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SWAMP LANDS-CONTINUED.

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.

TAXES AND TAX TITLES.

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.

TENANTS IN COMMON.

See Practice in Supreme Court, 20.

TRESPASS.

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, also, Execution, 6.

TRIAL DE NOVO.

See Practice in Circuit Court, 1.

TRUST AND TRUSTEES.

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.

See, also, Chancery, 20.

UNLAWFUL DETAINER.

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.

VENDOR AND VENDEE.

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.

VENDOR'S LIEN.

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.

VENUE.

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.

WARRANTY.

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.

WILLS AND TESTAMENTS.

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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