| Ark. | Nov 15, 1881
There were two counts in the indictment in this case, which is similar in some of its features to the-case of Isaac Z. Cooper v. State, ante.
The first count charged in substance, that George M. Cooper, on the first day of June, A. D., 1881, in the county of Lawrence, etc., “feloniously did sell, barter or otherwise dispose of a certain mule of the value of fifty dollars, on-which said mule a lien then and their existed by virtue of a certain deed of trust executed by the said George M. Cooper on the twenty-eighth day of February, 1881, in favor of G. Kaufman, as trustee for the benefit of E. Krone & Co., etc.,, on which said deed of trust was the following endorsement, to-wit: This instrument is to be filed, but not recorded. E. Krone & Co., “and was duly filed in the office of the recorder of deeds in and for said county of Lawrence, he, the said George M. Cooper, then and there, not having the-consent of said G. Kaufman, trustee as aforesaid, or E. Krone & Co., soto do,” etc.
The second count charged, in substance, that said George M. Cooper on etc., at, etc., feloniously, did remove-bey ond the limits of said county of Lawrence, a certain mule of the value of fifty dollars, on which said mule a lien then and there existed by virtue of a certain deed of trust executed by said George M. Cooper, etc., etc., describing the deed of trust, etc., as in the first count.
The first count of the indictment, which charges that the appellant did sell, barter, or otherwise dispose of the mxde, was bad, for uncertainty, as held of the third count of the indictment in Isaac Z. Cooper’s case.
The bill of exceptions shows, that on the trial there evidence conducing to prove that after the deed of trust, described in the indictment, had been executed, acknowledged and filed in the office of the recorder of Lawrence county, and before the 1st of June, 1881, appellant, without the consent of the trustees or beneficiaries, took the mule to Randolph county, and there sold or traded it to one, Bud Davis. The evidence related to, and sustains the charge in the second count of the indictment, and the general verdict was good, though the first count was bad, as held in Isaac Z. Cooper’s case.
.Appellant offered to introduce no other evidence.
The recitals of. the deed of trust,.executed 28th February, 1881, showed that the appellant represented to Krone & Co. that he intended to, and agreed to cultivate, that year, twenty acres in cotton on a farm in Lawrence county, known as the Jenkins place; that he was then indebted to them in the sum of fifty dollai’S for supplies theretofore furnished, and proposed to purchase of them such other ■articles of merchandise as might be necessary or useful to himself, his family and laborers, for the purpose of making and gathering his said crop, etc.
The- deed, after the recitals, proceeds to convey to the trustee the future cotton crop and the mule in controversy, to be kept on the farm' as security for the then- indebtedness of appellant, and for the supplies to be thereafter furnished by Krone & Co.
The state proved by Kaufman, the trustee, that Krone & Co. furnished the appellant, after the execution of the trust deed, about fifty dollars in value, of supplies ; that the goods bought by appellant, under the trust deed, were such as were necessary for him and his wife to live upon and to make a crop with; that he had a wife, lived to himself, and owned the property mortgaged.
The State also proved that E. Krone went to the residence of appellant in Lawrence county, in June, 1881, and asked him where the mortgaged mule was; that he first denied having sold or removed the mule, but upon being pressed as to where it was, finally said he had taken it to Randolph county and sold it to Bud Davis ; said he knew he was doing wrong when he removed and Sold the mule, and wanted to compromise the matter with Krone.
It was also proved that after this that Krone went to Randolph county and got the mule.
The only material matter which appellant offered to prove by his mother was that he was but twenty years of ■age when he executed the trust deed, and had not reached majority at the time of the trial. He did not offer to prove by her or any other witness, that the supplies, advanced upon the trust deed, were not necessaries, as proved by Kaufman, the trustee.
The trust deed was not void, for the reason that appellant was a minor when it was executed, nor was it voidable, to the extent that it was for necessaries.
In the case iast cited, this court approving the above rule, held that an infant might bind himself for necessaries by a bond, inasmuch, as by statute, the consideration of a bond anight be inquired into and impeached, and that in a suit on the bond, plaintiff might recover, if infancy was pleaded, •■so much as was for necessaries.
The deed of trust was under seal, but private seals being .•abolished, the seal added nothing to the dignity or solemnity of the instrument.
In a foreclosure suit the consideration would be open for inquiry', and recovery had, on plea of infancy, for the value -of such of the supplies as were necessaries.
The deed of trust was not void or voidable, to tbe extent it was for necessaries, and appellant could not treat it as-invalid, or disaffirm it by removal and sale of tbe mule.
Affirmed.