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6. ESTOPPAL:

Youngblood v. Cunningham et al.

It appears that, at the time the execution was issued, Joseph A. Wilson was sheriff of Yell county; the writ was placed in his hands, and he advertised the lands for sale, and made the return upon the execution. The sale was made at his request, and in his absence, by James McCarroll, his deputy.

It was proved that Wilson made a written appointment of McCarroll as his deputy, on the first of January, 1873; and he served as such for eighteen months, including the time of the sale in question. He was also jailer. He took the oath of office before the county clerk, and was generally known throughout the county as deputy sheriff, and recognized as such by the clerks, and by the courts. There was no record evidence of the approval of his appointment by the Circuit Court, or the Judge thereof in vacation, or the board of supervisors, as provided by Statute. Gantt's Dig., secs. 5597-5000. Appellees had no knowledge that his appointment had not been so approved; he was acting as deputy, and they believed him to be such.

The deputy sheriff, on the facts shown, was certainly an officer de facto.

V. Moreover, appellant procured and induced appellees Execu- to attend the sale and purchase the lands, and he was, or induc- therefore, estopped from setting up irregularities in the

tion debt

ing one to

buy his

irregular

land at process, advertisement, or sale, to defeat their title. They sale. purchased them on his importunity, agreeing, verbally, that he might redeem them within twelve months. He made no offers to redeem them within that time, but, after a lapse of about three years, and after appellees had made improvements upon the lands of about the value of eleven hundred dollars, appellant brought this bill to set aside the sale, for alleged irregularities in the special execution, advertisement, and sale, making no offer to refund to appellees the $925 which they bid and paid for the lands.

State v. Davis et al.

The bill makes sweeping allegations of fraud on the part of appellees, and of combination between them and the sheriff, to cheat and wrong appellant in the sale of the lands; all of which allegations were denied in the answer, and not sustained by the evidence.

7. ACKNO

DEED.

after expi

his term.

VI. It is further objected in the bill, that the sheriff executed and acknowleged a deed to appellees after his term WLEDGING of office had expired. But if the deed so executed be By officer invalid, it does not invalidate the sale and purchase of the nation of lands by appellees. They may apply to the court out of which the special execution issued, to confirm the sale, if it has not been done, and order the sheriff in office to make a deed.

Decree affirmed.

STATE V. DAVIS ET AL.

1. EVIDENCE: Of accomplice in misdemeanors.

The Statute requiring corroboration of an accomplice's testimony
before conviction, applies to misdemeanors as well as felonies, and
a party cannot be convicted of gaming upon the uncorroborated tes-
timony of a participant in the game.

APPEAL from Conway Circuit Court.
Hon. W. D. JACOWAY, Circuit Judge.

C. B. Moore, Attorney-General, for appellant.

ors.

Sec. 1932, Gantt's Dig., does not apply to misdemeanThe offense was complete without the assistance of the witness, and the mere fact that he was engaged in the game, would not make him an accomplice. There can be no accessories in misdemeanors, and to apply the strict definition of an accomplice in cases of gaming, would make

State v. Davis et al.

every bystander who does nothing to prevent or stop the game, a principal. The Statute would thus be nugatory.

STATEMENT.

ENGLISH, C. J. The indictment in this case was for gaming, and charged that J. P. Davis, Tom. Duncan, and King Duncan, on the tenth day of August, 1881, in the county of Conway, unlawfully did bet one quart of whisky, of the value of one dollar, on a certain game of cards, commonly called seven-up, against the peace, etc. The defendants pleaded not guilty, and the case was submitted to a jury. R. M. Morgan, a witness for the State, testified that on the tenth day of August, 1881, at Springfield, in Conway county, the defendants, J. P. Davis, Tom Duncan and King Duncan, and he, the witness, played a game of cards called seven-up, for one quart of whisky, of the value of one dollar. That all of them, witness and defendants, engaged in the playing and betting. Here the State closed, and defendants introduced no evidence. Thereupon, on motion of defendants, and against the objection of the State, the court read as an instruction to the jury, Section 1932 of Gantt's Digest, and further instructed the jury: That as the witness, Morgan, was engaged in the playing and betting with defendants at the same game of cards with which defendants were charged, he was an accomplice, and they could not therefore convict the defendants on his uncorroborated testimony," and directed them to return a verdict of not guilty, which they did, and judgment was entered discharging defendants.

The State was refused a new trial, took a bill of exceptions and appealed.

OPINION.

Section 1932, Gantt's Digest, provides that: "A con

State v. Davis et al.

viction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows that the offense was committed, and the circumstances thereof."

It is submitted by the Attorney-General, that this section applies to felonies only, and not to misdemeanors; but its expressions are general, and there is nothing in its context to indicate that it was the intention of the Legislature to limit its application to felonies.

At common law, the practice of requiring confirmation of an accomplice, applied to misdemeanors as well as felonies. Roscoe Cr. Ev. 156; 1 Phillips Ev. 112; 2 Russell on Cr. 967.

Regina v. Farler, 8 Car. & Payne, 106, is cited by ROSCOE, PHILLIPS and RUSSELL, to show that it applied in misdemeanors.

Before the Statute it was matter of practice; but the Statute makes it absolute law, that the testimony of an accomplice must be corroborated to warrant a conviction, and the law applies to misdemeanors as well as felonies.

Affirmed.

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Littell v. Grady et al.

LITTELL V. GRADY ET AL.

Object of the Statute.

1. FORCIBLE ENTRY AND DETAINER:
The object of the remedy of forcible entry and detainer, is not to
determine rights of property, but to maintain the peace, and prevent
persons, with or without title, from assuming to right themselves by
force.

2. MORTGAGES:

Power of sale must be executed fairly and impartially.

Less than actual fraud in the sale of mortgaged property, will justify a Court of Chancery in setting aside the sale. Equity watches with much jealousy deeds of trust and mortgages containing a power of sale in pais; and if the power be executed with partiality to the creditor, and with unfairness and oppression towards the mortgagor, and to his injury, it will set aside the sale.

3. PARTIES: Defendants in bill to vacate mortgage sale:

In a mortgagor's bill to set aside a sale of the mortgaged property, for unfairness and oppression in the sale, the mortgage creditor, as well as the purchaser, should be made a defendant.

4. TRUSTS: Setting aside trust sale. Return of purchase money. Subrogation. Improvements..

If a trustee's sale of the trust property be unfairly and oppressively made, and the purchaser knowingly aid in the oppression, the owner need not return or offer to return to him the purchase money in order to set aside the sale. If the sale be set aside, the purchaser may be subrogated to the lien of the creditor. Nor can the purchaser claim the value of his improvements on land so purchased, unless the owner claims rents from him. He may then be allowed for his improvements pro tanto.

APPEAL from St. Francis Circuit Court.
Hon. J. N. CYPERT, Circuit Judge.

Tappan & Hornor, for appellant.

Sales under powers in deeds of trust, etc., are a harsh mode of foreclosure. They are scrutinized with great care,

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