FENTER V. OBAUGH. VOL. 17 become security in such bond, assured him that it was a delivery bond, and that his obligation upon it, would cease upon delivery of the property at the then next succeeding term of the court ; upon which assurance, F. executed the bond, protesting that he would not execute a bond for any other purpose ::Held, 1st : That the facts set up inducing the execution of the bond, if the representations. as to its character, had been made by the obligoes, were a good defense under a special plea of non est factum. 2. That the plaintiffs in the chancery cause, the obligees in the bond, were as much bound by the representations made by the sheriff to the obligor as to the character of the bond, as if made by themselves. 3. That the bond, when returned and tiled in the chancery cause, was dot a record, in such sense as would estop the obligor from denying the obligation for fraud in its execution. Appeal from Hot Spring Circuit Court. _10N. JOHN C. MURRAY, Cir— 1 cuit Judge. English, for the appeliaut. Watkins & Gallagher, for the appel-lees. HANLY, J. This was an action of debt, brought by the appellees against the appellants, and one Rippetoe, as sureties, for William Pond, in the Hot Spring circuit court on the following bond : "Know all men by these presents, that we, William Pond, as principal, Samuel Floyd, Andy [*73 Fenter, and P. B. Rippetoe, as securities, are held and firmly bound unto James B. Obaugh, and Matilda E., his wife, William Pond, jr., Willis Pond, Augustus B. Pond, and Mary Ann Pond, in the sum of one thousand dollars, &c., &c. Signed and sealed, this 25th day of August, 1856. 711 *FENTER ET AL. Conditioned, that whereas, the Hon. V. John J. Clendenin, judge of the cir-OBAUGH ET AL. cuit court of Hot Spring county, sit-1. A sheriff, having in his hands a writ, issued in ting as chancellor, in and for said a chancel y cause, COM manding him to take into bis county, in vacation, on the 2d day of possession certain property, then in the possession July, A. D. 1846, on hearing the bill of of the defendant in chancery, and to keep the complaint about to be tiled in said same until the final decree, unless the defendant court in chancery, by James Obaugh, should enter into bond, with sufficient security to abide the decree, &c., upon application to F. who and Matilda E., his wife, William was illiterate, and could neither read nor write, to Pond, jr., Willis Pond, Augustus B.
JAN. TERM, 1856. FENTER V. OBAUGH. Pond, and Mary Ann Pond, complain-The declaration set out the bond, ants, against William Pond, senior, and assigned as special breach of the and William F. S. Barkman, made an condition theieof, that on the 29th order on said bill, that upon said com-August, 1851, a final decree was ren-plainants entering into bond in the dered in said chancery cause; that the sum of one thousand dollars, to said right and title to said slaves should William Pond, senior, with sufficient pass to, and vest in, the complainants; security, to be thereafter approved, that William Pond, senior, should be conditioned that they would prosecute perpetually enjoined from asserting their said bill with effect, and would any claim thereto, and forthwith sur-pay whatever damages the said Wil—render to complainants the possession liam Pond, senior, might show to have of said slaves, which he had failed to sustained, if said bill should be ad-do, or otherwise abide the decree. The judged and decreed in his favor, the value of the slaves is stated, and gen-clerk of said circuit court, of Hot eral breach of non-payment of the Spring county, should issue a writ to bond, &c. the sheriff of said county, command-Defendant Pond was not served with ing him to take into his possession and process, and Rippetoe made default. custody, certain negro slaves, to-wit: Fenter and Floyd craved oyer of the Mariah, a woman, aged about 33 years; bond and its condition, which was Sopha, a girl, aged about 5 years; granted by filing a copy. Dennis, a boy, aged about 4 years, and Fenter filed four pleas: 1st. A special, an infant child, about 8 months old, plea of non est factum; in substance, child of said negro womaii Mariah that on the 25th August, 1846, the date (all then in the possession of the said of the supposed bond, and ever before William Pond), and hold the same, andsince, he was illiterate, ur educated subject to the further order of said and wholly unable to read or write; court, or the chancellor thereof, unless that after Fullerton, the sheriff, had said defendant, William Pond, should taken possession of said slaves, by vir-enter into bond to the said complain-tue of the writ of injunction mention-ants, in the sum of one thousand doled in the declaration, to wit: on the lars, with sufficient security, to be ap-25th August, 1846, he, as such sheriff, proved by said sheriff; conditioned that and said William Pond, senior, called he would abide the decree that might on defendant, whilst he was at labor be tendered in said case, and surrender in the wood, and then and there solicit-said slaves, in ease a surrender thereof ed him to sign a paper, which they should be required; aud, whereas, said called a bond for the delivery of said writ was issued in pursuance of said slave at the then approaching terni of order, and the said sheriff is prosecut-the Hot Spring circuit court, to be ing to execution the same; and, where-holden at Rockport, on the second as, said William Pond desires to retain Monday of September, then imme-possession of said negroes until diately following; that defendant de-741 *the determination of said cause; clared, positively, that he would not now if said William Pond, senior, sign a bond for any other purpose, than shall abide the decree thatmay be made for the delivery of said slaves to said in said case, and surrender the said sheriff, at said term of said court, negro slaves above described, in case a surrender thereof shall be adjudged, which was but a few days off, and that then the above obligation to be void; if the bond would bind him for else to be and remain in full force and any longer time, or any other effect." purpose, he would not sigu it.
FENTER v. OBAUGH. VOL. 17 That the said Fullerton and the A jury was sworn to try the issues 759 °said Pond, both assured him between the plaintiffs and defendants, that the bond was for no other purpose Fenter and Floyd, upon their repective than to secure the delivery of said pleas of non est factum, and also to in-slaves to the sheriff at said term of said quire into the truth of the breach as-court; that if said defendant would sign signed in the declaration, and assess it, he would then be relieved from all the damages sustained by the plaint-obligations thereon, on delivery of the iffs by reason thereof, &c. negroes as aforesaid; that defendant The jury returned a verdict in [*76 asked the said sheriff, Fullerton, to read favor of Fenter and Floyd upon the to him said bond and its condition, but issues, and found the breaches true, said Fullerton, after attempting so to and assessed the damages at $1,500, as do, said he could not read the hand-against Rippetoe, defendant, who was writing in which it was written, but in default. again positively assured the defendant, The plaintiffs then filed a motion for that it was for the delivery of said ne-judgment non obstante verdicto, against groes to him at the court aforesaid, and Fenter and Floyd, on the grounds that for no other , or different purpose; that their pleas of non est factum were not thereupon, said defendant permitted sufficient, in law, to sustain the ver-his name to be signed to said bond and dict rendered in their behalf. made his mark thereto; that after-The court sustained their motion, . wards, on the second Monday of Sep-and rendered judgment against Fenter tember, 1846, said defendant obtained and Floyd, as well as 1?ippetoe, for possession of said slaves, and took them $1,000, the penalty of the bond. to said town of Rockport, and deliv-It does not appear from the tran-ered them to the said Fullerton, as such script, that after the rendition of the sheriff, in accordance with what he, judgment, non obstante, against Fenter defendant, understood and believed to and Floyd, and other proceedings were be his undertaking in said bond; that had in the court below, in the way of the said sheriff received into his cus-calling in a jury to find the breaches tody and possession said slaves, and assigned and the assessment of dam-during that day defendant was in-ages thereunder; but the judgment was formed, for the first time, that the made final at once. bond, which he had executed as afore-The defendants Fenter and Floyd ex-said, was not a delivery bond, as had cepted, and appealed to this court. been represented to him, but was con-Three several causes are assigned by ditioned, as its tenor shows, and so the the appellants, why the judgment of defendant says, that the supposed bond the Hot Spring circuit court should be in the said declaration, is not his act reversed, and under them, in conse-and deed—concluding with a verifica-quence of the position assumed by the tion. Plea sworn to. appellees, the broad ground is pre-It is deemed unnecessary to set out sented to this court, whether or not the the other pleas of Fenter, or to notice appellants can controvert, in an action the proceedings had upon them. brought upon the character of bond Floyd filed a special plea of non est which we have stated, the fact of the factum, the same, in substance and ef-execution of the instrument, either by fect, as Fenter's first one. a general or special plea of non est fac-The plaintiffs took issue to Fenter's tum; maintaining, as they do, that the first plea; also, to the one interposed appellants are estopped from denying by Floyd. their deed; because, by the return of
JAN. TERM, 1856. FENTER V. OBAUGH. the sheriff, made in conformity with the burden of the issue is on the party the fiat of the chancellor, it has be-pleading it. See 2 Greenl. Ev., sec. come a part of the records of the chan-300, p. 303, and the case of Brown v. cery cause, to which it relates and ap-Wright, determined at the present plies, relying upon the well established term of this court, and the authorities principle, that a record cannot be col-there cited. Besides this, there are. laterally questioned by either the par-many defenses which could only be ties thereto, or their privies. rendered available by pleading in this In determining the point involved form. See same reference ; also 1 in the above proposition, we will do so C hitty's Pl., p. 483, texet and note A. in reference to the defense set up in the Such, for instance, as the defense set first plea of the appellants, which we up in the plea under consideration ;- will denominate, as it evidently is a which, we therefore, hold to be in due special plea of non est factum of the inform, and appropriately pleaded, if the strument sued on. substance thereof is available as a bar ; 771 *And in considering the sub-which we will proceed to determine ject, we shall sub-divide the proposi-under the heads above proposed. tion into the following heads of en-As to the first head: It is said that quiry : if a man, that is illiterate, desire a bond 1. Is the matter set up in the plea read to him, that he is to seal, and it a good bar, supposing the representa-is not done, and he seal it, it is not a tions charged to have been made _by good deed. See 1 Sheppard's Touch-the sheriff of Hot Spring county, were stone, p. 53, 54, 55, 56, 60; 2 lucker's charged to have been made by the ap-Corn. 414. And this is so, for *the P78 pellees, and leaving out the question reason, that the act thus performed, the assumption, that the bond, after wants that essential quality which is return, is recorded ? necessary to exist in all contracts, to 2. Admitting that if the representa-make them effective and operative : tions stated in the plea had been made 1. e., the assent of the parties: for, says by the appellees, the defense would Mr. Parsons, in his invaluable work on have been good and available to the contracts : " There is no contract un-appellants; does not the fact that they less the parties thereto assent, and they were made by the sheriff of Hot must assent to the same thing, in the Spring county, whilst executing pro-same sense. A mere assent does not cess, alter their effect or render them suffice to constitute a contract, for unavailable to appellant ? there may be an assent in a matter of 3. And if the representations being opinion, or in some fact which is done made by the sheriff do not alter their and completed at the time ; and, there-effect as to the appellants, can they be fore, leaves no obligation behind it. set up as a defense, after the bond is Seel Parsons . on Con. 399. And we returned and becomes a record ? apprehend that this assent must as We shall consider these several ques-well exist in reference to the substance tions in the order in which they are re-of the contract itself, as to its subject spectively presented, conceiving, as we matter, as maintained by the author do, that their solution must determine we have just quoted. But we are not this cause, one way or the other, with left to speculation as the only means out reference to the other errors as-of solving this branch of our problem ; signed. The only effect of pleading for it hath become an established non est factum specially, instead of principle of the law, that "if the generally, is, that in the former case party, to whom the deed is to be
FESTER v. OBAITGH. VOL. 17 given, or a stranger, shall read or de-this, in which he says (speaking of an clare the contents of the deed, falsely execution, the return of which was at-or otherwise than the truth is, the deed tempted to be controverted by the de-will be void." See our reference to 1 fendant therein, which he held could Sheppard's Youchstene, as above ; also, not be done for the reason among Hallenbek and wife v. Dewitt, 2 J. R. others), 'It is executed for their (de-404; Jackson ex dern., Tracy v. Hay-fendants') benefit by the officer of the ner, 12 J. R. 369; Van Valkenburgh v. law." See Newton v...,The State Bank, Rouk,12 .1. R. 337; Daw v. Munsell, 14 Ark. 13. 13 J. R. 430, cited by the appellant's Besides this, from the official position counsel; and also see 2 Tucker's Com-of the sheriff, at the time the represent-ments 415; 1 Fondb. Eq.115. ations were made by him, it was fair In Van Valkenburgh v. Rouk, Spen-for the appellants to presume, that he cer, Judge, said : " If a deed be mis-was not only cognizant of the particu-read or misexpounded to an unlettered lar duties, which he had to perform, man, this may be shown on non est but likewise of the character and im-factum ; because he has never assented port of all documents legitimately re— to the contract. So, if a man be im-sulting from the performance of those posed upon, and signs oue paper while duties ; thereby rendering him the he believes he is signing another, he proper person to be applied to for such cannot be said to have assented to it." information . as the appellants de-We will not pursue this branch of our manded, before they would execute the subject farther, remarking, in pass-bond iu question. His relation, in this ing, in justice -to the counsel view, was official, and quasi fiduciary, for the appellees, that the position is in respect to both parties to the chan-conceded in their argument. We hold, cery suit. He was the person whose therefore, that the matter set up in the duty it was made, ordinarily, in such plea is a good bar, conceding the repre-cases, to prepare the bond or have it sentations, therein charged Lo have done ; and consequently, to know its been made by the sheriff of Hot contents and purport, even thouglihe Spring county, were charged to have might not be able to read the hand in 791 *been made by the appellees, which it was written. He was the per-leaving out of question the assumption son whose duty it was, as he really did, that the bond, after return, is a record. on the occasion referred to, to take the Secondly. In the execution of pro-bond, it is true, not payable to himself, cess, such as the sheriff of Hot Spring but the appellees. The appellants it county had iu his hands at the time it seems, were unlettered. This fact must is averred he made the representations have been known to the sheriff, for the to the appellants, touching the bond, plea avers that they asked him to read though acting in the capacity of a pub-them the bond ; and, also, when lic officer or functionary, he sustained *they were told he could not do psi) towards the appellees, to some extent, so, on account of the illegibility of the the relation of agent or servant, result-writing, they replied they would sign ing as well from the particular phrase-the instrument,- but would only do so ology of the fiat of the judge or chancel-on the assurance that the negroes could lor, as from the special act, which he be delivered thereunder, at the next was required to do thereunder within term of the court, which was then near the scope of his general duties, and for at hand, in pursuance of its condition. the reason, as expressed by Walker, The assurance of the sheriff was then J., in a case not without analogy to the inducement, which influenced the
JAN. TERM, 1856. FENTER V. OBAUGH. appellants to seal the deed. This as-counsel for the appellees, con-surance may have been made in good *ceding, by way of argument, the [*81 faith on the part of the sheriff, which above points, as we have determined we have no reason to doubt or question them, that in consequence of the bond from the face of the plea ; but it was in question having relation to the untrue and unauthorized, and if an in-chancery suit, to which it applied, and jury must result from it, on whom must being returned by the sheriff; and filed and should it fall? Certainly not on in that cause by the clerk, it became, the unfortunate, unlettered appellants, ipso flicto, record, and as a consequence but upon the party who, though per-thereof, that no defense can be heard haps, innocently, yet unadvisedly, oc-whereby to impeach or question it in casioned the injury. The consequences any way, and the case of Newton v. a m ust rest upon the sheriff, at the suit The State Bank, 14 Ai . k. Rep. page 1, the appellees, for we conceive there is cited in support of the latter part of can be no fault laid to the appellants the proposition. By reference to that from the facts set up in the plea. It is case, it will be perceived, the adjudica-true, the appellees had no part in the tion was made on the following facts : false representation which induced the The action was ejectment, brought by appellants to make the deed. Ihey, the plaintiff against the defendant for therefore, are equally innocent, and two lots. Plaintiff claimed title to stand as favorable before the court ; them as purchaser at execution sale, but the maxim of the law, in such and at the trial produced the record cases, is, "that where the rights of the showing judgment against defendant, parties are equal, the condition of the an execution-duly returned, showing a defendant is best." But independent regular levy on the lots, their adver-• of the foregoing considerations, the tisement and sale according to law ; authorities we have already given, in and also, the deed of the sheriff duly treating of a previous branch of the executed, acknowledged and recorded. subject, particularly the extract which The defendant then offered to prove, we gave front 1 Sheppard's Touchstone, by parol, that the sale to the plaintiff in which the following passage occurs, was made without notice, and on a "if the party to whom the deed is given, different day, and on one subsequent or a stranger, shall read or declare the to that stated in the sheriff's return. contents of the deed falsely or other-This court, in that case, held, that "the wise than the truth is, the deed will acts of an officer done in obedience be void" (which we find fully sus-to the law, when required to be certi-tained by the adjudicated cases, which fied and returned, form a part of the we have referred to, in the same con-records of the case in which they are nection), render it clear to our minds, had, and being part of the records, the that though the plea charges the return, as well as the execution and false representations which induced the judgment, imports absolute verity, the appellants to make the deed in and is alike conclusive, as the judg-question, to have been made by the ment, upon the rights of the parties sheriff of Hot Spring county ; yet that to the record. does as effectually bar ■Ate appellees, It will be perceived from tne lan-under all the attendant facts, as if the guage of this court,in the extract which representations had been made by we have given, that the judgment of themselves, and so averred ic the the court was predicated upon the fact, pleadings. that the defendant in that case, was Thirdly. It is insisted by the the defendant in the case under which 4 Rep.
FENTER v. ORM:JOH. VOL. 17 the sale had been made to Newton ; versal principal, that where fraud ex-or, in other words, that he was the ists in any of the varied transactions "party to the record" in that case. In of men, the party, who may be affected the case that we are considering, the by it, may be relieved in one or other appellants were not parties to record in of the forums ordained and established the chancery cause, except so far as for the adjudication of rights between they may have collaterally been mgde man and man. In the case at bar, the so, by making the bond in question. appellants .have virtually charged, in The fact of their being connected with their plea, fraud against the appellees, the cause in this way, would not by which they hope to avoid the deed: conclude them upon the record, in for we hold that the facts averred are 82 • reference to the subject matter of substantially to this effect. That we the suit. A decree in that cause, one are sustained in the above views, we way or another, could not affect them, refer again to the case of Newton v. The except to afford evidence, in pais, to State Bank, and the reasoning urged enable the appellees to establish their by Walker, Judge, in delivering the breaches. But the court say, in passing' opinion of the court in that case, upon the deed, in the case of Newton in which he says, after holding v. The State Bank, "our conviction is, parol evidence inadmissible to con-that the deed is conclusive and cannot tradict a sheriff's deed : "The be impeached on a collateral issue, ex-door for re-investigation is closed cept for fraud in the execution of the upon the parties to the record. [4-83 deed, when the process, under which It is not to be questioned by them; the land was sold, is supported by au this, because they are parties to the existing unsatisfied judgment." record, and have had day in court, and There is a marked and evident dif-it is not only their interest, hut their ference between the case referred to by duty to look to the regularity of the the counsel, as above,and the one being proceedings, and when passed without considered, in this; lst. In the present objection, they may be said, in effect,. case, the proceeding is a direct one to have received the approval of the upon the bond; and secondly : Be-parties," &c. If, now, the doors of the cause fraud is charged in the plea to court having ample jurisdiction to de-avoid the record. We understand the termine their cause, are to be closed difference between a direct and collat-against appellants having had no day eral proceeding, in the acceptation of in court in the chancery cause,' verily this court in the above case, to be this. they would be in a most deplorable A direct proceeding upon a record is, and lamentable co . ndition; for, if they where the record is itself the founda-cannot be relieved under the state of tion, or cause of action, and the pro-facts set out in the plea, by making the ceedings designed to impeach it is for same case by bill in equity, they could fraud, &c. A collateral proceeding not expect to share a better fate, and upon a record is, where the action is thus they would have no remedy for or on something else, but where against a bond, which is not their deed,. the record may or does incidently arise, whether by direct or collateral pro-or come in question. In the former ceeding thereon. But we will not fur-case, according to the case of Newton ther reason on the subject, holding as v. The State Bank, the record may be we do, that, independent of what we impeached ; for the proceeding is for has% said, it has virtually been put at that purpose. In the latter case, it rest by former adjudications of this cannot except for fraud, on the uni-court. See liuddell v. Magruder, 11
JAN. TEEM, 1856. Ark. 583, 584; 1?eardon ex parte, 9 Ark. For the above error, let the judg-453; Dugan ad. v. Fowler, 14 Ark. Rep. ment of the Hot Spring circuit court 136, in which latter case, the snit was be, and the same is hereby reversed; directly founded upon a delivery bond, and let it be certified to said circuit and in which the court say: "When court, that it is hereby directed and re-suit is broUght upon the bond, it may quired to render judgment upon the be defended against just as when verdict of the jury returned in this brought upon any other instrument, cause for the appellants at the trial. upon which there has been a recovery Mr. Chief Justice English did not had." By which, as we understand it, sit in this case. the court laid down the law to be, that, Cited:—Frits v. Frits, 32-327. in consequence of a delivery bond, after forfeiture having the force and effect of, and being in fact an office judgment, no defense could be interposed which could reach behind the date of the judgment. Hence, its execution or consideration could not be questioned after breach, for the reason, that the bond, by operation of the statute, is transformed into, or is merged in the judgment, which becomes, thenceforward, the evidence of what the bond before imported. For defects, relating to the execution or consideration of the bond, after breach the party could have no other relief than a resort to a court of equity. See as to this, Reardon ex parte and Ruddell v. Ma-gruder, as above. 841 *Wherefore, holding as we have done, that the first plea of the appellants set up a good defense to the ap-pellees' action upon the bond in question, it is clearly our opinion that the circuit court of Hot Spring county erred in disregarding the finding -and verdict of the jury, upon the issue to that plea, and rendering judgment, non obstante, for the appellees, the law being in such case, that judgment, non obstante verdicto, can only be given where the plea of the defendant confesses the action, and does not sufficiently avoid it; in which case judgment shall be given for the plaintiff, on the confession, without regard to the verdict, in favor of the defendant. See 2 Tidd's PPactice, p. 920; Dickin-son v. Morrison, 6 Ark. 266, 267.
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.