"All advertisements and orders of publications required by law, or the orders of any court, or in conformity with any deed of trust, or mort**shall be published in some newspaper published and circulated in the county in which the proceedings are had, and" that "if there be no newspaper published in such county, then in some newspaper published the most convenient thereto having a bona fide circulation therein." No provision was made in the cases stated for notice except by newspaper publication. It evidently became apparent that the re It quirements of this act might become burdensome where the sum involved was small and the act of 1891 was amended by the statutes referred to until an optional system for advertising was provided in certain cases. is apparent that publication in a newspaper was treated as giving the highest degree of publicity, and that it was the purpose of the Legislature to give the widest possible publicity for the manifest purpose of inviting competition at the intended sale. Publication in some newspaper remains the exclusive method "where the amount therein received exceeds the sum of three hundred and fifty dollars." The proviso furnishes an optional method where the amount is under that sum. The language of the proviso shows that the other method therein provided is an optional one, for the language of the proviso is that written or printed notices may be posted in five conspicuous places. But if the optional method is adopted it becomes essential, not only to post the notices, but to serve a copy thereof "upon the debtor as summons are now served." No option exists about serving the copy of the notice if the optional method of posting notices is adopted. The option is either to publish in a newspaper, or to post notices; but if this last method is adopted, all the requirements of that method must be met. It would not, therefore, be sufficient to post the five notices without also serving a copy upon the debtor as summons are now served; but it would be sufficient to comply with the law which is applicable to all sales, regardless of amount by publishing the notice in some language, with Kirby's Dig. § 1176, as to the giving of notice of proceedings before the county court for calling in county warrants for cancellation, could not be overcome by parol testimony on petition for certiorari to quash the record of the proceedings, so that the sheriff's testimony that he did not post notice as required was inadmissible. Appeal from Circuit Court, Monroe County; Thos. C. Trimble, Judge. Petition for certiorari by George W. Clark against Monroe County to quash the record of the proceedings of the county court in calling in warrants for cancellation. From judgment quashing the order of the county court barring the warrants, the county appeals. Judgment reversed, and cause remanded, with directions to enter judgment reinstating the order and judgment of the county court barring the warrants. C. F. Greenlee, of Brinkley, for appellant. Lee & Moore, of Clarendon, for appellee. WOOD, J. Appellee petitioned the circuit court for a writ of certiorari to quash the record of the proceedings of the county court of Monroe county in calling in warrants for the cancellation of the issue. He alleged in substance that he was the prosecuting attorney of the judicial district in which that county was situated; that he was the owner of county warrants that had been issued to him for his official services aggregating the sum of $975; that on the 7th of July, 1913, the county court entered of record an order calling in all outstanding warrants of the county which had been issued prior to May 15, 1913, for the purpose of cancellation and reissue; that he had no notice of this order and for that reason the warrants held by him were not presented in obedience to the order. He alleged that the order calling in the warrants was void because of a failure of the sheriff of Monroe county to comply with the provisions of section 1176 of Kirby's Digest, to give notice to holders of the warrants. He alleged that the return of the sheriff shows on its face that he failed to post notices in each of the said wards in the cities of Clarendon and Brinkley in Monroe county, both of which are cities of the second class; that the order of the county court barring petitioner's warrants was therefore void. He prayed that the same be quashed, and that his warrants be declared a valid claim against the county. He filed with his petition the return of the sheriff, which is as follows: "State of Arkansas. County of Monroe. "I, T. D. Bounds, sheriff of Monroe county, Arkansas, do hereby certify that in pursuance of the order herein contained, I have posted at cincts in each township of Monroe county more the courthouse door and at the election prethan thirty days before the time appointed by said court for the presentation of said warrants a true copy of said court in the premises, and I have published a true copy hereof in the Arkansas Democrat and the Monroe County Citi zen, two newspapers published and printed in The appellant filed a general demurrer, and also a response to the petition denying its allegations, and alleged that the proceedings of the county court calling in the warrants for cancellation and reissue were in strict compliance with the law. The cause was heard upon the testimony of the sheriff and appellee, and the record of the county court showing the order of such court calling in the warrants, and the return of the sheriff set forth above, and the judgment of the court barring the warrants that had not been presented in obedience to the court's order. The order barring the warrants recites: "Said printed notice the court finds was posted in each voting precinct in each township of Monroe county and at the courthouse of said county on the 21st of July, 1913." The sheriff testified over the objection of the appellant as follows: "Q. Did you post any notice in the voting precincts in the three wards in Clarendon and the three wards in Brinkley? A. No, sir; I only posted notices as I understand it in each township in the county, at the voting precinct in each township. One notice in each township at the voting precinct." tradicted his return, which was in strict compliance with the statute, and could not be overcome by parol testimony. The statute provides that: Notice shall be given "by putting up at the courthouse door and at the election precincts in each township of said county, at least thirty days before the time appointed by the order of warrants, a true copy of the order of said court said county court for the presentation of said in the premises," etc. Section 1176, Kirby's Digest. The sheriff's return recites: "I have posted at the courthouse door and at the election precincts in each township of Monroe county, more than thirty days," et cetera. The return, it will be observed, follows In Gibney v. the language of the statute. Crawford, 51 Ark. 42, 9 S. W. 309, Mr. Justice Battle, speaking for the court concerning this statute, says: "The statute having prescribed the manner in which the notice should be given, it could not be given legally in any other manner; and having prescribed what shall be the evidence of the publication, it can be proven in no other manner. Facts which should be of record cannot be proven by parol." In the recent case of Halton v. Craighead County, 195 S. W. 354, notice of the order calling in the county warrants was given by the sheriff as shown by his return as follows: ting up a true and perfect copy thereof at each "I served the within order and notice by putof the election precincts in each of the townships of Craighead county as follows: Jonesboro Witness testified that "there were at the township at the courthouse, Dec. 31, 1915, Lake time three wards in Brinkley and three City township at the courthouse, Jan. 1, 1916," etc., mentioning all of the other townships. wards in Clarendon," and there was one In speaking of these notices we said: voting precinct in each ward, and that he "The return of the sheriff is the statutory recdid not post the notice in the city of Brink-ord of the posting of the notices, and in this case ley, but in the township of Brinkley, and in the township of Clarendon. Clarendon and Brinkley were cities of the second class. Appellee Clark testified, over the objection of appellant, "that he had no notice of the calling in of the warrants." The court made the following finding: "The court finds from the oral testimony of the sheriff and the certified copy of said causes that the notices were not posted as required by law in the three wards of the city of Clarendon and in the three wards of the city of Brinkley, and that the order of the county court, debarring the scrip of petitioner herein, was void and should be quashed for the reason that it appears from the record, affirmatively, that no notice was posted in either of said wards, and for the reason that the sheriff testified that said notices were not posted in either of said wards." The court rendered a judgment quashing the order of the county court of Monroe county in barring appellee's warrants, from which is this appeal. The court erred in permitting the sheriff to testify that he did not post the notice of the court's order, calling in the warrants, in the city of Brinkley and in the city of Clarendon, and that there were three wards in Brinkley and three wards in Clarendon, and one voting precinct in each ward; that he only posted the one notice at the voting precinct in each township. This testimony con that record fails to show that notices were posted in the five voting precincts of the city of Jonesboro," It will be observed that the return of the sheriff in Halton v. Craighead County, supra, shows affirmatively that the notices were not posted at each of the five election precincts in the city of Jonesboro, but on the contrary were only posted at the courthouse in the city of Jonesboro, which was the election precinct for the Jonesboro township. Speaking of the return of the sheriff in the above case we said: "The return of the sheriff recites the posting of a copy of said order of the county court at the courthouse door in the city of Jonesboro, and also a copy at the courthouse door in the town of Lake City, and also copies at voting precincts in each township." The above language was inaccurate in stating that the return of the sheriff showed that copies of the order of the county court were posted "at voting precincts in each township," because the return there showed that in Jonesboro township the notice was posted only at the courthouse, whereas, in Jonesboro township, in which the city of Jonesboro was situated, there were five election precincts, and the return showed that the notice was only posted at one of these election precincts, to wit, at the courthouse. Though, by inadvertence, the opinion did not correctly recite the return of the sheriff, it is apparent that we did not intend to hold that a return couched in the language of the statute itself was not legally sufficient, and the basis of the decision was that as the return of the sheriff failed to show that the Action by Willoughby Smith against C. N. Simpson. Judgment for plaintiff, and defendant appeals. Reversed and remanded. D. B. Sain, of Nashville, for appellant. W. P. Feazel, of Nashville, for appellee. HUMPHREYS, J. Appellee instituted suit notice had been posted "at the election pre- against appellant in the Howard chancery cincts in each township of said county," the court on the 18th day of August, 1917, to reorder was void. The decision was by a di- deem the following described real estate, in vided court, but there was no disagreement Howard county, Ark., to wit: E. 2, S. E. as to the fact that the sheriff's return show-14, S. W. 4, section 20, township 11 south, ed that the notice had not been posted in the range 27 west, and a definitely described election precincts of the wards in Jonesboro part of the E. 1⁄2 of the S. E. 4 of said secexcept at the courthouse door. The views of tion, township, and range, containing in all the dissenting judges were that the statute 55 acres, from a mortgage executed by Wildid not require posting in the wards of cit-liam Goodloe to C. N. Simpson, on the 13th ies in addition to the posting at the court house door. The present case is therefore distinguished from Halton v. Craighead County, supra, in that the return of the sheriff here is in the language of the statute, and does show on its face that the notice of the court's order calling in the warrants was posted at the courthouse and at the election precincts in each township of Monroe county. The return of the sheriff in the instant case being in the language of the statute, and showing that the notice was posted "at the election precincts in each township of Monroe county," necessarily showed that the notices were posted at the election precincts in the wards of the city. In Halton'v. Craighead County, supra, the court further said: "The statute expressly provides that a copy of the order must be posted at the courthouse door 'and at the election precincts in each township of said county.' This is very broad language and is susceptible only to the interpretation that it means every election precinct in the county, which, of course, includes the wards of a city." Since the return of the sheriff in the instant case shows that the notice was given as required by the statute, this record was sufficient and cannot be overturned by parol testimony, showing to the contrary. The judgment is therefore reversed, and the cause is remanded, with directions to the circuit court to enter judgment reinstating the order and judgment of the county court barring appellee's warrants. (134 Ark. 117) SIMPSON v. SMITH. (No. 334.) (Supreme Court of Arkansas. April 29, 1918.) JUDGMENT 570(5)—BAR-SECOND SUIT TO REDEEM. day of December, 1913, upon the same lands to secure an indebtedness of $633.70. At the time of the execution of said mortgage, William Goodloe was the owner of the land. On January 26, 1914, William Goodloe sold and conveyed the land to Frank Smith, who executed a mortgage on the 24th day of August, 1914, to Farmers' Oil & Fertilizer Company to secure $1,500. The mortgage executed by Goodloe to C. N. Simpson was foreclosed in the chancery court, and at the foreclosure sale C. N. Simpson became the purchaser of the land for $450. In the meantime Frank Smith had died, leaving Iren Smith, his wife, and Willoughby Smith, Jr., his only heir. In the Simpson foreclosure suit neither Frank Smith's widow and child, nor the Farmers' Oil & Fertilizer Company, were made parties. After Frank Smith's death, in 1916, Farmers' Oil & Fertilizer Company foreclosed its mortgage. Frank Smith's widow and son were made parties, and their equity of redemption was sold and purchased by Willoughby Smith, Sr., who is the appellee in this case. After appellee purchased the equity of redemption in this land, he offered to redeem same from the purchaser at the first mortgage sale, who is the appellant in this case, by paying to him the amount of his bid, interest, and costs. Appellant refused to accept the amount tendered, but offered to accept the entire mortgage debt, so appellee instituted suit for redemption in the chancery court of Howard county, which case was appealed to this court and decided adversely to the claim of Willoughby Smith, Sr. The case is reported under the style of Smith v. Simpson, 129 Ark. 275, 195 S. W. 1067. This court announced in that case that the owner of an equity of redemption in land not made a party in a foreclosure proceeding could redeem after foreclosure by An owner of an equity of redemption not made a party in a foreclosure proceeding, who brought suit to redeem by paying purchaser his bid, has had his day in court, and is precluded from bringing another action to redeem by pay-paying the entire mortgage debt. ing entire mortgage debt, where, after he had case the trial court offered to allow Wilrefused the court's offer to redeem by so doing, loughby Smith, Sr., to redeem from the mortthe first suit was dismissed against him. In that gage by payment of the entire mortgage debt Appeal from Howard Chancery Court; to C. N. Simpson. This offer was refused, Jas. D. Shaver, Chancellor. appellee standing on his right to redeem by paying the bid, interest, and costs, and his original bill to redeem was dismissed. This court ruled in that case that the lower court properly dismissed the bill upon appellee's refusal to pay the mortgage debt. (134 Ark. 236) VAN PELT v. RUSSELL. (Supreme Court of Arkansas. April 29, 1918.) 1. MORTGAGES 471 - FORECLOSURE RE CEIVERS LANDLORD'S ATTACHMENT. 2. CHATTEL MORTGAGES 271 ing a deficiency, mortgagee can replevy the personalty without giving a verified statement of lating to foreclosure under chattel mortgages. his account required by Kirby's Dig. § 5415, re Appeal from Circuit Court, White County; J. M. Jackson, Judge. Two actions by H. R. Russell, as receiver in foreclosure in one, and as administrator of the estate of D. M. Doyle, deceased, in the other, against J. B. Van Pelt. Judgment for plaintiff on the first, and for defendant on the other, and both appeal. Each case reversed and remanded. After the issue was adjudged adversely to him in that case, appellee tendered C. N. Simpson the full amount of the mortgage debt, including interest and costs, less the net rent collected by C. N. Simpson during the time he was in possession of the real estate, and requested a conveyance of the property. The offer to redeem was refused, and this suit was instituted for the purpose of enforcing his alleged right of redemption. The trial court, under the pleadings and an agreed statement of facts, the substance of which has been set out herein, held that Willoughby Smith, Sr., had a right to redeem upon the payment of the entire mortgage Where a mortgage is given on personalty as debt, interest, and costs, and $45, as repre- additional security to a note secured by mortsenting the net rent collected by C. N. Simp-gage on land, and the land is foreclosed, leavson while in possession of the land. Willoughby Smith, Sr., then paid the additional $45 to the clerk of the court, whereupon the court canceled the title papers of C. N. Simpson, and divested all the title to said real estate out of him, and vested same in Willoughby Smith, Sr., from which decree an appeal has been prosecuted to this court. Appellee is now prosecuting a second redemption suit, covering the same subjectmatter, against the same party as in his first suit. In the first suit he declined the offer of the court to permit him to redeem by paying the entire mortgage debt. He not only declined the offer of the court, but he elected to prosecute a suit to final decision in the Supreme Court upon the theory that he had a right to redeem by paying the bid, interest, and costs of the foreclosure, which was much less than the mortgage debt. After the issues in that redemption suit were decided adversely to him, he tendered the amount of the mortgage debt to appellant, and instituted this suit to redeem the lands from the mortgage. We think he is precluded from prosecuting this suit for redemption for the reason that he had his day in court and refused to avail himself of the opportunity at that time to redeem by paying the mortgage debt. The equitable rule allowing the owner of the equity of redemption to redeem after foreclosure of the mortgage is available only in case the owner of the equity was not made a party in the foreclosure proceeding; or, phrasing it differently, because the owner of the equitable interest had not had a day in court. In the case at bar, the appellee had his day in court by his former redemption suit, and had full opportunity therein to exercise the right of redemption he now contends for. For the error indicated, the decree is reversed and remanded, with direction to dismiss the bill for want of equity. Different issues are involved in the appeals in these two cases, but inasmuch as they arise from the same transaction and are dependent upon the same facts one statement of facts will suffice for both cases, and the opinions may be written together. In December, 1912, J. B. Van Pelt, being indebted to D. M. Doyle in the sum of $2,000, executed his note therefor, and to secure the payment of said note he executed a mortgage on 200 acres of farm land in White county. At the same time, to further secure the note, he executed a mortgage to Doyle on certain personal property. In July, 1913, D. M. Doyle departed this life intestate. In October, 1915, T. J. Loudermilk, the administrator of the estate of D. M. Doyle, deceased, brought suit in equity against J. B. Van Pelt to foreclose the mortgage on the real estate. In a short time thereafter H. D. Russell, who had married the widow of D. M. Doyle, was appointed administrator in succession of the estate of D. M. Doyle, deceased, and was substituted as the plaintiff in the foreclosure suit. In April, 1916, Russell was appointed receiver in the foreclosure suit and ordered to take charge of the land involved therein. He was directed to rent the land, to collect the rents therefrom, and to make his report thereof to the chancery court at its December term. J. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes B. Van Pelt was in possession of the land. I upon the crop grown by Van Pelt on the Russell went to him and demanded posses- land. sion of the land or that he pay him rent therefor. Van Pelt refused to deliver him possession of the land and also refused to pay him rent. He claimed that he was entitled to the possession of the land himself. Every time Russell approached Van Pelt on the subject, Van Pelt told him that the land belonged to him and that he would not pay him any rent. In October, 1916, the chancery court rendered a judgment in favor of the plaintiff in the foreclosure suit for the sum of $3,100 against Van Pelt, and also decreed that the land be sold for the payment thereof. On the 21st day of October, 1916, H. D. Russell, as receiver, instituted a suit in the circuit court against Van Pelt to recover $300, alleged to be the amount of rent due on the land for the year 1916, and asked that a landlord's attachment be issued and levied on the crop. In February, 1917, there was a sale of the land under the foreclosure decree and the land was bid in by Russell for the sum of $2,150. About the 1st of June, 1917, H. D. Russell, as administrator of the estate of D. M. Doyle, deceased, instituted an action in replevin against Van Pelt to recover possession of the personal property embraced in the chattel mortgage for the purpose of foreclosing it for the balance due on the mortgage indebtedness. In the landlord's attachment suit the circuit court was of the opinion that the plaintiff was entitled to a verdict, and instructed the jury to find for him in whatever amount the proof showed the value of the rent to be for the year 1916. In the replevin case the court was of the opinion that a verdict should be directed in favor of the defendant, for the reason that an itemized account had not been made and delivered to the defendant by the plaintiff before the suit was brought. Both cases are here on appeal. J. N. Rachels, of Searcy, for appellant. Brundidge & Neelly, of Searcy, for appellee. HART, J. (after stating the facts as above). In the attachment case the record shows that an application was made for the appointment of a receiver to take charge of the land involved in the foreclosure suit; that H. D. Russell was appointed as such receiver for the purpose of renting the land and collecting the rents therefrom. These facts are shown by the order appointing him as receiver. The record also shows that he entered upon the discharge of his duties as such receiver and demanded that Van Pelt should pay him the rent for the land for the year 1916; that Van Pelt was in possession of the land and refused to pay rent therefor to Russell. In October, 1916, Russell commenced an action against Van Pelt to recov [1] Counsel for Van Pelt rely upon the case of Brickey v. Cotter, Adm'r, 119 Ark. 543, 178 S. W 370, and other cases of like character, for a reversal of the judgment in the attachment case. The facts in the two classes of cases are not analogous. In the cases referred to, the mortgagor remained in possession until after the sale in the foreclosure suit, and no effort was made by the mortgagee, until after such sale, to collect the rents. The court held that they were not entitled to the rents by virtue of their purchase at the foreclosure sale. In the present case the receiver was appointed under section 6354 of Kirby's Digest. That section provides that in an action by a mortgagee for a foreclosure of a mortgage, and the sale of the mortgaged property, a receiver may be appointed where it appears that the property is probably insufficient to discharge the mortgage debt, or for other causes not necessary to mention here. Russell was appointed by the chancery court under the provisions of this section of the statute. He had the right, and it was his duty under the order of the court appointing him, as receiver, to take possession of the mortgaged premises for the purpose of When possession was renting them out. withheld by Van Pelt, or he refused to attorn to Russell, the court upon proper application might have interfered in a summary way and enforced its orders. 34 Cyc. 204. So when Van Pelt refused to deliver the mortgaged premises to Russell, or to attorn to him, Russell should have applied to the court to compel Van Pelt to do so. Not having done this, he was not entitled to bring an action to enforce a landlord's attachment. There was no relation of landlord and tenant created by the order appointing Russell receiver of the mortgaged premises and directing him to take charge thereof and to collect the rents therefrom. To create the relation of landlord and tenant between them there must either have been a valid contract between the parties to that effect, or an order of the court directing Van Pelt to attorn to Russell, followed by acquiescence therein on the part of Van Pelt. See Love v. Cahn, 93 Ark. 215, 124 S. W. 259. The reason is that the relation of landlord and tenant is always created by contract, either express or implied, and it will never be implied when the acts and conduct of the parties are inconsistent with its existence. 16 R. C. L. § 13, p. 541. In the instant case, as we have already seen, the receiver never got possession of the land, and Van Pelt not only refused to attorn to him but claimed the right to hold the land until evicted under an order of the court. Therefore the court erred in directing a verdict for the plaintiff. |