Volume 47 — Mississippi Reports

Mill-saps, J. The plaintiff in error was indicted and convicted for the larceny of a watch, the property of James Marshall; at the trial, the district attorney was permitted by the court to amend the indictment by striking out the name of James Marshall, and inserting that of James Cicero Marshall; which is the only question considered by this court. Contended, that the amendment could not legally have been made. 1 Bish. Cr. Proc. §§ 389-393.

Shackleford, J. 1. It is well settled everywhere that damages sustained by a vendee by reason of false or fraudulent representations or concealments by the vendor, may be set up as a defence to an action on the securities given for the purchase money, and deducted or recouped therefrom.

Smiley, J.: This is a contest for the office of sheriff of Harrison county. At the general election in November, 1871, there were four candidates for sheriff in Harrison county. The certificate of election was given to A. J. Ramsey, lie having the highest number of votes, according to the returns by the inspectors of election to the board of registrars.

<p>Error to the circuit court of Jackson county. Chandler, J.</p> <p>The facts of this case are shown by the opinion of the court.</p> <p>This was a trial and conviction of Pond, for retailing liquors without license. The merits of the case, or rather of the defence set up, cannot be examined because of a fundamental defect, which is, that there is no evidence that the indictment or charge on which Pond was tried, was ever presented in open court and filed, so as to become a record, or that the grand jury so acted on the charge as to give it the character of a true bill of indictment.</p> <p>The entry is as follows:</p> <p>“ Be it remembered, that an indictment was found by the grand jury at said term, in the words and figures following, to wit: the indictment filed Feb. 15, 1871.” Then follows the indictment, and at the close of the indictment: “ A true bill.</p> <p>“ W. G-. Eldou,</p> <p>“ Foreman of the grand jury.”</p> <p>The court will note that there is no signature of the clerk to. the entry, and that there is nothing to show that there was a grand jury organized, or that such jury ever came into open court and there presented a true bill, twelve of the number assenting.</p> <p>I insist that we cannot afford to sacrifice a fundamental principle of the constitution, and a positive provision of the statute, intended to carry out the principle, to the ignorance of clerks or this neglect of the counsel.</p> <p>The caption of the minutes showing the organization of the grand jury, and the entry, according to art. 257 Code, 614, are indispensable facts of every record in a criminal cause. There is no statute of jeofails so broad as to cure the want of a finding by the grand jury, and the record must show it, and the 57th article has prescribed what that evidence shall be. The coming into open court of at least twelve of the grand jurors, and presenting by their foreman the bill, the receiving by the clerk, and his signing the entry:</p> <p>The absence of the indorsement “ presented in open court by the grand jury and filed this-day of-, 18 — . (Signed) “ A. B., Clerk,” is fatal to the proceedings, even if it otherwise appeared that the grand jury had in open court presented the bill. But the absence of anything to show that the bill had received the solemn assent of the jury in open court by the presentation, according to art. 257, renders it (the indictment) so much waste paper.</p> <p>It is impossible to say of that important article of the Code, that it is merely directory.</p> <p>The actual presentation of the bill in open court, by a grand jury, in the manner prescribed, is as essential as the return into court of the verdict of the petit jury.</p> <p>For ought that appears, the indictment may have been “ found ” literally, or pitched in at a window.</p> <p>The state founds a right to punish for crimes upon necessity, and has placed her tribunals under restrictions, and surrounded the accused by certain safeguards. The prosecution differs from a civil suit, where the parties are the authors of the suit, stand on equal grounds, and are expected to take care of themselves.</p> <p>The criminal proceeding is that of the whole power of the state against one individual; and what has been by positive law declared necessary must be done; Will any one contend that the accused could waive the finding and presentation of a true bill by the grand jury ?</p> <p>There being no warrant for the trial and sentence, the case must be reversed and the indictment quashed.</p> <p>The clerk had made a brief note of it, obeying the injunction of Mr. Dickens, see caption “ where found make a note of it.”</p>

Stearns, Chancellor. The opinion of the court distinctly presents this case, as viewed by the court, and relieves from the necessity of any further statement of the facts shown by the voluminous record. Only so much of the “ full and exhaustive” arguments of counsel, as relates to the view taken by the court, is inserted. We will now notice the point mainly relied on by the counsel for the appellees.

Alder-son, J. This was an action of assumpsit for goods sold and delivered, money lent and advanced, money paid and interest, by defendant, in error, assignee in bankruptcy of Richard N ugent, against the plaintiff in error.

Henry, J. The decree rendered in this cause is erroneous, on account of the manner in which the process was executed on the defendants. In the case of Robertson v. Johnson, 40 Miss, page 500, the decree was held erroneous because the process was returned “ executed,” and such is the return in this case.

<p>Error to the circuit court of Alcorn county. Inge, J.</p> <p>The opinion of the court fully discloses the facts of this case.</p> <p>Insists that the judgment of the circuit court in this case is manifestly erroneous.</p> <p>The main object of the statute, Rev. Code, p. 832 in providing a forfeiture against the probate clerk, for illegally issuing a marriage license, was to protect parents and guardians in their rights as such. 40 Miss. 56.</p> <p>No one but a party in interest has aright to bring suit on this statute. 1 How. (Miss.) 85; Rev. Code p. 137, art. 188. The securities on the bond of a probate clerk ought to be liable for his maladministration in this, as well as in any other class of cases. The bond of the probate clerk was intended as an indemnity to those interested in the issuance of marriage license, and none other. And where the statute says: “ If any clerk shall issue a marriage license without the requisites before prescribed, or in any other manner than above mentioned, such clerk shall, for each offence, forfeit and pay the sum of one thousand dollars, for the use and benefit of the person suing for the same.” It does not mean that a party having no interest may sue for and recover the penalty of $1,000. The plaintiff must bring himself within the privilege of the statute, and show that he. is interested, as parent or guardian. It is a penal statute, and must be construed strictly. This is not a popular action in any sense.</p> <p>Sedg. on Stat. and Const. Law, 65, 95, 92, 91,111,326, 336. Also, Com. Dig. Statutes; Dudley v. Maher, 3 Comst. 9 ; 2 Black. Com. 437, Sharswood’s ed; 3 ib. 161; Rev. Code, p. 137, art. 188 ; 1 Chitty’sPl. 112,113, 371, 374; Com. Dig. Action on Statutes, E.; Bac. Abr. Debt, A.</p> <p>This suit is an action on the official bond of a probate clerk, against the clerk and his securities, and the object is to recover the statutory penalty for improperly issuing a marriage license to a minor son, without consent of the father. The suit is for the use of the latter.</p> <p>Probate clerks were required to execute bonds conditioned according to law. Code, p. 425, art. 9. The condition of such bond is given, (Code, p. 136, art. 186;) and is the same set forth in this suit, viz.: that the clerk “shall faithfully perform and discharge all the duties of the said office, and all acts and things, required by law, or incident to, the said office.”</p> <p>It was the official duty of the clerk to issue marriage licenses in proper cases. “Marriage licenses shall be granted and issued by the clerk of the probate court.” Code, p. 332, art. 6. By that article, such licenses were to be issued under certain “regulations and restrictions,” among which were these: if the male intending to marry was under the age of twenty-one, the consent of the parent or guardian must be “ personally given before the clerk, or due proof made to him by oath, etc., that the parent or guardian did sign a certificate there produced, giving consent,” etc.</p> <p>The same provided, that, if the clerk issued such license, “ without the requisites before prescribed, or in any other manner than above mentioned, he should, for each offence, forfeit and pay the sum of $1,000, for the use and benefit of the person suing for the same,” by action of debt, etc.</p> <p>The malfeasance, in such a case, is official, and the penalty is imposed upon him as clerk “ If any clerk shall issue,” &c., “such clerk shall, for each offence, forfeit,” etc., (Code, p. 332, art. 6;) and the official bond covers the malfeasance. The issuance of the license, under the circumstances stated, was ,a breach of the bond. The sum named as a penalty, is but the amount of damage, assessed by the'statutes for the bi'each, and the parties to the bond are liable accordingly. But if it were not so, and the clerk only was liable for the penalty, there would still he a breach of the bond, and the principal and sureties would be liable upon it for the damages sustained; and in this case the “damage” is laid at $500.</p> <p>We now turn to the causes assigned for demurrer, the court being limited to those causes. Code, 1857, p. 495, art. 108. The causes assigned are these, viz.:</p> <p>1. No damage shown to plaintiff, that is, to the usee, who is father to the infant son, and is the person injured by the breach. The law implies damage in such a case, and the damages are laid at $500.</p> <p>2. The suit is improperly brought in the name of the state. How else should it be brought on the bond? The code prescribed this mode, p. 13, § 188.</p> <p>3. Declaration is “uncertain,” in that it does not show whether it is for the statutory penalty, or for damages caused by the breach. This is a mistake. It demands both. If it was, therefore, double, it matters not, for there is no objection on the ground of duplicity.</p> <p>4. That declaration contains more than one ground of action in the same count. This also is a mistake. The suit is, simply, on the bond.</p> <p>5. Declaration contains “ multifarious, irrelevant and redundant matter. This is a mistake; but if the suggestion was true, it would be no cause for demurrer to the whole declaration. If it shows any cause of action, the demurrer must fail.</p> <p>6. It does not sufficiently' set out the statute, as if we must plead the code.</p> <p>I. The declaration shows no cause of action against the clerk or his sureties. The condition of the bond is, “that the clerk shall faithfully perform the duties of his office, and all the acts and things required by law.” A criminal act of commission is not a breach of the bond. If the clerk were to refuse or fail to record a deed, or to issue a marriage license, or to perform any duty, it would be a breach of the bond. But if he wilfully mutilates the record, or burn the files, or commit any other misdemeanor, it is not a breach of his official bond. The code, 332, art. 6, on which this action is founded, provides that if any clerk “ shall issue marriage licenses without the requisites prescribed, he shall, for each such offence, forfeit the sum of one thousand dollars, to be recovered by action of debt.” This act is highly penal, and imposes the penalty on Baker, the individual, and not on the officer. Because, he ceased to act as an officer, and without any authority of law, issued a marriage license. If he were to sign his name officially to a libel, it would not be a cause of action on the bond. Bates v. Stokes, 40 Miss. R. 60. This is a new offence, created by statute, and a penalty is given for it, and the punishment and remedy is confined to that given by statute, and that is an action of debt against the individual filling the office of clerk, and not on the official bond. City of Boston v. Shaw, 1 Met. 130; Crosleyv. Bennett, 7 ib. 17 ; Smith v. Lockwood, 13 Barb. 209 ; Dudley v. Mayhew, 3 Comst. 9. The securities, of course, cannot be bound beyond the actual terms of the .engagement, and the contract of a surety will never be construed so as to embrace anything which is not included within the fair scope of the terms of his agreement. Miller v. Stewart, 9 Wheat. 680 ; U. S. v. Kirkpatrick, 9 Wheat. 720.</p> <p>II. Having thus seen that no suit can be maintained on the bond, against the clerk and sureties, to recover a penalty imposed on the individual for a misdemeanor, by committing a grave offense under color of office, and that no breach of the official bond is alleged, we affirm that no action can be maintained on the bond, unless actual damage is averred and proven. In an action to recover the penalty of $1,000, it must be averred and proved that the clerk wilfully violated the statute to create the offense. But in an action on the bond, to recover damages, he is liable for all failures to perform the duties of his office, and for unintentional negligence. Dupree v. Irby, 13 Ala. 131. And in all such cases the aggrieved party can only recover such damages as he has actually sustained. Batchelder v. Kelly, 10 N. H. it. 436; Perkins v. Hackelman, 26 Miss. 41.</p> <p>This suit is not brought to recover any actual damages. None is averred. It is to recover a penalty imposed by the statute, and $500 damages for the detention of the penalty of $1,000, which means interest.</p> <p>The plaintiff in error declines to amend his declaration, and thé judgment must therefore be affirmed.</p>

Cunningham, J. The opinion of the court distinctly discloses the facts of this case. Held: that under a similar statute, “ on a mortgage after coverture, not executed by the wife, and by a judicial sale for the payment of the husband’s debts, her dower would be defeated.” To same effect, see Stewart v. Stewart, 5 Conn. 317; Stedman v. Fortune, ib. 462.

Harmon, Chancellor. The opinion of the court presents this case clearly to view. These were two cases consolidated in the chancery court of Bolivar county, and tried as one. The material facts upon which the whole case depends, may be briefly stated. On the 10th of November, 1860, Dobbins sold Bratton a tract of land in Coahoma county, and put him in possession thereof under a title bond with W. J. S. Dobbins, as surety.

Whitfield, Chancellor. The facts of this case are fully stated in the opinion of the court. Two questions present themselves under the first assignment of error. ' 1. Can appellant attach the conveyances from G. T. Truland to T. J. Branin, and from Branin to Margaret Perrie for fraud ? 2. Were these conveyances without consideration and fraudulent ? I. As to the first question, appellant states that he is the owner in fee of the land in controversy.

<p>Appeal from the chancery court of Lee county. Whitfield, chancellor.</p> <p>The opinion of the court discloses the features of this case, in their variety, so fully as to render any formal statement here of the facts unnecessary.</p> <p>I. The complainant is a stranger to the decree sought to be enjoined, not in any manner connected with the facts on which the decree is based, so as to entitle him to the relief sought.</p> <p>Complainant was not a party to the suit of John H. Harris, administrator, against T. P. Park. If he had been a party, he could have protected his rights, and if the chancery court had decreed adversely to him, he could have appealed to this court. Because he was a stranger, he has the right to prevent by injunctions (his right having accrued after a final decree had been enrolled), any damage which he might sustain by an enforcement of the decree. If he had a title to the property which the decree directs to be sold, and his title accrued after the decree, he may enjoin the sale and prevent a cloud being cast upon his title. Story, Eq. Jur. § 826.</p> <p>' 1. Has Adams a title to the property ? The bill avers, that in 1854, Robinson became the owner, and so continued until his death, in 1861. That in 1859, Snoddy & Bransford, in the United States district court, recovered a judgment against Robinson, which was duly enrolled in the county where the lands were situated. That in 1868, this judgment was revived against the heirs of Robinson and Park, terre-tenant in possession, and the lands ordered to be sold and subjected to the payment thereof. That an execution was issued, levied upon the lands, and the same sold and purchased by Adams, who received the marshal’s deed.</p> <p>The deed of the marshal, taken in connection with the precedent proceedings, vested the title to the lands in controversy in Adams.</p> <p>2. Has Harris, administrator de bonis non of G. H. Harris, a lien which can be enforced to the prejudice of Adams’ title ?</p> <p>The land was sold by G. H. Harris, in his lifetime, in the year 1854, to William B. Robinson, and one note given for the purchase money, due in 1856, is unpaid. The bill was. not filed to enforce the lien of this note, and could not now, as the note is barred by the statute of limitations.</p> <p>In 1867, one Ashford, as the administrator of Harris, conveyed the land to Park, who executed his note to secure the purchase money, and Harris, the successor of Ashford, as the administrator of G. H. Harris, filed his bill to enforce the pretended lien growing out of the transaction between Ashford, administrator, and Park.</p> <p>The title to real estate is not vested in an administrator, and his deed, unless in compliance with a decree of the chancery or probate court, is a nullity; if a nullity, there is no vendor’s lien. Powers v. Gartman, 29 Miss. 133; Hamilton & Young v. Lockhart, 41 ib. 460.</p> <p>We have reached the conclusion that Adams has a title to the lands in controversy, and that the administrator of Harris, under the case as made in his bill, has no lien, and we think it follows, that though Adams was a stranger to the suit of Harris’ administrator against Park, he has the right to prevent a cloud being cast upon his title by a sale under the decree.</p> <p>II. Because complainant by his bill seeks to avail himself of the benefit of the statute of limitations, without showing that he is a party interested in the debt which forms the subject matter of the decree sufficiently ' to entitle him to the benefit thereof.</p> <p>The cause of demurrer is founded upon a mjsconception of complainant’s bill. The note of Park to Ash-ford’s administrator was made in 1867, and is not barred by the statute of limitations. It is contended, and the facts stated, show it, that the note was a nullity and the contract out of which it originated, a nullity, and that there was no lien to be enforced.</p> <p>It is stated in the bill, that the note of Robinson to Harris, made in 1854, was barred by the statute of two years, four years and six years, and if Harris’ administrator had commenced proceedings to enforce payment of the note out of the land, Adams could have interposed the defence of the statute of limitations. Low v. Morris, 18 Cal. 489. Marshall v. Pooley, 12 La. Ann. 661. Ferguson v. Broome, 1 Brad. (N. Y.) 10. Shedmore v. Romaine, 2 ib. 122.</p> <p>As we have already stated, the right of Adams to set up the defence of statute of limitations against the note of Robinson to Harris in a proceeding to enforce the vendor’s lien, is not raised in this case. We are assailing the note of Parks to Harris’ administrator, Ashford, not on the ground that it was barred by the state of limitations, but because that as between the parties themselves it created no lien, and if it created a lien as between the parties it could not be enforced to our prejudice, a purchase of Robinson’s interest, who was the true owner.</p> <p>III. Because complainant shows by his bill, that if he acquired any interest whatever by his purchase, that it is only an equity, and not such as will prevail against the equity of defendant, under and by virtue of the decree sought to be enjoined and the law governing the facts connected therewith.</p> <p>The judgment of Snoddy and Bransford against Robinson (rendered in 1859) was a lien on the land, though the purchase money had not been fully paid. Heard v. Baird, 40 Miss. 794; Carpenter v. Bowen, 42 ib. 54; Mullin v. Hargrave, ib. .</p> <p>At the sale under this judgment, Adams acquired just such interest as Robinson had — a title to the land subject to the claim of Robinson’s vendor for the amount of unpaid purchase money — but not subject to any lien which arose out of the contract between Ashford and Park.</p> <p>The cause of demurrer admits, that Adams has.an equity, but that the equity of defendants is superior to it. But we contend, and have already endeavored to show, that defendants have no equity — that the foundation of their cause of action was the contract between Ashford’s administrator and Park, and that the contract was a nullity.</p> <p>IV. Because complainant does not show by his bill, that Wm. B. Robinson in his lifetime or his heirs or representatives after his death were ever vested with such title in said land as was subject to seizure and sale under execution at law, or that plaintiff in said judgment acquired any lien on said land by virtue thereof.</p> <p>As to whether the lands in controversy were subject to seizure and sale under the execution, and the judgment of Snoddy and Bransford against W. B. Robinson a lien thereon, is a question which is res adjudicata.</p> <p>This question was settled by the judgment of the district. court of the United States; that judgment declares that the lands be sold and subjected to its payment. To that judgment, Park and the heirs of Robinson were parties, and they are concluded by it.</p> <p>Notwithstanding there was a balance due from Robinson of the purchase money, he was vested with such an interest as was liable to seizure and sale under execution. Heard v. Baird, 40 Miss. 794; Carpenter v. „.Boweri, 42 ib. 54; Mullins v. Hargrave, ib.</p> <p>* V. It was urged in the court below, that an injunction cannot issue to restrain the execution of a final decree in equity; and to travel out of the record, it was for this reason the demurrer to the bill was sustained..</p> <p>In reference to pending suits in equity, it is held that their prosecution cannot be restrained by injunction upon original bill, whether filed by a party privy or stranger, and for the reason, the aggrieved party may apply by petition to be made a party to the pending suit, and in that way assert his rights. Hill. Inj. 255.</p> <p>The object of complainant’s bill was not to enjoin a pending suit, but the enforcement of a final decree. He could not apply by petition to be made a party, for the suit was ended. He could not prosecute an appeal, because he was a stranger. If the final decree is prejudicial to him, he is certainly not remediless. If its enforcement will cast a cloud upon his title, he may prevent it by injunction.</p> <p>The rule is, that injunctions may be obtained to stay proceedings in courts of law or equity. 3 Dan. Ch. PI, and Pr., 1725; Hendrich v. Eobinson, 7 Dana, 165; Eden on Injunctions, 9,10 ; 2 U. S. Dig. 79, §§ 34, 54.</p> <p>A decree may be impeached for fraud or imposition. An original bill, in the nature of review, is applicable, when the interest of a party seeking to impeach a decree was not before the court, when the decree was made. Adams’ Eq. 884; Story, Eq. PL, §§ 426, 428 a.</p> <p>YI. It was contended in the court below, that the bill states that the land was sold under a decree of the probate court, and that Park became the purchaser, and that this decree cannot be impeached collaterally.</p> <p>To this we answer,</p> <p>1. That it is not one of the causes of demurrer assigned.</p> <p>2. That the sale under the decree Avas made after the rendition of the judgment under which complainant claims title, and of course, the lien of the judgment was not affected by the sale under the decree.</p> <p>3. But that the lands were subject to sale under, and the lien of the judgment was settled by, the judgment of the district court of the United- States; -</p> <p>We contend in the first place, that appellant “has nothing to do with it;” that he is a stranger to this proceedings; that he would have been an improper party to the bill of Harris and Park, and that if he had been made a party to the bill, he could not have set up directly as defence to the suit, that which he is now attempting indirectly. The vendor’s lien prevails against the vendee, volunteer purchasers with notice or having an equitable title only, and against a judg-' ment creditor of the vendee. Walton v. Hargroves, 42 Miss. 19, and cases there cited.</p> <p>Judgment creditors and purchasers at sheriff’s sale, deriving rights by operation of law, are not purchasers for a valuable consideration, but in contemplation of a court of equity, mere volunteers. Kelly v. Mills, 41 Miss. 267; ib. 371; Freem. Ch. Rep. 96; S. & M. Ch. Rep. 96; 42 Miss. 26.</p> <p>A purchaser at sheriff’s sale is affected with all, the equities which bound the person whose equity he purchased ; and in fact is not within the rule which protects a purchaser without notice. Dev. & Bat. 436; Tucker’s Corn’s. B. 2, p. 362 and cases; 2 Baily, (S. C.) 480; 10 Watts, 9; 4 Scam. 486; Colmes v. Farel, 6 S. & M. 190; 5 ib. 710; 11 ib., 21; 7 ib. 586; ib. 513.</p> <p>Adams (the appellant), who is a purchaser under a judgment against Robinson in favor of Snoddy & Bransford, stands in no better attitude to resist the lien than Snoddy & Bransford, who' were judgment creditors, for several reasons. In equity, he being a purchaser at execution sale, is merely a volunteer, and not entitled to the protection extended to innocent purchasers for value, without notice.</p> <p>Again, Robinson, not having paid out the land, had only an equity in it. Adams by his purchase got only the interest of Robinson, an equity. Then the maxim applies, aqui prior est tempore potior est jurif then, we repeat, he is a stranger by blood and estate, and that his rights can in no way be affected by the enforcement of the decree for the purchase money; that he boug’ht only an equity encumbered by an equity, and that his estate is that which is left after the satisfaction of the first equity.</p> <p>But appellant says that the trade between Park and Ashford, administrators, is void; that the administrator had no right to make any such arrangement. We reply, that an administrator acting in good faith is competent to compromise or renew securities for, or postpone payment of debts due to the intestate, without the sanction of the probate court. Martin et al. v. Parer, admr., 43 Miss. 517.</p> <p>It no where appears, even, that Ashford did not have the license of the probate court to do what he did; and the bona fides of the transaction can not be inquired into by Adams in this collateral way. “It was not his funeral, and he had no right to cry.” If there was anything in it, Park might have set it up as a defence; he did not do it; don’t let Adams do it for him.</p> <p>Again, it is admitted that Harris has a lien as against Robinson and his heirs, but contended that the note of Robinson to Harris (which was extinguished by the new note to Ashford) was barred by the statute of limitations. This no where appears in the pleadings, but if it did and the arrangement between Park and Ashford, the administrator, was void, then the defence of the statute of limitation is personal to the administrator. 5 Ala. 402.</p> <p>But, says appellant, all these questions are res adjudicata — settled by the federal court in the case of Snoddy & Bransford v. heirs of Robinson and Park, terre-tenant. Let us see what was settled there. In 1859, the judgment was rendered against Robinson. His death made it necessary to revive the judgment, against his heirs, etc.. Now what effect did this revivor have ? It simply gave to the plaintiff the right to issue his execution, which had been suspended by some event (the death of Robinson in this case) between the rendition of the judgment and the issuance of the scire facias. This is the whole effect of the revivor — “ only this and nothing more.” And any attempt by the federal court to displace the lien of Harris when Harris was not before the court, and this too upon scire facias to revive a judgment, would be coram non juiice and void. No such questions could have been determined by that court; none were. 1 Penning. 73; 2 ib. 529.</p> <p>It will be remembered that Park bought this land under a decree of the probate court of Itawamba county, sold for the payment of Robinson’s, debts. Appellant now attacks this sale collaterally, and says Park got no title. This can’t be done. Voorhees v. Bank, 10 Pet; 449; Cooper v. Reynolds, 10 Wall. 316; 38 Miss. 101, and cases cited.</p> <p>We ask the attention of the court (especially) to the case of Pounds v. Gartman, 29 Miss. 133. It is as much like this case as “ two black eyed peas are like each other.”</p> <p>Can the chancery court enjoin its own decree Í In Greenlee v. McDonnell, 4 Ired., (N. C.) it is decided, “that an injunction to restrain the execution of a decree in equity can not be granted.” In Jackson v. Leaf, in Jac. and W., Lord Eldon remarked: “I do not remember any instance where this court has enjoined a party from proceeding in another court of equity. In the same court of equity you do restrain them when there are different suits for the same purpose.” 2 Paige Ch. 26; Barb. Ch. Pr. 619; 1 Eden on Injunctions, 57, note 2.</p> <p>The bill is to perpetually enjoin Harris, administrator de bonis non of J. G. Harris deceased, from foreclosing a vendor’s lien on a tract of land, upon the ground that it would cast a cloud on Adams’ title to said land. Huntington v. Allen, 44 Miss. 654, is a case where Huntington bought land at sheriff’s sale. Allen was by an ejectment suit setting up a very questionable title. Huntington, on the ground that the judgment in the ejectment suit would cast a cloud on his title, asked for a perpetual injunction against the suit by Allen. Simrall, J., page 662, says: “He who comes into a court of equity to get rid of a legal title alleged to overshadow his own, must show clearly the validity of his own title and the invalidity of his opponents.” In the case at bar, the respondents claim that it does not appear on the face of the bill that Adams has any title to the land, such as will support him in the court of equity, and also that the sale which he seeks to enjoin would not cast such a cloud on any title he may have, as he would have a right to remove. The questions presented to the court on the first branch are: 1st. Did Robinson have such an interest in the land, as that the judgment against him could attach thereto ? The bill alleges that Robinson purchased the land from Harris, paying part of the price and giving notes for the rest, the title to be made when the last note was paid. There is no allegation that possession was given or any note or memorandum of the contract signed by either party. 2nd. Did the sale by the administrators of Robinson, of Robinson’s interest in this land, by order of court, in preference to personalty, to pay deceased’s debts, divest the judgment lien of his creditors ? There is no allegation that the money raised by the sale was not open to collection by the judgment creditors, nor that they were not parties to the proceeding. Park certainly paid the money for The land as appears by the bill.</p> <p>On the second branch, the question is did Park have a right to renew the note of Robinson, and take the lien for purchase money out of the statute of limitations ? The objection raised on the other side that the administrator, Ashford, could not make a deed, is perhaps untrue.</p> <p>If true, it does not prove that Park could not renew the note, and preserve the lien. The transaction was no doubt thus: Park had bought the interest of the decedent Robinson, subject to the lien for the balance of the purchase money. When the note to secure the same was about to be barred by the statute of limitations, he being unable to pay, renewed the note as a compromise with the administrators of Harris, deceased, and preserved the lien.</p> <p>The second assignment of error and the last, is that the court refused to allow complainant to amend his bill. By reading the last bill of exceptions in the record, it will be seen that the amendment proposed was to add certain exhibits, which had already been set forth in the bill, and to add them simply as exhibits. No objection had been made to their absence by the demurrer. Terry v. Jones, 44 Miss. 542, by Peyton, C. J., decides, “ A bill in equity is pleading, and exhibits are evidence. The demurrer is to the case as presented by the pleading and not to the evidence filed for its support. Where a bill in equity is substantially defective for want of proper averments, it cannot be eked out by exhibits. It must stand or fall on its own averments.” So that if these exhibits had been in they would not have altered the result, their absence did not weaken the bill, and their addition would make it no stronger on a second demurrer.</p> <p>We ask an affirmance of the judgment, sustaining' the demurrer and dismissing the complainants bill of complaint.</p>

Cooper, J. The opinion of the court states the facts of this case. There are, by consent, two cases in this transcript, viz.: on petition of appellant, for dower in lands, and by appellee, for a sale of lands to pay debts. As I am informed, the latter has been confirmed, and therefore no brief is filed in relation to it. The defence to the claim of dower is an alleged provision by the will of the husband, and a failure to renounce in due time.

<p>Error to the circuit court of Warren county. Shackelford, J.</p>

Reynolds, chancellor. • The board of supervisors and treasurer of Tippah county filed a bill in the chancery court of said county against Noah Vernon and others, in which it is charged that Vernon conveyed lands in trust lying in Tippah county, to secure the payment of a note given by him and W. T. Young and C. J. Haynes, his co-defendants, as securities thereon for money borrowed before that time by Vernon from the “Chickasaw school fund,” payable to W. M. Moody, treasurer…

<p>Appeal from the chancery court of Coahoma county. Trimble, Chancellor.</p> <p>Louisa Ganong, wife of L. J. Ganong, filed a bill in the chancery court of Coahoma county, in which is charged the following grounds of relief against H. Apple & Co., H. P. Reid, usee, etc., defendants:</p> <p>That on the 4th of October, 1868, in the circuit court of Coahoma county, H. P. Reed, usee, of Garner, administrater of the estate of Wesse, deceased, obtained judgment for $1,645.40 against L. M. Ganong; and on the 24th of February, following, Apple & Co. obtained judgment against Ganong for $264.94. Executions were issued under these judgments and were levied on certain real estate, which she alleges belonged to her as her own separate estate, and is not liable to be taken in satisfaction of her husband’s debts. That she purchased the property with her own money on the 28th of January, 1867, taking a deed of conveyance therefor in her own name. This deed is made an exhibit to the bill. She states that her husband has no interest in said lands; that they are not liable for his debts, and that a sale under the executions would be a cloud upon her title. The prayer is for injunction and general relief.</p> <p>Reid and Apple & Co., in their answer, admit the rendition of the judgments, and the levy of the executions on the land described in the bill. They deny that the land is the property of Louisa Ganong, and charge that L. M. Ganong, the husband of complainant, bought the land with his own means, and procured the conveyance to be made to his wife for the purpose of defrauding creditors.</p> <p>The answer is made a cross-bill, and prays that in their answer to said cross-bill the complainants be required to state distiittly whose money was used in the purchase of the land; to whom and by whom the money was paid; and to give a full history of the transaction. That L. M. Ganong state whether or not he told H. P. Reid, or others, after the deed was made, that he paid his own money for the land; and whether in paying for the land-, he did not give the vendor a $500 check, which he had received from one Malone in payment for property of his own sold to Malone; also, whether he did not pay a large portion of the purchase money in merchandise out óf a dry goods and grocery store, kept at the time by him in his own name.</p> <p>The judgment creditors ask that the land be decreed to be subject to their debts, and sold _ under the executions by order of the court, or otherwise by the proper order or decree, and for general relief.</p> <p>Complainants, in their joint answer to the cross-bill, state substantially as follows: On the 28th of February, 1868, L. M. Ganong was declared a bankrupt by, the U. S. district court for the southern district of Mississippi.</p> <p>He submits that his proceedings in bankruptcy suspended all suits and legal process against him; and that the judgments are void.</p> <p>They insist that the purchase was made solely with the means of the wife. L. M. Ganong submits that he is entitled to an exemption of 240 acres, and that only 80 acres of this tract is subject to execution im any event.</p> <p>The respondents also state that at the time of their marriage, Mrs. Ganong owned $500 or $600; that this was kept separate and apart, as her own money. During the war Mrs. Ganong owned a sewing machine and made money by sewing for soldiers and others. She converted these earnings into gold. In 1865, she received from her mother several bales of cotton, which sold for $1,250 in currency. These sums amounted to about $3,200 in gold.</p> <p>Having no house, she wished to purchase a piece of land as a home for herself and children. She gave this sum of money to her husband for the purpose. No suitable land was then offered for sale.</p> <p>M. L. Ganong requested her to permit him to use this gold in purchasing a stock of goods. When an opportunity presented itself for the purchase of land, M. L. Ganong was to repay the amount to Mrs. Ganong. About $3,000 in gold was sold by M. L. Ganong and invested by him in a stock of goods, in the year 1865.</p> <p>On the 28th of January, 1867, Richardson offered the land for sale, and she then requested her husband to purchase the land. The difference between gold and greenbacks would make about the sum of $4,500, the amount of purchase money.</p> <p>The $500 draft was used in part payment. The draft was given by Malone for a tract of land purchased from M. L. Ganong a short time before. The land sold to Malone was purchased by M. L. Ganong with money belonging to Mrs. Ganong, M. L. Ganong taking the title in his own name.</p> <p>Mrs. Ganong insists that her husband held this latter tract of land in trust for her.</p> <p>She admits that Richardson was in part paid with goods from the store of Mr. Gauong. Richardson had bought goods from Ganong, and the debt for the goods was taken as cash in payment for the land.</p> <p>It is denied that Ganong ever stated to Reid, or any other person, that he purchased the land with his own means-</p> <p>Mrs. Jane Wamble, in her deposition, taken by the defendants, states that she is the mother of L. J. Ganong.</p> <p>Prior to her marriage, L. J. Ganong owned some household furniture and about $400 in money; perhaps more. She was never entitled to any devise or legacy, except from her father’s estate.</p> <p>She never received anything except from deponent. Deponent does not remember what sums she ever gave her.</p> <p>In 1865, deponent gave her five bales of cotton, weighing about 500 pounds each. It was delivered in Memphis.</p> <p>It was admitted that M. L. Ganong was adjudicated a bankrupt on the 28th of February, 1868, and that in 1869 a homestead was set apart to him not embraced in the land in controversy.</p> <p>Final decree for complainants, making the injunctions final; and an appeal by the appellants allowed by order of court.</p> <p>Admitting the statements of Ganong and wife to be true, still the decree is erroneous in perpetuating the injunction as to all the land; because by the statements of complainants themselves a very considerable portion of the $4,500 paid for the land arose out of the separate earnings of the wife with her sewing machine. (!) She claims to have had at the time of marriage $600; received from proceeds of cotton ginned by her mother $1,250 — making a total of $1,850. Deducting this amount from $4,500, we have $2,650 as her separate earnings, less the premium on gold. About $2,500 of the purchase price, then, arose out of the earnings of the wife during coverture. This, it is insisted, belonged to the husband and was liable for the payment of his debts. That this was so under the law of 1839 and 1846, and prior to the adoption of the code of 1857, see Henderson & Moore v. Womack, 27 Miss. 831; Armstrong v. Armstrong, 32 ib. 279 ; 30 ib. 19; ib. 589. The law was not materially changed by the code of 1857. See p. 335, art. 23.</p> <p>It is .contended for the wife that her earnings belong to her under this act, because they “ accrue to her,” not in any of the methods enumerated, but “ otherwise,” and that the word “ otherwise ” is intended to cover earnings. This theory is untenable, because,</p> <p>1st. The word “otherwise ” is only intended to cover the same generic methods of acquisition as are enumerated in the section.</p> <p>“ Descents, distributions, deeds of conveyance and recovery,” all import something coming to the wife from some one else. Gifts of personal property are not' enumerated, and they would be included in the word otherwise, because of the same generic signification; but the earnings of the wife are things which. arise out of herself, and are the result of her personal labor. They do not stand upon-the same footing as property derived in any of the modes specified.</p> <p>2nd. Earnings do not “accrue” to her at all, but to her husband. The wife is subject to the husband in all things. Save in the matter of personal chastisement, she is as much under his control as the minor child. He fixes her abode and changes it at pleasure, and when she refuses to accept the place of residence which he selects, he has the right to divorce her. Fulton v. Fulton, 36 Miss. 518.</p> <p>He controls her movements and her occupations, provided only they he restrictions deemed reasonable in the law. He prescribes what companions shall or shall not visit at the home which he has selected for her. Fulton v. Fulton, supra.</p> <p>These prerogatives negative the idea that she can engage in any business to be carried on by her personal labor, wholly independent of him, and in which he has no interest. Our lawgivers never intended to confer upon the wife the right to embark her personal services in speculations or trades with which the husband was wholly disconnected. To do so would be to authorize the wife at her own option to keep a hotel, or run a steamboat, or go. on a whaling voyage without any limitation or control by her husband, and would virtually break up the married relation. We would soon perhaps have the spectacle of husband and wife carrying on antagonistic and rival pursuits, and trading, and cheating and swindling each other. Into all these trades she perhaps may embark her property, but not her person free from the husband.</p> <p>The object of the law is wholly different from this. It simply is to secure to the woman her property, not her emancipation from the control of her husband. Whenever you declare that all that a woman can make belongs to her, you absolve her from every obligation to “ obey ” the husband.</p> <p>All these married women’s laws are of course in derogation of the common-law rights of the husband. To show how strictly they must be construed, we refer to cases of Dalton v. Murphy, 30 Miss. 59 ; Robertson v. Bruner, 24 ib. 343; Selph v. Howland, 23 ib. 264. That the earnings of the wife do not belong to her, under the code of 1857, is further shown from the fact that, in the new code of 1871, they a,re expressly given to her by the insertion of the words, “ including the fruits of her personal services.”</p> <p>If the earnings were already included by the provisions of the code of 1857, the insertion of these words in code of 1871 were unnecessary. Code of 1871, § 1778, p. 376.</p> <p>Insisted on behalf of the appellants that the earnings of the wife, under this statute, belonged to the husband. This statute being in derogation of the common law rights of the husband, must be strictly construed. 1 Kent Com. 464; 38 Miss. 118; Dwarris on Statutes, 750; Hopkins v. Landridge, 31 Miss. 678.</p> <p>In the case last cited it was held that the proper rule of construction is to confine the statute to “ the most narrow limits of the language employed.”</p> <p>It is admitted that the earning of the wife are not expressly named in the statute, but it is insisted that earnings belong to her under the words “ or otherwise.” In Sharp v. Maxwell et al. 30 Miss. 591, and also in Lowry v. Craig, ib. 19, the court held, under the acts of 1839 and 1846, that the wife was only entitled to the property expressly enumerated.</p> <p>The act of 1839 enumerates certain property that should belong to the wife, and provides the modes by which slaves could be acquired, as by “ gift, conveyance, inheritance, distribution or otherwise.”</p> <p>In Henderson & Moore v. Warmack, 27 Miss. 835, (a case where a slave had been purchased with a wife’s earnings,) the court held, upon construction of that statute, that the earnings of the wife belonged to the husband.</p> <p>The act of 1839 is as broad as art. 23, code 1857, so far as the question of the wife’s earnings is concerned, and the same rule of construction applies to the latter statute.</p> <p>Upon a review of the laws of 1839 and 1846, art 23, code of 1857, and § 1778, code of 1871, it is clear‘that the earnings of the wife belonged to the husband until the code of 1871, when, by § 1778, they were, in express terms, given to the wife.</p> <p>It is insisted, therefore, that the land is subject to the debts of the husband, at least to an extent equal to the amount of the wife’s earnings invested.</p> <p>Argued the case orally, citing 38 Miss. 351.</p>

Brown, J. The opinion of the court contains a statement of the case. . The refusal of the court below to transfer the cause to the circuit court of Hinds county, 1st district, is assigned for error, and plaintiff in error moves the court for a rule upon the defendants and the judge of the circuit court of Warren county to show cause why a writ of prohibition should not issue commanding them to cease from the prosecution of said cause in said circuit court of Warren county.

<p>Error to the circuit court of Coahoma county. Shackleford, J.</p> <p>The opinion of the court sufficiently states the facts of the case.</p>

Lyon, Chancellor. Appellant filed his bill in the chancery court of Lowndes county, on the 25th day of March, 1868, praying fora divorce, a vinculo matrimonii,from the appellee, and alleged as grounds for such divorce, in substance, the following facts : That complainant first became acquainted with defendant in the month of June, 1865.

<p>Error to the circuit court of the first district of Hinds county. Brown, J</p> <p>The opinion of the court contains a statement of the case.</p> <p>It is well settled that the plaintiff in ejectment cannot recover unless he shows that the legal title to the property was in himself at the time the action was begun. Tillinghast’s Adams on Ejectment, 32; Heard v. Baird, 40 Miss. 793. It is equally settled that possession by the defendant, accompanied by a claim of title, is sufficient to put the plaintiff on proof of his right. Ib.; Rev. Code of 1857, p. 309, art. 19.</p> <p>The court erred in admitting the bond for title. It was not evidence of a title, and was clearly incompetent. The court also erred in admitting in evidence the deed from Marshall and Tegarden to Cook, by reason of the fact that the description of the land in the deed does not agree with that in plaintiff’s declaration, thus failing to identify the land and to give that certainty of description required by the statute. Nixon v. Porter, 38 Miss. 401, 414; Rev. Code of 1857, p. 386, art. 1; Hally v. Curtis, 3 How. (Miss.) 231; Tyler on Ejectment, 473 at seq. The parol evidence offered by plaintiff to explain the deed was clearly inadmissible. Nixon v. Porter, 38 Miss. 413.</p> <p>The verdict was contrary to the law and the evidence. Where a defendant in ejectment relies for his defence on adverse possession during the period of time prescribed by the statute (Rev. Code of 1857, p. 398, art. 1), a void deed, or one from a party having no title to convey is sufficient to create that color of title necessary to save defendant from being regarded as holding at the sufferance of the true owner, and to show that he claims title to the property adverse to all other claims. Root v. McEerrin, 37 Miss. 17; Bledsoe v. Little, 4 How (Miss.) 13; Ang. on Lim., §§ 391, 398; Magee v. Magee, 37 Miss. 38; Wall v. Wall, 28 Miss. 409. To break the continuity of possession, there must be either a voluntary abandonment by the party in possession, with intention not to return, or a rightful and lawful entry of the true owner. Nixon v. Porter, 38 Miss. 415; Ang. on Lim., (3d ed.) p. 462, § 383 ; ib. p. 513, § 413; Tyler on Ejct., 99,100,159, 908, 909. Though the plaintiff establish a good title in himself, yet if it be shown that at the time of his purchase, he knew the land to have been in the possession and occupancy of the defendant, or that such possession was so public and notorious that he must have known it, he cannot recover. Alexander v. Polk,-; Bledsoe v. Little, 4 How. (Miss.) 13; 39 ib. 753.</p> <p>1. The deed from Mayes to Cook was accompanied by all the requisites of a good and valid deed, for all purposes, under article nineteen of the Revised Code of 1857, page 309. The object of this law was to guard against pretended deeds and conveyances; and this object is attained in the present instance. Plaintiff in error is not in the attitude of a purchaser for value without notice. This deed, both under the common law and the statute, was sufficient to pass the title, as between the parties to the deed, and bad, therefore, as between all other persons, except purchasers for a valuable consideration without notice. 5 McLean, 111; 3 ib. 362. The possession of the deed was prima facie evidence of delivery. 14 Pet. 322. It is immaterial, so far as Dixon’s interests are affected, whether the title be in Cook or in Mayes or Marshal. The statute was never designed to embrace such a case as this, or to protect a party standing in the attitude of Dixon. It was clearly designed to protect innocent purchasers for value from pretended and secret deeds, the reasons for the protection being grounded upon a want of notice of the title claimed under unacknowledged and unrecorded deeds. A statute which avoids an unrecorded deed, as to creditors and subsequent purchasers, only applies to creditors of and purchasers from the grantor. 6 Pet. 124; 7 ib. 348; 5 Cranch, 154; 1 Cranch, C. C. R. 462.</p> <p>2. The plaintiff had the right to introduce the deed from Marshall and Tegarden to Cook, and if it was indefinite, to render it certain by proof in the mode sanctioned by well settled principles of law. The bond for title was clearly admissible for this object. There is no rule of evidence requiring the description of the subject matter to be contained in one instrument; it is sufficient if the description can be made out from any writing. 1 Greenl. Ev. 268. Where a deed is ambiguous it may be explained by a prior agreement. Hogan v. Delaware Ins. Co., 1 Wash. -C. C. It. 419; see also, 1 Greenl. Ev. 289, 290, 343; 2 Pars, on Cont. 549, 554, 560, 564; 3 Cush. 266; 40 Miss. 485; 2 Bay, 539.</p>

<p>Error to the circuit court of Scott county. Leaci-iman, J.</p> <p>Judgment of the circuit court dismissing an appeal from a judgment of a justice of the peace. The grounds of the dismissal and all the material facts are stated in the opinion of the court.</p>

Young, Chancellor. The opinion of the court contains a sufficient statement of the facts of the case.

Hill, Chancellor. The opinion of the court sufficiently states the facts of the case, as appears from the bill of complaint. 1. The claim, the taxes for the payment of which complainants seek to enjoin, was barred by the limitation prescribed by the first section of the act of 1860, ch. 340. After that period, no tax was assessable for levee purposes except such as was afterwards provided by the act of 1867, ch. 173, sec. 5, p. 241.

<p>Appeal from the chancery court of Rankin county. Cabaniss, Chancellor.</p> <p>A full statement of the case is contained in the opinion of the court.</p> <p>It does not appear that the appellant was denied relief by the board of supervisors. If the merits of his application were to be considered by the board, and his assessment corrected, it was not for him to complain that the board had exceeded its powers.</p> <p>But, admitting that the board had failed to act upon appellant’s application, the question is presented, whether the chancery court has power to correct and revise the assessment.</p> <p>This does not involve the question as to the power of a court of equity to pronounce upon the validity or illegality of a tax. This power belongs to both courts of law and equity, in cases where the question is properly presented.</p> <p>The case at bar proceeds, not upon the theory that the tax is illegal, but that the assessment is erroneous.</p> <p>The question then is as to the power of the court to inquire into the value of the property and revise and correct the assessment roll.</p> <p>On this point, I submit that the jurisdiction given to the board of supervisors was special and limited, and the failure on the part of the board does not vest its powers and jurisdiction in a court of chancery. Wiggins v. Mayor of New York, 9 Paige, 16; Blackwell on Tax Titles, 117; Albany & West Stockbridge R. R. Co. v. the Town of Canaan, 16 Barb. 244; 6 Johns. Ch. 27.</p> <p>If the failure of the board of supervisors to act had the effect of rendering the tax illegal, the jurisdiction cannot be maintained solely on this ground.</p> <p>It is well settled that to give a chancery court jurisdiction, in addition to the illegality of the tax, there must be shown special circumstances bringing the case under some recognized head of equity jurisdiction. Coulson v. Harris, 43 Miss. 729; Dows v. City of Chicago, 11 Wall. 108 ; 2 Mich. 560; 25 N. Y. 312; 33 Barb. 322.</p> <p>It is urged, however, by the appellant that the chancellor had no power to render a decree for both the tax and damages.</p> <p>I submit that a fair construction of the statute sustains the decree. It is true that the word damages only is used, but the whole context of the act shows that a decree for the tax and damages was contemplated. The power to award a writ of execution is incident to the power to render the decree for tax and damages.</p>

Shackelford, J. The opinion of the court contains a statement of the case. The error assigned is as follows: 1. The court erred in rendering judgment against W. Z. Bedon and John A. Scott '.upon the verdict of the jury. Cited Rev. Code of 1857 p..375, art 9.

Coeeey, Chancellor. The opinion of the court contains a statement of the case. Contended that when a person, in order to place his property beyond the reach of his creditors, caused the title to be' conveyed to another, equity will not afford him a remedy, but will leave him and his property in the condition he has chosen. The demurrer of defendants should have been sustained on account of multi fariousness in the bill, citing 1 How. (Miss.) 510.

Harmon, Chancellor. The opinion of the court'states the case. Looking at the bill it will appear that appellant had no notice of the petition, and none of the subsequent proceedings, and will sustain irreparable injury, and has not been paid a cent for the appropriation of his property.

<p>Error to the circuit court of Yazoo county. Cun-NINGHAM, J.</p> <p>The opinion of the court contains a sufficient statement of the case.</p> <p>The following errors are assigned:</p> <p>1. The court errerd in granting the motion to defendant in error to set the case specially in advance of others numerically prior on the docket.</p> <p>2. The court erred in granting the motion to try the case in advance and in preference to other cases then ready for trial and numerically prior to it on the docket.</p> <p>3. The court erred in sustaining the motion to dismiss the case for want of jurisdiction in the justice of the peace, and for this cause reversing the verdict of the jury at the costs of plaintiff in error.</p>

<p>Error to the circuit court of Hinds county, 1st district. Brown, J.</p> <p>The opinion of the court states the facts in the case.</p> <p>Cited Rev. Code, §§ 2486, 2487; Carrotti v. the State, 42 Miss. 334; Bishop on Marr. and Div. 413.</p> <p>Cited Rev. Code of 1871, §§ 1763, 2487.</p>

Brown, J. The opinion of the court contains a sufficient statement of the facts of the case. Argued the cause orally and filed elaborate arguments, chiefly upon the evidence, too long for insertion and too compact for insertion here.

Cabaniss, Chancellor. The opinion of the court contains a sufficient statement of the case. Contended, that, the attempt being to subject the land to pay a note, which it is insisted was given in lieu of the lien note, but with a reservation of the lien, it must be proven that the note was given with the express reservation of the lien; and this must he brought to the express knowledge of George Kausler.

Shackleford, J. The opinion contains a statement of the case. The record fails to show that the court was held at the time and place required by law. Carpenter v. the State, 4 How. (Miss.) 163 ; Morris’ State Cases, 126, 430. It fails to show the organization of the grand jury, and that the indictment was returned into court as required bylaw. 30 Miss. 408 ; 31 ib. 421; Morris’ State Cases, 810, 885, 1752, and notes.

Plaintiffs in error were sued by the defendant in' error in said circuit court, in an action of assumpsit on a promissory note for $613.20.

Niles, J. The following is the only error assigned: I. The court erred in sustaining the demurrer of the defendants to the scire facias. 1. A scire facias or a judgment nisi rendered on a forfeited recognizance is to be regarded as a declaration as well as a process, and it is amendable as other pleadings. Curry v. the State, 39 Miss. 511. 2.

Shackleford J. The opinion of the court states the case. The court erred in refusing to allow the cross-examination of the witnesses for the state in relation to the feelings that existed between the accused and deceased at the time of the homicide, by showing that a previous difficulty had occurred which led to the homicide. Bish. Cr.

Shackle-ford, J. • This was a suit instituted in the court below, at the March term, 1868, by Elizabeth Ellington against J. B. Ellington, to recover ten thousand dollars, damages, for the lost services of Virginia A. Ellington, aged sixteen years and her daughter, occasioned by the seduction and defilement of the said Virginia by the defendant in 1866. To the action defendant pleaff 1. General denial; 2. The emancipation of the said Virginia by plaintiff at the time; 3.

Brown, J. The opinion of the court contains a statement of the case. 1. Held: that if there was, in such refusal, a palpable error committed, without the correction of which manifest injustice will be done, a new trial will be granted by the supreme court. 8 S. & M. 415; 25 Miss. 125.

EisheRj J. On the trial of this cause, it was agreed by* counsel that “the court may hear and determine, without regard to the pleadings, all constitutional questions growing out of the levee law involved, under section 20 of article 12 of the constitution, and which may grow out of that clause as to uniform and equal, and ad valorem taxation; and also any constitutional question arising upon the said levee law, as to want of notice to tax-payers, and want of demand for the…

Brown, J. The only error assigned is the action of the court below in setting aside the verdict and granting a new trial. As a judge might err on the one side as on the other, in granting no less than in refusing a new trial, the legislature (Rev. Code .of 1857, p. 505, art. 166), gave a right of exception in either case and review in the appellate court. Moore v. Ayres, 5 S. & M. 310.

<p>Appeal from the chancery court of Attala county. Young, Chancellor.</p> <p>The opinion of the court contains a sufficient statement of the case.</p> <p>Insisted that the bill of complaint shows no ground for equitable relief. The bill does not admit the legal title of the plaintiff in the suit at law, against whom an injunction is prayed, and set up an equitable title paramount to such legal title. There is no fraud alleged, no irreparable injury to the complainant sought to be remedied. No discovery is asked in the bill, nor is any other special matter stated therein to take the case out of the general rule of equity, that “ where the party has a remedy at law, he cannot come into equity unless, from circumstances not within his control, he could not avail himself of his legal remedy, nor for the assertion of a right, the existence of which is properly determinable at law.” Hilliard on Injunctions, 9, § 24. The allegations of the bill itself show an adequate remedy at law, and it follows, therefore, that the demurrer should have been sustained. Ib.; Leach v. Day, 27 Cal. 643; Gaines v. Nicholson, 9 How. (U. S.) 356. See Rev. Code of 1857, p. 308, art. 12; Heard v. Beard, 40 Miss. 799; Shep. Touch. 226; McAfee v. Lynch, 26 Miss. 257.</p> <p>Where an injunction against an ejectment suit is granted, it is invariably upon the ground of an absence of a valid legal defense to the suit in a court of law. In all such cases, the injunction bill operates as a con- ■ fession of judgment in the court of law. Warwick et al. v. Norvell, 1 Leigh, 95; 1 Freem. Ch. 347; Wildey v. Bonney’s Lessee, 35 Miss. 77; 10 Paige, 298; Smith’s Ch. Pr. 610; 3 Dan. Ch. Pr. 281-365.</p> <p>Nor can the bill be sustained on the ground to quiet title, because the suit at law would have accomplished the same result, at the cost of one suit instead of two. Huntington et al. v. Allen, 44 Miss. 654.</p> <p>As to the jurisdiction of equity in this case, cited § 975 p. 191, Rev. Code of 1871, which is broad enough to sustain it. Besides this, the facts of the case, as detailed in the bill, consisting of the mortgage by Glazier, his subsequent acts in relation to it, his claim to the lots mortgaged, the lease to Wilson by Olive under authority from Glazier, the sale by Olive under the power of sale in the mortgage, the purchase by Bailey and the suit instituted by Glazier against Wilson, make a case for equitable interposition.</p> <p>The second ground of demurrer is, that the court has no jurisdiction of the person of the defendant, or of the subject-matter in controversy.</p> <p>The idea involved is, that because Glazier became bankrupt, and the mortgaged property was set apart to him as his exempt property, subject to the mortgage, his person and his exemption are to enjoy immunity from the interference of the courts of the state. But as to this, see Russell v. Cheatham, 8 S. & M. 710; Talbert v. Melton, 9 S. & M. 9, and Wooten et. al. v. Clark, 23 Miss. 75. Undoubtedly, the district court of the U. S., sitting in bankruptcy, might have assumed jurisdiction over Olive’s claim, secured by mortgage of Glazier, who afterwards became, bankrupt, and might have administered the equity of redemption in Glazier, but it did not; and as the bankruptcy of Glazier in no manner affected the lien of the mortgage to Olive, it cannot be denied that the jurisdiction of the state court existed. Again, the equity of the redemption of Glazier in the mortgaged lots was set apart to him by the assignee in bankruptcy. The U. S. court afterwards had no concern with' that. The exempt property of the bankrupt, by express provision of the bankrupt law, does not vest in the assignee. It remains to the bankrupt, and when his claim to it, as exempt, is recognized by its being set apart to him, he is in, not by any new title, but of his former title, and holds it subject to any liens or incumbrances on it before, which remain unaffected by the bankruptcy. It is not true that bankruptcy and assignment to the bankrupt of exempt property purges it of liens and incumbrances, and confers on the bankrupt any new right. The exempt property allowed - to the bankrupt is that much excepted and reserved from the investment of the assignee with the title to the effects of the bankrupt. That remains to .the bankrupt, but just in the condition it was before. Bump’s Bankruptcy (5th ed.), p. 133; In re C. Hunt, 5 Bankruptcy Register 493 ; Rehley v. Barr, 66 Penn. 196 ; Tuesley v. Robinson, 103 Mass. 558.</p> <p>Olive was not bound to prove his claim in the bankrupt court against Glazier. He might have done so, but having a lien by mortgage, he had the right to keep out of the bankrupt court, and go against the thing mortgaged. The bankruptcy of Glazier did not revoke the power of sale in the mortgage, any more than the death of Glazier would have done it, and it is certain his death would not have done it. The equity of redemption was all that was in Glazier when he became bankrupt, and that did not rest in the judge or assignee, because Glazier claimed and had recognized his equity of redemption as his exempt property. So it is manifest the bankrupt court is out of the question. But the right of the bankrupt court to interfere in such cases is a different question from the right of a defendant, when brought before a state court, to avoid its jurisdiction, on the idea of the immunity of his person as a favored subject of the bankrupt court. The ground on which the United States court will interfere at all in such cases, where its power is invoked, is that the interest of creditors requires its interference; but such is not the case here, for the mortgage rights of Olive, which are preserved, even in bankruptcy, and the equity of redemption constitute the whole subject-matter, and creditors can have no interest in the equity of redemption, for that can not go to creditors, being set apart as exempt property. Thus all idea of the propriety o-f any exercise of jurisdiction by the United States court, on any ground, in such case as this, is effectually excluded. It follows that no objection can exist to the bill on the score of want of jurisdiction over the person of Mr. Glazier, or the subject-matter of the controversy.</p> <p>The mortgage is an exhibit, and cannot be looked at on demurrer. The bill certainly describes the property specifically enough.</p> <p>The mortgage shows that the parties to it were “ both of the county of Attala and state of Mississippi.” The description of the property is “ all of lot number one hundred and eight and the south half of lot number one hundred and twenty-seven, the same upon which is the residence of said L. Glazier.”</p> <p>L. Glazier resided on the lots in the town of Kosciusko, which are designated by numbers. Id cerium est, quod potest cerium reddi. The description in the mortgage raises a latent ambiguity, explainable by parol testimony, and which is resolved into certainty, by showing that the residence of L. Glazier was upon lot 108 and the south half of lot 127, in the town of Kosciusko, Attala county, Mississippi. Indeed, all doubt and uncertainty are removed by the writing under seal, executed by Glazier subsequently, in which he describes the property as “ my house and lot in the town of Kosciusko, Attala county, Mississippi,” etc. Harmon v. Jones, 7 S. & M. Ill; McCaleb v. Pradat, 25 Miss. 257; Hanna v. Renfro et al. 32 ib. 125 ; Whitworth v. Harris, 40 ib. 483; McGuire v. Stevens, 42 ib. 725; Morton v. Jackson, 1 S. & M. 493.</p>

Mill-saps, J. The opinion of the court contains a full statament of the case. The following errors are assigned: 1.. The record does not show that the jury in the case was ever sworn to try the issue joined between the two parties. 2. The record does not show that there was a verdict rendered by the jury in favor of the defendant in error on the issues joined. 3. The judgment of the court below is not sustained by any verdict of the jury on the issue joined. 4.

Cunningham, J. The opinion fully states the case decided. The following are the errors assigned: 1. That the declaration shows no liability of said plaintiff in error, because, 1. The said plaintiff in error, as surety on the bond of said Cheatham, as sheriff, here sued on, was not liable in law for said Cheatham’s default as administrator of Clark’s estate; 2.

Hill, Chancellor. The opinions of Peyton, C. J., and Tarbell, J., contain a full statement of the case. 1. Held: that under a power in a will to sell land to pay legacies, the executor cannot sell to pay debts. Harman v. Spear, 2 Dali. 291; 1 Teates, 553. See also 1 Rawle, 377, and Hite v. Taylor, 3 A. K. Marsh. 353. Nor can a discretionary power be exercised after its object has ceased. Slocum v. Slocum, 4 Edw. Ch. 613.

<p>Appeal from the chancery court of Washington county. Harmon, Chancellor.</p> <p>. 1. The decree against appellant, holding him responsible for the loss of property which had come into his hands under the writ of sequestration, without giving him a hearing, and without notice, is void. Vance v. Connell, Walk. 254; Coleman v, Sanders, 5 How. (Miss.) 287;' Demoss v. Camp, ib. 516; Collins v. Terrall, 2 S. & M. 383; Garrin v. Hamblin, 11 ib. 219 ; Coleman v. Miss. & Ala. R. It. Co. 5 How. (Miss.) 419; Lewis v. Garrett, ib. 434.</p> <p>2.The party aggrieved is entitled, independently of any statutory relief, to recover only to the extent of his actual injury. Sedg. on Dam. 506-520 ; State v. Lawrence, 64 N. C. 483; Haekett v. Green, 32 Ga. 512;-Commonwealth v. Van Dyke, 57 Penn. St. 34.</p>

Brown, J. The opinion of the court presents all the facts of the case. When a discretion is left to an inferior tribunal, the writ of mandamus can only compel it to act. It can not control the discretion. Rev. Code of 1871, § 1871; Swan v. Gray, 44 Miss. 393.

Brown, J. The opinion of the court fully states the facts of the case. Contended, the claim sought to he enforced by plaintiff in error, being for official services rendered the the state in her civil service, is a valid and subsisting debt that the state is bound to pay. The services rendered were in the interest of peace and good order; and the law, by virtue of which they were performed, was not inconsistent with the constitution of the United States. Rev. Code of 1857.

Cabaniss, Chancellor. The following are the errors assigned: 1. The court below erred in decreeing that the appellant should issue bonds in lieu of those alleged to be lost or destroyed. 2. The proof does not establish the fact of loss or destruction. 3.' The bond taken by the court below for indemnity is not sufficient in amount.

<p>Appeal from the Chancery court of Oktibbeha county. Pollard, Chancellor.</p> <p>The opinion states the case sufficiently.</p>

Orr, J. The opinion of the court contains a sufficient statement of the case. The following is the assignment of errors: 1. The court erred in giving the third and eighth instructions asked by the defendant. 2. The court erred in admitting the testimony of the defendant in this case, the same being inadmissible under article 190, p. 510, of the Revised Code of 1857. 3. The motion for a new trial was improperly overruled. 1.

Eisher, J. A sufficient statement of the case is given in the opinion of the court. The following are the errors assigned: 1. The court erred in sustaining plaintiff’s demurrer to defendant’s first plea. 2. The court erred in sustaining plaintiff’s demurrer to defendant’s second plea. 3. The court erred in giving judgment for plaintiff. 1.

Orr, J. A statement of the case appears in the opinion of the court. I. An attorney-at-law must be regularly employed before he is authorized to appear in a cause, and must produce his power or authority when disputed by the adverse party. 4 How. (Miss.) 333; 27 Miss. 567; Ex parte Gillespie, 3 Yerg. 325; the State v. Hayes, 23 Mo. 293; Douglass v. the State, 6 Yerg. 528, 529; 5 ib. 361; 2 Wash. C. C. 429.

<p>Appeal from the chancery court of Lowndes county. Lyon, Chancellor.</p> <p>The opinion of the court contains a sufficient statement of the case.</p> <p>1. The causes of demurrer are apparent upon the face of the bill. The bill does not allege any fraud in regard to the cancellation of the deed of trust, and the evidence of indebtedness thereby secured; and, of course, without such allegation, it will be presumed that the same was legally cancelled. Story Eq. PL, §§ 257, 260. It follows, therefore, that the complainants have suffered no wrong which has not been remedied. Pamphlet Acts of 1859, p. 415; Heard v. Beard, 40 Miss. 798; Summers et al. v. Boos, 42 ib. 749.</p> <p>2. The bill alleges a sale by the trustee, and a purchase of the property at the sale by the complainant, and a' bill of sale duly executed to the purchaser, but fails to show any legal hindrance to a full and complete enjoyment of the property thereby. If the complainants have suffered any injury, or been deprived of any right in this respect, the bill fails to show it. It will, therefore, be presumed that complainants have not suffered beyond the allegations of the bill. Story Eq. PL, §§ 257, 260. The bill does aver an ownership of the land in Mrs. Watkins, and a purchase of the buildings at a trustee’s sale by the complainants. If the buildings were erected on the land without the consent of Mrs. Watkins, they belong to her, for .a severance of the right to the tenements from the ownership of the soil cannot arise from implication of law, but must be by contract, and with the consent of the owner of the soil. Stillman v. Hamer, 7 How. (Miss.) 451; 8 S. & M. 451; 2 Kent’s Com. 345. But if the complainants say that Mrs. Watkins did consent to sell the buildings, then the right to move them is a necessary incident to such consent. Wells v. Bannister, 4 Mass. 515; Stillman v. Hamer, 7 How. (Miss.) 743; Osgood v. Howard, 6 Greenl. 404; Russell v. Richards, 1 Fairf. 429..</p> <p>3. If complainants have suffered any wrong at all, they have an ample remedy at law. Rev. Code of 1857, p. 349, art. 3. The remedy by unlawful detainer applies to all cases where the possession of lands and tenements is sought as between landlord and tenant, vendor and vendee, and those claiming under them. 23 Miss. 106-121; 3 Mon. (Ky.) 150 ; 4 Rand. 468 ; Walk. 265; 10 S. & M. 446. If there be a remedy at law, a party cannot seek the intervention of a court of equity. 36 Miss. 19; 43 ib. 728,752; Story Eq. PI. 473. Butif complainants say their title is involved, then their remedy is by an action of ejectment. Rev. Code of 1857, p. 387; 6 S. & M. 111. If they claim that they neither seek the possession of tenements, nor claim that the title is involved, but aver a wrongful conversion of the property by appellants, then trover will be the remedy. 7 How. (Miss.) 423. If they merely seek discovery, their bill is demurrable, for it prays for a sale as well as for discovery. Even if the facts would entitle them to discovery, they would not be entitled to the relief prayed for. Story Eq. PL, § 476.</p> <p>4. The bill is multifarious. There are two distinct and different demands against two different persons, who are in nowise connected by the bill, and are improperly joined in the same record.. Story Eq. PL 271-278, and cases cited in notes; Saxton v. Davis, 18 Yes. 72.</p> <p>5. The bill alleges a legal right to the possession of the property sought to be subjected to the secret lien of the complainants, but avers that possession is not in the complainant, nor has it ever been, and yet the bill fails to charge privity or notice on the defendants, but still seeks to collect rents, etc. The bill prays that an account be taken, without charging any facts to enable a court of equity to interfere or assist in a settlement. It does not appear that complainants are entitled to the rents and profits. Mrs. Watkins is entitled to the rents and profits, use, etc., until the foreclosure of the deed of trust. 1 S. & M. Ch. 404; 4 S. & M. 300; 23 Miss. 316; 36 ib. 39; 43 ib. 523; Story Eq. Jur, §§ 105, 106; 5 Conn. 135; 3 Johns. Ch. 135.</p> <p>The rents and profits cannot be collected prior to an order of sequestration. The mortgagor in possession is entitled to the same. 4 Rand. 476 ; 2 Gratt. 291. Since no notice of complainants’ claim is averred in the bill, it must be presumed that defendants had no notice. Story Eq. PL, §§ 257, 260; 1 S. & M. Ch. 539. This sale being of tenements, the deed from the trustee should have been recorded, else it is void as to purchasers without notice. Rev. Code of 1857, p. 309, art. 19; 1 S. & M. 48, 112; Freem. Ch. 85; 6 How. (Miss.) 382, 389. Constructive notice must be shown. 1 S. & M. 351; 6 Munf. 42, 351, 354; 5 ib. 257; 2 ib. 314; 6 Leigh. 576, 580 ; 5 Cal. 537; 1 Wash. (Ya.) 336.</p> <p>A purchaser with notice is postponed, because it would be a fraud; but, in order to fix such notice, the proof must be clear. Story Eq. PL, §§ 262, 263; 6 Munf. 42. An account is asked to be taken. Before that prayer can be granted, the complainant must elect between the rents and the profits; she cannot have both. 33 Miss. 95.</p> <p>1. The separate demurrer of Martha A. Watkins, and the joint demurrer of C. L. and A. R. Porter, is to the whole bill of complaint, and yet only reaches to or answers particular allegations thereof, and leaves the material allegations of the bill unanswered. If the defendant demurs to the whole bill, and still his demurrer applies to only a part, the demurrer will be overruled. Marye v. Dyche et al. 42 Miss. 347; Story Eq. PL, §§ 400, 443; Mitf. Eq. PL 123, 252, 253 ; 5 Johns. Ch. 184; Todd v. Gee, 17 Ves. 280; Graves v. White, 27 Miss. 419, 423; Loube Eq. 255.</p> <p>2. When a bill, as in the present case, charges collusion and fraud, a demurrer to the whole bill will be overruled. Such allegation would give the court jurisdiction of the cause, and it must be answered otherwise than by demurrer. Carter v. Lóngwood, 4 Ohio, 836; Harrison v. Field, 41 Miss. 712. It is not sufficient to deny fraud generally, but every circumstance from which fraud may be inferred must be negatived. Gray v. Regan, 213 Miss. 304. The demurrer can not be sustained; for if there is one good cause alleged in the bill, the demurrer to the whole bill will be overruled. Bleeker et ux v. Bingham, 3 Paige, 246, 256; Monton v. Grenada, S S. & M. 773, 778; Pheasants v. Glass-cock, 1 S. & M. Ch. 17, 23, 24; Vauck v. Smith, 5 Paige, 137, 160, 161.</p>

Cabaniss, Chancellor. The opinion of the court contains a sufficient statement of the case. 1. The assignors of the special lien, Emma J. Cobb and Joseph T. Cobb, are improperly joined as complainants with W. H. Edrington, the assignee, in the bill. If the note has been properly transferred, and the lien passed to the assignee, then Cobb and wife have no interest. If otherwise, the lien did not pass, and the assignee acquired no interest. 2.

Whitfield, Chancellor. The opinion of the court contains a sufficient statement of the case. 1. The second plea was improperly filed, and should have been stricken from the files. Every defendant has the right to plead, answer or demur; and he may do all at once, when each is applied only to a certain specific part, and covered by the other.

Niles, J. Plaintiff in error was indicted and convicted of rape upon Gus. O’Bannon, a child ten years old. At the trial, Caroline O’Bannon, mother of the child upon whom the crime was alleged to have been committed, testified for the prosecution, that upon discovering he lowter limbs of ..her daughter covered with blood, asked what she had been doing ? She replied: “ Nothing.” Witness then whipped her severely.

Stafford, Chancellor. The bill in this case was filed in the chancery court of Tunica county, to confirm a tax title, and recites that on the 17th day of May, 1869, sec. 41, town. 4, range 12 west, was struck off to and purchased by W. H. Vasser, levee commissioner, to liquidate outsanding liabilities incurred for levee purposes prior to the 1st day of January, 1862.

Boone, J. The opinion of the court contains a sufficient statement of the case. The indictment should have been quashed. The omission in an indictment for a felony of the word “ feloniously ” is a fatal defect. Fowler v. the State, 41 Miss. 570. There are no proper averments to falsify the matter wherein perjury is assigned, as required by the Rev. Code of 1857, p. 607, art. 211, under which the indictment was found. Archb. Cr. PL and Ev. (10 Lond. ed.) 571; 2 Bish. Cr.

Cothran, J. Contended that the judgment by default was erroneous, because of the insufficiency of the service of process on the defendant in the court below. 41 Miss. 553, 554.

<p>Appeal from the chancery court of Tunica county. Harmon, Chancellor.</p> <p>The opinion of the court states the case.</p>

<p>Error to the chancery court of Leflore county. Hooker, Chancellor.</p> <p>The opinion of the court contains a sufficient statement of the case.</p> <p>The following are the errors assigned:</p> <p>1. That the plaintiff in error, Edward H. Wilson, was not properly in court when the decree pro confesso and final decree were rendered.</p> <p>■ 2. That the clerk did not-make any report in writing to said court, that he had mailed a copy of publication to any of the non-resident defendants.</p> <p>3. That the record does not show legal notice, of the pendency of this suit to the plaintiffs in error.</p> <p>Insisted that, for the errors assigned, the decree of the court below should be reversed, citing Foster v. Simmons, 40 Miss. 586 ; Bacon et ux v. Bevan, 44 ib. 293; Steen v. Steen, 25 ib. 514; 42 ib. 210.</p> <p>Contended, that, under the circumstances, it must be presumed that the plaintiffs in error had due notice of all the proceedings, citing Monk v. Horne, 39 Miss. 103; Dogan et al. v. Brown, 44 Miss. 235, 452; Pounds v. Gartman, 29 Miss. 133; 2 S. & M. 535; 1 How. (Miss.) 163.</p>

Hooker, Chancellor. The opinion of the court sufficiently states the case. The following errors are assigned: 1. The court erred in rendering the final decree on the state of pleadings and proof in the cause. 2. It was error to reserve $2,000 of the purchase money to meet the alleged incumbrances. 3. There is no proof to sustain the final decree or to sustain the report of the commissioner. 4.

Pollard, Chancellor. The opinion of the court contains a sufficient statement of the case. In order to establish a resulting trust, the payment of the money must precede the purchase. 13 S. & M. 53; 3 Rand. 263; 5 Mumf. 314; 10 Pet. 177; Story Eq. PI. 214; 6 Cow. 726 ; 2 Johns. Ch. 409; 3 Paige, 390; 1 J. J. Marsh, 3; 1 Johns. Ch. 1.

Boone, J. The opinion of the court contains a statement of the case. 1. Where a plaintiff declares against parties as qualified executors, he cannot, in his replication, abandon this ground of liability and aver that they are administeíed de son tort. 32 Miss. 359. The plaintiff must not depart from, but must sustain and fortify the case made in his declaration. 40 ib. 332, 339. 2.

<p>Error to the circuit court of Hinds county, 2d district. Brown, J.</p> <p>The opinion contains a sufficient statement of the case.</p> <p>Contended, that this court must reverse the judgment and pronounce such judgment on the verdict as should have been done in the court below, eiting Code of 1871, §§ 431, 648 ; Adams v. Guice, 30 Miss. 397, 408. Counsel discussed at length other questions which are not decided by the court.</p> <p>Insisted that a writ of error will not lie to the judgment of the circuit court granting a new trial, and that this case is prematurely brought here and should be dismissed.</p>

Smiley, J. The opinion of the court contains a statement of the case, Insisted that the indictment should have been quashed. In order to give the circuit court of Pike county jurisdiction to try the accused, the indictment must charge the offense to have been committed in that county. An indictment for larceny charging that the property was stolen in Amite county and carried into Pike county, is insufficient. Citing Code of 1871, § 2755; Watson v. the State, 36 Miss. 609.

Simmons, Chancellor. Insisted that the certificate of acknowledgment by the wife is insufficient; and for that.reason the deed is not binding on her, or the property sought to be conveyed. Warren v. Brown, 25 Miss. 66; Garrison v. Eisher, 26 ib. 352; Griffin v. Sheffield, 38 ib. 359, 361; Bond. Inst. 42, § 7.

Whitfield, Chancellor. The opinion of the court contains a sufficient statement of the case. Insisted that in the fraudulent attempt of Mary and R. J. Tucker to incumber the lands mentioned in the hill, they could not incumber even their own interest. If the injunction had been dissolved as to their interest, the trustee- could not have sold such interest only, but would have been governed by the terms of his deed, and sold all or none.

<p>Appeal from the chancery court of Madison county. Young, Chancellor.</p> <p>. The opinion of the court contains a statement of the case.</p> <p>Woodman was guilty of laches of which he cannot take advantage; McRaney v. Coulter, 39 Miss. 390. He had adopted all the remedies afforded him by law, and it was beyond the power of the legislature to grant him any relief. See Story Eq. PI. 407, 408; Potter’s Dwarris, 334, 374; 4 Cond. (U. S.) 414; 40 Miss. 29; 1 How. (U. S.) 311, 316-320; 2 ib. 608, 612-614; 12 Wheat. 256, 327; 8 ib. 84; 4 ib. 197; 3 Dal. 386; 1 Cond. (U. S.) 179-182; 11 Pet. 420.</p> <p>1. That after an appeal taken, a bill of review will not be entertained. 1 Mitf. Eq. PI. 88. The overruling of the exceptions was but an interlocutory order, and on such order a bill of review will not lie. Banks v. Anderson, 2 Hen. & Munf. 20. It lies only to a final decree. Elzy v. Lane, 2 ib. 589.</p> <p>2. When the period prescribed by the statute of limitations has once run, so as to cut off the remedy which one might have had for the recovery of property in the possession of another, the title to the property is regarded in law as vested in the possessor, and a subsequent repeal of the limitation could not have a retroactive effect so as to disturb his right. Cooley Const. Lim. (2d ed.) 365, 366; Davis v. Minor, 1 How. (Miss.) 183; L effing well v. Warren, 2 Black (U. S.), 605; Burch v. Newberry, 10 Seld. 393, et seq.; Bagg’s Appeal, 43 Penn. St. 512; Wright v. Oakley, 5 Mete. 410.</p>

Brown, J. Contended, that, although it might be true that a writ of error will not lie from the judgment of the circuit court granting a new trial, defendant in error has waived all benefit which he could have derived from this error, by failing to dismiss the writ of error herein, citing Terry v. Robbins, 5 S. & M. 91; Rev. Code of 1871, § 648; Erigel v. White, 27 Miss. 202.

Young, Chancellor. The facts are stated in the opinion of 'the court. 1. The chancery court erred in overruling the motion for a new trial and in refusing to set aside the order dissolving the injunction and the decree dismissing the bill of complaint. 2. The court erred in admitting evidence for the defendant against the motion of complainant.

Cabaniss, Chancellor. Contended, that, although a defendant in chancery may demur to certain portions of a bill of complaint, and answer the remainder, if the same parts are both demurred to answered, the answer ipso facto waives or overrules the demurrer. That part of the bill which sought the recovery of rent was fully and particularly answered, a,nd also included in the demurrer, and the decree of the court to that extent is erroneous. Citing Story Eq.

<p>Appeal from the chancery court of Leflore county. Hooker, Chancellor.</p> <p>The opinion states the case decided.</p> <p>The power of taxation is inherent in the people. They may be circumscribed by the constitution, it is true; but if this is not done, except in isolated cases and for certain purposes, it exists in all its rigor. In so far as it is retained by the people, it can be exercised by the legislature at its discretion; and in respect to the levee laws, the power of taxation was retained by the people. Cooley Const. Lim. 499, 698.</p> <p>If this position can be successfully assailed, there is another reason against the alleged unconstitutionality of the act of 1867. Was that act a contract between the state, or people of the district, and the holders of the scrip of the general hoard ? Had the state, or people of the district, a right to make such a contract ? If these two propositions are affirmatively established, have such rights vested in the holders of the bonds issued under the act of 1867, as to prevent the application of the new constitutional provision to the law ?</p> <p>A contract is “ an agreement, upon a sufficient consideration, to do or not to do a particular thing.” Under the prohibitory section of the constitution of the United States heretofore referred to, the supreme court say, it is “ an agreement in which a party undertakes to do, or nor to do, a particular thing.” Sturges v. Crowninshield, 4 Wheat. 197. The constitution uses the general term “ contract,” without distinguishing between those Avhich are executory and those which are executed, and must be construed to comprehend the latter as well as the former. Fletcher v. Peck, 6 Cranch, 129. “ The provision of the constitution never has been understood to embrace other contracts than those which respect property of some object or value, and confers rights which may be asserted in a court of justice.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 629. Tested by these definitions, the act of 1867 is to all intents and purposes a contract. It was executory by its very nature. It was an agreement in which the state levied upon all the lands within the levee district, a specific tax annually for the payment of neAV bonds which might be delivered to the holders of the scrip, issued under the auspices of the general board of levee commissioners organized under the act of 1858.</p> <p>These bonds could only be issued to those scrip holders who would consent to release six years accumulated interest — to surrender their scrip to be cancelled — relinquish the enforcement of the security in their favor provided by the act of 1858, and accept bonds of the liquidating board in five installments for the old debt, with a reduction of their interest to five per centum per annum. Once accepted, the contract became completely executed. The old indebtedness of the general board of levee commissioners, secured by a tax on all the lands in the levee district, which amounted to about one dollar per acre, and which was a lien fixed beyond the power of the legislature to defeat - or repeal, was surrendered and cancelled, and the scrip holders held in lieu of it, bonds issued under the new law and secured by a tax thereby levied, which was to continue until these bonds were paid. The creditors of the old board of levee commissioners were thereafter in no position to assert their rights in a court of justice, under the act of 1858, and enforce the lien created in their favor, and, of course, looked, and could look alone to the act of 1867, as it was passed by the legislature for the payment of their bonds. They had given a good and valuable consideration for all the benefits tendered to them under the new law, and the tax levied by that act is what they got in novation or exchange. The obligation of the contract, then, consisted in the continuous levy and collection of this tax, and it is this which no state has a right to impair, either by the adoption of a constitution, or by legislative enactment. The legislature was the party contracting, the scrip holders the party contracted with, and the old debt to be liquidated in the mode pointed out in the act of 1867, the subject-matter of the contract.</p> <p>That the act of 1867 constituted a contract which the legislature had the power to make, is sustained by authority. Fletcher v. Peck, 6 Cranch, 129; Cooley Const. Lim. 284. And it was contract in its nature irrepealable. New Jersey v. Wilson, 7 Cranch, 165; Cooley Const. Lim. 281.</p> <p>While it may be true, as a general abstract proposition, that the legislature cannot pass an irrepealable law, for the reason that if allowed to do so, the very constitution itself might be altered; still, there is a modification of the principle by that provision of the constitution of the United States, which forbids the states from passing any laws impairing the obligation of contracts.</p> <p>The obligation of the contract between the state or the people of the district, and the holders of the liquidating bonds, is the law which binds the state to perform its agreement. That law, the act of 1867, must govern and control the contract in every shape in which it is intended to bear upon it, whether it affects its validity, construction or discharge. It forms part of the contract and must travel with it wherever the parties to it may be found. It consists in the power and efficacy of the law which applies to and enforces performance of the contract. Ogden v. Saunders, 12 Wheat. 214. And while it is true that the states may pass laws professing to act only on the remedy, yet when such laws even amount to a denial or obstruction of the rights accruing under previous laws, they become obnoxious to the prohibition of the constitution. Mc-Cracken v. Haywood, 2 How. 608; Gentley’s lessee v. Ewing, 3 ib, 707; Cooley’s Limitations, ch. ix. But no question of the kind can properly arise in this case. Certainly it cannot be said that the act of 1867 has been repealed, or affected by the constitutional provision referred to, or that the rights which had fully vested under that law can at all be tampered with by the state. To make such an assertion, as the case now stands, is to say that the supreme law of the land, announced by the supreme court of the United States, is impotent to protect a contract fairly entered into and supported by a valuable consideration. Miss. Soc. of A. and S. v. Musgrove, 44 Miss. 835; 10 How. (U. S.) 190; 15 ib. 304; 1 Wall. (U. S.) 175; 2 How. 21; 3 ib. 295, 327.</p> <p>Now, as to the construction of the law itself. While we are willing to admit that the current of authorities requires a rigid construction of the revenue laws, so as to protect the citizen, we insist that the plain and manifest intention of the legislature, to he gathered from the laws themselves, ought to govern the court in the construction of the laws. 13 Johns. 498; 5 Wheat. 76-94. There have never been in any of the states laws of a character similar to that of our levee laws. Almost invariably, revenue laws deal of formality in the assessment and levy of the tax and in its collection; and the power to sell is given only as a consequent upon a compliance with the conditions precedent required by law. Upon such statutes the courts have uniformly held that a failure of any one of the conditions will vitiate the sale. All the possible technical objections, which have defeated tax titles, have been obviated, and the only points which can be made against levee tax titles, are the payment of the tax or the unconstitutionality of the levee acts themselves. It is now too late to question the constitutionality of the levee laws. Alcorn v. Hamer, 38 Miss. 652; Cammack v. Williams, 27 ib. 209. There is left but one objection upon which to stand, and that is payment of the tax.</p> <p>That the deed was not filed in the proper office does not impair the title. The failure only operates as a favor to the appellee. Blackwell on Tax Titles, 445. It is too late for the appellee to complain that the sale was made two hundred yards from the court-house, especially as he must have known and acquiesced in the sale. He is estopped from impeaching the sale; nor can the mode in which it was made avail him here.</p> <p>From the allegations of the bill, it does not appear that more land was sold than was necessary, nor that the several parcels of land are not separately assessed. Such objections cannot, therefore, be well urged or maintained, especially when the tax, by law, is a lien upon the lands sold. Donahoe v. Richardson, 27 Mo. 420; Hayden v. Foster, 24 Miss. 631; Ives v. Jaynes, 7 Conn. 505; Crowell v. Goodwin, 3 Allen, 535; see also Smith & Montgomery v. Winston & Lawson, 2 How. (Miss.) 607; Doe, Ex’r v. Snyder, 3 ih. 66; Minor v. President, etc., Natchez, 4 S. & M. 602; Shelton v. Hamilton, 23 Miss. 496; Fraker v. Brown, 2 Blackf. 295; Isham v. Donner, 8 Conn. 282; Anderson v. Clark, 2 Swan. 156 ; McFee v. Harris, 25 Penn. St. 102; Jackson v. Caldwell, Cowen, 622; Goodveare v. Ince, Cro. Jac. 246; Yelv. 179, S. C.; see 2 Hill, 629; 4 Danakr. 98 ; B. Mon. 263.</p> <p>The mere failure of the tax collector to make the deed on the day of sale, and his deferring it until some time after, will not avoid the deed. Hill v. Kendall, 25 Yt. 528; Brooks v. Rooney, 11 Ga. 623.</p> <p>Contended, 1. That the sale for the tax imposed by the act of February 2, 1867, was void, because it was a specific tax on all the land in the district, without reference to condition, quality or value, and, therefore, in conflict Avith the 20th section of article 12 of the constitution of 1869, which requires equality and uniformity of taxation, and that all property taxes shall be in proportion to value; and, being in conflict with the constitution, and not within any saving or exception therein, nor of a nature to be irrepealable, it was superseded or annulled. 2. That the sale was not made in accordance Avith act of 1867, or the acts of Avhich that was amendatory, as to the place and manner of sale, nor was it made by a qualified officer. Citing, on the first proposition, Alcorn v. Hamer, 38 Miss. 652; Aberdeen v. Smith, 25 Miss. 458 ; 3 Kan. 199 ; 4 N. Y. 419 ; 2 Mich. 56; Gilman v. Sheboygan, 2 Black, 510; Yon Hoffman v. Quincy, 4 Wall. 535; on the second, Black-Av.ell on Tax Titles, 300, et seqib. 100-105; French v. Edwards, 3 Wall. 506.</p> <p>Upon the argument of a motion for a re-argument in the cause by appellant, • .</p> <p>Argued the case orally, and filed a written brief, submitting the following propositions:</p> <p>The fourth section of the act of 2d December, 1858, provides “ that each and every sheriff, charged under the direction of this act with the collection of the levee revenue, shall, on or before the first Monday in January, 1859, enter into bond, payable to the state of Mississippi, with two or more good and sufficient sureties, to be approved by the probate judge of the proper county, conditioned,” etc. The same section fixes the penalty of the bond for Sunflower county at $40,000, and provides that the failure to give the bond by the time stipulated shall vacate the office of sheriff, and the vacancy shall be filled according to law. The tax levied by that act was ten cents per acre on each and every acre of land within the district.</p> <p>The act of 1867 levies a tax of three cents per acre on the lands in Sunflower county, and the fourth section of that act provides for the execution of bonds annually, on or before the 1st day of January of each year next succeeding the levy of the tax, and declares that the act of 1858 and its amendments shall be made to apply and govern the execution of bonds as far as the same can be made to apply, and for the non-performance of the duties under the act, sheriffs shall be subject to like penalties as are provided in the act of 1858; but the act of 1867 does not declare that the office shall be vacated.</p> <p>The bond, in this case, is in the penalty of $15,000, and does not conform to the statute, but is amply sufficient to cover the whole tax of the county, now less than one-third what it was under the act of 1858. The act of the legislature, under which Leflore county was carved out of Sunflower, expressly makes all the officers of the county of Sunflower the officers of Leflore, and extends their bonds to that county. The only question that can possibly arise in this view of the case is, had the legislature the power to do this 1</p> <p>It was held in Cort v. "Wells, 2 Vt. 318, that the failure to give the proper bond would avoid the sale; but this case was expressly overruled by Spear v. Ditty, 8 ib. 419; see also Ives v. Lynn, 7 Conn. 505, and Hale v. Cushing, 2 Greenl. 218.</p> <p>But the levee commissioner is the only party who can can complain as to the sufficiency of the bond; if he be satisfied, the object of the law is subserved. All these objections we have expressly cured by section 317 of the Code of 1871, and the acts of the collector are thereby made valid and binding as lawful official acts. The acts of 1858 and 1867 both tax on the lands within a district described by metes and bounds; and within that district the lands of the appellee are located. The acts required the sales of delinquent lands to be made at the court-house doors of the several counties, and applies as well to counties in the district existing when the tax was levied, as to those within, the same district in part enacted afterward.</p> <p>It makes no difference that the deed was not filed on the day of sale. The commissioner’s title depended on the fact of the sale and purchase. Hill v. Kendall, 25 Yt. 528". And the failure to file the deeds simply extended the time for redemption, as allowed by law. Donohoe v. Richardson, 21 Mo. 421.</p> <p>■ 2. Can the appellee have the levee tax-deed canceled without paying or tendering his taxes ? By the express provision of the act of 1867, from and after the sale of lands for levee tax, all state and county taxes are suspended, and the commissioner is bound to collect them when the lands are sold by or redeemed from him. Act 1867, p. 246, § 13. So that the lien created by the act, in reference to the levee tax, is extended to all other taxes, and is made to secure them. By the very terms of the act itself, the appellee has the power at any time to pay his taxes and have the deed complained of canceled. He still has the privilege so to do; but, placing himself upon the irregularities complained of, he seeks to have the deed canceled and his lands exonerated from the payment of these “ debts,” due and chargeable upon the lands. If the sale has been irregular, the penalty of fifty per cent is not chargeable upon him. He still owes all the taxes and legal interest, and declines to pay them. He comes into a court of equity for relief, and in court should do, or offer to do, equity. He might even now pay his taxes, and the deed would be canceled at once. It is nothing but right and proper that he should pay his taxes; and he should offer to do equity before calling upon the court to do that which it was within his own power to do in the first instance. 1 Story Eq. Jur. 64, et seq., and cases cited. If the sale of the lands for non-payment of the taxes be void, then the tax is still due by the appellee, and is a lien upon his lands. The attempt to foreclose that statutory lien was irregular and ineffectual, but the lien still exists. And yet there is no mode pointed out by statute in which the lien may be enforced after the day of sale, and the tax collected. If the appellee be allowed now to have the tax-deed canceled, and for nothing held, the anomaly would be presented of a valid lien, past due and unpaid, absolutely destroyed by the irregular conduct of the tax collector.</p> <p>1. The question now is, whether the sheriff may lawfully collect the levee tax without having given the bond required, or giving any security whatever that the money collected shall go into the treasury of the levee fund. It is submitted that he cannot; that even if the statute did not expressly prohibit such collection and declare the office vacant, which it does upon a failure to give the bond, it would‘result necessarily that he should not be allowed to collect from the citizen, money which, in the absence of the security required by the statute, he might never pay into the treasury. Cort v. Wells, 2 Yt. 318. And the bond must not only be given, but it must be such an one as the statute requires, not only on account of the interest of the tax-payers in having their money appropriated rightly, but because the power to sell is statutory, and a strict compliance with the statute an essential pre-requisite to the power of sale. Isaacs v. Wiley, 12 Yt. 674; see also Spear v. Ditty, 8 ib. 419; Hale v. Cushing, 2 Greenl. 218; Parker v. Overman, 18 How. (U. S.) 137.</p> <p>2. The statute required the deed to be filed on the day of sale; if not so filed, the sale was void absolutely. Green v. Craft, 28 Miss. 70; see also Blackwell on Tax Titles, 300, et seq.</p>