TERM, 1870.]

Gaines, et al. v. Hale & Rector.

RECORDING surveys of lands within the limits of the territories of Missouri and Illinois, shall be delivered to the surveyor of lands of the United States, authorized to be appointed by this act; and any plat of survey, duly certified by said surveyor, shall be admitted as evidence in any of the courts of the United States or territories thereof." And the third section provides, that "any act of Congress heretofore passed that is repugnant to, or inconsistent with, any of the provisions of this act be, and the same is hereby repealed.'

The act of 1815 required the surveyor to return a notice and plat to the recorder. The act of 1816 directed him to make out general and particular plats of all lands surveyed, and to send them to the registers and receivers of the land office, and to the commissioner of the general land office. I cannot, therefore, agree with the court, in its position, that "the act of 1816, so far as it changes or modifies the act of 1815, is simply to abolish the office of principal deputy surveyor and all other surveyor's offices that had previously been established."

The office of recorder of land titles was certainly included in the sweeping sentence, "or to any office heretofore established," etc., "for the purpose of executing or recording surveys," etc., as used in the act of 1816. The notice and plat required to be returned to the recorder, by the act of 1815, are certainly embraced in the term "all plats of the surveys, and all other papers and documents," as used in the act of 1816.

Thus it will be seen that the act of 1816 not only abolished the offices of principal deputy and other surveyors, but likewise created new and different depositories for plats, surveys and other documents, and provided new channels through which all plats and surveys found their way to the registers' and receivers' offices, and the head of the land department of the United States, the commissioners' office; and whatever was inconsistent with or repugnant to these provisions, in any act of Congress, was expressly repealed.

If these views should eventually be held correct, their bear

Scott v. Cantrell.

[DECEMBER ing, upon the rights of the parties here, would be of immense importance; for, from a most careful consideration of this case, I am much inclined to believe that, adopting the construction herein given, as to the effect of the act of 1816 on that of 1815, Rector fairly establishes his claim to the property in controversy, by showing a compliance, not only on his part, but also on the part of the officers of the government, with the provisions of the statutes. The wide difference of opinion on this one point, however, existing here, renders it unnecessary for me to take up the other points in detail.

VENDORS

SCOTT v. CANTRELL.

When liable for taxes.—A plea or answer by the maker of a note, given in part consideration for the purchase of lands, that indorsee of the note, knew at the time of the indorsement that there was a controversy between the vendor and vendee (the maker and indorser), concerning who should pay the taxes on the lands so sold-should aver such a character of contract between the vendor and vendee, as would entitle the vendee to a deed with covenants of general warranty or a bond to that effect.

Appeal from Pulaski Circuit Court.

HON. JOHN WHYTOCK, Circuit Judge.

Watkins & Rose, for appellant.

Clark & Williams, for appellee.

WILSHIRE, C. J.

The appellee, William A. Cantrell, brought suit against

Charles G. Scott and Noah H. Badgett, on a note, bearing date May 30, 1868, payable on the first day of September, 1869, for the sum of $2,280, with interest at ten per cent. per annum until paid. The appellant was sued as maker, and Badgett as the indorser of the note to Cantrell.

The appellant answered separately, and averred substantially as follows: That the note in suit was executed by him to his co-defendant, Badgett, in part consideration for the purchase, by him of Badgett, of certain real estate in the city of Little Rock, known as the "Fowler property;" that said Badgett was, at the date of the purchase, and for more than six months theretofore, the owner of said property; that when he purchased said property from Badgett, there was, by law, chargeable thereon, the State, county and city taxes, in and for the year 1868; that he applied to said Badgett and requested him to pay the same, which Badgett refused, and that the appellant, in order to prevent the advertisement and sale of said property, paid said taxes, amounting to the sum of $887 40; and that the appellee, when he became the owner or holder of the note, did so with notice of the dispute or controversy then and previously thereto pending between the appellant and Badgett, as to whose duty or obligation it was to pay said

taxes.

A demurrer to the answer being sustained, Scott appealed. We are of opinion that the demurrer was properly sustained.. The answer of Scott states generally that he purchased the property, for the payment of which, in part, the note in suit was given. There is no averment in the answer that Badgett made Scott a deed of any kind, and for aught that appears in the transcript of the record before us, Badgett may have made to Scott a quit claim deed, and that the note was made by Scott, in consideration of such a deed. If the contract of purchase between Scott and Badgett was of such a character as to entitle Scott to a deed with covenants of general warranty, or if Badgett had executed such a bond to him, so as to embrace covenants that follow the land, the answer should show it.

Holding, as we do, it is unnecessary to discuss the question raised by the passage of the act approved July 23, 1868, relating to the assessment and collection of taxes for that year. Judgment affirmed.

HUGHES V. WATT.

SHERIFF'S DEED.—To constitute a good and valid deed under an execution sale, there must be a valid judgment, a sufficient execution and levy, advertisement and sale.

A sheriff's deed, though prima facie evidence of the facts recited, yet a party may put the recitals in issue and go behind the deed to show their falsity, and where their falsity is shown, being public records, it effects the sufficiency of the deed and all concerned with notice.

HOMESTEAD.-Plea of homestead is a good defense to a possessory action, as against title acquired under execution.

Appeal from Ashley Circuit Court.

HON. HENRY B. MORSE, Circuit Judge.

Gallagher, Newton and Hempstead, for appellant.

We submit that where a fi. fa. has been levied on particular lands and afterwards a ven. ex. is issued, the sheriff can neither levy on or sell any other property than that on which the fi. fa. is levied. Whiting & Clark v. Beebe, 12 Ark. 422; Keith v. Wilson, 3 Metc. (Ky.) 201; Fenno v. Coulter, 14 Ark. 38; Smith v. Hughes, 24 Ill. 270; Holmes v. McIndoe, 20 Wis. 657. A homestead is not subject to sale under execution. Gould's Dig. chap. 68, sec. 29. In ejectment, a party must establish his title from its own strength and not by the weakness of his adversary's. Cavert v. Irwin, 3 Serg. & R. 283; 10 Johns. 339; 11 Ib.

504; 10 Barb. 454; 2 N. H. 35; 34 Ib. 148; 4 Greene (lowa) 45; Tyler on Ejectment, 72.

J. W. Van Gilder, for appellee.

The answer is intended for an answer at law, and attempts to set up several grounds of defense, none of which are so pleaded as to amount to a defense.

It attempts, first, to contradict the deed. This cannot be done at law. Ark. 299. Newton v. State Bank, 14

recitals in the sheriff's State Bank v. Noland, 13 Ark. 13.

GREGG, J.

The appellee brought his complaint at law in the Ashley circuit court, against the appellant, for the south-east quarter of section 19, township 16 south, range 4 west.

The complaint was in the usual form under the Code.

The appellant appeared and filed an answer containing three paragraphs, setting up, in substance:

First. That he has possession, and a right of possession, and denies appellee's title.

Second. He avers that a judgment, on a delivery bond, was had against himself and others; that an execution sued out thereon and levied upon the east half of the northeast quarter, and the north-east quarter of the north-west quarter of section 7, township 19, range 6, and returned without sale; that a ven. ex. was issued for the sale of said lands; and that upon such ven. ex. and without any levy, the sheriff' proceeded to sell the said south-east quarter of section 19, township 16, south range 4 west; that the same was bid off by John D. Haynes, the plaintiff in the execution, and afterward by collusion between the sheriff, Haynes and the appellee, the lands were deeded by the sheriff to the appellee, without payment of any consideration; and that the said deed fraudulently recited that the original execution had been levied upon the lands sold, etc.