entirety for $3,000. It does not state whether it was offered in separate parcels, as directed by the judgment; nor does it show what bids had been offered for it in that manner. Appellant excepted to the sale and to the commissioner's report on this ground. We think His exceptions were overruled. this was error. The property being divisible, and in fact the judgment having so found, and directed it to be sold in parcels, it should have been so offered.

Ap

The

The two storehouses in Owensboro were also sold together, and not separately. pellant objects to this, claiming that they were his, because he and Pettit had contracted, when appellant sold Pettit the lots, to be applied as a credit on the purchase of the farm, that appellant might redeem them at any time within three years from February, 1839, by paying to appellee $3,000. Appellant claims this was a mortgage. contract provides that appellant might repurchase the property within the time specified for $3,000. Throughout this whole litigation the transaction has been treated as a sale from appellant to appellee. Appellant has procured credit upon his indebtedness upon that theory. No pleading has been filed in the record attacking the genuineness of the transaction. The court cannot determine, upon mere exceptions to the commissioner's report of sale, that a deed apparently conveying the absolute title is but a mortgage. Therefore appellant is not concerned in the question whether these two lots were sold according to the judgment or according to law. Appellee became the purchaser of these lots at this sale. They were his before the sale, subject to the lien of the insurance company. If this were all, we would be inclined to affirm the judgment confirming the sale of the two lots to appellee. But this is not all. Appellant and appellee had agreed (and, indeed, appellant's covenants of warranty would involve the same thing) that appellant would reimburse appellee for, and Indemnify him against, any sum that might be exacted from him because of the mortgage to the insurance company of the lot sold him, and that this sum should be a lien upon the 1,400 acres of land, a part of which was the land sold, and above referred to. Now, it cannot be determined how much the insurance company will be entitled to enforce against the town lots until the farm land has been sold under its mortgage. Therefore, as the sale of the country land has been set aside, it must follow that the sale of the town lots should also be set aside, and a resale ordered.

The judgment affirming the sale, and decreeing Pettit to recover of Hill the sum of $2,227.55,-the difference between the insurance company mortgage debt and the price realized at the former sale of the farm land, -is directed to be set aside. A resale will be ordered, and the cause is remanded for proceedings consistent herewith.

STONE et al. v. HART et al.1 (Court of Appeals of Kentucky. Jan. 15, 1902.)

ATTORNEY AND CLIENT AGREEMENT NOT TO CHARGE FEE BINDING ON PARTNER-ASSIGNMENT OF FEE-ESTOPPEL TO PLEAD AGREEMENT OF ASSIGNOR NOT TO CHARGE FEE BENEFICIARIES OF ALLOWANCE OF COUNSEL FEES TO TRUSTEES.

1. An agreement by an attorney, in advance of the rendition of legal services, not to charge a fee therefor, is binding on his partner, though the latter was ignorant of the agreement under which the services were rendered.

2. Where an attorney assigned to a creditor his fee for services rendered to trustees, and the trustees, by correspondence with the assignee, led him to believe that the only question as to the fee was one of amount, to be fixed by the court, and thereafter a large allowance was made to the trustees as counsel fees, they will not be allowed, as against the assignee, after the assignor has died, and his estate has proved to be insolvent, to retain a part of that amount, which is less than the assignor's services worth, upon the ground that under their agreement with the assignor he was not to receive a fee for his services, and that their other attorneys had agreed that they might retain that part of the allowance to reimburse them for certain losses. though the court had refused to allow a fee to the assignor for the reason that his services had been rendered under an agreement by him not to make any charge therefor.

were

3. A bond executed by assignees for creditors for the faithful discharge of their duties is for the benefit of all who may be entitled to share in the assets, though the covenant is to the assignor alone, and a failure by the trustees to pay any part of the assets to any person as required by law and directed by a court of competent jurisdiction is a breach of the bond.

4. A cause of action on such a bond does not accrue to a distributee until the trustee has been ordered to pay him a definite sum, and has failed to do so.

Paynter, J., dissenting.

Appeal from circuit court, Fleming county. "Not to be officially reported.”

Action by R. K. Hart and R. H. Sousley, assignees of David Wilson, against David Wilson and others, to settle the assigned estate. Judgment as to attorney's fees, and H. L. Stone, surviving partner, and the Louisville National Banking Company, appeal. Reversed.

H. L. Stone, Leopold & Pennebaker, Barnett & Barnett, and Hazelrigg & Chenault, for appellants. W. G. Dearing, G. A. Cassidy, B. S. Grannis, J. H. Power, A. M. J. Cochran, and John P. McCartney, for appellees Hart and Sousley. St. John Boyle and L. R. Yeaman, for appellee surety company.

O'REAR, J. Appellees Hart and Sousley are the trustees named in, and qualifying and acting under, a general deed of assignment for the benefit of creditors executed by David Wilson, banker. The trustees employed counsel to assist them in the management and settlement of the trust. Sudduth, of the law firm of Stone & Sudduth, having peculiar personal reasons for keeping in close touch

1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

with the management of the trust, agreed to, and did, give his professional attention to the trustees' affairs, agreeing to charge no fee therefor. Of this arrangement his partner was ignorant. At the close of the suit brought to settle the trust, a motion was made by Stone, as surviving partner,-Sudduth having died,-for an allowance to him, as such, of a reasonable fee for the services of his partner. On the facts stated, the court is of the opinion that the agreement of Sudduth was the condition upon which he was permitted to render the service, and, as between his partner and the clients, the partner should suffer, if either must. For the breach of duty was to the partner. The clients have done no wrong in the matter. The circuit court having ruled accordingly. its action is approved.

A more serious question is presented, however, on the claim of the Louisville National Banking Company. Sudduth was indebted to this bank several thousand dollars. The bank had placed the paper with its attorneys for suit, and was taking steps to coerce the payment of the money. In order to procure further time, Sudduth proposed to assign to the bank, as collateral on his indebtedness to it, his fee against the trustees of Wilson in the matter of the trust estate. Sudduth's purposes and necessities in this matter were known to the assignees, Hart and Sousley, and they executed with him the following paper in the form shown, to wit:

"As additional security for my indebtedness to the Louisville Banking Company, I hereby assign to said Louisville Banking Company all of my fee for services as attorney for the assignees of David Wilson in the settlement of the assigned estate, which fee is to be allowed by the Fleming circuit court in the case of R. K. Hart and R. H. Sousley vs. David Wilson, etc., and authorize said assignees to pay such fee to the Louisville Banking Company, which sum shall be applied to my said debt or debts, and the remainder, if any, paid over to me. August 31st, 1897. [Signed] W. A. Sudduth.

"As assignees of David Wilson, we accept notice of the above assignment, and agree to pay the Louisville Banking Company whatever sum in fees may be allowed to W. A. Sudduth. This August 31st, 1897. [Signed] R. K. Hart, R. H. Sousley, Assgs. of David Wilson. Attest: [Signed] Lawrence S. Leopold."

To have this act confirmed before finally accepting it, the president of the bank wrote the assignees the following letter:

"Sept. 8, 1897. Mess. R. K. Hart & R. H. Sousley, Assignees of David Wilson, Flemingsburg, Ky.-Gentlemen: Mr. W. A. Sudduth has delivered to us his assignment to us of his fee for services as your atty. in the settlement of the estate of David Wilson, together with your acknowledgment of notice thereof, and your promise to pay us. But I beg to ask you when W. A. Sudduth's

fee will probably be allowed, and what you think will be the amount of it? Also the 5% divd. upon the cerf. of deposit we hold, and which we have written you about. May

I again request that you will have the kindness to remit it to us? Very resp'y [signed] Theodore Harris, Pt."

To it they responded thus:

"Sept. 10th, 1897. Theodore Harris, President, Louisville, Ky.-Dear Sir: We are unable to say what Mr. Sudduth's fee will be in the settlement of the affairs of the Exchange Bank, as the fee will be regulated by the court. It should be a large one. He has done very valuable services. We will be unable to remit 5% to you until further orders of court. Yours, truly, [signed] Hart & Sousley, Assignees."

Later, having his fears aroused by some rumor reaching him that Sudduth was to have no fee, the bank's president wrote one of the assignees, and the following correspondence ensued:

"July 2, 1898. Mr. R. K. Hart, Flemingsburg, Ky.-Dear Sir: I wish to trouble you for a little information. There is a mystery in the matter of yours and Mr. Sudduth's and our affairs, which I am sure you will be able to solve. Mr. Sudduth insists that there is a fee coming to him in the case of yours and Mr. Sousley's as assignees of Wilson. He seems to have good reason, too, for thinking so. He refers me to his assignment of his fee dated August 31, 1897, and to your acknowledgment of that assignment, and agreement to pay us whatever sum in fees should be allowed Mr. Sudduth. Moreover, we have your letter of September 10th, 1897, answering our questions as to what Mr. Sudduth's fee would be, wherein you say it should be a large fee, as he had done very valuable service. Now we understand you to doubt if anything will be allowed Mr. Sudduth. Please explain this, for I do not understand it. How is it Mr. Sudduth, who was the attorney for yourself and Mr. Sousley as assignee, and his services were very valuable, is to get nothing, or next to nothing? Very truly yours, [signed] Theodore Harris, President."

"Flemingsburg, Ky., July 4th, 1898. Theodore Harris, Pres., Louisville, Ky.-Dear Sir: Yours of July 2nd to hand. Now, as to what you may understand as to something that has been told you I should have said, I am not responsible. I say to you that whatever fee the court allows Mr. Sudduth in the case of Hart & Sousley, assignees, vs. David Wilson, you shall have. I hope this will be satisfactory to you. Yours, truly, R. K. Hart.”

Without the knowledge of the bank, and by the procurement of the assignees, allowances were made to them of $9,500, as counsel fees, in addition to the allowances for their own services. The most of this sum they disbursed to other attorneys. But they retained $1,850 of it under an agreement with their other attorneys not to collect it

As

the court proceeds to appropriate a sum not exceeding $1,850 on a claim which confessedly had no existence in law or equity. the court refused to allow Sudduth any fee, they never violated the agreement with the bank. Neither as assignees nor individually did they promise to pay the bank anything unless it was allowed (meaning, of course, by the court) in the case to settle the estate. It was simply a promise that they would perform a duty which the law imposed, to wit, pay the bank such sum as the court allowed it. The mere fact that they expressed an opinion in a letter subsequent to the agreement that Sudduth should be allowed a fee did not add to their undertaking. They may have, in good faith, believed that he should be allowed the fee. But if they did not so believe, they did not make themselves liable beyond the terms of their contract. Had it purported to be a personal obligation, instead of a fiducial one, there could not have been a recovery on it, except to the extent money came to their hands under the order of the court. The bank was bound to know that it could only receive on its assignment such sum as the court allowed. It knew that the assignees had only promised to pay such sum as was allowed. It cannot be held, in law or equity, to have been deceived. The doctrine of estoppel has no application to the facts of the case. I dissent from the opinion of the court.

JONES et al. v. HILL et al. SAME v. SEABORN et al. (Supreme Court of Arkansas. Dec. 21, 1901.) HUSBAND AND WIFE-CONVEYANCE OF WIFE'S PROPERTY.

Under Const. 1874, enabling a married woman to convey her separate property the same as if she were single, a deed executed by a husband of the wife's property, in which she joins and relinquishes dower, conveys the fee to grantees who took without notice of any claim by the wife to the property.

Appeal from White chancery court; Thomas B. Martin, Chancellor.

Consolidated suits by W. M. Jones and others against Hill, Fontaine & Co., and against Robert Seaborn and others. From a decree in favor of the defendants, the plaintiffs appeal. Affirmed.

W. T. Tucker, for appellants. J. W. & M. House, for appellees.

BUNN, C. J. The evidence in these two cases is the same in all essential particulars, and they were heard together, and will be considered so here. This suit was originally in ejectment, but on coming in of the answer and cross complaint the cause was transferred to the First chancery district, and heard before the Honorable Thomas B. Martin, chancellor, and decree was rendered for defendants, and plaintiffs appealed to this court.

The facts are substantially as follows, to wit: J. W. Jones, being the owner of the following lands, situate in White county, Ark., namely, "70 acres in the east half of northwest quarter, section 17, township 5 north, of range 8 west; and the north half of lot No. 2 in block 16, and lot 10 in block 3, in Hutt's survey of the town of Beebe; als the east half of southeast quarter and east half of southwest quarter of section 33, township 6 north, range 8 west, containing 100 acres, more or less,"-sold and conveyed the same to his wife, Nancy J. Jones, for the expressed consideration of $28, on the 9th April, 1875; and this deed was recorded April 10, 1875. In this deed is a clause explaining the consideration as follows: "The above-conveyed land was purchased with the money belonging to Nancy J. Jones obtained from the sale of stock and real estate sold in the state of Mississippi, which was owned by her previous to our marriage, and placed in my hands in trust to purchase real estate for her benefit and children by me." This deed was acknowledged before a justice of the peace, but his certificate was not in accordance with the provisions of the statute, the word "consideration" and all equiva lent words being omitted. This deed is exhibited with the complaint, and is that upon which the claim of plaintiffs for title rests. Nancy J. Jones died in 1879. The appellee Robert Seaborn claims title to 58 acres of said lands by deed from Samuel B. Shipley, dated April 13, 1881, who held by deed from said J. W. Jones, dated September 2, 1886, who held by deed from J. W. House, as administrator of Samuel A. Taylor, dated August 31, 1886, and Samuel A. Taylor held by deed from said J. W. Jones and wife, Nancy J. Jones, dated December 29, 1876, and in this deed the said Nancy J. Jones united with her said husband in the conveyance or granting clause, and also relinquished her dower in due form. The appellee D. C. Harris claims two acres of said land by purchase of her co-appellee, Robert Seaborn; the appellee S. E. Humphries five acres of said land, purchased from said Samuel B. Shipley by deed dated June 1, 1888. Appellee Martha Boss claims by deed from H. B. Strange dated December 2, 1876, lot 3 (1 acre) off of W. 1⁄2 N. W. 4, section 17, township 5 N., range 8 W., and lot 4 (1 acre) in Jones' addition to Beebe (this being no proof of the land conveyed by J. W. Jones to his wife as aforesaid). Strange held by deed from Edward Mahoney, dated March 20, 1874, and Mahoney by deed from J. W. Jones and wife, Nancy J. Jones, dated October 14, 1873, before the date of the deed from J. W. Jones to his wife. Appellee Humphries claims five acres of said land by deed from Samuel B. Shipley dated 1st of June, 1888. Appellee Henry Folsom claims title to lot 2 in Jones' addition to the town of Beebe, a part of said lands by deed from said J. W. Jones and Nancy J. Jones, his wife, to Mary E. Bowles,

dated July 24, 1874; by deed from Mary E. Blair (née Bowles) to J. M. Gowdy, dated November 1, 1884; by deed from J. M. Gowdy to A. J. Smith, dated October 3, 1885; by deed from A. J. Smith to T. J. Camp, dated January 5, 1888; and by deed from T. J. Camp to himself dated April 20, 1889. These are the defendants and appellees in case No. 4,501. These cases,-Nos. 4,500 and 4,501,resting on substantially the same essential facts, are heard together here.

It appears that in all the aforesaid deeds made by J. W. Jones and Nancy J. Jones, his wife, both before and after his deed to his said wife (the 9th April, 1875), the wife Joined in the granting clause, and also relinquished her dower. The rule laid down by this court in Bryan v. Winburn, 43 Ark. 28, and still adhered to, is, as expressed in the syllabus, the following: "Since the adoption of the constitution of 1874 [October 30, 1874] a married woman can convey her separate property the same as if she were single; and where she joins her husband in a deed of her land, and also relinquishes dower, the deed will convey the fee, though she acknowledge only relinquishment." The case at bar comes under this rule, especially as to all the parcels of land conveyed by J. W. Jones and his wife, Nancy Jones, after the date of the adoption of the present constitution, and as to these lands Mrs. Nancy J. Jones conveyed all the title she had, and so conveyed the Lee. Whether the conveyance of the one or two small parcels made before the adoption of the constitution come under the rule, it is not necessary to determine here, since up to April 9, 1875, all these lands appeared on the records, and also appear from the evidence as having been always considered the property of J. W. Jones, and the parties appear to have bought with that understanding. His deeds carried the title to innocent purchasers at least. From the evidence no one appears to have ever known or heard that Mrs. Nancy J. Jones ever at any time laid claim to any of this property. The land claimed by Hill, Fontaine & Co., appellees in case No. 4,500, appears to be lot 10, block 3, in Hutt's survey of the town of Beebe. The land was purchased from J. W. Jones and his wife, Nancy J. Jones, by J. M. Battle, about January 1, 1878. The deed is not exhibited. Battle testifies that he took possession under his deed about that time. The deed, according to Battle's testimony, was made by J. W. Jones and his wife, Nancy J. Jones. He says he had heard Jones say before that that he was going to put his property in his wife's name, he being in financial troubles at the time; but understood from Jones when he bought that he had made, and then, before delivery, destroyed, the deed he intended for his wife. The property conveyed In this deed to Battle is that involved in case No. 4,500. Battle, who was well acquainted with Jones and his family, never heard of any claim to any of the property by Mrs.

Jones, while she lived. Moreover, there does not appear to be any contention to Battle's title. He occupied the property he bought about five years, and then sold to Naylor, who put improvements on the property, as all must have known, and mortgaged it to Hill, Fontaine & Co., who foreclosed the same, and became the owners of it by purchase at foreclosure sale.

The findings of the chancellor are not set out in the record of either case, but, assumIng that his findings were in fact the same in both cases, for the facts in evidence appear to be the same substantially, his decree dismissing the complaint and cross complaint in each case is in all things affirmed.

TOWN OF SALEM v. COLLEY. (Supreme Court of Arkansas. Jan. 4, 1902.) CRIMINAL LAW-ASSAULT AND BATTERYFORMER PROSECUTION-CERTIORARI.

1. Where a warrant issued out of a justice court on an affidavit for assault is returned unserved, and the proceedings are abandoned, the offense may be prosecuted in the mayor's court.

2. Act March 18, 1899, providing that circuit courts shall have power to issue writs of certiorari to any inferior tribunal to correct any erroneous or void proceedings, and to hear and determine the same, etc., does not enlarge the writ of certiorari into an appeal or writ of error, and certiorari will not lie to quash a mayor's court judgment of conviction for assault because of the mayor's refusal to sustain a plea of former conviction, a motion to dismiss for want of cost bond, and refusal to call a jury.

Appeal from circuit court, Sebastian county, Greenwood district; Styles T. Rowe, Judge.

Tom Colley was convicted of assault and battery in the mayor's court of the town of Salem, and, on the judgment being quashed by the circuit court, the town appeals. Re

versed.

On the 9th day of November, 1899, Tom Colley struck J. F. Hudson, in the town of Salem, in the Greenwood district of Sebastian county. On the same day Hudson made affidavit before one Strozier, a justice of the peace of Prairie township, in Sebastian county, charging Colley with "aggravated assault and battery." A warrant was issued by Justice Strozier and placed in the hands of one J. J. McAlister, who was not the constable, and not sworn, but was appointed by the justice to serve the warrant. McAlister found Colley in Dayton township, of Sebastian county, but did not arrest him, for the reason that he was held under a warrant of arrest issued by Justice Bull, of Dayton township, charging him with assault and battery, and Justice Bull and the constable of Dayton refused to surrender him to McAlis ter.

The warrant issued by Justice Strozier was returned unserved. The proceedings before Justice Bull were as follows: Colley, after the commission of the offense, went before Justice Bull, and made a full state