J AN. TERM, 1856. JONES V. AUSTIN. • JON ES I, F. C. Austin, has bargained and sold V. to Willis Jones, all the improvements AUSTIN. on the north half of section nine, and south half section four, for the BUM of Where the matter in issue arises out of the sale of five hundred dollars, four hundred dol-an improvement upon the public land, there is not such question or controversy-in respect to the title lars to be paid at March court, one to land, as would, under the decision in Fitzgerald hundred to be paid the first day of et al. v. Beebe, 7 Ark. Bey. 308, exclude the j urisdic-January, 1855. I furthermore bind tion of a justice of the peace, 'where the sum ip myself to give to the said Jones posses-controversy is less than one hundred dollars. Where the verdict is nut entirely without evi-sion this day, January 5th, 1854. •dence to supptirt it, and the evidence is applicable his to the instructions, which are nt contrary to the F. C. AUSTIN." law, the verdic and judgment thereon will be sus-mark tained. Where a contract is obtained from a party, who O'Neill, one of the subscribing wit-is unable to read or write, by fraud, the jury may nesses to the above instrument,testified -disregard it. that he was one of the arbitrators se-To procure the execution of an instrument of lected by Austin and Jones to settle a writing by a party, who is unable to read or write, without his knowing its contents, or when he be-controversy between them in regard to lieved its contents were different from what they, an improvement ; and his recollection •on account of the fraudulent representations of of the final agreement between the others, really were, is such a fraud as would avoid parties (to carry which into effect, the instrument. Jones gave the note sued on and an Appeal from Drew Circuit Court.. other for $400, and Austin gave the ON. THEO DORIC F. SOR-above instrument) was, that Austin H RELLS, Circuit Judge. had sold to Jones all his (Austin's) improvements on the two half sections Cummins, for appellant. of land named in the instru-Harrison, for appellee. ment, and no other improvements or claims. Witness did not 499'1 "ENGLISH, C. J, Fountain C. read the "instrument at the r500 Austin sued Willis Jones, before a jus-time, or before Austin signed it, but tice of the peace of Drew county, on a explained to him what the agreemenl note for $100, executed by Jones to was, as settled by the arbitrators, ano Austin, on the 5th of January, 1854, which was as above stated, as witness and due the first of January,1855. understood it. Austin could neither Judgment in favor of the plaintiff be-read nor write. Witness was under fore the justice, and appeal to the cir-the impression that the instrument cuit court of said county by defendant. was signed by him after witness ex-In the circuit court, the cause was plained the agreement to him. Wit-submitted to a jury, Jones relying, ness thought the instrument read, as seems, upon the defense of failure of he understood the agreement, and did consideration. not suppose it included the improve-After Austin had read in evidence ments of Gadclie, or any one else, on the note sued on. and closed, Jones in-the lands. Witness had attended to troduced the following instrument, the matter throughout, and made the proving by one of the subscribing wit-compromise for Austin in his absence. nesses, that Austin made his mark He supposed Austin was only selling thereto, &c. his own improvements on the lands. "DREW COUNTY, ARKANSAS. Nothing was said of the improvements J rnow all men by these p r esents, That of other persons being on the lands. 18 Rep
JONES V. AUSTIN. VoL. 17 Jones said he wanted the instrument, land in that half section included by which was written by himself, to show the line ? He said he did ; that he to his neighbors and father-in-law in bought it from Evans, and intended to Mississippi, to remove a false impres— have it. Witness asked him if he did sion which had got abroad, that he not intend to pay Gaddie for it ? He had entered the improvement of Aus-said he would ; or clear as much land tin, and refused to pay him for it : he on Gaddie's tract for him. The im-gave no reason for wanting it. Wit-provement of Gaddie, included within ness did not know whether Jones the line, was worth about $40. The knew that Gaddie and Ethridge improvement of Ethridge, included had improvements on said lands or within said half sections, consisted of not. He had lived there for some six or eight acres, and was worth $20 time before that, and ought to or $30. Austin claimed all the im-have known that their improve-provements on the two half sections. ments were partly on the lands. The Witness was also present when the object of the instrument being given above instrument was executed. The was not to operate as a conveyance, arbitrators were in one room, and wit-but to be used by Jones to clear his ness and Austin in an adjoining one. character. When it was presented to When the arbitrators seemed to have Austin, he objected to signing it, be-agreed, they sent for Austin, who went cause he could not give a deed for pub-in to them, and witness distinctly lic land. Witness explained it to him, heard O'Neill's voice, he thought, stat-telling him it was not a contract to ing what the agreement was : that convey the lands, nor his improve-Austin was to sell Jones all the im ment thereon, but to show that Jones provements on said two half sections. had paid him for his improvements,and Witness did not, at the time, hear the to vindicate Jones' character. Jones instrument read, or see it, but a few read the instrument to witness, and days afterwards he called on Jones and Dear, the other subscribing witness, asked him to show it to him, which he but not to Austin. Witness did not did ; and it then read as it now does in recollect anything of the word "all" every respect. His reason for asking occurring in it : or "all the improve-to see the instrument was, that it was ments : " for, if he had noticed it, he reported in the neighborhood that Aus-would have objected to it. Jones was, tin had undertaken to sell part of the at the time, living on the Gaddie im-improvements of Gaddie and Eth-provement. Possession was delivered ridge. to him of Austin's improvement within Wood testified, that he was one of an hour or two after the instrument the arbitrators to settle the controversy was given, and he expressed himself between Austin and Jones. That on satisfied. the day or night before the notes and 5011 'Halley testified, that about agreement were given, when the arbi-the time Jones and Austin were mak-trators were considering the subject, ing the trade about the improvement Jones finally said he would give Aus-on the two half sections named in the tin $500 for the improvements, if Aus-above instrument, he went round with tin would give him a writing that he them as they run the tines of the land. had sold him all the improvements on The line included some ten acres of the the two half sections named in the improvement of Gaddie. When they agreement. The arbitrators said it came to this part of the line, witness should be done next day. Next day, asked Austin if he claimed all the Austin was informed of *this. [*502
JAN. TERM, 1856. JONES V. AUSTIN. Witness was present when the instru-The court charged the jury : 1. That ment was explained to Austin before the contract of Austin, read in evi-he signed it, and it was explained as he dence, was prima facie evidence, and had above stated the contract to be. prima facie valid ; if they believed Gaddie testified, that he had an im-from the evidence, that said instru-pro vement,:eight orlten acres of which, *ment was obtained from [*5433 cleared and fenced, were within the Austin by fraud, then they might north half of section nine, referred to wholly disregard the same. in the agreement. That before the 2. If the jury find from the evi-agreement was made, Jones had rented dence, that the signature of Austin from him his entire improvement for was procured to said instrument, with-so much per acre, and lived at his out his knowing its contents, or when house, and on his improvement (part he believed its contents were different of which extended into the north half from what they, on account of the of section nine, as aforesaid), at the fraudulent representations of others, time said agreement was executed. He really were, this would be such fraud afterwards arranged the rent as to all as to avoid the instrument, and in that sarid improvements, except that part case, the jury have a right to disregard extending on the north half of section said instrument. nine, which he refused . to pay for. 3. If the jury, however, find said Witness still claimed the improvement instrument executed by Austin, was made by him, and would insist on pay valid, and further that one or more, or for it from some one. part of one or more of the improve-Holland testified, that he was along ments on the lands in said contract when Jones and Austin ran the lines mentioned, never belonged to Austin, of said lands, and Austin claimed all and Jones never got them, then, they the land on the the north half of sec-should deduct from the note sued on, tion nine. It was asked at the time by the value of such improvement as Jones or Austin, how far Gaddie's Jones was thus deprived of. claim would extend on the north half 4. If they found said contract to be of section rine, and witness showed fraudulent and void, they might find them by reference to a treetop. the amount of note and interest for Ethridge testified, that he had made Austin." an improvement, some six or eight The jury returned a verdict in favor acres of which lay on the north half of of Austin, for the amount of tbe note said section nine. He still claimed sued on, and interest, and judgment said improvement, and would insist ou was rendered accordingly. payment there for. Jones had not, as Jones moved for a new trial, on the-far as witness knew, been in possession ground, that the verdict was contrary of that part lying in section nine. to law, evidence, and the instructions The above being all the evidence of the court: that the court erred in offered or introduced by the parties, its instructions to the jury. and in Jones moved the court to dismiss the not dismissing the case for want of case for want of jurisdiction in the jus-jurisdiction. The court overruled the tice of the peace, and in the circuit motion, Tones excepted, and appealed court on the appeal, of the subject to this court. matter of the suit, because it appeared 1. The counsel for the appellant from the evidence, that titles to real insists that the court below should estate were involved, Sze. The court have dismissed the case for want of overruled the motion. jurisdiction, on the authority of Fitz-
VoL. 17 gerald et al. v. Beebe, 7 Ark. Rep. 308, Upon the whole record, no error has where it was held that justices of the been pointed out for which we think peace have no power to entertain an the judgment should be reversed, and action for use and occupation, where it is affirmed. the title for the plaintiff may be dis-Note.—See note 1, Fitzgerald V. Beebe, puted, and drawn into question and 7-308, on jurisdiction of J. P. where title to land is involved. controversy by the occupant: in other words, that they have no jurisdiction "of any action where the title to any lands shall come in question." Digest, chap. 95, part 2 sec. 5, p. 641. The case before us, is not like the one 5041 cited. Here, neither *the instrument read in evidence by Jones, nor the parol testimony introduced by the parties, conduced to show that Austin had contracted to sell or convey to Jones, any title to the lands, not even a pre-emption, but merely improvements upon what we suppose, from the testimony, to have been public lands. The main point in controversy, seems to have been, as to whether Austin sold his own improvement only, or such portions of the improvements of Gaddie and Ethridge also, as extended over upon the tract of land on which Austin's improvement was situated. The note sued on did not exceed $100, and was within the jurisdiction of the justice, and we find nothing iu the testimony upon which the court below could have held that the jurisdiction was defeated. 2. The verdict is not entirely without evidence to sustain it: nor were the first and second instructions given by the court to the . jury, which are the only ones complained of here, -altogether abstract, as contended by the counsel for the appellant. There were portions of O'Neill's testimony, to which they were, to some extent, applicable. No other objection is made to them. • The parol testimony in explanation of the written contract read in evidence, took a tolerably latitudinous range, but neither party seems to have objected to it.
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.