preserved his right to raise the question of the alleged error of the court in deciding it had no jurisdiction.

The statute under which the suit was instituted provides that the wages "shall not continue more than sixty days unless an action therefor shall be commenced within that time." Kirby's Digest, § 6649. If, however, the action is commenced within sixty days, the wages continue up to the date of final judgment. Kansas City, P. & G. Rd. Co. v. Moon, 66 Ark. 409. Where an appeal is prosecuted from a justice of the peace to the circuit court, the amount of wages which accrued during the delay is not deemed to have been merged in the judgment of the justice, but continue until final judgment in the circuit court. St. Louis, I. M. & S. Ry. Co. v. Bryant, 92 Ark. 425.

The so-called penalty, mentioned in the statute, accruing by way of continuance of the wages during the delay in payment, is given, as said by this court in St. Louis, I. M. & S. Ry. Co. v. Pickett, 70 Ark. 226, "partly as compensatory and partly as exemplary damages." And it was also held in that case that a separate action could be maintained to recover the damages. The recovery, however, either in an action to recover both wages and damages, or in a separate action to recover one or the other, is limited to that which accrues up to the time of the payment of the original wages due at the time of the discharge. St. Louis, I. M. & S. Ry. Co. v. Bryant, supra.

In Chicago, R. I. & P. Ry. Co. v. Langley, 78 Ark. 207, following the ruling of the court in the Pickett case, supra, we held that separate actions might be maintained, and an appeal could be taken from a judgment of a justice of the peace for the damages after a tender of the amount of the original wages had been made.

We have held that a justice of the peace has jurisdiction in actions of this character for the reason that a recovery for continuation of wages is not strictly a penalty, but is intended to compensate the employee for the delay and to award further compensation by way of exemplary damages. Leep v. Railway, 58 Ark. 407. The damages grow out of the contract, and the justice of the peace has jurisdiction up to the sum of $300 under the provision of the Constitution which confers. jurisdiction "in matters of contract." Koch v. Kimberling,

55 Ark. 547. The jurisdiction being limited, however, to the sum of $300, the increase of the amount due by reason of the continuation of the wages during the delay can not exceed the jurisdiction of the justice, nor of the circuit court on appeal beyond the constitutional amount named.

The principle announced in the case of Rose v. Christinet, 77 Ark. 582, which is cited and relied on by appellee, is controlling to a large extent in the present case. There we held that the circuit court on appeal had no jurisdiction of the cause of action set forth in an amended complaint asking for damages for wrongful detention of personal property in excess of the sum of a hundred dollars, and that any judgment rendered by the court on such plea was void for want of jurisdiction. That case is authority for the contention that a judgment of the circuit court on appeal, in awarding damages for delay, whether the same accrued before or after the commencement of the action, can not exceed the jurisdictional amount conferred upon justices of the peace by the Constitution; but the case is distinguishable from the present one on the point that the circuit court had no jurisdiction to render any judgment at all. In that case an amended plea was filed setting forth a cause of action which was beyond the jurisdiction of the circuit court to hear and determine, and we held that any judgment rendered thereon was void. In the present case there was no amendment to the pleadings. The cause was tried upon the cause of action set forth in the original pleadings, of which the court had acquired jurisdiction and still retained it up to the amount of the limit prescribed by the Constitution. The jury, by its verdict, and the court, by the judgment rendered thereon, exceeded the jurisdiction; but that was an error which could be corrected by reducing the amount of the judgment so as to bring it within the limit prescribed by the Constitution. The court did not lose jurisdiction merely because, by lapse of time, the amount which might have been recovered in a court of proper jurisdiction had exceeded the jurisdictional amount of the justice of the peace. The court was correct in holding that the judgment was erroneous because it exceeded the jurisdiction conferred by the Constitution; but the correction of that error only called for the reduction of the judgment to the jurisdictional

amount. The rendition of the judgment for the excessive amount did not oust the jurisdiction of the court to render a judgment for the correct amount. The jury settled all the issues in appellant's favor, and the only error made was in the verdict and the rendition of a judgment for an amount in excess of the court's jurisdiction, which error could, as before stated, be corrected by reducing the judgment to the jurisdictional amount. In Rose v. Christinet, supra, we said:

"Where jurisdiction is rightly conferred, as in this case, by the original statement of a cause of action of which the court had jurisdiction, the allowance of an amendment increasing the amount beyond the jurisdiction, is an error which may be corrected by rejection or withdrawal of the amendment, leaving the cause resting upon the statements of the original complaint."

In the present case, as we have already pointed out, there being no amendment, the court had jurisdiction when it rendered judgment up to $300, and any judgment rendered up to that amount, was valid. Therefore, the correction may be made after judgment. The circuit court erred in setting aside the judgment entirely on account of lack of jurisdiction and in affirming the judgment of the justice. Instead of doing that it should have reduced the judgment to the jurisdictional amount of $300. The judgment of the circuit court is, therefore, reversed and judgment will be entered here in appellant's favor for the sum of $300, with interest from the date of the original judgment in the circuit court.

1.

2.

PRIDDY & CHAMBERS v. SMITH.

Opinion delivered December 23, 1912.

VENDOR'S LIEN-REDEMPTION.—Under a decree and sale in chancery, enforcing a vendor's lien, there is no right of redemption under section 5420 of Kirby's Digest. (Page 82.)

VENDOR'S LIEN-NATURE OF LIEN-HOW ENFORCED.-A vendor's lien is a creation of equity and does not exist at law, and is enforced by a court of equity as a trust or as an equitable mortgage. (Page 80.)

Appeal from Yell Chancery Court, Danville District;; Jeremiah G. Wallace, Chancellor; reversed.

Priddy & Chambers, for appellants.

From the expiration of the time fixed by the court in its decree in which to redeem, the appellees' right of redemption was barred. 66 Ark. 490, 492.

Sections 5416 and 5420 have reference to mortgages and deeds of trust only, and can not be extended to include a vendor's lien reserved in the deed.

Sam Frauenthal, for appellees.

The court correctly determined that the lien was an equitable mortgage. The language used in the deed, viz: "It is hereby understood and expressly agreed that a lien is hereby retained on the lands hereinafter granted to secure the payment of the said residue of the purchase money so evidenced by said notes," made of the lien for the purchase money a matter of contract and not merely a lien by implication of law. 1 Jones on Real Estate Mortgages, § § 228, 229; 3 Pomeroy, Eq. Jur., § 1257; 51 Ark. 433; 3 Otto. (U. S.) 199; 37 Ark. 511; 60 Ark. 595; 91 Ark. 268; 93 Ark. 371; 97 Ark. 534. If by the contract the property is made security for the debt, the right of redemption necessarily follows. The mere fact that the debt was for the purchase money did not exclude this right of redemption, if the transaction securing the debt resulted also in an equitable mortgage. 53 Ark. 69.

By the statute, Kirby's Dig., § 5420, the right of redemption, which, as an equitable right, existed up to the time of the decree of foreclosure, or to the time fixed by the decree, was extended for one year beyond the date of sale. Statutes giving the right of redemption should be liberally construed where the party asserting the right has done so in the time and manner named in such statutes. 99 Ark. 324; 10 Pet. 11; 27 Cyc. 1800.

MCCULLOCH, C. J. The question involved in this case is, whether or not the statute which confers the right of redemption "under an order or decree of the chancery court, * * in the foreclosure of mortgages and deeds of trust,' (Kirby's Digest, § 5420), applies to sales of property under decrees enforcing vendor's equitable liens.

A vendor's lien is the creation of equity and does not

exist at law. Harris v. Haynie, 37 Ark. 348; Waddell v. Carlock, 41 Ark. 523; Stephens v. Shannon, 43 Ark. 464. It is enforced by a court of equity as a trust or as an equitable mortgage. Does the statute apply to sales ordered for the enforcement of such rights? We hold that it does not, as it applies only to mortgages or deeds of trust legally speaking, and not such liens as are treated by courts of equity as equitable mortgages and enforced as such. A consideration of the language of the statute and its relation to prior statutes, as interpreted by this court, leads irresistibly to that conclusion. The act of 1879, as amended by the act of 1883, Kirby's Digest, § 5416, provides that at all sales of real property "under mortgages and deeds of trust in this State," the property sold thereunder may be redeemed by the mortgagor at any time within one year from the sale thereof. Notwithstanding the fact that the act broadly declares that at all sales of real property under mortgages and deeds of trust the right of redemption existed, this court held that the act did not apply to sales under decrees of court to foreclose mortgages. Martin v. Ward, 60 Ark. 510; Southwestern Ark. & I. T. Ry. v. Hays, 63 Ark. 355. Judge RIDDICK, speaking for the court, on this point said:

"Now a sale under a decree of court is not a sale under a mortgage or deed of trust. Although the decree may have been rendered in an action to foreclose a mortgage or deed of trust containing a power of sale, still a sale under such a decree is not controlled by, nor dependent for its validity upon, such power of sale, but upon the decree of the court." Martin v. Ward, supra.

The Legislature then enacted the statute now under consideration, extending the right of redemption to sales under decrees of chancery courts in the foreclosure of mortgages and deeds of trust. It is manifest that the Legislature merely meant to extend the right of redemption to decrees for foreclosures of mortgages, and not to all decrees enforcing liens or other equitable mortgages.

It is not accurate to say that a vendor's lien is an equitable mortgage, for such a lien is merely treated in equity as a mortgage and enforced as such. The manifest design of the Legislature in both of the statutes was to preserve the right of re