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not, and the court instructed them that such ceipt of which is hereby acknowledged, have was a question of fact, which they alone granted. bargained, and sold, and by these should decide, and kept them together until presents do grant, bargain, and sell, unto adjourning time, when they, under instruc- Dennis W. Reynolds, all our right, title, tions were permitted to disperse until 8 claim, and interest in and to the following o'clock next morning, when they were called described land, situated in the state of Arinto court, and the court then further in- kansas and county of Randolph, bounded structed them as follows: (3) “Wine is an and described as follows, to wit: "The south 'intoxicating liquor,' within the meaning of west of the southeast, and the northeast of the statute, and its sale or gift on election the southeast, of section thirty-three, town. day is probibited." Defendant objected to ship twenty north, range three east, of the the giving of this instruction to the jury, fifth principal meridian, containing eighty but the court overruled the objection, and the acres, more or less,'—to have and to hold fordefendant at the time excepted.
ever unto the said Dennis W. Reynolds, his Section 1850 of Mansfield's Digest makes heirs and assigns. And we, the said James the giving away of any intoxicating liquors M. Shaver and Caroline Shaver, do, for ouron the day of any election or the succeeding selves and our heirs and assigns, warrant night, in any county, city, town, or town- and defend the same unto the said Dennis ship in which said election may be beld, pun- W. Reynolds. In testimony of which, we ishable by fine of not less than $200, or im
have hereunto set our hands and seals, prisonment for not less than six months, or this 28th of June, 1873. James M. Shaver. both. In matters not that the giving away [Seal.) Caroline Shaver. [Seal.]” The deed of intoxicating liquor has no reference to was properly acknowledged and recorded. the election. The statute makes no excep- The appellees answered, denied that their antion. The court takes judicial knowledge
cestor executed a warranty deed to the apof the fact that wine is an intoxicating liquor.
pellant, and denied liability on the covenants It is a matter of common knowledge. Black,
contained in the foregoing deed, and alleged Intox. Liq. § 5; 11 Am. & Eng. Enc. Law, that the appellant had conveyed the lands to 582; Jones v. Surprise, 64 N. H. 213, 9 Atl. their ancestor by a warranty deed, and was 384; State v. Packer, 80 N. C. 439; State v. thereby estopped from suing the appellees, Williamson, 21 Mo. 496. The judgment is af
and annexed the deed to their answer, which firmed.
it is not necessary to set out or discuss, as we have not found it necessary to discuss the question of estoppel. The appellant had
married the widow of A. G. Kelsey, and beREYNOLDS v. SHAVER et al.
came the administrator of his estate. The (Supreme Court of Arkansas. June 16, 1894.)
decedent left a daughter, Hattie, a minor, Deep-CONSTRUCTION-QUITCLAIM.
who married James Jones when she was of A deed which recites that the grantors
the age of 17 years. The land was the grant, bargain, and sell unto the grantee all homestead of A. G. Kelsey at the time of his their "right, title, claim, and interest in and to the following described land." etc., and that
death, and was the homestead of Mrs. KelThey do, for themselves and their "heirs and
sey at the time appellant married her, and of assigns, warrant and defend the same unto the Hattie, her minor daughter. Mrs. Kelsey said” grantee, is only a quitclaim, and the died in 1869. Hattie Jones, née Kelsey, heirs of the grantors are not liable on the covenant for failure of title; especially where
brought ejectment against Reynolds, the apsuch land was conveyed to such grantors by
pellant, for the lands in controversy, and a the grantee as administrator of the estate of its judgment was rendered against him for 60 former owner, while it was a part of the home
acres of the land and $200 for the detention stead of the widow and minor child of the de
thereof. cedent, and could not legally be sold by the
The chancellor found in the case administrator.
at bar that the appellant, as administrator Appeal from circuit court, Randolph coun
of A. G. Kelsey, bad conveyed the land in
controversy to the appellees' ancestor, and ty; John B. McCaleb, Judge. Action by D. W. Reynolds against Hattie
had afterwards purchased it from him, and Shaver and others to recover damages for
that, by reason of his conveyance as adminis.
trator, he was estopped from maintaining an breach of covenants of warranty contained
action upon the deed of appellees' ancestor to in a deed. From a judgment for defend
him, and that there was no equity in the bill, ants, plaintiff appeals. Affirmed.
and dismissed the same, and the appellant The appellant sued the appellees in equity
seeks to reverse the decree on appeal. to recover damages of them for breach of covenant in the deed of appellees' ancestor J. C. Hawthorne, for appellant. P. H. to appellant for lands described in the com- Crenshaw, for appellees. plaint. The deed is as follows: "James M. Shaver to Dennis Reynolds: Know all men HUGHES, J. The contention of the apby these presents, that we, James M. Shaver pellant is that the covenants in the deed of and Caroline Shaver, wife of the said James Sbaver and wife, Caroline, to him, apply to M. Shaver, have for and in consideration of the land described in the deed, and not to the sum of one thousand dollars to us in whatever "right, title, claim, and interest" hand paid by Dennis W. Reynolds, the re- the appellees' ancestor may have had at the
time of the execution of the deed, which was writ, said that he was not to serve it unless all that the deed, in terms of the granting the appellee got out one. The circuit clerk tes
tified that another of appellant's attorneys clause, purports to convey. The warranty
told the sheriff that he need not serve the writ is: "And we, the said James Shaver and immediately, unless some one else got out a Carcline Shaver, do, for ourselves and our writ. The attorney testified that he did not tell heirs and assigns, warrant and defend the
the sheriff not to serve it unless appellee got out
a writ, but only to wait a few minutes, while same unto the said Dennis W. Reynolds."
he got another writ from a justice of the peace; It appears from the language in the grant that he wanted to make the first levy, and was ing part of the deed that Shaver and wife in
not afraid of a damage suit. Held, that the
evidence is sufficient to support a finding of the tended to convey only their "right, title,
court that the sheriff was told not to serve the claim, and interest" in the land, and that writ unless appellee got out one. Wood and they intended only to "warrant and defend Hughes, JJ., dissenting. the same." This is the legal import of their | Appeal from circuit court, La Fayette warranty; that is, that they would warrant county; Charles W. Smith, Judge. and defend such "right, title, claim, and in Motion and petition by George Taylor Comterest" as they had in the land at the date of | mission Company against Florsheim Bros. their conveyance, which was all they had Dry-Goods Company to have its attachment conveyed. The conclusion that such was against Joseph Taylor given priority. There their intention seems apparent from the lan was a judgment for plaintiff, and defendant guage of the conveyance, and is strength appeals. Affirmed. ened by the facts that Reynolds, as adminis The evidence was as follows: trator of the estate of Kelsey, had conveyed "On their intervention, appellee introduced this land to Shaver, while it was a home | as a witness the deputy sheriff, J. J. Le May, stead, and could not legally be sold by the who testified: ‘M. S. Wood gave me an atadministrator. The conveyance of Shaver tachment in the clerk's office, and told me and wife to Reynolds was therefore nothing to note the time it came to my hands, but more than a quitclaim deed. In Van Rens I understood him to say that I was not to selaer v. Kearney, 11 How. 322, it is said: serve it unless the George Taylor Commis"The general principle is admitted that a sion Company had an attachment issued, or grantor conveying by deed of bargain and made a break. I was under the impression, sale, by way of release or quitclaim of all his from what he said, that Mr. Wood did not right and title to a tract of land, if made in want his service until some one else had good faith and without any fraudulent rep one served; that he was afraid of a damage resentations, is not responsible for the good suit, and did not want to close up the house. ness of the title beyond the covenants in his Mr. Wood said he wanted to get an attachdeed." Patton v. Taylor, 7 How. 159; 2 Sugd. ment on a smaller claim of John O'Connell Vend. p. 421, c. 12, & 2; 2 Kent, Comm. 473, against the same party before J. P. Wilson. and other cases cited. “Where a deed pur and I told him he would find me at the post ports to convey only the right, title, and in office, to give me that writ, or I would go to terest of the grantor, the scope of the cove J. P. Wilson's. I was about to go to the nant of warranty may be limited by the sub- post office, which is between here and Joe ject-matter of the conveyance." 2 Devl. Taylor's. A few minutes afterwards, at the Deeds, § 931, and cases cited. Tiedeman on post office, I met Mr. Paul Jones, attorney Real Property (section 858) says: “Thus, if a for interpleader, and also Mr. Blake, their deed purports to convey in terms the right, agent. Mr. Jones asked me if I had any patitle, and interest of the grantor to the land pers against Joe Taylor. I told him that I described, instead of conveying in terms the | had; that I had an attachment for Florsland itself, a general covenant of warranty | heim Bros. Dry-Goods Company, represented will be limited, and will not be broken by by King & Wood. He asked me if they the enforcement of a permanent title out- had pointed out any property, or told me to standing against the grantor at the time of levy on Jos. Taylor's stock of goods. I told the conveyance. (Cases cited.)"
him they had not. He then asked me to Affirmed.
wait till he and Mr. Blake could go to the clerk's office and back. I waited, and they soon returned with an attachment against
Joe Taylor in favor of interpleader, and FLORSHEIM BROS. DRY-GOODS CO. V.
ordered me to levy it on Jos. Taylor's GEO. TAYLOR COMMISSION CO.
stock of goods, and started with me. We (Supreme Court of Arkansas. June 16, 1894.) had proceeded towards Mr. Taylor's store PRIORITIES IN ATTACHMENT_INSTRUCTIONS OF AT about one block when we met Mr. Wood, TORXEY.
who then handed me an attachment in fa1. Where a person, at the time he places a vor of John O'Connell v. Jos. Taylor, from writ of attachment in the hands of the officer,
Justice of the Peace Wilson. We proceeded tells him not to serve it unless some other person gets out an attachment, another writ,
to the storehouse of defendant, Jos. Taylor, placed in the officer's hands before such order when Mr. Jones pointed out to me the prop. is countermanded, will have priority.
erty, and I made the levy shown by my re 2. In a contest between attachment creditors as to priority, the sheriff testified that
turns. Mr. Wood did not point out to me appellant's attorney, when he handed him the l any property. At Mr. Jones' request, I gave defendant Taylor the George Taylor Com- | that time. Mr. Wood has since moved to mission Company attachment first, and then Texas. I handed the writ of attachment of gave him the other two. I am certain I Florsheim Bros. V. Jos. Taylor to Deputy handed him the George Taylor Commission Sheriff Le May myself, and this was in the Company attachment first, but do not know court room, adjoining the clerk's office. Mr. which one of the other two I handed him Paul Jones was at the time in the clerk's ofnext, but think I handed him both at once. fice, and I called Le May out in the court M. S. Wood, at that time, was a member of room to hand him the writ. My firm also the firm of King & Wood, but has since had a small claim of John O'Connell against moved to Texas. Before I left the clerk's the same defendant, too small for circuit office, and after Mr. Wood had handed me court, and I was in a hurry to get down to the Florsheim writ, D. L. King, the senior the justice's office to see that my partner, member of King & Wood, talked to me about Wood, got that attachment out, and in Le the Florsheim writ and the J. P. case of May's hands. I said to Le May, “You need O'Connell against same defendant, and gave not serve this immediately, unless Paul instructions. I think that M. S. Wood was Jones gets out papers, as I am going to Justhe one that gave me the writ in the Flors tice Wilson's to get out one for Mr. John heim case, but I know that King talked to O'Connell for a small debt.” He said someme about it, though I can't exactly remem thing about coming to Wilson's office by the ber what passed between us. I know that time I got the writ issued, and I left to go Mr. King came up in a hurry, and was nery there to hurry up Wood, but I was detained ous about Mr. Jones, who was then in the on the way by a client; and seeing Wood at a clerk's office. He and Mr. Jones seemed to distance, coming from Wilson's, I overtook be watching each other. Mr. King, when him, and he informed me that while waiting he left me to go to J. P. Wilson's office, said at Wilson's for Le May, who had promised he didn't care for me to serve the Florsheim to come there, Le May had waited at the writ immediately, unless Mr. Jones got out post office for Mr. Paul Jones, and that papers. I left the courthouse, and went to Jones had got ahead of him on the O'Connell the post office. I think King said they were attachment. So I hurried on to defendant going to Wilson's to get an attachment on Jos. Taylor's store, and got there about the another claim,-a small one,-but don't re time the writs were levied. My conversation member whether I promised to go to Wil with Le May was after he says he talked son's after it. At the post office I met Mr. with Wood, and I never told him not to Jones and Mr. Blake, as I before stated. serve the Florsheim writ first, nor to hold it The Florsheim Dry Goods Company attach until another writ was put in his hands, nor ment came to my hands first, and I at once that I didn't want to make the first levy. indorsed on it the time it came to my hands. On the contrary, I did want to make the About fifteen minutes later the attachment first levy. We were not afraid of any damof interpleader, the George Taylor Commis age suit. All I told Le May was, as I stated, sion Company, was handed to me, with or- | that, as we had a little justice of the peace ders to levy. One or two minutes later the claim, on which we were then issuing, he O'Connell writ was handed me by Mr. Wood. need not serve the Florsheim writ immeIt was about eighteen minutes from the time diately, unless Mr. Jones got out papers, in the first attachment reached my hands be which event to serve at once, as the Taylor fore they were served.'
Commission Company's claim, represented “The appellant then introduced W. L. Con by Mr. Jones, would, I was satisfied, cover nevy, who testified: 'I am county and cir- | all that would be left after the levy of the cuit clerk, and remember the occasion of Florsheim writ. If Mr. Jones was not then writs being issued by me against Jos. Tay getting out papers, I knew we could get the lor. The Florsheim Bros. writ was issued O'Connell writ in the deputy sheriff's hands by me first, and my recollection is that I within a few minutes, and he could serve handed the papers, as soon as issued, to Jos. | both at once.'” Le May, deputy sheriff, myself, in the pres
D. L. King and T. E. Webber, for appellant. ence of D. L. King, who, as attorney for
Scott & Jones, for appellee. Florsheim Bros., was having the writ issued, and that Le May remarked, “Do you want this served at once?" And King replied, RIDDICK, J. On March 1, 1892, the ap“Yes, I do want it served first; but you need pellant, by its attorneys, King & Wood, filed not serve it immediately unles someone a complaint in the La Fayette circuit court makes a break, as I want to go to J. P. Wil- against Joseph Taylor for an amount due it son's to get out an attachment in a case on a promissory note executed by said Tay. where the circuit court has no jurisdiction." lor. Appellant caused a writ of attachment There were many things said that I do not to be issued, and the same was placed in the remember.'
hands of the deputy sheriff at 11:15 a. m. on "Appellants then introduced D. L. King, the same day. Appellee also on the same who testified: 'I am the D. L. King referred day commenced suit against said Joseph to as attorney for Florsheim Bros., and a Taylor, and had a writ of attachment issued, member of the law firm of King & Wood at which came to the hands of the sheriff at 11:30 a. m., 15 minutes after the attachment | creditor of Joseph Taylor had an attachment in favor of appellant was received. Both issued; that before this order was counterwrits of attachment were served and re manded the writ of appellee was issued, turned by the deputy sheriff, who indorsed and placed in the hands of the officer, with the same return on each, except the differ- a direction to levy at once. The question ence in the time at which they came tu for the court to determine is, what is the his hands. Judgments were obtained and effect of a direction to the officer holding the attachments sustained in both suits. Ap writ not to levy unless some other creditor pellee filed a motion and intervening peti gets out an attachment? tion to have the lien of its attachment given Section 325 of Mansfield's Digest is as priority over that of appellant; alleging, in follows: "An order of attachment binds the effect, that the appellant, at the time of defendant's property in the county, which the delivery of the writ of attachment to the might be seized under execution against him, sheriff, had directed the sheriff not to serve from the time of the delivery of the order to said writ, and that before this order was the sheriff or other officer; and the lien to countermanded the writ in favor of appel the plaintiff is completed upon any proplant had been placed in hands of sheriff, erty or demand of the defendant by executand was first levied. Appellant denied the ing the order upon it in the manner directed allegations contained in the motion and pe in this chapter.” The object of this section tition of appellee, and the matter was sub was to aid the diligent creditor in the enmitted to the court, who, after hearing the forcement of the writ, and the collection of evidence, found, in favor of appellee, that his debt. It was not intended that a credthe lien of its attachment was entitled to itor, by placing a writ of attachment in the priority over the writ of appellant. A mo hands of an officer, should secure a lien, and tion for new trial was made, and, the same bind the property of the defendant, and being overruled, the appellant appealed. then, by directing the officer not to levy un
The deputy sheriff, who was sworn as a less some other creditor got out an attachwitness, testified as follows: M. S. Wood, ment, convert the lien of the writ into a attorney for appellant, "gave me an attach security in the nature of a mortgage. Under ment in the clerk's office, and told me to statutes which make an execution a lien note the time it came to my hands; but I on the property of the debtor from the time understood him to say that I was not to of its delivery to the proper officer, it has serve it unless the George Taylor Commis- | been frequently held that a delivery of an sion Company had an attachment issued, or execution with a direction to the officer not made a break. I was under the impression, to levy, or not to levy unless forced to do from what he said, that Mr. Wood did not so by a junior execution, avoids the lien, and want his service until someone else had is of no more effect than if the execution served; that he was afraid of a damage suit, creditor had kept the writ in his own posand did not want to close up the house." He session. Until such an order to the officer also testified that "he gave the defendant the is countermanded with an order to execute attachment of the George Taylor Commis the writ, the officer is considered to be sion Company, first, and then gave him the holding the writ, not in his official capacity, other two." There was other testimony but only as the agent of plaintiff. Freem. tending to contradict this statement of the Ex'ns (2d. Ed.) 8 206; Gilmore v. Davis, 84 officer, and to show that the attorney only Ill. 489; Landis v. Evans, 113 Pa. St. 334, requested the officer to wait a few moments, 6 Atl. 908; Howes v. Cameron, 23 Fed. 324; until he (the attorney) could get another writ Blakely v. Smith (Ky.) 26 S. W. 584. We see from a justice of the peace, on a claim that no good reason why the same rule should not was below the jurisdiction of the circuit court, apply in attachments when a creditor or his so that both writs could be served at the attorney directs the officer having the writ same time. Such a request as this, with rio in his possession not to levy on the same unIntention of causing any material delay in less some other creditor gets out an attachthe service of the writ, we do not think ment. Blakely v. Smith (Ky.) 26 S. W. 584. would have the effect of giving priority to a A direction to the sheriff not to sell, by the subsequent attaching creditor. But the cir execution creditor, after the execution was cuit judge having found against appellant, levied, has been held to avoid the lien as to and being of opinion that, with the witnesses subsequent purchasers and creditors securbefore him, his means of arriving at the ing valid liens; but this rule would not aptruth of the matter was vastly superior to ply in cases of attachments after the levy ours, we must, without undertaking to de is made, or, at most, only to a limited extermine the weight of the evidence, uphold tent, for the reason that attachments are his finding, if the proof is sufficient to sup- | levied, not like executions, for the purpose port it. After considering all the evidence a of making a sale, but only to hold the propmajority of the court are of the opinion that erty of the debtor subject to the order of it is sufficient to support a finding by the the court. But the attaching creditor, no court that the writ of attachment in favor more than the execution creditor, can use the of appellant was delivered to the officer with writ for an improper purpose; and an atdirection not to serve it unless some other | tempt to do this by directing the officer not
to levy will suspend the lien as to subse- ceivers of said railway company, for damquent purchasers, mortgagees, and attach- ages alleged to have been occasioned to the ing creditors, who secure valid liens before farm and crops of the Russells, by reason such order is countermanded. Most of the of the improper construction of the roadbed cases cited by counsel for appellant are cases of the company through their farm, and also where the delay in executing the writ oc- by a number of jetties constructed in Red curred after the levy was made. After the river, on which said farm is situated. There levy of an execution or an attachment is was a verdict for the Russells, against both made, the possession of the officer, or the the railway company and receivers, and they acts of the officer in making the levy, give have appealed. notice to the defendant, and to others deal- The original answer did not deny that the ing with him, of the existence of the lien, defendant railway company built the jetties, and the effect of delay is not likely to be so but there appears in the record an amendmischievous. But until the levy is made ment to the answer, indorsed by the clerk the lien given by the statute is a secret lien, as having been filed after the trial had beand liable to jeopardize the rights of subse- gun. This amendment denies that the jetquent purchasers and creditors. He who ties were built by the defendant company, wishes to avail himself of it should place no and alleges that they were built by S. W. obstruction in the way of having it perfected Fordyce, as receiver of the Texas & St. Louis by the levy of the writ. We conclude that Railway Company. There is no record en. the evidence is sufficient to support the find- try of the filing, and it is contended on being of the circuit court, and the judgment is half of appellees that the amendment was affirmed.
not filed by permission of the court, and
should not be regarded by this court. It is WOOD and HUGHES, JJ., concur as to stated in the amendment that it is made "by the rules of law announced, but are of opin- leave of the court had and obtained," and ion that the evidence is not sufficient to sup- evidence was introduced, without objection, port the finding of the circuit court.
to sustain it. It was treated as having been properly filed, and we will so regard it. Railway Co. v. Harper, 41 Ark. 527; Rail
way Co. v. Triplett, 51 Ark. 289, 15 S. W. FORDYCE et al. v. RUSSELL et al.
381, and 16 S. W. 216; Fordyce v. Hardin, (Supreme Court of Arkansas. June 16, 1894.)
54 Ark. 554, 16 S. W. 576. PLEADING -Filing of AMENDMENT-PRESUMPTION
It is urged on the part of appellants that ON APPEAL-NUISANCE-LIABILITY OF VENDEE the court erred in giving numerous instrucor PROPERTY-JETTIES IN River.
tions for appellees, and in refusing and modi. 1. Where an amendment to an answer filed fying instructions asked by appellants. The after the trial had begun recited that it was made "by leave of the court had and obtained,"
record shows that a general objection was and was treated by the lower court as having
made to the giving of instructions asked by been properly filed, it will be so regarded on appellees, but it does not appear that any appeal.
objection was made at the time to the re2. On appeal, a general objection to the giving of several instructions will not be con
fusing or modifying of instructions asked sidered if any one of them is good.
by appellants. The only objection to the 3. In an action for negligently causing an court's ruling on appellants' instructions is overflow of plaintiff's land, it appeared that the jetties extending into the river, which
disclosed in the motion for a new trial. It caused the overflow, were built by a railroad
is the settled practice of this court that obcompany to protect its bridge. The property jections to the rulings of the trial court shall of this company was afterwards transferred
be specifically pointed out, and that a gento a company of which defendants were the receivers. The jetties were not on the right of
eral objection to several instructions, in gross. way, and it was not shown that defendants will not be entertained if any one of them ever assumed control of them or tried to main- be good. Atkins v. Swope, 38 Ark. 528; Neal tain them. Held, that defendants were not liable.
v. P'eevey, 39 Ark. 337.
The only question left for us to consider is Appeal from circuit court, La Fayette coun
as to the sufficiency of the evidence to susty; Thomas E. Webber, Special Judge.
tain the verdict. The railroad passes through Action by J. C. and W. H. Russell against
the farm of appellees, and one end of its the St. Louis, Arkansas & Texas Railway
bridge across Red river is constructed upCompany, and S. W. Fordyce and A. H.
on the farm. The farm borders upon the Swanson, receivers of said company. From
river for half a mile or more above the a judgment for plaintiffs, defendants appeal.
bridge. The jetties are 6. in number, comReversed.
mencing about one-fourth of a mile above Gaughan & Sifford and Sam. H. West, for the bridge, and are placed about 150 or 200 appellants. Scott & Jones, for appellees. yards apart, extending from the bank on
which the farm is situated into the river FLETCHER, Special Judge. This is an about 150 feet. They were built principally action by J. C. and W. H. Russell against in 1885, by S. W. Fordyce, as receiver of the the St. Louis, Arkansas & Texas Railway Texas & St. Louis Railway Company. BeCompany, and Fordyce and Swanson, as re- fore that time the bank of the river above