s office of the county could have no legal verity, and would not be conclusive on purchasers or creditors. The homestead is the dwelling place of the family, where they permanently reside. By the common law, such residence would raise the presumption that the premises so held were the homestead, and every one would be bound to take notice of the character of the occupant’s claim, as occupation is prima facie evidence of title. There is no dispute in this case that the plaintiffs knew of the defendants’ possession. Such possession, taken in connection with other circumstances in the case, was properly submitted to the jury, from which to find the fact of the dedication of the premises as a homestead.”
The homestead act of this State never having been before this court for construction until now, we have made the foregoing extracts for the purpose of .showing the construction which the highest judicial tribunals of several of our sister States have placed upon similar acts, finding that these adjudications have some bearing upon the case before us.
It does not appear that the court below was asked to declare its opinion upon any matter of law, and we have only to determine whether there is any evidence to sustain the finding of the court, sitting as a jury.
We cannot say that there was a total want of evidence to sustain the finding that the appellee had, before the sale, dedicated a portion of the lands in dispute to the purposes of a homestead. He so declared when he put the premises in charge of a tenant, and went to the mill place to live; and he returned, with his wife, to the premises before the sale, and on the day of sale designated to the sheriff the particular portions of the lands that he claimed to be embraced in his homestead, and insisted that they were exempt from sale. It does not appear from the sheriff’s return that he made any objection to the sale of the mill place, and it may have been the more valuable of the two places, for any thing that appears in the record. It was first struck off at $3000, and the bidder failing to comply with his bid, it was put up again and sold for $1,007, while the lands in dispute brought but $500, subject to the homestead claim ; and the evidence upon the trial conduces to prove that the rent of the premises was worth but little. Whether the appellee claimed the premises as a homestead before the sale in good faith, or as a mere pretence to defraud the creditor, was a question for the court, sitting as a jury, upon all of the facts and circumstances of the case. So it was the province of the court, sitting as a jury, to determine from the evidence, whether the place claimed as the homestead was the residence of the appel-lee, and whether his removal to the mill place was permanent, or merely temporary for business purposes — in other words, whether he had abandoned the homestead place as a residence, etc.
If he had a residence at the mill, and also a residence on the lands in dispute, and had not before the day of sale made his election of a homestead, under the act, we think he had the right to make his election on the day of sale, and that he was not bound to make it at the time the lands were levied on by the sheriff. See Ross vs. Hannah, 18 A la. 127. Under the prevailing practice of levying on lands by simply procuring the numbers of them, and entering them upon the execution, a sheriff may make his levy without the knowledge of the defendant in the execution. By the terms of the law the homestead is exempt fromsuZe or execution.'
It is insisted for the appellant, that the appellee did not prove upon the trial that he was of the class of persons provided for by the act — that he may be a negro, mulatto, or alien, for any thing that was proven on the trial.
The proof shows that on the day of sale he claimed the benefit of the homestead act, and the sheriif-so far recognized his right as to sell the lands subject to his homestead claim, if he had any. if he had been a negro or mulatto, it can hardly be supposed that the sheriff would have treated his claim with so much respect, for we must suppose that he knew that none but white persons were entitled to the benefit of the homestead act.
The evidence also conduces to prove that the appellee was the head of a family, and, by length of residence, a citizen of the State. The suggestion that he maybe an alien comes with a bad grace from the appellant, as he claims title to the lands, which he seeks to recover in the action, through the appellee.
We cannot say that there was no evidence to sustain the finding of the court, in any material matter, and therefore affirm the judgment. | [
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24
] |
Hon. Harris Flanagin, Special Judge,
delivered the opinion of the Court.
This was a bill brought by Richard C. Byrd against Frederick W. Trapnall, Brown, Robb & Co.; Young, Smith & Co.; Edward Cook & Co.; Alexander Brown & Sons, and Robinson, Pratt & Co.
He alleges that the defendants, other than Trapnall, held sundry claims against complainant, all of which were under the control of Trapnall as attorney and collector for collection, and all except one of them were reduced to judgments.
That Trapnall was authorized to arrange and settle them as he thought best, and the complainant, being in failing circumstances, delivered to Trapnall $5,055, in Arkansas bank notes, which was to be used at seventy-ñve cents per dollar, and also a large number of claims due Byrd, which Trapnall took to collect and apply to the discharge of the debts so due to Trap-nail’s co-defendants.
That he believes a large amount of said claims had been collected, and with the Arkansas funds had been paid to said creditors.
That it was understood that he was not to be harrassed with said debts while the collaterals were in a process of collection, and that the attorney was to have a fair compensation for the collection of the claims. The claims were sufficient to discharge the debts due to the creditor defendants.
That Brown,Robb & Co., have taken the management of their claims from said Trapnall, and given it to Charles P. Bertrand, esq., but complainant insists that they had no power to disavow Trapnall’s contract with him.
There is no credit upon the executions, except $325 paid to Brown, Robb & Co., and $48 made by a sale upon execution. Brown, Robb & Co. have sued ©ut executions on their judgment. Trapnall has been called upon, and failed to settle.
Pie prays an account, and that the money collected may be applied to the payment of said judgments, and that the money thereafter collected should be applied to their payment, and that in the meantime the judgment be enjoined.
Byrd died, and the case was revived in the name of the administrator and administratrix. Trapnall died and the case was revived against the administratrix. June 24th, 1854, Martha F. Trapnall filed her answer, made chiefly of a draft of an answer by Trapnall in his life time, but not sworn to by him, in which he admits the reception of the Arkansas money, which was worth only 60 cents to the dollar, and which he was to convert into money and apply to the payment of debts. He could not sell the money on terms satisfactory to Byrd, and at Byrd’s direction he brought suit against the bank for $3,055 00 — 1,125 was sued on and judgment recovered with interest and damages, and Byrd compromised it, and took $1,125 in specie, which was paid Trapnall, March 3d, 1845.
He claims $300 for fees and $155 for costs; claims to be allowed commission on sums of money paid to his clients, his co-defendants: admits the collection of some of the claims, and denies the collection of others; “every effort has been made to collect the debt on Danley, but without success,” it is considered secure; Trapnall received from said Danley, as security, the receipt of Ashley & Watkins, and Trapnall ■& Cocke, for a claim of one thousand dollars, owing by Thomas Thorn, which this respondent believes will be made, and also bought, at sheriff’s sale, some lands of said Danley, which are claimed by others, and for which respondent has brought a bill in chancery, which is still pending.
This respondent, shortly after the receipt of said acceptances, called on the said Robert A. Watkins for the amount due by him, and he, being greatly embarrassed by debt at the time, proposed to give a claim which George 0. Watkins had in his hands, or to direct that the money collected on that claim, which was then a judgment against a certain James C. Anthony, and in favor of said Robert A. Watkins, as administrator of Ann L. Byrd, deceased, and believing that the amount would be collected before the same could be made by legal process, respondent took a pledge of the payment. “The same is secure.”
On the Brown note he admits he collected from W. J. Byrd, $1,010; Albert Pike, $505- 35 — in all $1,515 35.
He offers to surrender all collaterals which have not been collected. He asks to have his private account against Byrd allowed as offset.
The judgment creditors answered and filed a petition to have the permission to prosecute the case in the name of complainants for their use, and the court ordered that it should be done.
There was decree upon the merits and recovery of $8,684, 92-100 in favor of Byrd’s representatives, to be brought into court to be applied to the judgments.
Trapnall is called on to account for money collected for Byrd, and for the benefit of his creditors, who are also the clients of Trapnall. He contends in his answer, that he should have credit,for fees on money paid to his. co-defendants on that account, and also that he should have credit for other sums due to him from his clients for fees on a different account. The complainant excepted to the answer on this ground, and his exception was sustained. The law is Well settled that a court of chancery will make a decree between co-defendants, according to the equity of the case as founded upon the pleadings and proof between the complainants and defendants, but will not make a decree between them as to a matter outside of the pleadings and proof between the complainants and defendants, unless upon cross-bill. Chumley vs. Lord Dunsany, et al. 2 Sch. & Lef. 711; Jones vs. Grant, 10 Paige 348; Conry vs. Caulfield, 2 Ball & Bea. 255; Eliott vs. Pell, 1 Paige 348. When we test the answer by this rule, we find that as to fees for money collected from Byrd and paid to his clients, it was a matter which grew out of the pleadings and proof between the complainant and defendant, and ought to be allowed him ■ and as to other matters of account which he had against his co-defendants, as they did not arise on the pleadings between the complainants and defendants, he could only be entitled to them by cross-bill.
It appears that F. W. Tapnall had paid Alexander Brown & Son, and Brown, Robb & Co., certain sums of money. He is entitled to ten per cent, upon the sums paid over, which should be deducted from the decree against him and credited on the judgment against Byrd.
The co-defendants of Trapnall presented their petition, setting forth that they were the parties to be benefited by the decree, and praying that the suit might progress in the name of Byrd’s representatives, for the use of those interested, and the court directed it to proceed in the names of the representatives for the use of the beneficiaries, upon the pleadings and issues then on file. On the part of the appellant, it is insisted that this decision was unauthorized by law. The bill prays that Byrd may have credit for the sums of money collected, and that those to be thereafter collected should be paid to the creditors, and he have credit. According to the authorities already cited, the decree ought to have been in favor of the judgment creditors for any money found to be due from Trap-nall, and not to Byrd who did not profess to be entitled to it. In this view of the case the order, whether regular or not, is wholly immaterial.
The complainant states a recovery of certain judgments against him in the Circuit Court of Pulaski county, and the defendant Trapnall admits the recovery, but asks for greater certainty that copies may be filed.
At the hearing, the original judgments were produced and read. Whiting & Slark, vs. Beebe, 7 Eng. 550, is quoted against the production of the record. In that case, the court decided only that unless a paper was exhibited it could not be proven viva voce at the hearing. The record was the very best testimony, and the objection that it was not exhibited in form, it being referred to in the bill, comes too late when reserved for the hearing. If the defendants thought proper they might have insisted that copies should be filed before answer, or before hearing, but not now after admitting their existence and progressing in the cause to the hearing. The rule is, that when a deed or judgment is exhibited in the bill, or distinctly referred to, it may be produced or proven at the hearing. 7 Paige Ch. Rep. 134. Where, however, other documents are offered which require proof they can only be proven upon notice.
In the taking of testimony there were original memoranda in the hand writing of Tapnall, which are introduced as evidence, showing in what character he holds the collateral claims. These cannot be, with any propriety, denominated contracts, nor can they be said to be papers upon which the complainant relies, in any other light than merely to show what a contract had been, or any other admission of Trapnall not in writing. In this light we hold that under our statute it was not necessary to exhibit them, and under our practice requiring actual notice, and allowing a cross examination at the taking of testimony there was no surprise, and the defendant had sufficient notice of their existence and proof.
It is charged in the bill that Trapnall received of Byrd |5055,00, in Arkansas paper — $2000 of this was applied, and Byrd claims that he is chargeable with $2291,25 it being 75 per cent, of the balance after deducting the $2000 applied.
According to the answer and proofs, Trapnall recovered judgment on $1125 of said money, amounting to $1735,70 including $51-75 costs, and that Byrd compromised by taking the amount of the face of the paper, $1125, and costs $51-75. The balance of the paper was sued on, and he realized $2295,-00; There is no evidence that Trapnall acted in bad faith in this matter. The record shows that it was for the interest of his client to sue on the notes, and there is no evidence that he was to pursue any different course in the collection of the claims, or in realizing specie for the paper. The court directed that he should he charged with the full amount of the first judgment for the reason that he had no authority to make the compromise. Without discussing his authority, we hold that if the complainants take advantage of the suits, which are outside and greater than the claim as set up in the bill, they must recognize his compromise made in good faith. A decree must rest upon the pleadings and proof, and there is nothing in the pleadings, or in the proof, which justifies a decree against Trapnall for the difference between the judgment and the amount received. The bill asks him to account, and he does so, and if his answer is not to be taken there must be testimony to contradict it. The charge for the bank paper will be thirty four hundred and twenty dollars, the amount actually received, with interest from the date of his letter to Griffith January 18th, 1849.
The appellant insists that she is entitled to a larger balance against Byrd on general account, which should be deducted from the balance due for cash collected on the collaterals, placed in his hands to pay judgments. We hold that whenever these claims were placed in his hands for a specific purpose, the judgment creditors had rights which were independent of Byrd. Pie suspended their claims on these securities and cannot be permitted to defeat it. Balch vs. Symes, 1 Turner & Russ. 50.
The decree gives to the complainant three items of account amounting to seventeen hundred and thirty-seven and 52-100 dollars it being the nett amount of three collaterals, on the ground that the defendants were solvent, and the money could have been made. Byrd in his bill does not charge Trapnall with any neglect, but insists that the money has been collected, and that Trapnall shall account. There are but two grounds on which the decree can be sustained as to these items. The first, that they are absolutely paid, and second, that he has been guilty of such negligence as to make him personally liable for the amount. As to the second ground, we hold that the bill does not set forth such facts as will sustain the decree. Relief cannot be granted for matters “not charged in the bill, though they may be apparent from other parts of the pleading and evidence. Story Eq. PL 522; 7 Wheat 527. Chief Justice Maeshall says, “The hardships of a particular case would not justify this tribunal in disregarding the fundamental rules of a court of chancery; rules which have been established for ages on the ¡jpundest and clearest principles of general utility.” Jackson vs. Ashton, 11 Peters 229. Indeed the principle is so well settled as to render any further reference to authorities unnecessary.
On the other ground, the bill asks for an account and statement of collections. The answer states that two of these claims had not been collected, though he had made an eifort to collect. There is no testimony showing that any part was collected. We do not feel authorized to assume under this state of pleading and proof, that they were collected.
The bill charges that the third one of the claims against Brown was for nineteen hundred dollars, eleven hundred dollars of which was to go to Trapnall, and the balance, eight hundred dollars, was tobe applied to the discharge of the judgments. This is not denied in the answer; but is in effect admitted, except to some matters which are set up by way of avoidance, and are not proven. He admits he collected $1,-515 75, from which deduct $1,100 as his claim, and there is a balance of $415 35, with which he must be charged.
There is a claim for fees on collaterals not collected, but which were a part of the same means turned over to pay the debts secured. Trapnall was entitled to a reasonable compensation.
The defendant interposed the plea of the statute of limitations. Taking the rule in Denton’s Ex. vs. Embry & Young, 5 Eng. 229, to be the law of limitation as affecting attorneys, this case is not barred by the statute.
It is insisted that Trapnall is entitled to fees for collecting the amount involved in this suit, not only from Byrd, which were allowed in the court below, but also as against his co-defendants. It appears that he was guilty of great negligence in relation to the collaterals turned over to him :
That different efforts were made on different occasions to get a settlement: That Byrd and the judgment creditors were absolutely compelled to employ other counsel to settle the claims: That claims which ought to have been settled at least fifteen years ago are still unpaid. Under these circumstances we cannot think he is entitled to any fees.
This opinion is intended to leave open any claim which- the creditors may have to the collaterals offered to be surrendered by the appellant, as also to anysums of money collected on said collaterals since the answer of the defendant.
The decree will thereiore be modified, so as to direct the money to be paid into the Chancery Court, there to be distributed according to the rights of the creditors, and the judgments will be satisfied as far as the payments extend.
We have directed the clerk of this court, as master, to make a statement of the account which is referred to, and by which there appears to be due th.e sum of $7,157 07, including interest to the thirteenth day of October, 1860. ,
. The decree is reversed, and a decree will be entered here and certified to the court below as indicated by this opinion.
Mr. Justice Fairchild did not sit in this case. | [
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"Wood, J.
This appeal is from a decree of the ciiancery court of Conway County, reopening and setting aside a judgment of the probate court of Conway County disallowing a claim of $2,000, which the appellee sought to have probated and allowed by the probate court. The complaint alleged that the plaintiff (appellee here) was the owner and holder of a check given her by Carl Meier in the sum of $2,000, which remained unpaid, and which she presented to the administrators for approval and payment, which was refused. She then presented the check to the probate court of Conway County, and that court on January 15, 1918, passed upon the claim and disallowed the same, and by a mmc pro tunc entry showed that the order of disallowance was made on July 9,-1917; that the plaintiff, through her attorneys, made many calls upon the county clerk and his deputy asking if said claim had been passed upon, and was informed by them that it had not been; that, relying upon these representations of the clerk and his deputy, the plaintiff, without negligence on her part or her attorneys,-had lost her right to appeal; that her claim was a just and honest one, and that the misleading statements of the clerk and his deputy were a fraud and deception, which, unless corrected, would cause the loss of her claim. She, therefore, prayed that the judgment of the probate court be set aside and that the cause be reopened before the probate court, in order that she might further prosecute her claim.
The defendant below answered and admitted that they were the administrators of the estate of Meier; that the claim was presented to them; that the same was disapproved and disallowed, and admitted that the same was on the 9th day of July, 1917, presented to the probate court, and that it was on that day disallowed, but denied that the claim was diallowed on the 14th day of January, 1918. They denied all the other material allegations of the complaint and set up certain affirmative defenses, which are not necessary to mention, and further alleged that the judgment of the probate court of July 9, 1917, was a bar to appellee’s action. The appellants also filed a demurrer to the complaint, which it appears was not passed upon. ■ ■ . ¡ \.
It is unnecessary to. incumber the record by setting out the testimony upon which the trial court made its finding and entered its decree setting aside the judgment of the probate court. The judgment had become final, and, even if it be conceded that the appellee lost her right of appeal without negligence on her part or the part of her attorneys and through the misrepresentations of the clerk of the probate court and his deputy to the effect that the claim had not been passed upon, still this would not justify the chancery court in setting aside the judgment of the probate court. The allowance or disallowance of a claim against an estate in the probate court is a judgment by which all parties are bound unless fraud be shown in its procurement. James v. Gibson, 73 Ark. 440; Scott v. Penn, 68 Ark. 492; Berbridge v. Gotch, 107 Ark. 136; Vanness v. Vanness, 128 Ark. 543; Radford v. Samstag, 113 Ark. 185, and other cases cited in appellant ’s brief..
The complaint does not allege, nor does the testimony show, that there was any fraud practiced upon the probate court by the appellants or the attorney for the estate of Meier in procuring the judgment of disallowance of the claim of the appellee. The complaint was, therefore, fatally defective and might have been dismissed on that ground. The court, however, did not rule on the demurrer, but the cause was disposed of on the evidence, and there is no testimony to show that the judgment of disallowance was procured through any fraud practiced upon the court by the appellants or the attorney for the estate of Meier. Furthermore, the appellee would not be entitled to relief in equity against a judgment of the probate court disallowing her claim on the ground that her appeal was not perfected, whether through the negligence of herself or her attorneys, or through the negligence of the clerk of the probate court. Waldo v. Thweatt, 64 Ark. 126. See, also, Scroggin v. Hammett Grocer Co., 66 Ark. 183. See Awbrey v. Hoopes, 145 Ark. 502.
There is no merit in the appeal. The decree is therefore reversed and the cause is dismissed. | [
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McCulloch, C. J.
A statute applicable only to Mississippi County was enacted by the General Assembly of 1905 (Acts 1905, p. 398) authorizing the county judge to lease the “wild and uncleared sixteenth section school lands” of the county for a term of not exceeding five years.
The statute provides that the lease shall be made on “terms satisfactory to the county judge,” upon the lessee entering into a good and sufficient bond to be approved by said judge. It is also provided that, before leasing any of said lands, the county judge shall cause notice to be given for thirty days of the time and place of the leasing by publication. in a newspaper and by posting.
The county judge of Mississippi County gave notice of his intention to lease such school lands, and on the day mentioned in the notice appellant appeared and entered into an oral agreement with the judge for a lease of certain lands for a term of five years. The terms of the lease were agreed on with the further agreement that a written contract should be later prepared and signed. A few weeks later appellant presented to the judge for execution a written contract in accordance with said oral agreement and also a bond for approval by the judge, who declined to approve the bond or execute the contract on the ground that protests had been made against the leasing of the lands by taxpayers, and on the further ground that the agreement had been made upon a misconception of the real facts in regard to the susceptibility of the lands to cultivation. The written draft of the contract provided for the removal of timber, clearing and cultivation of the land and the construction of a certain number of houses of different kinds.
Appellant presented to the circuit court his petition to compel the county judge, by mandamus, to approve the bond and execute the written lease contract tendered by appellant. Certain taxpaj^ers joined the county judge in an answer to appellant’s petition and the cause was heard on oral testimony. The circuit court denied the petition.
The lawmakers designated the county judge as the proper person to act for the public interest in leasing the unimproved school lands, but might have conferred that authority on any other,officer or person. The fact that the county judge was selected did not change the character of the service to be performed undbr the statute. We are therefore of the opinion that counsel for appellant is-correct in the contention that the county judg;e acts, not in a judicial or g^fus-i-judicial, but in a ministerial capacity in performing services under this statute. Glenwood Cemetery Land Company v. Routt, 17 Col. 156, 28 Pac. 1125; Colorado Fuel & Iron Company v. Adams (Col.), 60 Pac. 367.
However, the statute -confers discretionary powers; and such powers, even when exercised by an officer acting in a ministerial capacity, will not be. controlled by mandamus. Jobe v. Urquhart, 102 Ark. 470; Robertson v. Derrick, 113 Ark. 41.
The statute does not require that the leasing shall be done by the method of competitive bidding. In the náture of this case, that Avould be impracticable, for the transaction is so intricate as to necessarily call for negotiations between the lessor and lessee to determine the precise terms on which the land is to be improved. The statute necessarily implies the execution of a written contract, for a lease for the maximum length of time is Avithin the statute of frauds. Also a bond is required which the judge must approve. Noav, all of this demonstrates that there is no binding contract until a writing is executed evidencing the terms of the contract and until a bond is approved by the judge. Until that is done, the- transaction is in fieri — a matter of negotiation between the parties and the discretion of the county judge still continues. It is the same as if the negotiations were between two individuals concerning a contract required, under the statute of frauds, to be in writing. The discretion of the county judge extends to the approval of the bond. His discretion in that regard is not subject to control, and the contract is not complete until the bond is approved. It is no answer to say that the county judge had, in this instance, exercised full discretion in negotiating the terms of the contract. His discretionary powers extended down to the execution of the written contract and the approval of the bond, and his action, even down to the last moment, can not be controlled. He had the power to recede from the negotiation, either- with or without good reason, at any time before the negotiations ripened into a binding contract.
The circuit court was correct in its conclusions, and the judgment is therefore affirmed. | [
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Humphreys, J.
Appellant institutes suit against the Union Bank & Trust Company in the Independence Circuit Court to recover $300 which he had deposited in the bank as a forfeit payment to appellant in a land deal entered into between appellant and appellee J. H. Presley. The written contract for the sale and purchase of the land in question, containing the forfeit clause, is as follows:
This writing witnesseth: That J. W. Dozier, hereinafter known as the party of the first part, has agreed to purchase from J. H. Presley, hereinafter known as the party of the second part, his farm of 232 acres, near Jamestown, Ark., adjoining the J. C. Hubble farm. The consideration price is $9,300.00 (nine thousand three hundred dollars), three hundred dollars to be paid down m cash and deposited in the Union Bank & Trust Company as a forfeit payment by Dozier, same to be held by said bank until the completion and delivery of the necessary deeds and abstract of title for approval of said Dozier. The other payments agreed consist of a farm of Dozier’s of 361 acres, near Calico Bock, Ark., which Presley agrees to accept in part payment at a value of $3,000 (three thousand dollars), upon furnishing abstract of title and warranty deed approved by party of the second part. The remainder of the purchase price, or $6,000.00, is agreed to be paid within 30 days, provided satisfactory title is furnished by party of the second part, consisting of complete abstracts and warranty deeds. The 30-day limit is mentioned simply in case the party of the first part falls down or refuses to carry out his part of this agrément, in which event the $300 forfeit money referred to shall revert, to the party of the second part. If, however, there is any reasonable excuse for the extension of this agreement by reason of unusual necessities to perfect the title, this agreement shall hold good for a reasonable time which is required to carry out the purpose of this agreement as long as same is being done in good faith. Signed in triplicate this October 24, 1919.”
The Union 'Bank & Trust Company filed answer, stating that it held the money as a depository under, the forfeit provision in the land sale contract between J. W. Dozier and J. H. Presley, and requested that the interested party, J. H. Presley, be made party defendant. It also asked permission to pay the money into court for award to the party entitled thereto under the terms of the sale and purchase contract. .
J. H. Presley intervened and filed an answer, denying appellant’s right to the fund, claiming same himself under the forfeit clause in the contract, on account of the refusal of appellant to comply with the terms thereof.
■ The cause was submitted to a jury upon the pleadings, evidence and instructions of the court, which resulted in a verdict and judgment for appellee.
The evidence disclosed that Presley delivered an abstract of title to his farm to Dozier within ten days after the execution of the contract; that Dozier failed to procure a loan of $6,000, on account of insufficient security, to make the final payment; that on the 25th day of November, 1919, thirty-one days after the contract was signed, Dozier applied to Presley for additional time within which to consummate the deal, and obtained an extension of fifteen days; that on December 15, 1919, after the expiration of the time extension, Dozier served the following notice upon appellee:
“To J. IT. Presley and Union Bank & Trust Company: This will notify you that I have examined the
abstract of title to the land, which I was to buy from J. H. Presley, and that I find the same unsatisfactory, and that I hereby demand the $300 which was placed in the Union Bank & Trust Company.
“Witness my hand this 15th day of'December, 1920.
“J. W. Dozier”
Presley testified that this was the first intimation he or the b.ank received to the effect that Dozier entertained objections to the abstract. On December 18th, following, Ward & Wade, attorneys for Presley, wrote a letter to appellant requesting him to specifically point out his objections to the title, assuring him that Presley would make an effort to correct any defects. Ward testified that no answer was received to the letter. Dozier testified that he answered the letter, referring Ward to Mr. Ruddell, Ins attorney, who would point out the defects in the title. He also testified that, before receiving the letter, he saw Ward in person and told him in the presence of Presley, that, according to the abstract, the following defects existed in the title: A patent had never been issued by the government for 120 acres of the land; three deeds of trust had not been satisfied; one break existed in the chain of title; and one conveyance only purported to convey dower and homestead rights of the grantor. Ward testified that Dozier came to his office and expressed dissatisfaction with the abstract, but refused to point out any defects in the title for correction, insisting that, under the terms of the contract, it was the duty of Presley to furnish an abstract in the first instance without defects; that appellant did' not refer him to his attorney, Ruddell, until after the trouble came up. J. C. Hubble testified that Dozier told him he was thinking of losing the forfeit he put up in the land deal and asked his opinion concerning it; that he told Dozier he would be likely to lose it.
The court submitted the cause to the jury upon the theory that, before appellant could claim the return of the forfeit money, he must show by a preponderance of the evidence that the abstract furnished by appellee Presley was defective, and that he pointed out the defects and gave Presley reasonable time thereafter within which to perfect the title and abstract; and that appellant was ready and willing to carry out the contract on his part upon the fulfilment of the contract by appellee Presley within a reasonable time after being apprised of defects in the title.
Appellant insists that the court erred in the interpretation of the contract, as reflected by the instructions embodying the foregoing theory. We think the court construed the contract correctly. The contract provided that appellee Presley should furnish appellant an abstract within thirty days, showing satisfactory title, with the right to additional time, if neccessity required, to perfect the title. This conferred the right upon appellant, if ready and willing himself to perform the contract, to disapprove the abstract of title tendered, if actually defective, after extending a reasonable time to appellee Presley to correct the defect, or defects.
Appellant’s request for a peremptory instruction upon the theory that it was not his duty, under the contract, to point out the defects, if any, in the abstract, and to give appellee a reasonable time to correct them, and his request for instructions carrying the idea that no such duty rested upon him, or that appellee Presley had no right to reasonable additional time to correct defects in the abstract, were properly refused. Unless the duty rested upon appellant under the contract .to point out any defects in the title tendered, which rendered it unsatisfactory, and unless appellee Presley was privileged to correct them within a reasonable time, the following clause in the contract was meaningless:
“If, however, there is any reasonable excuse for the extension of this agreement by reason of unusual necessities to perfect the title, this agreement shall hold good for a reasonable time which is required to carry out the purposes of this agreement as long as it is being done in good faith.”
Appellant contends that the court committed reversible error by reference in the instructions given to an abandonment of the contract by appellant, because that fact was not put in issue by the pleadings. Appellee Presley’s answer alleged a refusal by appellant to comply with the terms' of the contract, which was, in fact, an allegation of the abandonment of the contract by him. So there is no foundation for the contention made by appellant in this respect.
Lastly, appellant contends that the court erred in placing the burden of proof upon him, for the reason that appellee Presley was an intervener in the case and filed an interplea, contending that the burden rested upon an interpleader to establish his case. Appellant cites the case of Webber v. Rodgers, 128 Ark. 25, in support of this position. That was an attachment suit in which a third party intervened and claimed the attached property. In that character of case, the interplea presents an issue independent of the attachment, and the burden of proof.rests upon the interpleader, who, for that reason, is entitled to the opening and closing argument. Excelsior. Manufacturing Co. v. Owens, 58 Ark. 556. In the case at bar, the so-called “interpleader” was strictly a defendant, being the party of the second part in the contract and the only interested party in the litigation, except the plaintiff. Appellant being the plaintiff and appellee the only interested defendant, the court did not err in instructing that the burden in the whole case was upon appellant.
The judgment is therefore affirmed. | [
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McCulloch, C. J.
Appellant, Western Star Lodge No. 2, Free and Accepted Masons, is a subordinate organization of appellant, Most Worshipful Grand Lodge of Ancient York Rite Masons of the State of Arkansas, a society incorporated ,by special statute, enacted by the General Assembly of the year 1846. Acts 1846, p. 136.
Appellants instituted this action to restrain the tax collector of Pulaski County from collecting the taxes assessed against the personal property of Western Star Lodge. The contention is that the property-of Western Star Lodge is exempted from taxation under a provision of the Constitution, which exempts “buildings and grounds and materials used exclusively for public charity.” Article 16, section 5, Constitution of 1874.
The court sustained a demurrer to the complaint. It is alleged in the complaint that' the said Grand Lodge was incorporated under the aforesaid statute as a charitable corporation, and that all of the subordinate lodges undér its jurisdictions are charitable organizations; that Western Star Lodge derives its revenues exclusively from initiation fees and annual dues of members and from voluntary gifts from its members, and that it expends its funds for expenses, such as hall rent, purchase of paraphernalia used in conferring degrees, salaries of the secretary and tyler, dues to the Grand Lodge, and occasional luncheons at social meetings, and that the remainder is reserved for charity, dispensed by a committee of the lodge to destitute Masons, and to needy widows and orphans of deceased Masons; that said lodge does not conduct any business nor receive any funds for profit or dividends, and that no member thereof receives any pecuniary benefit from the funds in the treasury except as charity, when in need. It is also alleged that “the charity of the lodge is not withheld from non-members and the dependent families of non-members, and the protection is often extended to them, but the most of its charity is confined to its own members and their dependents.”
The complaint contains no direct allegation that the property assessed has been set part to be “used exclusively for public charity.” The general allegation to that effect is controlled by, and must be restricted to, the specific facts pleaded. It will be noted that the exemption extends only to “buildings and grounds and materials used exclusively for public charity. ’ ’
We do not consider it necessary to a decision of this case to define the word “materials,” as used in the exemption clause. Nor do we deem it necessary to determine whether the allegations of the complaint are sufficient to characterize appellants as public charitable institutions within the meaning of the Constitution. It is sufficient for a decision of this case to rest it upon the failure of appellants to allege that the property taxed is “used exclusively for public charity.” This language of the exemption clause refers, not to the character of the corporation or- association owning the property sought to be exempted, but, regardless of the character of the owner, to the direct and exclusive use of the property for public charity.
In Brodie v. Fitzgerald, 57 Ark. 445, the court said: “The guarded language of the Constitution describing the property to be exempted as ‘buildings and grounds and materials used exclusively for public charity,’ leaves no room for doubt that it was not the intention to exempt any other property from taxation save such as is used exclusively for public charity, and that the exemption can not be extended to property leased or rented and from which revenue is derived, though the same be applied solely to support the charity.” And in Hot Springs School District v. Sisters of Mercy, 84 Ark. 497, we said: “It is well settled that no one can exempt his property from taxation simply by an exclusive use of the income for public charity; * * * But a different rule prevails where the property is directly and exclusively used for that purpose.” See, also, School Dist. of Fort Smith v. Howe, 62 Ark. 481, and Robinson v. Indiana & Ark. Lbr. Co., 128 Ark. 550.
It ■ follows, therefore, that no cause of action is stated in the complaint, and the chancery court was correct in sustaining a demurrer.
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Humphreys, J.
This is an appeal from a judgment rendered on the 8th day of May, 1920, in the Second Division of the Pulaski Circuit Court, setting aside a default judgment rendered on April 7, 1920, which was a regular day of the same term of court, wherein appellant was plaintiff and appellee was defendant. The suit was commenced by appellant against appellee in the Second Division of the Municipal Court of Little Bock by filing an itemized account in the total sum of $142.57 for automobile tires ordered by, and shipped to, appellee. Appellee made a defense in the municipal court and the cause was adjudged in his favor, from which judgment appellant duly prosecuted an appeal to the circuit court of Pulaski County. It is recited in the transcript of the proceedings in the municipal court, at the time of certification thereof, an unfiled paper was found among the papers in the case, stating, in effect, that appellant failed to fill the order for the tires as given, and, in the absence -of appellee, delivered a bunch of worthless tires to his place of business; that the tires appellant delivered were absolutely worthless; This paper carried the style of the case and was signed by attorneys for appellee. The cause was set down for hearing, and, upon the regular call on the calendar, a default judgment was rendered on April 7,1920, for $142.57 in favor of appellant against appellee. Thereafter, on April 17, 1920, appellee filed a motion to set aside the default judgment and have the case reinstated for trial, stating that he had a legal and just defense to the claim which he believed would be sustained on a proper hearing and that his excuse for not appearing on the day the case was set was that he had no notice of it himself and was relying on his attorney who had represented him in the municipal court, but who was absent from the city on the day default judgment was rendered. On a subsequent day of the same term of court, the motion was sustained and the case reinstated.
The first and determining question presented by this appeal is whether a judgment of a court of record, setting aside a default judgment rendered at the same term, is a final order or judgment from which an appeal may be taken. Preliminary to a determination of this question, it may be said that this court is committed to the doctrine that courts of general jurisdiction have inherent power, during the term at which judgments or orders are rendered, to set aside, vacate and annul them. Wells Fargo & Co. v. Baker Lbr. Co., 107 Ark. 415; Midyett v. Kerby, 129 Ark. 301. A motion to set aside a default judgment at the judgment term is not an independent action, and, when set aside, does not determine the rights of the parties. It leaves the case in the condition it was before the default judgment was rendered, with an opportunity to try the case upon its merits. This rule would not obtain had the court refused to set the judgment aside because such an order would have precluded the rights of the judgment-debtor to try the case upon its merits. In that event the judgment would have been final, and the judgment-debtor could have appealed from it. Neither would the rule obtain, had the court adjourned before a motion was filed to set the default judgment aside, for, in that event, the setting aside of the judgment would have been a determination of the vested right of the judgment-creditor in the judgment, and, in that sense, final and appealable. This court said, in the case of Ayres v. Anderson-Tully Co., 89 Ark. 160, on page 162, that “It is only from final judgments and decrees which conclude the rights of the parties with respect to the subject-matter of the controversy that appeals may be taken to this court.” Appellant contends, however, that it became an appealable order under the provisions of the second subdivision of section 1188 of Kirby’s Digest, with which it complied. The portion of the section referred to is as follows: “But no appeal to the Supreme Court from an order granting a new trial, in a case made or bill of exceptions, shall be effectual for any purpose, unless the notice of appeal contains an assent on the part of the appellant that, if the order be affirmed, judgment absolute shall be rendered against the appellant.” This portion of subdivision 2 of section 1188 aforesaid has no application to vacating default judgments. It relates to new trials in cases made, which necessarily refers to trials on the merits. In passing, it may be said that appellant’s agreement to abide by the judgment of the Supreme Court does not bind it because the statute authorizing such agreement has no application to default judgments.
The appeal in this case is premature and is therefore dismissed. | [
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Hart, J.
(after stating the facts). The decision of this case depends upon the construction of the statute under which the tax foreclosure proceedings were had. The Legislature of 1909 passed an act for the creation of road improvement districts. Acts of 1909, page 1151. Section 20 of the act provides that, if the taxes due on the assessments made are not paid within sixty days, a penalty of 25 per cent, shall attach for such delinquencies, and the board of directors shall enforce the collection thereof by proceedings in the chancery court of the proper county, and that the court shall give judgment against the lands for the amount of taxes, penalty and costs. The section continues as follows: “Said proceedings and judgment shall be in the nature of a proceeding in rem, and it shall be immaterial that the ownership of said lands be incorrectly alleged in said proceeding, and said judgment shall be enforced wholly against said lands and not against any other property of said defendant. All or any part of said delinquent lands or real property within the district may be included in one suit instituted for the collection of said delinquent taxes, penalty and costs, as aforesaid; and notice of the pend-ency of such suit shall be given by publication weekly for four weeks before a judgment is entered for the sale of said lands, in some newspaper published in the county of said district, which published notice may be in the following form:
“NOTICE.
Board of Directors of Road Improvement District No.
..................of the County of..............................
' vs.
Delinquent Lands.
“All persons, firms or corporations having or claiming any interest in any of the following described lands, or real property, are hereby notified that suit is pending in the chancery court of.................................county, Arkansas, to enforce the collection of certain road improvement district taxes on the subjoined list of lands and real property, each supposed owner having been set opposite his, her or its property, together with the amount severally due from each, towit: (Then shall follow a list of supposed owners with a descriptive list of said delinquent lands and the amount due thereon respectively as aforesaid), and such published list may continue in the following form: All persons, firms and corporations, interested in the said property, are hereby notified that they are required by law to appear within four weeks and make defense to said suit, or the same will be taken for confessed, and final judgment will be entered directing the sale of said lands, for the purpose of collecting said taxes, together with all of the interest, penalty and costs allowed by law. ’ ’
It is contended that the decree of the chancellor should be upheld under the authority of Cassady v. Norris, 118 Ark. 449, which was followed in the subsequent case of Cabell v. Board of Imp. of Imp. Dist. No. 10 of Texarkama, 124 Ark. 278. In those cases the court had under consideration foreclosure proceedings by a board of commissioners of an improvement district in a city when section 5694 of Kirby’s Digest was in force. That section says that the owner of the property assessed shall be made a defendant if he is known; if he is not known, that fact shall be stated in the complaint, and the suit shall proceed as a proceeding in rem against the property assessed. In each of those cases the owner of the property was in possession of it and had no knowledge that foreclosure proceedings had been instituted against his property for unpaid assessments. The owner did not even know that the improvement district had been formed and that his property was within its boundaries. The complaint in each case stated that the owner was unknown, and the general notice 'authorized by the statute in proceedings of this kind was given. The court held that the suit was a proceeding in rem, and that the general notice required by the statute concluded the owner and that the purchaser at the sale under the statute acquired the legal title. It was there contended that the proceeding was a fraud on the court, and for that reason the decree should be set aside.
The court held that the allegations in the complaint that the owner was unknown were sufficient to give the court jurisdiction, and that, although the allegations were untrue, the court had the power to inquire into its own jurisdiction and to determine whether or not the allegation was true. The court then said that on collateral attack it must presume that the court made inquiry as to its jurisdiction to proceed against the property and found facts sufficient to justify its action.
We do not think the decision in Cassady v. Norris, supra, concludes the present case. When the complaint in that case alleged that the owner was unknown, the statute in express terms provided that the suit should proceed as a proceeding in rem against the property assessed, and the owner was concluded because the general notice required by the statute was given. The present statute is essentially different. It provides for notice against the “supposed owner” and provides that the action shall be in the nature of a proceeding in rem. That is to say, it is a proceeding “quasi in rem.” A proceeding in rem has been defined to be a proceeding against the property, while a proceeding quasi in rem is a proceeding against the person in respect to the property.
Tax sales are made exclusively under statutory power, and in order to divest the owner of his property every substantial requisite of the statute must be complied with. On this question Judge Cooley said: “Defects in the conditions to a statutory authority can not be aided by the courts; if they have not been observed, the courts can not dispense'with them, and thus bring into existence a power which the statute only permits when the conditions have been fully complied with. Neither, as a general rule, can the courts aid the defective execution of a statutory power; they may do this when the power has been created by the owner himself, and when such action would presumptively be in furtherance of his purpose in creating it; but a statutory power must be executed according to the ¡Statutory directions, and 'presumptively any other execution is opposed to the legislative will, instead of in furtherance of it. It is therefore accepted as an axiom, when tax sales are under consideration, that a fundamental condition to their validity is that there should have been a substantial compliance with the law in all the proceedings of which the sale Was the culmination. This would be the general rule in all cases in which a man is to be divested of his freehold by adversary proceedings; but special reasons make it peculiarly applicable-to the case of tax sales.” Cooley on Taxation (3 ed.), vol. 2, pp. 912-913.
As we have just seen, the statute requires the notice to be given to the supposed owner. The dictionary meaning of ‘ ‘ supposed” is, “ accepted as true, or believed. ’ ’ Then the statute requires notice to be given to the person believed by the commissioners to be the owner. At the time the foreclosure proceedings were had by the commissioners in the chancery court A. E. Adams was named as the supposed owner. At that time J. C. Budd was the owner of the property and in possession of it. The property was a valuable farm of ninety acres situated on the bank of the Arkansas River and worth about $5,000.
We think the facts presented by the record bring the case within the rule announced in Farmers & Merchants Bank v. Layson Lumber Co., 87 Ark. 607. In that case the commissioners of an improvement district in a city commenced proceedings against J. E. Eubanks as the owner of a lot to enforce the payment of the unpaid assessment. There was a sale of the property under the proceedings, and a deed was executed by the -commissioner-to the Farmers & Merchants Bank as the pur chaser at the sale, -which was approved by .the court. Eubanks did not own the lot at the time the foreclosure proceedings were had, but had conveyed it to another. The court held that the decree in the suit .against Eu-banks did not affect the owner of the lot and those holding under him, they not being parties to the suit, and the suit not being in rem. Therefore, it was held that a proceeding against Eubanks to collect an assessment of a local improvement district under Kirby’s Digest, section 5694, is notice .only to him, and that the decree affects only his interest in the lands, and that no one else is bound by it. It seems that the holding in that case applies here. As we have already seen, the foreclosure proceedings were under the statute. It will be borne in mind that the statute does not designate the suit to foreclose as a proceeding in rem as in the case of an unknown owner, but it in express terms provides that the proceedings and judgment shall be of the nature of a proceeding in rem. It further provides that notice shall be given to the “supposed owner.”
Where the proceedings are strictly in rem under the statute, all persons who have an interest in the property are bound because the land itself is brought before the court. The reason is that no persons are made parties to the suit, but the land itself is brought before the courts, and its status ascertained. In cases where the owners, real or supposed, are made parties under the statute, no one else is concluded except the party who is made a party to the proceedings.
This brings us to the question of whether A. E. Adams could be sued as the ‘ supposed owner. ” It is not shown that he ever had any title to the property or that he was in possession of it, or made any claim thereto at the time the foreclosure proceedings were had. J. C. Budd at that time had the paper title to the property and was in possession of it through his tenant. He was no more bound by proceedings against A. E. Adams as the “supposed owner” than the real owner was in the case last referred to by the proceedings against Eubanks as owner, who had disposed of the property before the foreclosure proceedings were commenced. But it is claimed that such holding ignores that portion of the statute which provides that it shall be immaterial that the ownership of the lands be incorrectly alleged in the proceedings. We do not think so. If there had been any grounds for suing A. E. Adams as the supposed owner of the property, it would have been immaterial that his name was not correctly stated in the notice, or that he was not the actual owner of the property. It is true that the statute provides for a general notice to all persons interested in the property to appear within four weeks and make defense to the suit. But this does not make the suit strictly a proceeding in rent, so that all parties shall be bound by the proceedings. The reason is that the statute also provides that the “supposed owner” or the person believed to be the owner shall be a party to the proceedings. If the “supposed owner” is not made a party to the proceedings, then to take the property away from the owner without attempting to comply with this provision of the statute would be to deny him “due process of law.” The proceeding did not comply with the statutory requirements, and for that reason does not constitute “due process of law” and therefore has no binding effect on Simpson, who has the record title by a quitclaim deed from Budd.
In Gilbreath v. Teufel, 15 N. Dak. 153, the Supreme Court of North Dakota held: “In an action to determine adverse claims to real property, although the proceedings may in all things comply in form with the provisions of the statute relative to the manner of obtaining jurisdiction, it is nevertheless an abuse of the statutory provisions, and is in effect a fraud upon the court and the adverse claimants to not disclose, and name as defendant, all adverse claimants whose names and places of residence could be readily ascertained.”
In Scales v. Wren, 127 S. W. 164, the Supreme Court of Texas held that in a suit to quiet title where plaintiff’s deed was on record, and gave his residence as in a certain county of the State, a judgment for taxes against the “unknown owner” did not conclude plaintiff’s title, since he was entitled to service of citation if within the jurisdiction of the court, and, not being an unknown owner, he was not a party to the proceedings.
In Evans v. Robberson, 1 Am. St. Rep. 701, the Supreme Court of Missouri held that a tax sale, under the Missouri statute, in order to bind the interests of the owner, must show that he was made a party, if known, and, if not known, and not m'ade a party, then his interest can only be affected by making the party appearing by the record to be the owner a party to the suit.
But it is insisted that these decisions should have not control because they are contrary to the decision in the case of Cassady v. Norris, supra. If they would hold that a proceeding under a state of facts similar to the .one in the case at bar was not “due process of law” in a proceeding strictly in rem, and that- therefore the owner was not concluded by the judgment, it is readily apparent that the decisions would apply with greater force in a case where service is required to be had against the real or supposed owner, and in the proceeding’s no attempt is made to serve'such person, but a party who has no interest in the land whatever was designated as the “supposed owner,” or the man believed to be the owner. The time for redemption in the statute under consideration was one year, and it is readily seen how that time would soon pass away and that the land owner who was not familiar with land numbers would be lulled to sleep by his lands being advertised as belonging to some one who had no interest in them, and in this way his farm, however valuable, would be sold to pay a small amount of improvement taxes, as was done in the case at bar.
We do not impute any bad faith in the matter to the commissioners. They had no authority to institute pro ceedings to sell the lands except under the statute. The statute required that the “supposed owner” be made a party to the proceedings. This the commissioners did not do, but instituted proceedings against another person whom the record shows had no interest whatever in the lands, and made no claim to them, and on that account made no defense to the action.
It follows that the chancery court erred in not setting aside the sale, as it was asked to do by the petition filed by the owner in the case. Such was the relief granted in the case of Farmers & Merchants Bank v. Layson Lumber Co., 87 Ark. 607.
Therefore, the decree will be reversed and the cause remanded for further proceedings not inconsistent with this opinion. | [
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Hart, J.
(after stating the facts). It is conceded by counsel on both sides that the only issue to be decided is whether or not the property has legally passed to James Avery under the will referred to in the statement of facts. In the first place, it is contended by counsel for the plaintiffs that the will of Dinah Averitt did not give to Harry Moore the power to dispose of the property in question. Counsel relies upon the oases of Patty v. Goolsby, 51 Ark. 61, and Douglass v. Sharp, 52 Ark. 113. We do not think these cases are applicable. There is nothing in either case to indicate that the testator intended to give to the life-tenant the absolute power to dispose of the fee in the estate. Such intention is clearly indicated in the will of Dinah Averitt. In this respect the case is ruled by that of the Union & Mercantile Trust Co. v. Hudson, 143 Ark. 519. In that case the clause under consideration was as follows:
“Second. I give, bequeath and devise all the rest and residue of my estate owned by me at the time of my death, real, personal and mixed, to my mother, Charlotte D. Turner, to have, hold, use and enjoy during her natural life, it being my desire that she shall have the absolute right to sell or incumber it without any restrictions whatever. ’ ’
The clause in the instant case which we have copied in our statement of facts, and need not repeat here, in plain language gives Harry Moore the power by his last will and testament to dispose of the property in question. It first gives it to him for his natural life, and, in the event of his dying without heirs of his body surviving him, then the property shall go to such persons as Harry Moore by his last will shall direct and appoint.
Having decided that the will of Dinah Averitt gives to Harry Moore the power to dispose of the property, we come to the question of whether or not the will of Harry Moore devised-the property to James Avery. We think it does.
It is contended by counsel for plaintiffs that it does not, because the devise shown by the first clause of the will is, “All of my property, real, personal and mixed, * * * I will and devise to my friend and relative James Avery,” etc. In construing a will the paramount rule is to arrive at the intention of the testator, and this must be done from the language used, where it is plain and free from ambiguity. Parol evidence is admissible in this class of cases, to the same extent as in other cases, in aid of the construction of written instruments, when the language used is doubtful, or susceptible of two meanings, and no further. You may show the conditions as they exist at the time of the execution of tire will and the surrounding circumstances, so as to place the court in the position of the testator. Fitzhugh v. Hubbard, 41 Ark. 64, and Eagle v. Oldham, 116 Ark. 565. In the application of this rule in the instant case, it is proper to consider the conditions as they existed at the date of the execution of the will, and the surrounding circumstances, in order to find out what was intended by the testator. The record shows that Harry Moore had conveyed by deed all of the property devised to him in fee by his grandmother, Dinah Averitt, and that the building on the. property in question, which had been devised to him for his natural life by his grandmother, had been destroyed by fire. Harry Moore was ill and infirm, and had no means with which to rebuild on the property or to support himself for the remainder of his life. He thought that he had the power to dispose of the property in question under the will from his grandmother. He offered to make a will in favor of a friend to this property if his friend would advance him money with which to rebuild. His friend declined to make the advance because he was afraid that Harry Moore might change his mind and make another will devising the property to others. Finally, he agreed with James Avery, a friend and relative, that, if the latter would advance him money with which to rebuild, he would execute a will devising the property in question to him in fee simple. This agreement was carried out by the execution of the will in question. The question of the specific enforcement of an agreement of this sort does not arise in this case. The agreement was carried out by the execution of the will, and Harry Moore died without revoking it. Hence the only question for our consideration is whether or not the language of the will, together with surrounding eimeumstauces, is sufficient to devise the property in fee to James Avery. We think so. The testator devised all of his property, real, personal and mixed, to his friend and relative, James Ávery. The word “all” was sufficiently broad and comprehensive to include any property to which the testator had the power of disposition. The will of Dinah Averitt gave Harry Moore the absolute power to dispose of the property without any restrictions whatever, and the language used, “all my property,” was sufficiently compresensive to include the property in question. In short, if Harry-Moore had the power to dispose of the property by will, he did dispose of it by devising all of his property to his friend and relative, James Avery.
There is nothing in the language of the will indicating a contrary intention on his part.
It follows that the decree must be affirmed. | [
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Wood, J.
On July 23, 1918, «appellant sold to one Whittington, who was a partner of the appellees, Smith and Weaver, all the timber situated on a certain brake north of the town of Earle, in Crittenden County, for the sum of $225. Under the direction of Whittington, appellant told appellee, Smith, of the sale, and at appellant’s request, Smith gave appellant a check for' $225, the purchase price of the timber. On the check were written the words: “For timber in brake north side of Earle.” Appellant cashed the check, and in a few days thereafter appellee took possession of the brake and began cutting and moving the timber. He continued to do so until about the first of October and removed between twenty and fifty thousand feet of timber before he stopped work. The following January the appellant sold the timber to Wallin & Watson for $1,000 without notifying Whittington or the other appellees. In August, 1919, appellee, Smith, not knowing the timber had been sold by appellant, sent a force of employees to continue the operation of cutting and removing the timber. Appellant forbade therii. On April 3, 1920, the appellee Smith brought this action against appellant for damages for breach of the contract. He alleged his purchase of the timber as above set forth, his payment of the purchase price and taking possession of the same as above mentioned. He alleged further that no particular time had been fixed for the removal of the timber, and under the contract he had a reasonable time within which to remove the timber, and that appellant by selling the timber to the other parties had violated his contract with appellee, Smith, to the latter’s damage in the sum of $5,000, for which he asked judgment.
The appellant answered and admitted all the allegations of the complaint except that he denied that no time had been fixed for the removal of timber, and alleged that he had given appellee six months in which to cut ■and remove same; that the time given had expired, and appellant therefore had the right to sell the timber to other parties. The appellee, Smith, testified that he, Whittington and Weaver were partners in the timber business, and they bad bought this timber from appellant. When the fact was developed that Whittington and Weaver were partners of appellee Smith, appellant moved to make Whittington and Weaver parties plaintiff, which motion was granted. Continuing his testimony, Smith described the timber, and stated that there were between 75 and 100 acres which came up to the corporation line of the town of Earle. He testified that nothing was said as to the time for the removal of the timber except when he gave appellant the check, he told appellant that he absolutely would not be in appellant’s way. With that exception the timber was to be appellee’s until they got it off. There were three or four hundred thousand feet of timber on the land. They cut between 20,000 and 50,000 feet which they hauled to Batch’s sawmill. The timber was only about 400 yards from corporate limits. They bought the timber July 23, and it was dry weather from that time on until about October 1, when it began to rain. "Witness had two teams equipped for hauling and also an outfit rented from Whittington. ' It would have taken five or six months working time with no delays and working four teams to remove the timber. They didn’t work every day because they couldn’t get the sawyers.
Whittington testified that the appellant did not fix any time in which they were to get the timber out, and that he and Smith and Weaver were partners in the timber business.
Wallin testified that he bought timber from appellant in January, 1919, and paid him $1,000 for it. He estimated the timber on the brake at 200,000 feet. The logging conditions were good in July, August and September of 1918. Two or three teams ought to have removed the timber in two months’ time. Witness worked for a week or ten days in February, 1920, and got out about 40,000 feet.
Another witness by the name of Johnson testified to the same effect as to weather conditions and as to the time required for the removing of the timber with two teams; that a reasonable time for the removal of the timber was eight Or nine weeks, and same could have been done in 1918. The timber was not over a mile from the mill. After Wallin bought the timber, witness worked in the brake four weeks practically every day, cutting-timber, and during- that time neither Smith, Whittington or Weaver ever came over there. The timber was so close to town it could have been seen falling. Neither of the appellees ever said anything- to witness about cutting timber down. Appellees could have hauled the timber-out in July. They could have got the timber from the 1st of July until the 15th of November, when it set in raining.
Appellee Smith, recalled, stated he did not know when Johnson was cutting timber on the land, but saw appellant a week or so later and said something to him about it. Appellant replied that the time had expired and he did not consider he had sold the timber to him (Smith); that he had sold it to Whittington. He further stated that nothing was said by appellant about giving six months’ time to get the timber off. No time limit was fixed.
The appellant testified he had sold the timber to Whittington, and at the time Whittington bought the timber he told him he would have six months in which to remove the same, and he said, “All right.” It was a bad brake. It was dry weather, August, September and October, 1918. There were 200,000 feet of timber in the brake. Witness sold the timber to Whittington on July 23, 1918, and witness didn’t cut any timber from the land thereafter until August 30, 1919. Witness sold the timber to Wallin January 28, 1920. When witness received the check, there was nothing on it showing what it was given for.
Among others, the court gave the following instruction, over the objection of the appellant:
“No. 4. If the jury finds there was no time agreed upon within which to cut and remove the-timber, then the plaintiffs would have a reasonable time after July 23, 1918, within which to cut and remove the timber. And by reasonable time is meant such time as a man of ordinary care and prudence would be allowed to take under the circumstances; and in determining that you ought to take into consideration all the facts and circumstances, the character of the ground, the character and quantity of timber, the facilities of the plaintiffs for cutting and removing it, and all the facts and circumstances in evidence in determining what is a reasonable time, and whether or not plaintiffs should have gotten the timber out within that time. ’ ’
The jury returned a verdict in favor of appellees for the sum of $1,000. Judgment was entered -for them in that sum, from which is this appeal.
' The appellant did not deny that he had sold to Whittington the tract of timber land in controversy. On the contrary, he admitted that Whittington had paid the purchase money and had taken possession of the land pursuant to the contract. This testimony was sufficient to take the contract out of the statute of frauds, and the court did not err in submitting to the jury the issue 'as to whether or not the appellant had limited appellee’s right to remove the timber in a period of six months. This issue was expressly raised by the pleadings. The court erred in telling the jury that, in determining whether or not the plaintiffs had cut and removed the timber within a reasonable time, “the facilities of the plaintiffs” for cutting and removing it should be taken into' consideration. The appellees did not prove that appellant knew what facilities were possessed by the appellees for the removal of the timber at the time the same was sold, nor that the sale was made in contemplation that appellees would use only the facilities they then possessed. The evidence shows that the plaintiffs had only three teams at work in removing the timber, and appellee Smith testified that, with no delays and four teams, it would have taken five or six months working the whole time to remove the timber; that working with the facilities the plaintiffs had during over two months of good weather, they had got out about 50,000 feet of timber. On the other hand, after the timber was sold to Wallin, he worked during the month of February, 1920, and got out 40,000'feet. This plainly shows that the facilities of the plaintiffs was not a proper criterion to be taken into consideration. The appellees did not show that by the exercise of ordinary care they could not have provided themselves with better facilities than they had. Such was their duty if they could have done so by the exercise of reasonable diligence. The appellees had no right to prolong the time by failing to exercise ordinary care and prudence to provide themselves with the necessary facilities to remove the timber in a reasonable time, consider ing all the circumstances and conditions affecting the removal of the timber. It was not the facilities which the appellees had, but those which in the exercise of ordinary care they could and should have had to enable them to cut and remove the timber within a reasonable time.
In Burbridge v. Ark. Lumber Co., 118 Ark. 94-109, we said: “In determining the question of reasonable time, it was proper to take into consideration the location of the land, its accessibility, the character and quantity of timber thereon, the seasonableness of the weather, and the facilities for cutting and removing the timber, and all other conditions and circumstances which might affect the removal thereof.” Citing Earl v. Harris, 99 Ark. 112; Liston v. Chapman & Dewey Land Co., 77 Ark. 116; also Fletcher v. Lyon, 93 Ark. 10; Ingham Lumber Co. v. Ingersoll, 93 Ark. 447; 6 R. C. L. 997, and other cases cited in appellant’s brief.
We find no other reversible error in the record. For the error indicated, the judgment is reversed and the cause is remanded for a new trial. | [
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Habt, J.
(after stating the facts). In the case of Kennedy v. Stale, 117 Ark. 113, which was a bastardy proceeding, the court held that where a child is born in wedlock it is presumed to be legitimate, but that this presumption may be rebutted by sufficient evidence showing that the husband was impotent or entirely absent at the period in which the child in the course of nature has been begotten so that lie could not have had access to the child’s mother. The rule is about the same on the subject of descent and distribution. The question of the legitimacy or illegitimacy of the child of a married woman is one of fact, resting upon decided proof as to the nonaccess of the husband. 2 Kent, Comm. (14 ed.) *211.
In Patterson v. Gaines (U. S.), 6 How. 550, and Gaines v. Hennen, 24 How. (U. S.) 553, the court held that access between man and wife 'is always presumed until otherwise plainly proved, and nothing is allowed to impugn the legitimacy of a child short of proof by fact showing it to be impossible that the husband could have been its father. This is the general rule on the subject. 3 R. C. L., pp. 728-29.
Conception during wedlock is not essential to the presumption of legitimacy which arises from birth in wedlock. There is a division as to the amount of proof necessary in such cases. Some of the authorities hold that antenuptial conception does not even weaken the presumption of legitimacy arising from postnuptial birth. This is in recognition of the frailties of human nature. 3 R. C. L., § 10, p. 730.
Another line of authorities recognizes that the presumption is -weaker in cases of antenuptial conception, and the reason given is that it is the marriage only, and not the presumed intercourse resulting from marriage, which creates the presumption. It does not make any difference which of these, rules is correct, so far as his case is concerned, for the finding of the court is correct under either rule. The decided weight of authority is that every child born during wedlock is rightly presumed to be the offspring of the husband. The presumption must be adhered to for the protection of the rights of those who are attempted to be bastardized without any fault on their part, to preserve the peace of families and to promote the interest of society.
In the present case it is claimed that the proof overcomes the presumption of the legitimacy of Lola Jacobs. We think the proof falls short of doing this, and that the court rightly held that Lola Jacobs was the legitimate child of Dee E. Jacobs, deceased. The only testimony tending to show that she was not his child was the testimony of witnesses to the effect that Lola Jacobs resembled another young 'man who kept company with her mother and that he had equal opportunity with Dee E. Jacobs to have been the father of the child. No attempt was made to show any undue intimacy on the part of this young man with Lola Jacob’s mother or that they had even been engaged to marry. The law will not balance probabilities in this way.
Counsel for appellant also point to the fact that the father of Lola Jacobs’ mother swore out a warrant against Jacobs, before the latter’s marriage to the former’s daughter, charging Dee E. Jacobs with being the father of the unborn child. They insist that because of the arrest the rule should be changed. This court has held that, if a man seduces a woman and marries her through fear of the consequences of his crime, the mar riage nevertheless will be valid and the child will be legitimate. Honnett v. Honnett, 33 Ark. 156; and Marvin v. Marvin, 52 Ark. 425.
Counsel for appellants contend for a reversal of the judgment under the provisions of section 2639 of Kirby’s Digest, which reads as follows:
“If a man have by a woman a child or children, and afterward shall intermarry with her, and shall recognize such children to be his, they shall he deemed and considered as legitimate.”
This section has no application to the present suit. It refers to cases where the children are horn before the marriage. In such cases there must be a recognition of the children after the marriage in order to make them legitimate. Rowland v. Taylor, 134 Ark. 183, and Swinney v. Klippert (Ky.), 50 S. W. 841.
The case turned upon the testimony of Lola Jacobs, and the circuit court properly held in her favor on this point.
It follows that the judgment will be affirmed. | [
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Smith, J.
This proceeding was brought by appellants under act 282 of the Acts of 1917, vol. 2, p. 1468. The prayer of the complaint was that a writ of mandamus issue, directing the Commissioner of State Lands to issue appellants a deed or muniment of title to a certain island containing 131.85 acres, surveyed and platted under the directions of such Commissioner by Fulton Patterson, a land surveyor, and described by his field notes as being in sections 20, 21, 29 and 28, township 9 north, range 32 west, the same being an island in the Arkansas River. The complaint recites numerous demands on the Commissioner for his deed to said island, but that the Commissioner had informed appellants “that he had decided that said land was not an island, ■and was not subject to sale by the State of Arkansas, and he would, therefore, positively refuse to sell said lands to plaintiffs.” A demurrer to this complaint was sustained, and this appeal is from the order dismissing it.
The order of the court below is defended upon two grounds, (1) that the finding of the Commissioner is conclusive, and (2) that the act of 1917 was repealed by act No. 344 of the Acts of 1919 (General Acts 1919, p. 256). We find the first contention well taken, and do not, therefore, consider the second one. ,
The Legislature constituted the Commissioner of State Lands as the agent of the State in disposing of islands in the navigable streams of the State, and by section 5 of the act of 1917 he was given a discretion in the discharge of his duties. This was done because it was necessarily contemplated that there might be conflicting applications to buy the same island, and that there might be questions of fact for the Commissioner to decide. This section 5 gives the Commissioner the right, and imposes upon him the duty, of establishing rules and regulations by which these conflicts may be determined and questions of fact decided, and provides that “the determination of the said Commissioner, in the absence of fraud or collusion, shall be final.”
There is no allegation of fraud or collusion on the part of the Commissioner, but the complaint does allege that the Commissioner “arbitrarily refused to sell plaintiffs said island without any good and lawful excuse for his said refusal.” But the act confers on the Commissioner the authority only to sell islands which have formed, or may form, in the navigable streams of the State, and the complaint contains the recital that the Commissioner has announced his decision to be that the land which appellants desire to buy is not an island.
There is, therefore, no refusal of the Commissioner to act on appellants’ application. It has been passed upon, and denied. The Commissioner’s decision may have been erroneous, but it can not be corrected or controlled by mandamus. Garland Power Co. v. State Board, etc., 94 Ark. 423; Ouachita Power Co. v. Donaghey, 106 Ark. 48; Patterson v. Collison, 135 Ark. 108.
Judgment affirmed. | [
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Wood, J.
The appellant was indicted with Clyde Pearrow for burglary and grand larceny in White County, Arkansas, alleged to have been committed on the 1st day of December, 1919. He was tried separately. The burglary was alleged to have been committed by feloniously breaking and entering a box car being in possession of the Missouri Pacific Railroad Company, a corporation, with an intent to steal four bolts of dress goods of the value of $60, thirty-six window shades of the value of $72, and sixteen cases of cigarettes of the value of $1,280, the property of the railroad 'company,, a corporation.
A witness testified that he and Clyde Pearrow broke into two cars on the night of the alleged burglary and took therefrom sixteen cases of cigarettes, some dress goods, and window blinds. Witness supposed that the appellant took his part home with him. Witness sold two cases of the cigarettes for appellant to Otis Parham.
Parham testified that he bought 20,000 cigarettes from the appellant about the last of January, 1920, for which he paid him $65. The cigarettes were delivered by one Lotis Lockaby. Clark Pearrow said they were his, and he gave him a check for $65.
Sheriff Plant testified that he searched appellant’s house and found some dress goods — two pieces of cloth. Another witness testified that he was present when appellant’s house was searched and found thirty-three yards of cloth, two kinds, one red-checkered and the other blue. There were three or four pieces. Over the objection- of appellant, witness testified that the Missouri Pacific Railroad Company was a corporation.
Green Pearrow, the father of appellant, was introduced as a witness in appellant’s behalf. He testified that the officer searched his house at the time they searched appellant’s. Over the objection of appellant, the prosecuting attorney was allowed to question this witness as to certain articles of merchandise that were found in his house, which articles embraced many things not alleged to have been recently stolen.
The court gave certain instructions, and among others, the following: “You are instructed that the possession of property recently stolen and unexplained by the defendant, affords presumptive evidence of his guilt. Such possession is a circumstance which may be proved and taken into consideration by the jury, and if, in connection with the other facts and circumstances proved in the case, it induces in the minds of the jury a belief, beyond a reasonable doubt, of the guilt of the defendant, it becomes sufficient to warrant a conviction.”
Appellant objected generally and specifically to the giving of this instruction cn the ground that it was a charge upon the weight of the evidence.. The trial resulted in a judgment of conviction, from which is this appeal.
The court erred in telling the jui’y “that the possession of property recently stolen and unexplained by the defendant affords presumptive evidence of his guilt.” This language was an instruction on the weight of the evidence which was condemned by this court as erroneous and prejudicial in the quite recent case of Long v. State, 140 Ark. 413, when we said:
“The rule is that the unexplained possession of recently stolen property is a fact from which an inference of guilt may be drawn. ” It is wholly within the province of the jury to draw or not to draw such an inference, and it is an invasion of the province of the jury to tell them, as a matter of law, that the unexplained possession of recently stolen property raises a presumption of guilt. Other cases holding to this effect are cited in Long v. State, supra. The latter part of the instruction is a correct statement of the law, but it did not cure the vice of the language of the first part, just quoted.
There was no testimony that the property alleged to have been stolen was the property, or in possession, of the Missouri Pacific Railroad- Company. Since the ownership of the property was alleged to be in-the Missouri Pacific Railroad Company, a corporation, it was only necessary for the State to show the de facto existence of the corporation. Evidence of'general reputation of its corporate existence was competent and sufficient to prove it. Section 3984, Kirby’s Digest; Fleener v. State, 58 Ark. 98; Mears v. State, 84 Ark. 136-140; Brown v. State, 108 Ark. 339; 3 Bish., New Criminal Procedure, § 752.
The ownership, general or special, of the property alleged to have been stolen should have been proved. The cross-examination of the witness, Green Pearrow, concerning the articles of merchandise found in his possession, but which were not alleged or shown to have been recently stolen, was improper and should not have been permitted by the court. The possession of these articles, however, was explained by him, and no prejudicial error to appellant could have resulted in such examination. But the other errors indicated were prejudicial, and for these errors the judgment will be reversed and the cause remanded for a new trial. | [
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Donald L. Corbin, Justice.
Appellants National Bank of Commerce, as guardian of the estate of Ashley Marie Smits, and William J. Smits Jr., individually and as Ashley’s parent and next friend, initiated this products-liability action on September 16, 1994, in the Pulaski County Circuit Court against Dow Chemical Company, a Delaware corporation; Rofan Services, Inc., a Delaware corporation and wholly owned subsidiary of Dow; Epco, Inc. of Indiana d/b/a DowElanco, an Indiana corporation; and two John-Doe defendants, manufacturers and distributors of a pesticide known as Dursban LO (collectively, the “pesticide defendants”). Appellants also sued Steam Services, Inc., a California corporation and manufacturer of a fire-reodorant product called Firefog 404. Additionally, Appellants named as defendants Adams Pest Control of North Little Rock, an Arkansas corporation; Metro Builders & Restoration Specialists, Inc., an Arkansas corporation; and two John-Doe defendants, applicators of the Dursban and Firefog products (collectively, the “applicator defendants”).
Appellants’ complaint originates from allegations that during her pregnancy, Ashley Smits’s mother was exposed to Dursban and Firefog that ultimately caused Ashley’s severe birth defects. Maria Smits, Ashley’s mother, was employed at the Eagle Bank in Sherwood, Arkansas, during the early months of 1991. Ashley was conceived on or about January 16, 1991; Maria learned that she was pregnant on February 5, 1991. Ashley was born on September 20, 1991. On February 6, 1991, Adams Pest Control made a “crack and crevice” application of a 0.5% solution of Dursban in water around the baseboards of the interior of the bank. Maria Smits worked that day until two hours after Adams sprayed the pesticide.
One week later, on February 11, 1991, an electrical fire occurred at the bank. On that same day, Metro Builders & Restoration Specialists, Inc., applied Firefog to remove the odor left by the fire. Maria Smits also worked on this day and continued to work at the bank until early April 1991. In the instant case, Appellants claimed that the pesticide defendants, Steam Services, and the applicator defendants, either singly, or in combination, proximately caused Ashley’s birth defects.
Prior to the instant suit in state court, on January 27, 1994, Appellants filed a case in federal court against the pesticide defendants and Steam Services. Notably, Appellants elected not to join the applicator defendants to ensure complete diversity in federal court. On May 19, 1996, and December 30, 1996, respectively, the federal court granted Steam Services’ and the pesticide defendants’ motions for summary judgment after excluding the opinion testimony of Appellants’ expert witnesses. In a sixty-six page opinion, the federal court dismissed Appellants’ complaint. See National Bank of Commerce v. Dow Chemical Co., 965 F. Supp. 1490 (E.D. Ark. 1996), aff'd, 133 F.3d 1132 (8th Cir. 1998). In reaching its decision, the federal district court concluded that Appellants failed to show that the proffered expert testimony had a valid scientific foundation, as required by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Specifically, the federal court excluded Appellants’ experts’ testimony because it was not based upon accepted scientific methodology for determining whether a chemical agent can cause birth defects in humans. Subsequently, in National Bank of Commerce, 133 F.3d 1132, the Eighth Circuit Court of Appeals affirmed the district court’s decision.
Following the federal court’s decision dismissing Appellants’ case against the pesticide defendants and Steam Services, the state trial court considered summary-judgment motions filed in the instant case by the pesticide defendants, Steam Services, and the applicator defendants. On June 3, 1998, after considering the motions, responses, pleadings of record, and statements of counsel, and subsequent to a hearing on May 15, 1998, the trial court granted Appellees’ motions for summary judgment and dismissed Appellants’ complaint. From that order comes the instant appeal, challenging the trial court’s findings that (1) all issues raised in the state case could have been addressed in the federal action, and (2) res judicata or collateral estoppel bars further litigation in state court against all Appellees. We find no merit in Appellants’ arguments, and we affirm the trial court’s grant of summary judgment in favor of all Appellees.
Notably, Appellants also urge this court to consider the standards of admissibility of expert testimony pursuant to Daubert, 509 U.S. 579, and to issue a detailed opinion regarding Daubert “that will offer guidance to attorneys and the lower courts of this State.” Although this appeal was originally filed in the Arkansas Court of Appeals, upon Appellants’ motion to transfer, we accepted the case to consider an issue of substantial public interest. See Ark. Sup. Ct. R. 1—2(b)(4). However, Appellants seek an advisory opinion with regard to Daubert. The state trial court never ruled on the applicability of the Daubert standards nor on the admissibility of Appellants’ expert testimony. Rather, the trial court ruled upon Appellees’ summary-judgment motions and concluded that res judicata and collateral estoppel barred Appel lants’ action. Accordingly, we address the merits of the summary-judgment issue only.
I. Standard of Review
In reviewing summary-judgment cases, this court need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Further, the moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. The moving party is entided to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Ark. R. Civ. P. 56; Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 966 S.W.2d 241 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).
Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Dillard v. Resolution Trust Corp., 308 Ark. 357, 824 S.W.2d 387 (1992). However, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. Collyard v. American Home Assurance Co., 271 Ark. 228, 607 S.W.2d 666 (1980).
II. Res Judicata
Appellants’ first point on appeal contends that the trial court erred by granting summary judgment in favor of the pesticide defendants and Steam Services. In response, Appellees claim that the doctrine of res judicata mandates that we affirm the trial court’s decision. We agree. Res judicata, or claim preclusion, bars the relitigation of a subsequent suit when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involved the same claim or cause of action that was litigated or could have been litigated but was not; and (5) both suits involved the same parties or their privies. Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993).
We have also recognized that identical cases between the same parties may be pending in a federal court and a state court at the same time. See Carter v. Owens-Illinois, Inc., 261 Ark. 728, 551 S.W.2d 209 (1977). However, the “first forum to dispose of the case” enters “a judgment that is binding on the parties.” Id. at 730, 551 S.W.2d at 210. Accordingly, the federal district court’s grant of summary judgment in favor of the pesticide defendants and Steam Services, both parties in the instant action, bars relitigation in the state trial court.
Applying the factors required to establish res judicata, we first note that the district court’s entry of summary judgment constituted a final judgment on the merits, later affirmed by the Eighth Circuit Court of Appeals. An order granting summary judgment is a final adjudication on the merits that bars subsequent suits on the same cause of action. See Magness v. McEntire, 305 Ark. 503, 808 S.W.2d 783 (1991). Second, pursuant to 28 U.S.C. section 1332, the district court had proper diversity jurisdiction over Appellants’ claims. Third, the federal case was fully contested in good faith, as demonstrated by the federal district court’s and the Eighth Circuit’s review of voluminous briefs, discovery materials, and oral arguments. In fact, the district court’s opinion was over sixty-five pages.
Fourth, the federal and state complaints evidence that Appellants’ claims against Appellees are identical in both cases. Both suits alleged that Ashley’s mother’s exposure to Dursban and Firefog caused Ashley’s birth defects. Appellants contend that several fact issues remain, including the concentration of the Dursban solution and the existence of “new research.” However, the record indicates that Appellants conceded in the federal suit the concentration of Dursban applied, and that either the district court or the Eighth Circuit considered the “new research.”
In any event, AppeEees correctly note that the existence of “new research” bears no relevance to the issue of res judicata. The exceptions to res judicata are (1) fraud or coEusion in the procurement of the first judgment, and (2) lack of jurisdiction. Wells v. Arkansas Public Serv. Comm’n, 272 Ark. 481, 616 S.W.2d 718 (1981). Neither exception is alleged here, and Appellants fail to offer any convincing argument or authority in support of their position urging this court to create a third exception to res judicata, namely, “new evidence.” We do not consider assertions of error that are unsupported by convincing legal authority or argument, unless it is apparent without further research that the argument is well taken. Grayson v. Bank of Little Rock, 334 Ark. 180, 971 S.W.2d 788 (1998) (citing Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (1997); J&J Bonding, Inc. v. State, 330 Ark. 599, 955 S.W.2d 516 (1997)).
Moreover, the United States Supreme Court, in Daubert, specifically addressed the policy of balancing “new research” in science with the objectives of law.
Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. . . . We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.
Daubert, 509 U.S. at 597 (footnote omitted).
Finally, both the state and federal cases involved the same parties or their privies. The addition of the applicator defendants in the state suit does not bar the application of res judicata with respect to the pesticide defendants and Steam Services. In Crockett, 314 Ark. 578, 864 S.W.2d 244, this court noted that the presence of additional defendants in a subsequent suit did not prevent the application of res judicata to those defendants named in the former suit. Significantly, this court has also held that:
[A] plaintiff who deliberately selects his forum is bound by an adverse judgment therein in a second suit involving the same issues, even though defendant in the second suit was not a party, nor in privity with a party, in the first suit.
Rose v. Jacobs, 231 Ark. 286, 289, 329 S.W.2d 170, 172 (1959) (quoting 50 C.J.S. 293, § 763). In light of the foregoing, we con- elude that the trial court did not err by granting summary judgment in favor of the pesticide defendants and Steam Services.
III. Collateral Estoppel
Appellants’ second point on appeal asserts that summary judgment is inappropriate as to the applicator defendants. However, the applicator defendants suggest that the doctrine of collateral estoppel procedurally bars the suit against them. Collateral estoppel, or issue preclusion, bars the relitigation of matters directly and necessarily litigated in a previous action. Specifically, collateral estoppel requires that (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) a determination must have been essential to the judgment. Crockett, 314 Ark. 578, 864 S.W.2d 244.
Here, although Appellants named the applicator defendants as additional parties in the state suit, the causation issue before the state court and the federal court was identical. In the federal suit, Appellants litigated the issue of whether there was sufficient evidence to support a conclusion that Dursban and Firefog could have caused Ashley’s birth defects. Regardless of whether Appellants named the applicator defendants in the complaint, the causation issue before the state court remains the same. Accordingly, in the absence of a genuine issue of material fact and given the federal courts’ final judgments on the merits, we affirm the trial court’s decision granting the applicator defendants’ motions for summary judgment.
Viewing the evidence in the light most favorable to Appellants, resolving any doubts against Appellees, and finding that there remain no genuine issues as to material facts, we hold that the trial court did not err by finding that Appellees were entitled to a judgment as a matter of law.
Affirmed.
Gail Inman-Campbell and Ted Sanders, Sp.JJ., join in this opinion.
Glaze and Imber, JJ., not participating.
Appellants originally filed suit against the pesticide defendants and Steam Services in both federal and state court. However, the state trial court dismissed the state action on March 21, 1996, pursuant to Ark. R. Civ. P. 12(b)(8). This court reversed that decision in National Bank of Commerce v. Dow Chemical Co., 327 Ark. 504, 938 S.W.2d 847 (1997), holding that Rule 12(b)(8) did not apply, and permitted the cases to proceed simultaneously in federal and state court. | [
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Per Curiam.
JoAnn Maxey, Attorney at Law, of Little Rock, is appointed, effectively immediately, to the Client Security Fund Committee to fill the unexpired term of Martha Miller Harriman, Attorney at law, who has resigned from the Committee. This term expires on July 30, 2001.
The Court extends its thanks to Ms. Maxey for accepting appointment to this most important Committee.
The Court expresses its gratitude to Ms. Harriman for her years of service to the Committee. | [
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Donald L. Corbin, Justice.
Appellant Crawford & Lewis, a Louisiana law firm, appeals the order of the Pulaski County Chancery Court denying its petition for attorney’s fees and disgorging fees previously paid to it by the Mae M. Stacy Trust. For reversal, Crawford & Lewis argues that the chancellor abused her discretion by failing to award its requested fees and by disgorging fees previously paid. Appellee Boatmen’s Trust Company of Arkansas (Boatmen’s), has filed a cross-appeal on the issue of attorney’s fees to be awarded in defense of Crawford & Lewis’s petition. Boatmen’s also seeks confirmation from this court regarding the chancellor’s award of postjudgment interest on the fees disgorged from Crawford & Lewis. This case was certified to us from the Arkansas Court of Appeals pursuant to Ark. Sup. Ct. R. 1 -2 (d). We affirm.
I. Facts and Procedural Fdistory
The record in this case reveals the following facts. On December 14, 1995, Crawford & Lewis filed a petition in chancery court seeking an award of attorney’s fees in the amount of $38,780.19, for services rendered on behalf of the Mae M. Stacy Trust. Boatmen’s and Polly Stacy, the sole beneficiary of the trust, filed objections to the petition for fees. Boatmen’s also filed a cross-claim arguing that the trust was “entitled to a disgorgement of all fees and expenses previously paid by it to Crawford & Lewis [.]” A four-day hearing was held on these issues and the chancellor denied Crawford & Lewis’s petition for attorney’s fees, but granted Boatmen’s cross-claim that $16,608.89 in fees previously paid to the firm be disgorged. In order to understand the issues raised on appeal, it is necessary to set forth the facts of the underlying transactions that led to this fee dispute.
The trust was established in 1971 naming Polly Stacy as the sole income beneficiary. Floyd Richardson Jr. was named as the sole residuary beneficiary of the trust, as well as a co-trustee with Boatmen’s. The trust granted Richardson tie-breaking authority in the event of a dispute with the other trustee. Beginning around 1992, an acrimonious relationship developed between Richardson and Boatmen’s because of a dispute over investment strategies. Utilizing his tie-breaking authority, Richardson purchased a home in Baton Rouge, Louisiana, on July 17, 1992. He used $52,500.00 worth of trust assets to make the down payment, but title to the property was placed in his and his wife’s names. Richardson and his wife occupied the home, but the trust paid the mortgage, utilities, and renovation expenses for the home. The Richardsons were represented at the closing of this property by Laura Poché, a partner in Crawford & Lewis’s firm. Three days after the closing, Poché sent Richardson a letter urging him to proceed with the transfer of title from himself to the trust. After sending this letter, Poché had no further contact with Richardson for over a year.
In July 1993, Richardson entered into a lease-purchase contract with Dr. Lawrence Goldberg to sell the Louisiana home. Goldberg paid $45,000.00 as a down payment, and Richardson used the money to open a separate account with Merrill Lynch rather than depositing the funds with the custodial trustee. The record indicates that Richardson spent the $45,000.00 for personal purposes. After entering into this agreement with Goldberg, Richardson again contacted Poché requesting that she draft a separate lease agreement for Goldberg. Poché spent several months attempting to draft a lease with terms agreeable to Goldberg but was never successful. The fees resulting from this work were billed to, and paid by, the trust. Even though the parties were unable to agree on lease terms, they did agree to a sale of the property to Goldberg. Prior to selling the property to Goldberg, Richardson requested that Poché transfer title from him to the trust, and then transfer title to Goldberg. Again, the attorney’s fees that accrued as a result of this transaction were paid by the trust.
Goldberg financed part of the purchase price through Ford Credit; Boatmen’s agreed to carry a note on the remaining balance. Goldberg defaulted on the notes and ultimately filed bankruptcy in August 1994. Goldberg’s bankruptcy trustee filed an adversary proceeding against the trust and Richardson, personally, alleging fraud in the sale of the home and seeking to recover the $45,000.00 Goldberg paid to Richardson. Crawford & Lewis filed a motion to dismiss on behalf of Richardson, but filed an answer on behalf of the trust. After determining that Richardson was being sued in his individual capacity, Crawford & Lewis ceased representation of Richardson, personally, but continued to represent him in his capacity as co-trustee.
Concerned that Crawford & Lewis was putting Richardson’s personal interests before the best interests of the trust, Boatmen’s sought to obtain independent counsel in the suit against Goldberg. On April 28, 1995, the chancellor issued an order instructing Crawford & Lewis to provide a status report on the case and to halt all activity on behalf of the trust. The order further authorized Boatmen’s to obtain independent bankruptcy counsel in Louisiana if needed; Boatmen’s then retained David Rubin. Poché submitted the status report as requested, but asserted that the chancery court lacked jurisdiction to compel her to cease representation on behalf of the trust. Poché refused to turn over her files to Rubin and continued to represent the trust in the Goldberg bankruptcy matter on behalf of Richardson, as co-trustee, while Rubin represented Boatmen’s in the Goldberg action.
Richardson soon filed his own bankruptcy action in Louisiana, and, in the summer of 1995, Boatmen’s filed a motion to have Richardson removed as co-trustee. At the removal hearing before the Louisiana bankruptcy court, Poché voluntarily testified on Richardson’s behalf regarding his actions as trustee, and her firm’s representation of the trust in various matters. The bankruptcy court found that Richardson had engaged in extensive self-dealing as co-trustee, and it entered judgment in favor of the trust in the amount of $147,417.89 and removed Richardson as co-trustee. During its oral ruling on September 28, 1995, the bankruptcy court made the following comments regarding Ms. Poché’s representation of Richardson:
Ms. Poché needs a little seasoning. Ms. Poché never understood what she was doing. Ms. Poché doesn’t understand that a lawyer cannot close her eyes and say anything I’m told to do is okay because of the veto power.
Here we have classic self-dealing which fooled or at least confused the lawyer to the extent that the lawyer took four-and-a-half months before the lawyer communicated to the co-trustee about anything that was going on. And why? The explanation is, why; because I was representing Mr. and Mrs. Richardson, they were the record owners, but they were buying it and acting as co-trustee for the trust.
After Richardson was removed as co-trustee, Crawford & Lewis ceased representation of the trust and subsequently filed a motion for attorney’s fees with the Arkansas chancery court. Interestingly, Crawford & Lewis also filed a proof of claim against Richardson’s bankruptcy estate for the exact amount of fees it sought from the trust.
In denying Crawford & Lewis’s motion for fees and ordering the firm to disgorge fees previously paid, the chancellor set forth very specific findings of fact and conclusions of law. The chancellor’s order relied on the factors enumerated by this court in determining when an award of attorney’s fee is reasonable. Those factors include, but are not limited to, the time devoted by the law firm; the ability, skill, and competence of counsel; the nature and extent of services rendered; the results obtained, amount of recovery, and benefit to the trust; and, adequate compensation for competent attorneys and fees awarded in similar cases. See Rahat v. Golmirzaie, 332 Ark. 569, 966 S.W.2d 883 (1998). The chancellor also considered the undisclosed conflicts of interests present in Crawford & Lewis’s representation of the trust, as well as the firm’s violation of the chancellor’s prior order to cease its representation of the trust. Citing her extensive knowledge of the trust, its assets, and the attorneys and parties involved, the chancellor ultimately found that most, if not all, of the services rendered in connection with the fee application were rendered primarily for the benefit of the Richardsons, individually, and not the trust, and therefore should not be compensable by the trust.
II. Points on Appeal
For reversal of the chancellor’s ruling, Crawford & Lewis argues that there is no basis in fact or in law for the disgorgement of fees or the denial of their motion for additional fees. Crawford & Lewis asserts that the chancellor erroneously relied upon misstatements by Boatmen’s witnesses and counsel. Crawford & Lewis argues further that there was no evidence to support a finding that a conflict of interest existed in its representation of the trustees. We disagree with Appellant that there is no basis in fact or law to support the chancellor’s order and therefore affirm her decision.
We review chancery cases de novo on the record, but we will not reverse a finding of fact by the chancellor unless it is clearly erroneous. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Saforo & Assocs., Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999); RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). In setting the amount of fees awarded, it is well settled that the chancellor is in a better position to evaluate counsel’s services than an appellate court, and, in the absence of clear abuse, the chancellor’s award of an attorney’s fee will not be disturbed on appeal. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987).
In its counterclaim, Boatmen’s asked the chancellor to disgorge the fees previously paid by the trust to Crawford & Lewis. Boatmen’s apparently relied on federal law in support of its counterclaim, as federal bankruptcy courts have recognized a remedy for the disgorgement of attorney’s fees. See In Re Coones Ranch, Inc., 1 F.3d 740 (8th Cir. 1993); In Re Sauer, 222 B.R. 604 (8th Cir. BAP 1998). Arkansas courts have not recognized the term “disgorgement.” This court, however, has recognized a remedy for debarring an attorney from collecting compensation as a result of representing conflicting interests. Our decisions visiting this issue have cited to the opinion of Judge Learned Hand in Silbiger v. Prudence Bonds Corp., 180 F.2d 917 (2nd Cir. 1950), which states in relevant part:
Certainly by the beginning of the Seventeenth Century it had become a common-place that an attorney must not represent opposed interests; and the usual consequence has been that he is debarred from receiving any fee from either, no matter how successful his labors. Nor will the court hear him urge, or let him prove, that in fact the conflict of his loyalties has had no influence upon his conduct; the prohibition is absolute and the consequence is a forfeiture of all pay.
Id. at 920-21 (footnotes omitted). See Sikes v. Segers, 266 Ark. 654, 662-63, 587 S.W.2d 554, 558 (1979); American-Canadian Oil & Drilling Corp. v. Aldridge & Stroud, 237 Ark. 407, 410, 373 S.W.2d 148, 150 (1963). Similarly, the United States Supreme Court held that where a party was serving more than one master or was subject to conflicting interests, he should be denied compensation. Woods v. City Bank Co., 312 U.S. 262, 268 (1941). The Court went on to state that it is no answer to say that fraud or unfairness was not shown to have resulted.
In the present case, Crawford & Lewis attempts to argue that its prior representation did not result in harm to the trust. This argument fails for two reasons. First, the trust did suffer harm as a result of the law firm’s blind representation of Richardson’s interests. Particularly, the trust assets were depleted in order to pay attorney’s fees for services that benefitted Richardson, and not the trust. Second, in light of the Supreme Court’s decision in Woods, 312 U.S. 262, the argument that no harm resulted is irrelevant. The important consideration is that Crawford & Lewis was representing two parties whose interests were diverse.
Similarly, we are not persuaded by Crawford & Lewis’s argument that their representation of Richardson and the trust did not create a conflict of interest. Crawford & Lewis’s reliance on American-Canadian, 237 Ark. 407, 373 S.W.2d 148, is misplaced as it fails to recognize an important distinction between the situation in American-Canadian and the present matter. In the prior case, the evidence indicated and this court determined that the interests of the note maker and the note holder were never adverse. Here, however, the chancellor correctly found that the evidence established that the interests of Richardson and Boatmen’s were extremely adverse. Indeed, the record reflects that almost from the beginning of its representation of these parties, Crawford & Lewis had notice that the relationship between Richardson and Boatmen’s was acrimonious. A prime example of this was when Pdchardson sought to have the trust purchase the first note on the Louisiana house after Goldberg had defaulted, and Boatmen’s repeatedly resisted such efforts. Instead of determining what action was in the best interest of the trust, Crawford & Lewis continually pressed Boatmen’s to repurchase the first mortgage as Richardson desired. Clearly, under the holding in American-Canadian, Crawford & Lewis’s representation of conflicting interests results in its forfeiting of all rights to any compensation from the trust.
Crawford & Lewis’s attempt to argue that no conflict existed because it was representing Richardson and Boatmen’s as co-trustees is thus without merit. The services rendered by Crawford & Lewis were at the behest of Richardson. The testimony of Ms. Poché supports Boatmen’s contention that the law firm failed to adequately inform Boatmen’s of matters related to trust affairs. Crawford & Lewis’s time records reflect constant contact with Richardson, but only sporadic contact with Boatmen’s representatives. Documents introduced as exhibits in this case below prove that oftentimes Crawford & Lewis only copied the documents to Richardson, but not to Boatmen’s. Crawford & Lewis tried to explain the lack of contact with Boatmen’s by claiming that it was their belief that Richardson was in contact with Boatmen’s. This explanation, however, effectively thwarts Crawford & Lewis’s assertion that it was representing both Richardson and Boatmen’s as co-trustees.
Finally, this court has consistently held that any award of attorney’s fees should be reasonable. There are established principles which a court should use in determining the reasonableness of an attorney’s fee and, among others, those should include consideration of whether or not the actions taken by a party seeking such fees was meritorious and successful. Griffin v. First Nat’l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994). Even though this case involves the denial of fees, this principle is still applicable because the decision to deny any fees under the circumstances was entirely reasonable. Crawford & Lewis petitioned the chancellor for an award of fees for services rendered to the detriment of the trust, and to the benefit of Richardson, who had long been defrauding the trust. Because the chancellor determined that a conflict of interest existed, and our case law supports a denial of fees in such situations, we cannot say that the chancellor clearly erred in ordering that the fees be returned to the trust. Furthermore, we cannot say the chancellor erred in denying Crawford & Lewis’s motion for an award of additional fees. We thus affirm the chancellor’s ruling pertaining to the points on appeal.
III. Points on Cross-Appeal
For its first point on cross-appeal, Boatmen’s argues that the chancellor inadvertently omitted any provision for attorney’s fees to the bank for its successful defense against Crawford & Lewis’s petition. Boatmen’s asserts that it submitted an itemization of its fees to the chancellor at her request and also prepared and submitted a precedent to the chancellor that included a provision awarding attorney’s fees to the bank. Boatmen’s contends further that the chancellor’s final judgment was “erroneously issued” without a provision for attorney’s fees. Boatmen’s thus urges this court to remand the matter to the chancellor for determination. We cannot reach the merits of this argument because Boatmen’s failed to submit a proper motion for fees under Ark. R. Civ. P. 54(e).
Rule 54(e) provides for the method for filing claims for attorney’s fees. The rule provides in pertinent part:
(1) Attorneys’ Fees. Claims for attorneys’ fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.
(2) Unless otherwise provided by statute or order of the court, the motion must be filed and served no later than 14 days after entry of judgment; must specify the judgment and the statute or rule entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought. If directed by the court, the motion, shall also disclose the terms of any agreement with respect to fees to be paid for the services for which the claim is made. [Emphasis added.]
The record reflects that the chancellor’s order was entered on July 1, 1998, and that Boatmen’s motion was filed on July 13, 1998. Thus, the motion was timely filed under the rule. The motion does not, however, recite the specific statute or rule entitling Boatmen’s to the claimed fees. Crawford & Lewis asserts that Boatmen’s failure to state any legal basis for the fees is fatal to its argument on appeal. We agree with Crawford & Lewis.
The procedure estabhshed in Rule 54(e) is an attempt to address a recurrent source of litigation — disputes involving the award of attorney’s fees. Subsection (e) (2) particu larly sets forth requirements that create uniformity in the way such claims must be addressed. It requires that the motion be filed within a specified time period and further requires that the legal basis for the claim be specified. This court has consistently held that in determining whether a statute’s provisions are mandatory or merely directory, we adhere to the principle that those things which are of the essence of the thing to be done are mandatory, while those not of the essence are directory only. Fulmer v. State, 337 Ark. 177, 987 S.W.2d 700 (1999); McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991); Taggart & Taggart Seed Co., Inc. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983). Clearly, the requirement that the motion contain the specific rule or statute providing for attorney’s fees is the essence of the thing to be done by the rule. Accordingly, because Boatmen’s failed to comply with the specific dictates of Rule 54(e)(2), we will not reach the merits of its argument on appeal.
Boatmen’s second point on cross-appeal is more of a request than an argument. Indeed, Boatmen’s states in its reply brief that it merely seeks this court’s confirmation that the interest awarded by the chancellor on its counterclaim for disgorgement began to accrue at the time the order was entered. The order reflects that “the counterclaim by Boatmen’s as Trustee for a judgment against Crawford & Lewis in an amount equal to the fees and expenses previously paid of $16,608.89 and post judgment interest at the highest rate allowed by law is hereby granted and such judgment is entered against Crawford & Lewis.” (Emphasis added.) Because Boatmen’s does not seek anything more than was received in the trial court, its argument is not a proper matter for cross-appeal. See Aycock Pontiac, Inc. v Aycock, 335 Ark. 456, 983 S.W.2d 915 (1998).
Since the trust was established, Boatmen’s has undergone several changes in ownership. It began as Worthen National Bank of Arkansas. At the time the action was brought in the chancery court, Worthen had been purchased by Boatmen’s. Since that time, however, Boatmen’s was purchased by NationsBank and was finally merged with Bank of America. | [
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Per Curiam.
Appellee Bryan Busbee, d/b/a Busbee Construction (“Busbee”), filed a Motion to Dismiss the appeal of Appellant Patricia Osburn (“Osburn”) for failure to include language in her Notice of Appeal and Designation of Record that she had made financial arrangements with the court reporter for payment of the record. We dismiss Appellant’s appeal, but on different grounds.
Appellee states in his motion that this appeal originates from a Washington County Circuit Court matter in which that court ruled that he was entitled to a judgment and lien against Appellant for repairs made to certain properties owned by Appellant. The trial court entered its order on June 22, 1999, and Appellee filed a Motion for Amended Judgment or for New Trial on July 8, 1999. The trial court denied this motion in an order entered August 3, 1999. Appellant then filed her Notice of Appeal and Designation of Record on August 19, 1999.
Appellant’s Notice of Appeal was not timely filed. Appellant filed her Motion for Amendment of Judgment or for New Trial pursuant to Ark. R. Civ. P. 52 and 59 respectively. These rules require that these motions be filed within ten days after the entry of the judgment in order for the court to consider them and to toll the thirty-day time limit for filing a Notice of Appeal. See Benedict v. National Bank of Commerce, 329 Ark. 590, 951 S.W.2d 562 (1997). Here, Appellant filed her motion on July 8, 1999, sixteen days after the original order was filed. As such, Appellant’s time for filing her Notice of Appeal was not tolled by these motions. Therefore, Appellant’s Notice of Appeal, filed fifty-eight days after the trial court entered its original order with the clerk, was untimely.
Because of Appellant’s untimely filing of her Notice of Appeal, Appellant’s appeal is dismissed. | [
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Per Curiam.
Katharine Day Wilson, Attorney at Law, of Batesville, Thomas H. McGowan, Esq., of Little Rock, and James M. Pratt, Jr., Esq., of Camden are reappointed to the Supreme Court Committee on Civil Practice for three-year terms to expire on July 31, 2002.
The Court thanks Ms. Wilson, Mr. McGowan, and Mr. Pratt for accepting reappointment to this important Committee. | [
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Per Curiam.
On recommendation of the Supreme Court Committee on Professional Conduct, we hereby accept the surrender of the license of David Marion Clark, of Batesville, Arkansas, to practice law in the State of Arkansas. Mr. Clark’s name shall be removed from the registry of licensed attorneys and he is permanently barred from engaging in the unlicensed practice of law in this state. | [
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Per Curiam.
In 1985, Kelley Patrick Mills was charged with capital felony murder for the beating death of Nancy Sangalli, his girlfriend’s great-aunt. The State sought the death penalty against him. Shortly before trial, Mills agreed to testify against his girlfriend and co-defendant, Lisa Berry, in exchange for the prosecutor’s acceptance of his guilty plea. Mills fulfilled his obligation to testify against Ms. Berry and his plea was accepted.
Mills subsequently filed in the trial court a timely petition and amended petition for postconviction relief pursuant to Criminal Procedure Rule 37. In the petition, Mills alleged that he did not receive effective assistance of counsel as guaranteed by the Sixth Amendment, and that his custodial confession was coerced. The trial court held a hearing on the petition in 1990 but did not enter an order denying relief until 1998. Mills now appeals that order. We affirm.
In this appeal, Mills repeats his argument concerning the voluntariness of his confession. He also argues that he is entitled to postconviction relief because of prosecutorial misconduct that occurred during plea negotiations. Specifically, he alleges that the prosecutor misadvised him concerning his eligibility for parole. According to Mills, the prosecutor told him that with a sentence of life without parole, he “would be out in ten years.” We find no merit to either of these arguments.
With regard to Mills’s claim that the prosecutor’s alleged statement about parole eligibility warrants postconviction relief, we conclude that Mills has failed to sustain his burden of proving that he was prejudiced by the prosecutor’s statements. Mills never alleged, during the hearing or otherwise, that he relied on any kind of parole eligibility when he decided to plead guilty. The abstract of the plea hearing, moreover, clearly indicates that Mills not only understood the meaning of “life without parole,” but also that his decision to plead guilty was motivated solely by his desire avoid the death penalty. The following is an excerpt of Mills’s statements during the plea hearing:
I want to change my plea which I have entered in this cause. . . . I understand that I am presently charged with the offense of capital murder and the offense of capital murder carries with it as the two alternatives for punishment life without parole and the death penalty. You have also explained to me what life without parole means and obviously the meaning of the death penalty. It is anticipated that if I chose to proceed to trial that the court would also instruct the jury as far as a possible charge of a lesser included offense of first-degree murder. I understand that the jury not only would consider the charge of capital murder but also the charge of first-degree murder. The penalty for first-degree murder is ten to forty years in the penitentiary or life with parole. (Emphasis added.) You also explained to me that there was a possibility that the jury could find me guilty of first-degree murder and the possibility that the jury could find me guilty of capital murder.
Part of that decision (to plead guilty) was the possibility of the death penalty. Another thing that influenced me to plead guilty to capital murder was the way the jurors talked in the jury room. It was the way they were asked questions about the death-qualified jury.
As can be seen, Mills understood that there was a possibility that a trial could end in a conviction for first-degree murder, and that in that circumstance, it was possible that he could receive a sentence for a term of years. His desire to waive the possibility of a conviction for first-degree murder and the corresponding possibility of a lighter sentence indicates his understanding of the contrast between “life without parole” and a sentence that carries the possibility of parole. Furthermore, Mills unequivocally states that it was the prospect of the death penalty, and his perception of the potential jurors’ inclination to sentence him to death, that motivated his decision to plead guilty. We therefore conclude that Mills understood that he would not be eligible for parole if he pleaded guilty to capital murder, and that it was his desire to avoid the death penalty, and not the alleged misstatements by the prose cutor, that was the basis of his decision to enter a plea. See Propst v. State, 335 Ark. 448, 983 S.W.2d 405 (1998).
Mills next argues that he is entitled to postconviction relief because the custodial statement that he gave soon after his arrest was coerced. This allegation cannot be raised in a Rule 37 petition that challenges a guilty plea. When a guilty plea is challenged, the sole issue is whether the plea was intelligendy and voluntarily entered with the advice of competent counsel. Branham v. State, 292 Ark. 355, 730 S.W.2d 226 (1987). When Mills pleaded guilty, he waived the right to challenge the voluntariness of his statement. Accordingly, postconviction relief on this issue is not warranted.
Affirmed. | [
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Ray Thornton, Justice.
In this case, we review the decision of the appellant Arkansas State Police Commission (the Commission) to terminate an Arkansas State Police Officer, appellee Rhodis Smith, for violations of the Arkansas State Police’s Code of Conduct that requires all employees to obey all laws and prohibits unbecoming conduct that brings the employee or the department into disrespect or otherwise brings the department into disrepute. The Commission determined that appellee’s conduct in writing two hot checks and failing to make the checks good upon demand was a violation of the code, and imposed the sanction of termination from the state police.
On appeal the circuit court found that there was not substantial evidence to support the Commission’s decision to terminate Mr. Smith’s employment, and that the Commission’s decision to terminate appellee’s employment was arbitrary and capricious. The trial court reversed the Commission’s decision to terminate appellee and imposed the disciplinary action of a six-month suspension without pay. The trial court directed that appellee be reinstated following the suspension.
The Commission appeals, contending that there was substantial evidence to support the its decision, and that the decision was not arbitrary or capricious. We agree, and accordingly the trial court is reversed and the Commission is affirmed.
Standard of Review
The standard of review in this area of the law is well-developed. The appellate court’s review is directed not toward the circuit court, but toward the decision of the agency. That is so because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. McQuay v. Arkansas State Board of Architects, 337 Ark. 339, 989 S.W.2d 499 (1999); Social Work Licensing Board v. Moncebaiz, 332 Ark. 67, 962 S.W.2d 797 (1998); Files v. Arkansas State Highway and Transportation Department, 325 Ark. 291, 925 S.W.2d 404 (1996). Our review of administrative decisions is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. McQuay, supra; In re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992).
These standards are consistent with the provisions of the Administrative Procedure Act, Ark. Code Ann. §§ 25-12-201—25-15-214 (1996), which requires that the scope of appellate review under the Act be limited. According to the Act, it is not the role of the circuit courts or the appellate courts to conduct a de novo review of the record; rather, review is limited to ascertaining whether them is substantial evidence to support the agency’s decision or whether the agency’s decision runs afoul of one of the other criteria set out in section 25-15-212(h). Arkansas Bd. of Exam’rs v. Carlson, 334 Ark. 614, 976 S.W.2d 941 (1998). We review the entire record in making this determination. Id. We also note that in reviewing the record, the evidence is given its strongest probative force in favor of the agency’s ruhng. Arkansas Health Servs. Agency v. Desiderata, Inc. 331 Ark. 144, 958 S.W.2d 7 (1998). The Administrative Procedure Act states:
(g) The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony may be taken before the court. The court shall, upon request, hear oral argument and receive written briefs.
(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 25-15-212.
Factual Background
Appellee Rhodis Smith was an officer with the Arkansas State Police. Appellee received a $60,000 loan from Nations Bank to purchase a $20,000 lot and construct a $40,000 home. He was to be his own general contractor on the project. Appellee opened a separate checking account for the construction loan funds. Following an inspection by a bank officer, the bank would deposit funds into appellee’s construction account to reimburse him for purchased materials or completed work.
Appellee wrote two checks on his construction checking account that were not covered by sufficient funds. The first check was written to Spec Building Material in the amount of $821.13 on April 10, 1997, for the purchase of roofing materials. The second check was written on June 13, 1997, to Three States Supply Company in the amount of $2,758.08, for the purchase of an air-conditioning system.
Appellee was notified on both occasions that his check had been returned for insufficient funds, but did not remedy the situation. The merchants sought relief under the Arkansas Hot Check Law. Following sworn complaints by both merchants, felony warrants were issued for his arrest. On two separate occasions appellee was taken into custody by the Sherwood Police Department. He was fingerprinted, photographed, and forced to post a bond for his release. Several months after the checks were dishonored, he paid the amount owed to the merchants to the registry of the Sherwood Municipal Court along with fines and court costs. Spec Building Material received payment for its goods on September 19, 1997, and Three States Supply Company on November 13, 1997.
Following the issuance of the felony warrants, the Arkansas State Police conducted an internal investigation into appellee’s actions. On August 13, 1997, appellee’s supervisor issued a formal complaint detailing his violations. The state police placed appellee on administrative leave on August 14, 1997. A second formal complaint was filed by his supervisor on September 3, 1997. A staff review recommended appellee’s termination. On October 1, 1997, John Bailey, Director of the Arkansas State Police, terminated appellee for violations of the Arkansas State Police Code of Conduct. Specifically, it was contended that he had violated General Order 102 § VII A, conduct unbecoming an officer, VII B, inappropriate personal conduct, and VII C, failure to conform to laws. These provisions state:
VII. Improper Conduct
A. Unbecoming conduct. Employees shall conduct themselves at all times, both on and off duty, in such a manner as to reflect most favorably on the Department. Conduct unbecoming an employee shall include that which brings the Department into disrespect or reflects discredit upon the employee as a member of the Department, or that which impairs the operations or efficiency of the Department or employee.
B. Personal conduct. Employees shall conduct their personal and business affairs in a manner which does not discredit or otherwise bring the department into disrepute or compromise the officer’s ability to perform his or her duties.
C. Conformance to laws. Employees shall obey all the laws of the United States and of the state and local jurisdiction in which the employees are present.
A conviction of the violation of any law shall be prima facie evidence of a violation of this section. Lack of criminal complaint, or an acquittal of a violation of law, shall not preclude internal administrative investigation and disciplinary action.
Arkansas State Police Code of Conduct, General Order 102 § VII A, B, C.
On December 3, 1997, the Arkansas State Police Commission held a hearing to consider appellee’s termination. Stacy Lisenby, a former employee from Spec Building Materials, testified at that hearing that he notified appellee a few days after his April 10, 1997, check in the amount of $821.13 had been returned for insufficient funds. Lisenby also testified that he knew appellee was a police officer because he came into the business in a “swat team uniform.” Lisenby further testified that appellee assured him that he would return the following Tuesday to take care of the bounced check but that he never returned to cover the check. Lisenby testified that he then called appellee five or six times to remedy the situation and appellee never returned his calls. Lisenby also testified that after waiting two months he was forced to turn the check over to the Sherwood Police Department because he was getting no “feed-back” from appellee. Finally, Lisenby testified that he “probably” waited longer than was the normal practice of the company before reporting the bounced check to the police department because appellee was a state trooper and “not the average homeowner.” A warrant for appellee’s arrest was issued on July 22, 1997, and served on August 11, 1997.
On June 13, 1997, appellee wrote a second check in the amount of $2,758.08, to Three States Supply as payment for an air-conditioner. With regard to the check, Hugh Bosworth, the general manger of Three States Supply, testified that it was not the practice of the company to take personal checks but, because appellee was a state policeman, “we bent the rules.” Bosworth further testified that his assistant contacted appellee to inform him that his check had been returned for insufficient funds. Appellee came to Three States Supply and told Bosworth’s assistant that there must have been a problem with the bank. Bosworth also testified that his assistant tried without success to contact an individual at the bank who appellee said could resolve the problem. The assistant then tried to contact appellee to no avail. Bosworth testified that the company sent appellee a ten-day demand letter on July 28, 1997, pursuant to the Arkansas Hot Check Law, prior to filing a formal complaint with the Sherwood Police Department. Appellee did not respond. A complaint was then filed, and a second felony arrest warrant was issued in late August and appellee was served on September 3, 1997.
Captain John Chambers, from the Arkansas State Police, testified that he was notified by the Sherwood Police Department in mid-August that a felony arrest warrant was to be served on appellee. Chambers next testified that he called appellee into his office and put him on administrative leave for violations of police policies. Chambers also testified that he initiated an investigation into appellee’s situation. Additionally, Chambers testified that during an interview with appellee to discuss the check written to Spec Building Material, appellee assured him that “there [were] no more checks out.” Chambers then testified that a “few days later” the Sherwood Police Department notified him that they had another felony warrant for appellee’s arrest based on a second hot check. Finally, Chambers testified that appellee’s actions violated the policies of the Arkansas State Police and had “damaged our reputation, and damaged Corporal Smith’s credibility and his reputation.”
Appellee also testified at the hearing. He stated that he received notice that at least one of the checks had been returned to the merchant for insufficient funds. Appellee further testified that when he was notified that his check had been returned to Spec Building Material he went to the company and assured them that he would return to cover the check but that he had never returned after that occasion. Appellee stated that he did not know how much money was in the construction account at the time he wrote the checks. He admitted that he received numerous calls at work from the merchants to whom he had written the checks. Finally, appellee testified that when he was taken into custody at the Sherwood Police Department he was fingerprinted and photographed, and that he borrowed money to post his bond for release.
Substantial Evidence
In its first point on appeal the Commission argues that substantial evidence was present to support appellee’s termination. Substantial evidence has been defined as valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion, and force the mind to pass beyond conjecture. McQuay, supra; Bohannon v. Arkansas Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995). The challenging party has the burden of proving an absence of substantial evidence. To establish an absence of substantial evidence to support the decision the challenging party must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Williams v. Scott, 278 Ark. 453, 647 S.W.2d 115 (1983). The question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. Id. It is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. McQuay, supra.
We have reviewed the evidence presented to support the Commission’s findings. The Commission found that appellee had violated the Arkansas State Police’s Code of Conduct. Specifically, the Commission affirmed John Bailey’s decision to terminate appellee’s employment based on his violations of General Order 102 § VII A, conduct unbecoming an officer; VII B, inappropriate personal conduct; and VII C, failure to conform to laws. After reviewing the evidence, it appears that valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support the conclusion that appellee’s conduct was in violation of provisions of the Arkansas State Police’s Code of Conduct was present in this case. We note again that our role on appeal is to determine whether the agency’s decision is supported by substantial evidence and is not arbitrary or capricious. We must affirm an agency’s decision if there is substantial evidence to support it. Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980). Accordingly, we hold that the decision of the Commission was supported by substantial evidence and that the decision of the Commission must be affirmed and the circuit court’s findings to the contrary must be reversed on this point.
Arbitrary and Capricious
In appellant’s final point on appeal it is contended that the Commission’s decision was not arbitrary and capricious. Administrative action may be regarded as arbitrary and capricious where it is not supportable on any rational basis. Partlow, supra. To have administrative action set aside as arbitrary and capricious, the party challenging the action must prove that it was willful and unreasoning action, without consideration and with a disregard of the facts or circumstances of the case. Id. We have stated that the requirement that administrative action not be arbitrary or capricious is less demanding than the requirement that it be supported by substantial evidence. Beverly Enter.-Ark., Inc. v. Arkansas Health Servs., 308 Ark. 221, 824 S.W.2d 363 (1992). An action is not arbitrary simply because the reviewing court would act differently. McQuay, supra. Finally, we have held that once substantial evidence is found, it automatically follows that a decision cannot be classified as unreasonable or arbitrary. Wright v. Arkansas State Plant Board, 311 Ark. 125, 842 S.W.2d 42 (1992). We have upheld the termination of Arkansas State Police officers in several cases. First, in Partlow, supra., we held that it was not error for the Arkansas State Police Commission to dismiss an officer who had violated a departmental rule. In that case, Partlow, an Arkansas State Police officer, had stored a 1974 Yamaha motorcycle, which was property seized by the police, in a building he was privately leasing. After retaining the property for approximately eight months, Partlow inserted his name onto the title and had the property licensed in his name. The Arkansas State Police conducted an investigation into Partlow’s usage of the motorcycle and found that he had violated rule 11 of the Arkansas State Police Rules and Regulations. Partlow was then dismissed from his job. We held that because Partlow admitted to engaging in the conduct charged the Commission’s decision to terminate Partlow was not arbitrary or capricious. Id.
Next, in Tuck v. Arkansas State Police Commission, 282 Ark. 39, 665 S.W.2d 276 (1984), we affirmed the Arkansas State Police Commission’s decision to terminate an officer. Tuck, an Arkansas State Police officer, was charged with violations of department policy by receiving compensation from the submission of a false invoice, installing unauthorized equipment on his patrol car and abusing his position by asking troopers under his command to “fix” tickets. The Commission dismissed Tuck. Id. Although we did not expressly use “arbitrary and capricious” language in the Tuck case, our reasoning was similar to that used in Partlow. We held that we would not disturb the decision of the Commission as to the appropriate punishment to impose in the case because there was no dispute among the fact-finders that the evidence substantiated the charged offenses. Id.
Here, appellee admitted that he wrote the checks to the merchants without knowing how much money was in his account at the time, that he received notice of the returned checks, and that he failed to rectify the wrongs suffered by the merchants without judicial intervention. Thus, the actions taken by the Commission were reasoned and based on the facts and circumstances of the case. Therefore, we hold that the Commission’s actions were not arbitrary or capricious.
Because there was substantial evidence to support the Commission’s decision, and it is not arbitrary or capricious, the Commission’s actions should be affirmed, and the case is reversed and remanded to the trial court for disposition in accordance with this opinion.
Reversed and remanded.
Arnold, C.J., and Smith, J., dissenting. | [
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Per Curiam.
We hereby amend, effective immediately, Section 1 (B) of the Rule Providing for Certification of Court Reporters to read as follows:
SECTION 1. MEMBERS OF THE BOARD.
A.....
B. Members shall be appointed to serve a three year term and are eligible to be appointed to a second three year term. A member whose term has expired shall continue to serve until a successor is appointed and qualified. The Court shall fill any vacancy by appointing a member for the duration of an unexpired term and may remove any member for cause. A member who has been appointed to complete an unexpired term shall be eligible for reappointment to serve two terms of three years each.
C, | [
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Lavenski R. Smith, Justice.
Elgin King appeals his second conviction for the first-degree murder of Willie Simpkins from Pulaski County Circuit Court. Appellant was originally charged by felony information with capital murder and tried by jury. The jury found Simpkins guilty of the lesser included offense of first-degree murder and sentenced him to forty years. On appeal, this court reversed the trial court for failure to instruct the jury on witness Vernon Scott as a possible accomplice. In Appellant’s second trial the prosecution sought to prove first-degree murder. The jury, once again, found Simpkins guilty but this time sentenced him to sixty years. On this appeal, we have jurisdiction pursuant to Ark. Sup. Ct. R. 1 —2(a) (7). See King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996) (King I). Appellant asserts three errors by the trial court in this second appeal. First, insufficiency of the evidence; second, failure to declare a witness an accomplice as a matter of law; and, third, admission of evidence of appellant’s gang involvement. None of appellant’s assertions have merit and we therefore affirm.
Facts
On October 4, 1993, North Little Rock police discovered the body of an adult male in a silo just south of an area called the “Dixie Addition” of that city. Police recovered a rubber mask from the scene. The victim had suffered multiple gunshot wounds. Earlier in the day, a Mrs. Simpkins from Dixie Addition had reported her son missing. Based upon fingerprint records, the authorities identified the body to be that of Willie Simpkins. In the course of their investigation, police interviewed Vernon Scott also of the Dixie Addition. Over the course of several visits, Scott told police that on September 30, 1993, he had been asked by Kenneth Slocum to get Willie Simpkins to go to the Hattison home so Slocum could talk to Simpkins. Scott agreed and brought Simpkins to the designated meeting place. Sometime after Scott and Simpkins arrived at the Hattison home, Elgin King and Kenneth Slocum entered the home armed with handguns. According to Scott, King wore a rubber mask and Slocum wore a ski mask. Scott recognized them by their clothing and by their voices with which he was familiar. King and Slocum covered Simpkins’s head and bound him with duct tape. King went out the front door and Slocum took Simpkins out the side door. A few minutes later, Scott, while out on the street, heard multiple gunshots. Mr. Simpkins was not seen alive again.
Sufficiency of the Evidence
For his first point on appeal, Appellant contends the evidence was insufficient to justify conviction for first-degree murder. We consider sufficiency of the evidence before addressing other alleged trial errors. Williams v. State, 338 Ark. 97, 106 (1999). We do so in order to preserve a defendant’s right to freedom from double jeopardy. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997); Burris v. State, 330 Ark. 66, 70, 954 S.W.2d 209 (1997). Appellant moved for directed verdict at the close of the state’s case and then at the close of his case. Ordinarily, this would be sufficient to preserve the issue of sufficiency of the evidence for appellate purposes. However, as the State points out, Appellant failed to renew the directed-verdict motion after the State’s rebuttal testimony. The State argues that appellant thus faded to preserve the issue. We agree.
Our procedure rules require that a motion for a directed verdict be brought at the “conclusion of the evidence presented by the prosecution and again at the close of the case. . . .” Ark. R. Crim. P. 33.1. Close of the case means close of the whole case, in other words, after the last piece of evidence has been received. As we stated in Rankin, supra, “Even if a defendant renews his motion at the close of his case-in-chief, the requirement of the rule to renew the motion at the “close of the case” obligates the defendant to renew the motion again at the close of any rebuttal case that the State may present in order to preserve the sufficiency issue for appeal.” See also, Heard v. State, 322 Ark. 553, 57, 910 S.W.2d 663 (1995) [overruled on other grounds in MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998) ]; Christian v. State, 318 Ark. 813, 889 S.W.2d 717 (1994).
A review of the record reveals Appellant did not move for a directed verdict after the State’s rebuttal testimony. The Appellant closed his case when witness Lewis “Hatbox” Hattison could not be located and brought to the courtroom to testify. The Appellant then moved for a directed verdict based on insufficiency of the evidence. The State then called police Sgt. Mike Davis back to the stand as a rebuttal witness. Mr. Davis testified that Appellant was a member of the “Dixie Dog Pound,” the only gang in the Dixie Addition. The Appellant indicated he had no surrebuttal testimony to offer and the court began jury instruction. Hence, appellant made no motion for directed verdict at the close of the whole case. This court has repeatedly and emphatically held that, in order to preserve for appeal the issue of the sufficiency of the evidence in a criminal case, the appellant must move for a directed verdict both at the close of the State’s case and at the close of the whole case. Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993); Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992); DeWitt v. State, 306 Ark. 559, 815 S.W.2d 942 (1991); Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994). We hold Appellant failed to preserve the question of sufficiency of the evidence by fading to move for a directed verdict after the State’s rebuttal testimony.
Accomplice as a Matter of Law
For his second point on appeal, Appellant contends the trial court erred in refusing to find Vernon Scott to be an accomplice as a matter of law. We considered and decided this identical issue in Appellant’s prior appeal (King I). We held that the trial court correctly refused to declare Scott an accomplice as a matter of law. King, supra. Flowever, we remanded the case to the trial court in order for the trial court to submit the accomplice issue to the jury. In Appellant’s second trial, the jury considered whether Scott was an accomplice. The jury decided that Scott was not an accomplice. Appellant does not argue in his brief that new or different facts were adduced at the second trial. The State contends the issue was resolved in the first appeal and that the law-of-the-case doctrine precludes any further consideration. We agree.
We recently reiterated the considerations for the doctrine’s application in Camargo v. State, 337 Ark. 105 (1999). In Camargo we stated,
The law-of-the-case doctrine ordinarily arises in the case of a second appeal and requires that matters decided in the first appeal be considered concluded. The doctrine is not inflexible and does not absolutely preclude correction of error, but it prevents an issue raised in the prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals. The doctrine precludes the trial court on remand from considering and deciding questions that were explicitly or implicitly determined on appeal. Questions that have not been decided do not become law of the case merely because they could have been decided; at the same time, however, law-of-the-case principles are applied when a court concludes that an issue was resolved implicitly despite the lack of any explicit statement. Significantly the doctrine extends to issues of constitutional law. (Citations omitted.)
We have also recently noted that the appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Lloyd v. State, 332 Ark. 1, 962 S.W.2d 365 (1998). A defendant must either have the trial court declare a witness to be an accomplice as a matter of law or submit the issue to the jury for determination. McGehee v. State, 338 Ark. 152 (1999).
In King I we held, “The facts do not show conclusively that Scott was an accomplice. The trial court was correct in refusing to declare him an accomplice as a matter of law. ...” King, supra. On remand, the trial court submitted the accomplice question to the jury with appropriate instructions. The jury declined to answer in Appellant’s favor. Appellant does not assert that the evidence in the second trial varied materially from the evidence in the first trial. Therefore, the law-of-the-case doctrine precludes consideration of this issue on his second appeal.
Gang-Related Testimony
For his third and final point on appeal, Appellant contends the trial court abused its discretion in allowing testimony of Officer Mike Davis that Appellant belonged to the Dixie Dog Pound gang. Appellant objected on grounds of relevance and undue prejudice. Relevancy determinations are within the sound discretion of the trial court subject to reversal only if that discretion is abused. TB of Blytheville, Inc. v. Little Rock Sign & Emblem, Inc. 328 Ark. 688, 946 S.W.2d 930 (1997) Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998). Additionally, prejudice, which is not presumed, must be shown or the trial court’s ruling will not be reversed. Wallace v. State 314 Ark. 247, 862 S.W.2d 235 (1993); Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996).
Although the record does not directly reflect it, the parties agree that the trial court granted a motion in limine to exclude evidence of gang activity. The pertinent, objected to testimony appears below:
Officer Davis testified:
Q And were you aware of any gang or street gangs in the Dixie Addition area based upon your experience?
A Yes, Sir. There is one gang in Dixie.
Q Okay. And, Sargent Davis, do you know whether or not this defendant, Mr. Elgin King, is in a gang?
A Yes, sir, I do.
Q Okay.
A He is.
Q And which gang is that?
A The Dixie Dog Pound. [TR 392-393.]
The State elicited this limited testimony that Appellant belonged to the Dixie Dog Pound gang pursuant to direction given by the trial court. After long discussion between the trial court and counsel, the court concluded that this limited testimony was admissible to rebut evidence offered by Appellant. Earlier, Appellant’s witness, Dewayne Turner, testified that State’s witness Dana Thrash had lied. Turner testified that Thrash was not assaulted in jail at Appellant’s behest, but because Thrash was “throwing up” gang signs. In the State’s case in chief, witness Thrash testified that Appellant approached him in jail with an offer. Specifically, that if he “took out” a witness, Appellant would help him get out of jail on bond. Thrash testified that he did not agree, and that later someone attacked him. Appellant, in his defense case, put on Dewayne Turner to provide evidence that Thrash had made up the story about Appellant approaching him, that Thrash had rehearsed the story in front of Turner, and that Thrash concocted it to deceive the authorities and gain an early release. The trial judge found Turner’s testimony opened the door to limited testimony about gang involvement because it implied Appellant was not involved in the assault by positing that a gang had done it for an unrelated reason. The trial court also noted Thrash’s credibility had been attacked by Appellant with testimony by Turner that he was in a gang. The trial court stated, “Yeah, I just think they’ve opened it by saying that this is gang activity and has nothing to do with this defendant, I think you can show this defendant’s a member of a gang, and it could very well have been related to that.” So Appellant’s gang membership then became admissible.
When a defendant opens the door to issues of character, the State is entitled to rebut those issues of character. Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993). As a consequence, the State introduced and the court admitted evidence that Appellant was a gang member. The State sought to expand the testimony. However, the trial court correctly restricted the rebuttal testimony to merely stating that Appellant was a gang member so as to limit it to rebutting Turner’s testimony. We have long recognized the propriety of “fighting fire with fire” when one of the parties opens the door with an untruthful statement, introduces inadmissible evidence, or makes an improper closing argument. See Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992); Wortman v. Shipman, 293 Ark. 253, 737 S.W.2d 438 (1987); Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984); Larimore v. State, 317 Ark. 111, 121, 877 S.W.2d 570 (1994). Moreover, an appellant generally can’t complain when he is the one who originally elicited the objectionable testimony. Hicks v. State, 327 Ark. 652, 664, 941 S.W.2d 387 (1997).
In the instant case, Appellant apparendy put Turner on the stand unaware he might raise the issue of gangs. However, Turner was Appellant’s witness, and therefore Appellant broached the subject of gangs. The trial court limited the rebuttal testimony of Officer Davis to match what had been brought out by Appellant. Turner testified that Thrash belonged to the Piru gang, from which the jury might infer the prison assault on Thrash was by a gang and did not involve Appellant. Officer Davis testified that Appellant belonged to the Dixie Dog Pound gang, allowing the jury to infer the assault conceivably could have involved Appellant. Based on the foregoing, we hold the trial judge did not abuse his discretion in admitting limited testimony of Appellant’s gang membership.
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Donald L. Corbin, Justice.
This appeal presents a conflict involving the concurrent jurisdiction of chancery and juvenile courts to hear paternity cases. The case was certified to us from the Arkansas Court of Appeals as presenting issues requiring further development or clarification of the law; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(5).
Appellant Brian Patterson and Sheila Judkins were married on June 6, 1985. One child, Brandi Patterson, was born of the marriage on May 20, 1987. On August 27, 1991, the couple was granted a divorce by the Pope County Chancery Court (chancery court). Judkins was granted custody of Brandi. Miscellaneous petitions were subsequently filed in the chancery court by both parties, culminating in Patterson’s petition for a change of custody filed on April 19, 1996. Judkins responded to the petition by filing a petition for paternity testing, asserting for the first time that Patterson was not Brandi’s biological father. In a letter to counsel filed August 6, 1996, the chancery court denied the petition for paternity testing and found that Patterson was the child’s father. The final order was not entered until August 13, 1997. In the meantime, Appellee Steve Isom filed a motion to intervene in the chancery action on August 5, 1997, asserting that DNA testing had established him as Brandi’s biological father. On that same date, Isom filed a complaint for adjudication of paternity in the Juvenile Division of the Pope County Chancery Court (juvenile court). The juvenile court found Isom to be the biological father of Brandi. It is from that decision that Patterson appeals.
Before we address the points on appeal, we are compelled to respond to Isom’s argument that Patterson’s jurisdictional arguments are barred by the law-of-the-case doctrine, which “prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals.” Richardson v. Rodgers, 334 Ark. 606, 611, 976 S.W.2d 941, 944 (1998) (quoting Vandiver v. Banks, 331 Ark. 386, 391-92, 962 S.W.2d 349, 352 (1998)). This argument stems from the fact that prior to the final determination of this matter in the juvenile court, Patterson petitioned this court for a writ of prohibition, raising the same jurisdictional arguments that he now raises on appeal. This court denied the writ, but issued no opinion on the matter. Isom asserts that the denial prevents Patterson from raising those issues on appeal. We disagree.
A writ of prohibition is an extraordinary writ that is only appropriate when the lower court is wholly without jurisdiction. Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998). The purpose of the writ of prohibition is to prevent a court from exercising a power not authorized by law when there is no adequate remedy by appeal or otherwise. Id. A writ of prohibition is never issued to prohibit an inferior court from erroneously exercising its jurisdiction. Id. Given that Arkansas Code Annotated § 9-10-101(a)(1) (Repl. 1998) provides that chancery and juvenile courts have concurrent jurisdiction of paternity cases, a writ of prohibition to prevent either court from acting is not the appropriate remedy, as neither court would be acting “wholly without jurisdiction.” See Hall v. Pulaski County Chancery Court, 320 Ark. 593, 898 S.W.2d 46 (1995). Furthermore, a writ of prohibition is inappropriate when the trial court has not resolved a factual dispute necessary to the determination of jurisdiction. Hudson v. Purifoy, 337 Ark. 146, 986 S.W.2d 870 (1999). Flere, when Patterson filed for a writ of prohibition in this court, it was unclear whether the juvenile or chancery court had jurisdiction, as the facts for such a determination had yet to be developed. Accordingly, our earlier denial of the writ of prohibition does not serve as a bar to our consideration of the jurisdictional issues on direct appeal.
Patterson first argues that the juvenile court erred in refusing to dismiss Isom’s paternity complaint on the ground that the chancery court has exclusive jurisdiction over the matter, as the issue of paternity arose in the chancery case. He relies on section 9-10-101 (a) which provides:
(1) The chancery court shall have concurrent jurisdiction with the juvenile division of chancery court in cases and matters relating to paternity.
(2) The chancery court shall have exclusive jurisdiction of paternity matters which arise during pendency of original proceedings brought under equity jurisdiction.
(3) The juvenile division of chancery court shall have exclusive jurisdiction of paternity matters which arise during pendency of original proceedings brought pursuant to the Arkansas Juvenile Code of 1989, § 9-27-301, et seq. [Emphasis added.]
The proper interpretation of section 9-10-101(a)(2) is that “exclusive jurisdiction will lie in a chancery court when a paternity matter arises during the pendency of an action already within its jurisdiction.” Barnes v. Barnes, 311 Ark. 287, 292, 843 S.W.2d 835, 837 (1992). In short, the issue of paternity must be raised or developed in some way in the chancery action. Hall, 320 Ark. 593, 898 S.W.2d 46.
In Hall, the facts showed that Doug Freeman and Jamie McFall were divorced in 1988. Some six years later, Doug filed a paternity complaint in juvenile court against Jamie, alleging that a third party, Tod Hall, was the father of the one child born to the marriage. Hall petitioned this court for a writ of prohibition, arguing that the chancery court had exclusive jurisdiction over this matter under section 9-10-101 (a)(2). This court denied the writ, holding:
[B]ased on what we have before us, the paternity issue did not arise during the original 1988 divorce action, and that is what § 9-10-101 (a) (2) requires for exclusive jurisdiction to reside in chancery court. To be sure, there was some proof in the paternity suit that Doug Freeman suspected Tod Hall was the father of S.F. prior to the divorce, but, according to the record, that issue was not raised in chancery court by either Doug Freeman or Jamie McFall or developed in that action in any way. The divorce was concluded in 1988, though the court did retain jurisdiction to modify and enforce the rights of the parties. Under these facts, there are insufficient grounds for finding exclusive jurisdiction in chancery court.
Id. at 596, 898 S.W.2d at 48 (emphasis added). The facts in the present case are distinguishable from those in Hall.
Here, the parties were granted a divorce by the chancery court in 1990. Between the time they were divorced until April 1996, both parties filed various petitions regarding modification of visitation and support. On April 19, 1996, Patterson filed a peti tion for change of custody. In response, Judkins filed a petition asking the chancery court to order paternity testing to determine that Patterson was not the biological father of the child. In an order entered on August 13, 1997, the chancery court denied Judkins’s request for tests and specifically found that Patterson was the father of the child.
Based upon these facts, we conclude that the chancery court had exclusive jurisdiction under section 9-10-101(a)(2) to determine the issue of paternity. The matter clearly arose during the pendency of an action already within its jurisdiction. Thus, unlike the situation in Hall, the issue of paternity had been raised and developed in the chancery court. Indeed, the chancellor ruled upon the matter, finding specifically that Patterson was the child’s father. Accordingly, it was error for the juvenile court to deny Patterson’s motion to dismiss.
It was also error for the juvenile court to deny Patterson’s motion to dismiss pursuant to Rule 12(b)(8) of the Arkansas Rules of Civil Procedure, which provides a defense where there is “pendency of another action between the same parties arising out of the same transaction or occurrence.” This court has repeatedly held that Rule 12(b)(8) prohibits identical cases from proceeding between identical parties in different courts within this state. See, e.g., National Bank of Commerce v. Dow Chem. Co., 327 Ark. 504, 938 S.W.2d 847 (1997); Tortorich v. Tortorich, 324 Ark. 128, 919 S.W.2d 213 (1996) . Under Rule 12(b)(8), the trial court has no choice but to dismiss the complaint where another case is pending in a different court. Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984). Additionally, our common law mandates that where concurrent jurisdiction is vested in different tribunals, “the first exercising jurisdiction rightfully acquires control to the exclusion of, and without the interference of, the other.” Tortorich, 324 Ark. at 131, 919 S.W.2d at 214 (quoting Doss v. Taylor, 244 Ark. 252, 257, 424 S.W.2d 541, 544-45 (1968)). Thus, when a case is brought in a court of competent jurisdiction, that court’s authority and control over the case continues until the matter is disposed of in the appellate court. Id. “This rule rests upon comity and the necessity of avoiding conflict in the execution of judgments by independent courts, and is a necessary one because any other rule would unavoidably lead to perpetual collision and be productive of most calamitous results.” Moore v. Price, 189 Ark. 117, 121, 70 S.W.2d 563, 565 (1934) (quoting 15 C.J. 1135-36 (footnote omitted)).
In Tortorich, 324 Ark. 128, 919 S.W.2d 213, this court pointed out that where two different chancery courts render two different judgments pertaining to alimony, child support, and marital property, calamitous results will occur. This court explained:
This case illustrates “Confusion, conflict, and collision.” It is an example of the “calamitous” result envisioned in Moore v. Price. Here, the two rulings by the two different chancellors have resulted in one order allowing alimony and one denying it, child support has been set in two different amounts, and one order gives the marital home to [the wife] until the youngest child reaches eighteen while the other orders the home sold and the proceeds divided.
Id. at 132, 919 S.W.2d at 214-15.
Here, the prospect for confusion and collision is apparent from the fact that both courts have entered orders providing for the support obligations and visitation rights of Patterson and Isom. The juvenile court ordered Isom to pay child support of $69 per week, and the chancery court ordered Patterson to pay child support of $45 per week. The juvenile court’s order reflects that Isom shall have visitation with the child compatible with that granted by the chancery court to Patterson. Although at first glance that provision appears to be in harmony with the order of the chancery court, all parties expressed concern as to how Isom could have the same visitation rights as Patterson without infringing on Judkins’s rights as the custodial parent. In other words, with the addition of Isom to the child’s visitation, either Patterson or Judkins will be forced to give up some of their visitation rights previously ordered by the chancery court. If we were to allow the juvenile court to undermine the chancery court’s already-existing orders pertaining to support and visitation, we would be opening the flood gates to forum shopping.
Moreover, the proceedings in chancery court were still pending at the time the complaint was filed in juvenile court. Isom filed his complaint in juvenile court prior to the time the chancery court’s order was filed. At the same time, Isom filed a motion to intervene in the chancery action to protect his parental rights with Brandi. That motion has never been ruled upon by the chancellor. This court has repeatedly held that an order is not final under ARCP Rule 54(b) unless and until an intervenor’s claim has been ruled upon by the trial court. See, e.g., Kinkead v. Spillers, 327 Ark. 552, 940 S.W.2d 437 (1997); Martin v. National Bank of Commerce, 316 Ark. 83, 870 S.W.2d 738 (1994). The reason behind that principle is that until the intervenor’s claim is disposed of, the matter is still pending before the trial court and is thus not appealable. It logically follows that a case is pending if the intervenor’s claim has not been ruled upon one way or the other. That is the situation here. Thus, because the issue of Isom’s intervention was not ruled upon, the chancery case remains pending.
In sum, because the issue of paternity was raised and developed in the chancery court prior to the time that Isom filed his complaint in juvenile court, the chancery court had exclusive jurisdiction to resolve the issue under section 9-10-101(a)(2). Additionally, where two courts have concurrent jurisdiction over a particular type of case, the notions of fairness and comity necessitate that the first court to acquire jurisdiction over the matter be allowed to continue exercising its jurisdiction to the exclusion of any other court and without the fear that another court will interfere in the matter. Any other rule would likely produce calamitous results. Here, the chancery court acquired jurisdiction of the paternity issue first, and that matter was still pending at the time Isom filed his complaint in juvenile court. Accordingly, we reverse the juvenile court’s order and remand the case with instruction to transfer the case to chancery court.
In its supplemental opinion on denial of rehearing, the Tortorich court determined that it was unnecessary to rely on Rule 12(b)(8) in its analysis of that case. | [
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Tom Glaze, Justice.
Appellees Gulf Rice Arkansas, Inc., and Gulf Pacific Rice Co., Inc. (referred to collectively as “Gulf Rice”), filed suit against appellants Tim Leathers, the State Commissioner of Revenues, and the individual directors of the Arkansas Rice Research and Promotion Board (referred to collectively as “Board”). Riceland Foods, Inc., Producers Rice Mill, Inc., and Riviana Foods, Inc. (referred to collectively as “Riceland Foods”), intervened in'the suit on behalf of the Board. Gulf Rice alleged that Act 344 of 1995, the Arkansas Research and Promotion Act, codified at Ark. Code Ann. §2-20-511 (Repl. 1996), was an illegal delegation of the taxing power that violated Article 2, § 23, and Article 16, § 13, of the Arkansas Constitution. Both parties moved for summary judgment, Gulf Rice claiming that Act 344 was an unlawful delegation of legislative authority and a violation of due process. The chancery court agreed that the delegation was an unlawful delegation of legislative authority and granted summary judgment in favor of Gulf Rice. The Board and Riceland Foods appeal, claiming the delegation in Act 344 is constitutional. We affirm the chancery court’s grant of summary judgment.
In 1985, the General Assembly enacted Act 725, codified at Ark. Code Ann. § 2-20-507 (Repl. 1996), which created the Arkansas Rice Research and Promotion Board composed of nine producer members. Act 725 also imposed an assessment of three cents per bushel on all rice grown within the state to be paid by the producer. Before the assessment could be imposed, the producers were required to approve it by a three-fifths vote. The assessment was mandatory, but under Ark. Code Ann. § 2-20-509, any rice producer could request and receive a refund by making written application to the Director of the Department of Finance and Administration.
In 1995, the General Assembly enacted Act 344, providing for an alternative assessment on rice. Act 344 authorized the Arkansas Rice Research and Promotion Board to refer to the rice producers of the state the issue of authorizing an assessment of .35 cents per bushel against rice buyers and up to 1.50 cents per bushel against rice producers.1 Only rice producers were allowed to vote to impose the assessments, both against themselves and against the rice buyers. Pursuant to § 2-20-511 (b)(2), neither rice buyers nor rice producers could receive a refund once the assessment had been imposed pursuant to the statute.
In February 1996, a referendum on the assessment against the rice buyers was submitted to the rice producers; they approved the imposition of the 1.35 cent assessment in a vote of 4,271 in favor and 1,649 opposed. The funds derived from the assessment against rice buyers are designated for use for rice promotion and market development; the funds derived from the assessment against the rice producers are designated for use for rice research.
In support of their argument that summary judgment was improper, appellants assert that Act 344 must be presumed constitutional, and that the approval process set forth in Act 344 has been consistently upheld by this court as well as the Supreme Court and other appellate courts. The doctrine prohibiting delegation of legislative power has long been recognized, but the Court has also recognized that Congress may delegate its decision-making authority within certain limits. Appellants argue the delegation in this case falls within these limits, citing Currin v. Wallace, 306 U.S. 1 (1939), and U.S. v. Rock Royal Co-Operative, Inc., 307 U.S. 496 (1939). In Rock Royal, the Court set out the general test to determine whether a delegation is constitutional:
[E]ach enactment must be considered to determine whether it states the purpose which the Congress seeks to accomplish and the standards by which that purpose is to be worked out with sufficient exactness to enable those affected to understand these limits. Within these tests the Congress needs specify only so far as is reasonably practicable.
Rock Royal, 307 U.S. at 574. In determining whether an unconstitutional delegation has been made, the Court considers whether Congress “has attempted to abdicate, or to transfer to others, the essential legislative functions with which it is vested by the Constitution,” noting that “legislation must often be adapted to conditions involving details with which it is impracticable for the legislature to deal directly.” Currin, 306 U.S. at 15.
The appellants argue that because the legislature has specified the amount of the assessment and who is to pay it, the legislature has not unlawfully delegated its authority. They assert that the vote by the producers is merely a condition upon which the legislation may become operative and is therefore permissible. We do not agree.
In the instant case, the General Assembly set the 1.35 cent assessment and the Board, comprised of rice producers, was given the authority to call and administer the referendum whereby the rice producers would decide whether rice buyers should be assessed. It is clear that Act 344, without restriction, bestowed private rice producers with the power to shift their existing burden to pay assessments to rice buyers.
The theory of the appellees’ case is that the unlawful delegation of legislative authority in this matter exists because Act 344 empowered the rice producers with the sole discretion of levying an assessment against the rice buyers without giving the buyers a vote, much less a hearing or review, on the assessment. In sum, appellees submit that to deny them a vote in these circumstances is a due process violation. In support of their argument, appellees cite Carter v. Carter Coal Co., 298 U.S. 238 (1936), for the proposition that the exclusion of an affected group (here rice buyers) from the referendum was a federal constitutional defect founded on the lack of due process given those adversely affected by the referendum. In Carter, the Court said:
The power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumably disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business.
Carter, 298 U.S. at 311. The appellants attempt to distinguish the Carter decision based on the fact that the Board here was given the authority to call a referendum. However, the constitutional issue is whether the rice buyers are denied the right to vote in the referendum regardless of who statutorily calls the referendum. Even if it were relevant that the Board rather than the producers called the referendum, the fact remains that the Board was composed wholly of rice producers.
Besides failing to provide convincing authority that the Carter decision should not be followed in the instant case, the appellants cite cases that tend to support appellees’ argument more than the appellants’. In this respect, appellants cite federal cases where laws were held not to be unlawful delegations of legislative power when agricultural commodity programs were put into execution by way of referendums. See Parker v. Brown, 317 U.S. 341 (1943); Currin v. Wallace, 306 U.S. 1 (1939); Wileman Bros. & Elliott, Inc. v. Espy, 58 F.3d 1367 (9th Cir. 1995); United States v. Frame, 885 F.2d 1119 (3d Cir. 1989). While Arkansas has no similar cases dealing with commodity programs, this court has recognized the rule that, although the General Assembly cannot delegate its power to make a law, it can make a law and prescribe the condition upon which it may become operative. Miller v. Witcher, 160 Ark. 479, 254 S.W. 1063 (1923); see also Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989). However, in each of these cases, both federal and state, the challenge to the referenda was brought by plaintiffs who had an opportunity to vote on the legislative issue affecting them.
The same holds true in the other jurisdictions cited by appellants. See Dukesherer Farms, Inc. v. Ball, 273 N.W.2d 877 (Mich. 1979) (cherry producers brought unsuccessful challenge to Michigan Agricultural Commodities Marketing Act, a statute requiring a referendum of affected producers); Wickham v. Trapani, 272 N.Y.S.2d 6 (N.Y. App. Div. 1966) (apple growers unsuccessfully challenged assessment on growers ratified in a referendum by growers; all “interested persons” were apprised of and allowed to vote on the referendum and the court found this satisfied due process). In sum, the cases relied on by appellants are fundamentally different from the situation at hand where the legislation, Act 344, fails to give the affected persons — rice buyers — a right to vote in the referendum. The Michigan Supreme Court in the Ball decision explicitly spells out the error of the appellants’ position as follows:
The requirement of a referendum . . . need not constitute improper delegation [of legislative authority], but can simply be a measured decision by the Legislature to allow those most intimately affected to decide whether forming a marketing program as presented in the Act and approved by the Director is a proper manner in which to effectuate their business goals. As long as this is carried forth under sufficient standards and safeguards set up by the Legislature under the Act, or other legislation applicable thereto, there is no improper delegation of authority.
Ball, 273 N.W.2d at 889 (emphasis added). Additionally, as one treatise has noted, “a significant number of states have voided efforts by state governments to vest their lawmaking authority in private persons or entities.” Arthur E. Bonfield & Michael Asimow, State and Federal Administrative Law § 7.3, at 460 (1989). The treatise writers explain the states’ rationale as follows:
[T]hat private parties might “make rules that placed personal gain ahead of the public welfare . . . [and] the absence of neutral [and independent] administrative agency review of the private parties’ determination would encourage self-serving policies. This latter aspect was particularly troublesome . . . because the private parties themselves were not subject to any political control .... [However], ... a rule that a private party proposes is not constitutionally suspect if it is adopted by an administrative agency that has power to accept, reject, or modify the rule.”
Id. (quoting Ira P. Robbins, The Impact of the Delegation Doctrine on Prison Privatization, 35 U.C.L.A. L. Rev. 911 (1988)). Here, Act 344 not only fails to allow the rice buyers a vote to decide on whether the rice promotion and marketing program should be effectuated, the Act fails entirely to provide rice buyers any safeguards or standards by which the assessment referendum can be measured.
Rock Royal is the only case cited by appellants where commodity (milk) producers were solely permitted to vote to effectuate legislation when other affected persons (milk handlers) were denied the right to vote on the issue. United States v. Rock Royal Coop., 307 U.S. 533 (1939). Even so, in Rock Royal, due process safeguards and standards were an inextricable part of the legislation in question. Among other things, the legislation provided that milk handlers should generally approve any order fixing prices paid by milk handlers to milk producers. However, if the milk handlers did not approve the order, the Secretary of Agriculture could issue the order fixing prices if he or she made a special determination and obtained approval of the President. If the Secretary did not make the special determination, but made certain other determinations, the Secretary could allow the milk producers to effectuate the order by referendum. In any event, notice, opportunity for hearing, and review were afforded the milk handlers before any order was issued. In addition, the Agricultural Marketing Act at issue in Rock Royal provided that the Secretary had a list of factors to consider before an order was made fixing minimum prices.
Appellants also cite Currin in support of their argument that the delegation in this case should be upheld. Currin v. Wallace, 306 U.S. 1 (1939). However, Currin supports the appellees’ argument more than the appellants’. In Currin, the tobacco growers were given authority by the Tobacco Inspection Act to vote to impose inspection and certification procedures on their tobacco before it could be sold. Tobacco warehousemen challenged the act and the Supreme Court found the voting provision to be lawful. However, the tobacco warehousemen who challenged the act were only indirectly affected by the act, if at all. Rather, those who were intimately affected by the act, the growers, were given the opportunity to determine whether it would apply to them.
Finally, appellants offer a rather disingenuous argument that, because the General Assembly has the unrestricted authority to impose an assessment on rice producers and rice buyers, the vehicle or procedure by which the assessment is imposed is of no import. Stated in other terms, their argument is that if the General Assembly has the power to make the assessments contained in Act 344, it is of no importance who is given the authority to place the Act in execution. Appellants offer no citation of authority to support such a bare proposition and such a summary legal conclusion totally ignores the appellees’ due process argument.
In the present case, Act 344 directs the rice buyers to pay a rice assessment, without specifying any standards or factors that anyone (including the Board) must consider before imposing the assessment; nor does the Act afford the buyers any notice, hearing, or review before such an assessment is imposed on them. This unlawful empowerment given private rice producers is especially offensive when it affects other private persons like rice buyers who have interests opposing or adverse to those of the producers. Because we have determined that Act 344 is an unconstitutional delegation of legislative authority, we affirm the trial court’s grant of summary judgment.
Affirmed.
Brown, J., Special Associate Justices Ted Sanders and Steven B. Davis dissent; Corbin and Thornton, JJ., not participating.
Act 344 of 1995 provided that the authorized assessments were 1.35 cents per bushel to be paid by the buyers and up to 1.50 cents per bushel to be paid by the producers. As codified, however, § 2-20-511 provides for assessments of one dollar and thirty-five cents and up to one dollar and fifty cents.
The dissenting opinion goes to considerable length to suggest appellees failed to sufficiently raise and develop their due process argument. First, appellants make no suggestion that the appellees failed to preserve this constitutional issue. Second, we believe it becomes evident that both parties skillfully researched, briefed, and argued their respective legal constitutional theories by a fair reading of this opinion. We note that nothing else need be said on this point.
A second issue was raised below but left undecided by the trial court — whether the 1.35 cent assessment is a valid fee or an illegal tax. Because we agree with the chancellor that Act 344 is unconstitutional as an unlawful delegation of legislative power, it is unnecessary to consider whether the Act’s assessment is also invalid as an illegal exaction. | [
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Annabelle Clinton Imber, Justice.
This appeal stems from a decision by the chancery court to revive a judg-ment for child-support arrearages more than ten years after the date of its rendition. The chancellor concluded that an acknowledgment of the 1985 judgment contained in an agreed order filed on February 16, 1994 revived the judgment for an additional ten (10) years. For the reasons stated below, we affirm as modified.
The parties were divorced in Florida on August 29, 1975. The divorce decree entered by the Florida circuit court awarded custody of the parties’ two children to Linda Malone and ordered Donald Malone to pay child support in the amount of $40.00 per week. When Mr. Malone faded to make the child-support payments ordered by the Florida circuit court, Mrs. Malone retained private counsel and filed a complaint on December 27, 1984, in Ouachita County Chancery Court, Case No. E-84-440, seeking to collect child-support arrearages owed under the Florida decree. A judgment entered on July 9, 1985, awarded Mrs. Malone the total sum of $12,735.74 for child-support arrearages plus interest. A garnishment on September 10, 1985 produced $134.50. However, the balance of the judgment remained unpaid.
Mr. Malone again failed to pay his child-support obligations in 1986. Mrs. Malone assigned her rights to the Arkansas Office of Child Support Enforcement (OCSE), which instituted a separate action in Ouachita County Chancery Court, Case No. E-86-47, on April 11, 1986. OCSE registered the Florida divorce decree under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). Ark. Stat. Ann. §§ 34-2401 et seq. (1985)(codified at Ark. Code Ann. § 9-14-301 et seq. (1987)). Pursuant to an agreed order entered on June 3, 1986, OCSE was granted judgment for arrearages accrued since the entry of the 1985 judgment in the amount of $1800.00, and Mr. Malone was ordered to continue making child-support payments in the amount of $40.00 per week.
On February 16, 1994, the Ouachita County Chancery Court entered a final order in the OCSE case terminating Mr. Malone’s obligation to pay child support, as both children had reached the age of majority. The order noted that since entry of the June 3, 1986 order Mr. Malone made regular payments through the registry of the court until the youngest child reached majority age in August, 1992. However, based upon an examination of payment records maintained by the clerk, the chancellor found that some payments were not made and Mr. Malone was delinquent in child-support payments in the total amount of $700.00. Mr. Malone was ordered to pay that sum forthwith to the clerk “which payment shall constitute the defendant’s final child-support obligation in this case.” Finally, the last paragraph of the 1994 order provided as follows:
That nothing contained in this order shall effect in any way the previous judgment obtained by the Plaintiff, Linda Malone, against the Defendant, Donald F. Malone, on July 9, 1985, in Ouachita County Chancery, case number E-84-440, for child support arrearages under the Florida decree.
On April 25, 1996, OCSE filed a petition for scire facias in Case No. E-86-47-1, and on May i, 1996 OCSE filed a motion to consolidate Case Nos. E-86-47-1 and E-84-440-1. On June 3, 1996, OCSE filed a petition for revivor of judgment in Case No. E-84-440-1. The parties stipulated to the facts at issue and a final hearing was held on August 12, 1997. By order filed November 25, 1997, the chancellor found that the last paragraph of the agreed order entered February 16, 1994 in Case E-86-47 was an acknowledgment of the 1985 judgment by Mr. Malone. Applying the law as it relates to the acknowledgment of debts, the chancellor concluded that nothing in the 1994 order rebutted the presumption that Mr. Malone intended to pay the judgment. Based upon this conclusion, the chancellor held that the judgment was revived to the extent that Mrs. Malone was entitled to pursue collection of the 1985 judgment for ten years commencing from February 16, 1994. Mr. Malone appeals the chancellor’s order, asserting that the petition for scire facias was fataily late and any action on the 1985 judgment is now barred.
OCSE filed both petitions, the petition for scire facias in Case No. E-86-47-1 and the petition for revivor of judgment in Case No. E-84-440-1, pursuant to Ark. Code Ann. § 16-65-501 (1987). Section 16-65-501 provides in pertinent part that:
(a) The plaintiff or his legal representatives may, at any time before the expiration of the lien on any judgment, sue out a scire facias to revive the judgment.
* * *
(f) No scire facias to revive a judgment shall be issued except within ten years from the date of the rendition of the judgment; or if the judgment shall have been previously revived, then within ten years from the order of revivor.
(Emphasis added.) A writ of scire facias must be sued out prior to the expiration of the judgment. See Burton v. Bank of Tuckerman, 276 Ark. 504, 637 S.W.2d 577 (1982); General Am. Life Ins. Co. v. Cox, 215 Ark. 860, 223 S.W.2d 775 (1949). The ten-year limitations period begins to run from the date of the rendition of the judgment. See Ark. Code Ann. § 16-65-501.
The judgment for accrued child-support arrearages was entered in 1985. The petition for scire facias or revivor of judgment was not filed by OCSE until 1996. Because OCSE did not sue out a scire facias to revive the 1985 judgment within ten years from the date of its rendition, we conclude that no scire facias to revive the judgment could be issued and revival of the judgment was barred pursuant to Ark. Code Ann. § 16-65-501. See Burton, supra.
Likewise, actions on all judgments must be commenced within ten (10) years after the cause of action accrues. Ark. Code Ann. § 16-56-114 (1987). A cause of action on a judgment accrues on the date the judgment is rendered. A. Karcher Candy Co. v. Hopkins, 211 Ark. 810, 202 S.W.2d 588 (1947). This statute of limitations for actions on judgments may be tolled when payment is made on the judgment, thereby commencing a new ten-year limitations period as of the date of the payment. Pepin v. Hoover, 205 Ark. 251, 168 S.W.2d 390 (1943). The judgment here was rendered on July 9, 1985. The only proven payment on the 1985 judgment was a garnishment on September 10, 1985, which thereby commenced a new ten-year limitations period as of September 10, 1985. As previously stated, Mrs. Malone did not commence an action on the 1985 judgment until 1996, more than ten years after the last payment date, September 10, 1985. Thus, enforcement of the judgment was barred under Ark. Code Ann. § 16-56-114 as well.
The chancellor decided that an acknowledgment of the 1985 judgment contained in the 1994 order revived the statute of limitations of the judgment for an additional ten years. In making this decision, the chancellor reasoned that a debt may be revived by a subsequent acknowledgment. While both parties have briefed this issue, we must reject the chancellor’s reasoning because the revival of judgments is governed by section 16-65-501 and actions on judgments are governed by section 16-56-114. Neither of those statutes, nor the case law interpreting them, provides for revival of a judgment or the statute of limitations for actions on a judgment by a subsequent acknowledgment of debt.
Notwithstanding the above analysis, we will affirm the trial court where it reaches the right result, even though it may have announced the wrong reason. Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998); Marine Servs. Unlimited, Inc. v. Rake, 323 Ark. 757, 918 S.W.2d 132 (1996). Accordingly, we may consider statutory authority which would support affirmance, though not cited by the parties.
In July of 1995 the legislature passed Act 1184 of 1995, which amended Ark. Code Ann. § 9-14-235 (Repl. 1991), so as to allow collection on child-support judgments in a specified manner until such time as the judgments have been satisfied. Specifically, Ark. Code Ann. § 9-14-235, as amended, provides:
(a) If a child support arrearage or judgment exists at the time when all children entitled to support reach majority, are emancipated, or die, or when the obligor’s current duty to pay support otherwise ceases, the obligor shall continue to pay an amount equal to the court-ordered child support, or an amount to be
determined by a court based upon the application of guidelines for child support under the family support chart, until such time as the child support arrearage or judgment has been satisfied.
(f) The purpose of this section is to allow the enforcement and collection of child support arrearages and judgments after the obligor’s duty to pay ceases.
The legislature placed no statute of limitations on the continued collection of child- support judgments in the manner specified by section 9-14-235, thereby creating a direct conflict with section 16-65-114, which mandates a ten-year limitations period for actions upon all judgments.
Two major principles are controlling in resolving which statute governs the enforcement of child-support judgments. First, when interpreting statutes, the rule is settled that a general statute must yield when there is a specific statute involving the particular matter. Village Market Inc. v. State Farm Gen. Ins. Co., 334 Ark. 227, 975 S.W.2d 86 (1998); Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997). Second, it is the policy of the law to use the longer limitations period where the issue is “doubtful.” Adams v. Arthur, 333 Ark. 534, 969 S.W.2d 598 (1998); Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968).
Section 9-14-235, as amended, applies specifically to child-support judgments and imposes no limitations period on the enforcement of those judgments, so long as collection efforts are limited to those methods specified in the statute. We therefore conclude that section 9-14-235, as amended, governs actions to collect on child-support judgments to the extent that such actions were not yet barred at the time section 9-14-235, as amended, became effective and to the extent that such actions seek only to require the obligor, whose current duty to pay support has ceased, to continue making regular court-ordered child-support payments until such time as the judgment is satisfied.
As previously stated, a new ten-year statute of limitations period commenced on the 1985 judgment by virtue of the September 10, 1985 garnishment. Pursuant to section 16-56-114, an action on the 1985 judgment could be commenced at any time before September 10, 1995. Thus, at the time section 9-14-235, as amended, became effective, that is on July 28, 1995, action on the 1985 judgment was not yet barred by section 16-56-114. Accordingly, we hold that section 9-14-235, as amended, governs the 1985 judgment, so as to allow for its enforcement and collection in the manner provided by that statute until the judgment is folly satisfied. Under these circumstances, section 9-14-235 requires that Mr. Malone continue making regular court-ordered child-support payments until the judgment is satisfied. We therefore affirm the trial court’s order that Ms. Malone may pursue collection on the 1985 judgment, but modify that order to limit the manner of collection to those methods specified in Ark. Code Ann. § 9-14-235.
Affirmed as modified.
Brown, J. concurs.
Although a tax interception of Mr. Malone’s 1988 income tax refund produced $253.00 in 1989, no evidence was introduced showing that this amount was applied to the 1985 judgment.
With regard to the assertion by the concurrence that we should rely upon Act 507 of 1989, that Act provided specifically that “ [Enforcement through court proceedings of the continued payment of the support obligation amount to collect child support judgements and arrearages is prohibited.” Accordingly, Act 507 does not apply to Mrs. Malone’s efforts in this case to enforce payment of a judgment for child-support arrearages through court proceedings. | [
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LARRY D. VAUGHT, Judge
|! Ricky and Susan Howell both appeal the Washington County Circuit Court’s order terminating their parental rights to their three children, R.H., G.H., and L.H. We affirm the termination of both parents’ parental rights.
Ricky and Susan had been involved in a protective-services case in which they had both failed drug screens and in which the Arkansas Department of Human Services (DHS) had raised concern about the cleanliness of the house, bedbugs, the children’s hygiene, and the parents’ failure to provide the children with needed medications. The current case was initiated when the children were removed from their parents’ custody after Ricky had called DHS and stated that he could not handle the children or the stress of raising them. On March 12, 2015, the circuit court found that probable cause existed to maintain the children in DHS custody due to the parents’ illegal drug use and failure to provide a safe home. The circuit court found that DHS had previously provided a wide array of services to the parents through the 12protective-services case since October 24, 2014. The court ordered that the parents submit to a psychological evaluation, participate in individual counseling, not use illegal drugs, complete a drug-and-alcohol assessment, follow the recommendations resulting from that assessment, submit to weekly drug screens, obtain and maintain appropriate housing, and comply with the case plan and all court orders. It also granted visitation. Following the entry of the probable-cause order, DHS provided the Cherokee Nation of Oklahoma with notice that the children were eligible for membership.
At the adjudication hearing on April 14, 2015, the court found the children dependent-neglected due to neglect and parental unfitness. The court found that 25 U.S.C. sections 1902, et seq., the Indian Child Welfare Act (ICWA), was applicable to the case because Susan is an enrolled member of the Cherokee Nation.
On or about June 15, 2015, Ricky requested that, instead of attending inpatient substance-abuse treatment, he be permitted outpatient treatment in order that he not lose his SSI income, and the court permitted him to attend outpatient treatment. At the next review hearing, Susan was found to be complying with the case plan, but Ricky had tested positive for THC. The circuit court approved DHS’s request that the couple be allowed to move to Oklahoma to receive services through the Cherokee Nation. The court specifically ordered the parents to address three issues: drug use, anger management, and their ability to parent special-needs kids. The court also found that DHS had made reasonable and active efforts toward reunification.
At the permanency-planning hearing on March 16, 2016, the circuit court found by clear and convincing evidence that returning the children to Ricky and Susan’s custody would | ¡¡likely result in serious emotional or physical damage to the children. The circuit court changed the goal of the case to adoption and found that the parents were not making substantial, measurable progress. It found that Susan had not shown that she could practice the parenting skills she had been taught, could not comprehend and meet the children’s special needs, and could not care for herself without Ricky’s help. Despite being compliant with the case plan, she had made minimal progress. The court also found that Ricky had not completed anger-management or outpatient-drug counseling, had not shown that he could put into practice the parenting skills that he had been taught, had not maintained his sobriety, had refused to take a hair follicle test, and had shown up in court with his hair shaved in order to avoid testing.
DHS filed a petition to terminate Ricky and Susan’s parental rights on April 15, 2016, alleging two statutory grounds for termination. First, DHS alleged that the juveniles had been adjudicated by the court to be dependent-neglected and had continued to be out of the custody of the parents for twelve months and, despite a meaningful effort by the department to rehabilitate the parents and correct the conditions that caused removal, those conditions had not been remedied. Ark. Code Ann. § 9-27-341 (b)(3)(B)(i)fa) (Repl. 2015). Second, DHS charged that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect, and that despite the offer of appropriate family services, the parents had manifested the incapacity or indifference to remedy the subsequent issues or rehabilitate their circumstances. Ark. Code Ann. § 9-27-341 (b)(3)(B)(vii)(aj.
The termination hearing was held on July 15, 2016, after which the circuit court terminated Ricky and Susan’s parental rights on both grounds alleged by DHS. The court made the findings beyond a reasonable doubt and further stated that it relied on qualified | ¿expert testimony that DHS had provided services and programs to prevent the breakup of the Indian family as required by the ICWA. These timely appeals followed.
The standard of review in appeals of termination of parental rights is de novo, but we reverse a trial court’s decision to terminate parental rights only when it is clearly erroneous. Ullom v. Ark. Dep’t of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000); Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851; Brewer v. Ark. Dep’t of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a distinct and firm conviction that a mistake was made. Wade v. Ark. Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999); Hopkins v. Ark. Dep’t of Human Servs., 79 Ark. App. 1, 83 S.W.3d 418 (2002).
On appeal, both parents challenge the sufficiency of the evidence as to both statutory grounds. Regarding the court’s finding that the appellants failed to remedy the conditions causing the children’s removal, Ricky admits that he tested positive for illegal drugs in March and June 2016, but he contests the validity of those results. He also argues that it was error for DHS not to accept the results of a drug screen he claims was taken at his private doctor’s office. Ricky claims that he had not used illegal drugs since approximately a month after the children were removed. Ricky’s arguments fail to overcome the deference appellate courts give to the circuit court’s superior opportunity and position to judge the credibility of witnesses. See Matlock v. Ark. Dep’t of Human Servs., 2015 Ark. App. 184, at 6, 458 S.W.3d 253, 257. Moreover, the court was presented with witness testimony that Ricky was unable to manage the children at visitations and had interacted inappro priately with them. The record further reveals that the court had repeatedly found that Ricky was not in full compliance with the case Rplan due to his failure to complete court-ordered anger-management and drug-treatment programs. Based on a review of all the evidence, we do not conclude that the circuit court’s finding that Ricky failed to remedy the causes of the children’s removal was clearly erroneous.
Susan’s challenge to the court’s failure-to-remedy finding is different: she claims that it was based on the court’s previous finding of parental neglect and unfitness in the adjudication order and argues that the adjudication order failed to apply the higher burden of proof mandated by the ICWA. However, we cannot reach this issue because it has been waived. Pursuant to Rule 6—9(a)(1)(A) of the Arkansas Rules of Appellate Procedure-Civil, the adjudication order was a final, appealable order. Susan failed to file a timely notice of appeal from the adjudication order; therefore, we may not consider allegations that it contained error. Jefferson v. Ark. Dep’t of Human Servs., 356 Ark. 647, 657, 158 S.W.3d 129, 135 (2004). Further, Susan did not object during the termination hearing when a certified copy of the adjudication order was entered into evidence. Thus, her argument is not preserved for appeal.
Both parents also challenge the court’s finding that the other-subsequent-factors ground supported termination of their parental rights. However, we need not address this issue, as only one ground is necessary to terminate parental rights. Vail v. Ark. Dep’t of Human Servs., 2016 Ark. App. 150, at 18, 486 S.W.3d 229, 238.
[ (Ricky also argues on appeal that there was insufficient evidence to support the court’s finding beyond a reasonable doubt that returning the children to his custody would be likely to result in serious emotional or physical damage to the children, which is the relevant statutory standard pursuant to the ICWA. 25 U.S.C. § 1912(f). Ricky argues that there was no evidence to indicate that he could not parent his children or that his home was unfit. As discussed above, the court’s main concern with Ricky was his illegal drug use. Case law is clear that a parent’s continuing use of illegal drugs poses a risk of harm to the children if returned to that parent. A court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent’s care and custody. Harbin v. Ark. Dep’t of Human Servs., 2014 Ark. App. 715, at 3, 451 S.W.3d 231, 233. Moreover, as discussed above, there was testimony about Ricky’s inability to handle the children during visitation and his inappropriate interactions with them. To the extent that Ricky disputes such testimony, we defer to the circuit court’s assessment of the witnesses’ credibility. See Morton v. Ark. Dep’t of Human Servs., 2015 Ark. App. 388, at 10-11, 465 S.W.3d 871, 877.
Susan’s final point on appeal is also a challenge to the court’s finding, pursuant to the ICWA, that returning the children to her custody would be likely to result in serious emotional or physical damage. She argues that the ICWA requires that
|7[n]o termination of parental rights may be ordered in such proceeding in the absence of the determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
25 U.S.C. § 1912(f) (emphasis added). She claims that the Cherokee Nation representative who testified before the circuit court, child-welfare specialist Nicole Allison, was not qualified as an expert witness pursuant to the ICWA and that her testimony was therefore insufficient to meet the statutory burden of proof.
Susan acknowledges that she failed to raise this issue below and acknowledges that we recently held in Johnson v. Arkansas Department of Human Services, 2016 Ark. App. 49, 481 S.W.3d 463, that challenges to the expert qualification of the ICWA representative in a termination-of-parental-rights case must be preserved at trial in order to be raised on appeal. However, she asks us to overrule Johnson, arguing that it is inconsistent with Williamson v. Elrod, 348 Ark. 307, 72 S.W.3d 489 (2002), in which the Arkansas Supreme Court held that expert testimony as to the standard of care in a medical-malpractice case was an element of the claim and need not be raised as a contemporaneous objection during the witness’s testimony in order to preserve the issue for appeal. Specifically, in Williamson, the supreme court noted that “the appropriate | stime to challenge the failure to meet the standard of proof was during the directed-verdict motion,” which is what the appellant did in that case. In contrast, in the present case, Susan never challenged Allison’s qualification as an expert prior to this appeal, despite having many opportunities to do so. Therefore, we note that, even under the standard put forward in Williamson, which Susan urges us to adopt in ICWA cases, her challenge to Allison’s qualification as an expert would remain unpre-served because she is raising it for the first time on appeal.
Affirmed.
Abramson, Virden, and Gladwin, JJ., agree.
Whiteaker and Murphy, JJ., dissent.
. Susan argues that it was error for the circuit court to rely on the same evidence to support both the failure-to-remedy and other-subsequent-factors grounds because a subsequent factor inherently implies a temporal element requiring the factor to arise after the initial removal of the children. In Guthrey v. Arkansas Department of Human Services, 2017 Ark. App. 19, at 9, 510 S.W.3d 793, we commented in dicta that,
[i]n this case, it was also logically inconsistent for the court to have relied on the exact same facts for both its "failure to remedy” and "other subsequent factors” findings. The problems either caused the children’s removal or they arose subsequent to removal, but not both.
2017 Ark. App. 19, at 9, 510 S.W.3d 793. Because we affirm the circuit court's termination of Susan's parental rights on separate grounds, we need not decide whether the court erred in exclusively relying on the same factual findings to support both grounds.
. We take Susan’s argument to raise two issues: (1) whether the circuit court declared Allison to be a qualified expert and (2) whether Allison possessed the necessary qualifications for such a designation.
. While the language in Johnson indicates that a contemporaneous objection to the witness’s qualification as an expert pursuant to the ICWA is necessary in termination cases, both Johnson and its predecessor, Philpott v. Arkansas Department of Human Services, 2011 Ark. App. 572, 2011 WL 4477860, actually involved challenges that were never raised before the trial court in any form (contemporaneous objection, directed-verdict motion, or objection to the final order). Therefore, those cases are more accurately understood as continuations of the well-established rule that we will not entertain an argument raised for the first time on appeal, which is in keeping with the supreme court’s holding in Williamson.
.For example, Susan could have raised an objection when Allison testified about her qualifications, could have addressed the issue in a motion for directed verdict, and could have objected when the court issued its termination order, which specifically designated Allison as a qualified expert. | [
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Hon. Harris Flan agin, Special Judge,
delivered the opinion of the Court.
The appellee and the State of Arkansas filed their bill in chancery against the heirs and administrator of Thomas W. Newton, deceased, Albert Pike and James Lawson, to set aside a sale of the west half of lots one, two and three, in block eighty-one, in the city of Little Rock, made by James Lawson, as sheriff of the county of Pulaski, on the ground of fraud on the part of the said Thomas W. Newton, the purchaser, and the sheriff making the sale.
It is charged in the bill, that Lawson, as such sheriff, had in his hands a writ of execution against the State Bank for the sum of thirty dollars and costs, which he levied on the property in dispute and advertised it to be sold, and, on the 21st day of April, 1845, that being the first day of Pulaski Circuit Court, the property was by him sold to Euclid L. Johnson (who bought as the agent of the State of Arkansas) for two hundred and five dollars. That the State and State Bank were ready and willing to pay, and had the money, but the sheriff did not call on them for their bid, but on a subsequent day sold the property to Newton, at a secret sale, for the sum of two hundred dollars. That Newton’s bid was never paid, but the sheriff returned it a sale, and executed a deed for the land to Newton. That Newton brought his action of ejectment, and recovered the property with some $4,000 rents. That the property was worth some ten thousand dollars. The bill prayed an injunction against the judgment at law, and that the sale to the State might be affirmed, and the sale to Newton set aside, and the deed from Lawson to Newton canceled.
In the bill there were several charges of fraud which will be hereafter noticed.
Afterwards, the State of Arkansas, by the order of the court, ceased to be a party complainant, for the reason that by the bill she appeared to have no interest in the event of the suit: and the suit abated as to James Lawson, who departed this life, and the suit progressed in the name of the State Bank as complainant and Newton’s representatives and Albert Pike (who held under Newton) as defendants.
Those defendants who were not minors, made answer, and •admitted the execution, levy and advertisement, and the sale to Johnson, but deny that Johnson bought as agent of the State of Arkansas, and insist that he bought as agent of the State Bank: deny that either the State or State Bank had the means to pay the bid of Johnson: deny that they did pay it: say that Lawson, as sheriff, did proceed to sell the property, on the second day of the term, between the hours of nine in the forenoon and three in the afternoon of the day, at the court house door of Pulaski county, at public auction, to Thomas W. Newton. for two hundred dollars, which they believe was paid. They admit the return of the sheriff, the deed to Newton, the action of ejectment and recovery as charged.
The court below decreed, canceling the deed of the sheriff to Newton and enjoining the judgment at law.
At the hearing it apppeared that the sale on the first day was to Euclid L. Johnson, as agent or attorney for the Slate Bank, and that said bid was not paid, and that on the second day of the term, at public sale between the hours of nine in the morning and three in the evening, at the court house door in Pulaski county, the property was sold to Thomas W. Newton for'two hundred dollars.
The first question is, was this sale void for want of power in the officer to sell on that day; or was the sale merely irregular?
Thomas W. Newton, before the commencement of this suit, brought ejectment against the State Bank for the land in controversy, and on the trial the court permitted the Bank to show that the sale took place on the second day of the term; for which reason this case was reversed. See Newton vs. The State Bank, 14 Ark. 11, in which case the court say: “The sale then was not void for want of power in the sheriff to sell, and as to the irregularity of selling on a day different from that directing sheriff’s sales without notice, these are irregularities which arise in the exercise of the power conferred. A departure by the officer from the statutory direction as to the manner of exercis-ng his power does not affect the title of a bona fide purchaser at sheriff’s sale. This has been so repeatedly decided, that it may now be regarded as settled law.”
This court said in The State vs. Borden, 15 Ark. 616: “ The next question is, when then should he have sold the property so levied upon? In Newton vs. The Bank, we held a sale made under the same writ, on the second day of the term of the court, to which the writ was made returnable, even though erroneous, and perhaps reversible upon error for that reason, not to be void, and that a sale on that day, the writ still being in force, would communicate title in the property to the purchaser.”
The court seems to have recognized, as principles of law, in the two foregoing cases:
1st. That a sheriff may, under the foregoing circumstances, sell real estate upon the second day of the term, and a bona fide purchaser will take a good title:
2nd. That in doing so, the sheriff would act irregularly, and if a proper application was made to the court before a deed was executed, the court would hold it ei’roneous. State Bank vs. Noland et al., 13 Ark. 299.
These decisions have been made now, for several years, and have become rules of property, wdiich ought not to be changed unless in cases of great necessity. The statute is defective in not providing for the disposition of property under the circumstances, and any rule which can be made here, will be adopted with hesitancy, doubt, and want of confidence. Under these circumstances, whatever might have been our opinion, if there was no decision bearing upon the case, we shall not disturb the former decision as construed by us in this opinion.
The next point which is to be decided is, will mere irregularities affect a bona fide purchaser at a public sale.
“ It is a general rule that a bona fide purchaser of property at a sheriff’s sale is not affected by any error or irregularity in the judgment or execution, or by any irregularity or omi.sion by the sheriff in advertising or conducting the sale. Given vs. Doe &c., Blackf. 262. It is generally conceded by the authorities, that a bona fide purchaser at sheriff’s sale, even if that purchaser be the execution plaintiff, is not affected by any irregularity or omission of the sheriff in advertising or conducting said sale. Correil vs. Ham, 4 Greene Rep. 456.
“ The purchaser depends upon the judgment, the levy and the deed, and other questions are between the parties to the judgment and the marshal. Wheaton vs. Sexton, 4 Whea. 506.
An act of South Carolina “ imposed it as a duty on the sheriff to advertise all his sales in the Public Gazette, but his failing to do so could not invalidate the sale.” Turner vs. McCrea, 1 Nott & McCord 11.
It has been adjudicated in our own State, that irregularities do not afFect a bona fide purchaser, in Whiting & Slark vs. Beebe, 7 Eng. 421, and Adamson et al., vs. Cummins ad., 5 Eng. 541; and in Byers & McDonald vs. Fowler et al., 7 Eng. 219, it was decided that selling land on a different day from that prescribed by law and without advertisement would not affect a bona fide purchaser.
The authorities are abundant, and show that no mere error or irregularity will affect a bona fide purchaser.
The third question is, is inadequacy of price in public sales upon execution, a ground for annulling a sale in a chancery proceeding to set it aside?
Judge Story says: “ Inadequacy of consideration is not then, of itself, a distinct principle of relief in equity. The common law knows no such .principle: the consideration supports the contract. Common sense knows no such principle; the value of a thing is what it will produce, and it admits of no precise standard.” 1 Story Eq 245.
But he say, also, “still, however, there may be such an unconscionableness or inadequacy in a bargain as to demonstrate some gross imposition, or some undue influence, and in such cases courts of equity ought to interfere upon the satisfactory ground of fraud. 1 Story Eq. Jur. 246. He cites Hamett vs. Dundas, 4 Barr 178; Barnet vs. Spratt, 4 Iredell Eq. R. 171; Gortside vs. Underwood, 1 Bro. C. R. 558.
Hamett vs. Dundas was a contest between a set of creditors of a failing debtor and a favorite creditor, who had bought the property under a confessed judgment. There were circumstances from which a court might "well infer fraud..
Barnet vs. Spratt holds that gross inadequacy of price “ with other circumstances” will authorize a court ol chancery to set aside a private sale.
Gortside vs. Underwood decides in relation to a private sale, that an insufficient consideration may set aside a contract.
Judge Story, by the words “gross imposition and undue influence,” intended that there should be something more than mere gross inadequacy of price.
A sale by auction without other circumstances to justify it cannot be set aside for inadequacy of price. White vs. Duncan, 7 Vesey jr. 34.
A sale made at auction and under process of law ought not to be invalidated for mere inadequacy of price without additional circumstances to justify it. Livingston vs. Bayne, 11 John. Rep. 566.
A sale will be set aside where the purchaser led the parties to believe that the sale would not take place, and not on the ground of inadequacy of price alone. Williamson vs. Dale, 2 John. Ch. Rep. 272. This was on motion before the master’s report was made, and before the deed was executed.
The Supreme Court of Indiana hold: “The rule that a sale will be set aside on account of gross inadequacy of price applies to private sales and not to public sales. 4 Ind. Rep. 71.
It is unnecessary to quote further authorities; and no doubt this court laid down a correct rule in Hardy vs. Heard, 15 Ark. 189: “ It may be stated then as a safe and salutary rule of property that mere inadequacy of price is not sufficient to avoid a sale fairly made.”
The last question in the case is, whether there was any fraud or unfairness in this case, which would affect the purchaser !
The bill charges: “that the State was able and willing to pay the bid, and that the Bank had the means, and was able and willing to pay the same for the State, and that all Lawson had to do was to call on the State, or the Bank, for the same, and that it would have been paid; that the State has been, at all times, able and willing to pay the bid to the said James Lawson, jr., and thus prevent a most ruinous sacrifice of property in reality belonging to herself and necessary to her business.” That the sale was made to Newton on a day when he had no authority to sell’. If any sale was made to Newton, it was a secret sale, made at a time when there were no persons to bid in competition with Newton, to carry out the illegal design of sacrificing the property unnecessarily, and enabling Newton to purchase for two hundred dollars, property worth from $10,000 to $15,000. The sale was per se fraudulent, and Newton was cognizant and confederate. Does not believe Newton has paid his bid. Lawson has not paid the execution, nor paid the balance-to the Bank. That the sale and deed were the result of the combination between Newton and Lawson to sacrifice said real estate.
The answer denies all the charges of fraud specifically, to the best of their knowledge and belief.
There is a deed in evidence, which shows the execution, levy, advertisement, sale to Johnson, as attorney of the State Bank, that the bid was not paid when it was sold to Newton, and the bid paid, but does not state that it was made on the first or second day.
Nelson B. Thomason testifies that he was Lawson’s "principal deputy on the 21st April, 1845. There was a large number of sales on that day. The property in controversy was sold and bought by Euclid L. Johnson for the State of Arkansas. It was not Lawson’s custom to re-sell on the same day, and when it was bought in by the attorneys it was not his custom to demand payment except in a public or general way. Lawson told him the property was re-sold on the 22d of April, to Newton. Witness was not present at the re-sale. Witness wrote the deed to the State of Arkansas, except a few blanks and Lawson signed it.
Elbert H. English testifies that he was present at the first sale, and that Lawson told Johnson he wanted the money, and Johnson put his hands in his breeches pocket and shook it, and said he had plenty of money. Lawson told him seriously and with some feeling, if he did not pay, he would re-sell the Bank. “ On the next day, sometime before or after noon, I was standing on the pavement, when Lawson and, I think, Newton, passed up on the opposite side of the street towards the State House, and al the same time some one was passing down on my side, and Lawson called to him and told him he was going to sell the Bank again, and, I think, told him he had better come up and bid. I do not think Lawson re-sold on the first, but on the second day.”
John C. Peay testifies that he was present at both sales; thinks the second took place on the second day of the term, when Thomas W. Newton bought. Heard the Sheriff’s proclamation. “I stepped to the door and remained there until it was sold. My recollection as to the sale (not as to the day) is very clear. Euclid L. Johnson was present at the last sale, but left before the property was cried off. Mr. Johnson, in reply to Major Lawson, said he would have nothing to do with the matter.”
G. N. Peay gave the deed to the complainant-. It was in his possession with a good many unacknowledged deeds.
It only remains to say, there is not any fraud or unfairness on the part of Newton in this transaction. The Bank is attempting to set aside a deed executed by a public officer for fraud, and of course the onus is upon her to establish the facts. Lawson had no interest except to collect the money; demanded the money of Johnson, and assured him he would sell it it was not paid. The bidder knew of the second sale and was present, and of course, if there had been injustice, he might have applied by motion to have the sale set aside. Pie does not object to the sale, nor intimate there had been injustice done to the Bank. We have but little testimony showing what was done further than the deed shows; but this is not the fault of the appellants. The only complaint which can be made against the Sheriff is, that he sold, on a day not prescribed by law, and it does not appear whether he did or did not give such notice as was possible, under the circumstances, of the second sale. So far as Newtofa is concerned, he bought property at public auction, after proclamation, at the court house door, near the middle oí the day, and during the session of the court; and in addition to this was seen a short time before going to the place of sale in company with the Sheriff. This is all the proof.
We understand that in order to affect the purchaser with the Sheriff’s irregularities, or to set aside a sale for a gross inadequacy of price, it must appear that the purchaser colluded with the Sheriff, or did some improper act to induce the officer to proceed with the sale, or some act to prevent property from selling at its full value. It surely cannot be said that Newton did either of these.
Let the decree be reversed, the injunction be dissolved, and the bill be dismissed with costs.
Mr. Justice Fairchild did not sit in this case. | [
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MIKE MURPHY, Judge
JjAppellant Agility Financial Credit Union (Agility) appeals a December 2, 2015, Sebastian County Circuit Court order vacating a foreign judgment it had registered in that county against appellee, Gayla Lar-gent. We cannot reach the merits because a claim of the intervenor was left unaddressed, and this appeal is therefore premature. We dismiss without prejudice.
Agility obtained a judgment against Largent in Shelby County, Tennessee, and registered that judgment in Sebastian County, Arkansas, where Ms. Largent owned real property. Ms. Largent initially moved to vacate the foreign judgment, alleging that the affidavit accompanying it was not signed, and the circuit court granted the motion the same day. Four days later, the court set aside its order vacating the judgment upon learning that 12the affidavit did, in fact, have all the appropriate signatures. It reinstated the foreign judgment nunc pro tunc to its original filing date of February 23, 2015.
During that four-day period between when the judgment was vacated and retroactively reinstated, Largent sold real property situated in Sebastian County to a third person for roughly $58,000, and the closing was handled by Western Arkansas Title Services, LLC (WATS).
Largent again moved to set aside the registration of the foreign judgment on July 28, 2015. This time, she argued, among other things,-that the foreign judgment was not properly registered because the copy of the foreign judgment had not been certified by the Shelby County Circuit Clerk on its face as required by Arkansas Rule of Civil Procedure 44. Agility then made demand upon WATS in the amount of the sales price of the real property, and WATS was permitted to intervene and file a petition seeking a declaration that it “has no duty to pay any sum over to [Agility]” on the basis that the copy of the foreign judgment had not been properly certified in accordance with Rule 44. Agility responded, arguing that the registration complied with the Uniform Enforcement of Foreign Judgment Act and that the court was required by the United States Constitution to give full faith and credit to the foreign judgment.
The court ultimately ruled in Largent’s favor, finding that, to be properly authenticated, a foreign judgment must be “attested or certified to be a true copy of the original document on file with the official custodian of record.” That is to say that, even if a foreign judgment complies with the language of Arkansas Code Annotated section 16-66-1 s602 and United States Code Annotated section 1738, if it does not strictly comply with Arkansas Rule of Civil Procedure 44, it is deficient for purposes of registration in this state.
Arkansas Rule of Appellate Procedure-Civil 2(a)(1) (2016) provides that an appeal may be taken only from a final judgment or decree entered by the circuit court. While no party has raised this issue, whether an order is final for appeal purposes is a jurisdictional question that this court will raise sua sponte. Miracle Kids Success Acad., Inc. v. Maurras, 2016 Ark. App. 445, at 2-3, 503 S.W.3d 94, 95. Agüity appeals and asserts that the court erred in setting aside the registration of the foreign judgment; however, the orders entered only address Largent and her claims. WATS’s petition to intervene, in which it sought declaratory relief, is not addressed in any orders in either the addendum or the record. When more than one claim for relief is presented in an action or when multiple parties are involved, and absent a certification of final judgment, an order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not a final, appealable order. Ark. R. Civ. P. 54(b); Miracle Kids Success Acad., 2016 Ark. App. 445, at 2-3, 503 S.W.3d at 95.
Because the intervenor’s claim was left unresolved, the order from which Agility appeals is not final. We dismiss.
Dismissed without prejudice.
Gladwin and Harrison, JJ., agree. | [
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PER CURIAM
1,Appellant Matthew Wayne Nichols filed a pro se petition for postconviction relief pursuant to Rule 37.1 of the Arkan sas Rules of Criminal Procedure (2016), which was denied by the trial court. Nichols lodged this appeal, and he has filed two motions in which he seeks an extension of time to file his brief and to duplicate his appeal brief at public expense. An appeal from an order that denied a petition for postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Crawford v. Cashion, 2010 Ark. 124, at 2, 361 S.W.3d 268, 270 (per curiam). Because it is clear that Nichols cannot prevail on appeal, we dismiss the appeal, and Nichols’s motions are moot.
A jury convicted Nichols of capital murder in the death of his girlfriend, Jessica McFadden, whom he had set on fire. The State waived the death penalty, and Nichols was |2sentenced as a habitual offender to life without parole. This court affirmed. Nichols v. State, 2015 Ark. 274, 465 S.W.3d 846.
Nichols filed a timely petition for post-conviction relief and made numerous allegations of ineffective assistance of counsel and an allegation of prosecutorial misconduct. The trial court denied relief without conducting an evidentiary hearing and concluded that the errors alleged by Nichols and attributed to both his trial counsel and appellate counsel were the result of strategic decisions, which did not constitute ineffective assistance of counsel. The court further found that Nichols’s allegation of prosecutorial misconduct was not cognizable in a Rule 37.1 proceeding.
This court will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Walden v. State, 2016 Ark. 306, at 2-3, 498 S.W.3d 725, 728-29 (per curiam); Kemp v. State, 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Walden, 2016 Ark. 306, at 2-3, 498 S.W.3d at 728-29. When considering an appeal from a trial court’s denial of a Rule 37.1 petition based on ineffective assistance of counsel, the sole question presented is whether, • based on the totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. Id. Under the two-prong standard outlined in Strickland, to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced |ahis defense. Id. The reviewing court must indulge in a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The petitioner claiming ineffective assistance of counsel has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Id. The second prong requires a petitioner to show that counsel’s deficient performance so prejudiced his defense that he was deprived of a fair trial. Id. Consequently, the petitioner must show there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id.
Before addressing the allegations contained in Nichols’s petition for postconviction relief, it is necessary to review the evidence adduced at his trial as summarized by this court in affirming his conviction. Nichols, 2015 Ark. 274, at 2-6, 465 S.W.3d at 847-49. Three eyewitnesses testified at Nichols’s trial: Franklin Hinton, who had known both McFadden and Nichols for several years; Terry Yancy, Nichols’s niece and the best friend of McFadden; and Angela Yielding, a neighbor who lived two houses away from McFadden’s residence. Hinton testified that he was with Nichols on the day of the murder helping him repair a vehicle when McFadden returned to her residence where she and Nichols became embroiled in an angry confrontation. According to Hinton, Nichols had been drinking but 14was not intoxicated. Nichols told Hinton to wait for him while he went into the house to talk to McFadden. As a result of the ongoing argument between Nichols and McFadden, Hinton decided to leave, but as he walked back to his vehicle, he heard McFadden screaming, and he returned to the house. When he discovered that the screen door was locked, Hinton looked into a window to see what was going on inside the residence, and he saw Nichols dumping gasoline onto McFadden, when “all of a sudden, the whole living room lit up.” Hinton yelled at Nichols, but got no response, and Hinton watched while Nichols continued to pour gasoline onto McFadden. When McFadden fell against the window where Hinton had been watching, he recoiled in horror and fell off the porch. He ran from the scene, went straight home, and did not call the police until the next day.
Terry Yancy testified that a few weeks before the incident, Nichols told her that he would “burn her up in that house” if McFadden “put him out.” Yancey also recounted a phone call that she received from McFadden on the date of the incident, asking her to bring her some locks because she intended to change the locks at her residence. During that call, Yancey heard Nichols’s voice in the background repeating the threat that if McFadden put him out, “he would burn her up in that motherf—ing house.” Yancey testified that she perceived that Nichols had taken the phone from McFadden, and she sped through town trying to reach McFadden’s house. When she arrived, Yancey saw crime-scene tape, blood on the sidewalk and burn marks that led up to the house. Yancey subsequently went to the hospital to see McFadden and recalled that McFadden’s skin was melted, that she had only spots of hair and skin remaining, and that she was on a machine that was keeping her alive.
I ^Yielding testified that she was asked by another neighbor to call an ambulance because McFadden’s house was on fire. After calling the fire department, Yielding walked toward McFadden’s house and testified that she saw Nichols pouring gasoline “on top of some figure,” which Yielding described as lying on the ground in the fetal position. Yielding saw Nichols walking away from the crime scene, and she identified Nichols to police as the perpetrator of the crime. Investigating officers testified that when they encountered Nichols at the scene, he smelled of gasoline and that Nichols’s nostrils appeared to be blistered and pealing. A state medical examiner testified that McFadden had sustained burns on ninety percent of her body.
Nichols testified in his own defense and claimed that he had consumed half a pint of gin on the day of the incident. He stated that when he saw McFadden come home from what was supposed to have been an appointment in drug court, he became up set because she was dressed inappropriately, An argument ensued, fueled by his accusations of her infidelity and her threats to call the police to take him to jail. He admitted that they fought over her phone and that he snatched the phone away from her. According to Nichols, he saw the gas can in his truck, picked it up, and went back into the house. McFadden saw that he was carrying a gas can, but the first words out of her mouth were, “Where’s my goddamn phone at.” Nichols admitted that he “tripped” McFadden and doused her with gasoline. He then struck his lighter, and “the flame went up.” Nichols claimed that he did not plan to bum McFadden before he became upset. However, as McFadden was attempting to put out the fire, he poured more gasoline on her. Nichols stated that he saw McFadden come out of the front of the .house, cross the front of the yard, and lie down in [ fithe driveway. Nichols stated that he did not intend to kill McFadden, he just wanted to “hurt her real bad,” He explained that he poured additional gas on McFadden because initially he “hadn’t hurt her in a way to make her unattractive, you know, for sexual purposes.” Nichols admitted that he did not hesitate to pour more gas on McFadden because he realized he was “still going to go to jail” after the first dousing.
In his petition for postconviction relief, Nichols first contended that trial counsel erroneously failed to investigate the victim’s medical records reflecting that her family, together with physicians at the University' of Arkansas for Medical Sciences (UAMS), had made the decision to withdraw medical care and allow McFadden to die. Nichols maintained that the medical records would have exonerated him of McFadden’s murder. Nichols also asserted that counsel ineffectively failed to present the testimony of treating physicians from UAMS to describe McFadden’s medical condition prior to the withdrawal of further medical care and to allegedly testify that the victim would have survived had proper medical care been rendered. These allegations do not support an ineffective-assistance-of-counsel claim.
It is well settled that one whose wrongdoing is a concurrent proximate cause of an injury is criminally liable the same as if his or her wrongdoing were the sole proximate cause of the harm done. Jefferson v. State, 372 Ark. 307, 312, 276 S.W.3d 214, 219 (2008). In other words, Nichols is criminally liable for all the consequences that arose from his intentional actions, including the decision made by family and physicians to allow McFadden to die due to the nature and extent of the injuries that he had inflicted, which resulted in burns over ninety percent of her body. McFadden’s medical records reflecting 17that a decision was made to withdraw further treatment would have been wholly irrelevant to a determination of Nichols’s guilt. Furthermore, there is no substantiation for Nichols’s bald assertion that the UAMS physicians would have testified that McFadden would have ultimately survived her injuries. Regardless, testimony from treating physicians would have emphasized the severity of the burn injuries inflicted by Nichols. Based on the above, any decision by trial counsel not to present evidence disclosing McFadden’s medical care was clearly the product of reasonable professional judgment.
Next, Nichols contended that trial counsel failed to properly investigate previous statements provided by Hinton, Yielding, and Officer Ellenbaas, who was a first responder to the crime scene, and uncover alleged inconsistencies in their trial testimony. According to Nichols, such investigation would have given rise to more effective cross-examination of these witnesses, demonstrating that their versions of the events surrounding the crime were inaccurate and contradictory. However, Nichols did not describe the inconsistencies that he alleged that trial counsel had unreasonably failed to investigate and bring to light.
Conclusory allegations unsupported by facts are insufficient to warrant Rule 37.1 relief. Rea v. State, 2016 Ark. 368, at 11, 501 S.W.3d 357, 364-65 (per curiam). The burden is entirely on a petitioner to affirmatively support an ineffective-assistance-of-counsel claim with factual substantiation sufficient to overcome the presumption that counsel was effective and to demonstrate that he was prejudiced by counsel’s poor representation. Id. Nichols provided no substantiation to support his conclusory allegations that trial counsel erroneously failed to conduct an adequate investigation and effectively cross-examine the State’s witnesses.
|Jn any event, Nichols’s own testimony confirmed the relevant portions of the two eyewitness accounts: that Nichols doused McFadden with gasoline, set her on fire, and continued to pour gasoline on the flames. Nichols did not explain how trial counsel’s alleged failure to conduct a more aggressive cross-examination of the State’s witnesses, based on unspecified inconsistencies in their testimony, was deficient such that the outcome of the trial was skewed.
In addition, we recognize that the cross-examination of witnesses is a largely subjective issue about which seasoned advocates could disagree. Walden, 2016 Ark. 306, at 9, 498 S.W.3d at 732; McNichols v. State, 2014 Ark. 462, at 8, 448 S.W.3d 200, 206 (per curiam). An approach in examining a witness that may prove effective in one instance may fail entirely in another, and counsel is allowed great leeway in making strategic and tactical decisions concerning which questions to ask. Walden, 2016 Ark. 306, at 9, 498 S.W.3d at 732. Nichols’s conclusory allegations are insufficient to overcome the presumption that trial counsel’s cross-examination of the State’s witnesses was the result of reasonable professional judgment. Rea, 2016 Ark. 368, at 11, 501 S.W.3d at 364-65.
Nichols further contended that trial counsel was deficient for failing to object to alleged inflammatory statements made by the prosecutor during closing argument or to ask for either a mistrial or an admonishment to the jury. Specifically, Nichols maintained that the prosecutor had inflamed the passions of the jury by characterizing Nichols’s tearful testimony as an attempt to con or trick the jury into believing that Nichols’s conduct was justified and understandable- under the circumstances. According to Nichols, these remarks convinced the jury that he was guilty of capital murder rather than the lesser-included 13offense of second-degree murder. Again, Nichols failed to provide sufficient facts to establish that trial counsel’s failure to object during closing argument fell outside the wide range of reasonable professional assistance. Walden, 2016 Ark. 306, at 2-3, 498 S.W.3d at 728-29.
We have repeatedly stated the general rule that closing arguments must be confined to questions in issue, the evidence introduced during trial, and all reasonable inferences and deductions which can be drawn therefrom. Woodruff v. State, 313 Ark. 585, 592, 856 S.W.2d 299, 303-04 (1993). When an attorney’s comment during closing arguments directly reflects, or is inferable from, testimony at trial, there is no error. Id. Nichols attached to his petition for post-conviction relief the transcript of the prosecutor’s closing argument. A review of that partial transcript demonstrates that the prosecutor’s remarks were based on evidence adduced at trial and the reasonable inferences that could be drawn from that evidence. Thus, there is no showing that an objection to the prosecutor’s comments would have been fruitful. Furthermore, this court has noted that experienced advocates might differ about when, or if, objections during closing argument are called for since, as a matter of trial strategy, further objections from counsel may have succeeded in making the prosecutor’s comments seem more significant to the jury. Polivka v. State, 2010 Ark. 152, at 16-17, 362 S.W.3d 918, 929. Because many lawyers refrain from objecting during closing argument, absent egregious misstatements, the failure to object during closing argument is within the wide range of permissible professional legal conduct. Id. Nichols also made a claim of prosecutorial misconduct based on the above-cited remarks. A claim of prosecutorial misconduct is not cognizable in a Rule 37 proceeding because it is a claim |10that could have been raised at trial and on direct appeal. Airsman v. State, 2015 Ark. 409, at 6, 473 S.W.3d 549, 555 (per curiam).
Nichols additionally asserted that trial counsel failed to enlist a handwriting expert to prove that he did not sign a consent-to-search form and that the consent form had been signed by a detective. While Nichols contended that a handwriting expert would have rendered inadmissible certain physical evidence introduced at trial, he did not identify that evidence, nor does he establish that the evidence was gathered in connection with his consent to a search. Again, the burden is entirely on a petitioner to affirmatively support an ineffective-assistance-of-counsel claim with factual substantiation sufficient to overcome the presumption that counsel was effective and to demonstrate that he was prejudiced by counsel’s poor representation. Rea, 2016 Ark. 368, at 11, 501 S.W.3d at 364-65. Nichols did not provide substantiation for his allegation that trial counsel’s failure to gain the suppression of unspecified evidence was either deficient or had prejudiced him. When considering a claim based on ineffective assistance of counsel, the totality of the evidence must be considered under the standard set forth in Strickland. Walden, 2016 Ark. 306, at 2-3, 498 S.W.3d at 728-29. Again, taking into consideration Nichols’s own testimony and the testimony of the eyewitnesses to the crime, there is no demonstration that suppression of physical evidence collected from the crime scene would have changed the outcome of the trial.
Nichols further contended that trial counsel had ineffectively failed to conduct pretrial investigation and to obtain the phone records of Yancey, which he alleged would have proved that McFadden and Yancey had never spoken by phone on the day of the |ucrime. Nichols asserted that Yancey’s testimony that Nichols threatened to burn McFadden provided the only evidence of premeditation and deliberation.
First, Nichols presented nothing other than his bare assertion that phone records would have discredited Yan-cey’s testimony. Second, assuming that Yancey’s phone records would have provided proof that she had not spoken with McFadden on the day of the crime, a review of the evidence adduced at trial shows that Yancey’s testimony was not, as alleged by Nichols, the sole basis for a finding of premeditation. It is well settled that premeditation and deliberation may be formed in an instant. Pearcy v. State, 2010 Ark. 454, at 6-7, 375 S.W.3d 622, 626. We have also explained that a jury can infer premeditation and deliberation from circumstantial evidence, such as the type and character of the weapon used, the nature, extent, and location of trauma inflicted, and the conduct of the accused. Id. Nichols claimed that he never intended to cause McFadden’s death. However, a person is presumed to intend the natural and probable consequences of his actions. Wyles v. State, 368 Ark. 646, 651, 249 S.W.3d 782, 786 (2007). Nichols’s own admissions that he retrieved a gas can from his truck, which he brought inside the home, tripped McFadden so that he could douse her with gasoline| and set her on fire, and continued to feed the flames that had engulfed her provided sufficient circumstantial proof of Nichols’s premeditated and deliberate intent. In view of the totality of the evidence, there is no demonstration that trial counsel’s failure to allegedly discredit Yancey’s testimony by examining her phone records prejudiced the outcome of the trial. For the same reasons, Nichols’s contention that his appellate counsel had ineffectively failed to challenge on appeal the sufficiency of the evidence that supported his conviction for premeditated capital murder is likewise 11guntenable. Again, there was sufficient circumstantial evidence i to demonstrate that McFadden’s murder was premeditated. The failure to make a meritless argument on appeal does not constitute ineffective assistance of counsel. Wooten v. State, 2016 Ark. 376, at 6-7, 502 S.W.3d 503 (per curiam). The trial court did not clearly err when it concluded that the conduct of both trial and appellate counsel alleged to be deficient and prejudicial by Nichols was, instead, the result of reasonable strategic decisions and did not constitute ineffective assistance of counsel.
Appeal dismissed; motions moot. | [
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WAYMOND M. BROWN, Judge
11Appellant appeals from his conviction by jury trial of aggravated robbery, attempted murder in the first degree, and battery in the first degree. On appeal, he argues that the circuit court erred in denying his motions (1) to suppress, (2) to require his codefendant to testify at his trial, and (3) to give a jury instruction allowing jurors to make a negative inference due to a missing video. We affirm.
On October 23, 2014, appellant was charged by information with aggravated robbery, attempted murder in the first degree, and battery in the first degree for events that occurred on October 22, 2014. On June 29, 2015, appellant filed a motion to suppress the photo lineup evidence, asserting that because the victim was shown only one photo before offering an identification, her out-of-court identification violated the United States and Arkansas Constitutions, specifically, the Fifth, Sixth, and Fourteenth Amendments to the | aUnited States Constitution. On December 3, 2015, appellant filed a motion to sever his trial from that of his then-codefendant Zach Stokes, who was facing the same criminal charges, and who appellant asserted knew the true identity of the perpetrator of the crime, but “intended not to testify as a co-defendant.” On December 7, 2015, appellant filed a motion for disclosure of any favorable evidence in the possession, custody, or control of appellee. The circuit court entered an order on December 7, 2015, granting appellant’s motion for severance.
A jury trial on the matter was held on December 7, 8, and 9, 2015. Prior to the start of trial, the circuit court addressed still pending matters, including appellant’s motion to suppress the victim’s out-of-court identification of him, appellant’s subpoena of Stokes, and appellant’s proposed jury instruction that a missing video may be given a negative inference. Regarding testimony of Stokes, appellant argued that Stokes should be required to testify because his intended line of questioning— whether Stokes had any “contact or dealings” with appellant on October 22, 2014— did not violate Stokes’s Fifth Amendment right against self-incrimination. Regarding the jury instruction, appellant argued that the missing video was “best evidence”— despite a copy thereof not existing—and so the jury should be told it could make a negative inference from the absence of the video. The circuit court denied appellant’s motion to require Stokes to testify, and denied his jury instruction |amotion, but stated that it would “re-visit [the jury-instruction issue] again, but [it has] got to hear some proof.” However, noting that appellant had failed to seek a ruling or hearing on the matter until the day of trial despite knowing the motion was outstanding when he took the case, the circuit court immediately held a hearing on the motion to suppress; the testimony was as follows.
Detective Steve Barker, of the Russell-ville Police Department, testified that he was called out on a ease involving a shooting on October 22, 2014. He made contact with the victim at the emergency room of the local hospital. She was “seriously injured from a gunshot wound,” She identified her assailants as Zach Stokes and “Demo”; she “just kept saying Zach and Demo shot me.” She did not know the full name of the second man or “anything other than Demo.” The victim said she “knew [Stokes and Demo] from the neighborhood.” Detective Barker, being “familiar with Demo” and the “street name [Demo]” through his work on different calls and cases while working with the drug task force, “knew Demo was Dameion Williams.” So, on the next day, he took a single photograph of appellant to the victim and “asked her if that was who she meant when she said Demo.” He knew the photo of appellant was “Demo” but he “wanted to make sure that Demo was Da-meion Williams. That the Demo [he] knew was the Demo that she knew.” The victim identified the appellant as “Demo” from the single photograph. Regarding his process of obtaining an identification, Detective Barker stated:
If the suspect is named, I have shown them a single photo just to confirm that is who they are. If they say, “John Brown” and I think I know who the John Brown they are talking about [is], I will show them a photo of John Brown to see if it is the same RJohn Brown. Now if they just give me a description of a suspect, then of course I would need to do the fixed photo lineup.
Appellant testified on his own behalf. He denied any interactions with Detective Barker, admitted seeing the victim “around the hood every day” though he “[did] not hang out with her[,]” and stated that he knew Stokes. Specifically, he denied having “any face to face interaction” with the victim though he saw her when he was visiting her “next door” neighbor. He stated that he was being “mistaken for somebody else, Delow.”
At the conclusion of appellant’s testimony, the circuit court denied appellant’s motion to suppress. It specifically stated that
there was no suggestion in the sense that the officer put the idea of the identification in Ms. Brown’s head. She had already identified her assailant prior to the officer interviewing her. He was confirming whether this was the same Demo he knew in providing a photograph, and he confirmed that.
A jury trial was held, at the conclusion of which appellant was found guilty of aggravated robbery, attempted murder in the first degree, and battery in the first degree. He was concurrently sentenced on all three charges to 420 months’ imprisonment. This timely appeal followed.
I. Motion to Dismiss
The trial court’s ruling on the admissibility of an identification will not be reversed unless, based on the totality of the circumstances, it is found to be clearly erroneous. It is appellant’s burden to show that a pretrial identification was suspect. When, as here, the | photographic identification is followed by an eyewitness identification at trial, this court will not set aside the conviction unless the photographic lineup was so suggestive as to create a substantial possibility of misidentification.
The trial court first looks at whether the pretrial identification procedure was unnecessarily suggestive. An identification procedure violates due process when suggestive elements make it all but inevitable that one person will be identified as the criminal. But, even when the process is suggestive, the circuit judge may determine that under the totality of the circumstances, the identification was sufficiently reliable for the matter to be decided by the jury.
Reliability is the linchpin in determining the admissibility of identification testimony. In determining the reliability of an [in-court] identification, we consider the following factors: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; |fiand (6) the lapse of time between the alleged act and the pretrial identification procedure. It is for the trial court to determine if there are sufficient aspects of reliability present in an identification to permit its use as evidence. It is then for the jury to decide what weight that identi- fícation testimony should be given.
In his argument that his motion to suppress the out-of-court identification should have been granted, appellant argues that identification was not sufficiently reliable. We do not agree. The circuit court first had to determine that the out-of-court identification was suggestive. We agree with the circuit court that appellant failed to prove that the identification was unduly suggestive where Detective Barker simply showed the victim a photo, based on his own knowledge of a person he knew as “Demo” and asked if the person pictured was “Demo.”
Even if it can be said that the procedure was suggestive, the victim testified at trial that she had known appellant “for a while[,]” noting that “[her] auntie married [appellant’s] uncle”; and that she saw appellant when he visited her neighbor. She also testified that when she identified Stokes’s voice after he and appellant initially approached her car demanding her belongings, both he and appellant raised the masks they had being wearing “half way up their head.” She also testified that she had an accident while fleeing from the scene and told Officer Alan Bradley, of the Russellville Police Department, that “Zach Stokes and Demo just shot me” and Officer Bradley testified confirming as much. When a witness 17makes a positive identification of a suspect, any challenge to the reliability of the identification becomes a matter of credibility for the fact-finder to determine. We cannot find that the circuit court erred in denying appellant’s motion to suppress.
II. Codefendant Testimony
For appellant’s second argument, he asserts that the circuit court erred in denying his motion to require his codefen-dant to testify at his trial. He specifically argues that while it is established that neither party is permitted to call a witness knowing that the witness will claim the Fifth Amendment testimonial privilege, Stokes should have been required to testify because appellant’s limited questioning would not have violated Stokes’s Fifth Amendment rights. Appellant cites no legal authority for his argument. We do not consider arguments that are unsupported by convincing argument or sufficient citation to legal authority.
III. Jury Instruction
Appellant’s final argument is that the circuit court erred in denying his motion to give a jury instruction allowing jurors to make a negative inference due to a missing video. When this issue was raised below, the circuit court eventually stated that it would “just wait and see what the proof is[.]” It stated that it would “revisit [the issue] again.” Appellant never raised the issue again and therefore, no ruling on the issue was ever made. An appellant |8must obtain a ruling on his or her argument to preserve the matter on appeal. Furthermore, it is well established that one requesting a jury instruction must prepare and submit to the court a correct instruction, and where he fails to do so, he is in no position to argue on appeal that the request should have been granted. The failure to proffer or abstract the proposed instruction precludes this court from considering the issue on appeal. Appellant never obtained a ruling on this jury instruction issue and failed to proffer the jury instruction, therefore, this court is precluded from hearing this argument.
IV. Conclusion
Because we find no error as asserted by appellant and appellant does not challenge the sufficiency of the evidence, we affirm.
Affirmed.
Glover and Hixson, JJ., agree.
. Appellant did not identify any specific amendments or other provisions of the Arkansas Constitution that were allegedly violated by the denial of his motion to suppress.
. Stokes’s counsel appeared and asserted that his client did not intend to testify, pursuant to his Fifth Amendment right; asserted that his client would not “give a statement regarding any circumstances, whether the moment in question or the day in question or the relationship to the patties or anything”; and denied “proper issuance" of a subpoena.
. Appellant was previously represented by different counsel.
. Boyd v. State, 2016 Ark. App. 407, at 13, 500 S.W.3d 772, 780 (citing Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992)).
. Fields v. State, 349 Ark. 122, 127, 76 S.W.3d 868, 872 (2002) (citing Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992)).
. Id. (citing Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995)).
. Id.
. Id. (citing Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992)).
. Smith v. State, 2015 Ark. App. 418, at 7, 467 S.W.3d 750, 754 (citing Ray v. State, 2009 Ark. 521, at 7-8, 357 S.W.3d 872, 879 (internal citations omitted)).
. Boyd, 2016 Ark. App. 407, at 13, 500 S.W.3d at 781 (citing Williams v. State, 2014 Ark. 253, 435 S.W.3d 483).
. Smith, supra.
. Id.
. id.
. Mason v. State, 2013 Ark. 492, at 4, 430 S.W.3d 759, 763 (citing Stipes v. State, 315 Ark. 719, 721, 870 S.W.2d 388, 389 (1994)).
. Watson v. State, 2015 Ark. App. 721, at 6, 478 S.W.3d 286, 289-90 (citing Armstrong v. State, 366 Ark. 105, 109, 233 S.W.3d 627, 631 (2006)).
. Vaughn v. State, 2015 Ark. App. 136, at 6, 456 S.W.3d 767, 771 (citing Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003)).
. Merritt v. State, 82 Ark. App. 351, 354, 107 S.W.3d 894, 896 (2003) (citing Howard v. Arkansas Power & Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987)).
. Dixon v. State, 327 Ark. 105, 112, 937 S.W.2d 642, 646 (1997) (citing Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988); Shockley v. State, 282 Ark. 281, 668 S.W.2d 22 (1984); Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984)). | [
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ROBERT J. GLADWIN, Judge
11 Jimmy Wilson appeals the Arkansas Board of Review’s (Board’s) decision denying him unemployment benefits upon finding that he was discharged from his employment for misconduct. We affirm.
Appellant, a forty-year employee of Cen-terPoint Energy, was employed as a service technician at the time of his discharge. CenterPoint provided appellant with a number of written company policies. Among the writings was a document outlining performance expectations, which required that all employees were expected to abide by the rules and accepted practices of the company. Further, a document titled “Special Precautions for Gaseous Atmospheres” provided that “no person will work in a gaseous atmosphere without back-up assistance. Therefore, no employee will attempt to squeeze off, stop or repair a blowing gas leak on a main or service line in a gaseous atmosphere without backup assistance.”
| ¡¿During the hearing, CenterPoint’s human-resources representative, Sherry Martin, testified that appellant worked as a service technician. She said that he was discharged for violating company policy by entering a gaseous atmosphere without permission from his supervisor.
Terry Rollins, a district director for CenterPoint, testified that appellant’s direct supervisor was Wayne Tilley. Tilley notified Rollins about appellant’s actions, and Rollins, Tilley, and Martin interviewed appellant about the incident. Rollins testified that appellant admitted that “he went into a gaseous atmosphere, and he should have called his supervisor but he just got in a hurry and didn't do it.”
Appellant testified that on April 29, 2016, he responded to an accident involving a car that had hit a gas riser and had broken it off below the cut-off valve. He stated that he had spoken to Tilley on the way to the accident and that Tilley told him that additional CenterPoint personnel were on their way. Appellant testified that the riser was located near a trailer house and that it needed to be plugged because it posed a danger because of lightning in the area. Appellant said that he discussed the situation with Jonesboro police officers and firefighters who were on the scene, and he felt that the riser needed to be plugged immediately. Appellant said that he conferred with the fire department but did not call Tilley again before entering the gaseous atmosphere “because sometimes when you are out on an emergency like that you’ve got to make a snap decision to make it safe for the public.” Appellant entered the gaseous atmosphere without back up, plugged the riser, and then called Tilley. When asked why he did not call his supervisor before entering the gaseous atmosphere he replied, “I just didn’t.”
|sThe Appeal Tribunal found that appellant was disqualified under Ark. Code Ann. § ll-10-514(b) (Supp. 2015), determining that he had been “discharged from last work for misconduct in connection with the work on account of a violation of bona fide written rules or customs of the employer including those pertaining to his or her safety or the safety of fellow employees, persons or company property.” Appellant appealed to the Board, which adopted the Appeal Tribunal’s decision as its own, and he now appeals to this court.
We review the Board’s finding in the light most favorable to the prevailing party and affirm the Board’s decision if it is supported by substantial evidence. Price v. Dir., 2013 Ark. App. 205, 2013 WL 1232103. Substantial evidence is such relevant evidence that a reasonable mind might accept it as adequate to support the conclusion. Id. Even when there is evidence upon which the Board might have reached a different decision, the scope of our review is limited to a determination of whether the Board reasonably could have reached the decision it did based on the evidence before it. Id. Our function on appeal is not merely to rubber-stamp decisions arising from the Board. Id.
A person shall be disqualified from receiving unemployment benefits if it is determined that the person was discharged from his or her last work for misconduct in connection with the work. Ark. Code Ann. § ll-10-514(a)(l). The employer has the burden of proving by a preponderance of the evidence that an employee engaged in misconduct. Spencer v. Dir., 2014 Ark. App. 479, 2014 WL 4635672. Misconduct for purposes of unemployment compensation involves (1) disregard of the employer’s interest, (2) violation of the employer’s rules, (3) disregard of the standard of behavior the employer has a right to Rexpect of its employees, and (4) disregard of the employee’s duties and obligations to the employer. Id.
Our appellate jurisprudence makes clear that to constitute misconduct, there must be an element of intent. Spencer, supra. Misconduct requires more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good-faith errors in judgment or discretion. Id. To constitute misconduct there must be an intentional or deliberate violation, a -willful and wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest a wrongful intent or evil design. Id.
The evidence is clear and confirmed by appellant’s testimony that he entered a gaseous atmosphere without back up and without permission from his supervisor. This was a clear violation of his employer’s rules and standards of conduct. Appellant admits that he made a “snap decision” and that he “just didn’t” call Tilley for permission. CenterPoint is entitled to expect its employees to abide by its safety rules, not only for the safety of its employees, but also for the safety of the public. It is not up to the employee, the Jonesboro Fire Department, or this court to determine when a violation of the rules is justified. The company is better equipped than we are to make those determinations. Our standard of review requires us to affirm the decision because it is supported by substantial evidence.
Affirmed.
Gruber, C.J., and Abramson, Glover, Murphy, and Brown, JJ., agree.
Harrison, Klappenbach, and Whiteaker, JJ., dissent. | [
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JOSEPHINE LINKER HART, Associate Justice
| -iA jury found appellant, Marvin A. Stanton, guilty of first-degree murder, for which he received a sentence of life imprisonment, and of employing a firearm as a means of committing the murder, for which he received a sentence of fifteen years, with the sentences to run consecutively. On appeal, he contends that the circuit court erred by allowing the State to introduce character evidence to show that he acted in conformity with his character when he committed the crimes. We reverse Stanton’s convictions and remand for a new trial.
On September 25, 2015, Stanton and the victim, Jesse Hamilton, confronted each other at a Raceway gas station in Texar-kana, Arkansas. While the testimony of the State’s ^witnesses differed significantly from Stanton’s testimony regarding the circumstances, the parties agree that the confrontation escalated into a fight that ended when Stanton shot Hamilton with a handgun, causing his death.
Before trial, Stanton moved to suppress any evidence regarding a 2007 incident that resulted in Stanton’s arrest for aggravated assault. At a pretrial hearing, Eric Green, a patrol sergeant with the Hope Police Department, testified that in 2007 he investigated an alleged aggravated assault by Stanton. Green testified that there was a disagreement between Stanton and another person involving an unpaid bill. The other person followed Stanton to his home, and Stanton exited his vehicle with his firearm. Stanton denied making any threatening gestures or pointing the weapon at the person. Green testified that, based on his investigation, he concluded that there was no evidence that Stanton had committed a crime, and the charge was dropped. After the hearing, the circuit court issued a letter opinion in which it concluded that the evidence was inadmissible. Citing Rule 404(b) of the Arkansas Rules of Evidence, the court ruled that evidence of the use of a gun eight years earlier “did not meet any of the criteria for admission,”
At trial, Stanton took the stand in his own defense and asserted that he was justified in using deadly physical force against Hamilton. Before testifying about the circumstances surrounding Hamilton’s death, however, Stanton testified about his personal history. He testified that he was born in Shaw, Mississippi, and graduated from high school in Cleveland, Mississippi. He testified that in 1985, when he was 18 years old, he joined the United States Marine Corps. He testified he was deployed during both Desert Shield and Desert Storm, was on active duty for eight years, and after he left active duty in 1991, was on inactive |3status for three and one-half years. He further testified that he would turn 50 years old in June 2016, that he is married to a pediatrician, and that he is the father of six and the grandfather of four. Stanton testified about his involvement in his wife’s medical practice. He further testified that he is an EMT, performs volunteer work for a volunteer fire department, and runs a nonprofit, “Hope From Hope,” where they teach basic life support to nurses and EMTs for the American Heart Association. He also testified that he is licensed to carry a concealed handgun, is a concealed-carry-permit instructor, and is a “safety officer” for the National Rifle Association. He further testified that he is a member of the Rotary Club in Hope, Arkansas, and had been a member of the Juggernauts of Hope, a motorcycle club, but is now a member of the Juggernauts of Texarkana. He testified that he had left the Juggernauts of Hope because the national organization would not allow women in the organization to have the same status as men. He testified that he rejoined the Juggernauts, however, because he enjoyed nonprofit work or service work, and that it “was my way of giving back because I didn’t have much when I was coming up.” He testified, “[Tjhat’s kind of my way of giving all the years throughout my entire career, which I provided that to my lawyer here about all the awards, accommodations, and stuff that I’ve kind of managed to obtain here throughout the years, and still hasn’t stopped to this day.” He testified that he was the public-relations officer for the Juggernauts and that he participated in Toys for Tots, an event where motorcyclists brought in toys with the goal of filling a five-ton truck with the toys. He also testified about participating in, and raising money for, events for the homeless, where the homeless were given packets of food and toiletries.
|4On cross-examination, the State asked Stanton whether he is a peaceful and law-abiding citizen. Stanton’s counsel objected, asserting that Stanton had not testified regarding his peacefulness. The State advised the court that it intended to ask Stanton whether he had ever “pull[ed]” a gun on someone. The State also informed the court that it intended to ask Stanton whether he had ever hit anyone in the head. The court concluded that the State could “go forward now that [Stanton’s] character has been placed into issue.”
During the State’s cross-examination, Stanton testified that eight years ago he had pulled a gun to stop a threat. He testified that a man had approached him at his office in a threatening manner, that he got in his vehicle and left his office, and that the man followed him to his home and tried to drive him off the road. Stanton testified that when he arrived home, he pulled his gun, and the man left. The State further asked Stanton if he had ever hit a woman in the head. Stanton testified that he had slapped a woman before, which bloodied her nose. He testified that he struck her because she had “herpes on the corner of her mouth” and had spit in his face.
On appeal, Stanton argues that the circuit court abused its discretion by allowing the State to cross-examine him on these two instances of prior misconduct. Stanton contends that the evidence submitted by the State was not admissible under Rule 404(b) of the Arkansas Rules of Evidence and was introduced solely to show that Stanton had a violent character, even though Stanton had not put his character for peacefulness at issue. Citing Rule 403 of the Arkansas Rules of Evidence, Stanton further contends the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Also, Stanton asserts that his testimony regarding his background was relevant to facts in issue. | ¡jSpecifícally, he noted that (1) the testimony regarding him being a Marine was relevant because he and the victim had voiced their respective military back grounds during the confrontation and was also relevant to show that he believed Hamilton had physically confronted him by stepping on his toes, which Stanton testified is a military technique used to throw a person off balance; (2) the testimony regarding his charity work explained why he is in a motorcycle club; (3) the testimony that he is an EMT explained why he rendered aid to Hamilton after the shooting; (4) the testimony regarding his background with carrying a weapon was relevant to explain why he was in possession of a handgun and to show that he knew how to handle the handgun.
In response, the State notes that prior to trial, the circuit court ruled that the evidence regarding Stanton’s use of a handgun eight years earlier was inadmissible, and the State asserts that it complied with the ruling. The State, however, asserts that its compliance with the circuit court’s pretrial ruling did not end the matter. The State concludes that “proof of bad character in the form of other crimes, wrongs, or acts, even when inadmissible under Rule 404(b), becomes admissible when a party opens the door by eliciting evidence of good character.” The State contends that the evidence was admissible under Rule 404(a)(1) and Rule 405(a) of the Arkansas Rules of Evidence. The State asserts that because Stanton injected into the trial his character as a peaceful and law-abiding person, the State was entitled to rebut the evidence through cross-examination on relevant specific instances of Stanton’s conduct.
In reply, Stanton asserts that he did not put his character or reputation for peacefulness at issue. He thus concludes that the State could not rebut the evidence by 1 r,questioning him about specific instances of his conduct relating to his peacefulness. He contends that his testimony was merely testimony about his background unrelated to his character for peacefulness.
We agree with the circuit court’s pretrial ruling that the testimony regarding Stanton’s prior use of a gun was inadmissible under Rule 404(b). Rule 404(b) provides,
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The State’s evidence that Stanton had drawn a gun after he had been followed home and that he had slapped a woman who had spit in his face was not admitted for the purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In Rowdean v. State, 280 Ark. 146, 655 S.W.2d 413 (1983), the State sought to introduce evidence that the defendant had pulled a gun on another person earlier on the same day that she had committed a murder. This court held that the evidence was not relevant to prove motive, opportunity, intent, or preparation or plan of the murder but was instead the use of a separate prior act to prove another charge. The case at bar is analogous.
Moreover, the evidence presented by the State was unrelated to Stanton’s justification defense. In Rowdean, the State also introduced evidence that the defendant had pulled a knife on someone a month before the murder. The circuit court allowed the evidence as being probative of who the aggressor was in the murder. This court cited Rule 405(b), which provides, “In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances 17of his conduct.” This court noted that while the defendant in that case “did plead self-defense, or justification, we do not find that permits the State to offer evidence of specific instances of prior misconduct to show she may have been the aggressor. It was error to do so because her character is not an essential element of her claim of self-defense.” Id. at 149, 655 S.W.2d at 415. The same analysis applies here.
Rather than arguing that the evidence was admissible under Rule 404(b) or Rule 405(b), the State contends that the evidence was admissible under Rule 404(a)(1) and Rule 405(a). These arguments are equally unavailing. Rule 404(a)(1) provides,
Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except ... [e]vidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same.
Rule 405(a) provides,
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
Thus, under Rule 404(a)(1), evidence of a person’s character or a trait of his character is not admissible for proving that he acted in conformity therewith on a particular occasion, except by the accused or by the prosecution to rebut the same. Frye v. State, 2009 Ark. 110, at 9, 313 S.W.3d 10, 15-16 (2009).- After the admissibility of character evidence has been established under Rule 404, Rule 405 establishes the methods of proof that may be utilized. Id., 313 S.W.3d at 16. Rule 405(a) provides that once character evidence is admissible, one permissible method of proof is by reputation or opinion testimony; further, on cross-1 sexamination, inquiry is allowable into relevant specific instances of conduct. Id., 313 S.W.3d at 16.
Circuit courts have broad discretion in deciding evidentiary issues, and their rulings on the admissibility of evidence are not reversed on appeal absent an abuse of discretion. See, e.g., Friar v. State, 2016 Ark. 245, at 17, 2016 WL 3346565. We hold that the circuit court abused its discretion in allowing the State to question Stanton about these specific instances. As one authority has stated,
Ordinarily, if the defendant chooses to inject his chai'acter into the trial in this sense, he does so by producing witnesses who testify to his good character. By relating a personal history supportive of good character, however, the defendant may achieve the same result. Whatever the method, once the defendant gives evidence of pertinent character traits to show that he is not guilty, his claim of possession of these traits— but only these traits—is open to rebuttal by cross-examination or direct testimony of prosecution witnesses.
1 Charles Tilford, McCormick on Evidence § 191 (7th ed.) (emphasis added). Here, though Stanton testified about his personal history, his employment, his military background, his experience relating to handguns, and his charitable work with a motorcycle club, his testimony did not stray into the area of his character for peacefulness or of being a law-abiding citizen. Thus, it was improper for the circuit court to allow the State to present testimony regarding Stanton’s character for lack of peacefulness because there was no testimony on that characteristic for the State to rebut. Compare Hawksley v. State, 276 Ark. 504, 637 S.W.2d 573 (1982) (stating that because appellant did not testify on direct examination about a character trait of nonviolence, rebuttal testimony was not admissible) with Spohn v. State, 310 Ark. 500, 837 S.W.2d 873 (1992) (citing same language from McCormick on Evidence and stating that appellant’s testimony that there was no violence in | ¡¡his relationship with the victim and that he had never been charged with a criminal offense invited rebuttal from the State on the peacefulness of his character). Because the circuit court abused its discretion in allowing the State to present the testimony, we reverse Stanton’s convictions and remand the case for a new trial.
Further, because Stanton received a sentence of life imprisonment, the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Stanton, and no other prejudicial error has been found. See Ark. Sup. Ct. R. 4—3(i) (2016).
Reversed and remanded.
. Further, Stanton contends that, although he did not object and there was no ruling against him, the circuit court, sua sponte, should have precluded the State from making statements during closing argument that Stanton contends constituted improper vouching for the credibility of the State’s witness. We need not address Stanton's argument because the issue is not likely to occur on retrial. | [
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PHILLIP T. WHITEAKER, Judge
[ Appellant Angela Greenhill appeals a Sebastian County Circuit Court order terminating her parental rights to her son, D.N. More specifically, she challenges both the trial court’s findings of statutory grounds and its best-interest determination. We affirm.
I. Facts and Procedural History
In March 2015, Greenhill presented herself at Mercy Hospital for a suspected miscarriage. Greenhill brought D.N. to the hospital with her. As Greenhill and D.N. sat in the waiting room, Greenhill repeatedly fell asleep, resulting in D.N.’s being left unsupervised. Due to Greenhill’s lack of supervision, another patient began taking care of the child. The other patient, who was there for a psychiatric evaluation, subsequently took D.N. with her to an exam room, making it necessary for security to retrieve him. Greenhill was asleep during the entire encounter. Eventually, Greenhill was admitted to a room where she continued toj2 be inattentive to D.N. She subsequently tested positive for ben-zodiazepines and opiates. Based upon this, the hospital notified the Department of Human Services (DHS) that Greenhill was impaired and that there were concerns regarding her ability to adequately supervise D.N. Greenhill then attempted to leave the hospital without notifying hospital staff. She was found in the hospital parking lot attempting to leave. Once again, she was not adequately supervising D.N. and was not aware that he had almost walked into traffic. Greenhill was arrested on outstanding warrants and for child endangerment. Upon Greenhill’s arrest, DHS took D.N. into protective care and filed a dependency-neglect action with the circuit court.
On May 18, 2015, the court adjudicated D.N. dependent-neglected due to inadequate supervision. The court specifically found that Greenhill had been under the influence of prescription medication and had been impaired to the point that she had been unable to properly supervise D.N. The trial court set the goal of the case as reunification, ordered that DHS provide services to Greenhill, and directed that Greenhill comply with the orders of the court. Specifically, Greenhill was ordered to obtain and maintain stable and appropriate housing, income, and transportation; to complete parenting classes and visit regularly; to submit to random drug screens and hair-follicle testing at the request of DHS; to attend counseling until released and to take medication only as prescribed; and to complete a drug-and-alcohol assessment.
The court monitored Greenhill’s compliance at review hearings- throughout the proceedings. Initially, Greenhill followed the case plan in the areas of employment, ^transportation, visitation, parenting classes, counseling, and drug-and-alcohol assessment. Additionally, she tested negative on her random drug screenings. In fact, Greenhill’s compliance was sufficient to allow a trial placement to occur.
While Greenhill initially followed the case plan, she eventually fell out of compliance, and the trial placement was terminated. At the February 1, 2016 permanency-planning hearing, the court noted several areas of noncompliance. Greenhill lost her job and was not upfront with caseworkers as to when or why she was terminated; she was late on her rent and was relying on her boyfriend for financial assistance; she had not been to her court-ordered drug counseling for several months; and she had been seen at the emergency room on several occasions seeking prescription drugs for unnecessary reasons.
Subsequently, Greenhill’s noncompliance continued its downward spiral. At a review hearing held on April 4, 2016, the trial court found that Greenhill had been involved in two domestic disputes—one involving her boyfriend; that she had failed to disclose ongoing domestic violence in her relationship with her boyfriend; that D.N. had witnessed the domestic violence between Greenhill and her boyfriend; and that D.N.’s behavior had deteriorated while he was in Greenhill’s care. The court further found that Greenhill had tested positive for methamphetamine even though she denied the use. Based on this noncompliance, the trial court changed the goal of the plan to adoption and termination of parental rights.
DHS filed a petition for the termination of parental rights on May 25, 2016. DHS alleged the following grounds for termination: (1) twelve months out of care with failure toR remedy; (2) subsequent other factors warranted termination, and (3) aggravating circumstances (i.e., that there was little likelihood that services to the family would result in reunification). After a hearing on the petition to terminate, the court entered an order terminating Green-hill’s parental rights on all three grounds alleged in the petition. The court further found that D.N. was adoptable and that potential harm existed if he were returned to Greenhill’s custody; thus, termination was in D.N.’s best interest. Greenhill appeals this determination, challenging the grounds for termination as well as the court’s best-interest findings.
II. Standard of Review
The rights of natural parents are not to be passed over lightly. The termination of parental rights is an extreme remedy and in derogation of the natural rights of parents. Fox v. Ark. Dep’t of Human Servs., 2014 Ark. App. 666, 448 S.W.3d 735. As a result, there is a heavy burden placed on the party seeking to terminate the relationship. Id. However, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Smithee v. Ark. Dep’t of Human Servs., 2015 Ark. 506, 471 S.W.3d 227. In order to terminate parental rights, a trial court must find by clear and convincing evidence that at least one statutory ground for termination exists and that termination is in the child’s best interest. Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2015). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992).
Our standard of review in termination-of-parental-rights cases is well settled; we review these cases de novo. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). We will not reverse the trial court’s rulings unless its findings are clearly erroneous. J.T. v. Ark. Dep’t of Human Servs,, 329 Ark. 243, 947 S.W.2d 761 (1997). In determining whether a finding is clearly erroneous, we give due deference to the opportunity of the circuit court to judge the credibility of witnesses. Dinkins, supra.
Ill, Statutory Grounds
Greenhill challenges all three statutory grounds for termination found by the trial court: the twelve-months-failure-to-remedy, the subsequent-other-factors, and the aggravated-circumstances grounds. However, only one ground must be proved to support termination. Reid v. Ark. Dep’t of Human Servs., 2011 Ark. 187, 380 S.W.3d 918. Because there was sufficient evidence to support the twelve-month-failure-to-remedy ground, her challenge fails.
The failure-to-remedy ground found at section 9-27-341(b)(3)(B)(i)fo) allows for termination of parental rights if the child has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve months, and despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. Here, it is undisputed that D.N. was adjudicated dependent-neglected by the court and had remained out of Greenhill’s custody for over twelve months. It is also undisputed that the conditions that caused D.N.’s removal were Greenhill’s prescription-drug usage and her inability to properly supervise D.N. DHS provided services to correct Greenhill’s drug problem, including inpatient and outpatient drug treatment and counseling, but Greenhill failed to make any real progress in addressing her substance-abuse issues. She initially denied^ that she suffered from drug addiction. When finally confronted with her drug-seeking behavior, Greenhill eventually agreed to treatment. However, the court found that Greenhill still failed to acknowledge the seriousness of her addiction to prescription medication. In support of its finding, the court noted that, even after completing a residential substance-abuse treatment program, she obtained a -prescription for opiates for her kidney stones, believing she could “manage” her prescription-drug usage despite her addiction. The court simply did not believe Greenhill’s subsequent assertions that she had since recognized and gained control of her addiction. Based on the above, we hold that the court did not'clearly err in its finding.
• IV. Best Interest
Greenhill also argues that the trial court erred in its best-interest analysis. In making a “best interest” determination, the circuit court is required to consider two factors: (1) the likelihood that the child will be adopted and (2) the potential of harm to the child if custody is returned to a parent. Pine v. Ark. Dep’t of Human Servs., 2010 Ark. App. 781, 379 S.W.3d 703. Adoptability is not an essential element but is rather a factor that the circuit court must consider. Tucker v. Ark. Dep’t of Human Servs., 2011 Ark. App. 430, 389 S.W.3d 1. Similarly, the potential harm to the child is a factor to be considered, but a specific potential harm does not have to be identified or proved by clear and convincing evidence. Pine, supra. The potential-harm analysis is to be conducted in broad terms. Id, It is the best-interest finding that must be supported by clear and convincing evidence. Id,
Greenhill first argues that DHS failed to provide sufficient proof of the likelihood of adoption. Greenhill argues that the only evidence of adoptability came from her former and 17current caseworkers who stated that they did not see any barriers to adoption and who noted that D.N. was “bright,” “loving,” “adorable,” and “cute as a button.” She notes that the foster care system is full of children with those same characteristics who have not been adopted and that adoptability does not hinge on a child’s appearance or ability to be loving. If this were the only evidence presented on adoptability, we might agree; it was not.
There was also evidence presented that D.N. had been placed in and benefited from his long-term placement in a foster home. Unfortunately, permanent placement did not materialize there. However, the caseworker was hopeful that his most recent placement would become permanent, and she was unaware of any behaviors or issues that would keep him from being adopted into the right home. A caseworker’s testimony is sufficient to support an adoptability finding. Barnes v. Ark. Dep’t of Human Servs., 2016 Ark. App. 618, 508 S.W.3d 917.
Finally, Greenhill argues that the trial court erred in finding that there would be potential harm in returning the child to her custody. However, there was ample evidence to support the trial court’s finding in this regard. First, Greenhill had not sufficiently maintained sobriety for any significant length of time, and the court was not convinced that she fully understood the nature and extent of her addiction. Second, there was evidence that she had initially hidden the abusive nature of her relationship with her former boyfriend and that D.N. had been exposed to violence during his temporary placement with her. Third, there was evidence that D.N.’s behavior deteriorated while in Greenhill’s care and that temporary placement with her ultimately had to be terminated. A court may consider past behavior as|s a predictor of likely potential harm should the child be returned to the parent’s care and custody. Harbin v. Ark. Dep’t of Human Servs., 2014 Ark. App. 715, at 3, 451 S.W.3d 231, 233. Because there was sufficient evidence of both adoptability and potential harm, the trial court’s best-interest finding is not clearly erroneous.
For the foregoing reasons, we affirm.
Gruber, C. J., and Virden, J., agree. | [
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LARRY D. VAUGHT, Judge
11 Appellant Cameron Wornkey appeals a final order of protection entered by the Crawford County Circuit Court.’ On appeal, Wornkey challenges the sufficiency of the evidence supporting the order. We affirm.
On September 28, 2015, appellee Ashley Deane filed a petition for an order of protection, alleging that she and Wornkey have two children together, they had been in a dating relationship in the past, and they had formerly resided together. She further alleged that on September 27, 2015, Wornkey “[c]ame to get our children and repeatedly stated that he would beat me and my boyfriend until we didn’t wake up and stated numerous times he would kill us.” In the petition, she added that “he has been incredibly violent since he found out I was moving. He has physically abused me by pushing me into walls and damaged my car (little crack on fender) in front of my children and has threatened me numerous times.” She stated that “he has shoved me into walls, thrown me down, threw a knife and thrown things at me.” |2She claimed that there was an immediate and present danger of domestic abuse. In Deane’s affidavit attached to her petition, she stated:
On 9/27/15 Cameron came to get our children at 11:55 am. so I could leave for work. He asked when I was moving and I told him Oct. 1st. He then started saying that I was not allowed to have my boyfriend around his kids. He stated that if he ever seen him at my new apartment he would kill me and my boyfriend and take my kids. He stated this numerous times. He then, stated that he would drive by all the time so he could catch ray boyfriend at my apartment and then would [beat] me and him until we were unconscious and wouldn’t wake back up. He stated verbatim, “Let me catch him there and it will be the last. I guarantee you that y’all won’t be there anymore.” He then stepped forward and yelled in my face saying that I am making a mistake if I thought he wouldn’t do anything. I told him I would file a restraining order and he would be arrested. He told me he would sign in and sign back out because there isn’t any room in jail. He then stated he would kill me when he got out. I left for work and he texted me that he promises he will do what he said and that a restraining order, or any man (my boyfriend) would not stop him. He said he has family in the complex I am moving to and he will always know who’s there.
An ex parte order of protection was entered by the circuit court on September 28, 2015. The ex parte order prohibited Wornkey from initiating any contact with Deane; excluded him from her residence and the immediate vicinity thereof; and excluded him from her workplace and college campus. The ex parte order further ordered that Wornkey appear for a hearing on October 27, 2015.
At the October 27 hearing, Deane sought a permanent order of protection. She testified she and Wornkey had been in an on-again off-again relationship since 2009. She testified that in 2013, Wornkey pushed her down while she was pregnant. She stated that Wornkey pushed her against a wall in June 2015. She restated the allegations she made in her affidavit concerning the September 27, 2015 incident wherein Wornkey threatened to beat her and her boyfriend until they were unconscious and threatened to kill them. She said that when Wornkey left that day, he texted her that no restraining order or man would stop him from |3doing what he was going to do. Deane also testified that Wornkey had violated the ex parte order of protection on October 12, 2015, when his mother drove him to Deane’s apartment. She stated that Wornkey’s mother was there to drop off the children and that Wornkey did not get out of the car or threaten her but that the parking lot was ten to fifteen feet from her apartment. She believed that his presence in the parking lot was harassment and a violation of the temporary restraining order. She contacted the sheriffs department and filed a report, She testified that she did not feel safe being near Wornkey and did not want him around her or contacting her.
Wornkey also testified. He denied making any threats to Deane or her boyfriend on September 27, 2015. He stated that he had no desire to talk to her.
At the conclusion of the hearing, the circuit court approved the final order of protection, stating that it was effective until October 27, 2017. The court stated that the order restrained Wornkey from committing any criminal act against Deane; prohibited him from initiating any contact with her; excluded Wornkey from Deane’s residence and the immediate vicinity, which included the parking lot; excluded Wornkey from Deane’s workplace and college campus; and awarded Deane temporary custody of the parties’ children. The court found that the final order did not cover the minor children, and it ordered the parties’ mothers to arrange visitation exchanges. The final order of protection memorializing the circuit court’s oral findings was entered on October 27, 2015. This appeal followed.
Wornkey challenges the sufficiency of the evidence supporting the final order of protection, contending that the circuit court erred in finding evidence of domestic abuse or of an immediate and present dan ger. He points out that the circuit court made no specific Ufindings of domestic abuse or that Deane was in immediate and present danger. Wornkey further argues that Deane did not testify at the hearing that she feared him, and in fact, she left her two small children with him following the September 27 incident. Wornkey also asserts that Deane’s testimony was that Wornkey made only verbal threats to her on September 27 and that there was no evidence that he carried out those threats. Finally, he contends that he made no threats to Deane in October 2015 when he was in his mother’s vehicle in Deane’s apartment parking lot and that she did not testify that she feared his presence there.
Our standard of review following a bench trial is whether the circuit court’s findings are clearly erroneous or clearly against the preponderance of the evidence. Bohannon v. Robinson, 2014 Ark. 458, at 6, 447 S.W.3d 585, 588. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. at 7, 447 S.W.3d at 588-89. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Id., 447 S.W.3d at 589.
At a hearing on a petition filed under the Domestic Abuse Act, upon a finding of domestic abuse, the circuit court may provide relief to the petitioner. Ark. Code Ann. § 9-15-205(a) (Repl. 2015). “Domestic abuse” is defined as “[pjhysical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members.” Ark. Code Ann. § 9-15—103(3)(A). “Family or household members” include persons who presently or in the past have resided or cohabited together, persons who have or have had a child in common, and persons who are presently or in the past have been in a dating relationship together. Ark. Code Ann. § 9-15-103(4).
I KIn this case, Deane alleged that Worn-key committed acts of domestic abuse because he physically harmed and assaulted her and that he inflicted the fear of imminent physical harm, bodily injury, or assault on her. She testified that Wornkey pushed her down, shoved her against a wall, and threatened to beat and kill her and her boyfriend. She said that he sent her text messages stating the same threats. Deane also told the court that, after she had obtained the ex parte order of protection, Wornkey violated the order by sitting in a vehicle within ten to fifteen feet of her apartment, which the court found was in the immediate vicinity of her apartment. And Deane stated that she felt like his presence there was harassment. Deane further testified that she did not feel safe being near Wornkey and that she did not want him around her or contacting her. Wornkey denied the allegation of abuse.
The circuit court heard testimony from both parties and gave greater weight to Deane’s, which was well within the court’s discretion. Steele v. Lyon, 2015 Ark. App. 251, at 6, 460 S.W.3d 827, 832. Deane’s testimony is sufficient evidence from which the circuit court could reasonably find that Wornkey committed domestic abuse by physically harming and assaulting Deane and by inflicting fear of imminent physical harm, bodily injury or assault on her. Accordingly, we hold that the circuit court’s decision to enter a final order of protection was not clearly erroneous, and we affirm.
Affirmed.
Abramson and Klappenbach, JJ., agree. | [
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PHILLIP T. WHITEAKER, Judge
h Frederick “Rick” Spencer appeals a Baxter County Circuit Court order dismissing his quantum meruit claim against Air Evac EMS, Inc. a/k/a Air Evac Life-team (Air Evac) for lack of jurisdiction and for failure to state a claim. Because we agree with the circuit court that Spencer has failed to state a claim for unjust enrichment, we affirm.
The facts are straightforward and arise from a workers’ compensation claim. Greg Prock and Matt Edmisten were injured in a workplace explosion. Air Evac provided air ambulance service for Prock and Ed-misten after the accident but did not receive compensation because the employer denied compensability.' Rick Spencer is an attorney licensed to -practice law in the State of Arkansas. In 2008, Spencer began representing Prock and Edmisten in a workers’ compensation action against their employer. The case proceeded all the way to the Arkansas Supreme Court, which in 2014 found their injuries compensable. Edmisten v. Bull Shoals Landing, 2014 Ark. 89, 432 S.W.3d 25; Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858. After the supreme court decision, Air Evac received compensation from the employer. Spencer attempted to enter into an agreement with Air Evac for compensation for his legal services in obtaining payments from the employer for Air Evac’s medical-care services, but Air Evac refused to voluntarily enter into such an agreement.
■ In October 2015, Spencer filed a quantum meruit suit in circuit court against Air Evac to recover attorney’s fees for his professional services performed in recovering payment for Air Evac’s bills from Prock’s and Edmisten’s employer. , Air Evac moved to dismiss on two grounds: (1) that the Workers’ Compensation Commission (Commission) had exclusive jurisdiction over attorney’s fees in workers’ compensation matters and (2) that Arkansas law prohibits withholding attorney’s fees from amounts paid to a medical provider unless the attorney can show that the medical provider voluntarily agreed to pay the fees, and Air Evac had not done so.
Spencer responded to the motion to dismiss, arguing that his claim was an equitable action in quantum meruit and therefore was properly brought before the circuit court. As to Air Evac’s argument that he was not entitled to compensation because no agreement had been reached, he argued that the equitable theory of quantum me-ruit allowed for actions to recover the reasonable value of services/work performed regardless of whether there was a contract between the parties. He argued that to allow Air Evac to benefit from his services without proper compensation ran afoul of public policy and served to dis-incentivize claimants’ attorneys from zealously advocating for injured workers. He also argued that, because the parties had entered a joint petition to settle the claim, the Commission lost jurisdiction over the claim.
13A hearing on the motion to dismiss was held in which the parties further addressed the above arguments. After hearing the arguments of counsel, the circuit court issued a letter opinion on July 27, 2016, outlining its decision to grant Air Evac’s motion to dismiss:
The Court grants [Air Evac’s] Motion to Dismiss, specifically on the grounds stated in [Air Evac’s] brief. On a Motion to Dismiss, the Court is to consider the facts alleged by [Spencer] to be true and grant the Motion only if, as a matter of law, [Spencer] has no basis to proceed. This Court finds that [Spencer] lacks any legal basis for the claim he asserts.
One of the fundamental principles of equity jurisdiction is that equity applies in those areas where the statutory law does not adequately provide a remedy. In this case, the Worker’s Compensation Law fully addresses issues of attorney’s fees in Worker’s Compensation cases. While this Court may have jurisdiction to hear a properly pled matter in equity, this case is not properly heard in equity as there is law that fully addresses the subject matter.
[Spencer] makes an argument that the Court hear and decide this case based on a public policy argument that will encourage attorneys to more diligently pursue Worker’s Compensation cases. Mr. Spencer is to be complimented for his zealous, long-term representation of his client over eight years in the original worker’s compensation case. However, that is what every attorney should do. Public policy changes to established law should be left to the legislature to enact.
A formal order echoing the letter opinion was filed on August 12, 2016. Spencer appeals the decision of the circuit court.
Before we address the specific arguments that Spencer raises on appeal, we first address a jurisdictional issue. We note that Spencer filed two separate notices of appeal in this matter, and both designated the July 27, 2016 letter opinion, rather than the August 12, 2016 order, as the order being appealed. In the past, we have dismissed such appeals for lack of jurisdiction. See Clark v. Ark. Dep’t of Human Servs., 2016 Ark. App. 286, 493 S.W.3d 782; Wilkinson v. Smith, 2012 Ark. App. 604. We have ruled that letter opinions do not constitute a judgment or decree; they merely form the basis on which the judgment or decree is subsequently to beR rendered and are not conclusive unless incorporated in a judgment. Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967); Moses v. Dautartas, 53 Ark. App. 242, 922 S.W.2d 345 (1996); cf. T & S Machine Shop, Inc. v. KD Sales, 2009 Ark. App. 836, 372 S.W.3d 410. Thus, we found notices of appeal from letter opinions were ineffective to confer appellate jurisdiction.
However, our supreme court in Emis v. Emis, 2017 Ark. 52, 508 S.W.3d 886, recently clarified the law, holding that a deficient notice of appeal may not necessarily be fatal to appellate jurisdiction (1) when it is clear which order the appellant is appealing, (2) when the notice of appeal was filed timely as to that order, and (3) where there was no prejudice to the appel-lee from the failure to reference the final order. All three requirements to substantial compliance set forth in Emis apply here. Thus, we hold that the notice in this case substantially complies with Rule 3(e) and is therefore not fatal to appellate jurisdiction.
We now consider the specific arguments raised on appeal. Spencer argues that the circuit court, not the Commission, had jurisdiction to allow the recovery of attorney’s fees for services rendered in the collection of Air Evac’s medical bills. First, he claims that Arkansas Code Annotated section 11-9-715 (Repl. 2012) does not apply because the parties never had an express contract for the provision of fees. In support of his claim, he cites Judge Wendell Griffen’s concurring opinion in Teasley v. Hermann Cos., 92 Ark. App. 40, 211 S.W.3d 40 (2005). He contends that, without the ability to seek relief in quantum meruit, medical providers have absolutely no incentive to voluntarily agree to payment of compensation in workers’ compensation matters. Second, citing Arkansas Code Annotated section 11-9-805, he con tends that the workers’ compensation statutes restricting recovery 1¡¡are inapplicable because the Commission lost jurisdiction when the joint petition to settle the claim was entered. Finally, Spencer claims that the legislature, in enacting Arkansas Code Annotated section 11-9-715, recognized that attorneys should be paid for their costs of collection and gave the Commission jurisdiction over only those cases in which there was a contract between the attorney and the medical-care provider. Thus, the legislative intent was to allow for such a recovery.
Here, the trial court granted the motion to dismiss, finding that Spencer failed to state a claim upon which relief may be granted. We affirm on that basis. When reviewing a circuit court’s decision to grant a motion to dismiss, this court treats the facts alleged in the complaint as true and views them in the light most favorable to the plaintiff. See Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458 (2005). Spencer pled a cause of action for unjust enrichment. In the complaint, Spencer alleged that his clients, Prock and Edmisten, were injured on the job, that Air Evac provided air ambulance services to his clients, that Air Evac was entitled to payment for services rendered, and that Spencer’s clients could not afford to pay. In the complaint, Spencer further alleged that he successfully represented Prock and Edmisten in their claims, which included the payment to Air Evac. Spencer argues that, but for Spencer’s efforts on behalf of his clients, Air Evac would not have been paid. Thus, he asserts he is entitled to attorney’s fees from Air Evac.
We find that Spencer’s complaint failed to state a cause of action for unjust enrichment. Spencer alleges that Air Evac provided medical services to his clients and that they were entitled to receive payment for the services rendered. However, for a court to ñnd unjust enrichment, a party must have received something of value to which he is not entitled andlfi which he must restore. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21. One who is free from fault cannot be held to be unjustly enriched merely because he has chosen to exercise a legal or contractual right. Id. While Air Evac may have benefited from Spencer’s actions in obtaining payment from the employer, so did Spencer’s clients because they were no longer personally hable on the claim. Spencer contracted with his clients to obtain just such a result and was compensated for his services. Thus, Spencer has no viable claim for unjust enrichment.
We recognize that Spencer does articulate a valid public-policy argument for allowing fees under these circumstances. However, that argument is better suited to the legislature and not the courts. The legislature had before it our opinion in Teasley and has not yet seen fit to change or amend the law. The General Assembly’s silence over “a long period gives rise to an arguable inference of acquiescence or passive approval” to the court’s construction of the statute. Couch v. Farmers Ins. Co., 375 Ark. 255, 264, 289 S.W.3d 909, 917 (2008).
Affirmed. | [
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Mr. Chief Justice English
delivered the opinion of the court.
The sheriff returned upon the original writ, (which was a summons in debt,) that he executed it upon Bruce one of the plaintiffs in error, “by leaving a copy of the writ at his usual place of residence, with his wife, a white person, a member of his family, over the age of 14 years, and informing her of the contents thereof.” The defendant in error took judgment by default.
The statute providing for a constructive service of writs of summons {Gould's Dig.,ch. 133, s. 14;) has received a strict construction in a series of decisions of this court, and to follow these decisions, we must hold that the return of service upon Bruce was defective in not stating that the person, with whom the copy of the writ was left, was over fifteen years of age. Dawson et al. vs. State Bank, 505; Ringgold et al. vs. Randolph, 4 Ib. 428; Hudspeth vs. Gray et al, 5 Ib. 157; Cox et al. vs. Garvin, Ib. 640; Boyer vs. Robinson, 1 Eng. 552; Cross et al. Ex parte, 2 Ib. 44.
It seems from these decisions that it is not to be presumed that a man’s wife is over fifteen years of age, and perhaps this is sound law, for by our statute, a female is capable of contracting marriage at fourteen — though it would seem but reasonable that a female who is sufficiently mature to enter into marriage at the age of fourteen, should have intelligence and prudence enough to pay proper attention to the copy of a writ left with her for her husband.
The judgment must be reversed, and the cause remanded for further proceedings, and Bruce must be considered as in court by reason of his prosecution of the writ of error. | [
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Mr. Justice Compton
delivered the opinion of the court.
In this case the issues were submitted to the court, sitting as a jury. Several witnesses were examined, and on the evidence adduced, the court found for Oliver, who was the plaintiff below. The defendant excepted to the finding, took a bill of exceptions, setting out the evidence, and brought error, without having moved for a new trial, or having asked the court to declare any one or more propositions to be the law of the case. There is, therefore, according to the rule in State Bank vs. Conway, 13 Ark. 344, no question of law legitimately presented for the decision of this court, and the judgment must be affirmed- | [
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Mr. Chief Justice English
delivered the opinion of the court.
To an action of debt brought by the plaintiffs in error, one of the defendants interposed the following plea.
“ And the said - defendant, Thomas N. Brown, by attorney, comes and defends the wrong and injury when &c., and prays judgment of the writ in this cause, because he says that the said plaintiffs before, and at the time, and' after the commencement of this suit, were non-residents of the State of Arkansas^ and that they, the said plaintiffs, did not file any bond for costs, as required by law, before the institution of this suit, and this the said defendant is ready to verify.”
The plaintiff demurred to the plea on the ground : 1st. That the commencement of the plea prays judgment of the writ only, when it should have prayed judgment of the writ and declara tion both : 2d. That the conclusion of the plea prays no judgment, &c., &c.
The court overruled the demurrer, the plaintiffs rested, and judgment was rendered fo.r defendants.
1st. A plea in abatement, for matter apparent upon the face of the writ, should, in general, both begin and conclude by praying judgment of the writ, (or of the writ and declaration,) and that the same may be quashed: but where the cause of abatement is extrinsic, the plea, it is said, should not begin, but only conclude with the prayer. The precedents, however, do not all appear to conform to this distinction.' Gould's Plead., chap. 4 sec. 142.
Here the cause of abatement set up in the plea was not apparent upon the face of the writ or declaration, but was extrinsic ; hence, according to the above rule, it was not necessary for theplea to begin byprayingjudgmentof the writ and declaration, or either.
2d* Upon pleas in bar, the court will give such judgment as appears to them to be the proper one, upon a consideration of the whole record ; but upon pleas in abatement, they will give no other judgment than that prayed for by the party; hence, the necessity of great correctness in the conclusion of a plea in abatement; for if the defendant omit therein to pray judgment, or pray a wrong one, the plea is bad. Arch. Civ. Plead, p. 303 ; Withers vs. Green, 9 How. U. S. 333; 3 T. R. 185.
In the plea before us, the defendant prayed no judgment at all, and therefore, the plea was bad. Gould’s PL, chap. 5, sec. 156.
Thejudgmentmustbe reversed, and the cause remanded, with instructions to the court below to sustain the demurrer to the plea. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
In this suit judgment was given against James Norris and Joseph P. Dean, who appealed therefrom.
The action was brought upon a sheriff’s bond, which is in the usual form, in which Norris is principal, and Dean and others are securities; and the complaint of the declaration is, that an execution issued from, the office of the clerk of the Circuit Court of Ashley county, in favor of Philip Derton, against Thomas Thompson and Frances Thompson, which was in the hands of Norris, the sheriff of the county, while the bond sued on was in force; that it was the duty of Norris to have returned the execution on the 8th of April, 1856, that he failed to do so, and for such failure he became liable to pay to Derton the amount called for by the execution; that Norris, not having paid the same to Derton, he and his securities were liable therefor on the sheriff’s bond.
No question is made but that, under the 74th section of chapter 68, Gould’s Digest, a sheriff is bound to pay the amount due upon an execution for not returning it according to law; and indeed the statute is too plain and positive for any such question to be entertained.
But in excuse of the failure of Norris to return the execution upon the appointed day, the defendants, by their 15th plea, urged that he was hindered from so doing by the conduct of Derton, for whose use this suit is brought, and which is set forth in the plea. We can perceive no real difference between this plea and the 8th plea, on which an issue was made up, and by which the defendants had the benefit of a trial of its subject matter — they were not, therefore, injured, though the 15th plea had not been adjudged bad on demurrer. Patterson vs. Fowler, decided October term, 1860; Spencer vs. McDonald, present term.
Aside from that, the plea was bad; and if it had been the only one. of the sort should have been quashed. For whatever the conduct of Derton might have been in embarrassing the sheriff in making his sales, or in adjusting or collecting their proceeds, he could not have been hindered thereby from returning the execution according to law. If he could not sell, or did not have the money, or had in any way been obstructed in his duty on account of Derton’s interference, he could and should have returned the execution, and the validity of his excuses for not having the money, which the execution commanded him to have, might then have been the subject of inquiry; whereas, now the inquiry is limited to the fact of the non-return of the execution upon its return day.
Occupying the situation that sheriffs do, acting between and for hostile parties, they must expect to be held to responsibility, must discharge themselves from it in the only safe way, by doing what the law requires them to do; and such hindrances as Norris alleges cannot dispense with the performance of duty.
By the condition of their bond, the defendants acknowledged that Norris was sheriff of Ashley county, on the 23d of February, 1850, and the law will presume him to have continued such till October, 1856, two years from the time for his qualification in 1854. To admit the defendants to insist that Norris vacated his office by not giving bond till the date of their bond, would be to allow them to deny what their own acknowledgment under their hands and seals, estops them from denying. Not being allowed to deny the fact of Norris being sheriff when the execution was in his hands upon its return day, the first plea of the defendants making such denial was properly disallowed, Badgett vs. Martin, 7 Eng. 744; Sullivan vs. Pierce, 5 Eng. 503; Outlow vs. Yell, 3 Eng. 353.
The defendants plead that Frances Thompson the security in the delivery bond, on which the unreturned execution was issued, was a married woman; thence inferring that the delivery bond was void, that the execution issued upon it was void, and that Norris, the sheriff, was not obliged to make return of a void execution. To which plea the plaintiff replied that Norris, himself, took Mrs. Thompson as good security in the delivery bond, and the defendants rejoined that, Derton, for whose use this suit is brought, consented that Norris should accept Mrs. Thompson as security, in the delivery bond, for her husband. The plaintiff demurred to that rejoinder, and the defendants insist that the demurrer must reach back to the first erroneous pleading, which they contend to be the declaration. Conceding such to be the effect of the demurrer, we cannot allow it to extend to the declaration, for if it had formal defects, yet in stating the bond of the defendants, the issuance of the execution, its being in the hands of Norris, while the bond was in force, his failure to return it, it states a cause of action, though it had been defectively stated, and cannot be affected by a demurrer, reaching backwards through other pleadings. Bradley vs. Hume, 18 Ark. 286.
The plea was the first pleading that could not by any manner of stating its allegations, make a good defence. For though Mrs. Thompson was a married woman, it rested with her to set up her marriage as a disability to execute a delivery bond made by her. Although, if she claimed the benefit of marriage against the delivery bond, it might have been avoided, she might not do so, preferring not to avoid but to abide by the responsibility of her signature, and Norris cannot plead the cov-erture to discharge himself.
Then, though the rejoinder was good for the replication, and that avoided the plea, the plea need not have been answered, and should be held bad upon the demurrer to the rejoinder, and this disposes of the question made under the 4th plea.
The execution upon the delivery bond recited the recovery of four hundred and seventy-six 81-100 dollars, on the 4th of April, 1855, with interest at ten per cent, from the 1st of January, 1855, and commanded the sheriff to make said debt and interest. Upon the aggregate of that debt and interest, interest at ten per cent, per annum, was due to the plaintiff in the judgment. Ch. 92, sec. 4, Gould’s Digest; Henry vs. Ward, 4 Ark. 151. The jury should not then have computed interest at six per cent, and the damages cannot be excessive fdr allowance of the greater rate of interest.
No other questions are presented by the appellants, as the instructions given and refused, of which the appellants complain, have been passed upon in. disposing of the pleadings.
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Mr. Justice Compton
delivered the opinion of thejCourt.
Nichols, the defendant below and appellee here, was sued in assumpsit upon a bill of exchange for the payment of one thousand dollars. As a defence to the action he pleaded non-assumpsit, to which issue was joined, and two special pleas, one of which only need be stated, and which alleges in substance as follows:
That on the 3rd December, 1853, Rotan & Knox being the owners of a certain steamboat, machinery, furniture and tackle called the “Joe Wilson,” then lying at Ouachita City, proposed to the defendant to sell him said boat, machinery, furniture and tackle for the sum of two thousand dollars, and then and there fraudulently represented to the defendant, that said boat was new and had been afloat, or in use, not more than twenlj'-six months, and was sound, firm, substantial and in every respect seaworthy; and was of such size and tonage, that she could carry 300 bales cotton, of the ordinary size and weight made and put up on the Ouachita, Red and Saline rivers, on which it was the design of the defendant to employ said boat, as Rotan & Knox well knew. And the plea farther alleges that on the faith exclusively of these representations as to the age, quality and capacity of said boat, he having no means of testing their truth, agreed to, and did purchase of Rotan & Knox said boat, machinery, furniture and tackle, at said price of two thousand dollars; to secure one half of which sum and for no other consideration whatever, said defendant executed and delivered to said Rotan & Knox the bill of exchange in the declaration mentioned, and thereupon said boat, &c., was delivered to him. And the plea further alleges, that after giving said bill of exchange, the defendant for the first time learned and discovered, that said representations of Rotan & Knox in regard to the age, quality and capacity of said boat, were utterly false and fraudulent, and that said boat was at least five years old, had not capacity to carry more than 125 bales cotton of the size and weight aforesaid, and was so old and decayed in her hull and timbers as to be, as she in fact was, entirely unseaworthy and wholly valueless — so much so, that said boat, on etc., and while tied to and lying at shore, sunk find became and was literally lost, without any neglect or fault of those in charge of her and without her ever having received any injury after said purchase. And the plea further alleges, that from the time of said purchase until the sinking of the boat, it was impossible, and the defendant never did or could make or realize any benefit from the use of said boat, in consequence of her defects and worthlessness; and after her sinking, all the machinery, etc. saved of said boat was sold by the hands then on her for wages, and no benefit whatever was received by the defendant therefrom. The plea then concludes as follows: “And so said defendant in fact says that the consideration for which alone said bill of exchange was given, has wholly and entirely failed; and this he is ready to verify, wherefore he prays judgment, etc-
An issue as to the material allegations in this plea being made up, the cause was submitted to a jury, who found for the plaintiff and assessed his damages at $450, for w-hich judgment was rendered, and he appealed.
The instructions asked for at the trial were inconveniently multiplied on both sides. Some were given and others refused; but it is unnecessary that we should notice more than two of them, as bearing materially on the merits of the controversj'. The court instructed the jury at the request of the defendant: That if they believed from the evidence, that the defendant was induced by the false representations of Rotan & Knox to purchase the boat — he being without the means of ascertaining the truth of such representations — the defendant was entitled to recoup in damages an amount equal to the difference between the price at which the defendant purchased the boat and her real value, even though he had not returned her or offered to do so.
The doctrine laid down by the Supreme Court of 'the United States in Withers vs. Green, 9 How. 213, upon a review of many of the English and American adjudications, “ that where fraud has occurred in obtaining, or in the performance of contracts, or where there has been a failure of consideration, total or partial, or a breach of warranty, fraudulent or otherwise, all or any of these facts may be relied on in defence by a party, when sued upon such contracts,” was recognized and followed in Wheat vs. Dotson, 7 Eng. 708, and has been so fully discussed and applied in subsequent cases, that it is now the settled law of this court. Construing the defendant’s special plea in bar, as it should be, according to its entire subject matter, without laying stress on what may be immaterial, or upon its conclusion, which is but matter of form, we hold that the plea, though it concludes as such, is not good as setting up a total failure of consideration, for the reason that it does not aver a recision of the contract, and a return of the boat, or an offer to return it, or any excuse for not doing so. We hold, however, that it is sufficient as setting up matter for recoupment, founded upon a breach of the plaintiff’s warranty as to the quality and capacity of the boat, which, in a cross action, would have entitled the defendant to recover against the plaintiff such damages as he’ had sustained in consequence of the breach; and under such a defence, it is immaterial whether the evidence adduced shows that the defendant has sustained damages equal to the full amount of the plaintiff’s demand or not. This principle is recognized in Desha’s Ex’r. vs. Robinson, 7 Ark. 228. In that case the action was upon a note payable to the Real Estate Bank and assigned to the plaintiff. The defence relied, on was that the consideration of the note was the transfer of the control and management of an execution on a certain judgment in favor of the Bank, and that the Bank afterwards took control and direction of the execution, without the consent and against the will of the defendant, whereby, it was insisted, the consideration of the note sued on had wholly failed — in all which the plaintiff had participated. The case came before this court on demurrer to the defendant’s plea. Judge Scott delivered the opinion of the court, and after discussing at considerable length the doctrine of recoupment, and the law touching the recision of contracts, remarks: “ It would seem to be clear, therefore, that upon the interference of the Bank, set up in the plea, the defendants below might have had redress by a specific performance upon a proper application to the courts; or could have brought an action against the Bank for damages, for the breach of the contract on her part; but they were not compelled to take either remedy. But, having the right to a cross action upon this breach, on the part of the Bank, of the contract sued upon, they thereby acquired the right, under the influence of the doctrines we have been considering, to set up that matter in their plea, as they have done, and insist upon it, as in the nature of a cross action for damages for that breach, and recoup the amount of such damages, when ascertained, in diminution of what the plaintiffs below would have been otherwise authorized to recover. The amount of such damages, the jury, of course, would have to ascertain from the proofs, precisely as if a cross action, in form, had been brought to recover damages for this .breach of the contract; and if found by them to be Less in amount than what they would have otherwise found for the plaintiff below, then deduct the one from the other, and find their verdict in favor of the plaintiff below, for the balance thus ascertained. If, however, these damages should be found of equal amount to what the plaintiff would have been otherwise entitled to recover then they would find their verdict for the defendant below.” According to the view we have thus taken, the objection of the counsel for the appellant, that the instruction was erroneous, for the reason that no evidence which fell short of proving a total failure of consideration, could be legitimately considered by the jury, under the issue to the special plea interposed by the defendant, is not maintainable.
The plaintiff moved the court to instruct the jury: That if they believed from the evidence that Rotan & Knox sold the boat to Nichols, Anderson and Eager, and not to Nichols alone, though Nichols himself gave his bill of exchange to pay the purchase money, they should find for the plaintiff, under the issue to the special plea, which the court refused to give, and in refusing, erred. The plea, as we have seen, alleges a sale of the boat to the defendant., Nichols, while the evidence shows a sale to Nichols, Anderson and Eager jointly. This, according to the authorities, was a fatal variance. Where the defendant is allowed, in place of a cross action, to set up a breach of warranty growing out of the contract of sale, as a matter of defence to an action for the purchasé money, no good reason can be assigned why he should not be held to the same strictness in pleading that wmuld be required in across action.
In Weall vs King et al. 12 East 452, which was an action on the case for a false warranty in the sale of sheep, the declaration alleged a sale of the sheep to the plaintiffs by both the defendants jointly. On the trial the evidence showed a sale by one of the defendants only, and it was held that the plaintiff was not entitled to recover. In this case, Lord Eu.en-bohough, after referring to the contract alleged, and admitting that the action was founded on tort, and that torts are in their nature several, said: “ The joint contract thus described is the foundation of the joint warranty laid in the declaration, and essential to its legal existence and validity; and it is a rule of law that the proof of the contract must correspond with the description of it in all material respects; and it cannot be questioned, that the allegation of a joint contract of sale was not only material, but essentially necessary to a joint warranty alleged upon record to have been made by the supposed sellers, and in whatever action, be the same debt, assumpsit, or tort, the allegation of a contract becomes necessary to be made; and such allegation, or any part of it, cannot (as here it certainly cannot) be rejected as mere surplusage: such allegation requires proof strictly corresponding therewith: it is in its nature entire and indivisible, and must be proved as laid in all material respects.” See also Lopes vs. De Tastet, 1 Brod. & Bing. 538, (5 Eng. C. L. Rep. 787;) Wilson vs. Clark, 1 Esp. 273; Ireland vs. Johnson et al., 1 Bing. N. C. 161, (27 Eng. C. L. Rep. 588.)
The court also erred in excluding the depositions of Hill and Scott. After proving a joint purchase of the boat by Nichols, Anderson and Eager, who stood in relation to each other as joint owners of the boat, the plaintiff offered'these depositions to prove certain admissions of Anderson and Eager, and for that purpose, they were competent; because, Anderson and Eager being identified in interest with Nichols, their declarations were admissible against him. 1 Greenlf. Ev. sec. 171.
For the errors herein indicated the judgment must be reversed, and the cause remanded for further proceedings. | [
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Mr. Justice Compton
delivered the opinion of the Court.
David Pope was convicted of murder in the second degree, and sentenced to confinement in the penitentiary for the period of five years. His motion for a new trial was overruled, and he excepted, and appealed.
But one point is raised upon the record, and that is, as to the admissibility of certain evidence offered by the accused, and excluded by the court; and, inasmuch as the judgment must be reversed upon this point, and the cause remanded, in order that a new trial may be awarded, we will not comment upon the evidence, nor state more of it than is necessary to make intelligible the question of law presented.
Gregg, the deceased, was shot by Pope with a pistol and died of the wounds inflicted, shortly afterwards. The shooting took place at Simpco’s grocery, in Crawford county — Gregg standing in the porch, and Pope in the door leading from the porch into the grocery, at the time the pistol fired. On the trial, the accused endeavored to show that the killing was in necessary self-defence, and for that purpose, in connection with other evidence adduced, proposed, after proving the death of Mrs. Howard and Henry Heaton, to prove that Mrs. Howard testified on a former trial of the cause, that, on the morning of the day on which the difficulty occurred, she saw the deceased' loading his pistol, and heard him say, that he intended to kill the accused before sun-down, which facts were communicated to the accused before the shooting; and that Heaton testified on a former trial, that the deceased, after repeatedly saying that he would kill the accused, (which was communicated to him,) took his position on the porch “ with his hand resting on his pistol.” But the court would not permit this evidence to go to the jury, upon the ground, as we infer from the bill of exceptions, that what a deceased witness testified on a former trial between the same parties, cannot be proven in a criminal case. To this, however, we cannot yield our assent.
True, The State vs. Atkins, 1 Tenn., (by Overton) 229, and Finn vs. The Commonwealth, 5 Rand. 701, are cases in point and sustain the ruling of the court below, but these cases are unsound in principle and unsupported by authority. The former has been expressly overruled in Kendrick vs. The State, 10 Humph 479, a subsequent decision of the same court. After showing that the Judges, in The State vs. Atkins, cited no authority and placed their decision upon the ground, that to admit such evidence would be a violation of Magna Charta, and the constitutional rights of the accused “to meet the witnesses face to face,’’ the court, in Kendrick vs. The State, say: “ But in what manner does the admission of such proof violate the right of the accused to meet the witnesses against him ‘face to face ? ’ The evidence of the deceased witness was given on oath before the committing court, in the presence of the accused, who had the right to cross-examine ; he is again present vrhen that evidence is proved by the oath of other witnesses, and has the right to cross-examine.” And the court finally concluded, that evidence of the character in question was legally competent. In the latter case, (Finn vs. The Commonwealth,) it seems the court could find no case where the rule, that what a witness, since deceased, testified oh a former trial between the same parties, could be given in evidence, had been allowed in d criminal ease, and held that it could not be done, citing Peake 60, who cites Fenn-wick’s case, 4 St. Trials. In anote to'the fourth American edition of Mr. Philip’s work on evidence, p. 390, the learned annotators, speaking of Fennwick’s case, say: “That was a proceeding in Parliament by bill of attainder, against Sir John Fenn-wick, for high treason. Lady Fennwick spirited away a material witness, who had sworn against Cook, on his trial for the same treason. It is true, that Peake relies on that case as proving that such evidence is inadmissible in a criminal proceeding: but he is followed by no other writer; and the case itself carried the rule even farther against criminals, than was ever done against a party in a civil cause. That case may be seen to this point, in 5 Harg. St. Trials, 62 et •seq.”
In The Commonwealth vs. Richards, 18 Pick. 430, which was an indictment for perjury, the constitutional question was raised, on the authority of The State vs. Atkins, and it was decided by the Supreme Court of Massachusetts, that on the trial before a jury, evidence to prove what a deceased witness testified on the preliminary examination of the accused before a justice of the peace, was competent, and the reason given is the same as that in Kendrick vs. The State, supra. In The United States vs. Wood, which was an indictment for robbing the mail, it was held that what a witness, since dead, swore at a former trial of the indictment, might be proved by a person who was present and heard the testimony ; in this case.no distinction between civil and criminal cases was insisted on in the argument. To the same effect is the case of The State vs. Hooker, 17 Vermt. 658; and in Crary vs. Sprague, 12 Wend. 45, Mr. Justice Nelson expressed the opinion that such evidence is admissible in a criminal case. See, also, Russ, on Cr., vol. 2 p. 752.
It is unnecessary to notice the objection, that a new trial ought not to be awarded because the evidence excluded was cumulative, and there was sufficient without it to support the verdict, or to express any opinion upon the point; for the reason, that though the evidence in the record, abundantly shows threats made by the deceased and communicated to the accused before the killing, still there is none showing that the deceased took his position on the porch of the grocery with his hand resting on his pistol — and we cannot say that this fact, if proven, would have had no influence on the jury.
Let the judgment be reversed, and the cause remanded, with instructions to grant the appellant a new trial. | [
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Lavenski R. Smith, Justice.
Appellant, Stephanie Deeanna Moon (“Moon”), seeks reversal of a chancellor’s order modifying the surname of her daughter, “M.M.”, to that of the child’s natural father, Appellee David Marquez (“Marquez”). The chancellor entered the order following a hearing on appellee’s Petition to Modify Paternity Order. On appeal, appellant contends that the doctrine of res judicata should apply to bar a name-change petition subsequent to the initial paternity-determination proceeding. The court of appeals found that res judicata did not apply. It also upheld the chancellor’s order changing M.M.’s surname. Moon v. Marquez, 65 Ark. App. 78, 986 S.W.2d 103 (1999). Moon filed a Petition for Review to this court under Ark. Sup. Ct. R. l-2(e). We affirm.
Moon and Marquez met in California in 1992. At one time, the parties were engaged to be married. Over time, the relationship deteriorated, and Moon moved back to Arkansas, her home state, while Marquez moved to Alaska with the military. However, prior to moving apart, Moon conceived a child by Marquez. The child, M.M., was born on February 24, 1993. After receiving a birth announcement from Moon, Marquez sought legal representation and filed a Complaint to Establish Paternity on May 18, 1993, in Ashley County Chancery Court. In that complaint, among other things, Marquez requested that the child’s surname be changed from Moon to Marquez. On June 22, 1994, the court entered a Paternity Order finding that Marquez was the child’s father. This order resulted from the parties agreement, and Marquez dropped his request for name change as part of the settlement. The Chancellor’s order reflected that the child’s surname would be Moon.
Two-and-a-half years later, on December 9, 1996, Marquez filed a Petition to Modify the Paternity Order. Marquez sought to modify custody or, in the alternative, gain greater visitation with the minor child. Once again he requested that the child’s surname be changed to Marquez. In response, Moon filed an answer, and then filed a Motion to Dismiss on May 9, 1997, at which time she raised the affirmative defense of res judicata, arguing that the doctrine bars the claim for name change because it could have been litigated in the original paternity action but was abandoned by Marquez. In his response to the Motion to Dismiss, Marquez argued that the chancellor made no specific finding that M.M.’s last name would be Moon instead of Marquez. Instead, the parties reached an agreement on the issue, but it was never decided by the court.
The chancellor heard the modification petition on July 1, 1997. The parties announced at trial that they had reached agreement on all issues except the question of the name change. Trial proceeded with that as the sole issue. Testimony revealed that since the initial paternity order, Marquez had married and moved to San Antonio, Texas. Moon also had married , and she and M.M. resided with her husband, James Hamilton, in Crossett. In his testimony, Marquez stated that he originally agreed that M.M. should use the surname Moon, but now, after Moon’s marriage, the child was using the surname Hamilton, as well. Marquez stated that the child’s dance-recital program, tap shoes, and backpack all identified her as Hamilton. Additionally, Marquez testified that he sought the change so that he could have a bond with his daughter and avoid confusion for the child as she grows older.
Moon testified and acknowledged she now personally used her husband’s surname of Hamilton. However, she denied that they purposely changed her daughter’s name to Hamilton. She stated that her daughter was registered at school, the doctor’s office, and on her birth certificate as Moon. Moon testified that the dance teacher must have mistakenly put the name “Hamilton” on the dance-recital program. Moon stated she did not know how the name “Hamilton” got on the child’s belongings.
On April 1, 1998, the chancellor issued an order modifying the original paternity order. The court approved the parties stipulated agreement as to custody, support, and visitation. On the same date, the chancellor issued a second order finding that Marquez had paid all required child support and more; that he had provided health insurance for the child; that he had “vigorously pursued” visitation with his child; that he had not shirked is responsibilities to the minor child and had made every effort to be a part of her life; that he had met with considerable resistance from Moon; that the mother no longer used the last name “Moon”; that the child was being referred to both as Moon and Hamilton; that using a different name than the mother’s maiden name makes it less evident that the child was born out of wedlock; that the natural father desires to have the child bear his name; that the “name change from ‘Moon’ to ‘Marquez’ will help strengthen and enhance the parent-child bond between the biological father” and the child; and that it would be in the child’s best interest to bear the surname of Marquez. Moon filed a timely notice of appeal, arguing that res judicata bars this claim for a name change.
Standard of Review
Upon a Petition for Review, we review the case as though it had been originally appealed to this court. Ark. Sup. Ct. R. l-2(e); Huffman v. Fisher, 337 Ark. 58, 63, 987 S.W.2d 269, 271 (1999). Also, we review chancery cases de novo on the record, but do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Office of Child Support Enf. v. Eagle, 336 Ark. 51, 53, 983 S.W.2d 429, 430 (1999).
Res judicata
The single issue in this appeal is whether the doctrine of res judicata applies to bar a claim for name change in a petition to modify a paternity order where the claim had been made in the initial paternity petition but not decided by the court. We hold it does not.
Res judicata bars relitigation of a claim in a “subsequent” lawsuit when five factors are present. These include: (1) the first suit resulted in a final judgment on the merits, (2) the first suit was based upon proper jurisdiction, (3) the first suit was fully contested in good faith, (4) both suits involve the same claim or cause of action, and (5) both suits involve the same parties or their privies. See, e.g., Looney v. Looney, 336 Ark. 542, 546-47, 986 S.W.2d 858, 861 (1999); Office of Child Support Enforcement v. Williams, 338 Ark. 347, 350, 995 S.W.2d 338, 339 (1999). Furthermore, res judicata bars not only the relitigation of claims that were actually litigated in the first suit, but also those that could have been litigated. Kulbeth v. Purdom, 305 Ark. 19, 22, 805 S.W.2d 622, 623 (1991). The purpose of res judicata is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. Id.
We have applied this doctrine even in the context of family law. In Williams, we held that res judicata applied to bar a man from contesting his paternity of his children when the issue had already been decided in a divorce proceeding. However, with respect to child custody and support, we apply a modified res judicata, i.e., one that is subject to changed circumstances and the best interest of the child. In Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239 (1987), we declined to use an unmodified version of the doctrine of res judicata in a child-support matter. Instead, we followed Clifford v. Danner, and stated:
[N]o order for child support is ever res judicata or so final that the obligations of a parent to the child are not subject to modification. The decisions of this Court have for many years adopted the rule that a trial court always has the right to review and modify child support payment in accordance with changing circumstances and may increase or reduce the payments as warranted in each case. Johnston v. Johnston, 241 Ark. 551, 408 S.W.2d 885 (1966) and Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409 (1953).
Thurston, 292 Ark. at 390.
In custody matters, we have taken a similar view for over sixty years. In Tucker v. Turner, 195 Ark. 632 (1938), we stated:
The judgment of a chancery court in this state, awarding the custody of an infant child to one of the parents, or to any other person, is a final judgment, from wHch an appeal lies, but it is not res judicata in the same or another court of this state involving the custody of the same child, where it is shown that the conditions under which the former decree was made have changed and that the best interest of said child demand a reconsideration of said order or decree.
Tucker, 195 Ark. at 636. Relying upon Tucker, Justice George Rose Smith stated in Fulks v. Walker, 224 Ark. 639, 642, 275 S.W.2d 873, 875 (1955), “By the decided weight of authority the decree is final, reviewable, and, in the absence of changed conditions, res judicata of the issues.” In sum, although res judicata can apply in domestic-relations matters, with respect to custody and support, we have unequivocally held that it is subject to changed circumstances and the best interest of the child.
We now turn to the application of this doctrine to the change of a child’s name. We have long held that chancery courts of this state have the power, either by statute or by common law, to change a minor’s name when it is in the best interest of the minor to do so. See Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952); Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988). Appellant contends that res judicata should apply to bar a name-change claim in a modification petition even where changed circumstances and best interest support the change. However, appellant presented no authority for the proposition. Indeed, appellant acknowledges that no such authority exists. Instead, appellant merely argues that there is no authority to the contrary. Without question, we have made the best interest of the child the paramount consideration in cases involving name change of a minor. See Huffman, supra; McCullough v. Henderson, 304 Ark. 689, 804 S.W.2d 368 (1991) ; Reaves v. Herman, 309 Ark. 370, 830 S.W.2d 860 (1992). Given that fact, we decline to embrace an inflexible rule that would entirely discount the child’s best interest.
The chancellor below heard testimony from the parties for and against the name-change petition and decided that the evidence warranted changing the child’s surname. The chancellor assessed the credibility of the witnesses, weighed various relevant factors, and made explicit findings in the order based upon evidence of changed circumstances and the best interest of the child. We cannot say the chancellor was clearly erroneous.
Affirmed.
241 Ark. 440, 409 S.W.2d 314 (1966)
It should also be noted that in McCullough, the father brought the petition for name change several months after paternity was established. Res judicata was not raised as an affirmative defense in that case. | [
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Per Curiam.
Jim Coutts, Esq., of Russellville, Third Congressional District, and Ms. Catherine Conlin Duvall of Lewisville, At-Large Position, are hereby appointed to the Supreme Court Committee on the Unauthorized Practice of Law for three-year terms to expire on May 31, 2002.
The Court expresses thanks to Mr. Coutts and Ms. Duvall for accepting appointment to this important Committee.
The Court expresses its appreciation to Alex Streett, Esq., of Russellville, and Mr. Ernest Matkin of Fayetteville, whose terms have expired, for their years of dedicated service to the Committee. | [
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Annabelle Clinton Imber, Justice.
The Department of Human Services, Division of Child Care and Early Childhood Education (“DHS”), attempts to appeal from an order by the Boone County Circuit Court which stayed the agency’s decision to revoke appellee Sandra Hudson’s child-care license. We previously summarized the facts of this case as follows:
On May 13, 1998, the Arkansas Department of Human Services (DHS) revoked Sandra Hudson’s child-care license, and Hudson appealed that decision to the circuit court, which stayed the DHS decision pursuant to Ark. Code Ann. § 25-15-212(c) (Repl. 1996) of the Arkansas Administrative Procedure Act. See Ark. Code Ann. §§ 25-15-201 to 214 (Repl. 1996 and Supp. 1997). Section 25-15-212(c), in relevant part, provides “the filing of the petition does not automatically stay enforcement of the agency decision, but the . . . reviewing court may do so upon such terms as may be just.” After 120 days expired from the entry of the circuit court’s stay order, DHS moved to vacate the order under Ark. Code Ann. § 20-78-206(d) (Supp. 1997) of the Child Care Facility Licensing Act, which provides that if the reviewing court does not issue its findings within 120 days of the issuance of the court’s stay order, the stay shall be considered vacated.
The circuit court filed no findings within the 120-day period, and instead, the trial court entered a second stay order. Contending that the circuit court’s second stay order violates § 20-78-206(d) and that the stay should be vacated, DHS seeks an interlocutory appeal under Supreme Court Rule l-2(a)(3) and Rule 2(a)(6) of the Rules of Appellate Procedure—Civil because the appeal involves an injunction.
Arkansas Department of Human Serv. v. Hudson, 338 Ark. 123, 991 S.W.2d 605 (1999). We accepted jurisdiction of this case to allow the parties to brief the issue of whether the stay order issued by the circuit court is an appealable order under the appellate rules relied on by DHS. Although the record lodged in this appeal reflects that the administrative transcript was filed with the circuit court on July 15, 1998, there is no indication that the trial court has entered an order on the merits of this case. Because we hold that the second stay order is not an injunction for purposes of a direct appeal, we dismiss the appeal.
Rule 2(a)(6) of the Arkansas Rules of Appellate Procedure— Civil allows a party to appeal from an interlocutory order “by which an injunction is granted, continued, modified, refused, or dissolved or by which an application to dissolve or modify an injunction is refused.” DHS asserts that the issuance of the second stay in contravention of § 20-78-206 is equivalent to an injunction because it orders DHS to refrain from doing a specific act, namely enforcing its order that Sandra Hudson cease and desist from operating her child-care facility. We disagree.
An injunction is a command by a court to a person to do or refrain from doing a particular act. See Tate v. Sharpe, 300 Ark. 126, 777 S.W.2d 215 (1989); C. Jacobson, Arkansas Chancery Practice 68 (1940). It is mandatory when it commands a person to do a specific act, or prohibitory when it commands him to refrain from doing a specific act. Tate, supra. The mere fact that a trial court orders something to be done in the progress of a case does not make that order a mandatory injunction. Tate, supra; Butler v. State, 311 Ark. 334, 842 S.W.2d 434 (1992). To be injunctive, the order must determine issues presented in the complaint, not merely aid in the determination of such issues. Tate, supra; Butler, supra.
We have previously declined to hold that a preliminary order which does not finally resolve or determine any part of the action is equivalent to an injunction for purposes of appeal. See Tate, supra; Butler, supra; Stephens v. Stephens, 306 Ark. 59, 810 S.W.2d 946 (1991). We again decline to do so here. The second stay order, like the first, determines none of the issues presented in Mrs. Hudson’s appeal to the circuit court, a clear prerequisite for establishing the presence of an injunction under our case law. Tate, supra; Butler, supra. While the record does not reflect why Mrs. Hudson’s appeal to the circuit court has not been addressed in a timely manner, we cannot agree that the second stay order amounts to an injunction for purposes of direct appeal.
Appeal dismissed. | [
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Per Curiam.
On February 12, 1999, the Supreme Court Committee on Professional Conduct ordered Robert Fuller Meurer to make restitution of $18,000 to a former client, Ms. Tressia Russell. The order provided that Mr. Meurer was to make monthly installments of $300 until full restitution was made. On April 30, 1999, the Committee filed a petition asking this court to require Mr. Meurer to appear before this court and show cause why he should not be held in contempt for failing to comply with the terms of the February 12, 1999 order. The procedural background of this matter is more fully set out in In Re: Meurer, 337 Ark. 608, 990 S.W.2d 552 (1999) (per curiam).
Mr. Meurer appeared before this court on June 24, 1999, and entered a plea of guilty to the petition. On June 29, 1999, Mr. Meurer submitted an affidavit in mitigation, claiming several personal reasons why he had not complied with the Committee’s order. The Committee’s response, however, raised questions concerning the veracity of some of the information supplied by Mr. Meurer. Accordingly, we appointed a special master, The Honorable Perry Whitmore, to conduct a hearing on the matter. See In Re: Meurer, 338 Ark. 373, 993 S.W.2d 917 (1999) (per curiam).
On August 20, 1999, the special master filed his report and findings of fact with this court’s clerk. The report reflects that a hearing was conducted on August 16, 1999, during which Mr. Meurer failed to appear. The Committee appeared through its attorney Lynn Williams. Mr. Williams informed the special master that Mr. Meurer had telephoned that morning and had stated that he did not intend to appear. The hearing proceeded, and the following pertinent findings of fact were made:
1. Mr. Meurer has failed to make any payments to Ms. Russell, and has also failed to pay costs of $150 to the Committee.
2. Mr. Meurer’s affidavit was patently false in its description of a catastrophic domestic circumstance as contemporaneous to his failure to comply with the Committee’s order.
3. Mr. Meurer’s assertion that he had no complaints on his performance as an attorney other than Ms. Russell’s complaint was also false. Mr. Meurer was barred from appearing in the United States Bankruptcy Court and was under order by that court to repay $1,000 to his client.
Significantly, the special master found that the misstatements of fact were knowingly made by Mr. Meurer, and that such conduct reflects a disregard by Mr. Meurer of the serious nature of the Committee’s responsibility to the legal profession and his personal obligation to tell the truth in these circumstances.
Based on the findings of the special master, we hold Mr. Meurer in contempt of this court for willfully failing to comply with the Committee’s order. Pursuant to our inherent authority over matters involving the discipline of attorneys, we hereby reinvest authority in the Committee to make a recommendation to this court as to the appropriate sanction in this matter, pursuant to Section 7(D) of the Procedures Regulating Professional Conduct. Pending such recommendation from the Committee, Mr. Meurer is suspended from the practice of law in this state. | [
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Per Curiam.
On October 15, 1992, Jack Gordon Greene was convicted in Johnson County Circuit Court of capital murder and was sentenced to death by lethal injection. On June 20, 1994, this court affirmed his conviction but reversed and remanded for resentencing. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). On February 27, 1996, Greene was resentenced to death. After Greene indicated he wanted to waive his appeals, this court remanded the case on two separate occasions for hearings to determine Greene’s competency to elect execution. Greene v. State, 326 Ark. 822, 933 S.W.2d 392 (1996) (per curiam); Greene v. State, 327 Ark. 511, 939 S.W.2d 834 (1997) (per curiam). On April 21, 1997, this court denied Greene’s motion to dismiss his appeal and ordered that a briefing schedule be set. Greene v. State, 328 Ark. 218, 941 S.W.2d 428 (1997) (per curiam). On November 5, 1998, this court again reversed and remanded the case for resentencing. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998).
On July 1, 1999, Greene was resentenced to death. On July 2, 1999, Greene filed a waiver of appeal, and the trial court entered an order directing that Greene be evaluated by the Arkansas State Hospital for the purpose of determining whether he was competent to waive appellate and postconviction review and to elect execution. Dr. Charles H. Mallory, Ph.D., and Dr. O. Wendell Hall, III, M.D., evaluated Greene and concluded that he was competent to elect between life and death and to knowingly and intelligently waive his appellate and postconviction remedies.
On August 19, 1999, a hearing was held in Johnson County Circuit Court. After hearing testimony from Greene, Dr. Mallory, and Dr. Hall, the trial court concluded that Greene was competent to elect execution and to waive his right to appellate and postconviction remedies. On August 20, 1999, the trial court entered an order which contained its findings:
1. Greene has the capacity to understand the choice between life and death.
2. Greene has the capacity to knowingly and intelligendy waive any and all rights to appeal his sentence of death.
3. Greene has the capacity to knowingly and intelligendy waive his rights to postconviction relief under Ark. R. Crim. P. 37 and the capacity to knowingly and intelligently waive his right to have counsel appointed to represent him for purposes of appeal, as well as, postconviction relief under Ark. R. Crim. P. 37.5.
4. Greene did, in open court, freely and voluntarily waive his rights to appeal his sentence of death and clearly demonstrated the capacity to understand the choice between life and death and unequivocally expressed his desire to waive all appeals in order that the death sentence be carried out.
5. Greene is clearly competent to waive his right to postconviction remedies under Ark. R. Crim. P. 37, including his right to an attorney under Rule 37.5 and understands the legal consequences of such waiver.
6. Greene did, in open court, freely and voluntarily, make a knowing and intelligent waiver of those rights, including his right to an attorney under Rule 37.5 and clearly understood the legal consequences of his waiver.
The State now petitions this court for a writ of certiorari for the purpose of accepting the record filed herein and for the further purpose of affirming the trial court’s findings. We grant the petition for writ of certiorari and hold that the trial court’s findings are supported by the transcript of the hearing held on August 19, 1999, and the record in this matter. We affirm the trial court’s findings, as set out above.
APPENDIX Rules Adopted or Amended by Per Curiam Orders | [
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