Johnson v. Mays, 8 Ark. 386 (1848)

Jan. 1848 · Arkansas Supreme Court

8 Ark. 386

Johnson & Clark v. Mays & Meeks.

The certificate of the Register of the Land-office, appended to a transcript from the books of his office, that the same is a true copy, is not testimony before the jury — the whole scope of the certificate being, to make the copies of the entries evidence of .the same dignity as the original eiitries.

• On the sale of donation claims which had beén proven up but not adjudicated, the vendors covenant to refund the cash payment* if the claims were not allowed by a certain day, and to do all other things necessary to secure a tide: held, that it is not necessary that die vendees, in order to maintain their action on the covenant to recover back the cash payment, should prove notice to the vendors of the rejection of the claims'.

Appeal from the Circuit Court of Benton county.

This was an action of covenant, brought by Benjamin Johnson and James Clark, against Daniel Mays and John Meeks; and determined in the Circuit Court of Benton county, at the May term, 1846, before the Hon. Sebron G. Sneed-, Judge.

An appeal from the judgment of the Circuit Court of Benton county, in a suit upon the same covenant, was decided at the July term,-1842, of this court; vide 4 Ark. Rep. 613; but upon the return of the case to the Circuit Court, it was dismissed, and a new suit brought.

The declaration sets out a bond with condition, reciting that the defendants had sold to the plaintiffs three donation claims, which had been proven up at the Land-office at Helena, but not adjudicated, in consideration of six hundred dollars, paid at the date of the contract, by the plaintiffs, and twenty-four hundred dollars to be paid on the 29th of September thereafter, if the claims were by that time allowed; if not, that the defendants would refund the six hundred dollars, with interest at the rate of ten per cent, from date; and that at that time, or so soon as the last payment should be made, they would make transfers of powers of attorney, and do every other act or acts that might be necessary, to secure to the plaintiffs the legal title to the land secured by said donation. The breach assigned is, that the claims were adjudicated and rejected by the Register and Receiver of the Land-office, as spurious and fraudulent. Plea, that the claims were not, by the Register and Receiver of the said Land-office, adjudicated and rejected, as spurious and fraudulent. A jury was called; and the plaintiffs, to prove the issue on their part, read in evidence the bond and condition, and a transcript of the abstract of donation claims, duly certified by the Register of the Land-office at Helena; whereby it appeared that the said claims had been adjudicated and rejected. The plaintiff then asked the court to instruct the jury, “that the transcript of the record of donation claims and the certificate of the Register of the Land-office at Helena, Arkansas, of that record, read in evidence, was the record evidence of the adjudication and rejection of donation claims;” “that the certificate of the Register of the Land-office at Helena, Arkansas, appended to the transcript of the record, was evidence in connection with the transcript of said record of the action had on the same by the Register and Receiver upon donation claims;” “that no notice was required, by the plaintiffs to defendants, in this bond read in evidence of the rejection of the donation claims, to entitle the plaintiffs to maintain their action, and if notice was required, that the copy or transcript of the record read in evidence of the rejection of said donation claims, was sufficient in law.” The court refused to give the instructions asked, and the plaintiffs excepted. The verdict and judgment being against them, they appealed to this court.

Ringo <fe Trapnall, for the appellants.

E. H. English, contra.

Conway B, J.

On the 19th day of May, 1836, appellants'contracted with appellees for three unadjudicated Lovely donation claims. They agreed to give for them $3000, and paid in hand $600, and were to pay the balance oh or before the 29th of September following, if said claims were allowed; if not, appellees were then to refund the $600, with ten per cent, interest. Appellants sued on this contract, and 'alleged that said claims had been adjudicated by the Register and Receiver, and rejected, and that appellees had not refunded.the $600, with interest, as stipulated. Appellees pled that said claims had not been adjudicated and rejected. Issue was joined and trial had, which resulted in verdict and judgment for appellees.

At the trial, there were three instructions asked for by appellants, all of which the court refused to give, and appellants excepted. The two first were founded upon the erroneous assumption that the certificate of the Register was part of the evidence before the jury, when it was but the basis for the admission of the copy as evidence; the whole scope of the certificate being to make the copy of the entries evidence of the same dignity as the original entries in the books of the Land-office. The court therefore correctly declined giving the jury the two first instructions. It is very obvious, however, that it erred in refusing the third. For, so far from its having been necessary for the appellees to be notified of the adjudication and rejection of the claims, it was clearly their duty, under the contract, to prose-ecute the claims to final adjudication, and that, too, by the 29th of September, 1836, for that was the time agreed on by the parties for the payment of the balance of the purchase money for the claims, if allowed; if rejected, for the refundment of the $600 with interest.

The judgment is therefore reversed.