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Argument for Appellant.

The prayer of the bill was, that the judgment in ejectment may be enjoined, and that the title of the complainants may be quieted, and such further relief, etc.

Joel Johnson in his answer denied that said Lycurgus L. Johnson was the agent and business manager of said guardian, Mrs. Julia J. Johnson, or that he acted as such in and about her business as guardian; and asserted that if any contract or agreement, such as that alleged in the bill, was made with said. appellees by said Lycurgus L. Johnson, it was not made with the knowledge or by the authority of said Julia J. Johnson, as guardian aforesaid, expressed or implied, nor in any manner recognized or ratified by her receipt of any of the consideration paid by said appellees for said land with knowledge of any such contract or agreement. Further answering, he said, "That if complainants are not protected by their vendor it will be a great wrong to them, but one for which this defendant is not in any manner responsible."

The complainants filed a general replication to this answer. A preliminary injunction was granted, which the court, on final hearing, made perpetual. From this decree the defendant appealed.

Mr. Attorney General and Mr. D. H. Reynolds for appellant.

The bill in this case states that the appellees were not admitted to make their defence in the action of ejectment. The orderly way for them was, if standing on equitable rights alone, to have submitted to judgment in that action, before proceeding to enforce their supposed equities. Conway v. Ellison, 14 Arkansas, 360; Herndon v. Higgs, 15 Arkansas, 389, 392; Dickson v. Richardson, 16 Arkansas, 114; Earle v. Hale, 31 Arkansas, 473. This, however, was not done, but it seems some effort was made by them to interpose their defence, but they were not admitted to do so. Effort must have been made to put in the defence, but what that consisted of is not shown, unless the bill itself contains it. There is nothing in the record to show that any certain defence was offered by

Opinion of the Court.

the parties, and ruled by the court to be out of place as being equities or equitable defences. Taking, then, the bill to contain all there is of a defence, is it in its nature an equitable defence? Or could it not have been admitted in the action of ejectment? To maintain the suit in ejectment by Johnson, he must have shown, 1st, a legal estate in himself; 2d, right of entry; 3d, defendants in possession. Daniel v. Lefevre, 19 Arkansas, 201. Johnson held a deed for the lands under the trust sale, and appellees held one from Robinson, and appellees were in possession and claimed they were entitled to hold because of their deed, and having paid for the land, as they agreed with Robinson to do; therefore the dispute was squarely on the legal estate and the right of entry. Why could not these things be contested at law as well as in equity? These are of the very matters that law passes upon, and not equity. These are legal questions, pure and simple; and there is no averment in the bill, or allegation anywhere, that they were prevented from interposing their defence by accident of any kind, or by the fraud of appellant, and the suit should have been dismissed. Goulsby v. St. John, 25 Grattan, 146; Hendrickson v. Hinckley, 17 How. 443; Insurance Co. v. Bangs, 103 U. S. 780; Crim v. Handley, 94 U. S. 652; Verey v. Watkins, 18 Arkansas, 546, 551; Murphy v. Harbison, 29 Arkansas, 340.

Mr. U. M. Rose for appellees.

MR. JUSTICE LAMAR, after stating the case, delivered the opinion of the court.

The only issue of fact raised by the pleadings relates to the agency of Lycurgus L. Johnson for Mrs. Julia J. Johnson, in her capacity as guardian of appellant, in the loan of the funds of her ward to Robinson upon the security binding the real estate of Robinson, and the subsequent transactions with appellees as vendees of a part of that land; and upon this point we are of opinion that the allegations of the bill are abun dantly sustained by the proof.

Opinion of the Court.

James F. Robinson, the vendor of the appellees, testified substantially that he knew that Mr. Johnson acted as the agent for Mrs. Julia J. Johnson, in her capacity as guardian of Joel Johnson, in some matters, and especially in the loan of the money to him; that about the 1st of January, 1871, he borrowed from Mrs. Julia J. Johnson, as guardian of Joel Johnson, the sum of $9387.95; made the negotiation with Mr. Lycurgus L. Johnson, exclusively; and that he had no recollection of ever having talked with Mrs. Johnson about the matter until after the death of Mr. L. L. Johnson. All the transactions in regard to this loan were made with Mr. L. L. Johnson, or under his direction. At the time he negotiated the loan of $9387.95 he executed, jointly with his wife, Mary F. Robinson, a deed of trust on certain lands to Mr. L. L. Johnson, as trustee, to cover said loan. And in his crossexamination on this point he states that he does not think Mrs. Johnson was present at the time the loan was made. Believes she was not present. Mr. Johnson delivered to witness a check for the loan. It was her check, he thinks. Saw from the records in the recorder's office that Mrs. Johnson signed the deed of trust to secure the loan. Referring to the transaction with appellees, he says he was acquainted with the plaintiffs in the case. Part of the lands embraced in the deed of trust were subsequently sold by himself and wife to the plaintiffs in this suit. When he was negotiating the sale with the plaintiffs, which was about a year after he borrowed the money, he told them there was a deed of trust on the land held by Mr. L. L. Johnson. He went with either Christian or Stuart-he does not remember which, possibly either or both-to see Mr. Johnson about the matter, and Mr. Johnson agreed with them and himself (Robinson) that, upon the payment to him, acting for Mrs. Johnson, or to Mrs. Johnson herself, of the purchase money agreed upon, he would quit-claim to them the land. The plaintiffs have paid for the land the price agreed upon, which was 120 bales of cotton, 420 or 425 pounds each. The purchase price was all paid in cotton, excepting $1035, which was paid in money by Mr. W. W. Ford, which sum was the estimated value of some

Opinion of the Court.

thirty odd bales of cotton, balance then due. The plaintiffs not having the cotton ready, and being anxious to complete their payments and perfect their title to the land, he agreed that the balance of cotton due him might be paid in money, at the market value of cotton at that time. Mr. Ford made the valuation, and paid the money to Mrs. Johnson for them. In his cross-examination on this point he says that the object of the visit of himself with the plaintiffs to see Mr. Johnson was to convince the plaintiffs that upon the payment of the purchase price for the land, they would get a good title to the place. Mr. Johnson agreed that, upon the payment of the purchase money for the place he would release any claim that he might have against the property as trustee; he supposed that Mr. Johnson was acting for Mrs. Johnson at that time, as he had been previously and did afterwards. In his reexamination he states that he thinks he informed Mr. Johnson of every pound of cotton received from the plaintiffs, directed him how to ship it, and such of the cotton shipped to his own account was shipped with his consent, with the understanding that the proceeds were to be turned over to Mrs. Johnson, or to Mr. Johnson for her.

His testimony as to the payment of the purchase money to Mrs. Johnson, and her acceptance of it as paid in consideration of the land purchased by the appellees under the agreement, is fully corroborated by the testimony of W. W. Ford, who testifies that he was a merchant and near neighbor of Mrs. Johnson, and made out the accounts current, and kept the accounts for Mrs. Johnson. The settlement of Mrs. Johnson as guardian, filed in the Probate Court, was made out by witness from data furnished by Mrs. Johnson. He also made out the statement of the account marked "Exhibit B." It contains all the items of account between James F. Robinson and Mrs. Julia J. Johnson as guardian of Joel Johnson. There are in that statement four items of credit on said loan that witness can trace to Christian and Stuart as payments on their purchase from Major Robinson, to wit, $431.99, $1035, $804.53, $1000. This statement was made out from his own knowledge, and from information furnished by Mrs. Johnson. The

Opinion of the Court.

item of $1000 was paid to her by Lycurgus L. Johnson, and repaid to him by cotton from Christian and Stuart, appellees. Credit was indorsed on the note by Mrs. Johnson herself. She told witness he paid it. The item $431.99 was received ⚫ from Christian and Stuart in cotton, and witness knows she got the money. The $1035 witness paid for Christian and Stuart. In the spring of 1879 the plaintiffs came to witness and asked him to pay for them the balance on their purchase of the land from Robinson. This amount was settlement in full of balance by Major Robinson with plaintiffs for their land. The valuation of the cotton was made by witness with the consent of Robinson and Christian and Stuart. Witness had told Mrs. Johnson that plaintiffs owed a balance of $1035 for the purchase money of lands they had purchased from Major Robinson, and that witness was going to pay it for them. She afterwards sent to witness for the money, and he paid it. Plaintiffs gave witness their note for the amount.

Numerous other witnesses sustained the testimony of Robinson and Ford. The appellant only introduced the deposition of his guardian in support of the denials in the answer. Mrs. Johnson denies that she authorized her brother, L. L. Johnson, to transact any business for her with Major Robinson; states that he refused to have anything further to do with the business; that he never acted as her agent as guardian; that she never authorized any one to make a promise to the plaintiffs that their lands should be released from the deed of trust upon paying the price they had agreed to pay for the same; that if her brother, L. L. Johnson, did receive cotton from plaintiffs it was without her knowledge, and that Mr. Ford never paid any money for plaintiffs on account of said loan.

Upon this testimony we see no grounds for disturbing the decree of the court below. The denial on the part of Mrs. Johnson of her brother's agency, owing to her imperfect conception as to what constitutes an agent and to her vague recollection of her own acts, is contradicted by the facts of which she herself testifies, and by the account marked "Exhibit B," made out under her direction, in which the receipts of the pay

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