220 SUPREME COURT OF ARKANSAS, [35 Ark. Johnson et al. vs. Terry. JOHNSON et al. vs. TERRY. PRACTICE ITT SUPREME COURT : Instructions must be in bin of exceptions. Instructions not brought into the record by the bill of exceptions will not be noticed in this court. APPEAL from Lincoln Circuit Court. Hon. J. A. WILLIAMS, Circuit Judge. McCain, for appellant. Jones, Pindall, contra. EA.KIN, J. On the thirtieth of October, 1876, Terry, as landlord, and Johnson, as tenant, for rent of a farm for that year, claiming under a written agreement for a lease, the rent to be payable about the middle of the month of November. Upon affidavit that defendant was about to remove the crop without paying rent, and had removed a portion without consent, he obtained an attachment and seized it; whereupon, de fendant gave bond to retain it. At the April term, 1877, defendant filed his affidavit de-
.35 Ark.] NOVEMBER TERM, 1879. 221 Johnson et al. vs. Terry. flying that he had remdved a portion of the crop without paying rent; and alleging that the plaintiff had waived any lien he may have had. There was a third paragraph, denying that the plaintiff was the landlord, and asserting that he was only the agent of Edward F. McGehee, trustee for Blanche B. McGehee, whose consent defendaat had, to remove the crop. Upon this, he moved to quash the attachment. At the fall term, 1877, Blanche B. St(Aces (formerly Mc-Gehee), with her husband, filed an interplea for the property attached; setting up that the land in question had been conveyed, in 1871, by Terry to a trustee, to secure a debt due from him to said Blanche of $5,200, and that he had delivered up to her the possession, on the first of Jan-uary, 1876, in order that the rents and profits might be applied to the debt; that they had employed him, and he had agreed to act, as their agent in renting the land for .1876, which fact defendant, Johnson, knew when he rented ; and that they supposed that Terry had, in good faith, acted for them until they learned of this suit. They state that, but for this agreement, they would have foreclosed, or taken some steps to secure the rents and profits. That in the spring of 1877 they obtained an order to foreclose the mortgage, under which the lands were sold for $4,500, and that there is still due about $1,500. They say that Terry is, insolvent, and that he acted fraudulently in making the lease to Johnson in his own name, wherefore they claim the rents in court, and other relief. Terry, in his answer, denies that he gave possession of the lvnd, as alleged, or that he acted, in leasing, as the agent of interple a ders. A trial, by jury, was had on the grounds of attachment; which resulted in sustaining the same.
222 SUPREME. COT.TRT OF ARKANSAS, [35. Ark. Johnson et al. vs. Terry. Johnson then answered, setting up that he had rented from Terry as the agent of said Blanche, but that the written agreement, by accident or mistake, failed to show the character in which Terry acted; and that said Blanche and her husband claimed the rent. A trial, upon the remaining issues between the parties, was had at the April term, 1868, resulting in a general verdict for the plaintiff, Terry. Whereupon, it was considered that the interpleaders should take nothing by their motion, and pay costs. A motion for a new trial was overruled, and they appealed. - No disposition of the fund appears to have been made, nor iq there ,Q1-■own any j-I gme-t against Johnsen. The questions presented arise on the interpleaders' Motion for a new trial. As to -them, the judgment was final, and an appeal lies. The ' trial was, in fact, only on the interplea. ,. • The contract for renting was in evidence. It was drawn by Johnson, and was executed by him and Terry as individuals, disclosing no -agency. Johnson, in his testimony, says he does not know why he omitted this, but says, in fact, that Terry told him before, and at the time, that he had turned over •the place to Stokes, and was acting as his agent; and that Stokes had requested him to rent to witness, and get him to stay on the place. • Johnson's wife testified that, during the year 1875, she did a gre at deal of writing for Terry in his correspondence, and knew much of his business. That in September or October, she wrote a letter for him to McGehee (then Mrs. Stokes' trustee), offering to turn over the place, but did not see the answer. Stokes came there in November, after which Terry told Johnson and wife that he had arranged matters, and- turned over the place, and that he was to go to Memphis in a few days and turn over the papers. He
35 Ark.] NOVEMBER TERM, 1879. 223 Johnson et al. vs. Terry. went to Memphis, and said, on his retuin, that he had fixed it all right with Stokes; and that the latter had requested him to rent the land to Johnson. He did rent as Stokes' agent—said so, positively—repeated it on many occasions, and so all parties understood it when the contract was made. She heard Terry say, also, that the draft oh the cotton could be turned over to Stakes for rent. Blocher testified that he heard Telly say, on his return from Memphis, in 1875, that he had turned over the papers to Stokes, and was acting as his agent; and that Stokes had requested him to rent the place to Johnson at $5 per acre. The trust deed to McGehee was also in evidence, together with a decree in chancery foreclosing the same in 1877, which showed a sale, under the foreclosure, for $4,500, leaving a large balance due. The debt appears to have been due when the contract for renting was made. Upon the other hand, Terry testified, saying, that he contracted for himself, and not as agent for any one. Denieb that he ever told Johnson, or his wife, or Blocher, otherwise; admits that he had offered to turn over the place to Stokes on certain conditions, but nothing came of the proposition, and he never did so. This is all the material evidence, except that it appears that Johnson and Terry were not then friendly, and that Blocher was, at the time he testified, a tenant of Johnson, living with his family. The court properly instructed the jury that if they believed_ that Terry had turned over the possession of the land to Stokes and afterwards rented to Johnson, acting as Stokes' agent, they should find for the interpleader, and refused to instruct them that "the admissions of the defendant against his interests are to be construed most strongly against him." Stokes excepted to the refusal.
221 SUPREME COURT OF ARKANSAS, [35 Ark. Johnson et al. vs. Terry. The bill of exceptions then shows that three instructions against the objection of the interpleader were given upon the part of "defendant" Terry. Without transcribing them, it it suffices to say that they have no application whatever to the issues on trial made upon the interplea, but were pertinent only to the issues made on the former trial upon the truth of the grounds of attachment; and that, if really given upon the trial now in question, they would have tended to confuse, if not utterly bewilder the jury. There have been several writs of certiorari, each of which has brought up a set of instructions, attended with no explanation, and to which there is no reference in the bill of exceptions to identify them as the instructions actually ruled upon at the trial of the interplea. Obviously, the clerk has been confused by the change of po-Practice sition of Teiry, who was plaintiff in the inter-in Supreme Court: locutory trial, and def endant in the interplea, Instructions must be In bill of and having all the papers before him, perhaps exceptions, in confused order, has inserted the wrong instructions. The efforts to correct this by certiorari are futile. If, not brought into the record by the bill of exceptions, the instructions can not be noticed. This court, on appeal, can act upon the record alone, and must act on what appears there. Although entirely satisfied, as men, that his Honor, the circuit judge, did not give the instructions contained in the transcript, in the correction shown, and that he did give other instructions, which, whether erroneous or not, were certainly pertinent to the issue, we can not know it judicially. It was error to give the instructions as they appear. They would mislead a jury, and confuse them so as to make it very hard to come to any intelligent understanding of the law applicable to the issues submitted. Inasmuch as there must be a new trial, we deem it best
35 Ark.] NOVEMBER, TERM, 1879. 225 to express no_ opinion as to the evidence, or the instructions brought up by certiorari. Reverse the judgment, and remand the cause for further proceedings, with instructions to grant a new trial on the in-terplea.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.