the equity of the statute—if irregular, it was ratified by the deed of the go- vernor-that his title was a perfect, legal title, based on a strong equitable foundation, and could not be affected by the claim of the complainant, in which there is no equity. Brodie vs. Mosby, 313.
5. A sub-commissioner reported the measurement and estimates of the value of work done and furnished by M., a levee contractor, and the reports were confirmed by the Board of Swamp Land Commissioners. M. then applied to enter certain lands in part payment of the sum reported due him for levee work, and received from the Secretary of the Board a certificate that he had applied to enter the lands, and also a certificate of the balance due him after deducting the price of the lands. The Board afterwards, on ascertaining that the levee work was in sufficient, rejected the reports, and canceled the certificates: Held, that the re- ports of the sub-commissioner, their confirmation by the board, and the issu- ance of the application, certificate, etc., did not constitute a complete sale of the lands, so as to pass the matter beyond the control and revoking power of the commissioners-that they had the authority to cancel the certificates on ascer- taining the insufficiency of the levee work, of which they were the judges-that a sale by them was not complete until the lands were legally paid for, and a patent certificate issued. Walworth vs. Miles, 653.
6. The certificate issued by the Board of Swamp Land Commissioners, under Or- dinance No. 9, that a party had made application to purchase certain swamp lands and had presented accounts of levee work or scrip in payment thereof, was not a sale of the land-the certificate merely evidencing an application to purchase, which the commissioners might subsequently accept or reject. Gas ter's Hrs. vs. Gaines, 712.
7. Where a certificate of application to purchase swamp lands had been issued by the board of swamp land commissioners, the certificate of application cannot be made to supply the place of a certificate of purchase and become evidence of title, because the commissioners included the lands in the report made to the auditor under the 31st section of the act of 12th January, 1853, of lands sold and disposed of by them. Beckham vs. Worthen, 720. See, also, Chancery, 9.
1. The assessment and forfeiture of land for non-payment of taxes, situated in one county, by the officers of another county, were null and void, and the for- feiture conferred no title upon the state, and she could convey none: and so a bill in chancery for title to the land, both parties claiming under the same for- feiture, was properly dismissed. Tobey vs. Haggerty, 370.
2. A collector has no legal authority to receive payment of taxes, and execute a receipt therefor, before the assessment of the property. Cossart vs. Spence, 374. 3. A sale of land for taxes, after tender of payment by the owner, though the
TAXES AND TAX TITLES-CONTINUed.
land is assessed in the name of another person, does not divest the owner of his title. Kinsworthy vs. Austin, 375.
4. The land of a resident tax-payer not being subject to sale for non-payment of taxes, if sufficient personal property can be found by the collector whereon to make distress for the taxes, the recital in the collector's deed to the purchaser of a resident's land sold for non-payment of taxes, that the tax-payer failed to pay on demand, and "not knowing of any personal property" whereon to levy, he proceeded to levy on, and advertise the land for sale, is not a direct and satis- factory mode of reciting that sufficient personal property of the delinquent could not be found. But, in this case, if the recital is sufficient to put upon the tax-payer the burthen of proving that he had sufficient personal property, that fact is fully proved, and the decree canceling the tax deed affirmed. Jones vs. *McLain, 429.
5. Where a party holds lands under a tax sale, the matter of the sixth and & venth sections of chapter 106, Gould's Digest, that is, the filing of an affidavit of the tender of the taxes and interest, etc., and of the value of the improvements made, is as good a defence to an action of ejectment as to a bill in chancery (Craig vs. Flanagin, 21 Ark., 319,) and may be presented, either by motion or by plea in abatement. Pope et al. vs. Macon et al., 644.
See Practice in Supreme Court, 20.
1. The owner of slaves is responsible for the tresspass of his slaves, in cutting down and destroying the growing crop of another, and in throwing down and carrying away the rails with which his lands are fenced, though such tresspass be committed in his absence, and by the order of his overseer. Graham vs, Rourk, 19.
2. The owner of property, levied upon under an execution against another per- son, and who had claimed it as his own, is not estopped, by bidding for the pro- perty at the sale, from asserting his title in an action of tresspass against the sheriff. Crump vs. Starke, 131.
3. That a jury on the trial of the right of property, has failed to find for the claimant, is no bar to an action of tresspass for selling his property. Ib.
See Practice in Circuit Court, 1.
1. Where property is purchased for the son, with his money, and upon an agree ment that the deed is to be made to him, and the deed is executed to the father by mistake, he holds the legal title in trust for his son, and his conveyance of the property to the son cannot be held as fraudulent. Fairhurst vs. Lewis, 435. 2. The deed of trust executed by the Real Estate Bank having expressly and plainly fixed the compensation to be allowed the trustees for their services in the execution of the trust, they clearly had no power, by an order passed by themselves, to increase it; and though it was within the power of the Chan- cery Court to allow additional compensation, if they had shown a faithful and efficient performance of the duties imposed by the deed, and that the compen- sation was inadequate, no additional compensation should be allowed where they have not faithfully performed their duties. Biscoe vs. State, 592,
3. As upon the death of a trustee he ceases to be such, and as to him the trust is no longer continued, his indebtedness to the trust becomes a demand against his estate, to be authenticated, allowed, classed and paid out of the assets of his estate, as other demands. Hill vs. State, 604.
4. A trustee is not entitled to compensation for his trouble and attention, where he accepts the trust coupled with an interest, and the deed expressly provides for the payment of the expenses of the trust, but is silent as to compensation. Imboden vs. Hunter, 622.
1. Upon a non-suit, in an action of unlawful detainer, the defendant has no right to have a jury called to assess his damages-his remedy is on the plaintiff's bond. Strong vs. Whatley, 76.
1. If a vendee of real estate resist the payment of the purchase money upon defects of title in the vendor, he must, by allegation and proof, make and sus- tain specific charges, showing exactly where the deficiency is, who claims title to the land, and that the claim is good-a general allegation that the vendor had no title being insufficient. Walker vs. Towns. 147.
2. If, at the time of the purchase, a vendee has knowledge of a defect of title he cannot set up such defect to resist the payment of the purchase money. Ib. 3. It is a good defence to an action for the purchase money, that the vendor had no legal title to the land, and it may be made by general demurrer. (Lewis vs. Davis, 21 Ark., 235,) Kelly vs. Dooling, 582.
4. The stipulation, on a sale of land, to make title, and the undertaking to pay the purchase money, stand on the same legal footing; and where the one is a
VENDOR AND VENDEE-CONTINUED.
condition precedent to the other, and the time but not the place of performance is fixed, the vendor must seek the vendee, if within the State; but if he be ab- sent, the vendor may proceed by attachment for the purchase money without first offering to make title. Thomas vs. Lanier, 639.
1. The case of Shall vs. Biscoe, (18 Ark. 162;) that where the vendor has made a deed of land sold, the lien of the vendor does not pass to an assignee by assignment of the notes given for the purchase money of the land, approved. Williams vs. Christian, 255.
2. Where the vendor of land gives a bond for title on payment of the purchase money, the lien of the vendor does not pass to an assignee by assignment of the notes given for the purchase money of the land, where such assignment is without recourse upon the assignor--the acceptance of the notes so assigned seems to imply a reliance upon the personal responsibility of the maker. Ib.
1. Cases may occur in which a crime may be committed on the boundary line between two counties; and it would be a narrow construction of the bill of rights, in relation to venue, to hold that the offender would not be subject to indictment at all. State vs. Rhoda, 156.
2. Where the boundary line between two counties has been surveyed and mark- ed, and the proof in a criminal prosecution fails to establish in which county the offence was committed, no question is presented upon the provision of the statute in reference to uncertainty of boundaries: and the venue as charged, not been proven, no cause is shown for granting the state a new trial. Ib.
1. It is not necessary that a slave should be afflicted with an incurable disease to con- stitute a breach of the warranty of soundness. Thompson vs. Bertrand 781. 2. An express warranty does not cover a defect that is so apparent as to be obvious upon careless inspection; but if the purchaser of a slave might have discovered defects by having the slave stripped, he is not bound to do so, he may rely upon the warranty. Ib.
3. In an action for breach of the warranty of a slave, the declaration alleged that the slave was unsound, and diseased in his knees; Held, that the declaration cannot be construed as containing a specification of unsoundness only in the knees. Ib.
1. Where a testator directed that his estate should be divided amongst his child-
WILLS AND TESTAMENTS-CONTINUED.
ren when the youngest child should become of age, making provision for the support and education of his children, in the meantime, and for the manage ment of his property, none of which was carried out, a court of chancery can- not construe the will to mean that such postponement of the division should be dependent upon the other provisions of the will being complied with, and de- cree a division of the property at once-such a construction being manifestly opposed to the plainly expressed intention of the testator. Hawkins vs. Greene, 89.
2. A testator devised the remainder of his estate, real and personal, to his wife for life, and that the balance of his slaves-after giving a temporary use of a portion of them-"shall remain upon the plantation upon which I now reside, during the lifetime of my wife, Mary Walker; or, in the event of her death, then to remain upon said plantation until my son, John M. Walker, shall arrive at the age of twenty-one years, at which period they, with the balance of my entire estate, to descend in equal shares to the said John M. Walker, and to my daughter, Mary Walker, and her bodily heirs, and in the event of the death of the said John M. Walker, without bodily heirs, his entire interest in my said estate, to descend to the said Mary Walker and her bodily heirs: Held, that the legacy to John M. and Mary Walker vested at the death of the testator, with a postponement of the possession until the time fixed by the will for a division of the property between them; and that the devise over, in the event of the death of John M., without bodily heirs, is void, as being too remote-the words mean- ing, in a technical, legal sense, an indefinite failure of issue. Watkins vs Quarles, 179.
3. Devise of property to children when they arrive at age or marry-that the father and mother of the testator shall have the use of it, or so much thereof as they want during their natural lives-that the father and mother shall take care of the children until they are grown or marry, when the children shall take care of them-that the proceeds of the property be applied to the payment of taxes, maintenance of the father and mother, education, etc., of the children, charged with a contingent legacy to a sister: Held, that the property devised to the children vested in them on the death of the testator, but to be divided at a future time; that the mother, who was the only survivor of the family, was entitled to an ample maintenance out of the property, to the extent of the whole of it, if necessary, but had not a life estate in it under the will, nor such an interest as would support replevin for the personal property. Scott vs. Logan, 351.
4. The decision in Moody vs. Walker, 3 Ark. 187, that a limitation of property after an indefinite failure of issue is void; and that to make an executory devise good to a second legatee, the gift to the first taker must be restricted to a life interest, or must be something less than an absolute gift re-affirmed. Slaugh- ter vs. Slaughter, 356.
5. A subsequent limitation of personal property, that had been given to, and ab.
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